EXECUTION COPY
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THIRD SUPPLEMENTAL INDENTURE
dated as of September 9, 2009
among
APPLETON PAPERS INC.,
as Issuer,
the parties named as guarantors herein,
as Guarantors,
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee,
to the
INDENTURE
dated as of June 11, 2004,
governing
9 3/4% Senior Subordinated Notes due 2014
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TABLE OF CONTENTS
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ARTICLE I. AMENDMENTS TO THE INDENTURE...................................2
Section 1.01 Amendment of Certain Provisions...............................2
ARTICLE II. EFFECTIVENESS; OPERATIVENESS..................................3
Section 2.01 Effectiveness.................................................3
Section 2.02 Operativeness.................................................3
ARTICLE III. MISCELLANEOUS.................................................4
Section 3.01 Reference to and Effect on the Indenture......................4
Section 3.02 Integral Part.................................................4
Section 3.03 Adoption, Ratification and Confirmation.......................4
Section 3.04 General Definitions...........................................4
Section 3.05 Counterparts..................................................4
Section 3.06 Headings......................................................4
Section 3.07 Severability..................................................4
Section 3.08 Benefits of Supplemental Indenture............................4
Section 3.09 Governing Law.................................................5
Section 3.10 Notices.......................................................5
Section 3.11 No Recourse Against Others....................................6
THIRD SUPPLEMENTAL INDENTURE, dated as of September 9, 2009 (the
"Third Supplemental Indenture"), among Appleton Papers Inc., a Delaware
corporation (the "Company"), the parties named on the signature pages hereto as
guarantors (the "Guarantors") and U.S. Bank National Association, as trustee
(the "Trustee").
RECITALS
WHEREAS, the Company, the Guarantors and the Trustee have entered into
an Indenture, dated as of June 11, 2004 (as amended, supplemented or otherwise
modified from time to time, the "Indenture"), providing for the issuance of the
Company's 9 3/4% Senior Subordinated Notes due 2014 (the "Notes");
WHEREAS, Section 9.02 of the Indenture provides that the Company and
the Trustee may amend or supplement the Indenture, the Notes and the Note
Guarantees with the consent of the Holders of at least a majority in aggregate
principal amount of the Notes then outstanding (determined in accordance with
Section 2.08 of the Indenture), other than with respect to certain enumerated
items that are not included in the Proposed Amendments (as defined below);
WHEREAS, the Company and the Guarantors have duly authorized the
execution and delivery of this Third Supplemental Indenture;
WHEREAS, the Company has offered to exchange (the "Exchange Offer")
any and all of the outstanding Notes for new 11 1/4% second lien notes due 2015
(the "New Notes") upon the terms and subject to the conditions set forth in the
Company's offering circular, dated as of August 18, 2009 (the "Offering
Circular"), and the accompanying letter of transmittal and consent (the "Letter
of Transmittal and Consent"), as each may be amended, supplemented or modified
from time to time;
WHEREAS, in connection with the Exchange Offer, the Company has also
solicited consents from the Holders of the Notes to certain proposed amendments
(the "Proposed Amendments") to the Indenture as described in the Offering
Circular and set forth in Section 1.01 of this Third Supplemental Indenture,
with the operation of such Proposed Amendments being subject to the satisfaction
or waiver by the Company of the conditions to the Exchange Offer and the
acceptance by the Company for exchange of the Notes validly tendered and not
validly withdrawn pursuant to the Exchange Offer;
WHEREAS, the Company has received and caused to be delivered to the
Trustee the consents from at least a majority in aggregate principal amount of
Notes outstanding to effect the Proposed Amendments under the Indenture;
WHEREAS, all other acts and proceedings required by law, by the
Indenture and by the amended and restated certificate of incorporation and
by-laws of the Company and by the applicable governing documents of each
Guarantor to execute and deliver this Third Supplemental Indenture, in
accordance with its terms, have been duly done and performed;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and for the equal and
proportionate benefit of the Holders of the Notes, the Company, the Guarantors
and the Trustee hereby agree as follows:
ARTICLE I.
AMENDMENTS TO THE INDENTURE
Section 1.01 Amendment of Certain Provisions
(a) The Indenture is hereby amended to delete each of the following
sections, or clauses of sections, in its entirety and, in the case of each such
section or clause, insert in lieu thereof the phrase "[Intentionally Omitted]":
(1) Section 3.09. Offer to Purchase by Application of Excess
Proceeds;
(2) Section 4.02. Maintenance of Office or Agency;
(3) Section 4.03. Reports;
(4) Section 4.04. Compliance Certificate;
(5) Section 4.05. Taxes;
(6) Section 4.06. Stay, Extension and Usury Laws;
(7) Section 4.07. Restricted Payments;
(8) Section 4.08. Dividend and Other Payment Restrictions
Affecting Subsidiaries;
(9) Section 4.09. Incurrence of Indebtedness and Issuance of
Preferred Stock;
(10) Section 4.10. Asset Sales;
(11) Section 4.11. Transactions with Affiliates;
(12) Section 4.12. Liens;
(13) Section 4.13. Business Activities;
(14) Section 4.14. Corporate Existence;
(15) Section 4.15. Offer to Repurchase upon Change of Control;
(16) Section 4.16. No Layering of Debt;
(17) Section 4.17. No Amendment to Fox River Indemnity
Arrangements, Security Holders Agreements or ESOP
Documentation;
(18) Section 4.18. Limitation on Sale and Leaseback Transactions;
(19) Section 4.19. Payments for Consent;
(20) Section 4.20. Additional Note Guarantees;
(21) Section 4.21. Designation of Restricted and Unrestricted
Subsidiaries;
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(22) Section 4.22. S Corporation Status;
(23) Clauses (3), (4) and (5) and the second to last paragraph of
Section 5.01 (Merger, Consolidation, or Sale of Assets); and
(24) Clauses (3), (4), (5), (6), (7), (8), (9) and (10) of
Section 6.01 (Events of Default).
(b) The second sentence of the first paragraph of Section 6.02
(Acceleration) of the Indenture is hereby replaced with the following sentence:
"If any other Event of Default occurs and is continuing, the Trustee or the
Holders of at least 90% in aggregate principal amount of the then outstanding
Notes may declare all the Notes to be due and payable immediately."
(c) Any definition used exclusively in the provisions of the
Indenture that are deleted pursuant to this Article I, and any definitions used
exclusively within such definitions, are hereby deleted in their entirety from
the Indenture, and all references in the Indenture to any sections or clauses
set forth above in this Section 1.01, any and all obligations thereunder and any
event of default related solely to such sections and clauses, are hereby deleted
throughout the Indenture.
(d) Any provision contained in the Notes that relates to any
provision of the Indenture as amended by this Article I shall likewise be
amended so that any such provision contained in the Notes will conform to and be
consistent with any provision of the Indenture as amended hereby.
ARTICLE II.
EFFECTIVENESS; OPERATIVENESS
Section 2.01 Effectiveness
This Third Supplemental Indenture will become effective and
binding upon the Company, the Guarantors, the Trustee and the Holders of the
Notes as of the date on which the Opinion of Counsel and Officers' Certificate
required by Sections 9.02 and 13.04 of the Indenture are delivered to the
Trustee.
Section 2.02 Operativeness
(a) All of the provisions of this Third Supplemental Indenture other
than Section 1.01 hereof will become operative on, and simultaneously with, the
time that this Third Supplemental Indenture becomes effective.
(b) Section 1.01 of this Third Supplemental Indenture will become
operative upon, and simultaneously with, and shall have no force or effect prior
to:
(1) the satisfaction or waiver by the Company of the conditions
to the Exchange Offer; and
(2) the acceptance by the Company for exchange of Notes
constituting at least a majority in aggregate principal
amount of the Notes then outstanding, pursuant to the terms
of the Exchange Offer.
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ARTICLE III.
MISCELLANEOUS
Section 3.01 Reference to and Effect on the Indenture
On and after the effective date of this Third Supplemental
Indenture, each reference in the Indenture to "this Indenture," "hereunder,"
"hereof," or "herein" shall mean and be a reference to the Indenture as
supplemented and amended by this Third Supplemental Indenture, unless the
context otherwise requires.
Section 3.02 Integral Part
This Third Supplemental Indenture constitutes an integral part
of the Indenture.
Section 3.03 Adoption, Ratification and Confirmation
The Indenture, as supplemented and amended by this Third
Supplemental Indenture, is in full force and effect and is in all respects
hereby adopted, ratified and confirmed.
Section 3.04 General Definitions
For all purposes of this Third Supplemental Indenture,
capitalized terms used but not defined herein shall have the meanings specified
in the Indenture.
Section 3.05 Counterparts
This Third Supplemental Indenture may be executed in any number
of counterparts, each of which when so executed shall be deemed an original; and
all such counterparts shall together constitute but one and the same instrument.
Section 3.06 Headings
Titles of sections of this Third Supplemental Indenture are for
descriptive purposes only and shall not control or alter the meaning of this
Third Supplemental Indenture as set forth in the text hereof.
Section 3.07 Severability
In case any provision of this Third 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 3.08 Benefits of Supplemental Indenture
Nothing in this Third Supplemental Indenture, the Indenture or
the Notes, express or implied, shall give to any Person (other than the parties
hereto, any Paying Agent, any Registrar and their successors hereunder and the
Holders) any benefit or any legal or equitable right, remedy or claim under this
Third Supplemental Indenture, the Indenture or the Notes.
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Section 3.09 Governing Law
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS THIRD SUPPLEMENTAL INDENTURE, WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 3.10 Notices
Any notice or communication by the Company, any Guarantor or the
Trustee to the others is duly given if in writing and delivered in person or by
first class mail (registered or certified, return receipt requested), facsimile
transmission or overnight air courier guaranteeing next day delivery, to the
others' address:
if to the Company and/or any Guarantor:
Appleton Papers Inc.
addressStreet825 East Wisconsin Avenue
P.O. Box 359
Appleton, WI 54912
Facsimile No.: (920) 991-7256
Attention: Chief Financial Officer
with a copy to:
White & Case LLP
1155 Avenue of the Americas
New York, NY 10036
Facsimile No.: (212) 354-8113
Attention: Kevin Keogh
if to the Trustee:
U.S. Bank National Association
60 Livingston Avenue
St. Paul, MN 55107
Facsimile No.: (651) 495-8097
Attention: Corporate Trust Administration
The Company, any Guarantor or the Trustee, by notice to the
others, may designate additional or different addresses for subsequent notices
or communications.
All notices and communications (other than those sent to Holders)
will be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if transmitted by
facsimile; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder will be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next day delivery to its
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address shown on the register kept by the Registrar. Any notice or communication
will also be so mailed to any Person described in TIA Section 313(c), to the
extent required by the TIA. Failure to mail a notice or communication to a
Holder or any defect in it will not affect its sufficiency with respect to other
Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it
will mail a copy to the Trustee and each Agent at the same time.
Section 3.11 No Recourse Against Others
No director, officer, employee, shareholder or member as such, of
the Company or any of the Guarantors shall have any liability for any
obligations of the Company and the Guarantors under this Third Supplemental
Indenture, the Indenture or the Notes or for any claim based on, in respect of
or by reason of such obligations or their creation.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed as of the day and year first above
written.
APPLETON PAPERS INC.
By: /s/ Thomas J. Ferree
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Name: Thomas J. Ferree
Title: Chief Financial Officer
PAPERWEIGHT DEVELOPMENT CORP., as a
Guarantor
By: /s/ Thomas J. Ferree
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Name: Thomas J. Ferree
Title: Chief Financial Officer
C & H PACKAGING COMPANY, INC., as a
Guarantor
By: /s/ Thomas J. Ferree
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Name: Thomas J. Ferree
Title: Chief Financial Officer
AMERICAN PLASTICS COMPANY, INC., as
a Guarantor
By: /s/ Thomas J. Ferree
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Name: Thomas J. Ferree
Title: Chief Financial Officer
ROSE HOLDINGS LIMITED, as
a Guarantor
By: /s/ Thomas J. Ferree
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Name: Thomas J. Ferree
Title: Chief Financial Officer
Senior Subordinated Notes Third Supplemental Indenture
NEW ENGLAND EXTRUSION INC., as a
Guarantor
By: /s/ Thomas J. Ferree
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Name: Thomas J. Ferree
Title: Chief Financial Officer
Senior Subordinated Notes Third Supplemental Indenture
U.S. BANK NATIONAL ASSOCIATION, as
Trustee
By: /s/ Richard Prokosch
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Name: Richard Prokosch
Title: Vice President
Senior Subordinated Notes Third Supplemental Indenture