Exhibit 4.2
13% SENIOR SUBORDINATED NOTES
2002 INDENTURE
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated
as of November 17, 2005, among Pliant Corporation, a corporation incorporated
under the laws of the State of Utah (the "Company"), as issuer, the Note
Guarantors listed on the signature pages hereto (the "Guarantors"), as
guarantors, and The Bank of New York, a banking corporation organized under the
laws of the State of New York (the "Trustee"), as trustee.
W I T N E S S E T H:
WHEREAS, the Company, the Guarantors and the Trustee have heretofore
entered into an Indenture, dated as of April 10, 2002, as amended by the First
Supplemental Indenture thereto dated November 4, 2005 (as amended, the "Existing
Indenture"), relating to the Company's outstanding 13% Senior Subordinated Notes
due 2010 (the "Notes");
WHEREAS, the Company has solicited consents from Holders of the Notes
to certain amendments (the "Amendments") to the Existing Indenture which are set
forth in this Supplemental Indenture;
WHEREAS, the Company has received the written consent to the
Amendments from Holders of a majority in aggregate principal amount of the
outstanding Notes; and
WHEREAS, pursuant to Section 9.02 of the Indenture, the Trustee is
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
parties hereto mutually covenant and agree for the equal and ratable benefit of
Holders of the Notes as follows:
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS.
The Existing Indenture together with this Supplemental Indenture are
hereinafter sometimes collectively referred to as the "Indenture." For the
avoidance of doubt, references to any "Section" of the "Indenture" refer to such
Section of the Existing Indenture as supplemented and amended by this
Supplemental Indenture. All capitalized terms which are used herein and not
otherwise defined herein are defined in the Existing Indenture and are used
herein with the same meanings as in the Existing Indenture. If a capitalized
term is defined in the Existing Indenture and this Supplemental Indenture, the
definition in this Supplemental Indenture shall apply to the Indenture and the
Notes.
ARTICLE II
AMENDMENTS
Section 2.01. AMENDMENT TO DEFINITION OF SENIOR INDEBTEDNESS.
The definition of the term "Senior Indebtedness" set forth in Section 1.01
of the Existing Indenture is hereby deleted in its entirety and replaced with
the following:
"Senior Indebtedness" of the Company or any Note
Guarantor, as the case may be, means the principal of,
premium (if any) and accrued and unpaid interest on
(including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization of the Company
or any Note Guarantor, as applicable, regardless of whether
or not a claim for post-filing interest is allowed in such
proceedings), and fees and all other amounts owing in
respect of, Bank Indebtedness and all other Indebtedness of
the Company or any Note Guarantor, as applicable, whether
outstanding on the 2000 Notes Closing Date or thereafter
Incurred, unless in the instrument creating or evidencing
the same or pursuant to which the same is outstanding it is
provided that such obligations are not superior in right of
payment to the Securities or such Note Guarantor's Note
Guarantee, provided, however, that Senior Indebtedness shall
not include: (a) any obligation of the Company to any
Subsidiary of the Company or of any Note Guarantor to the
Company or any other Subsidiary of the Company, (b) any
liability for Federal, state, local or other taxes owed or
owing by the Company or any Note Guarantor, (c) any accounts
payable or other liability to trade creditors arising in the
ordinary course of business (including Guarantees thereof or
instruments evidencing such liabilities), (d) except with
respect to any Indebtedness Incurred pursuant to the Credit
Agreement, any Indebtedness or obligation of the Company or
any Note Guarantor (and any accrued and unpaid interest in
respect thereof) that by its terms is subordinate or junior
in right of payment to any other Indebtedness or obligation
of the Company or such Note Guarantor, as applicable,
including any Senior Subordinated Indebtedness and any
Subordinated Obligations, (e) any obligations with respect
to any Capital Stock or (f) any Indebtedness Incurred in
violation of this Indenture, unless such Indebtedness was
Incurred based on an Officers' Certificate of the Company
(delivered in good faith after reasonable investigation) to
the effect that the Incurrence of such Indebtedness did not
violate the provisions of this Indenture.
Section 2.02. AMENDMENT TO ANTI-LAYERING COVENANT.
Clause (c) of Section 4.03 of the Existing Indenture is hereby deleted in
its entirety and replaced with the following:
(c) Notwithstanding the foregoing, the Company shall
not incur any Indebtedness pursuant to Section 4.03(b) above
if the proceeds thereof are used, directly or indirectly, to
repay, prepay, redeem, defease, retire, refund or refinance
any Subordinated
Obligations unless such Indebtedness shall be subordinated
to the Securities to at least the same extent as such
Subordinated Obligations. The Company shall not Incur any
Indebtedness pursuant to Section 4.03(a) or 4.03(b) if such
Indebtedness is subordinate or junior in right of payment to
any Senior Indebtedness unless such Indebtedness is Incurred
pursuant to the Credit Agreement or is Senior Subordinated
Indebtedness or is expressly subordinated in right of
payment to Senior Subordinated Indebtedness. In addition,
the Company shall not Incur any Secured Indebtedness which
is not Senior Indebtedness unless contemporaneously
therewith effective provision is made to secure the
Securities equally and ratably with (or on a senior basis
to, in the case of Indebtedness subordinated in right of
payment to the Securities) such Secured Indebtedness for so
long as such Secured Indebtedness is secured by a Lien,
except for Senior Subordinated Indebtedness and Subordinated
Obligations secured by Liens on the assets of any entity
existing at the time such entity is acquired by, and becomes
a Restricted Subsidiary of, the Company, whether by merger,
consolidation, purchase of assets or otherwise, provided
that such Liens (x) are not created, incurred or assumed in
connection with, or in contemplation of such entity being
acquired by the Company and (y) do not extend to any other
assets of the Company or any of its Subsidiaries. A Note
Guarantor may not Incur any Indebtedness if such
Indebtedness is by its terms expressly subordinate or junior
in right of payment to any Senior Indebtedness of such Note
Guarantor unless such Indebtedness is Incurred pursuant to
the Credit Agreement or is Senior Subordinated Indebtedness
of such Note Guarantor or is expressly subordinated in right
of payment to Senior Subordinated Indebtedness of such Note
Guarantor. In addition, a Note Guarantor shall not Incur any
Secured Indebtedness that is not Senior Indebtedness of such
Note Guarantor unless contemporaneously therewith effective
provision is made to secure the Note Guarantee of such Note
Guarantor equally and ratably with (or on a senior basis to,
in the case of Indebtedness subordinated in right of payment
to such Note Guarantee) such Secured Indebtedness for as
long as such Secured Indebtedness is secured by a Lien,
except for Senior Subordinated Indebtedness and Subordinated
Obligations of such Note Guarantor secured by Liens on the
assets of any entity existing at the time such entity is
acquired by such Note Guarantor, whether by merger,
consolidation, purchase of assets or otherwise, provided
that such Liens (x) are not created, incurred or assumed in
connection with or in contemplation of such assets being
acquired by such Note Guarantor and (y) do not extend to any
other assets of the Company or any of its Subsidiaries.
ARTICLE III
MISCELLANEOUS
Section 3.01. EFFEECTIVENESS AND OPERATION OF SUPPLEMENTAL INDENTURE.
(a) This Supplemental Indenture shall be effective upon execution
hereof by the Company, the Guarantors and the Trustee. From and after such date,
the Amendments set forth herein shall be deemed to have modified the applicable
sections, or portions thereof, or clauses of the Existing Indenture.
(b) The Existing Indenture shall be read together with this
Supplemental Indenture and shall have the same effect over the Notes in the same
manner as if the provisions of the Existing Indenture and this Supplemental
Indenture were contained in the same instrument.
(c) In all other respects, the Existing Indenture is confirmed by the
parties hereto as supplemented by the terms of this Supplemental Indenture.
(d) In the event that there is a conflict or inconsistency between the
Existing Indenture and this Supplemental Indenture, the provisions of this
Supplemental Indenture shall control.
Section 3.02. TRUST INDENTURE ACT CONTROLS.
If any provision of this Supplemental Indenture limits, qualifies or
conflicts with another provision which is required to be included in this
Supplemental Indenture by the TIA, the required provision shall control. 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.
Section 3.03. GOVERNING LAW.
THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW.
Section 3.04. 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 3.05. SUCCESSORS.
All agreements of the Company and the Guarantors in this Supplemental
Indenture shall bind their respective successors. All agreements of the Trustee
in this Supplemental Indenture shall bind its successors.
Section 3.06. SEVERABILITY.
In case any provision in this Supplemental Indenture shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 3.07. EFFECT OF HEADINGS.
The headings of the Articles and Sections of this Supplemental
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
Section 3.08. TRUSTEE.
The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Supplemental Indenture or for
or in respect of the recitals contained herein, all of which recitals are made
solely by the Company and the Guarantors.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
PLIANT CORPORATION
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------------
Xxxxxx Xxxxxxxx
Senior Vice President and Chief Financial
Officer
GUARANTORS:
PLIANT CORPORATION INTERNATIONAL
PLIANT FILM PRODUCTS OF MEXICO, INC.
PLIANT SOLUTIONS CORPORATION
UNIPLAST HOLDINGS, INC.
UNIPLAST U.S., INC.
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------------
Xxxxxx Xxxxxxxx
Executive Vice President and Chief Financial
Officer
PLIANT PACKAGING OF CANADA, LLC
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Xxxxxx X. Xxxxx
President
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxx Xxxxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Assistant Vice President
