SUPPLEMENTAL INDENTURE
Exhibit 10.4.11
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of July 27, 2011, among
Xxxxxx Packaging Company, L.P., a Delaware limited partnership (the “Company”), GPC Capital Corp.
I, a Delaware corporation (the “Corporate Co-Issuer” and, together with the Company, the
“Issuers”), Xxxxxx Packaging Holdings Company, a Pennsylvania limited partnership (“Holdings”), and
the subsidiaries of the Company listed on Schedule A hereto (the “Subsidiary Guarantors”, and
together with Holdings, the “Guarantors”) and The Bank of New York Mellon, a New York banking
corporation, as successor to The Bank of New York, as trustee under the indenture referred to below
(the “Trustee”).
RECITALS
WHEREAS the Issuers, the Guarantors, and the Trustee have heretofore executed an Indenture (as
amended, supplemented or otherwise modified, the “Indenture”) dated as of October 7, 2004,
providing for the issuance of the Issuers’ 9 7/8% Senior Subordinated Notes due 2014 (the “Notes”),
initially in the aggregate principal amount of $375,000,000;
WHEREAS, the Issuers have distributed an Offer to Purchase and Consent Solicitation Statement,
dated July 6, 2011, as supplemented by Supplement No. 1 to the Offer to Purchase and Consent
Solicitation Statement (the “Statement”), and accompanying Consent Letter, dated July 6, 2011 (the
“Consent Letter”) to the Holders of the Notes in connection with a proposed amendment to the
Indenture, as further described in the Statement (the “Proposed Amendments”), that provides for the
addition of the definition of “Rank” and the revision of the definition of “Permitted Holders”
under Section 1.01 of the Indenture;
WHEREAS, the Holders of a majority of the aggregate outstanding principal amount of the Notes
outstanding have consented to the Proposed Amendments;
WHEREAS pursuant to Section 9.02 of the Indenture, the Trustee, the Issuers and the Guarantors
are authorized to execute and deliver this Supplemental Indenture;
WHEREAS, the Issuers and the Guarantors desire to amend the Indenture, as set forth in Section
1 hereof; and
WHEREAS, this Supplemental Indenture has been duly authorized by all necessary corporate and
other action on the part of the Issuers and the Guarantors.
Capitalized terms used herein without definition shall have the meanings assigned to them in
the Indenture.
NOW THEREFORE, in consideration of the foregoing and mutual covenants herein contained and
intending to be legally bound, the Issuers, the Guarantors and the Trustee mutually covenant and
agree as follows:
1. | Amendments of the Indenture. |
The following amendments to Section 1.01 of the Indenture shall automatically become operative
upon (i) the Settlement Date (as described in the Statement) for the Notes and related consents and
(ii) the acceptance for purchase by the Issuers of all Notes validly tendered (and not validly
withdrawn) and acceptance for payment by the Issuers of the related consents that are validly
delivered (and not validly revoked) as described in the Statement (the “Amendment Operative
Time”).
(a) | The following new definition will be inserted alphabetically into Section 1.01 of the Indenture: |
“Rank” means (i) Mr. Graeme Xxxxxxx Xxxx (or his estate, heirs, executor, administrator or other personal representative, or any of his immediate family members or any trust, fund or other entity which is controlled by his estate, heirs or any of his immediate family members), and any of his or their Affiliates (each a “Rank Party”) and (ii) any Person that forms a group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision) with any Rank Party; provided that in the case of (ii) (x) any Rank Party owns a majority of the voting power of the Voting Stock of the Issuers or any direct or indirect parent of the Issuers, as applicable, (y) no other Person has beneficial ownership of any of the Voting Stock included in determining whether the threshold set forth in clause (x) has been satisfied and (z) any Rank Party controls a majority of the Board of Directors of each of the Issuers or any direct or indirect parent of the Issuers, as applicable. |
(b) | The definition of “Permitted Holders” set forth in Section 1.01 of the Indenture is hereby deleted and replaced with the following: |
“Permitted Holders” means, at any time, each of (i) the Sponsors and their Affiliates (not including, however, any portfolio companies of any of the Sponsors), (ii) the Management Group, with respect to not more than 10% of the total voting power of the Equity Interests of the Parent Guarantor, (iii) Xxxxxx Alternative Investment Partners and (iv) Rank. Any person or group whose acquisition of beneficial ownership constitutes a Change of Control in respect of which a Change of Control Offer is made in accordance with the requirements of this Indenture will thereafter, together with its Affiliates, constitute an additional Permitted Holder. |
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2. Effect of Supplemental Indenture. From and after the Amendment Operative Time (as
defined below), Section 1.01 of the Indenture shall be amended as set forth in Section 1 hereof.
Each reference in the Indenture to “this Indenture,” “hereunder,” “hereof,” or “herein” shall mean
and be a reference to the Indenture as amended and supplemented by this Supplemental Indenture
unless the context otherwise requires. The Indenture as amended and supplemented by this
Supplemental Indenture shall be read, taken and construed as one and the same instrument, and every
Holder heretofore or hereafter authenticated and delivered under the Indenture as supplemented by
this Supplemental Indenture shall be bound thereby
3. 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 Notes heretofore
or hereafter authenticated and delivered shall be bound hereby.
4. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
5. Trustee Makes No Representation. The Trustee makes no representation as to 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 Issuers and the Guarantors.
6. 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.
7. 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.
XXXXXX PACKAGING COMPANY, L.P. |
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By: | GPC Opco GP, LLC, its general partner | |||
By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer | |||
GPC CAPITAL CORP. I |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer | |||
XXXXXX PACKAGING HOLDINGS COMPANY |
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By: | BCP/Xxxxxx Holdings LLC, its general partner | |||
By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Assistant Treasurer | |||
GPAC SUB LLC |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer and Secretary |
GPC SUB GP LLC |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer and Secretary | |||
XXXXXX PACKAGING ACQUISITION CORP |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer | |||
XXXXXX PACKAGING COMERC USA LLC |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer | |||
XXXXXX PACKAGING CONTROLLERS USA LLC |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer |
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XXXXXX PACKAGING FRANCE PARTNERS |
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By: | Xxxxxx Packaging Company, L.P., its partner | |||
By: | GPC Opco GP LLC,its general partner | |||
By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer | |||
XXXXXX PACKAGING GP ACQUISITION LLC |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer and Vice Chairman | |||
XXXXXX PACKAGING LP ACQUISITION LLC |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer and Vice Chairman | |||
XXXXXX PACKAGING INTERNATIONAL PLASTIC PRODUCTS
INC. |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer |
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XXXXXX PACKAGING LATIN AMERICA, LLC |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer | |||
XXXXXX PACKAGING LEASING USA LLC |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer | |||
XXXXXX PACKAGING MINSTER LLC |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer and Secretary | |||
XXXXXX PACKAGING PET TECHNOLOGIES INC. |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer | |||
XXXXXX PACKAGING PLASTIC PRODUCTS INC. |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer |
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XXXXXX PACKAGING POLAND, L.P. |
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By: | GPACSUB LLC, its general partner | |||
By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer and Secretary | |||
XXXXXX PACKAGING REGIOPLAST STS INC. |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer and Secretary | |||
XXXXXX PACKAGING TECHNOLOGICAL SPECIALTIES LLC |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer | |||
XXXXXX PACKAGING WEST JORDAN, LLC |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer and Secretary |
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XXXXXX RECYCLING COMPANY, L.P. |
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By: | GPC Sub GP LLC, its general partner | |||
By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer and Secretary | |||
XXXXXX PACKAGING LC, L.P. |
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By: | Liquid Container Inc., its General Partner | |||
By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer and Vice Chairman | |||
XXXXXX PACKAGING PX HOLDING CORPORATION |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer and Vice Chairman | |||
XXXXXX PACKAGING PX, LLC |
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By: | Xxxxxx Packaging PX Holding Corporation,its Sole Member | |||
By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer and Vice Chairman |
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XXXXXX PACKAGING PX COMPANY |
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By: | Xxxxxx Packaging PX Holding Corporation, its partner | |||
By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer | |||
By: | Xxxxxx Packaging PX, LLC, its partner | |||
By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chief Financial Officer |
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THE BANK OF NEW YORK MELLON, as Trustee |
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By: | /s/ Xxxxxx Xxxxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxxxx | |||
Title: | Vice President |
Schedule A
Legal Name
GPAC SUB LLC
GPC Sub GP LLC
Xxxxxx Packaging Acquisition Corp.
Xxxxxx Packaging Comerc USA LLC
Xxxxxx Packaging Controllers USA LLC
Xxxxxx Packaging France Partners
Xxxxxx Packaging GP Acquisition LLC
Xxxxxx Packaging LP Acquisition LLC
Xxxxxx Packaging International Plastic Products Inc.
Xxxxxx Packaging Latin America, LLC
Xxxxxx Packaging Leasing USA LLC
Xxxxxx Packaging Minster LLC
Xxxxxx Packaging PET Technologies Inc.
Xxxxxx Packaging Plastic Products Inc.
Xxxxxx Packaging Poland, X.X.
Xxxxxx Packaging Regioplast STS Inc.
Xxxxxx Packaging Technological Specialties LLC
Xxxxxx Packaging West Jordan L.L.C.
Xxxxxx Recycling Company, X.X.
Xxxxxx Packaging LC, X.X.
Xxxxxx Packaging PX Holding Corporation
Xxxxxx Packaging PX, LLC
Xxxxxx Packaging PX Company
GPC Sub GP LLC
Xxxxxx Packaging Acquisition Corp.
Xxxxxx Packaging Comerc USA LLC
Xxxxxx Packaging Controllers USA LLC
Xxxxxx Packaging France Partners
Xxxxxx Packaging GP Acquisition LLC
Xxxxxx Packaging LP Acquisition LLC
Xxxxxx Packaging International Plastic Products Inc.
Xxxxxx Packaging Latin America, LLC
Xxxxxx Packaging Leasing USA LLC
Xxxxxx Packaging Minster LLC
Xxxxxx Packaging PET Technologies Inc.
Xxxxxx Packaging Plastic Products Inc.
Xxxxxx Packaging Poland, X.X.
Xxxxxx Packaging Regioplast STS Inc.
Xxxxxx Packaging Technological Specialties LLC
Xxxxxx Packaging West Jordan L.L.C.
Xxxxxx Recycling Company, X.X.
Xxxxxx Packaging LC, X.X.
Xxxxxx Packaging PX Holding Corporation
Xxxxxx Packaging PX, LLC
Xxxxxx Packaging PX Company