EXHIBIT 4.9
EXECUTION COPY
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SECOND SUPPLEMENTAL INDENTURE
Dated as of July 9, 2002
to
INDENTURE
Dated as of March 29, 2000
Among
SOVEREIGN SPECIALTY CHEMICALS, INC., as Issuer
THE GUARANTORS PARTY THERETO, as Guarantors
and
THE BANK OF NEW YORK, as Trustee
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up to $200,000,000
11-7/8% Senior Subordinated Notes Due 2010, Series A
11-7/8% Senior Subordinated Notes Due 2010, Series B
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SECOND SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as
of July 9, 2002, by and among SOVEREIGN SPECIALTY CHEMICALS, INC., a Delaware
corporation (the "Company"), the guarantors party hereto and THE BANK OF NEW
YORK, a New York banking corporation, as Trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, pursuant to the terms of the Indenture, dated as of
March 29, 2000, as supplemented by the First Supplemental Indenture, dated March
22, 2001 (as so supplemented, the "Indenture"), among the Company, the
guarantors party thereto and the Trustee, the Company has issued $150,000,000
aggregate principal amount of its 11-7/8 % Senior Subordinated Notes due 2010,
Series A and 11-7/8% Senior Subordinated Notes due 2010, Series B and may issue
up to an aggregate principal amount of $200,000,000 of notes under the Indenture
(all such notes under the Indenture are "Notes");
WHEREAS, pursuant to Articles Eleven and Twelve of the
Indenture, each Guarantor unconditionally guaranteed (these guaranties together
with the Notes, are the "Securities") the Company's obligations under the Notes
and the Indenture in accordance with the terms sets forth therein;
WHEREAS, each of Sovereign Adhesives, Inc., a Delaware
corporation ("Sovereign Adhesives") and Xxxxxx & Xxxxxxx Corp., a New York
corporation are Guarantors;
WHEREAS, Xxxxxx & Xxxxxxx Corp. has changed its name to
Sovereign Packaging Group, Inc. ("SPGI");
WHEREAS, Sovereign Adhesives, Inc. is to be merged with and
into SPGI on the date of this Supplemental Indenture (the "Merger"), with SPGI
being the surviving corporation (the "Surviving Corporation");
WHEREAS, Section 5.01.(b) of the Indenture requires that the
Surviving Corporation expressly assumes by a supplemental indenture all the
obligations of Sovereign Adhesives under its Guaranty of the Notes and the
performance and observance of every covenant under the Indenture and, if any,
the Registration Rights Agreement to be performed by Sovereign Adhesives.
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
SECTION 1. Definitions. All capitalized terms used but not
defined herein shall have the respective meanings ascribed thereto in the
Indenture.
SECTION 2. Assumption of Guarantee and Indenture Obligations.
The Surviving Corporation hereby assumes all of Sovereign Adhesives' obligations
under its Guaranty of the Notes and the performance and observance of every
covenant of the Indenture and, if any, the Registration Rights Agreement to be
performed or observed by such Guarantor.
SECTION 3. Ratification of Indenture; Supplemental Indentures
Part of Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. Upon the execution and delivery
of this Supplemental Indenture by the Company, the Guarantors and the Trustee,
this Supplemental Indenture shall form a part of the Indenture for all purposes,
and every holder of Securities heretofore or hereafter authenticated and
delivered shall be bound hereby. Any and all references, whether within the
Indenture or in any notice, certificate or other instrument or document, shall
be deemed to include a reference to this Supplemental Indenture (whether or not
made), unless the context shall otherwise require.
SECTION 4. Governing Law. THE LAWS OF THE STATE OF NEW YORK
SHALL GOVERN THIS SUPPLEMENTAL INDENTURE WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW (OTHER THAN NEW YORK GENERAL OBLIGATION LAW SECTIONS 5-1401 AND
5-1402).
SECTION 5. Trust Indenture Act Controls. This Supplemental
Indenture is subject to the provisions of the Trust Indenture Act of 1939 (15
U.S. Code Sections 77aaa-77bbbb) ("TIA") that are required to be a part of this
Supplemental Indenture, and shall, to the extent applicable, be governed by such
provisions. If any provision of this Supplemental Indenture modifies any TIA
provision that may be so modified, such TIA provision shall be deemed to apply
to this Supplemental Indenture as so modified. If any provision of this
Supplemental Indenture excludes any TIA provision that may be so excluded, such
TIA provision shall be excluded from this Supplemental Indenture. The provisions
of TIA Sections 310 through 317 that impose duties on any Person (including the
provisions automatically deemed included unless expressly excluded by this
Supplemental Indenture) are a part of and govern this Supplemental Indenture,
whether or not physically contained herein.
SECTION 6. Recitals. The recitals contained herein shall be
taken as the statements of the Company and the Surviving Corporation, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Supplemental
Indenture.
SECTION 7. Counterparts. The parties may sign any number of
copies of this Supplemental Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement.
SECTION 8. Effectiveness. This Supplemental Indenture shall be
effective and operative concurrently with the completion of the Merger.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the day and year first above
written.
SOVEREIGN SPECIALTY
CHEMICALS, INC.,
as Issuer
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman
SIA ADHESIVES, INC.,
OSI SEALANTS, INC.,
XXXXXX CHEMICALS, INC.,
SOVEREIGN ADHESIVES, INC.,
IMPERIAL ADHESIVES, INC.,
as Guarantors
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chairman
SOVEREIGN HOLDINGS, LLC,
SOVEREIGN LATIN AMERICA, LLC,
as Guarantors
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chairman
SOVEREIGN PACKAGING GROUP, INC.
(formerly known as Xxxxxx & Xxxxxxx
Corp.),
as Surviving Corporation and Guarantor
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chairman
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxx XxXxxxxx
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Name: Xxxx XxXxxxxx
Title: Vice President
