Contract
SUPPLEMENT
dated as of February 5, 2008 (this “Supplement”), to the
Collateral Agreement dated as of September 20, 2006 (as amended, restated,
supplemented, waived or otherwise modified from time to time, the “Collateral
Agreement”), among XXXXX PLASTICS CORPORATION (formerly known as Xxxxx
Plastics Holding Corporation, the “Issuer”), XXXXX FARGO
BANK, N.A., as collateral agent (in such capacity, the “Collateral Agent”)
for the Secured Parties (as defined therein), CAPTIVE HOLDINGS, INC., CAPTIVE
PLASTICS, INC., CAPLAS NEPTUNE, LLC, CAPLAS LLC, and GRAFCO INDUSTRIES LIMITED
PARTNERSHIP (each, a “New Subsidiary” and
collectively, the “New
Subsidiaries”).
A. Reference
is made to (i) the Indenture dated as of September 20, 2006 (as amended,
supplemented or otherwise modified from time to time, the “Indenture”) by and
between the Issuer and Xxxxx Fargo Bank, N.A. as Trustee (the “Trustee”) providing
for the issuance of the Issuer’s 8 7/8 % Second Priority Senior Secured Fixed
Rate Notes due 2014 in the aggregate principal amount of $525,000,000 and Second
Priority Senior Secured Floating Rate Notes due 2014 in the aggregate principal
amount of $225,000,000 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 undersigned New Subsidiary is executing this
Supplement in accordance with the requirements of the Indenture that each become
a Subsidiary Party under the Collateral Agreement as consideration for credit
previously extended to the Issuer.
Accordingly,
the Collateral Agent and the New Subsidiaries agree as follows:
SECTION 1. In
accordance with Section 7.16 of the Collateral Agreement, each New Subsidiary by
its signature below shall become 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
SECTION 2. 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.
SECTION 3. 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.
SECTION 4. 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.
SECTION 5. 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.
SECTION 6. Except as
expressly supplemented hereby, the Collateral Agreement shall remain in full
force and effect.
SECTION 7. 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.
SECTION 7. 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.
SECTION 8. All
communications and notices hereunder shall be in writing and given as provided
in Section 7.01 of the Collateral Agreement.
SECTION 9. 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, the New Subsidiaries and the Collateral Agent have duly
executed this Supplement to the Collateral Agreement as of the day and year
first above written.
THE
NEW SUBSIDIARIES:
CAPTIVE
HOLDINGS, INC.
By: /s/ Xxxxxxx
Thompson___________
Name:
Xxxxxxx Xxxxxxxx
Title:
Authorized Signatory
Legal
Name: Captive Holdings, Inc.
Jurisdiction
of Formation: Delaware
Location
of Chief Executive Office:
000
Xxxxxx Xxxxx Xxxxx,
Xxxxxxxxxx,
XX 00000
CAPTIVE
PLASTICS, INC.
By: /s/ Xxxxxxx
Thompson___________
Name:
Xxxxxxx Xxxxxxxx
Title:
Authorized Signatory
Legal
Name: Captive Plastics, Inc.
Jurisdiction
of Formation: New Jersey
Location
of Chief Executive Office:
000
Xxxxxx Xxxxx Xxxxx,
Xxxxxxxxxx,
XX 00000
CAPLAS
NEPTUNE, LLC
By: /s/ Xxxxxxx
Thompson___________
Name:
Xxxxxxx Xxxxxxxx
Title:
Authorized Signatory
Legal
Name: Caplas Neptune, LLC
Jurisdiction
of Formation: Delaware
Location
of Chief Executive Office:
000
Xxxxxx Xxxxx Xxxxx,
Xxxxxxxxxx,
XX 00000
CAPLAS
LLC
By: /s/ Xxxxxxx
Thompson___________
Name:
Xxxxxxx Xxxxxxxx
Title:
Authorized Signatory
Legal
Name: Caplas LLC
Jurisdiction
of Formation: Delaware
Location
of Chief Executive Office:
000
Xxxxxx Xxxxx Xxxxx,
Xxxxxxxxxx,
XX 00000
GRAFCO
INDUSTRIES LIMITED PARTNERSHIP
By:
Caplas Neptune, LLC
its
General Partner
By:
/s/ Xxxxxxx
Thompson___________
Name:
Xxxxxxx Xxxxxxxx
Title:
Authorized Signatory
Legal
Name: Grafco Industries Limited Partnership
Jurisdiction
of Formation: Delaware
Location
of Chief Executive Office:
000
Xxxxxx Xxxxx Xxxxx,
Xxxxxxxxxx,
XX 00000
XXXXX
FARGO BANK, N.A., as Collateral Agent
By: /s/ Xxxxxx X.
X’Xxxxxxx
Name:
Xxxxxx X. X’Xxxxxxx
Title:
Vice President
