Contract
Exhibit
10.1(j)
SUPPLEMENT
NO. 1 dated as of April 3, 2007 (this “Supplement”),
to
the Collateral Agreement dated as of September 20, 2006 (the “Collateral
Agreement”),
among
XXXXX PLASTICS HOLDING CORPORATION (the “Issuer”),
each
subsidiary of the Issuer identified herein as a party (each, a “Subsidiary
Party”)
and
XXXXX FARGO BANK, N.A., as collateral agent (in such capacity, the “Collateral
Agent”)
for
the Secured Parties (as defined therein).
A. Reference
is made to (i) the Indenture dated as of September 20, 2006 (as amended,
restated, supplemented, waived or otherwise modified from time to time, the
“Indenture”),
by
and between BPC Acquisition Corp. and Xxxxx Fargo Bank, National Association,
as
trustee (the “Trustee”),
as
supplemented by the First Supplemental Indenture dated as of September 20,
2006
by and among the Issuer, BPC Acquisition Corp., the Guarantors named therein
and
the Trustee and (ii) the Purchase Agreement dated as of September 15, 2006
(as
amended, restated, supplemented, waived or otherwise modified from time to
time,
the “Purchase
Agreement”),
among
BPC Acquisition Corp., the several parties named in Schedule I thereto (the
“Initial
Purchasers”)
and,
upon the consummation of the merger on the date of the Collateral Agreement,
the
Issuer (formerly BPC Holding Corporation) and the Subsidiary Parties thereto.
B. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Indenture and the Collateral Agreement referred
to
therein.
C. The
Pledgors have entered into the Collateral Agreement in order to induce the
Trustee to enter into the Indenture and the Initial Purchasers to purchase
the
Notes. Section 7.16 of the Collateral Agreement provides that additional
Subsidiaries may become Subsidiary Parties under the Collateral Agreement by
execution and delivery of an instrument in the form of this Supplement. Each
of
the undersigned Subsidiaries (each, a “New
Subsidiary”
and
collectively the “New
Subsidiaries”)
are
executing this Supplement in accordance with the requirements of the Indenture
to each become a Subsidiary Party under the Collateral Agreement as
consideration for credit previously extended to the Issuer.
Accordingly,
the Collateral Agent and each New Subsidiary agree as follows:
In
accordance with Section 7.16 of the Collateral Agreement, each New Subsidiary
by
its signature below becomes a Subsidiary Party and a Pledgor under the
Collateral
Agreement with the same force and effect as if originally named therein as
a
Subsidiary Party and a Pledgor, and each New Subsidiary hereby (a) agrees to
all
the terms and provisions of the Collateral Agreement applicable to it as a
Subsidiary Party and a Pledgor thereunder and (b) represents and warrants that
the representations and warranties made by it as a Pledgor thereunder are true
and correct, in all material respects, on and as of the date hereof. In
furtherance of the foregoing, each New Subsidiary, as security for the payment
and performance in full of the Obligations (as defined in the Collateral
Agreement), does hereby create and grant to the Collateral Agent, for the
benefit of the Secured Parties, a security interest in and Lien on all of each
New Subsidiary’s right, title and interest in and to the Collateral (as defined
in the
Collateral
Agreement) of each New Subsidiary. Each reference to a “Subsidiary Party” or a
“Pledgor” in the Collateral Agreement shall be deemed to include each New
Subsidiary. The Collateral Agreement is hereby incorporated herein by reference.
Each
New
Subsidiary represents and warrants to the Collateral Agent and the other Secured
Parties that this Supplement has been duly authorized, executed and delivered
by
it and constitutes its legal, valid and binding obligation, enforceable against
it in accordance with its terms, subject to (i) the effects of bankruptcy,
insolvency, moratorium, reorganization, fraudulent conveyance or other similar
laws affecting creditors’ rights generally, (ii) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law) and (iii) implied covenants of good faith and fair dealing.
This
Agreement may be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall constitute
but
one contract. This Supplement shall become effective when (a) the Collateral
Agent shall have received a counterpart of this Supplement that bears the
signature of each New Subsidiary and (b) the Collateral Agent has executed
a
counterpart hereof.
Each
New
Subsidiary hereby represents and warrants that (a) set forth on Schedule
I
attached
hereto is a true and correct schedule of the location of any and all Article
9
Collateral of each New Subsidiary as of the date hereof, (b) set forth on
Schedule
II
attached
hereto is a true and correct schedule of all the Pledged Securities of each
New
Subsidiary and (c) set forth under its signature hereto is the true and correct
legal name of each New Subsidiary, its jurisdiction of formation and the
location of its chief executive office.
Except
as
expressly supplemented hereby, the Collateral Agreement shall remain in full
force and effect.
THIS
SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS SUPPLEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE
OF
NEW YORK.
In
the
event any one or more of the provisions contained in this Supplement should
be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and in the
Collateral Agreement shall not in any way be affected or impaired thereby.
The
parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect
of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
All
communications and notices hereunder shall be in writing and given as provided
in Section 7.01 of the Collateral Agreement.
Each
New
Subsidiary agrees to reimburse the Collateral Agent for its reasonable
out-of-pocket expenses in connection with this Supplement, including the
reasonable fees, disbursements and other charges of counsel for the Collateral
Agent.
IN
WITNESS WHEREOF, each New Subsidiary and the Collateral Agent have duly executed
this Supplement to the Collateral Agreement as of the day and year first above
written.
THE
NEW GUARANTORS:
COVALENCE
SPECIALTY ADHESIVES LLC
By: Xxxxx
Plastics Holding Corporation,
its
sole
member and manager
By: ____________________________________
Name:
Title:
Legal
Name: Covalence Specialty Adhesives LLC
Jurisdiction
of Formation: Delaware
Location
of Chief Executive Office:
0
Xxxxxxxxxx Xxxxx
Xxxxxxxx
X, 0xx Xxxxx
Xxxxxxxxxx,
Xxx Xxxxxx 00000
COVALENCE
SPECIALTY COATINGS LLC
By: Xxxxx
Plastics Holding Corporation,
its
sole
member and manager
By: ____________________________________
Name:
Title:
Legal
Name: Covalence Specialty Coatings LLC
Jurisdiction
of Formation: Delaware
Location
of Chief Executive Office:
0
Xxxxxxxxxx Xxxxx
Xxxxxxxx
X, 0xx Xxxxx
Xxxxxxxxxx,
Xxx Xxxxxx 00000
XXXXX
FARGO BANK, N.A., as Collateral Agent
By: ________________________________
Name:
Title:
