SECOND SUPPLEMENTAL INDENTURE
Exhibit
10.1(g)
This
SECOND SUPPLEMENTAL INDENTURE (this “Second
Supplemental Indenture”)
is
dated as of April 3, 2007, among COVALENCE SPECIALTY MATERIALS CORP. (or its
successor) (the “Company”),
XXXXX
PLASTICS HOLDING CORPORATION (“Xxxxx”),
the
guarantors identified on the signature pages hereto (the “Guarantors”),
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as
trustee under the indenture referred to below (the “Trustee”).
2. Assumption
of Obligations.
The
Successor Company hereby expressly assumes, from and after the effective date
of
the Merger under the Merger Agreement (the “Effective
Time”),
all
of the obligations of the Company under the Indenture and the
Securities.
W
I T N E
S S E T H :
WHEREAS
the Company and the guarantors identified therein have heretofore executed
and
delivered to the Trustee an indenture (as amended, supplemented or otherwise
modified, the “Indenture”)
dated
as of February 16, 2006, providing for the issuance of the Company’s 10¼% Senior
Subordinated Notes due 2016 (the “Securities”)
in the
aggregate principal amount of $265,000,000, which was supplemented by the First
Supplemental Indenture dated as of the date hereof by and among the Company,
the
Trustee and the guarantors named therein (the “First
Supplemental Indenture”);
WHEREAS,
Covalence Specialty Materials Holding Corp. (“Covalence
Holdings”),
the
parent entity of the Company, and Xxxxx Plastics Group, Inc. (“Xxxxx
Holdings”),
the
parent entity of Xxxxx, have entered into a business combination under an
Agreement and Plan of Merger and Corporate Reorganization (the “Merger
Agreement”)
dated
March 9, 2007 pursuant to which (i) immediately prior to the effectiveness
of
this Second Supplemental Indenture, Xxxxx Holdings merged with and into
Covalence Holdings, which shall be renamed Xxxxx Plastics Group, Inc. (as the
surviving corporation, “Holdings”),
(ii)
immediately prior to the effectiveness of this Second Supplemental Indenture,
Holdings contributed all of the capital stock of Xxxxx to the Company (the
“Contribution”),
and
(iii) substantially simultaneously with the effectiveness of this Second
Supplemental Indenture, the Company is merging with and into Xxxxx (the
“Merger”),
the
separate existence of the Company shall cease and Xxxxx shall survive and
continue as the continuing company (the “Successor
Company”);
WHEREAS,
Section 5.01(a) of the Indenture provides, in part, that the Company may merge
into another Person provided that (i) the Successor Company is a corporation,
partnership or limited liability company organized or existing under the laws
of
the United States, any state thereof, the District of Columbia, or any territory
thereof, (ii) the Successor Company expressly assumes all the obligations of
the
Company under the Indenture and the Securities pursuant to supplemental
indentures or other documents or instruments in form reasonably satisfactory
to
the Trustee, (iii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor Company
or any of its Restricted Subsidiaries as a result of such transaction as having
been Incurred by the Successor Company or such Restricted Subsidiary at the
time
of such transaction) no Default or Event of Default shall have occurred and
be
continuing, (iv) immediately after giving pro forma effect to such transaction,
as if such transaction had occurred at the beginning of the applicable
four-quarter period, either (A) the Successor Company would be permitted to
Incur at least $1.00
WHEREAS,
the Company has delivered to the Trustee, or caused to be delivered to the
Trustee on its behalf, Opinions of Counsel and an Officers’ Certificate stating
that the Merger and this Second Supplemental Indenture comply with Sections
5.01(a) and 9.01(a) of the Indenture, that all conditions precedent provided
for
in the Indenture relating to the Merger and the execution and delivery of this
Second Supplemental Indenture have been complied with, and that execution and
delivery of this Second Supplemental Indenture is authorized or permitted under
the Indenture;
WHEREAS,
all things necessary to authorize the assumption by the Successor Company of
the
Company’s obligations under the Indenture and to make this Second Supplemental
Indenture when executed by the parties hereto a valid and binding amendment
of
and supplement to the Indenture have been done and performed.
1. Definitions.
Capitalized terms used herein and not defined herein have the meanings ascribed
to such terms in the Indenture.
3. Confirmation
of Guarantee.
Each of
the Guarantors hereby confirms that its Guarantee shall apply to the Successor
Company’s obligations under the Indenture and the Securities.
5. Effectiveness
and Operativeness.
This
Second Supplemental Indenture shall be deemed to have become effective, and
the
provisions provided for in this Second Supplemental Indenture shall be deemed
to
have become operative, immediately upon consummation of the Merger.
7. Ratification
of Indenture; Second Supplemental Indenture Part of Indenture.
Except
as expressly amended hereby and by the First Supplemental Indenture, 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
Second 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.
8. Governing
Law.
THIS
SECOND SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
9. Trustee
Makes No Representation.
The
Trustee makes no representation as to the validity or sufficiency of this Second
Supplemental Indenture.
11. Effect
of Headings.
The
Section headings herein are for convenience only and shall not effect the
construction thereof.
IN
WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed as of the date first above written.
XXXXX
PLASTICS HOLDING CORPORATION
By:
Name:
Title:
COVALENCE
SPECIALTY MATERIALS CORP.
By:
Name:
Title:
XXXXX
FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE
By:
Name:
THE
GUARANTORS:
Xxxxx
Plastics Corporation
AeroCon,
Inc.
Xxxxx
Iowa Corporation
Xxxxx
Plastics Design Corporation
Xxxxx
Xxxxxxxx Corporation
Xxxxx
Plastics Technical Services, Inc.
Cardinal
Packaging, Inc.
CPI
Holding Corporation
Knight
Plastics Inc.
Xxxxxx
Plastics, Inc.
Packerware
Corporation
Pescor,
Inc.
Poly-Seal
Corporation
Venture
Packaging, Inc.
Venture
Packaging Midwest, Inc.
Xxxxx
Plastics Acquisition III
Xxxxx
Plastics Acquisition V
Xxxxx
Plastics Acquisition VII
Xxxxx
Plastics Acquisition VIII
Xxxxx
Plastics Acquisition IX
Xxxxx
Plastics Acquisition X
Xxxxx
Plastics Acquisition XI
Xxxxx
Plastics Acquisition XII
Xxxxx
Plastics Acquisition XIII
Xxxx
Group, Inc.
Saffron
Acquisition Corp.
Sun
Coast
Industries, Inc.
By:
Name:
Title:
Xxxxx
Plastics Acquisition Corporation XV, LLC
By: Xxxxx
Plastics Corporation,
its
sole
member
By: __________________________________
Name:
Title:
Setco,
LLC
By: Xxxx
Group, Inc.,
its
sole
member
By: __________________________________
Name:
Title:
Tubed
Products, LLC
By: Xxxx
Group, Inc.,
its
sole
member
By: __________________________________
Name:
Title:
Covalence
Specialty Adhesives LLC
By:
Xxxxx
Plastics Holding Corporation,
its
sole
member and Manager
By: __________________________________
Name:
Title:
Covalence
Specialty Coatings LLC
By:
Xxxxx
Plastics Holding Corporation,
its
sole
member and Manager
By: __________________________________
Name:
Title: