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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
--------------------------------------
MAY 12, 2000
(Date of Report)
MARCH 31, 2000
(Date of earliest event reported)
CONSOLIDATED CONTAINER COMPANY LLC
(Exact name of registrant as specified in its charter)
DELAWARE 333-88157 75-2825339
(State or other jurisdiction (Commission File (I.R.S. Employer
of incorporation) Number) Identification No.)
5605 NORTH MACARTHUR BOULEVARD -- SUITE 360
IRVING, TEXAS 75038
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(Address of principal executive offices) (Zip Code)
972-518-9000
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(Registrants' telephone number, including area code)
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ITEM 5. OTHER EVENTS.
Consolidated Container Company LLC ("Consolidated Container Company") and
Franklin Plastics Holdings LLC ("Franklin Plastics") entered into an Assignment
and Assumption Agreement (the "Assignment and Assumption Agreement") dated as of
March 31, 2000. Pursuant to the Assignment and Assumption Agreement,
Consolidated Container Company transferred substantially all of its operating
assets to its wholly owned subsidiary Franklin Plastics.
In connection with the Assignment and Assumption Agreement, Consolidated
Container Company and Consolidated Container Capital, Inc. (together, the
"Issuers"), as issuers of their 10 1/8% Senior Subordinated Notes due 2009 (the
"Notes"), and Reid Plastics Group LLC, Plastic Containers LLC, Continental
Plastic Containers LLC, Continental Caribbean Containers, Inc. and Franklin
Plastics (collectively, the "Subsidiary Guarantors"), as unconditional
guarantors of the Notes jointly and severally on an unsecured, senior
subordinated basis, entered into a Supplemental Indenture (the "Supplemental
Indenture") dated as of March 31, 2000 that supplements the Indenture (the
"Indenture") dated as of July 1, 1999 among the Issuers, the Subsidiary
Guarantors, other than Franklin Plastics, and The Bank of New York, as Trustee.
Pursuant to the Supplemental Indenture, Franklin Plastics agreed to join the
Indenture and thereby, unconditionally guarantee on an unsecured, senior
subordinated basis all of the Issuers' obligations under the Notes and the
Indenture. Franklin Plastics issued its unconditional guarantee on an unsecured,
senior subordinated basis of all of the Issuers' obligations under the Notes and
the Indenture.
In addition, pursuant to the Credit Agreement, dated as of July 1, 1999,
among Consolidated Container Holdings LLC, Consolidated Container Company,
Bankers Trust Company, as administrative agent, and the lenders parties thereto
(the "Senior Credit Facility"), Franklin Plastics entered into a Subsidiary
Assumption Agreement dated as of March 31, 2000, under which the lenders under
the Senior Credit Facility were secured with respect to the equity interests in
and assets of Franklin Plastics on the same basis as the lenders would have been
secured had Franklin Plastics existed at the closing of the Senior Credit
Facility.
ITEM 7. EXHIBITS
EXHIBIT NO. TITLE OF EXHIBIT
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Item 3.1 Certificate of Formation of Franklin Plastics Holdings LLC.
Item 3.2 Limited Liability Company Agreement of Franklin Plastics
Holdings LLC.
Item 4.1 Supplemental Indenture dated as of March 31, 2000 among
Consolidated Container Company LLC and Consolidated Container
Capital, Inc., as issuers, Reid Plastics Group LLC, Plastic
Containers LLC, Continental Plastic Containers LLC,
Continental Caribbean Containers LLC and Franklin Plastics
Holdings LLC, as guarantors, and The Bank of New York, as
trustee.
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2
Item 4.2 Guarantee dated as of March 31, 2000 by Reid Plastics
Group LLC, Plastic Containers LLC, Continental Plastic
Containers LLC, Continental Caribbean Containers LLC and
Franklin Plastics Holdings LLC, as guarantors.
Item 10.1 Assignment and Assumption Agreement dated as of March 31,
2000 between Consolidated Container Company LLC and Franklin
Holdings Plastics LLC.
Item 10.2 Subsidiary Assumption Agreement dated as of March 31, 2000.
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3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrants have duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CONSOLIDATED CONTAINER COMPANY, LLC
By: /s/ Timothy W. Brasher
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Name: Timothy W. Brasher
Title: Senior Vice President, Chief
Financial Officer and Secretary
Dated: May 12, 2000
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Exhibit 3.1
CERTIFICATE OF FORMATION
OF
FRANKLIN PLASTICS HOLDINGS LLC
The undersigned, an authorized natural person, for the purpose of
forming a limited liability company, under the provisions and subject to the
requirements of the State of Delaware (particularly Chapter 16, Title 6 of the
Delaware Code and the acts amendatory thereof and supplemental thereto, and
known, identified, and referred to as the "Delaware Limited Liability Company
Act"), hereby certifies that:
FIRST: The name of the limited liability company (hereinafter
called the "Limited Liability Company") is Franklin Plastics Holdings LLC.
SECOND: The address of the registered office and the name and
address of the registered agent of the Limited Liability Company required to be
maintained by Section 18-104 of the Delaware Limited Liability Company Act are
Corporation Service Company, 1013 Centre Road, Wilmington, New Castle County,
Delaware 19805-1297.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Formation of Franklin Plastics Holdings LLC this 30th day of March, 2000.
By: /s/ Kevin Kitching
-----------------------------------
Name: Kevin Kitching
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Exhibit 3.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
FRANKLIN PLASTICS HOLDINGS LLC
<PAGE>
LIMITED LIABILITY COMPANY AGREEMENT
OF
FRANKLIN PLASTICS HOLDINGS LLC
TABLE OF CONTENTS
PAGE
ARTICLE I
ORGANIZATIONAL MATTERS ....................... 1
1.1 Formation .................................................... 1
1.2 Name ......................................................... 1
1.3 Registered Office and Principal Office of Company ............ 1
1.4 Term ......................................................... 1
1.5 Assumed Name Certificate ..................................... 1
1.6 Limits of Company ............................................ 2
ARTICLE II
DEFINITIONS ............................. 2
ARTICLE III
PURPOSE, MEMBER AND MEMBERSHIP INTEREST ............... 4
3.1 Purpose and Scope ............................................ 4
3.2 Sole Member .................................................. 4
3.3 Restrictions on the Disposition of a Membership Interest ..... 4
ARTICLE IV
CAPITAL CONTRIBUTIONS ........................ 4
4.1 Initial Capital Contribution ................................. 4
4.2 Additional Contributions ..................................... 5
4.3 Maintenance of Capital Account ............................... 5
4.4 Limited Liability of Sole Member ............................. 5
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ARTICLE V
ALLOCATIONS AND DISTRIBUTIONS .................... 5
5.1 Allocation of Profits and Losses ............................. 5
5.2 Interim Distributions ........................................ 5
5.3 Distributions on Termination ................................. 5
5.4 Limitation on Distributions .................................. 5
5.5 Distributions in Kind ........................................ 5
ARTICLE VI
MANAGEMENT OF THE COMPANY ...................... 6
6.1 Management by Manager ........................................ 6
6.2 Appointment of Manager and Tenure ............................ 6
6.3 Removal ...................................................... 6
6.4 Duties of Manager ............................................ 6
6.5 Officers ..................................................... 6
6.6 Indemnification .............................................. 7
ARTICLE VII
ACCOUNTING AND TAX MATTERS ..................... 7
7.1 Books and Records ............................................ 7
ARTICLE VIII
DISSOLUTION AND LIQUIDATION ..................... 7
8.1 Dissolution .................................................. 7
8.2 Effect of Dissolution ........................................ 7
8.3 Winding Up Procedures ........................................ 7
8.4 Distribution of Assets Upon Dissolution ...................... 7
8.5 Distributions in Kind ........................................ 8
8.6 Articles of Dissolution ...................................... 8
ARTICLE IX
GENERAL PROVISIONS ......................... 8
9.1 Captions and Headings ........................................ 8
9.2 Amendment of Articles ........................................ 8
9.3 Amendment of this Agreement .................................. 8
9.4 Number and Gender ............................................ 8
9.5 Binding Effect ............................................... 9
9.6 Severability ................................................. 9
9.7 Counterparts ................................................. 9
9.8 Governing Law ................................................ 9
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LIMITED LIABILITY COMPANY AGREEMENT
OF
FRANKLIN PLASTICS HOLDINGS
This LIMITED LIABILITY COMPANY AGREEMENT of Franklin Plastics
Holdings LLC (the "AGREEMENT") is made as of the 31st day of March, 2000, by
Consolidated Container Company LLC, a Delaware limited liability company (the
"SOLE MEMBER").
ARTICLE I
ORGANIZATIONAL MATTERS
1.1 FORMATION. The Company was formed as a limited liability
company in accordance with the Delaware Act on March 30, 2000. The Sole Member
hereby agrees to continue the Company as a Delaware limited liability company
under and pursuant to the Delaware Act and agrees that except as expressly
provided and permitted herein to the contrary, the rights and obligations of the
Sole Member and the administration and termination of the Company shall be
governed by the Delaware Act.
1.2 NAME. The name of the Company shall be, and the business
of the Company shall be conducted under the name of, Franklin Plastics
Holdings LLC. The Company's business may be conducted under any other name
or names approved by the Manager.
1.3 REGISTERED OFFICE AND PRINCIPAL OFFICE OF COMPANY. The
Company shall maintain a registered office and a designated and duly
qualified agent for service of process on the Company in the State of
Delaware. The Company may maintain offices at such locations as the Manager
deems advisable.
1.4 TERM. The existence of the Company commenced on the
Commencement Date, and the Company shall continue in existence until the
dissolution of the Company pursuant to the express provisions of ARTICLE VIII
hereof.
1.5 ASSUMED NAME CERTIFICATE. The Sole Member shall execute
and file any assumed or fictitious name certificate or certificates or any
similar documents required by law to be filed in connection with the
formation and operation of the Company.
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2
1.6 LIMITS OF COMPANY. The Sole Member intends that the
Company shall be treated as a limited company in accordance with the Delaware
Act for all purposes under state law; this Agreement shall not be construed
to provide otherwise.
ARTICLE II
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
clearly indicated to the contrary, apply to the terms used in this Agreement.
"ACCOUNTING YEAR" means the accounting year of the Company for
accounting and tax purposes, which will be the calendar year.
"ADDITIONAL CONTRIBUTION" means any Capital Contribution in excess
of that Sole Member's Initial Contribution, made to the Company pursuant to
SECTION 4.2 hereof.
"AGREED CONTRIBUTION" means the sum of the Sole Member's Initial
Contribution and any Additional Contributions that Sole Member has made or is
obligated to make to the Company.
"AGREEMENT" means this Limited Liability Company Agreement, as it
may be further amended, supplemented or restated from time to time in accordance
with the terms of this Agreement.
"CAPITAL CONTRIBUTION" means any Initial Contribution or Additional
Contribution to the capital of the Company in cash or property when and as such
contribution is actually made to the Company by the Sole Member.
"CERTIFICATE" means the Certificate of Formation of the Company
filed with the Secretary of State of Delaware, as it may be amended or restated
from time to time.
"CODE" means the Internal Revenue Code of 1986, as amended and in
effect from time to time. All references herein to the Code shall include any
corresponding provision or provisions of succeeding law.
"COMMENCEMENT DATE" means the date that the Certificate was filed
with the Secretary of State of Delaware.
"COMPANY" means Consolidated Container Company LLC, a Delaware
limited liability company, established by the filing of the Certificate with the
Secretary of State of Delaware.
"DELAWARE ACT" means the Delaware Revised Limited Liability
Company Act, 6 Del. C. ss. 18-101, et seq., as amended from time to time.
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3
"DISSOLUTION EVENT" has the meaning set forth in SECTION 8.1.
"DISTRIBUTABLE CASH" means the amount by which the aggregate amount
of all cash and cash equivalents from time to time held by the Company on hand
or in bank accounts or other temporary investments pending distribution, exceeds
the aggregate of all amounts to be paid or set aside by the Company for: (i)
when due, all principal and interest payments on indebtedness of the Company and
all other sums payable to lenders; (ii) all cash expenditures to be incurred in
the normal operations of the business of the Company; and (iii) such cash
reserves as the Sole Member may mutually deem reasonably necessary for the
proper operation of the business of the Company.
"FAIR MARKET VALUE" means the price in cash, or its equivalent, that
an asset would bring considering its highest and most profitable use, if then
offered for sale in the open market, in competition with other similar assets at
or near the same location, with a reasonable time allowed to find a purchaser.
"INITIAL CONTRIBUTION" means the initial Capital Contribution to the
Company made by the Sole Member as set forth in EXHIBIT "A" hereto.
"LOSSES" mean the losses and deduction of the Company determined in
accordance with accounting principles consistently applied from year to year
under the Method of Accounting of the Company.
"MANAGER" has the meaning set forth in SECTION 6.2.
"MEMBERSHIP INTEREST" means the interest of the Sole Member in the
Company, including, without limitation, such Member's right: (a) to a
distributive share of the Profits, Losses, and other items of income, gain,
loss, deduction, and credit of the Company; (b) to a distributive share of the
assets of the Company; and (c) to participate in the management and operation of
the Company as provided in this Agreement.
"METHOD OF ACCOUNTING" means the accrued basis method of accounting
unless another method of accounting is agreed upon by the Sole Member or is
required to be used by the Code.
"OFFICERS" has the meaning set forth in SECTION 6.5.
"PERCENTAGE INTEREST" means the percentage interest of the Sole
Member in certain allocations of Profits, Losses, and other items of income,
gain, loss, or deduction and certain distributions of cash and property.
"PERSON" means any individual or entity, public or private.
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4
"PROFITS" means the income and gains of the Company determined in
accordance with accounting principles consistently applied from year to year
under the Company's Method of Accounting.
"SOLE MEMBER" means Consolidated Container Holdings LLC, a Delaware
limited liability company.
"TREASURY REGULATIONS" means the Treasury Regulations promulgated
under the Code, as amended and in effect (including corresponding provisions of
any succeeding regulations).
ARTICLE III
PURPOSE, MEMBER AND MEMBERSHIP INTEREST
3.1 PURPOSE AND SCOPE. The Company is organized to transact
any and all lawful business for which limited liability companies may be
organized under the Delaware Act.
3.2 SOLE MEMBER. The Sole Member of the Company is Consolidated
Container Company LLC, a Delaware limited liability company, which has, subject
to the provisions of SECTION 4.1 hereof, the entire Membership Interest and the
entire initial Capital Account balance of the Company as shown on EXHIBIT "A" of
this Agreement.
3.3 RESTRICTIONS ON THE DISPOSITION OF A MEMBERSHIP INTEREST.
Except as expressly set forth herein, the Sole Member will have the right to
sell, transfer, encumber or assign all or any portion of its Membership Interest
in the Company.
ARTICLE IV
CAPITAL CONTRIBUTIONS
4.1 INITIAL CAPITAL CONTRIBUTION. Concurrently with the
adoption of this Agreement, the Sole Member will contribute to the capital of
the Company the Initial Contribution and will receive the Membership Interest
set forth on EXHIBIT "A" of this Agreement.
4.2 ADDITIONAL CONTRIBUTIONS. The Sole Member may, in its sole
and absolute discretion, make Additional Contributions in such amounts as it
deems appropriate.
4.3 LIMITED LIABILITY OF SOLE MEMBER. The Sole Member will not be
liable for the debts, obligations, or liabilities of the Company beyond such
Sole Member's Agreed Contribution to the Company. The Sole Member will not be
required to make any Capital Contribution or loan to the Company beyond the
amount of such Sole Member's Agreed Contribution.
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5
ARTICLE V
ALLOCATIONS AND DISTRIBUTIONS
5.1 ALLOCATION OF PROFITS AND LOSSES. All Profits and Losses of
the Company for each fiscal quarter and each Accounting Year (or portion
thereof) will be allocated entirely to the Sole Member as provided in this
Agreement. Any credit available for federal income tax purposes Will be
allocated entirely to the Sole Member in the same manner.
5.2 INTERIM DISTRIBUTIONS. Interim distributions of
Distributable Cash will be made not less often than each fiscal quarter, or
at such other times as the Manager may approve, and will be made by the
Company to the Sole Member in accordance with this ARTICLE V.
5.3 DISTRIBUTIONS ON TERMINATION. Upon the dissolution and
winding-up of the Company, its assets will be distributed in the manner
prescribed in ARTICLE VIII of this Agreement.
5.4 LIMITATION ON DISTRIBUTIONS. Any other provision of this
Agreement to the contrary notwithstanding, no interim distribution or
distribution on termination to the Sole Member will be declared and paid unless,
(a) after the distribution is made, the Fair Market Value of all of the assets
of the Company is in excess of all liabilities of the Company, other than
liabilities to the Sole Member on account of its Capital Contributions; and (b)
such distribution is in conformity with any outstanding loan agreements of the
Company.
5.5 DISTRIBUTIONS IN KIND. The Sole Member is entitled to
demand and receive a distribution from the Company in the form of cash or any
other property.
ARTICLE VI
MANAGEMENT OF THE COMPANY
6.1 MANAGEMENT BY MANAGER. (a) The Manager of the Company
shall have full and complete discretion to manage and control the business
and affairs of the Company in accordance with the terms and provisions of
this Agreement.
(b) Any action required by the Delaware Act to be taken at any
management meeting, or any action that may be taken at any management meeting,
may be taken without a meeting, without prior notice, and without a vote, if a
written consent, setting forth the action so taken, is signed by the Sole Member
or the Manager.
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6
6.2 APPOINTMENT OF MANAGER AND TENURE. The Manager of the Company
(the "MANAGER") will be a Person designated from time to time by the Sole
Member. As of the date hereof, the Manager of the Company will be the Sole
Member. The Manager will hold the office of Manager for such term and shall have
the authority to exercise such powers and perform such duties as will be
determined from time to time by the Sole Member. The salary or other
compensation, if any, of the Manager of the Company will be fixed from time to
time by the Sole Member.
6.3 REMOVAL. The Manager may be removed as such at any time by
the Sole Member, either with or without cause, in the discretion of the Sole
Member. Designation of the Manager shall not of itself create contract rights.
6.4 DUTIES OF MANAGER. The Manager shall have general and active
management of the day-to-day business and affairs of the Company and shall be
authorized and directed to implement all orders, resolutions and business plans
adopted by the Sole Member that do not violate applicable laws.
6.5 OFFICERS. The Manager may designate such officers of the
Company as it deems necessary or appropriate from time to time, including a
President, one or more Vice Presidents and a Secretary, and such other officers
as the Manager shall deem desirable (the "OFFICERS"). The Manager hereby
delegates to each Officer the nonexclusive power and authority to act as an
agent of the Company and, in such capacity, to bind the Company in the ordinary
course of the Company's business and to execute any and all documents to be
signed by the Company.
As of the date hereof, the Officers shall be as follows:
NAME TITLE
[to be decided]
6.6 INDEMNIFICATION. The Company will indemnify its Sole
Member, Manager, and Officers to the same extent a corporation may indemnify
its directors, officers and others under applicable law.
ARTICLE VII
ACCOUNTING AND TAX MATTERS
7.1 BOOKS AND RECORDS. The Company will maintain such books
and records of the operations and expenditures of the Company as the Manager
and Officers shall determine.
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7
ARTICLE VIII
DISSOLUTION AND LIQUIDATION
8.1 DISSOLUTION. The Company will be dissolved upon the
earliest to occur of the following events: (each such event is referred to
as a "DISSOLUTION EVENT"):
(a) an election to dissolve the Company is approved in writing
by the Sole Member; or
(b) any other event occurs that, under the Delaware Act, would
cause the Company's dissolution.
8.2 EFFECT OF DISSOLUTION. Upon the dissolution of the Company,
the Company will cease to carry on its business, except. insofar as may be
necessary for the winding up of its business, and the assets of the Company will
be determined and valued effective as of the day on which the event occurs that
results in such dissolution, but the Company will not terminate until there has
been a winding-up of the Company's business and affairs and the assets of the
Company have been liquidated and distributed as provided in this Agreement.
8.3 WINDING UP PROCEDURES. Upon the dissolution of the Company,
the Company will (a) proceed to collect its assets; (b) convey and dispose of
such of its properties as are not to be distributed in kind to the Sole Member;
(c) pay, satisfy, and discharge its liabilities, or make adequate provision for
payment and discharge of such liabilities; and (d) do all other acts required to
liquidate its business and affairs.
8.4 DISTRIBUTION OF ASSETS UPON DISSOLUTION. In settling the
accounts of the Company after its dissolution, the assets of the Company will
be applied and distributed in the following order of priority:
(a) First, to the extent permitted by law, and in accordance with
the priorities, if any, established by applicable law, to creditors in
satisfaction of liabilities of the Company, including liabilities of the
Company to its Sole Member as a creditor (other than for distributions and
Capital Contributions), whether by payment or establishment of reserves;
(b) Second, to its Sole Member.
8.5 DISTRIBUTIONS IN KIND. If any assets of the Company are
distributed in kind, such assets will be distributed in accordance the
provisions of SECTION 8.4 above to the Sole Member.
8.6 ARTICLES OF DISSOLUTION. When all liabilities and obligations
of the Company have been paid or discharged, or adequate provision has been made
for such liabilities, or in case its property and assets are not sufficient to
satisfy and discharge all of the liabilities and obligations of the Company,
then when all the property and assets of the Company have been applied to the
extent available to the bona fide liabilities and obligations of the Company,
and all of the remaining property
<PAGE>
8
and assets of the Company have been distributed to its Sole Member, the Company
shall cause the Certificate to be cancelled and will take such other actions as
are shall necessary or appropriate to reflect the dissolution and termination of
the Company.
ARTICLE IX
GENERAL PROVISIONS
9.1 CAPTIONS AND HEADINGS. The captions and heading used in
this Agreement are for convenience of reference only and will not be taken
into account in constructing the meaning or intent of this Agreement.
9.2 AMENDMENT OF ARTICLES. The Certificate may be amended,
supplemented or restated by written consent of the Sole Member. Upon executing
the necessary consent with respect to, such amendment, supplement, or
restatement of the Certificate, the Sole Member will cause a Certificate of
Amendment to be prepared, executed, and filed in accordance with the Delaware
Act.
9.3 AMENDMENT OF THIS AGREEMENT. This Agreement may be amended,
supplemented, or restated by the written consent of the Sole Member.
9.4 NUMBER AND GENDER. Where the context so indicates, the
singular will include the plural, and the use of any gender will include all
other genders.
9.5 BINDING EFFECT. Except as otherwise expressly provided
herein, this Agreement will be binding upon and will inure to the benefit of
the Sole Member and its heirs, legal representatives, executors,
administrators, distributees, successors, and assigns.
9.6 SEVERABILITY. If any one or more of the provisions contained
in this Agreement for any reason are held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
will not affect any other provisions of this Agreement and this Agreement will
be construed as if such invalid, illegal, or unenforceable provisions had never
been contained in this Agreement.
9.7 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which will be deemed to be an original and will be
binding upon the Sole Member who executed same, but all of such counterparts
will constitute the same Agreement and may be sufficiently evidenced by one
counterpart.
9.8 GOVERNING LAW. This Agreement and the construction
interpretation will be governed exclusively by the Delaware Act and other
applicable laws of the State of Delaware.
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9
IN WITNESS WHEREOF, the Sole Member has executed this Limited
Liability Company Agreement as of the date first set forth above.
SOLE MEMBER:
CONSOLIDATED CONTAINER COMPANY
LLC
By: /s/ William L. Estes
--------------------
Its Manager
By: /s/ William L. Estes
---------------------------
NAME: William L. Estes
--------------------------
TITLE: Manager
-------------------------
<PAGE>
LIMITED LIABILITY COMPANY AGREEMENT
OF
CONSOLIDATED CONTAINER COMPANY LLC
- --------------------------------------------------------------------------------
EXHIBIT "A"
INITIAL CAPITAL CONTRIBUTIONS AND MEMBERSHIP INTEREST.
NAME OF SOLE MEMBER MEMBERSHIP INTEREST
Consolidated Container Company LLC 100%
<PAGE>
Exhibit 4.1
SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), dated as of
March 31, 2000, among FRANKLIN PLASTICS HOLDINGS LLC (the "GUARANTEEING
SUBSIDIARY"), a subsidiary of Consolidated Container Company LLC (the "COMPANY")
and a Delaware limited liability company, the Issuers (as defined in the
Indenture referred to herein), the other Subsidiary Guarantors a party hereto
and The Bank of New York, a New York banking corporation, as trustee under the
indenture referred to below (the "TRUSTEE").
W I T N E S S E T H
WHEREAS, the Issuers have heretofore executed and delivered to the
Trustee an indenture (the "INDENTURE") dated as of July 1, 1999 among the
Issuers, the Subsidiary Guarantors and the Trustee providing for the issuance of
an aggregate principal amount of up to $300,000,000 of 10 1/8% Senior
Subordinated Notes due 2009 (the "UNREGISTERED NOTES");
WHEREAS, the Issuers issued $185,000,000 in aggregate principal
amount of their Unregistered Notes, guaranteed on an unsecured, senior
subordinated basis by the Subsidiary Guarantors on a joint and several basis in
a transaction exempt from the registration requirements of the Securities Act of
1933, as amended (the "SECURITIES ACT"), under Rule 144A thereof and have
exchanged such Unregistered Notes for notes, guaranteed on an unsecured, senior
subordinated basis by the Subsidiary Guarantors on a joint and several basis
which were covered by a registration statement filed and declared effective
under the Securities Act (such registered notes, the "REGISTERED NOTES" and,
together with the Unregistered Notes, the "NOTES");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee on an unsecured, senior subordinated basis all of the Issuers'
Obligations under the Notes and the Indenture on the terms and conditions set
forth herein (the "SUBSIDIARY GUARANTEE"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby
agrees as follows:
<PAGE>
(a) Along with all Subsidiary Guarantors named in the Indenture,
to jointly and severally guarantee on an unsecured, senior subordinated
basis to each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, the Notes or the
obligations of the Issuers hereunder or thereunder, that:
(i) the principal of and interest on the Notes will be
promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful, and all
other obligations of the Issuers to the Holders or the Trustee
hereunder or thereunder will be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal
of any Notes or any of such other obligations, that same will be
promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. Failing payment when due of any amount so
guaranteed or any performance so guaranteed for whatever reason, the
Subsidiary Guarantors shall be jointly and severally obligated to
pay the same immediately.
(b) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or
the Indenture, the absence of any action to enforce the same, any waiver
or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Issuers, any
action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor.
(c) The following is hereby waived: diligence, presentment,
demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Issuers, any right to require a proceeding
first against the Issuers, protest, notice and all demands whatsoever.
(d) This Subsidiary Guarantee shall not be discharged except by
complete performance of the obligations contained in the Notes and the
Indenture, and the Guaranteeing Subsidiary accepts all obligations of a
Subsidiary Guarantor under the Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Issuers, the Subsidiary Guarantors, or any
Custodian, Trustee, liquidator or other similar official acting in
relation to either the Issuers or the Subsidiary Guarantors, any amount
paid by either to the Trustee or such Holder, this Subsidiary Guarantee,
to the extent theretofore discharged, shall be reinstated in full force
and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any
right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby.
2
<PAGE>
(g) As between the Subsidiary Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6
of the Indenture for the purposes of this Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in
the event of any declaration of acceleration of such obligations as
provided in Article 6 of the Indenture, such obligations (whether or not
due and payable) shall forthwith become due and payable by the Subsidiary
Guarantors for the purpose of this Subsidiary Guarantee.
(h) The Subsidiary Guarantors shall have the right to seek
contribution from any non-paying Subsidiary Guarantor so long as the
exercise of such right does not impair the rights of the Holders under the
Guarantee.
(i) Pursuant to Section 11.02 of the Indenture, after giving
effect to any maximum amount and any other contingent and fixed
liabilities that are relevant under any applicable Bankruptcy or
fraudulent conveyance laws, and after giving effect to any collections
from, rights to receive contribution from or payments made by or on behalf
of any other Subsidiary Guarantor in respect of the obligations of such
other Subsidiary Guarantor under Article 11 of the Indenture, this new
Subsidiary Guarantee shall be limited to the maximum amount permissible
such that the obligations of such Subsidiary Guarantor under this
Subsidiary Guarantee will not constitute a fraudulent transfer or
conveyance under either federal or state law.
3. EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees that
the Subsidiary Guarantees shall remain in full force and effect notwithstanding
any failure to endorse on each Note a notation of such Subsidiary Guarantee.
4. GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) The Guaranteeing Subsidiary may not sell or otherwise
dispose of all or substantially all of its assets to, or consolidate with or
merge with or into (whether or not such Subsidiary Guarantor is the surviving
Person) another corporation, Person or entity whether or not affiliated with
such Subsidiary Guarantor unless:
(i) subject to Section 11.06 of the Indenture, either (i)
the Person acquiring the property in such sale or disposition or the
Person formed by or surviving any such consolidation or merger (if other
than a Subsidiary Guarantor or the Company) unconditionally assumes all
the obligations of such Subsidiary Guarantor, pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the Trustee,
under the Notes, the Indenture and the Subsidiary Guarantee on the terms
set forth herein or therein or (ii) the Net Proceeds of such a sale or
other disposition are applied in accordance with Section 4.10 of the
Indenture; and
3
<PAGE>
(ii) if such merger or consolidation is with a Person other
than either of the Issuers or a Restricted Subsidiary immediately after
giving effect to such transaction, no Default or Event of Default exists.
(b) In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the Subsidiary Guarantee endorsed upon the Notes and the due and
punctual performance of all of the covenants and conditions of the Indenture to
be performed by the Subsidiary Guarantor, such successor corporation shall
succeed to and be substituted for the Subsidiary Guarantor with the same effect
as if it had been named herein as a Subsidiary Guarantor. Such successor
corporation thereupon may cause to be signed any or all of the Subsidiary
Guarantees to be endorsed upon all of the Notes issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee. All the Subsidiary Guarantees so issued shall in all respects have the
same legal rank and benefit under the Indenture as the Subsidiary Guarantees
theretofore and thereafter issued in accordance with the terms of the Indenture
as though all of such Subsidiary Guarantees had been issued at the date of the
execution hereof.
(c) Except as set forth in Articles 4 and 5 of the Indenture,
and notwithstanding clauses (a) and (b) above, nothing contained in the
Indenture or in any of the Notes shall prevent any consolidation or merger of a
Subsidiary Guarantor with or into the Company or another Subsidiary Guarantor,
or shall prevent any sale or conveyance of the property of a Subsidiary
Guarantor as an entirety or substantially as an entirety to the Company or
another Subsidiary Guarantor.
5. RELEASES.
(a) In the event of (i) a sale or other disposition of all or
substantially all of the assets of any Subsidiary Guarantor, by way of merger,
consolidation or otherwise, or (ii) a sale or other disposition of all of the
Capital Stock of any Subsidiary Guarantor, in each case to a Person that is not
(either before or after giving effect to such transactions) a Restricted
Subsidiary of the Company, then such Subsidiary Guarantor (in the event of a
sale or other disposition, by way of merger, consolidation or otherwise, of all
of the Capital Stock of such Subsidiary Guarantor) or the corporation acquiring
the property (in the event of a sale or other disposition of all or
substantially all of the assets of such Subsidiary Guarantor) will be released
and relieved of any obligations under its Subsidiary Guarantee; PROVIDED that
the Net Proceeds of such sale or other disposition are applied in accordance
with the applicable provisions of this Indenture, including without limitation
Section 4.10 of the Indenture. In addition, in the event that the Company
properly designates any Restricted Subsidiary that is a Subsidiary Guarantor as
an Unrestricted Subsidiary, such Subsidiary Guarantor will be released and
relieved of any obligations under its Subsidiary Guarantee. Upon delivery by the
Company to the Trustee of an Officers' Certificate and an Opinion of Counsel to
the effect that such sale or other disposition was made by the Company in
accordance with the provisions of this Indenture, including without limitation
Sections 3.09 and 4.10 of the Indenture, or notification by the Company that a
Restricted Subsidiary was designated as an Unrestricted Subsidiary, the Trustee
shall execute any documents reasonably required in order to evidence the release
of any Subsidiary Guarantor from its obligations under its Subsidiary Guarantee.
4
<PAGE>
(b) Any Subsidiary Guarantor not released from its obligations
under its Subsidiary Guarantee shall remain liable for the full amount of
principal of and interest on the Notes and for the other obligations of any
Subsidiary Guarantor under the Indenture as provided in Article 11 of the
Indenture.
6. NO RECOURSE AGAINST OTHERS. No past, present or future manager,
director, officer, employee, incorporator, stockholder, member or agent of the
Guaranteeing Subsidiary, as such, shall have any liability for any obligations
of the Issuers or any Guaranteeing Subsidiary under the Notes, any Subsidiary
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of the Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the SEC that such a waiver is against
public policy.
7. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
10. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of 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 Guaranteeing Subsidiary and the Issuers.
5
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
CONSOLIDATED CONTAINER COMPANY LLC
By: Consolidated Container Holdings LLC,
as its Sole Member and Manager
By: /s/ Timothy W. Brasher
----------------------------------
Name: Timothy W. Brasher
Title: Senior Vice President, Chief
Financial Officer and Secretary
CONSOLIDATED CONTAINER CAPITAL, INC.
By: /s/ Timothy W. Brasher
--------------------------------------
Name: Timothy W. Brasher
Title: Senior Vice President, Chief
Financial Officer and Secretary
REID PLASTICS GROUP LLC
By: Consolidated Container Company LLC,
as its Sole Member and Manager
By: Consolidated Container Company Holdings,
as its Sole Member and Manager
By: /s/ Timothy W. Brasher
----------------------------------
Name: Timothy W. Brasher
Title: Senior Vice President, Chief
Financial Officer and Secretary
PLASTICS CONTAINERS LLC
By: Consolidated Container Company LLC, as its
Sole Member and Manager
By: Consolidated Container Holdings LLC, as
its Sole Member and Manager
By: /s/ Timothy W. Brasher
----------------------------------
Name: Timothy W. Brasher
6
<PAGE>
Title: Senior Vice President, Chief
Financial Officer and Secretary
CONTINENTAL PLASTIC CONTAINERS LLC
By: Plastic Containers LLC, as its Sole
Member and Manager
By: Consolidated Container Company, as its
Sole Member and Manager
By: Consolidated Container Holdings LLC, as
its Sole Member and Manager
By: /s/ Timothy W. Brasher
----------------------------------
Name: Timothy W. Brasher
Title: Senior Vice President, Chief
Financial Officer and Secretary
CONTINENTAL CARIBBEAN CONTAINERS, INC.
By: /s/ Timothy W. Brasher
--------------------------------------
Name: Timothy W. Brasher
Title: Senior Vice President, Chief
Financial Officer and Secretary
FRANKLIN PLASTICS HOLDINGS LLC
By: Consolidated Container Company LLC, as its
Sole Member and Manager
By: Consolidated Container Company Holdings, as
its Sole Member and Manager
By: /s/ Timothy W. Brasher
-----------------------------------
Name: Timothy W. Brasher
Title: Senior Vice President, Chief
Financial Officer and Secretary
THE BANK OF NEW YORK, as Trustee
By: /s/ Remo J. Reale
--------------------------------------
Name: Remo J. Reale
Title: Vice President
7
<PAGE>
Exhibit 4.2
NOTATION OF SUBSIDIARY GUARANTEE
For value received, each Subsidiary Guarantor listed below (which term
includes any successor Person under the Indenture) has, jointly and severally,
unconditionally guaranteed, on an unsecured, senior subordinated basis to the
extent set forth in the Indenture and subject to the provisions in the
Indenture, dated as of July 1, 1999 (the "INDENTURE"), among Consolidated
Container Company LLC (the "COMPANY") and Consolidated Container Capital, Inc.
("CAPITAL" and together with the Company, the "ISSUERS"), the Subsidiary
Guarantors named therein and The Bank of New York, as trustee (the "TRUSTEE"),
(a) the due and punctual payment of the principal of, premium, if any, and
interest on the Notes (as defined in the Indenture), whether at maturity, by
acceleration, redemption or otherwise, the due and punctual payment of interest
on overdue principal and premium, if any, and, to the extent permitted by law,
interest, and the due and punctual performance of all other obligations of the
Issuers to the Holders or the Trustee all in accordance with the terms of the
Indenture and (b) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, that the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise. The
obligations of the Subsidiary Guarantors to the Holders of Notes and to the
Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set
forth in Article 11 of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Subsidiary Guarantee. Each Holder of a
Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee, on behalf of such Holder, to
take such actions as may be necessary or appropriate to effectuate the
subordination as provided in the Indenture and (c) appoints the Trustee
attorney-in-fact of such Holder for such purpose; PROVIDED, HOWEVER, that the
Indebtedness evidenced by this Subsidiary Guarantee shall cease to be
subordinated and subject in right of payment upon any defeasance of this Note in
accordance with the provisions of the Indenture.
The Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which the
Subsidiary Guarantee is noted shall have been executed by the Trustee by the
manual of facsimile signature of one of its authorized officers.
Dated: as of March 31, 2000
REID PLASTICS GROUP LLC
By: Consolidated Container Company LLC,
as its Sole Member and Manager
By: Consolidated Container Holdings LLC,
as its Sole Member and Manager
By: /s/ Timothy W. Brasher
-----------------------------------
Name: Timothy W. Brasher
Title: Senior Vice President, Chief
Financial Officer and Secretary
<PAGE>
PLASTICS CONTAINERS LLC
By: Consolidated Container Company LLC,
as its Sole Member and Manager
By: Consolidated Container Holdings LLC,
as its Sole Member and Manager
By: /s/ Timothy W. Brasher
-----------------------------------
Name: Timothy W. Brasher
Title: Senior Vice President, Chief
Financial Officer and Secretary
CONTINENTAL PLASTICS CONTAINERS LLC
By: Plastics Containers LLC, as its Sole
Member and Manager
By: Consolidated Container Company LLC,
as its Sole Member and Manager
By: Consolidated Container Holdings LLC,
as its Sole Member and Manager
By: /s/ Timothy W. Brasher
----------------------------------
Name: Timothy W. Brasher
Title: Senior Vice President, Chief
Financial Officer and Secretary
CONTINENTAL CARIBBEAN CONTAINERS, INC.
By: /s/ Timothy W. Brasher
----------------------------------
Name: Timothy W. Brasher
Title: Senior Vice President, Chief
Financial Officer and Secretary
FRANKLIN PLASTICS LLC
By: Consolidated Container Company LLC,
as its Sole Member and Manager
By: Consolidated Container Holdings LLC,
as its Sole Member and Manager
By: /s/ Timothy W. Brasher
-----------------------------------
Name: Timothy W. Brasher
Title: Senior Vice President, Chief
Financial Officer and Secretary
2
<PAGE>
Exhibit 10.1
ASSIGNMENT AND ASSUMPTION AGREEMENT
Assignment and Assumption Agreement (the "Agreement"), dated as of
March 31, 2000, between Consolidated Container Company LLC ("Seller") and
Franklin Plastics Holdings LLC ("Buyer").
WHEREAS, upon the subject to the terms and conditions set forth
herein, Buyer desires to purchase and Seller desires to sell all business,
assets and other rights of Seller (the "Assets") and Buyer wishes to assume all
liabilities and obligations of Seller (the "Liabilities"), all as hereinafter
set forth; and
WHEREAS, Seller and Buyer hereby agree to sell, convey, assign,
transfer and deliver to Buyer all of Seller's right, title and interest, in and
to all of the Assets and Buyer agrees to assume the Liabilities.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration (receipt of which is hereby acknowledged), the
parties hereto, intending to be legally bound hereby, agree as follows:
1. Seller hereby grants, sells, conveys, assigns, transfers and delivers
over unto Buyer, its successors and assigns, all of the right, title
and interest of Seller in and to all of the Assets, including, without
limitation, all properties, assets and other rights owned or leased by,
or licensed to Seller, to have and to hold forever; PROVIDED, that any
and all ownership interests held by the Seller in other entities,
including, without limitation, shares of common stock of a corporation,
interests in a limited liability company or interests in a partnership
or other unincorporated entity shall not be so transferred.
2. Buyer hereby assumes and agrees to discharge in a timely manner, fully in
accordance with the respective terms thereof, as and when they become due
all Liabilities including, without limitation, any and all liabilities and
obligations of Seller relating to the Assets, arising from, or in
connection with, the ownership of the Assets by Buyer or any other person
after the date hereof.
3. As consideration for the Assets, Buyer shall issue to the Seller, on the
date of execution of this Agreement, one hundred (100) Units of Buyer.
4. This Agreement and the covenants and agreements set forth herein shall be
binding upon and inure to the benefit of Buyer and Seller, respectively,
and their respective successors and assigns.
5. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York.
<PAGE>
2
6. Buyer and Seller, from time to time, shall execute, acknowledge, deliver
and perform, or cause to be executed, acknowledged, delivered and
performed, all such further acts, assignments, transfers, conveyances,
powers of attorney and assurances as may be necessary or proper to carry
out the provisions and intent of this Agreement.
<PAGE>
3
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by one of its duly authorized officers as of the date
first above written.
CONSOLIDATED CONTAINER COMPANY LLC
By: /s/ Timothy W. Brasher
------------------------------------
Name: Timothy W. Brasher
Title: Senior Vice President,
Chief Financial
Officer and Secretary
FRANKLIN PLASTICS HOLDINGS LLC
By: /s/ Timothy W. Brasher
------------------------------------
Name: Timothy W. Brasher
Title: Senior Vice President,
Chief Financial
Officer and Secretary
<PAGE>
Exhibit 10.2
SUBSIDIARY ASSUMPTION AGREEMENT
SUBSIDIARY ASSUMPTION AGREEMENT (this "Agreement") dated as of March 31,
2000, made by Franklin Plastics Holdings LLC, a Delaware limited liability
company (the "New Guarantor"). Unless otherwise defined herein, capitalized
terms used herein and defined in the Credit Agreement referred to below are used
herein as so defined.
W I T N E S S E T H:
WHEREAS, Consolidated Container Holdings LLC ("Holdings"), Consolidated
Container Company LLC (the "Borrower"), the Banks party thereto from time to
time, Bankers Trust Company, as Administrative Agent, Morgan Guaranty Trust
Company of New York, as Documentation Agent and Donaldson, Lufkin & Jenrette
Securities Corporation, as Syndication Agent are parties to a Credit Agreement
dated as of July 1, 1999 (as amended, modified or supplemented to the date
hereof, the "Credit Agreement");
WHEREAS, in connection with the Credit Agreement, each Subsidiary of the
Borrower has entered into a Subsidiaries Guaranty dated as of July 1, 1999 (as
in effect on the date hereof, the "Subsidiaries Guaranty");
WHEREAS, in connection with the Credit Agreement, Holdings, the Borrower
and each Subsidiary of the Borrower have entered into a Pledge Agreement dated
as of July 1, 1999 (as in effect on the date hereof, the "Pledge Agreement");
WHEREAS, in connection with the Credit Agreement, Holdings, the Borrower
and each Subsidiary of the Borrower have entered into a Security Agreement dated
as of July 1, 1999 (as in effect on the date hereof, the "Security Agreement"
and, together with the Subsidiaries Guaranty and Pledge Agreement, the
"Documents");
WHEREAS, the New Guarantor is a Wholly-Owned Domestic Subsidiary of the
Borrower; and
WHEREAS, the new Guarantor desires to execute and deliver this Agreement
in order to become party to each of the Documents;
NOW, THEREFORE, IT IS AGREED;
1. Subsidiaries Guaranty. By executing and delivering this Agreement, the
New Guarantor hereby becomes a party to the Subsidiaries Guaranty as a
"Guarantor" thereunder, and hereby expressly and jointly and severally assumes
all obligations and liabilities of a "Guarantor" thereunder, subject to the
limitations set forth therein. The New Guarantor hereby makes each of the
representations and warranties contained in the Subsidiaries Guaranty on the
date hereof, after giving effect to this Agreement, provided that references to
"the Initial Borrowing Date" in Section 11(iv) of the Subsidiaries Guaranty
shall be to "the date hereof".
<PAGE>
2. Pledge Agreement. By executing and delivering this Agreement, the New
Guarantor hereby becomes a party to the Pledge Agreement as a "Pledgor"
thereunder, and hereby expressly assumes all obligations and liabilities of a
"Pledgor" thereunder. Annexes A, B, C, D, E, and F of the Pledge Agreement are
each hereby amended with the information contained in Annexes A, B, C, D, E, and
F attached to Annex 1 of this Agreement. The New Guarantor hereby makes each of
the representations and warranties contained in the Pledge Agreement on the date
hereof, after giving effect to this Agreement, provided that references to "the
Initial Borrowing Date" in Section 15(a)(iv) of the Pledge Agreement shall be to
"the Date hereof".
3. Security Agreement. By executing and delivering this Agreement, the New
Guarantor hereby becomes a party to the Security Agreement as an "Assignor"
thereunder, and hereby assumes all obligations and liability of an "Assignor"
thereunder. Annexes A, B, C, D, E, and F of the Security Agreement are each
hereby amended by replacing such Annexes with the information contained in
Annexes A, B, C, D, E, and F attached to Annex II of this Agreement. The New
Guarantor hereby makes each of the representations and warranties contained in
the Security Agreement on the date hereof, after giving effect to this
Agreement.
4. Pledged Securities; Financing Statements. By executing and delivering
this Agreement, the New Guarantor hereby agrees to:
(i) execute and deliver to the Collateral Agent an agreement,
substantially in the form of Annex G to the Pledge Agreement; and
(ii) execute and deliver to the Collateral Agent such financing
statements, in form acceptable to the Collateral Agent, as the Collateral Agent
may request or as are necessary or desirable in the opinion of the Collateral
Agent to establish and maintain a valid, enforceable first priority perfected
security interest in the Collateral (as defined in the Security Agreement) owned
by the New Guarantor.
5. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
6. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
* * *
-2-
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be duly
executed and delivered as of the date first above written.
FRANKLIN PLASTICS HOLDINGS, LLC
By: /s/ Timothy W. Brasher
------------------------------------
Title: Chief Financial Officer
ACKNOWLEDGED AND ACCEPTED
BANKERS TRUST COMPANY
and as Collateral Agent
By: /s/ Susan L. LeFevre
---------------------------------
Title: Director
-3-
<PAGE>
ANNEX I
-4-
<PAGE>
ANNEX A
LIST OF SUBSIDIARIES
Jurisdiction of
Company Owned By Percentage Owned Incorporation
------- -------- ---------------- -------------
Franklin Plastics Consolidated 100% Delaware
Holdings LLC Container Company
LLC
-5-
<PAGE>
ANNEX B
LIST OF STOCK
None.
-6-
<PAGE>
ANNEX C
LIST OF NOTES
None.
-7-
<PAGE>
ANNEX D
LIST OF LIMITED LIABILITY COMPANY INTERESTS
Name of Issuing Corporation Percentage Owned
Franklin Plastics Holdings LLC 100%
-8-
<PAGE>
ANNEX E
LIST OF PARTNERSHIP INTERESTS
None.
-9-
<PAGE>
ANNEX F
LIST OF CHIEF EXECUTIVE OFFICES
Franklin Plastics Holdings LLC
5606 N. MacArthur Blvd.
Suite 360
Irving, Texas 75038
-10-
<PAGE>
ANNEX II
-11-
<PAGE>
ANNEX A
LIST OF CHIEF EXECUTIVE OFFICES
Franklin Plastics Holdings LLC
5605 N. MacArthur Blvd.
Suite 360
Irving, Texas 75038
-12-
<PAGE>
ANNEX B
SCHEDULE OF EQUIPMENT AND INVENTORY LOCATIONS
None.
-13-
<PAGE>
ANNEX C
SCHEDULE OF TRADE AND FICTITIOUS NAMES
None.
-14-
<PAGE>
ANNEX D
SCHEDULE OF MARKS
None.
-15-
<PAGE>
ANNEX E
SCHEDULE OF PATENTS AND PATENT APPLICATIONS
None.
-16-
<PAGE>
ANNEX F
SCHEDULE OF COPYRIGHTS AND COPYRIGHT APPLICATIONS
None.
