EXHIBIT 4.2
TEKNI-PLEX, INC.
Each of the Guarantors PARTY HERETO
and
HSBC BANK USA, NATIONAL ASSOCIATION, as
Trustee
__________________
SECOND SUPPLEMENTAL INDENTURE
Dated as of September 30, 2009
to
INDENTURE
Dated as of November 21, 2003
Between
TEKNI-PLEX, INC.
each of the Guarantors PARTY THERETO
and
HSBC BANK USA, NATIONAL ASSOCIATION, as
Trustee
__________________
8 ¾% Senior Secured Notes due
2013
SECOND SUPPLEMENTAL INDENTURE (this
“Supplemental Indenture”), dated as of September 30,
2009, between TEKNI-PLEX, INC., a Delaware corporation (the
“Company”), the GUARANTORS listed on the signature page
hereto (the “Guarantors”) and HSBC BANK USA, NATIONAL
ASSOCIATION, a national banking association organized under the
laws of the United States of America, as trustee (the
“Trustee”). Capitalized terms used in this Supplemental
Indenture and not otherwise defined herein shall have the
respective meanings ascribed to them in the Indenture.
WITNESSETH:
WHEREAS, the Company and the
Guarantors executed and delivered to the Trustee an Indenture dated
as of November 21, 2003 (as amended and supplemented by the First
Supplemental Indenture (as defined below), the
“Indenture”) by and among the Company, the Guarantors
and the Trustee, pursuant to which the Company’s 8 ¾%
Senior Secured Notes due 2013 (the “Notes”) were
issued;
WHEREAS, the Company and the
Guarantors executed and delivered to the Trustee a Supplemental
Indenture dated as of December 5, 2008 (the “First
Supplemental Indenture”) to the Indenture, pursuant to which
the Company and the Guarantors amended the provisions of Section
4.03;
WHEREAS, in connection with requests
to release Collateral to consummate asset dispositions not
prohibited under the Indenture and the Security Documents, Section
10.05(d) of the Indenture permits the Company to not comply with
all or any portion of TIA § 314(d) if it determines, in
good faith based on the advice of counsel, that under the terms of
TIA § 314(d) and/or any interpretation or guidance as to
the meaning thereof of the SEC or its staff, including “no
action” letters or exemptive orders, all or any portion of
TIA § 314(d) is inapplicable to one or a series of
released Collateral;
WHEREAS, in order to permit the
Company to engage in activities in the ordinary course of business
that require release of the Collateral, including asset
dispositions not prohibited under the Indenture and the Security
Documents, and consistent with the interpretation and guidance of
TIA § 314(d) set forth by the SEC and its staff in
“no action letters,” the Company has requested that the
Holders direct the Trustee to execute and deliver an amendment to
the Indenture to amend Article 10 to include a new Section
10.09;
WHEREAS, Section 9.02 of the
Indenture provides that, subject to certain inapplicable
exceptions, the Company, the Guarantors and the Trustee may amend
or supplement the Indenture, the Subsidiary Guarantees, the
Security Documents and the Notes with the consent of the Holders of
at least a majority in principal amount of the Notes then
outstanding voting as a single class (the “Requisite
Consents”);
WHEREAS, the Holders that have
approved this Supplemental Indenture (as evidenced by their
execution of a Consent Form) constitute Holders of at least a
majority in aggregate principal amount of the Notes now outstanding
and are willing to direct the Trustee to execute and deliver the
Supplemental Indenture;
WHEREAS, consistent with DTC
practice, DTC has authorized direct participants in DTC set forth
in the position listing of DTC as of the date hereof to approve
this Supplemental Indenture as if they were Holders of the Notes
held of record in the name of DTC or the name of its
nominee;
WHEREAS, the Trustee has been
directed by the Holders of the requisite principal amount of the
Notes to execute and deliver the Supplemental Indenture in its
capacity as Trustee;
WHEREAS, the execution and delivery
of this Supplemental Indenture have been duly authorized by the
Company and each Guarantor and all conditions and requirements
necessary to make this instrument a valid and binding agreement
have been duly performed and complied with;
WHEREAS, the Company has agreed to
indemnify the Trustee against any and all losses, liabilities or
expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Supplemental
Indenture, except to the extent any such loss, liability or expense
may be attributable to its negligence or bad faith; and
NOW, THEREFORE, in consideration of
the above premises, and for the purpose of memorializing the
amendments to the Indenture consented to by the Holders, each party
agrees, for the benefit of the others and for the equal and ratable
benefit of the Holders of the Notes, as follows:
ARTICLE I
AMENDMENT OF
INDENTURE
