SECOND PRIORITY NOTES FIRST SUPPLEMENTAL INDENTURE
Exhibit 4.04
SECOND PRIORITY NOTES FIRST SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of December 3, 2009, among Xxxxx Plastics Corporation, a Delaware corporation (the “Company”), the subsidiaries of the Company party hereto (the “Note Guarantors”), Xxxxx Plastics Escrow LLC, a Delaware limited liability company (“Escrow LLC”), Xxxxx Plastics Escrow Corporation, a Delaware corporation (“Escrow Corp” and, together with Escrow LLC, the “Issuers”) and U.S. Bank National Association, a national banking association, as trustee under the indenture referred to below (the “Trustee”).
W I T N E S S E T H :
WHEREAS the Issuers have heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified, the “Indenture”) dated as of November 12, 2009, providing initially for the issuance of $250,000,000 in aggregate principal amount of the Issuer’s 8 7/8% Second Priority Senior Secured Notes due 2014 collectively, (the “Securities”);
WHEREAS Sections 4.18 and 9.01 of the Indenture provide that the Issuers may execute and deliver to the Trustee a supplemental indenture pursuant to which the Company shall unconditionally assume all the Issuers’ Obligations under the Securities and the Indenture on the terms and conditions set forth herein;
WHEREAS Sections 4.11 and 12.06 of the Indenture provide that under certain circumstances the Issuers are required to cause the Note Guarantors to execute and deliver to the Trustee a supplemental indenture pursuant to which the Note Guarantors shall unconditionally guarantee all the Issuers’ Obligations under the Securities and the Indenture pursuant to a Guarantee on the terms and conditions set forth herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee, the Issuers, the Company and the Note Guarantors are authorized to execute and deliver this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the Note Guarantors, the Issuers and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
1. Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as therein defined, except that the term “Holders” in this Supplemental Indenture shall refer to the term “Holders” as defined in the Indenture, the Trustee and the Notes Collateral Agent acting on behalf of and for the benefit of such Holders. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
2. Agreement to Assume Obligations. The Company hereby agrees to unconditionally assume the Issuers’ Obligations under the Securities and the Indenture on the terms and subject to the conditions set forth in the Indenture and to be bound by all other applicable provisions of the Indenture and the Securities and to perform all of the obligations and agreements of the Issuers under the Indenture.
3. Agreement to Guarantee. The Note Guarantors hereby agree, jointly and severally, to unconditionally guarantee the Issuers’ Obligations under the Securities and the Indenture on the terms and subject to the conditions set forth in Article 12 of the Indenture and to be bound by all other applicable provisions of the Indenture and the Securities and to each perform all of the obligations and agreements of a Note Guarantor under the Indenture.
4. Notices. All notices or other communications to the Company and the Note Guarantors shall be given as provided in Section 13.02 of the Indenture.
5. 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. 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.
6. Release of Obligations of Issuers. Upon execution of this Supplemental Indenture by the Company, the Issuers, the Note Guarantors and the Trustee, the Issuers are released and discharged from all Obligations under the Indenture and the Securities.
7. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
8. Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.
9. 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.
10. Effect of Headings. The Section headings herein are for convenience only and shall not effect the construction thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
| XXXXX PLASTICS CORPORATION | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
| XXXXX PLASTICS ESCROW LLC | ||
| By: Xxxxx Plastics Corporation, its sole member | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
| XXXXX PLASTICS ESCROW CORPORATION | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
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| XXXXX PLASTICS TECHNICAL SERVICES, | ||
| XXXXX XXXXXXXX CORPORATION | ||
| CARDINAL PACKAGING, INC. | ||
| CPI HOLDING CORPORATION | ||
| KNIGHT PLASTICS, INC. | ||
| PACKERWARE CORPORATION | ||
| PESCOR, INC. | ||
| VENTURE PACKAGING, INC. | ||
| VENTURE PACKAGING MIDWEST, INC. | ||
| XXXXX PLASTICS ACQUISITION CORPORATION III | ||
| XXXXX PLASTICS ACQUISITION CORPORATION V | ||
| XXXXX PLASTICS OPCO, INC. | ||
| XXXXX PLASTICS ACQUISITION CORPORATION VIII | ||
| XXXXX PLASTICS ACQUISITION CORPORATION IX | ||
| XXXXX PLASTICS ACQUISITION CORPORATION X | ||
| XXXXX PLASTICS ACQUISITION CORPORATION XI | ||
| XXXXX PLASTICS ACQUISITION CORPORATION XII | ||
| XXXXX PLASTICS ACQUISITION CORPORATION XIII | ||
| ROLLPAK ACQUISITION CORPORATION | ||
| ROLLPAK CORPORATION | ||
| CAPTIVE HOLDINGS, INC. | ||
| CAPTIVE PLASTICS, INC. CAPLAS NEPTUNE, LLC CAPLAS LLC | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Vice President and Assistant Secretary | ||
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| COVALENCE SPECIALTY ADHESIVES LLC | ||
| By: XXXXX PLASTICS CORPORATION, | ||
| its sole member | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
| COVALENCE SPECIALTY COATINGS LLC | ||
| By: XXXXX PLASTICS CORPORATION, | ||
| its sole member | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
| AEROCON, LLC | ||
| By: XXXXX PLASTICS CORPORATION, | ||
| its sole member and manager | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
| XXXXX IOWA, LLC | ||
| By: XXXXX PLASTICS CORPORATION, | ||
| its sole member and manager | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
| XXXXX PLASTICS DESIGN, LLC | ||
| By: XXXXX PLASTICS CORPORATION, | ||
| its sole member and manager | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
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| POLY-SEAL, LLC | ||
| By: XXXXX PLASTICS CORPORATION, | ||
| its sole member and manager | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
| XXXX GROUP, LLC | ||
| By: XXXXX PLASTICS CORPORATION, | ||
| its sole member and manager | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
| SAFFRON ACQUISITION, LLC | ||
| By: XXXX GROUP, LLC, | ||
| its sole member and manager | ||
| By: XXXXX PLASTICS CORPORATION, | ||||||
| its sole member and manager | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
| SUN COAST INDUSTRIES, LLC | ||||||
| By: SAFFRON ACQUISITION, LLC, | ||||||
| its sole member and manager | ||||||
| By: XXXX GROUP, LLC, | ||||||
| its sole member and manager | ||||||
| By: XXXXX PLASTICS CORPORATION, | ||||||||
| its sole member and manager | ||||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
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| XXXXXX PLASTICS, LLC | ||
| By: XXXXX PLASTICS CORPORATION, | ||
| its sole member and manager | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
| SETCO, LLC | ||||
| By: XXXX GROUP, LLC, | ||||
| its sole member | ||||
| By: XXXXX PLASTICS CORPORATION, | ||||
| its sole member and manager | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
| TUBED PRODUCTS, LLC | ||||
| By: XXXX GROUP, LLC | ||||
| its sole member | ||||
| By: XXXXX PLASTICS CORPORATION, | ||||
| its sole member and manager | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
| GRAFCO INDUSTRIES LIMITED PARTNERSHIP | ||
| By: Caplas Neptune, LLC | ||
| its General Partner | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Vice President and Assistant Secretary | ||
| XXXXX PLASTICS ACQUISITION CORPORATION XV, LLC | ||
| By: XXXXX PLASTICS CORPORATION, | ||
| its sole member | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
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| PLIANT CORPORATION | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
| PLIANT CORPORATION INTERNATIONAL | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
| PLIANT FILM PRODUCTS OF MEXICO, INC. | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
| PLIANT PACKAGING OF CANADA, LLC | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
| UNIPLAST HOLDINGS, INC. | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
| UNIPLAST U.S., INC. | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
| PLIANT PACKAGING OF CANADA, LLC | ||
| By: PLIANT CORPORATION, its sole member | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President and Assistant Secretary | ||
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| U.S. BANK NATIONAL ASSOCIATION, | ||
| as Trustee | ||
| By: | /s/ Xxxxxx X. Xxxxx | |
| Name: Xxxxxx X. Xxxxx | ||
| Title: Vice President | ||
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