THE GUARANTORS PARTIES
HERETO
SENIOR SECURED FLOATING RATE
NOTES DUE 2013
First Supplemental
Indenture
Dated as of October 5,
2009
Dated as of October 12,
2005
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.,
as Trustee and Collateral
Agent,
THE BANK OF NEW YORK
MELLON,
THE BANK OF NEW YORK MELLON
(LUXEMBOURG) S.A.,
FIRST
SUPPLEMENTAL INDENTURE , dated as of October 5, 2009 (the
“ Supplemental Indenture ”), among Pregis
Corporation, a Delaware corporation, the Guarantors, The Bank of
New York Mellon Trust Company, N.A., as Trustee and Collateral
Agent, The Bank of New York Mellon (Luxembourg) S.A. (successor to
The Bank of New York) as Registrar, The Bank of New York Mellon as
Paying Agent, and Grant Thornton, as Irish Paying Agent, under an
Indenture dated as of October 12, 2005 (the “
Indenture ”).
WHEREAS,
Section 9.01 of the Indenture provides, among other things,
that the Company, the Guarantors and the Trustee may amend or
supplement the Indenture without the consent of any Holder of a
Note to provide for the issuance of Additional Notes in accordance
with the Indenture; and
WHEREAS, the
Company desires to supplement the Indenture to provide for the
issuance of €
125,000,000 in aggregate principal
amount of Additional Notes that will not be registered under the
Securities Act at the time of issuance, but which may be registered
under the Securities Act at a later date; and
WHEREAS, all
things necessary to make this Supplemental Indenture a valid
supplement to the Indenture in accordance with its terms have been
done;
NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the
Company, the Guarantors hereto and the Trustee mutually covenant
and agree for the equal and ratable benefit of the Holders of the
Notes as follows:
Section 1.
Terms Defined . Capitalized terms used in this Supplemental
Indenture and not otherwise defined herein shall have the
respective meanings set forth in the Indenture.
Section 2.
Additional Notes . On or after the date hereof, the Company
shall issue €
125,000,000 in aggregate principal
amount of Additional Notes which shall be considered Notes for all
purposes under the Indenture. The Additional Notes and the
Trustee’s certificate of authentication shall be
substantially in the form of Exhibit A hereto.
Section 3.
Ratification . Except as expressly amended by this
Supplemental Indenture, each provision of the Indenture shall
remain in full force and effect, and the Indenture is in all
respects agreed to, ratified and confirmed by each of the Company,
the Guarantors, the Trustee, Collateral Agent, Registrar and Paying
Agent and the Irish Paying Agent.
Section 4.
Governing Law . THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
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Section 5.
Counterpart Originals . 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 6.
Effect of Headings . The Section headings herein are for
convenience only and shall not affect the construction
hereof.
Section 7.
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 8.
Submission To Jurisdiction; Waiver of Trial By Jury . THE
PARTIES TO THE INDENTURE, AS THE SAME MAY BE MODIFIED OR
SUPPLEMENTED FROM TIME TO TIME, AGREE THAT ALL ACTIONS AND
PROCEEDINGS ARISING OUT OF THE INDENTURE, AS THE SAME MAY BE
MODIFIED OR SUPPLEMENTED FROM TIME TO TIME, OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BROUGHT IN A NEW YORK
STATE COURT OR THE UNITED STATES DISTRICT COURT, IN EACH CASE, IN
THE COUNTY AND STATE OF NEW YORK AND, IN CONNECTION WITH ANY SUCH
ACTION OR PROCEEDING SUBMIT TO THE EXCLUSIVE JURISDICTION OF, AND
VENUE IN, SUCH COURT. TO THE EXTENT PERMITTED BY LAW, EACH OF THE
PARTIES HERETO ALSO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF
THE INDENTURE, AS THE SAME MAY BE MODIFIED OR SUPPLEMENTED FROM
TIME TO TIME, THE NOTES OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 9.
Trustee’s Acceptance . The Trustee accepts the
modifications of the Indenture effected by this Supplemental
Indenture, but only upon the terms and conditions set forth in the
Indenture. Without limiting the generality of the foregoing, the
Trustee does not assume any responsibility for the correctness of
the recitals herein contained, which shall be taken as the
statements of the Company and the Guarantors. The Trustee does not
make any representation and shall not have any responsibility as to
the validity and sufficiency of this Supplemental
Indenture.
Section 10.
TIA Incorporation . If and to the extent that any provision
of this Supplemental Indenture limits, qualifies or conflicts with
another provision included in this Supplemental Indenture or in the
Indenture, in either case that is required to be included or deemed
to be included in this Supplemental Indenture or in the Indenture
by any of the provisions of Sections 310 to 317, inclusive, of
the TIA, such required or deemed provision shall
control.
Section 11.
Notices . Section 13.02 Notices of the Indenture shall
be modified with respect to the Trustee, Paying Agent and Registrar
as follows:
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If
to the Trustee and Collateral Agent:
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The Bank of New
York Mellon Trust Company, N.A.
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2 North LaSalle
Street, Suite 1020
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Chicago,
Illinois 60602
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Attention:
Global Corporate Trust
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Facsimile:
(312) 827-8542
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The Bank of New
York Mellon
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One Canada
Square
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London E14
5AL
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Attention:
Corporate Trust Administration
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Telephone: +44
20 7964 7031/5683/4288
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Facsimile: +44
20 7964 2536
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The Bank of New
York Mellon (Luxembourg) S.A.
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Aerogolf
Center, 1A, Hoehenhof,
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L-1736
Senningerberg,
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Luxembourg
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Attention:
Corporate Trust Administration
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Telephone:
+(352) 34 20 90 56 30/56 38/56 39
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Facsimile:
+(352) 34 20 90 60 35
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Section 12.
Additional Definitions . The following additional
definitions apply to the Indenture and this Supplemental
Indenture:
“Authorised Person” means any person
who is designated in writing by the Company from time to time to
give instructions to the Registrar and Paying Agent under the terms
of the Indenture, as the same may be amended or supplemented from
time to time.
“Instructions” means any written
notices, directions or instructions received by the Registrar and
Paying Agent from an Authorised Person or from a person reasonably
believed by the Registrar and Paying Agent to be an Authorised
Person.
“Losses” means any and all claims,
losses, liabilities, damages, costs, expenses and judgements
(including legal fees and expenses) sustained by either
party.
Section 13.
Communications . In no event shall the Trustee, Registrar
and Paying Agent be liable for any Losses arising to the Trustee,
Registrar and Paying Agent receiving or transmitting any data from
the Company, any Authorised Person or any party to the transaction
via any non-secure method of transmission or communication, such
as, but without limitation, by facsimile or email. The Company
hereto accepts that some methods of communication are not secure
and the Trustee, Registrar and Paying Agent shall incur no
liability for receiving instructions via any such non-secure
method. The Trustee, Registrar and Paying Agent are authorised to
comply with and rely upon any such notice, instructions or other
communications believed by it to have been sent or given by an
Authorised Person or an appropriate party to the transaction (or
authorised representative thereof). The Company or authorised
officer of the Company shall use all reasonable endeavours to
ensure that instructions transmitted to the
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Trustee,
Registrar and Paying Agent pursuant to the Indenture, as the same
may be modified or supplemented from time to time, are complete and
correct. Any instructions shall be conclusively deemed to be valid
instructions from the Company or authorised officer of the Company
to the Trustee, Registrar and Paying Agent for the purposes of the
Indenture, as the same may be modified or supplemented from time to
time.
Section 14.
Consequential Loss or Damage Carve Out. Consequential Loss
or Damage: Notwithstanding any provision of the Indenture, as the
same may be modified or supplemented from time to time, to the
contrary, the Trustee, Registrar and Paying Agent shall not in any
event be liable for indirect, punitive or consequential loss or
damage of any kind whatsoever (including but not limited to lost
profits), whether or not foreseeable, even if the Trustee,
Registrar and Paying Agent have been advised of the likelihood of
such loss or damage and regardless of whether the claim for loss or
damage is made in negligence or otherwise.
Section 15.
Force Majeure . The Trustee, Registrar and Paying Agent
shall not be responsible or liable for any failure or delay in the
performance of its obligations under this Indenture, as the same
may be modified or supplemented from time to time, arising out of
or caused, directly or indirectly, by circumstances beyond its
control, including, without limitation, acts of God; earthquakes;
fire; flood; terrorism; wars and other military disturbances;
sabotage; epidemics; riots; interruptions; loss or malfunctions of
utilities, computer (hardware or software) or communication
services; accidents; labor disputes; acts of civil or military
authority and governmental action.
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IN WITNESS
WHEREOF, parties have executed this Supplemental Indenture as of
October 5, 2009.
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PREGIS
CORPORATION
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By:
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/s/ Michael T.
McDonnell
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Name: Michael T. McDonnell
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Title: Chief Executive Officer and
President
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PREGIS HOLDING
II CORPORATION
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By:
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/s/ Michael T.
McDonnell
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Name: Michael T. McDonnell
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Title: Chief Executive Officer and
President
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PREGIS
MANAGEMENT CORPORATION
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By:
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/s/ Michael T.
McDonnell
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Name: Michael T. McDonnell
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Title: Chairman, Chief Executive
Officer and President
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PREGIS
INNOVATIVE PACKAGING INC.
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By:
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/s/ Michael T.
McDonnell
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Name: Michael T. McDonnell
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Title: Chairman and Chief Executive
Officer
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HEXACOMB
CORPORATION
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By:
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/s/ Michael T.
McDonnell
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Name: Michael T. McDonnell
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Title: Chairman, Chief Executive
Officer and President
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THE BANK OF NEW
YORK MELLON TRUST
COMPANY, N.A.,
as Trustee and Collateral Agent
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By:
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/s/ R.
Tarnas
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Name: R. Tarnas
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Title: Vice President
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THE BANK OF NEW
YORK MELLON
as Paying Agent
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By:
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/s/ Melissa
Laidley
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Name: Melissa Laidley
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Title: Senior Associate
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THE BANK OF NEW
YORK MELLON
(LUXEMBOURG) S.A.,
as Registrar
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By:
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/s/ Melissa
Laidley
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Name: Melissa Laidley
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Title: Senior Associate
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GRANT
THORNTON,
as Irish Paying Agent
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By:
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/s/ Grant
Thornton
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Name:
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Title:
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THIS GLOBAL
NOTE IS HELD BY THE COMMON DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF
THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE COMMON DEPOSITARY
MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF
THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE
AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
COMMON DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
THIS NOTE (OR
ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER: (1) REPRESENTS THAT (A) IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) (A “QIB”), (B) IT HAS ACQUIRED
THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION
S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL
“ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A)(1),
(2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT
(AN “IAI”), (2) AGREES THAT IT WILL NOT RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO PREGIS CORPORATION
OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF THE SECURITIES ACT, (D) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS
NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF
SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
NOTES LESS THAN $250,000 (EURO EQUIVALENT), AN OPINION OF COUNSEL
ACCEPTABLE TO PREGIS CORPORATION THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO
PREGIS CORPORATION) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST
HEREIN
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IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED
HEREIN, THE TERMS “OFFSHORE TRANSACTION” AND
“UNITED STATES” HAVE THE MEANINGS GIVEN TO THEM BY RULE
902 OF REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE T
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