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SENIOR SECURED FLOATING RATE NOTES DUE 2013

Promissory Note

SENIOR SECURED FLOATING RATE NOTES DUE 2013 | Document Parties: PREGIS CORPORATION | THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A | THE BANK OF NEW YORK MELLON You are currently viewing:
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PREGIS CORPORATION | THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A | THE BANK OF NEW YORK MELLON

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Title: SENIOR SECURED FLOATING RATE NOTES DUE 2013
Governing Law: New York     Date: 10/6/2009

SENIOR SECURED FLOATING RATE NOTES DUE 2013, Parties: pregis corporation , the bank of new york mellon trust company  n.a , the bank of new york mellon
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PREGIS CORPORATION,

as Issuer,

and

THE GUARANTORS PARTIES HERETO

as Guarantors

SENIOR SECURED FLOATING RATE NOTES DUE 2013

 

First Supplemental Indenture

Dated as of October 5, 2009

to

Indenture

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,

as Paying Agent,

THE BANK OF NEW YORK MELLON (LUXEMBOURG) S.A.,

as Registrar

and

GRANT THORNTON,

as Irish Paying Agent

 

     

 

 


 

      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 ”).

W I T N E S S E T H:

     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.

2


 

     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:

If to the Trustee and Collateral Agent:

3


 

 

 

 

 

 

The Bank of New York Mellon Trust Company, N.A.

 

 

2 North LaSalle Street, Suite 1020

 

 

Chicago, Illinois 60602

 

 

Attention: Global Corporate Trust

 

 

Facsimile: (312) 827-8542

 

 

 

If to the Paying Agent:

 

The Bank of New York Mellon

 

 

One Canada Square

 

 

London E14 5AL

 

 

Attention: Corporate Trust Administration

 

 

Telephone: +44 20 7964 7031/5683/4288

 

 

Facsimile: +44 20 7964 2536

 

 

 

If to the Registrar:

 

The Bank of New York Mellon (Luxembourg) S.A.

 

 

Aerogolf Center, 1A, Hoehenhof,

 

 

L-1736 Senningerberg,

 

 

Luxembourg

 

 

Attention: Corporate Trust Administration

 

 

Telephone: +(352) 34 20 90 56 30/56 38/56 39

 

 

Facsimile: +(352) 34 20 90 60 35

     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

4


 

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.

* * *

5


 

     IN WITNESS WHEREOF, parties have executed this Supplemental Indenture as of October 5, 2009.

 

 

 

 

 

 

PREGIS CORPORATION
 

 

 

By:  

/s/ Michael T. McDonnell

 

 

 

Name:  Michael T. McDonnell

 

 

 

 

Title:  Chief Executive Officer and President

 

 

 

 

 

 

 

 

 

PREGIS HOLDING II CORPORATION
 

 

 

By:  

/s/ Michael T. McDonnell

 

 

 

Name:  Michael T. McDonnell

 

 

 

 

Title:  Chief Executive Officer and President

 

 

 

 

 

 

 

 

 

PREGIS MANAGEMENT CORPORATION
 

 

 

By:  

/s/ Michael T. McDonnell

 

 

 

Name:  Michael T. McDonnell

 

 

 

 

Title:  Chairman, Chief Executive Officer and President

 

 

 

 

 

 

 

 

 

PREGIS INNOVATIVE PACKAGING INC.
 

 

 

By:  

/s/ Michael T. McDonnell

 

 

 

Name:  Michael T. McDonnell

 

 

 

 

Title:  Chairman and Chief Executive Officer

 

 

 

 

 

 

 

 

 

HEXACOMB CORPORATION
 

 

 

By:  

/s/ Michael T. McDonnell

 

 

 

Name:  Michael T. McDonnell

 

 

 

 

Title:  Chairman, Chief Executive Officer and President

 

 

 


 

 

 

 

 

 

 

THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.,
as Trustee and Collateral Agent
 

 

 

By:  

/s/ R. Tarnas

 

 

 

Name:  R. Tarnas

 

 

 

 

Title:  Vice President

 

 

 

 

 

 

 

 

 

THE BANK OF NEW YORK MELLON
as Paying Agent
 

 

 

By:  

/s/ Melissa Laidley

 

 

 

Name:  Melissa Laidley

 

 

 

 

Title:  Senior Associate

 

 

 

 

 

 

 

 

 

THE BANK OF NEW YORK MELLON
(LUXEMBOURG) S.A.,
as Registrar
 

 

 

By:  

/s/ Melissa Laidley

 

 

 

Name:  Melissa Laidley

 

 

 

 

Title:  Senior Associate

 

 

 

 

 

 

 

 

 

GRANT THORNTON,
as Irish Paying Agent
 

 

 

By:  

/s/ Grant Thornton

 

 

 

Name:  

 

 

 

 

Title:  

 

 

 

 


 

EXHIBIT A

[Face of Note]

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

A-1


 

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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