exv4w472
Exhibit 4.472
Deed Register No. 396/2011-G
Recorded
in Frankfurt am Main on September 8, 2011
Before me, the undersigning Civil Law Notary in the district of the Higher Regional Court
(Oberlandesgericht) of Frankfurt am Main
Dr. Olaf Gerber
with my official place of business in Frankfurt am Main
appeared today:
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Dr. David Witzel, born 5 February 1975, whose business address is Taubenstraße 7-9, 60313
Frankfurt am Main, and who is personally known to the notary. |
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| 2. |
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Tereza Sipkova, born 6 January 1979, whose business address is Bockenheimer Landstraße 24,
60323 Frankfurt am Main, and who identified herself by presenting her valid passport. |
The person appearing to 1. declared to make the following declarations not in his own name but,
excluding any personal liability, for and on behalf of
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a) |
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SIG Combibloc Systems GmbH, a limited liability company (Gesellschaft mit beschränkter
Haftung) organised under the laws of the Federal Republic of Germany, having its business
address at Rurstraße 58, 52441 Linnich, Germany, which is registered in the commercial
register (Handelsregister) of the local court (Amtsgericht) of Düren under HRB 3935 |
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presenting a power of attorney dated July 23, 2011, a copy of which, without Exhibit 1, is
attached to this deed; |
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b) |
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SIG Combibloc Zerspanungstechnik GmbH, a limited liability company (Gesellschaft mit
beschränkter Haftung) organised under the laws of the Federal Republic of Germany having
its corporate seat in Aachen, Germany and its business address at Walkmühlenstraße 4-10,
53074 Aachen, Germany, which is registered in the commercial register (Handelsregister) of
the local court (Amtsgericht) of Aachen under HRB 3814 |
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presenting a power of attorney dated July 20, 2011, a copy of which, without Exhibit 1, is
attached to this deed, |
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c) |
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Closure Systems International B.V., a private company with limited liability (besloten
vennootschap met beperkte aansprakelijkheid), incorporated under the laws of The Netherlands,
having its corporate seat (statutaire zetel) in Amsterdam, The Netherlands and its registered
address at Teleportboulevard 140, 1043 EJ Amsterdam, The Netherlands, which is registered
under registration number 34291082 with the Chamber of Commerce |
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presenting a power of attorney dated July 20, 2011, a copy of which is attached to this deed, |
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d) |
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Closure Systems International Holdings (Germany) GmbH, a limited liability company
(Gesellschaft mit beschränkter Haftung) organised under the laws of the Federal Republic of
Germany having its corporate seat in Worms, Germany and its business address at Mainzer Straße
185, 67547 Worms, Germany, which is registered in the commercial register (Handelsregister) of
the local court (Amtsgericht) of Mainz under HRB 41388 |
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presenting a power of attorney dated July 23, 2011, a copy of which, without Exhibit 1, is
attached to this deed, |
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e) |
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Closure Systems International Deutschland GmbH, a limited liability company (Gesellschaft mit
beschränkter Haftung) organised under the laws of the Federal Republic of Germany having its
corporate seat in Worms, Germany and its business address at Mainzer Straße 185, 67547 Worms,
Germany, which is registered in the commercial register (Handelsregister) of the local court
(Amtsgericht) of Mainz under HRB 10054 |
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presenting a power of attorney dated July 25, 2011, a copy of which, without Exhibit 1, is
attached to this deed, |
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f) |
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SIG Combibloc Group AG, a stock corporation (Aktiengesellschaft) organised under the laws of
Switzerland, having its business address at Laufengasse 18, CH-8212 Neuhausen am Rheinfall,
Switzerland, which is registered in the commercial register (Handelsregister) of the Canton of
Schaffhausen under the federal register number CH-290.3.004.149-2 |
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presenting a power of attorney dated July 22, 2011, a copy of which is attached to this deed, |
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g) |
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SIG Combibloc Holding GmbH, a limited liability company (Gesellschaft mit beschränkter
Haftung) organised under the laws of the Federal Republic of Germany having its business
address at Rurstraße 58, 52441 Linnich, Germany, which is registered in the commercial
register (Handelsregister) of the local court (Amtsgericht) of Düren under HRB 5751 |
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presenting a power of attorney dated July 20, 2011, a copy of which, without Exhibit 1, is
attached to this deed, |
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h) |
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SIG Euro Holding AG & Co. KG aA, a limited liability company (Kommanditgesellschaft auf
Aktien) organised under the laws of the Federal Republic of Germany, having its business
address at Rurstraße 58, 52441 Linnich, Germany, which is registered in the commercial
register (Handelsregister) of the local court (Amtsgericht) of Düren under HRB 5754 |
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presenting
a power of attorney dated July 20, 2011, a copy of which, without Exhibit 1, is attached to
this deed, |
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i) |
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SIG Beverages Germany GmbH, a limited liability company (Gesellschaft mit beschränkter
Haftung) organised under the laws of the Federal Republic of Germany having its corporate seat
in Waldshut-Tiengen, Germany and its business address at Weilheimer Straße 5, 79761
Waldshut-Tiengen, Germany, which is registered in the commercial register (Handelsregister) of
the local court (Amtsgericht) of Freiburg i. Br. under HRB 702482 |
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presenting a power of attorney dated July 20, 2011, a copy of which, without Exhibit 1, is
attached to this deed, |
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j) |
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SIG International Services GmbH, a limited liability company (Gesellschaft mit beschränkter
Haftung) organised under the laws of the Federal Republic of Germany having its corporate seat
in Linnich, Germany and its business address at Rurstraße 58, 52441 Linnich, Germany, which is
registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of
Düren under HRB 3925 |
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presenting a power of attorney dated July 20, 2011, a copy of which, without Exhibit 1, is
attached to this deed, |
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k) |
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SIG Information Technology GmbH, a limited liability
company (Gesellschaft mit beschränkter
Haftung) organised under the laws of the Federal Republic of Germany having its corporate seat
in Linnich, Germany and its business address at Rurstraße 58, 52441 Linnich, Germany, which is
registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of
Düren under HRB 4050 |
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presenting a power of attorney dated July 20, 2011, a copy of which, without Exhibit 1, is
attached to this deed, |
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1) |
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SIG Combibloc GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung)
organised under the laws of the Federal Republic of Germany having its corporate seat in
Linnich, Germany and its business address at Rurstraße 58, 52441 Linnich, Germany, which is
registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of
Düren under HRB 5182 |
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presenting a power of attorney dated July 20, 2011, a copy of which, without Exhibit 1, is
attached to this deed, |
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m) |
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SIG Vietnam Beteiligungs GmbH, a limited liability company (Gesellschaft mit beschränkter
Haftung) organised under the laws of the Federal Republic of Germany having its corporate seat
in Waldshut-Tiengen, Germany and its business address at Weilheimer Straße 5, 79761
Waldshut-Tiengen, Germany, which is registered in the commercial register (Handelsregister) of
the local court (Amtsgericht) of Freiburg i. Br. under HRB 621587 |
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presenting a power of attorney dated July 20, 2011, a copy of which, without Exhibit 1, is
attached to this deed, |
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n) |
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Pactiv Deutschland Holdinggesellschaft mbH, a limited liability company (Gesellschaft mit
beschränkter Haftung) organised under the laws of the Federal Republic of Germany, having its
business address at Friedensallee 23-25, 22765 |
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Hamburg, Germany, which is registered in the commercial register (Handelsregister) of the
local court (Amtsgericht) of Hamburg under HRB 71774 |
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presenting a power of attorney undated, a copy of which, without Exhibit 1, is attached to
this deed, |
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o) |
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Omni-Pac Ekco GmbH Verpackungsmittel, a limited liability company (Gesellschaft mit
beschränkter Haftung) organised under the laws of the Federal Republic of Germany, having
its corporate seat in Hamburg, Germany and its business address at Friedensallee 23-25,
22765 Hamburg, Germany, which is registered in the commercial register (Handelsregister)
of the local court (Amtsgericht) of Hamburg under HRB 102663 |
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presenting a power of attorney undated, a copy of which, without Exhibit 1, is attached to
this deed, |
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p) |
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Omni-Pac GmbH Verpackungsmittel, a limited liability company (Gesellschaft mit
beschränkter Haftung) organised under the laws of the Federal Republic of Germany, having
its corporate seat in Elsfleth, Germany and its business address at Am Tidehafen 5, 26931
Elsfleth, Germany, which is registered in the commercial register (Handelsregister) of the
local court (Amtsgericht) of Oldenburg under HRB 201738 |
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presenting a power of attorney undated, a copy of which, without Exhibit 1, is attached to
this deed, |
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q) |
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Pactiv Hamburg Holdings GmbH, a limited liability company (Gesellschaft mit
beschränkter Haftung) organised under the laws of the Federal Republic of Germany having
its corporate
seat in Hamburg, Germany and its business address at Friedensallee 25, 22765 Hamburg,
Germany, which is registered in the commercial register (Handelsregister) of the local court
(Amtsgericht) of Hamburg under HRB 106481 |
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presenting a power of attorney undated, a copy of which, without Exhibit 1, is attached to
this deed, |
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r) |
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Pactiv Corporation, a company organised under the laws of Delaware, with the corporate
identity number 0624402 having its business address at 1900 West Field Court, Lake Forest,
IL 60045, USA |
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presenting a power of attorney undated, a copy of which is attached to this deed. |
The person appearing to 2. declared to make the following declarations not in her own name but,
excluding any personal liability, for and on behalf of
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The Bank of New York Mellon, having its business address at 1 Wall Street, New York, NY
10286, The United States of America, |
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presenting a power of attorney dated August 5, 2011, a copy of which is attached to this
deed. |
iv
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Neither the Notary nor the proxies assume any liability as to the validity and/or the scope of the
powers of attorney presented. |
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In the case a certified copy of the power/sub-power of attorney is attached to this deed, the
original was presented to the notary and it is herewith certified that the attached copies are true
and correct copies of the original powers/sub-powers of attorney presented to me. In the case only
a simple copy is attached, originals shall be provided to the notary in due course. Certified
copies thereof shall be sealed to the present deed. |
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The Notary convinced himself that the persons appearing are in adequate command of the English
language and declared that he is in command of the English language as well. |
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The persons appearing stated that the parties represented by them requested that this instrument be
recorded in the English language. |
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On being asked whether there had been any prior involvement by the Notary in terms of Section 3
para 1 no 7 of the German Notarisation Act (Beurkundungsgesetz) the provisions of which had been
explained by the Notary, the persons appearing said that there had been no such prior involvement. |
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The deponents, acting as aforesaid, then requested the notary to notarise the |
Share Pledge Agreements
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attached to this deed as appendices 1 to 9 with its schedules. These Share Pledge Agreements
with the exclusion of its table of contents form an integral part of this deed. |
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This deed with appendices 1 to 9 including their schedules 1 ans 2 but excluding their table of
contents ans schedule 3 of appendix 8 was read aloud by the notary to the deponents, was approved
by the deponents and was signed by the deponents and the notary in their own hands as follows: |
/s/ David Witzel
/s/ Tereza Sipkova
/s/ Dr. Olaf Gerber
v
Appendix 1
PACTIV HAMBURG HOLDINGS GMBH
PACTIV CORPORATION
as Pledgors
PACTIV DEUTSCHLAND HOLDINGGESELLSCHAFT MBH
as Company
THE BANK OF NEW YORK MELLON
as Collateral Agent and Pledgee
SHARE PLEDGE AGREEMENT RELATING TO
THE SHARES IN PACTIV DEUTSCHLAND
HOLDINGGESELLSCHAFT MBH
(Geschäftsanteilsverpfändung)
The taking of this document or any certified copy of it or any document which constitutes
substitute documentation for it, or any document which includes written confirmations or references
to it, into Austria as well as printing out any e-mail communication which refers to any Credit
Document (as defined in Clause 1 of this document) in Austria or sending any e-mail communication
to which a pdf scan of this document is attached to an Austrian addressee or sending any e-mail
communication carrying an electronic or digital signature which refers to any Credit Document to an
Austrian addressee may cause the imposition of Austrian stamp duty. Accordingly, keep the original
document as well as all certified copies thereof and written and signed references to it outside of
Austria and avoid printing out any email communication which refers to any Credit Document in
Austria or sending any e-mail communication to which a pdf scan of this document is attached to an
Austrian addressee or sending any e-mail communication carrying an electronic or digital signature
which refers to any Credit Document to an Austrian addressee.
Contents
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1. Definitions and Language |
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2. Pledged Shares |
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3. Pledge |
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4. Scope of the Pledges |
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5. Purpose of the Pledges |
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6. Exercise of Membership Rights |
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7. Enforcement of the Pledges |
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8. Limitations on Enforcement |
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9. Approval and Confirmation |
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10. Undertakings of each Pledgor |
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11. Delegation |
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12. Indemnity |
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13. No Liability |
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14. Duration and Independence |
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15. Release of Pledge {Pfandfreigabe) |
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16. Partial Invalidity; Waiver |
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17. Amendments |
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18. Notices and their Language |
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19. Notification |
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20. Applicable Law, Jurisdiction |
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Schedule 1 |
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Part 1 List of Current Borrowers |
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Part 2 List of Current Guarantors, Current 2009 Senior Secured
Notes Guarantors, Current October 2010 Secured Notes Guarantors
and Current February 2011 Secured Notes Guarantors |
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27 |
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Part 3 List of Current New Secured Notes Guarantors |
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32 |
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Part 4 Copy of shareholders List (Gesellschafterliste) |
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37 |
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This SHARE PLEDGE AGREEMENT (the “Agreement”) is made on September 8, 2011
BETWEEN:
| (1) |
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Pactiv Hamburg Holdings GmbH, a limited liability company (Gesellschaft mit beschränkter
Haftung) organised under the laws of the Federal Republic of Germany having its corporate seat
in Hamburg, Germany and its business address at Friedensallee 25, 22765 Hamburg, Germany,
which is registered in the commercial register (Handelsregister) of the local court
(Amtsgericht) of Hamburg under HRB 106481 (the “Pledgor 1”); |
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| (2) |
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Pactiv Corporation, a company organised under the laws of Delaware, with the corporate
identity number 0624402 having its business address at 1900 West Field Court, Lake Forest, IL
60045, USA, (the “Pledgor 2” and, together with Pledgor 1, the “Pledgors”); |
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| (3) |
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Pactiv Deutschland Holdinggesellschaft mbH, a limited liability company (Gesellschaft mit
beschränkter Haftung) organised under the laws of the Federal Republic of Germany having its
corporate seat in Hamburg, Germany and its business address at Friedensstraße 23-25, 22765
Hamburg, Germany, which is registered in the commercial register (Handelsregister) of the
local court (Amtsgericht) of Hamburg under HRB 71774 (the “Company); and |
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| (4) |
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The Bank of New York Mellon, having its business address at 1 Wall Street, New York, NY 10286,
The United States of America in its capacity as collateral agent under the First Lien
Intercreditor Agreement (as defined below) (the “Collateral Agent” or the “Pledgee”). |
WHEREAS:
| (A) |
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Pursuant to the second amended and restated senior secured multi-currency term and revolving
credit agreement dated 9 August 2011 of currently up to USD 4,445,000,000 and EUR 330,000,000
between, inter alia, the parties listed in Schedule 1 Part 1 hereto as current borrowers (the
“Current Borrowers”), the parties listed in Schedule 1 Part 2 hereto as current guarantors
(the “Current Guarantors”), Credit Suisse AG as administrative agent and others (as amended,
varied, novated, restated, supplemented, superseded or extended from time to time, the “Second
Amended and Restated Credit Agreement”), which amends and restates the multicurrency term and
revolving credit agreement dated 5 November 2009 between, inter alia, the Current Borrowers
and the Current Guarantors, Credit Suisse AG as administrative agent and others (as amended
and restated pursuant to the Second Amended and Restated Credit Agreement and as further
amended, varied, novated, restated, supplemented, superseded or extended from time to time,
hereinafter the “Credit Agreement”), certain lenders (together the “Original Lenders”) have
granted certain facilities to the Current Borrowers and certain other entities which may
accede or may have acceded to the Credit Agreement as additional borrowers. |
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| (B) |
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Pursuant to a senior secured notes indenture dated 5 November 2009 between, inter alia,
Reynolds Group Issuer LLC, Reynolds Group Issuer Inc., and Reynolds Group |
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Issuer (Luxembourg) S.A as ultimate issuers (the “Issuers”), certain affiliates of the
Issuers listed in Schedule 1 Part 2 hereto as current 2009 senior secured notes guarantors
(the “Current 2009 Senior Secured Notes Guarantors”) and The Bank of New York Mellon, as
indenture trustee, principal paying agent, transfer agent and registrar, (as amended,
varied, novated, supplemented, superseded or extended from time to time, the “2009 Senior
Secured Notes Indenture”), the Issuers have issued senior secured notes due 2016 in the
aggregate principal amount of USD 1,125,000,000 (the “US Secured Notes”) and senior secured
notes due 2016 in the aggregate principal amount of EUR 450,000,000 (the “Euro Secured
Notes” and together with the US Secured Notes the “2009 Senior Secured Notes”) to certain
noteholders. |
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Pursuant to a senior secured notes indenture dated 15 October 2010 between, inter alia, RGHL
US Escrow I LLC, RGHL US Escrow I Inc., and RGHL Escrow Issuer (Luxembourg) I S.A. as escrow
issuers (the “Escrow Issuers”), The Bank of New York Mellon as indenture trustee, The Bank of
New York Mellon, London Branch as principal paying agent, The Bank of New York Mellon as
collateral agent and Wilmington Trust (London) Limited as additional collateral agent (as
amended, varied, novated, supplemented, superseded or extended from time to time, the “October
2010 Secured Notes Indenture”), the Escrow Issuers have issued secured notes due 2019 in the
aggregate principal amount of USD 1,500,000,000 in escrow (the “October 2010 Secured Notes”).
In connection with the release from escrow of the proceeds of the October 2010 Secured Notes,
which occurred on 16 November 2010, the Escrow Issuers were merged with and into the Issuers,
with each of the Issuers surviving the applicable mergers or other transfers and assuming by
operation of law the obligations of the applicable Escrow Issuers with respect to the October
2010 Secured Notes Indenture and the October 2010 Secured Notes. Certain affiliates of the
Issuers listed in Schedule 1 Part 2 hereto have acceded to the October 2010 Secured Notes
Indenture as current October 2010 secured notes guarantors (the “Current October 2010
Secured Notes Guarantors”). |
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| (D) |
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Pursuant to a senior secured notes indenture dated 1 February 2011 between, inter alia, the
Issuers, The Bank of New York Mellon as indenture trustee, The Bank of New York Mellon, London
Branch as principal paying agent, The Bank of New York Mellon as collateral agent and
Wilmington Trust (London) Limited as additional collateral agent (as amended, varied, novated,
supplemented, superseded or extended from time to time, the “February 2011 Secured Notes
Indenture”), the Issuers have issued secured notes due 2021 in the aggregate principal amount
of USD 1,000,000,000 (the “February 2011 Secured Notes”) which are guaranteed by certain
affiliates of the Issuers listed in Schedule 1 Part 2 hereto as current February
2011 secured notes guarantors (the “Current February 2011 Secured Notes Guarantors”). |
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| (E) |
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The Pledgor has entered into the Existing Share Pledge Agreement (as defined below). |
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| (F) |
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Pursuant to a senior secured notes indenture dated 9 August 2011 between, inter alia, the
RGHL US Escrow II LLC and RGHL US Escrow II Inc. as escrow issuers (the |
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“August 2011 Escrow Issuers”), The Bank of New York Mellon as indenture trustee, The Bank
of New York Mellon, London Branch as principal paying agent, The Bank of New York Mellon as
collateral agent and Wilmington Trust (London) Limited as additional collateral agent (as
amended, varied, novated, supplemented, superseded or extended from time to time, the “New
Secured Notes Indenture”), the August 2011 Escrow Issuers have issued senior secured notes
due 2019 in the aggregate principal amount of USD 1,500,000,000 (the “New Secured Notes”).
In connection with the release from escrow of the proceeds of the New Secured Notes, RGHL
US Escrow II Inc. and RGHL US Escrow II LLC shall be merged with and into Reynolds Group
Issuer Inc. and Reynolds Group Issuer LLC (together with Reynolds Group Issuer (Luxembourg)
S.A. the “August 2011 Ultimate Issuers”), respectively, and the obligations of the August
2011 Escrow Issuers shall be assumed by the August 2011 Ultimate Issuers pursuant to one or
more supplemental indentures between, among others, the August 2011 Escrow Issuers, the
August 2011 Ultimate Issuers, The Bank of New York Mellon, as trustee, principal paying
agent, transfer agent, registrar and collateral agent and Wilmington Trust (London)
Limited, as additional collateral agent. At such time certain affiliates of the August 2011
Ultimate Issuers listed in Schedule 1 Part 3 hereto as current new secured notes guarantors
(the “Current New Secured Notes Guarantors”) will accede to the New Secured Notes
Indenture). |
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| (G) |
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As a result of the Second Amended and Restated Credit Agreement and the amendment No. 6 and
incremental term loan assumption agreement dated 9 August 2011 between, inter alia, the
Current Borrowers, the Current Guarantors, Credit Suisse AG as administrative agent and others
(the “Amendment No. 6 and Incremental Term Loan Assumption Agreement”) certain lenders have
agreed to grant incremental term loans in an aggregate amount of up to USD 2,000,000,000. |
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| (H) |
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The Pledgors have agreed to grant an additional pledge (subject to the pledges arising under
the Existing Share Pledge Agreement (as defined below)) over their respective Shares (as
defined below) in the Company as security for the Pledgee’s respective claims against the
Grantors (as defined below) (or any of them) in respect of the Obligations (as defined below). |
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| (I) |
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The security created by or pursuant to this Agreement is to be administered by the Collateral
Agent for the Secured Parties (as defined below) pursuant to a first lien intercreditor
agreement dated 5 November 2009 (as amended by the Amendment No. 1 and Joinder Agreement (as
defined below)) between, inter alia, the Collateral Agent, the Indenture Trustee, the
Administrative Agent and the Grantors (each as defined below) and others (as amended, varied,
novated, supplemented, superseded or extended from time to time, the “First Lien Intercreditor
Agreement”). |
NOW, IT IS AGREED as follows:
| 1. |
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DEFINITIONS AND LANGUAGE |
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| 1.1 |
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In this Agreement: |
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“Administrative Agent” means Credit Suisse AG, Cayman Islands Branch, having its business
address at Eleven Madison Avenue, New York, NY 10010, United States of America in its capacity as
administrative agent under the Credit Agreement and any successor appointed as administrative agent
under the Credit Agreement. |
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“Amendment No.1 and Joinder Agreement” means the joinder agreement dated 21 January 2010 relating
to the First Lien Intercreditor Agreement made among (amongst others) the Collateral Agent,
Wilmington Trust (London) Limited, Credit Suisse AG and Reynolds Group Holdings Limited pursuant to
which Wilmington Trust (London) Limited is appointed as additional collateral agent and became
party to the First Lien Intercreditor Agreement. |
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“Borrowers” means the Current Borrowers and any entity which may accede to the Credit Agreement as
an additional borrower and “Borrower” means any of them. |
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“Cash Management Bank” shall mean Citibank N.A., Banco Nacional De Mexico S.A., Citibank
International PLC, UK, Citibank (China) Co., Limited, Citibank Global Markets Deutschland AG & Co
KGaA, Citibank ZRT, Hungary, a Lender, the Administrative Agent or any of the Lender’s or the
Administrative Agent’s affiliates (at the time the cash management services arrangement is entered
into) provided in each case it has become a party to, or by execution of an additional bank secured
party acknowledgment has agreed to be bound by the terms of, the First Lien Intercreditor Agreement
in its capacity as cash management bank. |
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“Cash Management Services” shall mean any agreement or arrangement by a Cash Management Bank to
provide any composite accounting or other cash pooling arrangements and netting, overdraft
protection and other arrangements with any bank arising under standard business terms of such Cash
Management Bank to a Grantor. |
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“Credit Documents” shall mean the Loan Documents, the 2009 Senior Secured Notes Documents, the
October 2010 Secured Notes Documents, the February 2011 Secured Notes Documents and the New Secured
Notes Documents. |
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“Enforcement Event” shall mean an Event of Default. |
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“Event of Default” means any event of default (Kündigungsgrund) under the Credit
Agreement and/or the 2009 Senior Secured Notes Indenture and/or the October 2010 Secured Notes
Indenture and/or the February 2011 Secured Notes Indenture and/or the New Secured Notes Indenture. |
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“Existing Intercreditor Agreement” means the existing intercreditor agreement dated 11 May 2007 (as
amended by a letter dated 21 June 2007 and a further letter dated 29 June 2007, as amended and
restated on 5 November 2009 and as further amended on 5 November 2010) between, inter alia,
Beverage Packaging Holdings (Luxembourg) I S.A., Rank Group Holdings Limited (now Reynolds Group
Holdings Limited), Beverage Packaging Holdings (Luxembourg) II S.A., Beverage Packaging Holdings
(Luxembourg) III S.à r.l., Credit Suisse AG (formerly Credit Suisse) as security trustee
and others. |
- 6 -
| |
|
“Existing Shares 1” has the meaning given to such term in sub-Clause 2.1 hereof. |
| |
| |
|
“Existing Share 2” has the meaning given to such term in sub-Clause 2.1 hereof. |
| |
| |
|
“Existing Shares” has the meaning given to such term in sub-Clause 2.1 hereof. |
| |
| |
|
“Existing Share Pledge Agreement” means the share pledge agreement dated 2 March 2011 entered into
between Pactiv Hamburg Holdings GmbH and Pactiv Corporation as pledgors and The Bank of New York
Mellon as collateral agent and as pledgee |
| |
| |
|
“February 2011 Secured Notes Documents” shall mean the February 2011 Secured Notes Indenture, the
February 2011 Secured Notes Guarantees, the February 2011 Secured Notes, the Intercreditor
Arrangements, any supplemental indenture, any security document relating to the February 2011
Secured Notes and/or the February 2011 Secured Notes Indenture and any other document that may be
entered into pursuant to any of the foregoing. |
| |
| |
|
“February 2011 Secured Notes Guarantees” shall mean the guarantees of the obligations of the
Issuers under the February 2011 Secured Notes and the February 2011 Secured Notes Indenture by the
February 2011 Secured Notes Guarantors. |
| |
| |
|
“February 2011 Secured Notes Guarantors” means the Current February 2011 Secured Notes Guarantors
and any entity which may accede to the February 2011 Secured Notes Indenture as additional
guarantor. |
| |
| |
|
“February 2011 Secured Notes Holders” shall mean the holders from time to time of the February 2011
Secured Notes. |
| |
| |
|
“February 2011 Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its
capacity as indenture trustee under the February 2011 Secured Notes Indenture and any successor
appointed as indenture trustee under the February 2011 Secured Notes Indenture. |
| |
| |
|
“Future Shares 1” means all additional shares in the capital of the Company (irrespective of their
nominal value) which the Pledgor 1 may acquire in the future in the event of a share transfer, a
share split, a share combination, an increase of the capital of the Company (including by way of
authorised capital (genehmigtes Kapital) or otherwise. |
| |
| |
|
“Future Shares 2” means all additional shares in the capital of the Company (irrespective of their
nominal value) which the Pledgor 2 may acquire in the future in the event of a share transfer, a
share split, a share combination, an increase of the capital of the Company (including by way of
authorised capital (genehmigtes Kapital) or otherwise. |
| |
| |
|
“Future Shares” means the Future Shares 1 and the Future Shares 2 referred to collectively and
“Future Share” means any of them. |
- 7 -
| |
|
“Grantors” means the Loan Parties, the Issuers, the 2009 Senior Secured Notes Guarantors, the
October 2010 Secured Notes Guarantors, the February 2011 Secured Notes Guarantors and the New
Secured Notes Guarantors and any person that has granted a security interest to the Collateral
Agent and/or the Secured Parties in respect of the obligations of the Loan Parties, the Issuers and
the 2009 Senior Secured Notes Guarantors, the October 2010 Secured Notes Guarantors, the February
2011 Secured Notes Guarantors and the New Secured Notes Guarantors under the Credit Documents and
“Grantor” means any of them. |
| |
| |
|
“Grantors’ Agent” shall mean Reynolds Group Holdings Limited or any other person appointed as agent
of the Grantors in accordance with the Principal Finance Documents. |
| |
| |
|
“Group” means Reynolds Group Holdings Limited and its direct or indirect subsidiaries
(Tochtergesellschaften). |
| |
| |
|
“Hedge Counterparty” means a Lender, the Administrative Agent or any of the Lender’s or the
Administrative Agent’s affiliates (at the time a hedging agreement is entered into) who has entered
into a hedging agreement for the purpose of hedging interest rate liabilities and/or any exchange
rate and/or commodity price risks provided it has become a party, or by execution of an additional
bank secured party acknowledgment has agreed to be bound by the terms of, to the First Lien
Intercreditor Agreement in its capacity as hedge counterparty. |
| |
| |
|
“Incremental Assumption Agreement” shall mean an incremental assumption agreement relating to
incremental facilities of up to USD 2,000,000,000 among, and in form and substance reasonably
satisfactory to, one or more Borrowers, the Administrative Agent, one or more Incremental Term
Lenders and/or one or more Incremental Revolving Credit Lenders pursuant to which one or more
Incremental Term Lenders make available Incremental Term Loan Commitments and/or one or more
Incremental Revolving Credit Lenders make available Incremental Revolving Credit Commitments
respectively. |
| |
| |
|
“Incremental Revolving Credit Lender” shall mean a Lender with an Incremental Revolving Credit
Commitment or an outstanding revolving loan under the Credit Agreement of any class as a result of
an Incremental Revolving Credit Commitment. |
| |
| |
|
“Incremental Revolving Credit Commitment” shall mean the commitment of any Lender, established
pursuant to the Credit Agreement, to make available certain revolving credit loans to one or more
Borrowers. |
| |
| |
|
“Incremental Term Lender” shall mean a Lender with an Incremental Term Loan Commitment. |
| |
| |
|
“Incremental Term Loan Commitment” shall mean the commitment of any Lender, established pursuant to
the Credit Agreement, to make available certain term loans to one or more Borrowers. |
- 8 -
| |
|
“Indenture Trustee” shall mean The Bank of New York Mellon, in its capacity as indenture trustee
under the 2009 Senior Secured Notes Indenture and any successor appointed as indenture trustee
under the 2009 Senior Secured Notes Indenture. |
| |
| |
|
“Intercreditor Arrangements” means the First Lien Intercreditor Agreement and the Existing
Intercreditor Agreement, in each case as amended, novated, supplemented, restated, or modified from
time to time. |
| |
| |
|
“Issuing Bank” means Credit Suisse AG or any other Lender or any affiliate of Credit Suisse AG or
any other Lender that issues letters of credit or bank guarantees under the Credit Agreement. |
| |
| |
|
“Lenders” shall mean the Original Lenders and any entity which may become a lender under the Credit
Agreement in the future and “Lender” means any of them. |
| |
| |
|
“Loan Documents” shall mean the Credit
Agreement, the Amendment No.1 and Joinder Agreement, the
Second Amended and Restated Credit Agreement and the Amendment No. 6 and Incremental Term Loan
Assumption Agreement, any borrowing subsidiary agreement and/or guarantor joinder agreement
relating to the Credit Agreement, any letter of credit or bank guarantee relating to the Credit
Agreement, any security documents relating to the Credit Agreement, any hedging agreement entered
into by a Hedge Counterparty and a Grantor, each Incremental Assumption Agreement, the
Intercreditor Arrangements, each Promissory Note, any agreement between a Grantor and a Cash
Management Bank relating to Cash Management Services, each Local Facility Agreement and any other
document that may be entered into pursuant to any of the foregoing in relation to the Credit
Agreement. |
| |
| |
|
“Loan Parties” shall mean the Borrowers, the Current Guarantors and any entity which may accede to
the Credit Agreement as additional guarantor and a “Loan Party” means any of them. |
| |
| |
|
“Local Facilities” means working capital facilities provided to a Grantor (other than Beverage
Packaging Holdings (Luxembourg) I S.A., Beverage Packaging Holdings (Luxembourg) II S.A. Beverage
Packaging Holdings (Luxembourg) III S.à r.l. and the Borrowers) by a Local Facility
Provider and “Local Facility” means any of them. |
| |
| |
|
“Local Facility Agreements” shall mean any agreement under which a Local Facility is made
available. |
| |
| |
|
“Local Facility Provider” means HSBC Trinkaus & Burkhardt AG, Deutsche Bank AG, Commerzbank
Aktiengesellschaft and Hong Kong and Shanghai Banking Corporation Ltd., Thailand, Bank of America,
N.A., Canada Branch, FIA Card Services, N.A., Citibank N.A., Citibank (China) Co., Ltd., Banco
Nacional de Mexico, S.A., Integrante del Grupo Financiero Banamex, Bank of America, N.A., provided
in each case it has become a party to, or by execution of an additional bank secured party
acknowledgment has agreed to be bound by the terms of, the First Lien Intercreditor Agreement in
its capacity as local facility provider. |
- 9 -
| |
|
“New Secured Notes Documents” shall mean the New Secured Notes Indenture, the New Secured Notes
Guarantees, the New Secured Notes, the Intercreditor Arrangements, any supplemental indenture, any
security document relating to the New Secured Notes and/or the New Secured Notes Indenture and any
other document that may be entered into pursuant to any of the foregoing, |
| |
| |
|
“New Secured Notes Guarantees” shall mean the guarantees of the obligations of the August 2011
Escrow Issuers and/or of the August 2011 Ultimate Issuers under the New Secured Notes and the New
Secured Notes Indenture by the New Secured Notes Guarantors. |
| |
| |
|
“New Secured Notes Guarantors” means the Current New Secured Notes Guarantors and any entity which
may accede to the New Secured Notes Indenture as additional guarantor. |
| |
| |
|
“New Secured Notes Holders” shall mean the holders from time to time of the New Secured Notes. |
| |
| |
|
“New Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its capacity as
indenture trustee under the New Secured Notes Indenture and any successor appointed as indenture
trustee under the New Secured Notes Indenture. |
| |
| |
|
“Obligations” shall mean all present and future obligations and liabilities (whether actual or
contingent and whether owed jointly or severally or in any other capacity whatsoever) of each
Grantor to the Pledgee under each or any of the Credit Documents (including, but not limited to,
the Parallel Obligations), including with respect to all costs, charges and expenses incurred by
the Pledgee in connection with the protection, preservation or enforcement of its rights under the
Credit Documents or any other document evidencing or securing any such liabilities. The Obligations
shall further include any obligation based on unjust enrichment (ungerechtfertigte Bereicherung) or
tort (Delikt). |
| |
| |
|
“October 2010 Secured Notes Documents” shall mean the October 2010 Secured Notes Indenture, the
October 2010 Secured Notes Guarantees, the October 2010 Secured Notes, the Intercreditor
Arrangements, any supplemental indenture relating to the October 2010 Secured Notes Indenture, any
security document relating to the October 2010 Secured Notes and/or the October 2010 Secured Notes
Indenture and any other document that may be entered into pursuant to any of the foregoing. |
| |
| |
|
“October 2010 Secured Notes Guarantees” shall mean the guarantees of the obligations of the Issuers
under the October 2010 Secured Notes and the October 2010 Secured Notes Indenture by the October
2010 Secured Notes Guarantors. |
| |
| |
|
“October 2010 Secured Notes Guarantors” means the Current October 2010 Secured Notes Guarantors and
any entity which may accede to the October 2010 Secured Notes Indenture as additional guarantor. |
- 10 -
| |
|
“October 2010 Secured Notes Holders” shall mean the holders from time to time of the October 2010
Secured Notes. |
| |
| |
|
“October 2010 Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its
capacity as indenture trustee under the October 2010 Secured Notes Indenture and any successor
appointed as indenture trustee under the October
2010 Secured Notes Indenture. |
| |
| |
|
“Parallel Obligations” means the independent obligations of any of the Grantors arising pursuant to
the First Lien Intercreditor Agreement to pay to the Collateral Agent sums equal to the sums owed
by such Grantor to the other Secured Parties (or any of them) under the Credit Documents. |
| |
| |
|
“Pledge 1” and “Pledges 1” have the meanings given to such terms in sub-Clause 3.1. |
| |
| |
|
“Pledge 2” and “Pledges 2” have the meanings given to such terms in sub-Clause 3.1. |
| |
| |
|
“Pledges” means the Pledges 1 and the Pledges 2 referred to collectively and “Pledge” means any of
them. |
| |
| |
|
“Principal Finance Documents” means the Credit Agreement, the 2009 Senior Secured Notes Indenture,
the October 2010 Secured Notes Indenture, the February
2011 Secured Notes Indenture, the New Secured Notes Indenture and the First Lien
Intercreditor Agreement. |
| |
| |
|
“Promissory Note” shall mean any promissory note executed and delivered by a Borrower upon the
request of a Lender evidencing the amount of principal owed by such Borrower to such Lender under
the Credit Agreement. |
| |
| |
|
“Secured Parties” shall mean the Lenders (including in their capacity as issuing bank(s), and/or
Hedge Counterparties under the Credit Agreement), the Hedge Counterparties, the Administrative
Agent, any Issuing Bank, the beneficiaries of each indemnification obligation undertaken by any
Grantor under any Credit Document, the 2009 Senior Secured Notes Holders, the October 2010 Secured
Notes Holders, the February 2011 Secured Notes Holders and the New Secured Notes Holders, the
Indenture Trustee, the October 2010 Secured Notes Indenture Trustee, the February 2011 Secured
Notes Indenture Trustee and the New Secured Notes Indenture Trustee, the Collateral Agent, the
Local Facility Providers and the Cash Management Banks. |
| |
| |
|
“2009 Senior Secured Notes Documents” shall mean the 2009 Senior Secured Notes Indenture, the 2009
Senior Secured Notes Guarantees, the 2009 Senior Secured Notes, the Intercreditor Arrangements, any
supplemental indenture, any security document relating to the 2009 Senior Secured Notes and/or the
2009 Senior Secured Notes Indenture and any other document that may be entered into pursuant to any
of the foregoing. |
- 11 -
| |
|
“2009 Senior Secured Notes Guarantees” shall mean the guarantees of the obligations of the
Issuers under the 2009 Senior Secured Notes and the 2009 Senior Secured Notes Indenture by
the 2009 Senior Secured Notes Guarantors. |
| |
| |
|
“2009 Senior Secured Notes Guarantors” means the Current 2009 Senior Secured Notes
Guarantors and any entity which may accede to the 2009 Senior Secured Notes Indenture as
additional guarantor. |
| |
| |
|
“2009 Senior Secured Notes Holders” shall mean the holders from time to time of the 2009
Senior Secured Notes. |
| |
| |
|
“Shares 1” means the Existing Shares 1 and the Future Shares 1. |
| |
| |
|
“Shares 2” means the Existing Share 2 and the Future Shares 2. |
| |
| |
|
“Shares” means the Existing Shares and Future Shares. |
| |
| 1.2 |
|
Construction |
| |
| |
|
In this Agreement any reference to a “Clause”, a “sub-Clause” or a “Schedule” shall,
subject to any contrary indication, be construed as a reference to a Clause, a sub-Clause
or a Schedule hereof. |
| |
| 1.3 |
|
This Agreement is made in the English language. For the avoidance of doubt, the
English language version of this Agreement shall prevail over any translation of this
Agreement. However, where a German translation of a word or phrase appears in the
text of this Agreement, the German translation of such word or phrase shall prevail. |
| |
| 2. |
|
PLEDGED SHARES |
| |
| 2.1 |
|
The Company has a nominal share capital (Stammkapital) of EUR 25,000 (in words:
Euro twenty five thousand) which is divided into three shares, |
| |
| |
|
persisting of one share with a nominal amount (Nennbetrag) of EUR 5,750 (in words: Euro
five thousand seven hundred fifty) carrying the serial number (laufende Nummer) 1 and one
share with the nominal amount of EUR 17,750 (in words: Euro seventeen thousand seven
hundred fifty) carrying the serial number (laufende Nummer) 2 (the “Existing Shares 1”),
and |
| |
| |
|
one share with the nominal amount of EUR 1,500 (in words: Euro one thousand five hundred)
carrying the serial number (laufende Nummer) 3 (the “Existing Share 2”), |
| |
| |
|
(the Existing Shares 1 and the Existing Share 2 are together the “Existing Shares”). |
| |
| 2.2 |
|
Pledgor 1 is the owner of the Existing Shares 1 and Pledgor 2 is the owner of the
Existing Share 2 and both Pledgors are registered as such in the shareholders list
(Gesellschafterliste) of the Company as filed (aufgenommen) with the commercial
register (Handelsregister), a copy of which is attached as Schedule 1 Part 4 (Copy of
Shareholders List). |
- 12 -
| 3. |
|
PLEDGE |
| |
| 3.1 |
|
Pledgor 1 hereby pledges to the Pledgee the Shares 1 together with all ancillary rights and
claims associated with the Shares as more particularly specified in Clause 4 (each a “Pledge
1” and together the “Pledges 1”). |
| |
| 3.2 |
|
Pledgor 2 hereby pledges to the Pledgee the Shares 2 together with all ancillary rights and
claims associated with the Shares as more particularly specified in Clause 4 (each a “Pledge
2” and together the “Pledges 2”). |
| |
| 3.3 |
|
The Pledgee hereby accepts the Pledges. |
| |
| 3.4 |
|
The Pledges are in addition, and without prejudice, to any other security the Secured Parties
may now or hereafter hold in respect of the Obligations. |
| |
| 4. |
|
SCOPE OF THE PLEDGES |
| |
| 4.1 |
|
The Pledges constituted by this Agreement include: |
| |
(a) |
|
the present and future rights to receive: |
| |
(i) |
|
dividends attributable to the Shares, if any; and |
| |
| |
(ii) |
|
liquidation proceeds, redemption proceeds (Einziehungsentgelt) repaid
capital in case of a capital decrease, any compensation in case of
termination (Kündigung) and/or withdrawal (Austritt) of a shareholder
of the Company, the surplus in case of surrender (Preisgabe) any
repayment claim for any additional capital contributions (Nachschüsse)
and all other pecuniary claims associated with the Shares; |
| |
(b) |
|
the right to subscribe for newly issued shares; and |
| |
| |
(c) |
|
all other rights and benefits attributable to the Shares capable of being pledged
(verpfändbar) (including without limitation all present and future pecuniary claims of
any Pledgor against the Company arising under or in connection with any domination and/or profit
transfer agreement (Beherrschungs-und/oder Gewinnabführungsvertrag) or partial profit
transfer agreement (Teilgewinnabführungsvertrag) which may be entered into between any
Pledgor and the Company). |
| 4.2 |
|
Notwithstanding that the items set out in Clause 4.1 above are pledged hereunder,
each Pledgor shall be entitled to receive and retain the items set out in Clause 4.1 in
respect of, and otherwise deal (in accordance with the agreements between the
parties) with all items described in Clause 4.1 hereof in respect of the Shares at all
times other than any time the Pledgee is entitled to enforce the Pledges constituted
hereunder. |
- 13 -
| 4.3 |
|
On the date and during the period in which the Pledgee is entitled, in accordance with Clause
7 (Enforcement of the Pledges) hereof, to enforce the Pledges (or any part thereof): |
| |
(a) |
|
all dividends paid or payable and any other property received, receivable or
otherwise distributed in respect of or in exchange for the Shares; |
| |
| |
(b) |
|
all dividends or other distributions or payments paid or payable in respect
of the Shares in connection with the partial or total liquidation or dissolution of
the Company or in connection with the reduction of the amount of the registered share
capital of the Company; and |
| |
| |
(c) |
|
all cash paid, payable or otherwise distributed in respect of the principal
of, or in redemption of, or in exchange for the Shares, |
| |
|
shall be forthwith delivered to the Pledgee and held as security for and on behalf of the
Secured Parties, If such proceeds or property are received by any Pledgor, they shall be
received as trustee for the benefit of the Pledgee and shall be segregated from other
property or funds of the respective Pledgor and shall be forthwith delivered to the Pledgee
as security in the form so received (with any necessary endorsement). |
| |
| 5 |
|
PURPOSE OF THE PLEDGES |
| |
| |
|
The Pledges hereunder are constituted in order to secure the prompt and complete satisfaction of
any and all Obligations. The Pledges shall also cover any future extension of the Obligations and
each Pledgor herewith expressly agrees that the provisions of Section 1210 para 1 sentence 2 of the
German Civil Code (Bürgerliches Gesetzbuch) shall not apply to this Agreement. |
| |
| 6. |
|
EXERCISE OF MEMBERSHIP RIGHTS |
| |
| |
|
The membership rights, including the voting rights, attached to the Shares remain with the
respective Pledgor. Each Pledgor may exercise its membership rights in any manner which
does not adversely affect the validity and enforceability of the Pledges, the existence of
all or part of the Shares or cause an Event of Default to occur. Each Pledgor undertakes,
unless otherwise agreed between the parties, that no resolutions will be passed which
would, if passed, constitute a breach of its obligations under Clause 10 or any other
obligation under this Agreement. |
| |
| 7. |
|
ENFORCEMENT OF THE PLEDGES |
| |
| 7.1 |
|
If (i) an Enforcement Event has occurred and is continuing and (ii) the requirements set
forth in Sections 1273 para 2, 1204 et seq. of the German Civil Code with regard to the
enforcement of the Pledges are met (Pfandreife), in particular, if any of the Obligations have
become due and payable, then in order to enforce the Pledges, the Pledgee (acting on the
instructions of the Secured Parties) may at any time thereafter avail itself of all rights and
remedies that a pledgee has against a pledgor under the laws of the Federal Republic of
Germany. |
- 14 -
| 7.2 |
|
Notwithstanding Section 1277 of the German Civil Code, the Pledgee is entitled to exercise
its rights without obtaining enforceable judgment or other instrument (vollstreckbarer Titel).
The Pledgee shall be entitled to have the Pledges enforced in any manner allowed under the
laws of the Federal Republic of Germany, in particular have the Pledges sold (including at
public auction). |
| |
| 7.3 |
|
Each Pledgor hereby expressly agrees that 5 (five) business days’ prior written notice to the
respective Pledgor of the place and time of any such sale shall be sufficient and the Pledgee
shall not be obliged to deliver any further notices (including, but not limited to the notices
set out under Section 1234 of the German Civil Code) to the respective Pledgor prior to such
sale. The sale may take place at any place in the Federal Republic of Germany designated by
the Pledgee. |
| |
| 7.4 |
|
If the Pledgee (acting on the instructions of the Secured Parties) should seek to enforce the
Pledges under sub-Clause 7.1, each Pledgor shall, at its own expense, render forthwith all
necessary assistance in order to facilitate the prompt sale of the Shares or any part thereof
and/or the exercise by the Pledgee of any other right it may have as Pledgee. |
| |
| 7.5 |
|
Whilst the requirements for enforcement under sub-Clause 7.1 are continuing, all subsequent
dividend payments attributable to the Shares and all payments based on similar ancillary
rights attributed to the Shares may be applied by the Pledgee in satisfaction in whole or in
part of the Obligations or treated as additional collateral. |
| |
| 7.6 |
|
Even if the requirements for enforcement referred to under sub-Clause 7.1 above are met, the
Pledgee shall not, whether as proxy or otherwise, be entitled to exercise the voting rights
attached to the Shares. However, each Pledgor shall, during the continuation of an event which
allows the Pledgee to enforce the Pledges, have the obligations and the Pledgee shall have the
rights set forth in sub-Clause 10.6 below regardless of which resolutions are intended to be
adopted. |
| |
| 7.7 |
|
The Pledgee may, in its sole discretion, determine which of several security interests, if
applicable, shall be used to satisfy the Obligations. Each Pledgor hereby expressly waives its
right pursuant to Section 1230 sentence 2 of the German Civil Code to limit the realisation of
the Pledges and pledges over the shares or partnership interests in one or more other
companies to such number of pledges as are necessary to satisfy the Obligations and agrees
further that the Pledgee may decide to enforce the Pledges over the shares in the Company
individually in separate proceedings or together with pledges over shares or partnership
interests in one or more other companies at one single proceeding (Gesamtverwertung). |
| |
| 7.8 |
|
Each Pledgor hereby expressly waives all defences of revocation (Einrede der Anfechtbarkeit)
and set-off (Einrede der Aufrechenbarkeit) pursuant to Sections 770, 1211 of the German Civil
Code. |
| |
| 7.9 |
|
Each Pledgor hereby expressly waives its defences based on defences any Grantor might have
against any of the Obligations (Einreden des Hauptschuldners) pursuant to Section 1211 para 1
sentence 1 alternative 1 of the German Civil Code. |
- 15 -
| 7.10 |
|
If the Pledges are enforced or if any Pledgor has discharged
any of the Obligations (or any part of them), Section 1225 of the German Civil
Code (legal subrogation of claims to a pledgor —
Forderungsübergang auf den Verpfänder) shall not apply and no rights of the Pledgee shall pass to the
respective Pledgor by subrogation or otherwise. Further, the Pledgors shall at
no time before, on or after an enforcement of the Pledges and as a result of
the Pledgors entering into this Agreement, be entitled to demand
indemnification or compensation from the Company or the Company’s affiliates or
to assign any of these claims. |
| |
| 8. |
|
LIMITATIONS ON ENFORCEMENT |
| |
| 8.1 |
|
The Pledgee shall be entitled to apply proceeds of an
enforcement of the Pledges 1
towards satisfaction of the Obligations without limitation in respect of: |
| |
(a) |
|
all and any amounts which are owed under the
Credit Documents by Pledgor 1 itself, the Company or by any of their
subsidiaries; and |
| |
| |
(b) |
|
all and any amounts which correspond to funds
that have been borrowed or otherwise raised under the Credit Documents,
in each case to the extent borrowed, on-lent or otherwise passed on to,
or issued for the benefit of, Pledgor 1, the Company or any of their
subsidiaries, or for the benefit of any of their creditors and in each
case not repaid and outstanding from time to time |
| |
|
(in aggregate, the “Unlimited Enforcement Amount”). |
| |
| 8.2 |
|
Besides an application of proceeds from an enforcement of the
Pledges 1 towards
satisfaction of the Obligations in respect of the Unlimited Enforcement
Amount
pursuant to Clause 8.1 above, the Pledgee shall not be entitled to apply
proceeds of an
enforcement of the Pledges 1 towards satisfaction of the Obligations but
shall return
to Pledgor 1 proceeds of an enforcement of the Pledges 1 if and to the
extent that: |
| |
(a) |
|
the Pledges 1 secure the obligations of a
Grantor which is (x) a shareholder of Pledgor 1 or (y) an affiliated
company (verbundenes Unternehmen) within the meaning of section 15 of
the German Stock Corporation Act (Aktiengesetz) of a shareholder of
Pledgor 1 (other than Pledgor 1 and its subsidiaries); and |
| |
| |
(b) |
|
the application of proceeds of an enforcement
of the Pledges 1 towards the Obligations would have the effect of (x)
reducing Pledgor l’s net assets (Reinvermögen) (the “Net Assets”) to an
amount of less than its stated share capital (Stammkapital) or, if the
Net Assets are already an amount of less than its stated share capital,
of causing such amount to be further reduced and (y) would thereby
affect the assets required for the obligatory preservation of Pledgor
l’s stated share capital (Stammkapital) according to section 30, 31
German Limited Liability Companies Act (Gesetz betreffend die
Gesellschaften mit beschränkter Haftung) provided that the amount of
the stated share capital to be taken into consideration shall be the
amount registered in the commercial register at the date hereof, and
any increase of the stated share capital registered after the date of
this Agreement shall only be |
- 16 -
| |
|
|
taken into account if such increase has been effected with the prior written
consent of the Collateral Agent. |
| 8.3 |
|
The Net Assets shall be calculated as an amount equal to the sum of the values of
Pledgor l’s assets (consisting of all assets which correspond to the items set forth in
section 266 sub-section(2) A, B and C of the German Commercial Code
(Handelsgesetzbuch) less the aggregate amount of Pledgor l’s liabilities (consisting of
all liabilities and liability reserves which correspond to the items set forth in section
266 sub-section (3) B, C and D of the German Commercial Code), save that: |
| |
(a) |
|
any asset that is shown in the balance sheet with a book value (Buchwert) that
is significantly lower than the market value of such asset and that is not necessary
for Pledgor l’s business (nicht betriebsnotwendig) shall be taken into account with its
market value; |
| |
| |
(b) |
|
obligations under loans provided to Pledgor 1 by any member of the Group or any
other affiliated company shall not be taken into account as liabilities as far as such
loans are subordinated by law or by contract at least to the claims of the
unsubordinated creditors of Pledgor 1; and |
| |
| |
(c) |
|
obligations under loans or other contractual liabilities incurred by Pledgor 1
in violation of the provisions of the Credit Documents shall not be taken into account
as liabilities. |
| |
|
The Net Assets shall be determined in accordance with the generally accepted accounting
principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung)
and be based on the same principles that were applied by Pledgor 1 in the preparation of its
most recent annual balance sheet (Jahresbilanz). |
| |
| |
|
It being understood that the assets of Pledgor 1 will be assessed at liquidation values
(Liquidationswerte) if the managing directors of Pledgor 1, at the time they prepare the
Management Determination (as defined below) are, due to factual or legal circumstances at
that time, in their opinion not able to make a positive prognosis as to whether the business
of Pledgor 1 can carry on as a going concern (positive Fortführungsprognose), in particular
when the Pledges 1 are enforced. |
| |
| 8.4 |
|
The limitations set out in Clause 8.2 above shall only apply if and to the extent that: |
| |
(a) |
|
without undue delay, but not later than within 5 business days, after receipt
of a notification by the Collateral Agent of its intention to enforce the Pledges 1
(the “Notice”), Pledgor 1 has confirmed in writing to the Collateral Agent (x) to what
extent such Pledges 1 are up-stream or cross-stream security as described in Clause 8.2
above and (y) which amount of proceeds of an enforcement of the Pledges 1 attributable
to the enforcement of such upstream or cross-stream security cannot be applied towards
satisfaction of the Obligations but would have to be returned to Pledgor 1 as it would
otherwise cause the Net Assets of Pledgor 1 to fall below its stated share capital
(taking |
- 17 -
| |
|
|
into account the adjustments set out in Clause 8.3 above) and such confirmation
is supported by evidence reasonably satisfactory to the Collateral Agent (the
“Management Determination”) and the Collateral Agent has not contested this and argued
that no or a lesser amount would be necessary to maintain Pledgor l’s stated share
capital; or |
| |
| |
(b) |
|
within 20 business days from the date the Collateral Agent has contested the
Management Determination, the Collateral Agent receives from Pledgor 1 an up to date
balance sheet prepared by a firm of auditors of international standard and
reputation (the “Determining Auditors”) which shows the value of Pledgor l’s Net
Assets (the “Balance Sheet”). The Balance Sheet shall be prepared in accordance with
the principles set out in Clause 8.3 above, provided that the final sentence of
Clause 8.3 above shall not apply unless the Determining Auditors have in an
independent assessment determined that the assets of Pledgor 1 should be evaluated
at liquidation values (Liquidationswerte) in accordance with the generally accepted
accounting principles applicable from time to time in Germany (Grundsätze
ordnungsmäßiger Buchführung) and shall contain further information (in reasonable
detail) relating to items to be adjusted pursuant to Clause 8.3 above. If Pledgor 1
fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee
shall be entitled to apply the proceeds of an enforcement of the Pledges 1 towards
satisfaction of the Obligations irrespective of the limitations set out in Clause
8.2 above. |
| 8.5 |
|
If the Pledgee disagrees with the Balance Sheet it shall be entitled to apply proceeds of an
enforcement of the Pledges 1 in satisfaction of the Obligations up to an amount which,
according to the Balance Sheet, can be applied in satisfaction of the Obligations in
compliance with the limitations set out in Clause 8.2 above. In relation to any additional
amounts for which Pledgor 1 is liable under this Agreement, the Pledgee shall be entitled to
further pursue its claims (if any) and Pledgor 1 shall be entitled to prove that this amount
is necessary for maintaining its stated share capital (calculated as of the date the Pledgee
has given notice that it intends to enforce the security created under this Agreement). |
| |
| 8.6 |
|
No reduction of the amount enforceable or applicable towards satisfaction of the Obligations
under this Clause 8 will prejudice the right of the Pledgee to continue enforcing the Pledges
1 (subject always to the operation of the limitations set out above at the time of such
enforcement) until full satisfaction to the claims secured. |
| |
| 9. |
|
APPROVAL AND CONFIRMATION |
| |
| |
|
Each Pledgor as the shareholders of the Company hereby approve the Pledges over the Shares
and over any and all ancillary rights and claims associated with the Shares (as more
particularly specified in Clause 4) and pursuant to the articles of association of the
Company the Pledges are not subject to any approval of the Company. |
- 18 -
| 10. |
|
UNDERTAKINGS OF EACH PLEDGOR |
| |
| |
|
Unless otherwise agreed between the parties, during the term of this Agreement, each
Pledgor undertakes to the Pledgee: |
| |
| 10.1 |
|
to promptly effect any contributions in cash (Bareinlage) or kind (Sacheinlage) to be made in
respect of the Shares; |
| |
| 10.2 |
|
to inform the Pledgee promptly of any change made in the registered share capital of the
Company, or any changes made to the articles of association of the Company which would
materially adversely affect the security interest of the Pledgee and in each such case to
promptly deliver to the Pledgee a copy of the updated shareholders list (Gesellschafterliste)
and a copy of the amended articles of association (Satzung) both as filed (aufgenommen) with
the commercial register (Handelsregister); |
| |
| 10.3 |
|
to promptly notify the Pledgee, by notification in writing of the registration of an
objection (Widerspruch) in relation to the Shares of the respective Pledgor in the
shareholders list (Gesellschafterliste) as filed (aufgenommen) with the commercial register
(Handelsregister). |
| |
| 10.4 |
|
to promptly notify the Pledgee, by notification in writing, of any attachment (Pfändung) in
respect of any of the Shares or any ancillary rights set out in sub-Clause 4.1 such notice to
be accompanied by any documents the Pledgee might need to defend itself against any claim of a
third party. In particular, the respective Pledgor shall promptly forward to the Pledgee a
copy of the attachment order (Pfändungsbeschluss), any transfer order (Überweisungsbeschluss)
and all other documents necessary for a defence against the attachment; |
| |
| 10.5 |
|
in the event of any increase in the capital of the Company, not to allow, without the prior
written consent of the Pledgee (such consent not to be unreasonably withheld), any party other
than himself to subscribe for any Future Shares, and not to defeat, impair or circumvent in
any way the rights of the Pledgee created hereunder; |
| |
| 10.6 |
|
to promptly inform the Pledgee, by notification in writing, of all matters concerning the
Company of which the respective Pledgor is aware which would materially adversely affect the
security interest of the Pledgee. In particular, the respective Pledgor shall notify the
Pledgee, by notification in writing, forthwith of any shareholders’ meeting at which a
shareholders’ resolution is intended to be adopted which would have a materially adverse
effect upon the Pledges. The respective Pledgor shall allow, following the occurrence and
during the continuance of any of the circumstances which permit the Pledgee to enforce the
Pledges constituted hereunder in accordance with Clause 7, the Pledgee or, as the case may be,
its proxy or any other person designated by the Pledgee, to participate in all such
shareholders’ meetings of the Company as attendants without power to vote. Subject to the
provision contained in sub-Clause 14.1, the Pledgee’s right to attend a shareholders’ meeting
shall lapse immediately upon complete satisfaction and discharge of the Obligations; |
- 19 -
| 10.7 |
|
to refrain from any acts or omissions the purpose or effect of which is or would be the
dilution of the value of the Shares or the Shares ceasing to exist, unless permitted by the
Pledgee (acting reasonably); |
| |
| 10.8 |
|
not to amend the articles of association of the Company to the extent that such amendment
would materially adversely affect the security interest of the Pledgee created hereunder
without the prior written consent of the Pledgee (such consent not to be unreasonably
withheld); |
| |
| 10.9 |
|
insofar as additional declarations or actions are necessary for the creation of the Pledges
in favour of the Pledgee and at the Pledgee’s reasonable request (acting on the reasonable
instructions of the Secured Parties), to make such declarations and undertake such actions at
its own costs and expenses; and |
| |
| 10.10 |
|
for the avoidance of doubt, notification and consent requirements as set out in sub-Clauses
10.1 through 10.8 of this Agreement are deemed to be satisfied if and to the extent such
notification or consent has been delivered under the Existing Share Pledge Agreement provided
that such notification to the Pledgee or consent of the Pledgee makes reference to this
Agreement and the Existing Share Pledge Agreement. |
| |
| 11. |
|
DELEGATION |
| |
| |
|
The Pledgee shall have full power to delegate (either generally or specifically) the powers,
authorities and discretions conferred on it by this Agreement on such terms and conditions
as it shall see fit. The Pledgee shall only remain liable for diligently selecting and
providing initial instructions to such delegate. |
| |
| 12. |
|
INDEMNITY |
| |
| |
|
The Pledgors shall reimburse the Pledgee (which, for purposes of this Clause 12, shall
include its officers, directors, employees, agents and counsel) upon request for all
properly incurred, reasonable and documented out-of-pocket expenses incurred or made by it
in connection with the Credit Documents. Such expenses shall include the properly incurred,
reasonable and documented compensation and expenses, disbursements and advances of the
Pledgee’s agents, counsel, accountants and experts. The Pledgors shall indemnify the Pledgee
against any and all loss, liability, claim, taxes, costs, damage or expense (including
properly incurred, reasonable and documented attorneys’ fees and expenses) incurred by or in
connection with the acceptance or administration of the Pledgee’s performance of its duties
under this Agreement and under German law, including the costs and expenses of enforcing
this Agreement and defending itself against or investigating any claim. The obligation to
pay such amounts shall survive the payment in full or defeasance of the Obligations or the
removal or resignation of the Pledgee. The Pledgee shall notify Reynolds Group Holdings
Limited of any claim for which it may seek indemnity promptly upon obtaining actual
knowledge thereof; provided that any failure so to notify Reynolds Group Holdings Limited
shall not relieve the Pledgors of their indemnity obligations hereunder. The Pledgors may
defend themselves against such claim and the Pledgee shall provide reasonable cooperation in
such defense. The Pledgee may have separate
|
- 20 -
| |
|
counsel and the Pledgors shall pay the properly
incurred, reasonable and documented fees and expenses of such counsel. The Pledgors need not
reimburse any expense or indemnify against any loss, liability or expense incurred by the
Pledgee through the Pledgee’s own wilful misconduct (Vorsatz) or gross negligence (grobe
Fahrlässigkeit). No provision of this Agreement shall require the Pledgee to expend or risk
its own funds or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if repayment of such
funds or adequate indemnity against such risk or liability is not assured to its
satisfaction. |
| |
| 13. |
|
NO LIABILITY |
| |
| |
|
Except as otherwise agreed between the parties to this Agreement, none of
the Pledgee, its nominee(s) or agent(s) or delegate(s) shall be liable by
reason of (a) taking any action permitted by this Agreement or (b) any
neglect or default in connection with the assets and rights subject to the
security interest created hereunder, save in respect of any loss or damage
which is suffered as a result of wilful misconduct (Vorsatz) or gross
negligence (grobe Fahriässigkeit) by the Pledgee, its nominee(s) or agent(s)
or delegate(s), or (c) the enforcement or realisation of all or any part of
the security interest created hereunder. |
| |
| 14. |
|
DURATION AND INDEPENDENCE |
| |
| 14.1 |
|
This Agreement shall remain in full force and effect until
complete satisfaction of the Obligations. The Pledges shall not cease to exist,
if any Grantor under the Credit Documents has only temporarily discharged the
Obligations. |
| |
| 14.2 |
|
This Agreement shall create a continuing security and no
change, amendment, or supplement whatsoever in the Credit Documents or in any
document or agreement related to any of the Credit Documents shall affect the
validity or the scope of this Agreement nor the obligations which are imposed
on the Pledgors pursuant to it. |
| |
| 14.3 |
|
This Agreement is independent from any other security or
guarantee which may have been or will be given to the Collateral Agent. None of
such other
security shall prejudice, or shall be prejudiced by, or shall be merged in
any way with this Agreement. |
| |
| 14.4 |
|
Waiving Section 418 of the German Civil Code, the Pledgors
hereby agree that the security created hereunder shall not be affected by any
transfer or assumption of the Obligations to, or by, any third party. |
| |
| 15. |
|
RELEASE OF PLEDGE (PFANDFREIGABE) |
| |
| 15.1 |
|
Upon complete and irrevocable satisfaction of the Obligations,
the Collateral Agent (as instructed in accordance with the First Lien
Intercreditor Agreement) will as soon as reasonably practicable declare in
writing the release of the Pledges (Pfandfreigabe) to the Pledgors as a matter
of record. For the avoidance of doubt, the parties are aware that upon full and
complete satisfaction of the Obligations the Pledges, due to its accessory
nature (Akzessorietät) ceases to exist by operation of German mandatory law. |
- 21 -
| 15.2 |
|
At any time when the total value of the aggregate security granted by the Pledgors and any of
the other Grantors to secure the Obligations (the “Security”), which can be expected to be
realised in the event of an enforcement of the Security (realisierbarer Wert), exceeds 110% of
the Obligations (the “Limit”) not only temporarily, the Pledgee shall on demand of any of the
Pledgors release such part of the Security (Sicherheitenfreigabe) as the Pledgee (as
instructed in accordance with the First Lien Intercreditor Agreement) may in its reasonable
discretion determine so as to reduce the realisable value of the Security to the Limit. |
| |
| 15.3 |
|
The parties acknowledge that the Pledgee (as instructed in accordance with the First Lien
Intercreditor Agreement) will declare in writing the release of the Pledges (Pfandfreigabe) to
each Pledgor as soon as reasonably practicable in accordance with, and to the extent required
by, the Intercreditor Arrangements. |
| |
| 16. |
|
PARTIAL INVALIDITY; WAIVER |
| |
| 16.1 |
|
If at any time, any one or more of the provisions hereof is or becomes invalid, illegal or
unenforceable in any respect under the law of any jurisdiction, such provision shall as to
such jurisdiction, be ineffective to the extent necessary without affecting or impairing the
validity, legality and enforceability of the remaining provisions hereof or of such provisions
in any other jurisdiction. The invalid, illegal or unenforceable provision shall be deemed to
be replaced with such valid, legal or enforceable provision which comes as close as possible
to the original intent of the parties and the invalid, illegal or unenforceable provision.
Should a gap (Regelungslücke) become evident in this Agreement, such gap shall, without
affecting or impairing the validity, legality and enforceability of the remaining provisions
hereof, be deemed to be filled in with such provision which comes as close as possible to the
original intent of the parties. |
| |
| 16.2 |
|
No failure to exercise, nor any delay in exercising, on the part of the Pledgee, any right or
remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise
of any right or remedy prevent any further or other exercise thereof or the exercise of any
other right or remedy. The rights and remedies provided hereunder are cumulative and not
exclusive of any rights or remedies provided by law. |
| |
| 16.3 |
|
In particular, the Pledges shall not be affected and shall in any event extend to any and all shares in
the Company even if the number or nominal value of the Existing Shares or the
aggregate share capital of the Company as stated in Clause 2 are inaccurate or deviate from
the actual facts. |
| |
| 17. |
|
AMENDMENTS |
| |
| |
|
Changes and amendments to this Agreement including this Clause 17 shall be made in writing
except where notarisation is required. |
- 22 -
| 18. |
|
NOTICES AND THEIR LANGUAGE |
| |
| 18.1 |
|
All notices and other communications provided for herein shall be in writing and shall
be delivered by hand or overnight courier service, mailed by certified or registered mail or
sent by fax, as follows: |
| |
|
|
|
|
|
| For the Pledgors: |
|
Pactiv Hamburg Holdings GmbH |
|
|
|
|
|
|
|
Address:
|
|
Friedensallee 25, 22765
Hamburg, Germany, |
|
|
|
|
|
|
|
Telephone:
|
|
+49 40 39199211 |
|
|
|
|
|
|
|
Fax:
|
|
+49 40 39199298 |
|
|
|
|
|
|
|
Attention:
|
|
Managing directors
(Geschäftsführung) |
|
|
|
|
|
for the Pledgors with a copy to: |
|
|
|
|
|
|
|
|
|
|
|
Address:
|
|
c/o Rank Group Limited |
|
|
|
|
|
|
|
|
|
Level 9 |
|
|
|
|
|
|
|
|
|
148 Quay Street
PO Box 3515 |
|
|
|
|
|
|
|
|
|
Auckland 1140
New Zealand |
|
|
|
|
|
|
|
Telephone.
|
|
+649 3666 259 |
|
|
|
|
|
|
|
Fax:
|
|
+649 3666 263 |
|
|
|
|
|
|
|
Attention:
|
|
Helen Golding |
|
|
|
|
|
| For the Pledgee: |
|
The Bank of New York Mellon |
|
|
|
|
|
|
|
Address:
|
|
101 Barclay Street, 4E |
|
|
|
|
|
|
|
|
|
New York, NY 10286 |
|
|
|
|
|
|
|
|
|
The United States of |
|
|
|
|
|
|
|
|
|
America |
|
|
|
|
|
|
|
Telephone:
|
|
+212 298 1528 |
|
|
|
|
|
|
|
Fax:
|
|
+212 815 5366 |
|
|
|
|
|
|
|
Attention:
|
|
International Corporate Trust |
- 23 -
| 18.2 |
|
Any party hereto may change its address or fax number for notices and other
communications hereunder by notice to the other parties hereto. As agreed to in writing by the
parties, notices and other communications hereunder may also be delivered by e-mail to
the e-mail address of a representative of the applicable party to this Agreement provided
from time to time by such party. |
| |
| 18.3 |
|
All notices and other communications given to any party in connection with this Agreement in
accordance with the provisions of this Agreement shall be deemed (widerlegbare Vermutung)
received on the date sent (if a business day) and on the next business day thereafter (in all
other cases) if delivered by hand or overnight courier service or sent by fax or on the date
five business days after dispatch by certified or registered mail if mailed, in each case
delivered, sent or mailed (properly addressed) to such party as provided in this Clause 18 or
in accordance with the latest unrevoked direction from such party given in accordance with
this Clause 18. |
| |
| 18.4 |
|
Any notice or other communication under or in connection with this Agreement shall be in the
English language or, if in any other language, accompanied by a translation into English. In
the event of any conflict between the English text and the text in any other language, the
English text shall prevail. |
| |
| 19. |
|
NOTIFICATION |
| |
| 19.1 |
|
Each Pledgor and the Pledgee hereby give notice of this Agreement and the Pledges of the
rights pursuant to Clause 3 and Clause 4 to the Company. |
| |
| 19.2 |
|
The Company hereby acknowledges the notification pursuant to Clause 19.1 above. |
| |
| 20. |
|
APPLICABLE LAW, JURISDICTION |
| |
| 20.1 |
|
This Agreement is governed by the laws of the Federal Republic of Germany. |
| |
| 20.2 |
|
The place of jurisdiction for any and all disputes arising under or in connection with this
Agreement shall be the courts in Frankfurt am Main. The Pledgee however, shall also be
entitled to take action against any Pledgor in any other court of competent jurisdiction.
Further, the taking of proceedings against any Pledgor in any one or more jurisdictions shall
not preclude the taking of proceedings in any other jurisdiction (whether concurrently or not)
if and to the extent permitted by applicable law. |
- 24 -
The Notary advised the persons appearing:
| • |
|
that a pledge is a security instrument of strictly
accessory nature (which means that it comes into
legal existence only if, to the extent that, and as
long as, the underlying secured claims do in fact
exist, and that the owners of the secured claims and
the pledgees must be identical); |
| |
| • |
|
that notwithstanding Section 16 para 3 German
Limited Liability Companies Act (Gesetz betreffend
die Gesellschaften mit beschränkter Haftung) there
is no bona fide creation, acquisition nor ranking of
a pledge of shares (in the sense that the pledgees
are not protected if the shares purported to be
pledged do not exist or have been previously
encumbered for the benefit of a third party); and |
| |
| • |
|
that the English original version of this Agreement
will not be acceptable for enforcement but will have
to be translated, by a certified translator, into
German for such purposes. |
- 25 -
SCHEDULE 1
PART 1
LIST OF CURRENT BORROWERS
SIG Euro Holding AG & Co. KGaA
Closure Systems International Holdings Inc.
Closure Systems International B.V.
SIG Austria Holding GmbH
Reynolds Consumer Products Holdings Inc.
Reynolds Group Holdings Inc.
Pactiv Corporation
- 26 -
PART 2
LIST OF CURRENT GUARANTORS, CURRENT 2009 SENIOR SECURED NOTES
GUARANTORS, CURRENT OCTOBER 2010 SECURED NOTES GUARANTORS
AND CURRENT FEBRUARY 2011 SECURED NOTES GUARANTORS
Whakatane Mill Australia Pty Limited
SIG Austria Holding GmbH
SIG Combibloc GmbH & Co KG
SIG Combibloc GmbH
SIG Beverages Brasil Ltda
SIG Combibloc do Brasil Ltda.
Closure Systems International (Brazil) Sistemas de Vedação Ltda
CSI Latin American Holdings Corporation
Evergreen Packaging Canada Limited
CSI Closure Systems Manufacturing de Centro America, S.R.L.
SIG Holdings (UK) Limited
SIG Combibloc Limited
Closure Systems International (UK) Limited
Reynolds Consumer Products (UK) Limited
Reynolds Subco (UK) Limited
Kama Europe Limited
Ivex Holdings, Ltd.
SIG Euro Holding AG & Co. KGaA
SIG Beverages Germany GmbH
SIG Combibloc Holding GmbH
SIG Vietnam Beteiligungs GmbH
SIG Combibloc GmbH
- 27 -
SIG Combibloc Systems GmbH
SIG Combibloc Zerspanungstechnik GmbH
SIG Information Technology GmbH
SIG International Services GmbH
Closure Systems International Holdings (Germany) GmbH
Closure Systems International Deutschland GmbH
Pactiv Hamburg Holdings GmbH
Pactiv Deutschland Holdinggesellschaft mbH
Omni-Pac Ekco GmbH Verpackungsmittel
Omni-Pac GmbH Verpackungsmittel
SIG Asset Holdings Limited
Closure Systems International (Hong Kong) Limited
SIG Combibloc Limited
Evergreen Packaging (Hong Kong) Limited
Closure Systems International Holdings (Hungary) Kft.
CSI Hungary Gyártó és Kereskedelmi Kft. (aka CSI Hungary)
Closure Systems International Holdings (Japan) KK
Closure Systems International Japan, Limited
Beverage Packaging Holdings (Luxembourg) I S.A.
Beverage Packaging Holdings (Luxembourg) III S.à r.l.
Evergreen Packaging (Luxembourg) S.à r.l.
Reynolds Group Issuer (Luxembourg) S.A.
Bienes Industriales del Norte S.A. de C.V.
CSI en Ensenada, S. de R.L. de C.V.
CSI en Saltillo, S. de R.L. de C.V.
- 28 -
CSI Tecniservicio, S. de R.L. de C.V.
Grupo CSI de Mexico, S. de R.L. de C.V.
Técnicos de Tapas Irrnovativas S.A. de C.V.
Evergreen Packaging Mexico, S. de R.L. de C.V.
Reynolds Metals Company de Mexico, S. de R.L. de C.V.
Maxpack, S. de R.L. de C.V.
Closure Systems International B.V.
Reynolds Consumer Products International B.V.
Evergreen Packaging International B.V.
Reynolds Packaging International B.V.
Reynolds Group Holdings Limited
Whakatane Mill Limited
SIG Combibloc Group AG
SIG Technology AG
SIG allCap AG
SIG Combibloc (Schweiz) AG
SIG Schweizerische Industrie-Gesellschaft AG
SIG Combibloc Procurement AG
SIG Reinag AG
SIG Combibloc Ltd.
SIG Holding USA Inc.
SIG Combibloc Inc.
Closure Systems International Americas, Inc.
Closure Systems International Holdings Inc.
Closure Systems International Inc.
- 29 -
Reynolds Packaging Machinery Inc.
Closure Systems Mexico Holdings LLC
CSI Mexico LLC
CSI Sales & Technical Services Inc.
Bakers Choice Products, Inc.
Reynolds Consumer Products Holdings Inc.
Reynolds Consumer Products Inc.
Reynolds Foil Inc.
Reynolds Group Holdings Inc.
Reynolds Services Inc.
Blue Ridge Holding Corp.
Blue Ridge Paper Products Inc.
Evergreen Packaging International (US) Inc.
Evergreen Packaging Inc.
Evergreen Packaging USA Inc.
Reynolds Packaging, Inc.
Reynolds Packaging LLC
Reynolds Packaging Kama Inc.
Reynolds Food Packaging LLC
Reynolds Flexible Packaging Inc.
Southern Plastics Inc.
Ultra Pac, Inc.
BRPP, LLC
Reynolds Group Issuer Inc.
Reynolds Group Issuer LLC
- 30 -
Pactiv Corporation (formerly Reynolds Acquisition Corporation)
Pactiv Factoring LLC
Pactiv RSA LLC
Pactiv Retirement Administration LLC
Pactiv Germany Holdings, Inc.
Pactiv International Holdings Inc.
Pactiv Management Company LLC
PCA West Inc.
Prairie Packaging, Inc.
PWP Holdings, Inc.
PWP Industries, Inc.
Newspring Industrial Corp.
Pactiv Canada Inc.
The Baldwin Group Limited
J. & W. Baldwin (Holdings) Limited
Omni-Pac U.K. Limited
Conference Cup Ltd.
Dopaco Canada, Inc.
Dopaco, Inc.
Garven Incorporated
Central de Bolsas, S. de R.L. de C.V.
Servicios Industriales Jaguar, S. de C.V.
Servicio Terrestre Jaguar, S. de C.V.
Grupo Corporativo Jaguar, S. de C.V.
Pactiv México, S. de R.L. de C.V.
- 31 -
PART 3
LIST OF CURRENT NEW SECURED NOTES GUARANTORS1
Whakatane Mill Australia Pty Limited
SIG Beverages Brasil Ltda
SIG Combibloc do Brasil Ltda.
Closure Systems International (Brazil) Sistemas de Vedação Ltda
CSI Latin American Holdings Corporation
Evergreen Packaging Canada Limited
CSI Closure Systems Manufacturing de Centro America, S.R.L.
SIG Holdings (UK) Limited
SIG Combibloc Limited
Closure Systems International (UK) Limited
Reynolds Consumer Products (UK) Limited
Reynolds Subco (UK) Limited
Kama Europe Limited
Ivex Holdings, Ltd.
SIG Euro Holding AG & Co. KGaA
SIG Beverages Germany GmbH
SIG Combibloc Holding GmbH
SIG Vietnam Beteiligungs GmbH
SIG Combibloc GmbH
SIG Combibloc Systems GmbH
SIG Combibloc Zerspanungstechnik GmbH
SIG Information Technology GmbH
SIG International Services GmbH
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| 1 |
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Post closing Austrian guarantors excluded. |
- 32 -
Closure Systems International Holdings (Germany) GmbH
Closure Systems International Deutschland GmbH
Pactiv Hamburg Holdings GmbH
Pactiv Deutschland Holdinggesellschaft mbH
Omni-Pac Ekco GmbH Verpackungsmittel
Omni-Pac GmbH Verpackungsmittel
SIG Asset Holdings Limited
Closure Systems International (Hong Kong) Limited
SIG Combibloc Limited
Evergreen Packaging (Hong Kong) Limited
Closure Systems International Holdings (Hungary) Kft.
CSI Hungary Gyártó és Kereskedelmi Kft. (aka CSI Hungary)
Closure Systems International Holdings (Japan) KK
Closure Systems International Japan, Limited
Beverage Packaging Holdings (Luxembourg) I S.A.
Beverage Packaging Holdings (Luxembourg) III S.à r.l.
Evergreen Packaging (Luxembourg) S.à r.l.
Reynolds Group Issuer (Luxembourg) S.A.
Bienes Industriales del Norte S,A. de C.V.
CSI en Ensenada, S. de R.L. de C.V.
CSI en Saltillo, S. de R.L. de C.V.
CSI Tecniservicio, S. de R.L. de C.V.
Grupo CSI de Mexico, S. de R.L. de C.V.
Técnicos de Tapas Innovativas S.A. de C.V.
Evergreen Packaging Mexico, S. de R.L. de C.V.
- 33 -
Reynolds Metals Company de Mexico, S. de R.L. de C.V.
Maxpack, S. de R.L. de C.V.
Closure Systems International B.V.
Reynolds Consumer Products International B,V.
Evergreen Packaging International B.V.
Reynolds Packaging International B.V.
Reynolds Group Holdings Limited
Whakatane Mill Limited
SIG Combibloc Group AG
SIG Technology AG
SIG allCap AG
SIG Combibloc (Schweiz) AG
SIG Schweizerische Industrie-Gesellschaft AG
SIG Combibloc Procurement AG
SIG Reinag AG
SIG Combibloc Ltd.
SIG Holding USA Inc.
SIG Combibloc Inc.
Closure Systems International Americas, Inc.
Closure Systems International Holdings Inc.
Closure Systems International Inc.
Reynolds Packaging Machinery Inc.
Closure Systems Mexico Holdings LLC
CSI Mexico LLC
CSI Sales & Technical Services Inc.
- 34 -
Bakers Choice Products, Inc.
Reynolds Consumer Products Holdings Inc.
Reynolds Consumer Products Inc.
Reynolds Foil Inc.
Reynolds Group Holdings Inc.
Reynolds Services Inc.
Blue Ridge Holding Corp.
Blue Ridge Paper Products Inc.
Evergreen Packaging International (US) Inc.
Evergreen Packaging Inc.
Evergreen Packaging USA Inc.
Reynolds Packaging, Inc.
Reynolds Packaging LLC
Reynolds Packaging Kama Inc.
Reynolds Food Packaging LLC
Reynolds Flexible Packaging Inc.
Southern Plastics Inc.
Ultra Pac, Inc.
BRPP, LLC
Reynolds Group Issuer Inc.
Reynolds Group Issuer LLC
Pactiv Corporation (formerly Reynolds Acquisition Corporation)
Pactiv Factoring LLC
Pactiv RSA LLC
Pactiv Retirement Administration LLC
- 35 -
Pactiv Germany Holdings, Inc.
Pactiv International Holdings Inc.
Pactiv Management Company LLC
PCA West Inc.
Prairie Packaging, Inc.
PWP Holdings, Inc.
PWP Industries, Inc.
Newspring Industrial Corp.
Pactiv Canada Inc.
The Baldwin Group Limited
J. & W. Baldwin (Holdings) Limited
Omni-Pac U.K. Limited
Conference Cup Ltd.
Dopaco Canada, Inc.
Dopaco, Inc.
Garven Incorporated
Central de Bolsas, S. de R.L. de C.V.
Servicios Industriales Jaguar, S. de C.V.
Servicio Terrestre Jaguar, S. de C.V.
Grupo Corporativo Jaguar, S. de C.V.
Pactiv México, S. de R.L. de C.V.
- 36 -
PART 4
COPY OF SHAREHOLDERS LIST (GESELLSCHAFTERLISTE)
- 37 -
Amtsgericht Hamburg
HRB 71774
Amtlicher Ausdruck aus dem Registerordner
Dokument: Liste der Gesellschafter
(20355_HRB71774_GEL_S2010-01-06_3462192_#001.PDF)
Eingestellt in
den Registerordner am (letztes Freigabedatum): 08.01.2010
Abgerufen aus dem Registerordner am: 09.08.2011 14:19:45
Dieser
Ausdruck bezeugt den Inhalt eines Dokuments des Registerordners.
Dieser Ausdruck wird nicht unterschrieben und gilt als
beglaubigte Abschrift.
Hamburg, den 09.08.2011
/s/ [ILLEGIBLE]
Heil
Justizobersekretär
Gesellschafterliste
gem. § 40 Abs. 2 GmbHG
der
Pactiv Deutschland Holdinggesellschaft mbH
mit dem Sitz in Hamburg
eingetragen im Handelsregister des Amtsgerichts Hamburg zu HRB 71774
Stand: 1. Januar 2010
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Lfd. Nr. des |
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Nennbetrag des |
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Geschäfts- |
| Gesellschafter |
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Wohnort/Sitz |
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Ge-schäftsanteils |
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anteils |
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Pactiv Hamburg
Holdings GmbH
(derzeit noch
firmierend unter
fentus 13. GmbH)
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Friedensallee 25,
22765 Hamburg,
AG
Hamburg,
HRB 106481
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5.750,00 EUR
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1 |
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Pactiv Hamburg
Holdings GmbH
(derzeit noch
firmierend unter
feutus 13. GmbH)
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Friedensallee 25,
22765 Hamburg,
AG
Hamburg,
HRB 106481
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17.750,00 EUR
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2 |
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Pactiv Corporation
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1900 West Field
Court,
Lake Forest,
IL 60045,
Vereinigte Staaten
von Amerika
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1.500,00 EUR
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3 |
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Summe Geschäftsanteile
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25.000,00 EUR |
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Nummer 6 der Urkundenrolle für das Jahr 2010
Hiermit bescheinige ich, der unterzeichnende Notar, dass die geänderten
Eintragungen den Veränderungen entsprechen, an denen ich mitgewirkt habe,
und die übrigen Eintragungen mit dem Inhalt der zuletzt im
Handelsregister aufgenommenen Liste übereinstimmen.
Diese Bescheinigung ist ein gebührenfreies Nebengeschäft im Sinne
des § 35 Kost0.
Frankfurt am Main, 6. Januar 2010
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/s/ Dr. Wolfgang Hauser
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Dr. Wolfgang Hauser, Notar |
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Hiermit beglaubige ich die Übereinstiininung der in dieser Datei
enthaltenen Bilddaten (Absohrift) mit dem mir vorliegenden Papierdokument
(Urschrift).
Frankfurt am Main, den 06.01.2010
Dr. Wolfgang Hauser
Notar
Appendix 2
CLOSURE SYSTEMS INTERNATIONAL B.V.
as Pledgor
CLOSURE SYSTEMS INTERNATIONAL HOLDINGS (GERMANY) GMBH
as Company
THE BANK OF NEW YORK MELLON
as Collateral Agent and Pledgee
SHARE PLEDGE AGREEMENT RELATING TO
THE SHARES IN CLOSURE SYSTEMS
INTERNATIONAL HOLDINGS (GERMANY) GMBH
(Geschäftsanteilsverpfändung)
The taking of this document or any certified copy of it or any document which constitutes
substitute documentation for it, or any document which includes written confirmations or references
to it, into Austria as well as printing out any e-mail communication which refers to any Credit
Document (as defined in Clause 1 of this document) in Austria or sending any e-mail communication
to which a pdf scan of this document is attached to an Austrian addressee or sending any e-mail
communication carrying an electronic or digital signature which refers to any Credit Document to an
Austrian addressee may cause the imposition of Austrian stamp duty. Accordingly, keep the original
document as well as all certified copies thereof and written and signed references to it outside of
Austria and avoid printing out any email communication which refers to any Credit Document in
Austria or sending any e-mail communication to which a pdf scan of this document is attached to an
Austrian addressee or sending any e-mail communication carrying an electronic or digital signature
which refers to any Credit Document to an Austrian addressee.
Contents
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| Clause |
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Page |
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1. |
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Definitions and Language |
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5 |
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2. |
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Pledged Shares |
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12 |
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3. |
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Pledge |
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12 |
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4. |
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Scope of the Pledges |
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12 |
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5. |
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Purpose of the Pledges |
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13 |
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6. |
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Exercise of Membership Rights |
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14 |
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7. |
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Enforcement of the Pledges |
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14 |
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8. |
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Unlawful financial assistance |
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15 |
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9. |
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Approval and Confirmation |
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15 |
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10. |
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Undertakings of the Pledgor |
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16 |
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11. |
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Delegation |
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17 |
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12. |
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Indemnity |
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17 |
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13. |
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No Liability |
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18 |
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14. |
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Duration and Independence |
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18 |
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15. |
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Release of Pledge (Pfandfreigabe) |
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18 |
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16. |
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Partial Invalidity; Waiver |
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19 |
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17. |
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Amendments |
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19 |
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18. |
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Notices and their Language |
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20 |
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19. |
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Notification |
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21 |
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20. |
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Applicable Law, Jurisdiction |
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22 |
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- 1 -
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| Clause |
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Page |
Schedule 1
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23 |
Part 1 List of Current Borrowers
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23 |
Part 2 List of Current Guarantors, Current 2009 Senior Secured Notes Guarantors, Current October 2010 Secured Notes Guarantors and Current February 2011
Secured Notes Guarantors
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23 |
Part 3 List of Current New Secured Notes Guarantors
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29 |
Part 4 Copy of Shareholders List (Gesellschafterliste)
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34 |
- 2 -
This SHARE PLEDGE AGREEMENT (the “Agreement”) is made on September 8, 2011
BETWEEN:
| (1) |
|
Closure Systems International B.V., a private company with limited liability (besloten
vennootschap met beperkte aansprakelijkheid), incorporated under the laws of The Netherlands,
having its corporate seat (statutaire zetel) in Amsterdam, The Netherlands and its registered
address at Teleportboulevard 140, 1043 EJ Amsterdam, The Netherlands, which is registered
under registration number 34291082 with the Chamber of Commerce (the “Pledgor”); |
| |
| (2) |
|
Closure Systems International Holdings (Germany) GmbH, a limited liability company
(Gesellschaft mit beschränkter Haftung) organised under the laws of the Federal Republic of
Germany having its corporate seat in Worms, Germany and its business address at Mainzer Straße
185, 67547 Worms, Germany, which is registered in the commercial register (Handelsregister) of
the local court (Amtsgericht) of Mainz under HRB 41388 (the “Company”); and |
| |
| (3) |
|
The Bank of New York Mellon, having its business address at 1 Wall Street, New York, N.Y.
10286, The United States of America, in its capacity as collateral agent under the First Lien
Intercreditor Agreement (as defined below) (the “Collateral Agent” or the “Pledgee”). |
WHEREAS:
| (A) |
|
Pursuant to the second amended and restated senior secured multi-currency term and revolving
credit agreement dated 9 August 2011 of currently up to USD 4,445,000,000 and EUR 330,000,000
between, inter alia, the parties listed in Schedule 1 Part 1 hereto as current borrowers (the
“Current Borrowers”), the parties listed in Schedule 1 Part 2 hereto as current guarantors
(the “Current Guarantors”), Credit Suisse AG as administrative agent and others (as amended,
varied, novated, restated, supplemented, superseded or extended from time to time, the “Second
Amended and Restated Credit Agreement”), which amends and restates the multicurrency term and
revolving credit agreement dated 5 November 2009 between, inter alia, the Current Borrowers
and the Current Guarantors, Credit Suisse AG as administrative agent and others (as amended
and restated pursuant to the Second Amended and Restated Credit Agreement and as further
amended, varied, novated, restated, supplemented, superseded or extended from time to time,
hereinafter the “Credit Agreement”), certain lenders (together the “Original Lenders”) have
granted certain facilities to the Current Borrowers and certain other entities which may
accede or may have acceded to the Credit Agreement as additional borrowers. |
| |
| (B) |
|
Pursuant to a senior secured notes indenture dated 5 November 2009 between, inter alia,
Reynolds Group Issuer LLC, Reynolds Group Issuer Inc., and Reynolds Group Issuer (Luxembourg)
S.A as ultimate issuers (the “Issuers”), certain affiliates of the Issuers listed in Schedule
1 Part 2 hereto as current 2009 senior secured notes guarantors (the “Current 2009 Senior
Secured Notes Guarantors”) and The Bank of New York Mellon, as indenture trustee, principal
paying agent, transfer agent and registrar, (as amended, varied, novated, supplemented,
superseded or extended from time to time, the “2009 Senior Secured Notes Indenture”), the
Issuers have issued senior secured notes due 2016 in the aggregate principal amount of USD |
- 3 -
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1,125,000,000 (the “US Secured Notes”) and senior secured notes due 2016 in the aggregate
principal amount of EUR 450,000,000 (the “Euro Secured Notes” and together with the US
Secured Notes the “2009 Senior Secured Notes”) to certain noteholders. |
| |
| (C) |
|
Pursuant to a senior secured notes indenture dated 15 October 2010 between, inter
alia, RGHL US Escrow I LLC, RGHL US Escrow I Inc., and RGHL Escrow Issuer
(Luxembourg) I S.A. as escrow issuers (the “Escrow Issuers”), The Bank of New
York Mellon as indenture trustee, The Bank of New York Mellon, London Branch as
principal paying agent, The Bank of New York Mellon as collateral agent and
Wilmington Trust (London) Limited as additional collateral agent (as amended,
varied, novated, supplemented, superseded or extended from time to time, the
“October 2010 Secured Notes Indenture”), the Escrow Issuers have issued secured
notes due 2019 in the aggregate principal amount of USD 1,500,000,000 in escrow
(the “October 2010 Secured Notes”). In connection with the release from escrow of
the proceeds of the October 2010 Secured Notes, which occurred on 16 November
2010, the Escrow Issuers were merged with and into the Issuers, with each of the
Issuers surviving the applicable mergers or other transfers and assuming by operation
of law the obligations of the applicable Escrow Issuers with respect to the October
2010 Secured Notes Indenture and the October 2010 Secured Notes. Certain affiliates
of the Issuers listed in Schedule 1 Part 2 hereto have acceded to the October 2010
Secured Notes Indenture as current October 2010 secured notes guarantors (the
“Current October 2010 Secured Notes Guarantors”). |
| |
| (D) |
|
Pursuant to a senior secured notes indenture dated 1 February 2011 between, inter
alia, the Issuers, The Bank of New York Mellon as indenture trustee, The Bank of
New York Mellon, London Branch as principal paying agent, The Bank of New York
Mellon as collateral agent and Wilmington Trust (London) Limited as additional
collateral agent (as amended, varied, novated, supplemented, superseded or extended
from time to time, the “February 2011 Secured Notes Indenture”), the Issuers have
issued secured notes due 2021 in the aggregate principal amount of USD
1,000,000,000 (the “February 2011 Secured Notes”) which are guaranteed by
certain affiliates of the Issuers listed in Schedule 1 Part 2 hereto as current February
2011 secured notes guarantors (the “Current February 2011 Secured Notes
Guarantors”). |
| |
| (E) |
|
The Pledgor has entered into the Existing Share Pledge Agreements (as defined
below). |
| |
| (F) |
|
Pursuant to a senior secured notes indenture dated 9 August 2011 between, inter alia,
the RGHL US Escrow II LLC and RGHL US Escrow II Inc. as escrow issuers (the
“August 2011 Escrow Issuers”), The Bank of New York Mellon as indenture trustee,
The Bank of New York Mellon, London Branch as principal paying agent, The Bank
of New York Mellon as collateral agent and Wilmington Trust (London) Limited as
additional collateral agent (as amended, varied, novated, supplemented, superseded or
extended from time to time, the “New Secured Notes Indenture”), the August 2011
Escrow Issuers have issued senior secured notes due 2019 in the aggregate principal |
- 4 -
| |
|
amount of USD 1,500,000,000 (the “New Secured Notes”). In connection with the release from
escrow of the proceeds of the New Secured Notes, RGHL US Escrow II Inc. and RGHL US Escrow
II LLC shall be merged with and into Reynolds Group Issuer Inc. and Reynolds Group Issuer
LLC (together with Reynolds Group Issuer (Luxembourg) S.A. the “August 2011 Ultimate
Issuers”), respectively, and the obligations of the August 2011 Escrow Issuers shall be
assumed by the August 2011 Ultimate Issuers pursuant to one or more supplemental indentures
between, among others, the August 2011 Escrow Issuers, the August 2011 Ultimate Issuers, The
Bank of New York Mellon, as trustee, principal paying agent, transfer agent, registrar and
collateral agent and Wilmington Trust (London) Limited, as additional collateral agent. At
such time certain affiliates of the August 2011 Ultimate Issuers listed in Schedule 1 Part 3
hereto as current new secured notes guarantors (the “Current New Secured Notes Guarantors”)
will accede to the New Secured Notes Indenture). |
| |
| (G) |
|
As a result of the Second Amended and Restated Credit Agreement and the
amendment No. 6 and incremental term loan assumption agreement dated 9 August
2011 between, inter alia, the Current Borrowers, the Current Guarantors, Credit
Suisse AG as administrative agent and others (the “Amendment No. 6 and
Incremental Term Loan Assumption Agreement”) certain lenders have agreed to
grant incremental term loans in an aggregate amount of up to USD 2,000,000,000. |
| |
| (H) |
|
The Pledgor has agreed to grant an additional pledge (subject to the pledges arising
under the Existing Share Pledge Agreements (as defined below)) over its Shares (as
defined below) in the Company as security for the Pledgee’s respective claims against
the Grantors (as defined below) (or any of them) in respect of the Obligations (as
defined below). |
| |
| (I) |
|
The security created by or pursuant to this Agreement is to be administered by the
Collateral Agent for the Secured Parties (as defined below) pursuant to a first lien
intercreditor agreement dated 5 November 2009 (as amended by the
Amendment No. 1 and Joinder Agreement (as defined below)) between, inter alia, the Collateral
Agent, the Indenture Trustee, the Administrative Agent and the Grantors (each as
defined below) and others (as amended, varied, novated, supplemented, superseded or
extended from time to time, the “First Lien Intercreditor Agreement”). |
NOW, IT IS AGREED as follows:
| 1. |
|
DEFINITIONS AND LANGUAGE |
| |
| 1.1 |
|
In this Agreement: |
| |
| |
|
“Administrative Agent” means Credit Suisse AG, Cayman Islands Branch, having its business
address at Eleven Madison Avenue, New York, NY 10010, United States of America in its
capacity as administrative agent under the Credit Agreement and any successor appointed as
administrative agent under the Credit Agreement. |
- 5 -
| |
|
“Amendment No. 1 and Joinder Agreement” means the joinder agreement dated 21 January 2010 relating
to the First Lien Intercreditor Agreement made among (amongst others) the Collateral Agent,
Wilmington Trust (London) Limited, Credit Suisse AG and Reynolds Group Holdings Limited pursuant to
which Wilmington Trust (London) Limited is appointed as additional collateral agent and became
party to the First Lien Intercreditor Agreement. |
| |
| |
|
“Borrowers” means the Current Borrowers and any entity which may accede to the Credit Agreement as
an additional borrower and “Borrower” means any of them. |
| |
| |
|
“Cash Management Bank” shall mean Citibank N.A., Banco Nacional De Mexico S.A., Citibank
International PLC, UK, Citibank (China) Co., Limited, Citibank Global Markets Deutschland AG & Co
KGaA, Citibank ZRT, Hungary, a Lender, the Administrative Agent or any of the Lender’s or the
Administrative Agent’s affiliates (at the time the cash management services arrangement is entered
into) provided in each case it has become a party to, or by execution of an additional bank secured
party acknowledgment has agreed to be bound by the terms of, the First Lien Intercreditor Agreement
in its capacity as cash management bank. |
| |
| |
|
“Cash Management Services” shall mean any agreement or arrangement by a Cash Management Bank to
provide any composite accounting or other cash pooling arrangements and netting, overdraft
protection and other arrangements with any bank arising under standard business terms of such Cash
Management Bank to a Grantor. |
| |
| |
|
“Credit Documents” shall mean the Loan Documents, the 2009 Senior Secured Notes Documents, the
October 2010 Secured Notes Documents, the February 2011 Secured Notes Documents and the New Secured
Notes Documents. |
| |
| |
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“Enforcement Event” shall mean an Event of Default. |
| |
| |
|
“Event of Default” means any event of default (Kündigungsgrund) under the Credit Agreement and/or
the 2009 Senior Secured Notes Indenture and/or the October 2010 Secured Notes Indenture and/or the
February 2011 Secured Notes Indenture and/or the New Secured Notes Indenture. |
| |
| |
|
“Existing Intercreditor Agreement” means the existing intercreditor agreement dated 11 May 2007 (as
amended by a letter dated 21 June 2007 and a further letter dated 29 June 2007, as amended and
restated on 5 November 2009 and as further amended on 5 November 2010) between, inter alia,
Beverage Packaging Holdings (Luxembourg) I S.A., Rank Group Holdings Limited (now Reynolds Group
Holdings Limited), Beverage Packaging Holdings (Luxembourg) II S.A., Beverage Packaging Holdings
(Luxembourg) III S.ä.r.l., Credit Suisse AG (formerly Credit Suisse) as security trustee and
others. |
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| |
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“Existing Share Pledge Agreements” means |
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a) |
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the share pledge agreement dated 5 November 2009 (as amended by a confirmation and amendment
agreement dated 4 May 2010) entered into |
- 6 -
| |
|
|
between Closure Systems International B.V. as pledgor and The Bank of New York
Mellon as collateral agent and as pledgee and others as pledgees; |
| |
| |
b) |
|
a confirmation and amendment agreement dated 4 May 2010 entered into
between, inter alios, Closure Systems International B.V. as pledgor and The Bank
of New York Mellon as collateral agent and others (the “Confirmation and Amendment
Agreement”); |
| |
| |
c) |
|
the share pledge agreement dated 16 November 2010 entered into
between Closure Systems International B.V. as pledgor and The Bank of New York
Mellon as collateral agent and as pledgee; and |
| |
| |
d) |
|
the share pledge agreement dated 2 March 2011 entered into between
Closure Systems International B.V. as pledgor and The Bank of New York Mellon as
collateral agent and as pledgee. |
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“Existing Shares” has the meaning given to such term in sub-Clause 2.1 hereof. |
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“February 2011 Secured Notes Documents” shall mean the February 2011 Secured Notes
Indenture, the February 2011 Secured Notes Guarantees, the February 2011 Secured Notes, the
Intercreditor Arrangements, any supplemental indenture, any security document relating to
the February 2011 Secured Notes and/or the February 2011 Secured Notes Indenture and any
other document that may be entered into pursuant to any of the foregoing. |
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“February 2011 Secured Notes Guarantees” shall mean the guarantees of the obligations of the
Issuers under the February 2011 Secured Notes and the February 2011 Secured Notes Indenture
by the February 2011 Secured Notes Guarantors. |
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“February 2011 Secured Notes Guarantors” means the Current February 2011 Secured Notes
Guarantors and any entity which may accede to the February 2011 Secured Notes Indenture as
additional guarantor. |
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“February 2011 Secured Notes Holders” shall mean the holders from time to time of the
February 2011 Secured Notes. |
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“February 2011 Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in
its capacity as indenture trustee under the February 2011 Secured Notes Indenture and any
successor appointed as indenture trustee under the February 2011 Secured Notes Indenture. |
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“Future Shares” means all additional shares in the capital of the Company (irrespective of
their nominal value) which the Pledgor may acquire in the future in the event of a share
transfer, a share split, a share combination, an increase of the capital of the Company
(including by way of authorised capital (genehmigtes Kapital)) or otherwise. |
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“Grantors” means the Loan Parties, the Issuers, the 2009 Senior Secured Notes Guarantors,
the October 2010 Secured Notes Guarantors, the February 2011 Secured |
- 7 -
| |
|
Notes Guarantors and the New Secured Notes Guarantors and any person that has granted a
security interest to the Collateral Agent and/or the Secured Parties in respect of the obligations
of the Loan Parties, the Issuers and the 2009 Senior Secured Notes Guarantors, the October 2010
Secured Notes Guarantors, the February 2011 Secured Notes Guarantors and the New Secured Notes
Guarantors under the Credit Documents and “Grantor” means any of them. |
| |
| |
|
“Grantors’ Agent” shall mean Reynolds Group Holdings Limited or any other person appointed as agent
of the Grantors in accordance with the Principal Finance Documents. |
| |
| |
|
“Group” means Reynolds Group Holdings Limited and its direct or indirect subsidiaries
(Tochtergesellschaften). |
| |
| |
|
“Hedge Counterparty” means a Lender, the Administrative Agent or any of the Lender’s or the
Administrative Agent’s affiliates (at the time a hedging agreement is entered into) who has entered
into a hedging agreement for the purpose of hedging interest rate liabilities and/or any exchange
rate and/or commodity price risks provided it has become a party, or by execution of an additional
bank secured party acknowledgment has agreed to be bound by the terms of, to the First Lien
Intercreditor Agreement in its capacity as hedge counterparty. |
| |
| |
|
“Incremental Assumption Agreement” shall mean an incremental assumption agreement relating to
incremental facilities of up to USD 2,000,000,000 among, and in form and substance reasonably
satisfactory to, one or more Borrowers, the Administrative Agent, one or more Incremental Term
Lenders and/or one or more Incremental Revolving Credit Lenders pursuant to which one or more
Incremental Term Lenders make available Incremental Term Loan Commitments and/or one or more
Incremental Revolving Credit Lenders make available Incremental Revolving Credit Commitments
respectively. |
| |
| |
|
“Incremental Revolving Credit Lender” shall mean a Lender with an Incremental Revolving Credit
Commitment or an outstanding revolving loan under the Credit Agreement of any class as a result of
an Incremental Revolving Credit Commitment. |
| |
| |
|
“Incremental Revolving Credit Commitment” shall mean the commitment of any Lender, established
pursuant to the Credit Agreement, to make available certain revolving credit loans to one or more
Borrowers. |
| |
| |
|
“Incremental Term Lender” shall mean a Lender with an Incremental Term Loan Commitment. |
| |
| |
|
“Incremental Term Loan Commitment” shall mean the commitment of any Lender, established pursuant to
the Credit Agreement, to make available certain term loans to one or more Borrowers. |
- 8 -
| |
|
“Indenture Trustee” shall mean The Bank of New York Mellon, in its capacity as indenture trustee
under the 2009 Senior Secured Notes Indenture and any successor appointed as indenture trustee
under the 2009 Senior Secured Notes Indenture. |
| |
| |
|
“Intercreditor Arrangements” means the First Lien Intercreditor Agreement and the Existing
Intercreditor Agreement, in each case as amended, novated, supplemented, restated, or modified from
time to time. |
| |
| |
|
“Issuing Bank” means Credit Suisse AG or any other Lender or any affiliate of Credit Suisse AG or
any other Lender that issues letters of credit or bank guarantees under the Credit Agreement. |
| |
| |
|
“Lenders” shall mean the Original Lenders and any entity which may become a lender under the Credit
Agreement in the future and “Lender” means any of them. |
| |
| |
|
“Loan Documents” shall mean the Credit
Agreement, the Amendment No. l and Joinder Agreement, the
Second Amended and Restated Credit Agreement and the Amendment No. 6 and Incremental Term Loan
Assumption Agreement, any borrowing subsidiary agreement and/or guarantor joinder agreement
relating to the Credit Agreement, any letter of credit or bank guarantee relating to the Credit
Agreement, any security documents relating to the Credit Agreement, any hedging agreement entered
into by a Hedge Counterparty and a Grantor, each Incremental Assumption Agreement, the
Intercreditor Arrangements, each Promissory Note, any agreement between a Grantor and a Cash
Management Bank relating to Cash Management Services, each Local Facility Agreement and any other
document that may be entered into pursuant to any of the foregoing in relation to the Credit
Agreement. |
| |
| |
|
“Loan Parties” shall mean the Borrowers, the Current Guarantors and any entity which may accede to
the Credit Agreement as additional guarantor and a “Loan Party” means any of them. |
| |
| |
|
“Local Facilities” means working capital facilities provided to a Grantor (other than Beverage
Packaging Holdings (Luxembourg) I S.A., Beverage Packaging Holdings (Luxembourg) II S.A. Beverage
Packaging Holdings (Luxembourg) III S.ä.r.l. and the Borrowers) by a Local Facility Provider and
“Local Facility” means any of them. |
| |
| |
|
“Local Facility Agreements” shall mean any agreement under which a Local Facility is made
available. |
| |
| |
|
“Local Facility Provider” means HSBC Trinkaus & Burkhardt AG, Deutsche Bank AG, Commerzbank
Aktiengesellschaft and Hong Kong and Shanghai Banking Corporation Ltd., Thailand, Bank of America,
N.A., Canada Branch, FIA Card Services, N.A., Citibank N.A., Citibank (China) Co., Ltd., Banco
Nacional de Mexico, S.A., Integrante del Grupo Financiero Banamex, Bank of America, N.A., provided
in each case it has become a party to, or by execution of an additional bank secured party
acknowledgment has agreed to be bound by the terms of, the First Lien Intercreditor Agreement in
its capacity as local facility provider. |
- 9 -
| |
|
“New Secured Notes Documents” shall mean the New Secured Notes Indenture, the New Secured Notes
Guarantees, the New Secured Notes, the Intercreditor Arrangements, any supplemental indenture, any
security document relating to the New Secured Notes and/or the New Secured Notes Indenture and any
other document that may be entered into pursuant to any of the foregoing. |
| |
| |
|
“New Secured Notes Guarantees” shall mean the guarantees of the obligations of the August 2011
Escrow Issuers and/or of the August 2011 Ultimate Issuers under the New Secured Notes and the New
Secured Notes Indenture by the New Secured Notes Guarantors. |
| |
| |
|
“New Secured Notes Guarantors” means the Current New Secured Notes Guarantors and any entity which
may accede to the New Secured Notes Indenture as additional guarantor. |
| |
| |
|
“New Secured Notes Holders” shall mean the holders from time to time of the New Secured Notes. |
| |
| |
|
“New Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its capacity as
indenture trustee under the New Secured Notes Indenture and any successor appointed as indenture
trustee under the New Secured Notes Indenture. |
| |
| |
|
“Obligations” shall mean all present and future obligations and liabilities (whether actual or
contingent and whether owed jointly or severally or in any other capacity whatsoever) of each
Grantor to the Pledgee under each or any of the Credit Documents (including, but not limited to,
the Parallel Obligations), including with respect to all costs, charges and expenses incurred by
the Pledgee in connection with the protection, preservation or enforcement of its rights under the
Credit Documents or any other document evidencing or securing any such liabilities. The Obligations
shall further include any obligation based on unjust enrichment (ungerechtfertigte Bereicherung) or
tort (Delikt). |
| |
| |
|
“October 2010 Secured Notes Documents” shall mean the October 2010 Secured Notes Indenture, the
October 2010 Secured Notes Guarantees, the October 2010 Secured Notes, the Intercreditor
Arrangements, any supplemental indenture relating to the October 2010 Secured Notes Indenture, any
security document relating to the October 2010 Secured Notes and/or the October 2010 Secured Notes
Indenture and any other document that may be entered into pursuant to any of the foregoing. |
| |
| |
|
“October 2010 Secured Notes Guarantees” shall mean the guarantees of the obligations of the Issuers
under the October 2010 Secured Notes and the October 2010 Secured Notes Indenture by the October
2010 Secured Notes Guarantors. |
| |
| |
|
“October 2010 Secured Notes Guarantors” means the Current October 2010 Secured Notes Guarantors and
any entity which may accede to the October 2010 Secured Notes Indenture as additional guarantor. |
- 10 -
| |
|
“October 2010 Secured Notes Holders” shall mean the holders from time to time of the October 2010
Secured Notes. |
| |
| |
|
“October 2010 Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its
capacity as indenture trustee under the October 2010 Secured Notes Indenture and any successor
appointed as indenture trustee under the October
2010 Secured Notes Indenture. |
| |
| |
|
“Parallel Obligations” means the independent obligations of any of the Grantors arising pursuant to
the First Lien Intercreditor Agreement to pay to the Collateral Agent sums equal to the sums owed
by such Grantor to the other Secured Parties (or any of them) under the Credit Documents. |
| |
| |
|
“Pledge” and “Pledges” have the meanings given to such terms in Clause 3.1. |
| |
| |
|
“Principal Finance Documents” means the Credit Agreement, the 2009 Senior Secured Notes Indenture,
the October 2010 Secured Notes Indenture, the February
2011 Secured Notes Indenture, the New Secured Notes Indenture and the First Lien
Intercreditor Agreement. |
| |
| |
|
“Promissory Note” shall mean any promissory note executed and delivered by a Borrower upon the
request of a Lender evidencing the amount of principal owed by such Borrower to such Lender under
the Credit Agreement. |
| |
| |
|
“Secured Parties” shall mean the Lenders (including in their capacity as issuing bank(s), and/or
Hedge Counterparties under the Credit Agreement), the Hedge Counterparties, the Administrative
Agent, any Issuing Bank, the beneficiaries of each indemnification obligation undertaken by any
Grantor under any Credit Document, the 2009 Senior Secured Notes Holders, the October 2010 Secured
Notes Holders, the February 2011 Secured Notes Holders and the New Secured Notes Holders, the
Indenture Trustee, the October 2010 Secured Notes Indenture Trustee, the February 2011 Secured
Notes Indenture Trustee and the New Secured Notes Indenture Trustee, the Collateral Agent, the
Local Facility Providers and the Cash Management Banks. |
| |
| |
|
“2009 Senior Secured Notes Documents” shall mean the 2009 Senior Secured Notes Indenture, the 2009
Senior Secured Notes Guarantees, the 2009 Senior Secured Notes, the Intercreditor Arrangements, any
supplemental indenture, any security document relating to the 2009 Senior Secured Notes and/or the
2009 Senior Secured Notes Indenture and any other document that may be entered into pursuant to any
of the foregoing. |
| |
| |
|
“2009 Senior Secured Notes Guarantees” shall mean the guarantees of the obligations of the Issuers
under the 2009 Senior Secured Notes and the 2009 Senior Secured Notes Indenture by the 2009 Senior
Secured Notes Guarantors. |
| |
| |
|
“2009 Senior Secured Notes Guarantors” means the Current 2009 Senior Secured Notes Guarantors and
any entity which may accede to the 2009 Senior Secured Notes Indenture as additional guarantor. |
- 11 -
| |
|
“2009 Senior Secured Notes Holders” shall mean the holders from time to time of the 2009
Senior Secured Notes. |
| |
| |
|
“Shares” means the Existing Shares and the Future Shares. |
| |
| 1.2 |
|
Construction |
| |
| |
|
In this Agreement any reference to a “Clause”, a “sub-Clause” or a “Schedule” shall,
subject to any contrary indication, be construed as a reference to a Clause, a sub-Clause
or a Schedule hereof. |
| |
| 1.3 |
|
This Agreement is made in the English language. For the avoidance of doubt, the
English language version of this Agreement shall prevail over any translation of this
Agreement. However, where a German translation of a word or phrase appears in the
text of this Agreement, the German translation of such word or phrase shall prevail. |
| |
| 2. |
|
PLEDGED SHARES |
| |
| 2.1 |
|
The Company has a nominal share capital (Stammkapital) of EUR 25,000 (in words: Euro
twenty-five thousand) which consists of one share with the serial number (laufende Nummer) 1
(the “Existing Shares”). |
| |
| 2.2 |
|
The Pledgor is the owner of the Existing Shares and is registered as such in the shareholders
list (Gesellschafterliste) of the Company as filed (aufgenommen) with the commercial register
(Handelsregister), a copy of which is attached as Schedule 1 Part 4 (Copy of Shareholders
List). |
| |
| 3. |
|
PLEDGE |
| |
| 3.1 |
|
The Pledgor hereby pledges to the Pledgee the Shares together with all ancillary rights and
claims associated with the Shares as more particularly specified in Clause 4 (the “Pledge”
and/or the “Pledges”). |
| |
| 3.2 |
|
The Pledgee hereby accepts the Pledge. |
| |
| 3.3 |
|
The Pledge is in addition, and without prejudice, to any other security the Secured Parties
may now or hereafter hold in respect of the Obligations. |
| |
| 4. |
|
SCOPE OF THE PLEDGES |
| |
| 4.1 |
|
The Pledge constituted by this Agreement includes: |
| |
(a) |
|
the present and future rights to receive: |
| |
(i) |
|
dividends attributable to the Shares, if any; and |
| |
| |
(ii) |
|
liquidation proceeds, redemption proceeds (Einziehungsentgelt),
repaid
capital in case of a capital decrease, any compensation in case of
termination (Kündigung) and/or withdrawal (Austritt) of a shareholder |
- 12 -
| |
|
|
of the Company, the surplus in case of surrender (Preisgabe), any repayment
claim for any additional capital contributions (Nachschüsse) and all other
pecuniary claims associated with the Shares; |
| |
(b) |
|
the right to subscribe for newly issued shares; and |
| |
| |
(c) |
|
all other rights and benefits attributable to the Shares capable of being
pledged (verpfändbar) (including without limitation all present and future pecuniary
claims of the Pledgor against the Company arising under or in connection with any
domination and/or profit transfer agreement (Beherrschungs- und/oder
Gewinnabfuhrungsvertrag) or partial profit transfer agreement
(Teilgewinnabführungsvertrag) which may be entered into between the Pledgor and the
Company). |
| 4.2 |
|
Notwithstanding that the items set out in Clause 4.1 above are pledged hereunder, the Pledgor
shall be entitled to receive and retain the items set out in Clause 4.1 in respect of, and
otherwise deal (in accordance with the agreements between the parties) with all items
described in Clause 4.1 hereof in respect of the Shares at all times other than any time the
Pledgee is entitled to enforce the Pledge constituted hereunder. |
| |
| 4.3 |
|
On the date and during the period in which the Pledgee is entitled, in accordance with Clause
7 (Enforcement of the Pledges) hereof, to enforce the Pledge (or any part thereof): |
| |
(a) |
|
all dividends paid or payable and any other property received, receivable or
otherwise distributed in respect of or in exchange for the Shares; |
| |
| |
(b) |
|
all dividends or other distributions or payments paid or payable in respect of
the Shares in connection with the partial or total liquidation or dissolution of the
Company or in connection with the reduction of the amount of the registered share
capital of the Company; and |
| |
| |
(c) |
|
all cash paid, payable or otherwise distributed in respect of the principal of,
or in redemption of, or in exchange for the Shares, |
| |
|
shall be forthwith delivered to the Pledgee and held as security for and on behalf of the
Secured Parties. If such proceeds or property are received by the Pledgor, they shall be
received as trustee for the benefit of the Pledgee and shall be segregated from other
property or funds of the Pledgor and shall be forthwith delivered to the Pledgee as security
in the form so received (with any necessary endorsement). |
| |
| 5. |
|
PURPOSE OF THE PLEDGES |
| |
| |
|
The Pledge hereunder is constituted in order to secure the prompt and complete satisfaction
of any and all Obligations. The Pledge shall also cover any future extension of the
Obligations and the Pledgor herewith expressly agrees that the provisions of Section 1210
para 1 sentence 2 of the German Civil Code (Bürgerliches Gesetzbuch) shall not apply to this
Agreement. |
- 13 -
| 6. |
|
EXERCISE OF MEMBERSHIP RIGHTS |
| |
| |
|
The membership rights, including the voting rights, attached to the Shares remain
with the Pledgor. The Pledgor may exercise its membership rights in any manner which does
not adversely affect the validity and enforceability of the Pledge, the existence of all or
part of the Shares or cause an Event of Default to occur. The Pledgor undertakes, unless
otherwise agreed between the parties, that no resolutions will be passed which would, if
passed, constitute a breach of its obligations under Clause 10 or any other obligation
under this Agreement. |
| |
| 7. |
|
ENFORCEMENT OF THE PLEDGES |
| |
| 7.1 |
|
If (i) an Enforcement Event has occurred and is continuing and (ii) the requirements set
forth in Sections 1273 para 2, 1204 et seq. of the German Civil Code with regard to the
enforcement of the Pledge are met (Pfandreife), in particular, if any of the Obligations have
become due and payable, then in order to enforce the Pledge, the Pledgee (acting on the
instructions of the Secured Parties) may at any time thereafter avail itself of all rights and
remedies that a pledgee has against a pledgor under the laws of the Federal Republic of
Germany. |
| |
| 7.2 |
|
Notwithstanding Section 1277 of the German Civil Code, the Pledgee is entitled to exercise
its rights without obtaining enforceable judgment or other instrument (vollstreckbarer Titel).
The Pledgee shall be entitled to have the Pledge enforced in any manner allowed under the laws
of the Federal Republic of Germany, in particular have the Pledge sold (including at public
auction). |
| |
| 7.3 |
|
The Pledgor hereby expressly agrees that 5 (five) business days’ prior written notice to the
Pledgor of the place and time of any such sale shall be sufficient and the Pledgee shall not
be obliged to deliver any further notices (including, but not limited to the notices set out
under Section 1234 of the German Civil Code) to the Pledgor prior to such sale. The sale may
take place at any place in the Federal Republic of Germany designated by the Pledgee. |
| |
| 7.4 |
|
If the Pledgee (acting on the instructions of the Secured Parties) should seek to enforce the
Pledge under sub-Clause 7.1, the Pledgor shall, at its own expense, render forthwith all
necessary assistance in order to facilitate the prompt sale of the Shares or any part thereof
and/or the exercise by the Pledgee of any other right it may have as Pledgee. |
| |
| 7.5 |
|
Whilst the requirements for enforcement under sub-Clause 7.1 are continuing, all subsequent
dividend payments attributable to the Shares and all payments based on similar ancillary
rights attributed to the Shares may be applied by the Pledgee in satisfaction in whole or in
part of the Obligations or treated as additional collateral. |
| |
| 7.6 |
|
Even if the requirements for enforcement referred to under sub-Clause 7.1 above are met, the
Pledgee shall not, whether as proxy or otherwise, be entitled to exercise the voting rights
attached to the Shares. However, the Pledgor shall, during the continuation of an event which
allows the Pledgee to enforce the Pledge, have the |
- 14 -
| |
|
obligations and the Pledgee shall have the
rights set forth in sub-Clause 10.6 below regardless of which resolutions are intended to be
adopted. |
| |
| 7.7 |
|
The Pledgee may, in its sole discretion, determine which of several security interests, if
applicable, shall be used to satisfy the Obligations. The Pledgor hereby expressly waives its
right pursuant to Section 1230 sentence 2 of the German Civil Code to limit the realisation of
the Pledge and pledges over the shares or partnership interests in one or more other companies
to such number of pledges as are necessary to satisfy the Obligations and agrees further that
the Pledgee may decide to enforce the Pledge over the shares in the Company individually in
separate proceedings or together with pledges over shares or partnership interests in one or
more other companies at one single proceeding (Gesamtverwertung). |
| |
| 7.8 |
|
The Pledgor hereby expressly waives all defences of revocation (Einrede der Anfechtbarkeit)
and set-off (Einrede der Aufrechenbarkeit) pursuant to Sections 770, 1211 of the German Civil
Code. |
| |
| 7.9 |
|
The Pledgor hereby expressly waives its defences based on defences any Grantor might have
against any of the Obligations (Einreden des Hauptschuldners) pursuant to Section 1211 para 1
sentence 1 alternative 1 of the German Civil Code. |
| |
| 7.10 |
|
If the Pledge is enforced or if the Pledgor has discharged any of the Obligations (or any part
of them), Section 1225 of the German Civil Code (legal subrogation of claims to a pledgor -
Forderungsübergang auf den Verpfänder) shall not apply and no rights of the
Pledgee shall pass to the Pledgor by subrogation or otherwise. Further, the Pledgor shall at no
time before, on or after an enforcement of the Pledge and as a result of the Pledgor entering into
this Agreement, be entitled to demand indemnification or compensation from the Company or the
Company’s affiliates or to assign any of these claims. |
| |
| 8. |
|
UNLAWFUL FINANCIAL ASSISTANCE |
| |
| |
|
No obligations shall be included in the definition of Obligations to the extent that, if
they were included, the security interest granted pursuant to this Agreement or any part
thereof would be void as a result of violation of the prohibition on financial assistance
contained in Article 2:98c and 2:207c Dutch Civil Code or any other applicable financial
assistance rules under any relevant jurisdiction (the “Prohibition”) and all provisions
hereof will be interpreted accordingly. For the avoidance of doubt, this Agreement will
continue to secure those obligations which, if included in the definition of Obligations,
will not constitute a violation of the Prohibition, |
| |
| 9. |
|
APPROVAL AND CONFIRMATION |
| |
| |
|
The Pledgor as the sole shareholder of the Company hereby approves the Pledge over the
Shares and over any and all ancillary rights and claims associated with the Shares (as more
particularly specified in Clause 4) and pursuant to the articles of association of the
Company the Pledge is not subject to any approval of the Company. |
- 15 -
| 10. |
|
UNDERTAKINGS OF THE PLEDGOR |
| |
| |
|
Unless otherwise agreed between the parties, during the term of this Agreement, the
Pledgor undertakes to the Pledgee: |
| |
| 10.1 |
|
to promptly effect any contributions in cash (Bareinlage) or kind (Sacheinlage) to be made in
respect of the Shares; |
| |
| 10.2 |
|
to inform the Pledgee promptly of any change made in the registered share capital of the
Company, or any changes made to the articles of association of the Company which would
materially adversely affect the security interest of the Pledgee and in each such case to
promptly deliver to the Pledgee a copy of the updated shareholders list (Gesellschafterliste)
and a copy of the amended articles of association (Satzung) both as filed (aufgenommen) with
the commercial register (Handelsregister); |
| |
| 10.3 |
|
to promptly notify the Pledgee, by notification in writing of the registration of an
objection (Widerspruch) in relation to the Shares of the Pledgor in the shareholders list
(Gesellschafterliste) as filed (aufgenommen) with the commercial register (Handelsregister). |
| |
| 10.4 |
|
to promptly notify the Pledgee, by notification in writing, of any attachment
(Pfändung) in respect of any of the Shares or any ancillary rights set out in sub-Clause
4.1 such notice to be accompanied by any documents the Pledgee might need to defend itself against
any claim of a third party. In particular, the Pledgor shall promptly forward to the Pledgee a copy
of the attachment order (Pfändungsbeschluss), any transfer order (Überweisungsbeschluss) and all
other documents necessary for a defence against the attachment; |
| |
| 10.5 |
|
in the event of any increase in the capital of the Company, not to allow, without the prior
written consent of the Pledgee (such consent not to be unreasonably withheld), any party other
than himself to subscribe for any Future Shares, and not to defeat, impair or circumvent in
any way the rights of the Pledgee created hereunder; |
| |
| 10.6 |
|
to promptly inform the Pledgee, by notification in writing, of all matters concerning the
Company of which the Pledgor is aware which would materially adversely affect the security
interest of the Pledgee. In particular, the Pledgor shall notify the Pledgee, by notification
in writing, forthwith of any shareholders’ meeting at which a shareholders’ resolution is
intended to be adopted which would have a materially adverse effect upon the Pledge. The
Pledgor shall allow, following the occurrence and during the continuance of any of the
circumstances which permit the Pledgee to enforce the Pledge constituted hereunder in
accordance with Clause 7, the Pledgee or, as the case may be, its proxy or any other person
designated by the Pledgee, to participate in all such shareholders’ meetings of the Company
as attendants without power to vote. Subject to the provision contained in sub-Clause 14.1,
the Pledgee’s right to attend a shareholders’ meeting shall lapse immediately upon complete
satisfaction and discharge of the Obligations; |
- 16 -
| 10.7 |
|
to refrain from any acts or omissions, subject to the performance of its rights and duties
under the Existing Share Pledge Agreements, the purpose or effect of which is or would be the
dilution of the value of the Shares or the Shares ceasing to exist, unless permitted by the
Pledgee (acting reasonably); |
| |
| 10.8 |
|
not to amend the articles of association of the Company to the extent that such amendment
would materially adversely affect the security interest of the Pledgee created hereunder
without the prior written consent of the Pledgee (such consent not to be unreasonably
withheld); |
| |
| 10.9 |
|
insofar as additional declarations or actions are necessary for the creation of the Pledge in
favour of the Pledgee and at the Pledgee’s reasonable request (acting on the reasonable
instructions of the Secured Parties), to make such declarations and undertake such actions at
its own costs and expenses; and |
| |
| 10.10 |
|
for the avoidance of doubt, notification and consent requirements as set out in sub-Clauses
10.1 through 10.8 of this Agreement are deemed to be satisfied if and to the extent such
notification or consent has been delivered under the Existing Share Pledge Agreements provided
that such notification to the Pledgee or consent of the Pledgee makes reference to this
Agreement and each Existing Share Pledge Agreement. |
| |
| 11. |
|
DELEGATION |
| |
| |
|
The Pledgee shall have full power to delegate (either generally or specifically) the powers,
authorities and discretions conferred on it by this Agreement on such terms and conditions as
it shall see fit. The Pledgee shall only remain liable for diligently selecting and providing
initial instructions to such delegate. |
| |
| 12. |
|
INDEMNITY |
| |
| |
|
The Pledgor shall reimburse the Pledgee (which, for purposes of this Clause 12, shall include
its officers, directors, employees, agents and counsel) upon request for all properly
incurred, reasonable and documented out-of-pocket expenses incurred or made by it in
connection with the Credit Documents. Such expenses shall include the properly incurred,
reasonable and documented compensation and expenses, disbursements and advances of the
Pledgee’s agents, counsel, accountants and experts. The Pledgor shall indemnify the Pledgee
against any and all loss, liability, claim, taxes, costs, damage or expense (including
properly incurred, reasonable and documented attorneys’ fees and expenses) incurred by or in
connection with the acceptance or administration of the Pledgee’s performance of its duties
under this Agreement and under German law, including the costs and expenses of enforcing this
Agreement and defending itself against or investigating any claim. The obligation to pay such
amounts shall survive the payment in full or defeasance of the Obligations or the removal or
resignation of the Pledgee. The Pledgee shall notify Reynolds Group Holdings Limited of any
claim for which it may seek indemnity promptly upon obtaining actual knowledge thereof;
provided that any failure so to notify Reynolds Group Holdings Limited shall not relieve the
Pledgor of its indemnity obligations hereunder. The Pledgor may defend itself against such
claim and the Pledgee shall |
- 17 -
| |
|
provide reasonable cooperation in such defense. The Pledgee may have separate counsel and
the Pledgor shall pay the properly incurred, reasonable and documented fees and expenses of
such counsel. The Pledgor need not reimburse any expense or indemnify against any loss,
liability or expense incurred by the Pledgee through the Pledgee’s own wilful misconduct
(Vorsatz) or gross negligence (grobe Fahrlässigkeit). No provision of this Agreement shall
require the Pledgee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if repayment of such funds or adequate indemnity against such risk or
liability is not assured to its satisfaction. |
| |
| 13. |
|
NO LIABILITY |
| |
| |
|
Except as otherwise agreed between the parties to this Agreement, none of the Pledgee, its
nominee(s) or agent(s) or delegate(s) shall be liable by reason of (a) taking any action
permitted by this Agreement or (b) any neglect or default in connection with the assets and
rights subject to the security interest created hereunder, save in respect of any loss or
damage which is suffered as a result of wilful misconduct (Vorsatz) or gross negligence
(grobe Fahrlässigkeit) by the Pledgee, its nominee(s) or agent(s) or delegate(s), or (c) the
enforcement or realisation of all or any part of the security interest created hereunder. |
| |
| 14. |
|
DURATION AND INDEPENDENCE |
| |
| 14.1 |
|
This Agreement shall remain in full force and effect until complete satisfaction of the
Obligations. The Pledge shall not cease to exist, if any Grantor under the Credit Documents
has only temporarily discharged the Obligations. |
| |
| 14.2 |
|
This Agreement shall create a continuing security and no change, amendment, or supplement
whatsoever in the Credit Documents or in any document or agreement related to any of the
Credit Documents shall affect the validity or the scope of this Agreement nor the obligations
which are imposed on the Pledgor pursuant to it. |
| |
| 14.3 |
|
This Agreement is independent from any other security or guarantee which may have been or
will be given to the Collateral Agent. None of such other security shall prejudice, or shall
be prejudiced by, or shall be merged in any way with this Agreement. |
| |
| 14.4 |
|
Waiving Section 418 of the German Civil Code, the Pledgor hereby agrees that the security
created hereunder shall not be affected by any transfer or assumption of the Obligations to,
or by, any third party. |
| |
| 15. |
|
RELEASE OF PLEDGE (PFANDFREIGABE) |
| |
| 15.1 |
|
Upon complete and irrevocable satisfaction of the Obligations, the Collateral Agent (as
instructed in accordance with the First Lien Intercreditor Agreement) will as soon as
reasonably practicable declare in writing the release of the Pledge (Pfandfreigabe) to
the Pledgor as a matter of record. For the avoidance of doubt, the parties are aware |
- 18 -
| |
|
that upon
full and complete satisfaction of the Obligations the Pledge, due to its accessory nature
(Akzessorietät) ceases to exist by operation of German mandatory law. |
| |
| 15.2 |
|
At any time when the total value of the aggregate security granted by the Pledgor and any of
the other Grantors to secure the Obligations (the “Security”), which can be expected to be
realised in the event of an enforcement of the Security (realisierbarer Wert), exceeds 110% of
the Obligations (the “Limit”) not only temporarily, the Pledgee shall on demand of the Pledgor
release such part of the Security (Sicherheitenfreigabe) as the Pledgee (as instructed
in accordance with the First Lien Intercreditor Agreement) may in its reasonable discretion
determine so as to reduce the realisable value of the Security to the Limit. |
| |
| 15.3 |
|
The parties acknowledge that the Pledgee (as instructed in accordance with the First Lien
Intercreditor Agreement) will declare in writing the release of the Pledge (Pfandfreigabe) to
the Pledgor as soon as reasonably practicable in accordance with, and to the extent required
by, the Intercreditor Arrangements. |
| |
| 16. |
|
PARTIAL INVALIDITY; WAIVER |
| |
| 16.1 |
|
If at any time, any one or more of the provisions hereof is or becomes invalid, illegal or
unenforceable in any respect under the law of any jurisdiction, such provision shall as to
such jurisdiction, be ineffective to the extent necessary without affecting or impairing the
validity, legality and enforceability of the remaining provisions hereof or of such provisions
in any other jurisdiction. The invalid, illegal or unenforceable provision shall be deemed to
be replaced with such valid, legal or enforceable provision which comes as close as possible
to the original intent of the parties and the invalid, illegal or unenforceable provision.
Should a gap (Regelungslücke) become evident in this Agreement, such gap shall, without
affecting or impairing the validity, legality and enforceability of the remaining provisions
hereof, be deemed to be filled in with such provision which comes as close as possible to the
original intent of the parties. |
| |
| 16.2 |
|
No failure to exercise, nor any delay in exercising, on the part of the Pledgee, any right or
remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise
of any right or remedy prevent any further or other exercise thereof or the exercise of any
other right or remedy. The rights and remedies provided hereunder are cumulative and not
exclusive of any rights or remedies provided by law. |
| |
| 16.3 |
|
In particular, the Pledge shall not be affected and shall in any event extend to any and all
shares in the Company even if the number or nominal value of the Existing Shares or the
aggregate share capital of the Company as stated in Clause 2 are inaccurate or deviate from
the actual facts. |
| |
| 17. |
|
AMENDMENTS |
| |
| |
|
Changes and amendments to this Agreement including this Clause 17 shall be made in writing
except where notarisation is required. |
- 19 -
| 18. |
|
NOTICES AND THEIR LANGUAGE |
| |
| 18.1 |
|
All notices and other communications provided for herein shall be in writing and shall
be delivered by hand or overnight courier service, mailed by certified or registered mail or
sent by fax, as follows: |
| |
|
|
|
|
|
| For the Pledgor: |
|
Closure Systems International B.V. |
|
|
|
|
|
|
|
Address:
|
|
Teleboulevard 140,
1043 EJ Amsterdam,
The Netherlands |
|
|
|
|
|
|
|
Telephone:
|
|
+31 20 540 5800 |
|
|
|
|
|
|
|
Fax:
|
|
+31 20 644 7011 |
|
|
|
|
|
|
|
Attention:
|
|
Managing directors |
|
|
|
|
(Geschäftsführung) |
|
|
|
|
|
for the Pledgor with a copy to: |
|
|
|
|
|
|
|
|
|
|
|
Address:
|
|
c/o Rank Group Limited
Level 9
148 Quay Street
PO Box 3515
Auckland 1140
New Zealand |
|
|
|
|
|
|
|
Telephone.
|
|
+649 3666 259 |
|
|
|
|
|
|
|
Fax:
|
|
+649 3666 263 |
|
|
|
|
|
|
|
Attention:
|
|
Helen Golding |
- 20 -
| |
|
|
|
|
|
| For the Pledgee: |
|
The Bank of New York Mellon |
|
|
|
|
|
|
|
Address:
|
|
101 Barclay Street, 4E
New York, N.Y. 10286
The United States of America |
|
|
|
|
|
|
|
Telephone:
|
|
+212 298 1528 |
|
|
|
|
|
|
|
Fax:
|
|
+212 815 5366 |
|
|
|
|
|
|
|
Attention:
|
|
International Corporate
Trust |
| 18.2 |
|
Any party hereto may change its address or fax number for notices and other communications
hereunder by notice to the other parties hereto. As agreed to in writing by the parties,
notices and other communications hereunder may also be delivered by e-mail to the e-mail
address of a representative of the applicable party to this Agreement provided from time to
time by such party. |
| |
| 18.3 |
|
All notices and other communications given to any party in connection with this Agreement in
accordance with the provisions of this Agreement shall be deemed (widerlegbare Vermutung)
received on the date sent (if a business day) and on the next business day thereafter (in all
other cases) if delivered by hand or overnight courier service or sent by fax or on the date
five business days after dispatch by certified or registered mail if mailed, in each case
delivered, sent or mailed (properly addressed) to such party as provided in this Clause 18 or
in accordance with the latest unrevoked direction from such party given in accordance with
this Clause 18. |
| |
| 18.4 |
|
Any notice or other communication under or in connection with this Agreement shall be in the
English language or, if in any other language, accompanied by a translation into English. In
the event of any conflict between the English text and the text in any other language, the
English text shall prevail. |
| |
| 19. |
|
NOTIFICATION |
| |
| 19.1 |
|
The Pledgor and the Pledgee hereby give notice of this Agreement and the Pledge of the rights
pursuant to Clause 3 and Clause 4 to the Company. |
| |
| 19.2 |
|
The Company hereby acknowledges the notification pursuant to Clause 19.1 above. |
- 21 -
| 20. |
|
APPLICABLE LAW, JURISDICTION |
| |
| 20.1 |
|
This Agreement is governed by the laws of the Federal Republic of Germany. |
| |
| 20.2 |
|
The place of jurisdiction for any and all disputes arising under or in connection with this
Agreement shall be the courts in Frankfurt am Main. The Pledgee however, shall also be
entitled to take action against the Pledgor in any other court of competent jurisdiction.
Further, the taking of proceedings against the Pledgor in any one or more jurisdictions shall
not preclude the taking of proceedings in any other jurisdiction (whether concurrently or not)
if and to the extent permitted by applicable law. |
The Notary advised the persons appearing:
| • |
|
that a pledge is a security instrument of strictly accessory nature (which means that it
comes into legal existence only if, to the extent that, and as long as, the underlying secured
claims do in fact exist, and that the owners of the secured claims and the pledgees must be
identical); |
| |
| • |
|
that notwithstanding Section 16 para 3 German Limited Liability Companies Act (Gesetz
betreffend die Gesellschaften mit beschränkter Haftung) there is no bona fide creation,
acquisition nor ranking of a pledge of shares (in the sense that the pledgees are not
protected if the shares purported to be pledged do not exist or have been previously
encumbered for the benefit of a third party); and |
| |
| • |
|
that the English original version of this Agreement will not be acceptable for enforcement
but will have to be translated, by a certified translator, into German for such purposes. |
- 22 -
SCHEDULE 1
PART 1
LIST OF CURRENT BORROWERS
SIG Euro Holding AG & Co. KGaA
Closure Systems International Holdings Inc.
Closure Systems International B.V.
SIG Austria Holding GmbH
Reynolds Consumer Products Holdings Inc.
Reynolds Group Holdings Inc.
Pactiv Corporation
PART 2
LIST OF CURRENT GUARANTORS, CURRENT 2009 SENIOR SECURED NOTES
GUARANTORS, CURRENT OCTOBER 2010 SECURED NOTES GUARANTORS
AND CURRENT FEBRUARY 2011 SECURED NOTES GUARANTORS
Whakatane Mill Australia Pty Limited
SIG Austria Holding GmbH
SIG Combibloc GmbH & Co KG
SIG Combibloc GmbH
SIG Beverages Brasil Ltda
SIG Combibloc do Brasil Ltda.
Closure
Systems International (Brazil) Sistemas de Vedação Ltda
CSI Latin American Holdings Corporation
Evergreen Packaging Canada Limited
CSI
Closure Systems Manufacturing de Centro America, S.R.L.
- 23 -
SIG Holdings (UK) Limited
SIG Combibloc Limited
Closure Systems International (UK) Limited
Reynolds Consumer Products (UK) Limited
Reynolds Subco (UK) Limited
Kama Europe Limited
Ivex Holdings, Ltd.
SIG Euro Holding AG & Co. KGaA
SIG Beverages Germany GmbH
SIG Combibloc Holding GmbH
SIG Vietnam Beteiligungs GmbH
SIG Combibloc GmbH
SIG Combibloc Systems GmbH
SIG Combibloc Zerspanungstechnik GmbH
SIG Information Technology GmbH
SIG International Services GmbH
Closure Systems International Holdings (Germany) GmbH
Closure Systems International Deutschland GmbH
Pactiv Hamburg Holdings GmbH
Pactiv Deutschland Holdinggesellschaft mbH
Omni-Pac Ekco GmbH Verpackungsmittel
Omni-Pac GmbH Verpackungsmittel
SIG Asset Holdings Limited
Closure Systems International (Hong Kong) Limited
SIG Combibloc Limited
- 24 -
Evergreen Packaging (Hong Kong) Limited
Closure Systems International Holdings (Hungary) Kft.
CSI Hungary Gyártó és Kereskedelmi Kft. (aka CSI Hungary)
Closure Systems International Holdings (Japan) KK
Closure Systems International Japan, Limited
Beverage Packaging Holdings (Luxembourg) I S.A.
Beverage Packaging Holdings (Luxembourg) III S.à r.l.
Evergreen Packaging (Luxembourg) S.à r.l.
Reynolds Group Issuer (Luxembourg) S.A.
Bienes
Industriales del Norte S.A. de C.V.
CSI en Ensenada, S. de R.L. de C.V.
CSI en
Saltillo, S. de R.L. de C.V.
CSI Tecniservicio, S. de R.L. de C.V.
Grupo CSI de Mexico, S. de R.L. de C.V.
Técnicos de Tapas Innovativas S.A. de C.V.
Evergreen Packaging Mexico, S. de R.L. de C.V.
Reynolds Metals Company de Mexico, S. de R.L. de C.V.
Maxpack, S. de R.L. de C.V.
Closure Systems International B.V.
Reynolds Consumer Products International B.V.
Evergreen Packaging International B.V.
Reynolds Packaging International B.V.
Reynolds Group Holdings Limited
Whakatane Mill Limited
SIG Combibloc Group AG
- 25 -
SIG Technology AG
SIG allCap AG
SIG Combibloc (Schweiz) AG
SIG Schweizerische Industrie-Gesellschaft AG
SIG Combibloc Procurement AG
SIG Reinag AG
SIG Combibloc Ltd.
SIG Holding USA Inc.
SIG Combibloc Inc.
Closure Systems International Americas, Inc.
Closure Systems International Holdings Inc.
Closure Systems International Inc.
Reynolds Packaging Machinery Inc.
Closure Systems Mexico Holdings LLC
CSI Mexico LLC
CSI Sales & Technical Services Inc.
Bakers Choice Products, Inc.
Reynolds Consumer Products Holdings Inc.
Reynolds Consumer Products Inc.
Reynolds Foil Inc.
Reynolds Group Holdings Inc.
Reynolds Services Inc.
Blue Ridge Holding Corp.
Blue Ridge Paper Products Inc.
Evergreen Packaging International (US) Inc.
- 26 -
Evergreen Packaging Inc.
Evergreen Packaging USA Inc.
Reynolds Packaging, Inc.
Reynolds Packaging LLC
Reynolds Packaging Kama Inc.
Reynolds Food Packaging LLC
Reynolds Flexible Packaging Inc.
Southern Plastics Inc.
Ultra Pac, Inc.
BRPP, LLC
Reynolds Group Issuer Inc.
Reynolds Group Issuer LLC
Pactiv Corporation (formerly Reynolds Acquisition Corporation)
Pactiv Factoring LLC
Pactiv RSA LLC
Pactiv Retirement Administration LLC
Pactiv Germany Holdings, Inc.
Pactiv International Holdings Inc.
Pactiv Management Company LLC
PCA West Inc.
Prairie Packaging, Inc.
PWP Holdings, Inc.
PWP Industries, Inc.
Newspring Industrial Corp.
Pactiv Canada Inc.
- 27 -
The Baldwin Group Limited
J. & W. Baldwin (Holdings) Limited
Omni-Pac U.K. Limited
Conference Cup Ltd.
Dopaco Canada, Inc.
Dopaco, Inc.
Garven Incorporated
Central de Bolsas, S. de R.L. de C.V.
Servicios Industriales Jaguar, S. de C.V.
Servicio Terrestre Jaguar, S. de C.V.
Grupo Corporativo Jaguar, S. de C.V.
Pactiv Mexico, S. de R.L. de C.V.
- 28 -
PART 3
LIST OF CURRENT NEW SECURED NOTES GUARANTORS1
Whakatane Mill Australia Pty Limited
SIG Beverages Brasil Ltda
SIG Combibloc do Brasil Ltda.
Closure Systems International (Brazil) Sistemas de Vedação Ltda
CSI Latin American Holdings Corporation
Evergreen Packaging Canada Limited
CSI Closure Systems Manufacturing de Centro America, S.R.L.
SIG Holdings (UK) Limited
SIG Combibloc Limited
Closure Systems International (UK) Limited
Reynolds Consumer Products (UK) Limited
Reynolds Subco (UK) Limited
Kama Europe Limited
Ivex Holdings, Ltd.
SIG Euro Holding AG & Co. KGaA
SIG Beverages Germany GmbH
SIG Combibloc Holding GmbH
SIG Vietnam Beteiligungs GmbH
SIG Combibloc GmbH
SIG Combibloc Systems GmbH
SIG Combibloc Zerspanungstechnik GmbH
SIG Information Technology GmbH
SIG International Services GmbH
|
|
|
| 1 |
|
Post closing Austrian guarantors excluded. |
- 29 -
Closure Systems International Holdings (Germany) GmbH
Closure Systems International Deutschland GmbH
Pactiv Hamburg Holdings GmbH
Pactiv Deutschland Holdinggesellschaft mbH
Omni-Pac Ekco GmbH Verpackungsmittel
Omni-Pac GmbH Verpackungsmittel
SIG Asset Holdings Limited
Closure Systems International (Hong Kong) Limited
SIG Combibloc Limited
Evergreen Packaging (Hong Kong) Limited
Closure Systems International Holdings (Hungary) Kft.
CSI Hungary Gyártóés Kereskedelmi Kft. (aka CSI Hungary)
Closure Systems International Holdings (Japan) KK
Closure Systems International Japan, Limited
Beverage Packaging Holdings (Luxembourg) I S.A.
Beverage Packaging Holdings (Luxembourg) III S.à r.l.
Evergreen Packaging (Luxembourg) S.à r.l.
Reynolds Group Issuer (Luxembourg) S.A.
Bienes Industriales del Norte S.A. de C.V.
CSI en Ensenada, S. de R.L. de C.V.
CSI en Saltillo, S. de R.L. de C.V.
CSI Tecniservicio, S. de R.L. de C.V.
Grupo CSI de Mexico, S. de R.L. de C.V.
Técnicos de Tapas Innovativas S.A. de C.V.
Evergreen Packaging Mexico, S. de R.L. de C.V.
- 30 -
Reynolds Metals Company de Mexico, S. de R.L. de C.V.
Maxpack, S. de R.L. de C.V.
Closure Systems International B.V.
Reynolds Consumer Products International B.V.
Evergreen Packaging International B.V.
Reynolds Packaging International B.V.
Reynolds Group Holdings Limited
Whakatane Mill Limited
SIG Combibloc Group AG
SIG Technology AG
SIG allCap AG
SIG Combibloc (Schweiz) AG
SIG Schweizerische Industrie-Gesellschaft AG
SIG Combibloc Procurement AG
SIG Reinag AG
SIG Combibloc Ltd.
SIG Holding USA Inc.
SIG Combibloc Inc.
Closure Systems International Americas, Inc.
Closure Systems International Holdings Inc.
Closure Systems International Inc.
Reynolds Packaging Machinery Inc.
Closure Systems Mexico Holdings LLC
CSI Mexico LLC
CSI Sales & Technical Services Inc.
- 31 -
Bakers Choice Products, Inc.
Reynolds Consumer Products Holdings Inc.
Reynolds Consumer Products Inc.
Reynolds Foil Inc.
Reynolds Group Holdings Inc.
Reynolds Services Inc.
Blue Ridge Holding Corp.
Blue Ridge Paper Products Inc.
Evergreen Packaging International (US) Inc.
Evergreen Packaging Inc.
Evergreen Packaging USA Inc.
Reynolds Packaging, Inc.
Reynolds Packaging LLC
Reynolds Packaging Kama Inc.
Reynolds Food Packaging LLC
Reynolds Flexible Packaging Inc.
Southern Plastics Inc.
Ultra Pac, Inc.
BRPP, LLC
Reynolds Group Issuer Inc.
Reynolds Group Issuer LLC
Pactiv Corporation (formerly Reynolds Acquisition Corporation)
Pactiv Factoring LLC
Pactiv RSA LLC
Pactiv Retirement Administration LLC
- 32 -
Pactiv Germany Holdings, Inc.
Pactiv International Holdings Inc.
Pactiv Management Company LLC
PCA West Inc.
Prairie Packaging, Inc.
PWP Holdings, Inc.
PWP Industries, Inc.
Newspring Industrial Corp.
Pactiv Canada Inc.
The Baldwin Group Limited
J. & W. Baldwin (Holdings) Limited
Omni-Pac U.K. Limited
Conference Cup Ltd.
Dopaco Canada, Inc.
Dopaco, Inc.
Garven Incorporated
Central de Bolsas, S. de R.L. de C.V.
Servicios Industriales Jaguar, S. de C.V.
Servicio Terrestre Jaguar, S. de C.V.
Grupo Corporativo Jaguar, S. de C.V.
Pactiv México, S. de R.L. de C.V.
- 33 -
PART 4
COPY OF SHAREHOLDERS LIST (GESELLSCHAFTERLISTE)
- 34 -
Amtsgericht Mainz
HRB 41388
Ausdruck aus dem Registerordner
| Dokument: |
|
55116_HRB41388_GEL_R_2008-11-18_1186728_#001.PDF
(Liste der Gesellschafter) |
Eingestellt in den Registerordner am: 03.12.2008
Abgerufen aus dem Registerordner am: 04.08.2011 11:40:03
| |
|
|
|
Mainz, den 04.08.2011
|
|
|
|
|
|
| /s/ [ILLEGIBLE] |
|
|
| |
|
|
Metzler
Justizbeschäftigte |
|
|
Dieses
Schrelben lst maschinell erstellt und auch ohne Unterschrift wirksam.
Gesellschafterliste
gernäß
§ 40 1 GmbH-Gesetz
der
Closure Systems International Holdings (Germany) GmbH
(eingetragen im Handelsregister des Amtsgerichts Mainz unter HRB 41388)
| |
|
|
|
|
|
|
| Nr. des Geschäftsanteils |
|
Gesellschafter |
|
Sitz |
|
Ncnnbetrag des Geschäftsanteils in Euro |
1
|
|
Closure Systems
International B.V.
|
|
Amsterdam
|
|
25.000 € |
|
|
|
|
|
|
|
Summe (Stammkapital)
|
|
|
|
|
|
25.000 € |
Auckland, den 18th November 2008
| |
|
|
|
|
/s/ Helen Golding
|
|
/s/ Gregory Cole |
|
|
|
|
|
Helen Golding
|
|
Gregory Cole |
|
— Geschäftsführein —
|
|
— Geschäftsführer — |
|
Appendix 3
SIG COMBIBLOC GROUP AG
as Pledgor
SIG COMBIBLOC HOLDING GMBH
as Company
THE BANK OF NEW YORK MELLON
as Collateral Agent and Pledgee
SHARE PLEDGE AGREEMENT RELATING TO
THE SHARES IN SIG COMBIBLOC HOLDING
GMBH
(Geschäftsanteilsverpfändung)
The taking of this document or any certified copy of it or any document which constitutes
substitute documentation for it, or any document which includes written confirmations or references
to it, into Austria as well as printing out any e-mail communication which refers to any Credit
Document (as defined in Clause 1 of this document) in Austria or sending any e-mail communication
to which a pdf scan of this document is attached to an Austrian addressee or sending any e-mail
communication carrying an electronic or digital signature which refers to any Credit Document to an
Austrian addressee may cause the imposition of Austrian stamp duty. Accordingly, keep the original
document as well as all certified copies thereof and written and signed references to it outside of
Austria and avoid printing out any email communication which refers to any Credit Document in
Austria or sending any e-mail communication to which a pdf scan of this document is attached to an
Austrian addressee or sending any e-mail communication carrying an electronic or digital signature
which refers to any Credit Document to an Austrian addressee.
Contents
| |
|
|
|
|
| Clause |
|
Page |
|
1. Definitions and Language |
|
|
4 |
|
2. Pledged Shares |
|
|
11 |
|
3. Pledge |
|
|
11 |
|
4. Scope of the Pledges |
|
|
11 |
|
5. Purpose of the Pledges |
|
|
12 |
|
6. Exercise of Membership Rights |
|
|
13 |
|
7. Enforcement of the Pledges |
|
|
13 |
|
8. Swiss Limitations |
|
|
16 |
|
9. Undertakings of the Pledgor |
|
|
17 |
|
10. Delegation |
|
|
19 |
|
11. Indemnity |
|
|
19 |
|
12. No Liability |
|
|
19 |
|
13. Duration and Independence |
|
|
20 |
|
14. Release
of Pledge (Pfandfreigabe) |
|
|
20 |
|
15. Partial Invalidity; Waiver |
|
|
20 |
|
16. Amendments |
|
|
21 |
|
17. Notices and their Language |
|
|
21 |
|
18. Notification |
|
|
23 |
|
19. Applicable Law, Jurisdiction |
|
|
23 |
|
Schedule 1 |
|
|
25 |
|
Part 1 List of Current Borrowers |
|
|
25 |
|
Part 2 List of Current Guarantors, Current 2009 Senior Secured Notes Guarantors, Current
October 2010 Secured Notes Guarantors and Current February 2011 Secured Notes
Guarantors |
|
|
25 |
|
Part 3 List of Current New Secured Notes Guarantors |
|
|
31 |
|
Part 4 Copy
of Shareholders List (Gesellschafterliste) |
|
|
36 |
|
- 1 -
This SHARE PLEDGE AGREEMENT (the “Agreement”) is made on September 8, 2011
BETWEEN:
| (1) |
|
SIG Combibloc Group AG, a stock corporation
(Aktiengesellschaft) organised under the laws of Switzerland, having its
business address at Laufengasse 18, CH-8212 Neuhausen am Rheinfall,
Switzerland, which is registered in the commercial register
(Handelsregister)
of the Canton of Schaffhausen under the federal register number
CH-290.3.004.149-2 (the “Pledgor”); |
| |
| (2) |
|
SIG Combibloc Holding GmbH, a limited liability company
(Gesellschaft mit beschränkter Haftung) organised under the laws of the
Federal Republic of Germany having its corporate seat in Waldshut-Tiengen,
Germany and its business address at Rurstraße 58, 52441 Linnich, Germany,
which is registered in the commercial register (Handelsregister) of the local
court (Amtsgericht) of Duren under HRB 5751 (the “Company”); and |
| |
| (3) |
|
The Bank of New York Mellon, having its business address at 1
Wall Street, New York, N.Y. 10286, The United States of America, in its
capacity as collateral agent under the First Lien Intercreditor Agreement (as
defined below) (the “Collateral Agent” or the “Pledgee”). |
WHEREAS:
| (A) |
|
Pursuant to the second amended and restated senior secured
multi-currency term and revolving credit agreement dated 9 August 2011 of
currently up to USD 4,445,000,000 and EUR 330,000,000 between, inter alia, the
parties listed in Schedule 1 Part 1 hereto as current borrowers (the “Current
Borrowers”), the parties listed in Schedule 1 Part 2 hereto as current
guarantors (the “Current Guarantors”), Credit Suisse AG as administrative agent
and others (as amended, varied, novated, restated, supplemented, superseded or
extended from time to time, the “Second Amended and Restated Credit
Agreement”), which amends and restates the multicurrency term and revolving
credit agreement dated 5 November 2009 between, inter alia, the Current
Borrowers and the Current Guarantors, Credit Suisse AG as administrative agent
and others (as amended and restated pursuant to the
Second Amended and Restated Credit Agreement and as further amended, varied,
novated, restated, supplemented, superseded or extended from time to time,
hereinafter the “Credit Agreement”), certain lenders (together the “Original
Lenders”) have granted certain facilities to the Current Borrowers and
certain other entities which may accede or may have acceded to the Credit
Agreement as additional borrowers. |
| |
| (B) |
|
Pursuant to a senior secured notes indenture dated 5 November
2009 between, inter alia, Reynolds Group Issuer LLC, Reynolds Group Issuer
Inc., and Reynolds Group Issuer (Luxembourg) S.A as ultimate issuers (the
“Issuers”), certain affiliates of the Issuers listed in Schedule 1 Part 2
hereto as current 2009 senior secured notes guarantors (the “Current 2009
Senior Secured Notes Guarantors”) and The Bank of New York Mellon, as indenture
trustee, principal paying agent, transfer agent and registrar, (as amended,
varied, novated, supplemented, superseded or extended from time to time, the
“2009 Senior Secured Notes Indenture”), the Issuers have issued senior secured
notes due 2016 in the aggregate principal amount of USD 1,125,000,000 (the “US
Secured Notes”) and senior secured notes due 2016 in the |
- 2 -
| |
|
aggregate principal amount of EUR 450,000,000 (the “Euro Secured Notes” and together with
the US Secured Notes the “2009 Senior Secured Notes”) to certain noteholders. |
| (C) |
|
Pursuant to a senior secured notes indenture dated 15 October 2010 between, inter
alia, RGHL US Escrow I LLC, RGHL US Escrow I Inc., and RGHL Escrow Issuer
(Luxembourg) I S.A. as escrow issuers (the “Escrow Issuers”), The Bank of New
York Mellon as indenture trustee, The Bank of New York Mellon, London Branch as
principal paying agent, The Bank of New York Mellon as collateral agent and
Wilmington Trust (London) Limited as additional collateral agent (as amended,
varied, novated, supplemented, superseded or extended from time to time, the
“October 2010 Secured Notes Indenture”), the Escrow Issuers have issued secured
notes due 2019 in the aggregate principal amount of USD 1,500,000,000 in escrow
(the “ October 2010 Secured Notes”). In connection with the release from escrow of
the proceeds of the October 2010 Secured Notes, which occurred on 16 November
2010, the Escrow Issuers were merged with and into the Issuers, with each of the
Issuers surviving the applicable mergers or other transfers and assuming by operation
of law the obligations of the applicable Escrow Issuers with respect to the October
2010 Secured Notes Indenture and the October 2010 Secured Notes. Certain affiliates
of the Issuers listed in Schedule 1 Part 2 hereto have acceded to the October 2010
Secured Notes Indenture as current October 2010 secured notes guarantors (the
“Current October 2010 Secured Notes Guarantors”). |
| |
| (D) |
|
Pursuant to a senior secured notes indenture dated 1 February 2011 between, inter
alia, the Issuers, The Bank of New York Mellon as indenture trustee, The Bank of
New York Mellon, London Branch as principal paying agent, The Bank of New York
Mellon as collateral agent and Wilmington Trust (London) Limited as additional
collateral agent (as amended, varied, novated, supplemented, superseded or extended
from time to time, the “February 2011 Secured Notes Indenture”), the Issuers have
issued secured notes due 2021 in the aggregate principal amount of USD
1,000,000,000 (the “February 2011 Secured Notes”) which are guaranteed by
certain affiliates of the Issuers listed in Schedule 1 Part 2 hereto as current February 2011 secured notes guarantors (the “Current February 2011 Secured Notes
Guarantors”). |
| |
| (E) |
|
The Pledgor has entered into the Existing Share Pledge Agreements (as defined
below). |
| |
| (F) |
|
Pursuant to a senior secured notes indenture dated 9 August 2011 between, inter alia,
the RGHL US Escrow II LLC and RGHL US Escrow II Inc. as escrow issuers (the
“August 2011 Escrow Issuers”), The Bank of New York Mellon as indenture trustee,
The Bank of New York Mellon, London Branch as principal paying agent, The Bank
of New York Mellon as collateral agent and Wilmington Trust (London) Limited as
additional collateral agent (as amended, varied, novated, supplemented, superseded or
extended from time to time, the “New Secured Notes Indenture”), the August 2011
Escrow Issuers have issued senior secured notes due 2019 in the aggregate principal
amount of USD 1,500,000,000 (the “New Secured Notes”). In connection with the
release from escrow of the proceeds of the New Secured Notes, RGHL US Escrow II |
- 3 -
| |
|
Inc. and RGHL US Escrow II LLC shall be merged with and into Reynolds Group Issuer Inc. and
Reynolds Group Issuer LLC (together with Reynolds Group Issuer (Luxembourg) S.A. the
“August 2011 Ultimate Issuers”), respectively, and the obligations of the August 2011
Escrow Issuers shall be assumed by the August 2011 Ultimate Issuers pursuant to one or more
supplemental indentures between, among others, the August 2011 Escrow Issuers, the August
2011 Ultimate Issuers, The Bank of New York Mellon, as trustee, principal paying agent,
transfer agent, registrar and collateral agent and Wilmington Trust (London) Limited, as
additional collateral agent. At such time certain affiliates of the August 2011 Ultimate
Issuers listed in Schedule 1 Part 3 hereto as current new secured notes guarantors (the
“Current New Secured Notes Guarantors”) will accede to the New Secured Notes Indenture). |
| (G) |
|
As a result of the Second Amended and Restated Credit Agreement and the
amendment No. 6 and incremental term loan assumption agreement dated 9August
2011 between, inter alia, the Current Borrowers, the Current Guarantors, Credit
Suisse AG, Cayman Islands Branch as administrative agent and others (the
“Amendment No. 6 and Incremental Term Loan Assumption Agreement”)
certain lenders have agreed to grant incremental term loans in an aggregate amount of
up to USD 2,000,000,000. |
| |
| (H) |
|
The Pledgor has agreed to grant an additional pledge (subject to the pledges arising
under the Existing Share Pledge Agreements (as defined below)) over its Shares (as
defined below) in the Company as security for the Pledgee’s respective claims against
the Grantors (as defined below) (or any of them) in respect of the Obligations (as
defined below). |
| |
| (I) |
|
The security created by or pursuant to this Agreement is to be administered by the
Collateral Agent for the Secured Parties (as defined below) pursuant to a first lien
intercreditor agreement dated 5 November 2009 (as amended by the Amendment No.
1 and Joinder Agreement (as defined below)) between, inter alia, the Collateral
Agent, the Indenture Trustee, the Administrative Agent and the Grantors (each as
defined below) and others (as amended, varied, novated, supplemented, superseded or
extended from time to time, the “First Lien Intercreditor Agreement”). |
NOW, IT IS AGREED as follows:
| 1. |
|
DEFINITIONS AND LANGUAGE |
| |
| 1.1 |
|
In this Agreement: |
| |
| |
|
“Administrative Agent” means Credit Suisse AG, Cayman Islands Branch, having its business
address at Eleven Madison Avenue, New York, NY 10010, United States of America in its
capacity as administrative agent under the Credit Agreement and any successor appointed as
administrative agent under the Credit Agreement.
|
- 4 -
| |
|
“Amendment No.1 and Joinder Agreement” means the joinder agreement dated 21 January 2010 relating
to the First Lien Intercreditor Agreement made among (amongst others) the Collateral Agent,
Wilmington Trust (London) Limited, Credit Suisse AG and Reynolds Group Holdings Limited pursuant to
which Wilmington Trust (London) Limited is appointed as additional collateral agent and became
party to the First Lien Intercreditor Agreement. |
| |
|
“Borrowers” means the Current Borrowers and any entity which may accede to the Credit Agreement as
an additional borrower and “Borrower” means any of them. |
| |
| |
|
“Cash Management Bank” shall mean Citibank N.A., Banco Nacional De Mexico S.A., Citibank
International PLC, UK, Citibank (China) Co., Limited, Citibank Global Markets Deutschland AG & Co
KGaA, Citibank ZRT, Hungary, a Lender, the Administrative Agent or any of the Lender’s or the
Administrative Agent’s affiliates (at the time the cash management services arrangement is entered
into) provided in each case it has become a party to, or by execution of an additional bank secured
party acknowledgment has agreed to be bound by the terms of, the First Lien Intercreditor Agreement
in its capacity as cash management bank. |
| |
| |
|
“Cash Management Services” shall mean any agreement or arrangement by a Cash Management Bank to
provide any composite accounting or other cash pooling arrangements and netting, overdraft
protection and other arrangements with any bank arising under standard business terms of such Cash
Management Bank to a Grantor. |
| |
| |
|
“Credit Documents” shall mean the Loan Documents, the 2009 Senior Secured Notes Documents, the
October 2010 Secured Notes Documents, the February 2011 Secured Notes Documents and the New Secured
Notes Documents. |
| |
| |
|
“Enforcement Event” shall mean an Event of Default. |
| |
| |
|
“Event of Default” means any event of
default (Kündigungsgrund) under the Credit Agreement and/or
the 2009 Senior Secured Notes Indenture and/or the October 2010 Secured Notes Indenture and/or the
February 2011 Secured Notes Indenture and/or the New Secured Notes Indenture. |
| |
| |
|
“Existing Intercreditor Agreement” means the existing intercreditor agreement dated 11 May 2007 (as
amended by a letter dated 21 June 2007 and a further letter dated 29 June 2007, as amended and
restated on 5 November 2009 and as further amended on 5 November 2010) between, inter alia,
Beverage Packaging Holdings (Luxembourg) I S.A., Rank Group Holdings Limited (now Reynolds Group
Holdings Limited), Beverage Packaging Holdings (Luxembourg) II S.A., Beverage Packaging Holdings
(Luxembourg) III S.à r.l., Credit Suisse AG (formerly Credit Suisse) as security trustee
and others. |
| |
| |
|
“Existing Share Pledge Agreements” means |
| |
(a) |
|
the share pledge agreement dated 5 November 2009 (as amended by a confirmation and
amendment agreement dated 4 May 2010) entered |
- 5 -
| |
|
|
into between SIG Combibloc Group AG as pledgor and The Bank of New York Mellon as
collateral agent and as pledgee and others as pledgees; |
| |
(b) |
|
a confirmation and amendment agreement dated 4 May 2010 entered into between,
inter alios, SIG Combibloc Group AG as pledgor and The Bank of New York Mellon as
collateral agent and others (the “Confirmation and Amendment Agreement”); |
| |
| |
(c) |
|
the share pledge agreement dated 16 November 2010 entered into between SIG
Combibloc Group AG as pledgor and The Bank of New York Mellon as collateral agent and
as pledgee; and |
| |
| |
(d) |
|
the share pledge agreement dated 2 March 2011 entered into between SIG
Combibloc Group AG as pledgor and The Bank of New York Mellon as collateral agent and
as pledgee. |
| |
|
“Existing Shares” has the meaning given to such term in sub-Clause 2.1 hereof. |
| |
| |
|
“February 2011 Secured Notes Documents” shall mean the February 2011 Secured Notes Indenture, the
February 2011 Secured Notes Guarantees, the February 2011 Secured Notes, the Intercreditor
Arrangements, any supplemental indenture, any security document relating to the February 2011
Secured Notes and/or the February 2011 Secured Notes Indenture and any other document that may be
entered into pursuant to any of the foregoing. |
| |
| |
|
“February 2011 Secured Notes Guarantees” shall mean the guarantees of the obligations of the
Issuers under the February 2011 Secured Notes and the February 2011 Secured Notes Indenture by the
February 2011 Secured Notes Guarantors. |
| |
| |
|
“February 2011 Secured Notes Guarantors” means the Current February 2011 Secured Notes Guarantors
and any entity which may accede to the February 2011 Secured Notes Indenture as additional
guarantor. |
| |
| |
|
“February 2011 Secured Notes Holders” shall mean the holders from time to time of the February 2011
Secured Notes. |
| |
| |
|
“February 2011 Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its
capacity as indenture trustee under the February 2011 Secured Notes Indenture and any successor
appointed as indenture trustee under the February 2011 Secured Notes Indenture. |
| |
| |
|
“Future Shares” means all additional shares in the capital of the Company (irrespective of their
nominal value) which the Pledgor may acquire in the future in the event of a share transfer, a
share split, a share combination, an increase of the capital of the Company (including by way of
authorised capital (genehmigtes Kapital)) or otherwise. |
- 6 -
| |
|
“Grantors” means the Loan Parties, the Issuers, the 2009 Senior Secured Notes Guarantors, the
October 2010 Secured Notes Guarantors, the February 2011 Secured Notes Guarantors and the New
Secured Notes Guarantors and any person that has granted a security interest to the Collateral
Agent and/or the Secured Parties in respect of the obligations of the Loan Parties, the Issuers and
the 2009 Senior Secured Notes Guarantors, the October 2010 Secured Notes Guarantors, the February
2011 Secured Notes Guarantors and the New Secured Notes Guarantors under the Credit Documents and
“Grantor” means any of them. |
| |
| |
|
“Grantors’ Agent” shall mean Reynolds Group Holdings Limited or any other person appointed as agent
of the Grantors in accordance with the Principal Finance Documents. |
| |
| |
|
“Group” means Reynolds Group Holdings Limited and its direct or indirect subsidiaries
(Tochtergesellschaften). |
| |
| |
|
“Hedge Counterparty” means a Lender, the Administrative Agent or any of the Lender’s or the
Administrative Agent’s affiliates (at the time a hedging agreement is entered into) who has entered
into a hedging agreement for the purpose of hedging interest rate liabilities and/or any exchange
rate and/or commodity price risks provided it has become a party, or by execution of an additional
bank secured party acknowledgment has agreed to be bound by the terms of, to the First Lien
Intercreditor Agreement in its capacity as hedge counterparty. |
| |
| |
|
“Incremental Assumption Agreement” shall mean an incremental assumption agreement relating to
incremental facilities of up to USD 2,000,000,000 among, and in form and substance reasonably
satisfactory to, one or more Borrowers, the Administrative Agent, one or more Incremental Term
Lenders and/or one or more Incremental Revolving Credit Lenders pursuant to which one or more
Incremental Term Lenders make available Incremental Term Loan Commitments and/or one or more
Incremental Revolving Credit Lenders make available Incremental Revolving Credit Commitments
respectively. |
| |
| |
|
“Incremental Revolving Credit Lender” shall mean a Lender with an Incremental Revolving Credit
Commitment or an outstanding revolving loan under the Credit Agreement of any class as a result of
an Incremental Revolving Credit Commitment. |
| |
| |
|
“Incremental Revolving Credit Commitment” shall mean the commitment of any Lender, established
pursuant to the Credit Agreement, to make available certain revolving credit loans to one or more
Borrowers. |
| |
| |
|
“Incremental Term Lender” shall mean a Lender with an Incremental Term Loan Commitment. |
| |
| |
|
“Incremental Term Loan Commitment” shall mean the commitment of any Lender, established pursuant to
the Credit Agreement, to make available certain term loans to one or more Borrowers. |
- 7 -
| |
|
“Indenture Trustee” shall mean The Bank of New York Mellon, in its capacity as indenture trustee
under the 2009 Senior Secured Notes Indenture and any successor appointed as indenture trustee
under the 2009 Senior Secured Notes Indenture. |
| |
| |
|
“Intercreditor Arrangements” means the First Lien Intercreditor Agreement and the Existing
Intercreditor Agreement, in each case as amended, novated, supplemented, restated, or modified from
time to time. |
| |
| |
|
“Issuing Bank” means Credit Suisse AG or any other Lender or any affiliate of Credit Suisse AG or
any other Lender that issues letters of credit or bank guarantees under the Credit Agreement. |
| |
| |
|
“Lenders” shall mean the Original Lenders and any entity which may become a lender under the Credit
Agreement in the future and “Lender” means any of them. |
| |
| |
|
“Loan Documents” shall mean the Credit Agreement, the Amendment No.l and Joinder Agreement, the
Second Amended and Restated Credit Agreement and the Amendment No. 6 and Incremental Term Loan
Assumption Agreement, any borrowing subsidiary agreement and/or guarantor joinder agreement
relating to the Credit Agreement, any letter of credit or bank guarantee relating to the Credit
Agreement, any security documents relating to the Credit Agreement, any hedging agreement entered
into by a Hedge Counterparty and a Grantor, each Incremental Assumption Agreement, the
Intercreditor Arrangements, each Promissory Note, any agreement between a Grantor and a Cash
Management Bank relating to Cash Management Services, each Local Facility Agreement and any
other document that may be entered into pursuant to any of the foregoing in relation to the Credit
Agreement. |
| |
| |
|
“Loan Parties” shall mean the Borrowers, the Current Guarantors and any entity which may accede to
the Credit Agreement as additional guarantor and a “Loan Party” means any of them. |
| |
| |
|
“Local Facilities” means working capital facilities provided to a Grantor (other than Beverage
Packaging Holdings (Luxembourg) I S.A., Beverage Packaging Holdings (Luxembourg) II S.A. Beverage
Packaging Holdings (Luxembourg) III S. à r.l. and the Borrowers) by a Local Facility
Provider and “Local Facility” means any of them. |
| |
| |
|
“Local Facility Agreements” shall mean any agreement under which a Local Facility is made
available. |
| |
| |
|
“Local Facility Provider” means HSBC Trinkaus & Burkhardt AG, Deutsche Bank AG, Commerzbank
Aktiengesellschaft and Hong Kong and Shanghai Banking Corporation Ltd., Thailand, Bank of America,
N.A., Canada Branch, FIA Card Services, N.A., Citibank N.A., Citibank (China) Co., Ltd., Banco
Nacional de Mexico, S.A., Integrante del Grupo Financiero Banamex, Bank of America, N.A., provided
in each case it has become a party to, or by execution of an additional bank secured party
acknowledgment has agreed to be bound by the terms of, the First Lien Intercreditor Agreement in
its capacity as local facility provider. |
- 8 -
| |
|
“New Secured Notes Documents” Shall mean the New
Secured Notes Indenture, the New Secured
Notes Guarantees, the New Secured Notes, the Intercreditor Arrangements, any supplemental
indenture, any security document relating to the New Secured Notes and/or the New Secured Notes
Indenture and any other document that may be entered into pursuant to any of the foregoing. |
| |
| |
|
“New Secured Notes Guarantees” shall mean the guarantees of the obligations of the August 2011
Escrow Issuers and/or of the August 2011 Ultimate Issuers under the New Secured Notes and the New
Secured Notes Indenture by the New Secured Notes Guarantors. |
| |
| |
|
“New Secured Notes Guarantors” means the Current New Secured Notes Guarantors and any entity which
may accede to the New Secured Notes Indenture as additional guarantor. |
| |
| |
|
“New Secured Notes Holders” shall mean the holders from time to time of the New Secured Notes. |
| |
| |
|
“New Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its capacity as
indenture trustee under the New Secured Notes Indenture and any successor appointed as indenture
trustee under the New Secured Notes Indenture. |
| |
| |
|
“Obligations” shall mean all present and future obligations and liabilities (whether actual or
contingent and whether owed jointly or severally or in any other capacity whatsoever) of each
Grantor to the Pledgee under each or any of the Credit Documents (including, but not limited to,
the Parallel Obligations), including with respect to all costs, charges and expenses incurred by
the Pledgee in connection with the protection, preservation or enforcement of its rights under the
Credit Documents or any other document evidencing or securing any such liabilities. The Obligations
shall further include any obligation based on unjust enrichment (ungerechtfertigte Bereicherung) or
tort (Delikt). |
| |
| |
|
“October 2010 Secured Notes Documents” shall mean the October 2010 Secured Notes Indenture, the
October 2010 Secured Notes Guarantees, the October 2010 Secured Notes, the Intercreditor
Arrangements, any supplemental indenture relating to the October 2010 Secured Notes Indenture, any
security document relating to the October 2010 Secured Notes and/or the October 2010 Secured Notes
Indenture and any other document that may be entered into pursuant to any of the foregoing. |
| |
| |
|
“October 2010 Secured Notes Guarantees” shall mean the guarantees of the obligations of the Issuers
under the October 2010 Secured Notes and the October 2010 Secured Notes Indenture by the October
2010 Secured Notes Guarantors. |
| |
| |
|
“October 2010 Secured Notes Guarantors” means the Current October 2010 Secured Notes Guarantors and
any entity which may accede to the October 2010 Secured Notes Indenture as additional guarantor. |
- 9 -
| |
|
“October 2010 Secured Notes Holders” shall mean the holders from time to time of the October 2010
Secured Notes. |
| |
| |
|
“October 2010 Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its
capacity as indenture trustee under the October 2010 Secured Notes Indenture and any successor
appointed as indenture trustee under the October 2010 Secured Notes Indenture. |
| |
| |
|
“Parallel Obligations” means the independent obligations of any of the Grantors arising pursuant to
the First Lien Intercreditor Agreement to pay to the Collateral Agent sums equal to the sums owed
by such Grantor to the other Secured Parties (or any of them) under the Credit Documents. |
| |
| |
|
“Pledge” and “Pledges” have the meanings given to such terms in Clause 3.1. |
| |
| |
|
“Principal Finance Documents” means the Credit Agreement, the 2009 Senior Secured Notes Indenture,
the October 2010 Secured Notes Indenture, the February 2011 Secured Notes Indenture, the New Secured Notes Indenture and the First Lien
Intercreditor Agreement. |
| |
| |
|
“Promissory Note” shall mean any promissory note executed and delivered by a Borrower upon the
request of a Lender evidencing the amount of principal owed by such Borrower to such Lender under
the Credit Agreement. |
| |
| |
|
“Secured Parties” shall mean the Lenders (including in their capacity as issuing bank(s), and/or
Hedge Counterparties under the Credit Agreement), the Hedge Counterparties, the Administrative
Agent, any Issuing Bank, the beneficiaries of each indemnification obligation undertaken by any
Grantor under any Credit Document, the 2009 Senior Secured Notes Holders, the October 2010 Secured
Notes Holders, the February 2011 Secured Notes Holders and the New Secured Notes Holders, the
Indenture Trustee, the October 2010 Secured Notes Indenture Trustee, the February 2011 Secured
Notes Indenture Trustee and the New Secured Notes Indenture Trustee, the Collateral Agent, the
Local Facility Providers and the Cash Management Banks. |
| |
| |
|
“2009 Senior Secured Notes Documents” shall mean the 2009 Senior Secured Notes Indenture, the 2009
Senior Secured Notes Guarantees, the 2009 Senior Secured Notes, the Intercreditor Arrangements, any
supplemental indenture, any security document relating to the 2009 Senior Secured Notes and/or the
2009 Senior Secured Notes Indenture and any other document that may be entered into pursuant to any
of the foregoing. |
| |
| |
|
“2009 Senior Secured Notes Guarantees” shall mean the guarantees of the obligations of the Issuers
under the 2009 Senior Secured Notes and the 2009 Senior Secured Notes Indenture by the 2009 Senior
Secured Notes Guarantors. |
| |
| |
|
“2009 Senior Secured Notes Guarantors” means the Current 2009 Senior Secured Notes Guarantors and
any entity which may accede to the 2009 Senior Secured Notes Indenture as additional guarantor. |
- 10 -
| |
|
“2009 Senior Secured Notes Holders” shall mean the holders from time to time of the 2009
Senior Secured Notes. |
| |
| |
|
“Shares” means the Existing Shares and the Future Shares. |
| |
| 1.2 |
|
Construction |
| |
| |
|
In this Agreement any reference to a “Clause”, a “sub-Clause” or a “Schedule” shall,
subject to any contrary indication, be construed as a reference to a Clause, a sub-Clause
or a Schedule hereof. |
| |
| 1.3 |
|
This Agreement is made in the English language. For the avoidance of doubt, the
English language version of this Agreement shall prevail over any translation of this
Agreement. However, where a German translation of a word or phrase appears in the
text of this Agreement, the German translation of such word or phrase shall prevail. |
| |
| 2. |
|
PLEDGED SHARES |
| |
| 2.1 |
|
The Company has a nominal share capital (Stammkapital) of EUR 5,200,000 (in words: Euro five
million two hundred thousand) which is divided into 2 shares. |
| |
| 2.2 |
|
The Pledgor is the owner of 1 share in the Company with a nominal amount (Nennbetrag) of EUR
260,520 (in words: Euro two hundred sixty thousand five hundred twenty) carrying the serial
number (laufende Nummer) 2 (the “Existing Shares”). |
| |
| 2.3 |
|
The Pledgor as owner of the Existing Shares is registered as such in the shareholders list
(Gesellschafterliste) of the Company as filed (aufgenommen) with the commercial register
(Handelsregister), a copy of which is attached as Schedule 1 Part 4 (Copy of Shareholders
List). |
| |
| 3. |
|
PLEDGE |
| |
| 3.1 |
|
The Pledgor hereby pledges to the Pledgee the Shares together with all ancillary rights and
claims associated with the Shares as more particularly specified in Clause 4 (the “Pledge”
and/or the “Pledges”). |
| |
| 3.2 |
|
The Pledgee hereby accepts the Pledge. |
| |
| 3.3 |
|
The Pledge is in addition, and without prejudice, to any other security the Secured Parties
may now or hereafter hold in respect of the Obligations. |
| |
| 4. |
|
SCOPE OF THE PLEDGES |
| |
| 4.1 |
|
The Pledge constituted by this Agreement includes: |
| |
(a) |
|
the present and future rights to receive: |
| |
(i) |
|
dividends attributable to the Shares, if any; and |
- 11 -
| |
(ii) |
|
liquidation proceeds, redemption proceeds
(Einziehungsentgelt), repaid capital in case of a capital decrease, any
compensation in case of termination (Kündigung) and/or withdrawal (Austritt)
of a shareholder of the Company, the surplus in case of surrender (Preisgabe),
any repayment claim for any additional capital contributions (Nachschüsse) and
all other pecuniary claims associated with the Shares; |
| |
(b) |
|
the right to subscribe for newly issued shares; and |
| |
| |
(c) |
|
all other rights and benefits attributable to the Shares capable of being
pledged (verpfändbar) (including without limitation all present and future pecuniary
claims of the Pledgor against the Company arising under or in connection with any
domination and/or profit transfer agreement (Beherrschungs- und/oder
Gewinnabführungsvertrag) or partial profit transfer agreement
(Teilgewinnabführungsvertrag) which may be entered into between the Pledgor and the
Company). |
| 4.2 |
|
Notwithstanding that the items set out in Clause 4.1 above are pledged hereunder, the Pledgor
shall be entitled to receive and retain the items set out in Clause 4.1 in respect of, and
otherwise deal (in accordance with the agreements between the parties) with all items
described in Clause 4.1 hereof in respect of the Shares at all times other than any time the
Pledgee is entitled to enforce the Pledge constituted hereunder. |
| |
| 4.3 |
|
On the date and during the period in which the Pledgee is entitled, in accordance with Clause
7 (Enforcement of the Pledges) hereof, to enforce the Pledge (or any part thereof): |
| |
(a) |
|
all dividends paid or payable and any other property received, receivable or
otherwise distributed in respect of or in exchange for the Shares; |
| |
| |
(b) |
|
all dividends or other distributions or payments paid or payable in respect of
the Shares in connection with the partial or total liquidation or dissolution of the
Company or in connection with the reduction of the amount of the registered share
capital of the Company; and |
| |
| |
(c) |
|
all cash paid, payable or otherwise distributed in respect of the principal of,
or in redemption of, or in exchange for the Shares, |
| |
|
shall be forthwith delivered to the Pledgee and held as security for and on behalf of the
Secured Parties. If such proceeds or property are received by the Pledgor, they shall be
received as trustee for the benefit of the Pledgee and shall be segregated from other
property or funds of the Pledgor and shall be forthwith delivered to the Pledgee as security
in the form so received (with any necessary endorsement). |
| |
| 5. |
|
PURPOSE OF THE PLEDGES |
| |
| |
|
The Pledge hereunder is constituted in order to secure the prompt and complete satisfaction
of any and all Obligations. The Pledge shall also cover any future |
- 12 -
| |
|
extension of the
Obligations and the Pledgor herewith expressly agrees that the provisions of Section 1210
para 1 sentence 2 of the German Civil Code (Bürgerliches
GesetZzbuch) shall not apply to this
Agreement. |
| 6. |
|
EXERCISE OF MEMBERSHIP RIGHTS |
| |
| |
|
The membership rights, including the voting rights, attached to the Shares remain with the
Pledgor. The Pledgor may exercise its membership rights in any manner which does not
adversely affect the validity and enforceability of the Pledge, the existence of all or
part of the Shares or cause an Event of Default to occur. The Pledgor undertakes, unless
otherwise agreed between the parties, that no resolutions will be passed which would, if
passed, constitute a breach of its obligations under Clause 9 or any other obligation under
this Agreement. |
| |
| 7. |
|
ENFORCEMENT OF THE PLEDGES |
| |
| 7.1 |
|
|
| |
(a) |
|
Subject to paragraph (b) of this Clause 7.1 below, if (i) an Enforcement
Event has occurred and is continuing and (ii) the requirements set forth in Sections
1273 para 2, 1204 et seq. of the German Civil Code with regard to the enforcement of
the Pledge is met (Pfandreife), in particular, if any of the Obligations have become
due and payable, then in order to enforce the Pledge, the Collateral Agent (acting on
the instructions of the Secured Parties) may at any time thereafter avail itself of
all rights and remedies that a pledgee has against a pledgor under the laws of the
Federal Republic of Germany. |
| |
| |
(b) |
|
The Collateral Agent may only enforce the Pledge in accordance with paragraph
(a) of this Clause 7.1 above in relation to obligations of any Grantor (other than
obligations under the Credit Documents of (i) the Pledgor (v) incurred as Borrower
under the Credit Agreement, (w) incurred as borrower under a Local Facility Agreement,
(x) incurred as a party to and beneficiary under any hedging agreement entered into
with a Hedge Counterparty, (y) owed as cash management obligations to a Cash
Management Bank for Cash Management Services, provided the Pledgor is a beneficiary of
the Cash Management Services causing such cash management obligations or (z) to the
extent certain proceeds of the 2009 Senior Secured Notes Indenture, the October 2010
Secured Notes Indenture, the February 2011 Secured Notes Indenture or the New Secured
Notes Indenture have been made available to the Pledgor, up to such proceeds and (ii)
a Pledgor’s Subsidiary (v) incurred as Borrower under the Credit Agreement, (w)
incurred as borrower under a Local Facility Agreement, (x) incurred as a party to and
beneficiary under any hedging agreement entered into with an Hedge Counterparty (y)
owed as cash management obligations to a Cash Management Bank for Cash Management
Services, provided
the Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing
such cash management obligations or (z) to the extent certain proceeds of the 2009
Senior Secured Notes Indenture, the October 2010 Secured Notes Indenture, the
February 2011 Secured Notes |
- 13 -
| |
|
|
Indenture or the New Secured Notes Indenture have been made available to the Pledgor’s
Subsidiary, up to such proceeds) after (i) the Pledgor’s auditors have (y) delivered an
audited interim balance sheet of the Pledgor (valuating the Shares at their realisation
value) to the Collateral Agent and (z) determined the existence and extent of the profits
available for the payment of a dividend by the Pledgor in accordance with the relevant
provisions of the Swiss Code of Obligations (the “Auditor’s Determination”) and (ii) the
Pledgor’s shareholders have passed for such dividend payment resolutions for the
distribution of dividends (“Dividend Resolution”) in accordance with the relevant provisions
of the Swiss Federal Code of Obligations being in force at that time. The Pledgor shall
deliver the Auditor’s Determination and the Dividend Resolution within 30 business days
after the Collateral Agent has given notice to the Pledgor of its intention to enforce the
Pledge. The Collateral Agent shall only enforce the Pledge in relation to obligations of any
Grantor (other than obligations under the Credit Documents of (i) the Pledgor (v) incurred
as Borrower under the Credit Agreement, (w) incurred as borrower under a Local Facility
Agreement, (x) incurred as a party to and beneficiary under any hedging agreement entered
into with an Hedge Counterparty, (y) owed as cash management obligations to a Cash
Management Bank for Cash Management Services, provided the Pledgor is a beneficiary of the
Cash Management Services causing such cash management obligations or (z) to the extent
certain proceeds of the 2009 Senior Secured Notes Indenture, the October 2010 Secured Notes
Indenture, the February 2011 Secured Notes Indenture or the New Secured Notes Indenture have
been made available to the Pledgor, up to such proceeds and (ii) a Pledgor’s Subsidiary (v)
incurred as Borrower under the Credit Agreement, (w) incurred as borrower under a Local
Facility Agreement, (x) incurred as a party to and beneficiary under any hedging agreement
entered into with an Hedge Counterparty (y) owed as cash management obligations to a Cash
Management Bank for Cash Management Services, provided the Pledgor’s Subsidiary is a
beneficiary of the Cash Management Services causing such cash management obligations or (z)
to the extent certain proceeds of the 2009 Senior Secured Notes Indenture, the October 2010
Secured Notes Indenture, the February 2011 Secured Notes Indenture or the New Secured Notes
Indenture have been made available to the Pledgor’s Subsidiary, up to such proceeds) if
according to the Auditor’s Determination and the Dividend Resolution the Pledgor has validly
resolved to distribute the profits available for payment of a dividend, subject to Clause 8
(Swiss Limitations) below, provided that if the Pledge is not enforced and/or enforceable,
the Collateral Agent may subsequently again seek to enforce the Pledge in accordance with
this paragraph (b) of this Clause 7.1 and Clause 8 (Swiss Limitations) at any time
thereafter. |
| |
(c) |
|
Notwithstanding Section 1277 of the German Civil Code, the Pledgee is entitled to exercise
its rights without obtaining enforceable judgment or other instrument (yollstreckbarer Titel).
The Pledgee shall be entitled to have the |
- 14 -
| |
|
|
Pledge enforced in any manner allowed under the laws of the Federal Republic of
Germany, in particular have the Pledge sold (including at public auction). |
| 7.2 |
|
The Pledgor hereby expressly agrees that 5 (five) business days’ prior written notice to the
Pledgor of the place and time of any such sale shall be sufficient and the Pledgee shall not
be obliged to deliver any further notices (including, but not limited to the notices set out
under Section 1234 of the German Civil Code) to the Pledgor prior to such sale. The sale may
take place at any place in the Federal Republic of Germany designated by the Pledgee. |
| |
| 7.3 |
|
If the Pledgee (acting on the instructions of the Secured Parties) should seek to enforce the
Pledge under sub-Clause 7.1, the Pledgor shall, at its own expense, render forthwith all
necessary assistance in order to facilitate the prompt sale of the Shares or any part thereof
and/or the exercise by the Pledgee of any other right it may have as Pledgee. |
| |
| 7.4 |
|
Whilst the requirements for enforcement under sub-Clause 7.1 are continuing, all subsequent
dividend payments attributable to the Shares and all payments based on similar ancillary
rights attributed to the Shares may be applied by the Pledgee in satisfaction in whole or in
part of the Obligations or treated as additional collateral. |
| |
| 7.5 |
|
Even if the requirements for enforcement referred to under sub-Clause 7.1 above are met, the
Pledgee shall not, whether as proxy or otherwise, be entitled to exercise the voting rights
attached to the Shares. However, the Pledgor shall, during the continuation of an event which
allows the Pledgee to enforce the Pledge, have the obligations and the Pledgee shall have the
rights set forth in sub-Clause 9.6 below regardless of which resolutions are intended to be
adopted. |
| |
| 7.6 |
|
The Pledgee may, in its sole discretion, determine which of several security interests, if
applicable, shall be used to satisfy the Obligations. The Pledgor hereby expressly waives its
right pursuant to Section 1230 sentence 2 of the German Civil Code to limit the realisation of
the Pledge and pledges over the shares or partnership interests in one or more other companies
to such number of pledges as are necessary to satisfy the Obligations and agrees further that
the Pledgee may decide to enforce the Pledge over the shares in the Company individually in
separate proceedings or together with pledges over shares or partnership interests in one or
more other companies at one single proceeding (Gesamtverwertung). |
| |
| 7.7 |
|
The Pledgor hereby expressly waives all defences of
revocation (Einrede der Anfechtbarkeif) 7
and set-off (Einrede der Aufrechenbarkeit) pursuant to Sections 770, 1211 of the German Civil
Code. |
| |
| 7.8 |
|
The Pledgor hereby expressly waives its defences based on defences any Grantor might have
against any of the Obligations (Einreden des Hauptschuldners) pursuant to Section 1211 para 1
sentence 1 alternative 1 of the German Civil Code. |
| |
| 7.9 |
|
If the Pledge is enforced or if the Pledgor has discharged any of the Obligations (or any
part of them), Section 1225 of the German Civil Code (legal subrogation of |
- 15 -
| |
|
claims to a pledgor
— Forderungsübergang auf den Verpfänder) shall not apply and no rights of the Pledgee shall
pass to the Pledgor by subrogation or otherwise. Further, the Pledgor shall at no time before,
on or after an enforcement of the Pledge and as a result of the Pledgor entering into this
Agreement, be entitled to demand indemnification or compensation from the Company or the
Company’s affiliates or to assign any of these claims. |
| 8. |
|
SWISS LIMITATIONS |
| |
| 8.1 |
|
Proceeds of an enforcement of the Pledge shall only be applied towards satisfaction of the
Obligations in relation to obligations of any Grantor (other than obligations under the Credit
Documents of (i) the Pledgor (v) incurred as Borrower under the Credit Agreement, (w) incurred
as borrower under a Local Facility Agreement, (x) incurred as a party to and beneficiary under
any hedging agreement entered into with an Hedge Counterparty, (y) owed as cash management
obligations to a Cash Management Bank for Cash Management Services, provided the Pledgor is a
beneficiary of the Cash Management Services causing such cash management obligations or (z) to
the extent certain proceeds of the 2009 Senior Secured Notes Indenture, the October 2010
Secured Notes Indenture, the February 2011 Secured Notes Indenture or the New Secured Notes
Indenture have been made available to the Pledgor, up to such proceeds and (ii) a Pledgor’s
Subsidiary (v) incurred as Borrower under the Credit Agreement, (w) incurred as borrower under
a Local Facility Agreement, (x) incurred as a party to and beneficiary under any hedging
agreement entered into with an Hedge Counterparty (y) owed as cash management obligations to a
Cash Management Bank for Cash Management Services, provided the Pledgor’s Subsidiary is a
beneficiary of the Cash Management Services causing such cash management obligations or (z) to
the extent certain proceeds of the 2009 Senior Secured Notes Indenture, the October 2010
Secured Notes Indenture, the February 2011 Secured Notes Indenture or the New Secured Notes
Indenture have been made available to the Pledgor’s Subsidiary, up to such proceeds) to the
extent application of the proceeds of an enforcement of the Pledge towards such obligations
does not constitute a repayment of capital (Einlagerueckgewaehr), a violation of the legally
protected reserves (gesetzlich geschuetzte Reserven) or a payment of a (constructive) dividend
prohibited by the Swiss Federal Code of Obligations by the Pledgor and in the maximum amount
of the Pledgor’s profits available for the distribution of dividends at the
point in time the Pledge is enforced (being the balance sheet profits and any free reserves
made for this purpose, in each case in accordance with the relevant Swiss law) (the
“Available Enforcement Proceeds”). From the proceeds of an enforcement an amount equal to
the sum of (i) the excess, if any, of the enforcement proceeds over the Available
Enforcement Proceeds plus (ii) the Tax Payment Amount (as defined below) shall be returned
to the Pledgor; |
| |
| 8.2 |
|
for such application of the Available Enforcement Proceeds towards satisfaction of the
Obligations the Pledgor shall procure to pass a shareholders’ resolutions for the distribution
of dividends in accordance with the relevant provisions of the Swiss Federal Code of
Obligations being in force at that time (currently the profits available for the distribution
of dividends as described above must be determined based on an |
- 16 -
| |
|
audited balance sheet and such
shareholders’ resolution must be based on the report from the Pledgor’s auditors approving the
proposed distribution of dividends); and |
| 8.3 |
|
deduct from the Available Enforcement Proceeds Swiss Anticipatory Tax (withholding tax) at
the rate of 35% (or such other rate as in force from time to time) and subject to any
applicable double taxation treaty and/or agreements entered into with the Swiss Federal Tax
administration (the “Tax Payment Amount”): |
| |
(a) |
|
pay the Tax Payment Amount to the Swiss Federal Tax Administration; and |
| |
| |
(b) |
|
give evidence to the respective beneficiary or beneficiaries (as the case may
be) of such deduction of the Tax Payment Amount in accordance with Clause 2.20 (Taxes)
of the Credit Agreement and Clause 4.15 (Withholding Taxes) of the 2009 Senior Secured
Notes Indenture, the October 2010 Secured Notes Indenture, the February 2011 Secured
Notes Indenture or the New Secured Notes Indenture. |
| |
|
But if such a deduction is made, the Pledgor shall not be obliged to gross-up pursuant to
Clause 2.20 (Taxes) of the Credit Agreement or Clause 4.15 (Withholding taxes) of the 2009
Senior Secured Notes Indenture, the October 2010 Secured Notes Indenture, the February 2011
Secured Notes Indenture or the New Secured Notes Indenture to the extent that such gross-up
would result in the aggregate of the amounts of the proceeds of an enforcement of the Pledge
applied by the beneficiary or beneficiaries (as the case may be) towards satisfaction of the
Obligations and the Tax Payment Amount paid to the Swiss Federal Tax administration
exceeding the maximum amount of its profits available for the distribution of dividends. |
| |
| 9. |
|
UNDERTAKINGS OF THE PLEDGOR |
| |
| |
|
Unless otherwise agreed between the parties, during the term of this Agreement, the Pledgor
undertakes to the Pledgee: |
| |
| 9.1 |
|
to promptly effect any contributions in cash (Bareinlage) or kind (Sacheinlage) to be made in
respect of the Shares; |
| |
| 9.2 |
|
to inform the Pledgee promptly of any change made in the registered share capital of the
Company, or any changes made to the articles of association of the Company which would
materially adversely affect the security interest of the Pledgee and in each such case to
promptly deliver to the Pledgee a copy of the updated shareholders list (Gesellschafterliste)
and a copy of the amended articles of association (Satzung) both as filed (aufgenommen) with
the commercial register (Handelsregister); |
| |
| 9.3 |
|
to promptly notify the Pledgee, by notification in writing of the registration of an
objection (Widerspruch) in relation to the Shares of the Pledgor in the shareholders list
(Gesellschafterliste) as filed (aufgenommen) with the commercial register (Handelsregister). |
- 17 -
| 9.4 |
|
to promptly notify the Pledgee, by notification in writing, of any attachment (Pfändung)
in respect of any of the Shares or any ancillary rights set out in sub-Clause 4.1 such notice
to be accompanied by any documents the Pledgee might need to defend itself against any claim
of a third party. In particular, the Pledgor shall promptly forward to the Pledgee a copy of
the attachment order (Pfändungsbeschluss), any transfer order (Überweisungsbeschluss) and all
other documents necessary for a defence against the attachment; |
| |
| 9.5 |
|
in the event of any increase in the capital of the Company, not to allow, without the prior
written consent of the Pledgee (such consent not to be unreasonably withheld), any party other
than himself to subscribe for any Future Shares, and not to defeat, impair or circumvent in
any way the rights of the Pledgee created hereunder; |
| |
| 9.6 |
|
to promptly inform the Pledgee, by notification in writing, of all matters concerning the
Company of which the Pledgor is aware which would materially adversely affect the security
interest of the Pledgee. In particular, the Pledgor shall notify the Pledgee, by notification
in writing, forthwith of any shareholders’ meeting at which a shareholders’ resolution is
intended to be adopted which would have a materially adverse effect upon the Pledge. The
Pledgor shall allow, following the occurrence and during the continuance of any of the
circumstances which permit the Pledgee to enforce the Pledge constituted hereunder in
accordance with Clause 7, the Pledgee or, as the case may be, its proxy or any other person
designated by the Pledgee, to participate in all such shareholders’ meetings of the Company as
attendants without power to vote. Subject to the provision contained in sub-Clause 13.1, the
Pledgee’s right to attend a shareholders’ meeting shall lapse immediately upon complete
satisfaction and discharge of the Obligations; |
| |
| 9.7 |
|
to refrain from any acts or omissions, subject to the performance of its rights and duties
under the Existing Share Pledge Agreements, the purpose or effect of which is or would be the
dilution of the value of the Shares or the Shares ceasing to exist, unless permitted by the
Pledgee (acting reasonably); |
| |
| 9.8 |
|
not to amend the articles of association of the Company to the extent that such amendment
would materially adversely affect the security interest of the Pledgee created hereunder
without the prior written consent of the Pledgee (such consent not to be unreasonably
withheld); |
| |
| 9.9 |
|
insofar as additional declarations or actions are necessary for the creation of the Pledge in
favour of the Pledgee and at the Pledgee’s reasonable request (acting on the reasonable
instructions of the Secured Parties), to make such declarations and undertake such actions at
its own costs and expenses; and |
| |
| 9.10 |
|
for the avoidance of doubt, notification and consent requirements as set out in sub-Clauses
9.1 through 9.8 of this Agreement are deemed to be satisfied if and to the extent such
notification or consent has been delivered under the Existing Share Pledge Agreements provided
that such notification to the Pledgee or consent of the Pledgee makes reference to this
Agreement and each Existing Share Pledge Agreement. |
- 18 -
| 10. |
|
DELEGATION |
| |
| |
|
The Pledgee shall have full power to delegate (either generally or specifically) the powers,
authorities and discretions conferred on it by this Agreement on such terms and conditions
as it shall see fit. The Pledgee shall only remain liable for diligently selecting and
providing initial instructions to such delegate. |
| |
| 11. |
|
INDEMNITY |
| |
| |
|
The Pledgor shall reimburse the Pledgee (which, for purposes of this Clause 11, shall
include its officers, directors, employees, agents and counsel) upon request for all
properly incurred, reasonable and documented out-of-pocket expenses incurred or made by it
in connection with the Credit Documents. Such expenses shall include the properly incurred,
reasonable and documented compensation and expenses, disbursements and advances of the
Pledgee’s agents, counsel, accountants and experts. The Pledgor shall indemnify the Pledgee
against any and all loss, liability, claim, taxes, costs, damage or expense (including
properly
incurred, reasonable and documented attorneys’ fees and expenses) incurred by or in
connection with the acceptance or administration of the Pledgee’s performance of its duties
under this Agreement and under German law, including the costs and expenses of enforcing
this Agreement and defending itself against or investigating any claim. The obligation to
pay such amounts shall survive the payment in full or defeasance of the Obligations or the
removal or resignation of the Pledgee. The Pledgee shall notify Reynolds Group Holdings
Limited of any claim for which it may seek indemnity promptly upon obtaining actual
knowledge thereof; provided that any failure so to notify Reynolds Group Holdings Limited
shall not relieve the Pledgor of its indemnity obligations hereunder. The Pledgor may defend
itself against such claim and the Pledgee shall provide reasonable cooperation in such
defense. The Pledgee may have separate counsel and the Pledgor shall pay the properly
incurred, reasonable and documented fees and expenses of such counsel. The Pledgor need not
reimburse any expense or indemnify against any loss, liability or expense incurred by the
Pledgee through the Pledgee’s own wilful misconduct (Vorsatz) or gross negligence (grobe
Fahrlassigkeit). No provision of this Agreement shall require the Pledgee to expend or risk
its own funds or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if repayment of such
funds or adequate indemnity against such risk or liability is not assured to its
satisfaction. |
| |
| 12. |
|
NO LIABILITY |
| |
| |
|
Except as otherwise agreed between the parties to this Agreement, none of the Pledgee, its
nominee(s) or agent(s) or delegate(s) shall be liable by reason of (a) taking any action
permitted by this Agreement or (b) any neglect or default in connection with the assets and
rights subject to the security interest created hereunder, save in respect of any loss or
damage which is suffered as a result of willful misconduct (Vorsatz) or gross negligence
(grobe Fahrlässigkeit) by the Pledgee, its nominee(s) or agent(s) or delegate(s), or (c) the
enforcement or realisation of all or any part of the security interest created hereunder. |
- 19 -
| 13. |
|
DURATION AND INDEPENDENCE |
| |
| 13.1 |
|
This Agreement shall remain in full force and effect until complete satisfaction of the
Obligations. The Pledge shall not cease to exist, if any Grantor under the Credit Documents
has only temporarily discharged the Obligations. |
| |
| 13.2 |
|
This Agreement shall create a continuing security and no change, amendment, or supplement
whatsoever in the Credit Documents or in any document or agreement related to any of the
Credit Documents shall affect the validity or the scope of this Agreement nor the obligations
which are imposed on the Pledgor pursuant to it. |
| |
| 13.3 |
|
This Agreement is independent from any other security or guarantee which may have been or
will be given to the Collateral Agent. None of such other security shall prejudice, or shall
be prejudiced by, or shall be merged in any way with this Agreement. |
| |
| 13.4 |
|
Waiving Section 418 of the German Civil Code, the Pledgor hereby agrees that the security
created hereunder shall not be affected by any transfer or assumption of the Obligations to,
or by, any third party. |
| |
| 14. |
|
RELEASE OF PLEDGE (PFANDFREIGABE) |
| |
| 14.1 |
|
Upon complete and irrevocable satisfaction of the Obligations, the Collateral Agent (as
instructed in accordance with the First Lien Intercreditor Agreement) will as soon as
reasonably practicable declare in writing the release of the Pledge
(Pfandfreigabe) to the
Pledgor as a matter of record. For the avoidance of doubt, the parties are aware that upon
full and complete satisfaction of the Obligations the Pledge, due to its accessory nature
(Akzessorietät) ceases to exist by operation of German mandatory law. |
| |
| 14.2 |
|
At any time when the total value of the aggregate security granted by the Pledgor and any of
the other Grantors to secure the Obligations (the “Security”), which can be expected to be
realised in the event of an enforcement of the Security (realisierbarer Wert), exceeds 110% of
the Obligations (the “Limit”) not only temporarily, the Pledgee shall on demand of the Pledgor
release such part of the Security (Sicherheitenfreigabe) as the Pledgee (as instructed
in accordance with the First Lien Intercreditor Agreement) may in its reasonable discretion
determine so as to reduce the realisable value of the Security to the Limit. |
| |
| 14.3 |
|
The parties acknowledge that the Pledgee (as instructed in accordance with the First Lien
Intercreditor Agreement) will declare in writing the release of the Pledge (Pfandfreigabe) to
the Pledgor as soon as reasonably practicable in accordance with, and to the extent required
by, the Intercreditor Arrangements. |
| |
| 15. |
|
PARTIAL INVALIDITY; WAIVER |
| |
| 15.1 |
|
If at any time, any one or more of the provisions hereof is or becomes invalid, illegal or
unenforceable in any respect under the law of any jurisdiction, such provision shall |
- 20 -
| |
|
as to
such jurisdiction, be ineffective to the extent necessary without affecting or impairing the
validity, legality and enforceability of the remaining provisions hereof or of such provisions
in any other jurisdiction. The invalid, illegal or unenforceable provision shall be deemed to
be replaced with such valid, legal or enforceable provision which comes as close as possible
to the original intent of the parties and the invalid, illegal or unenforceable provision.
Should a gap (Regelungslücke) become evident in this Agreement, such gap shall, without
affecting or impairing the validity, legality and enforceability of the remaining provisions
hereof, be deemed to be filled in with such provision which comes as close as possible to the
original intent of the parties. |
| |
| 15.2 |
|
No failure to exercise, nor any delay in exercising, on the part of the Pledgee, any right or
remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise
of any right or remedy prevent any further or other exercise thereof or the exercise of any
other right or remedy. The rights and remedies provided hereunder are cumulative and not
exclusive of any rights or remedies provided by law. |
| |
| 15.3 |
|
In particular, the Pledge shall not be affected and shall in any event extend to any and all
shares in the Company even if the number or nominal value of the Existing Shares or the
aggregate share capital of the Company as stated in Clause 2 are inaccurate or deviate from
the actual facts. |
| |
| 16. |
|
AMENDMENTS |
| |
| |
|
Changes and amendments to this Agreement including this Clause 16 shall be made in writing
except where notarisation is required. |
| |
| 17. |
|
NOTICES AND THEIR LANGUAGE |
| |
| 17.1 |
|
All notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail or sent
by fax, as follows: |
| |
|
|
|
|
|
|
| |
For the Pledgor: |
|
SIG Combibloc Group AG |
| |
|
|
|
|
|
| |
|
|
Address:
|
|
Laufengasse 18, CH-
8212, Neuhausen am
Rheinfall, Switzerland |
| |
|
|
|
|
|
| |
|
|
Telephone:
|
|
+41 52 674 6111 |
| |
|
|
|
|
|
| |
|
|
Fax:
|
|
+41 52 674 6574 |
| |
|
|
|
|
|
| |
|
|
Attention:
|
|
Head of legal coporate |
- 21 -
| |
|
|
|
|
|
for the Pledgor with a copy to: |
|
|
|
|
|
|
|
|
|
|
|
Address:
|
|
c/o Rank Group Limited |
|
|
|
|
|
|
|
|
|
Level 9 |
|
|
|
|
|
|
|
|
|
148 Quay Street |
|
|
|
|
|
|
|
|
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PO Box 3515 |
|
|
|
|
|
|
|
|
|
Auckland 1140 |
|
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New Zealand |
|
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Telephone.
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+649 3666 259 |
|
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Fax:
|
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+649 3666 263 |
|
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Attention:
|
|
Helen Golding |
|
|
|
|
|
| For the Pledgee: |
|
The Bank of New York Mellon |
|
|
|
|
|
|
|
Address:
|
|
101 Barclay Street, 4E |
|
|
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|
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|
|
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|
New York, N.Y. 10286 |
|
|
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The United States |
|
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|
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|
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|
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of America |
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Telephone:
|
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+212 298 1528 |
|
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|
Fax:
|
|
+212 815 5366 |
|
|
|
|
|
|
|
Attention:
|
|
International
Corporate Trust |
| 17.2 |
|
Any party hereto may change its address or fax number for notices and other communications
hereunder by notice to the other parties hereto. As agreed to in writing by the parties,
notices and other communications hereunder may also be delivered by e-mail to the e-mail
address of a representative of the applicable party to this Agreement provided from time to
time by such party. |
- 22 -
| 17.3 |
|
All notices and other communications given to any party in connection with this Agreement in
accordance with the provisions of this Agreement shall be deemed (widerlegbare Vermutung)
received on the date sent (if a business day) and on the next business day thereafter (in all
other cases) if delivered by hand or overnight courier service or sent by fax or on the date
five business days after dispatch by certified or registered mail if mailed, in each case
delivered, sent or mailed (properly addressed) to such party as provided in this Clause 17 or
in accordance with the latest unrevoked direction from such party given in accordance with
this Clause 17. |
| |
| 17.4 |
|
Any notice or other communication under or in connection with this Agreement shall be in the
English language or, if in any other language, accompanied by a translation into English. In
the event of any conflict between the English text and the text in any other language, the
English text shall prevail. |
| |
| 18. |
|
NOTIFICATION |
| |
| 18.1 |
|
The Pledgor and the Pledgee hereby give notice of this Agreement and the Pledge of the rights
pursuant to Clause3 and Clause 4 to the Company. |
| |
| 18.2 |
|
The Company hereby acknowledges the notification pursuant to Clause 18.1 above. |
| |
| 19. |
|
APPLICABLE LAW, JURISDICTION |
| |
| 19.1 |
|
This Agreement is governed by the laws of the Federal Republic of Germany. |
| |
| 19.2 |
|
The place of jurisdiction for any and all disputes arising under or in connection with this
Agreement shall be the courts in Frankfurt am Main. The Pledgee however, shall also be
entitled to take action against the Pledgor in any other court of competent jurisdiction.
Further, the taking of proceedings against the Pledgor in any one or more jurisdictions shall
not preclude the taking of proceedings in any other jurisdiction (whether concurrently or not)
if and to the extent permitted by applicable law. |
The Notary advised the persons appearing:
| • |
|
that a pledge is a security instrument of strictly accessory nature (which means that it
comes into legal existence only if, to the extent that, and as long as, the underlying secured
claims
do in fact exist, and that the owners of the secured claims and the pledgees must be
identical); |
| |
| • |
|
that notwithstanding Section 16 para 3 German Limited Liability Companies Act (Gesetz
betreffend die Gesellschaften mit beschränkter Haftung) there is no bona fide |
- 23 -
| |
|
creation, acquisition nor ranking of a pledge of shares (in the sense that the pledgees are
not protected if the shares purported to be pledged do not exist or have been previously
encumbered for the benefit of a third party); and |
| |
| • |
|
that the English original version of this Agreement will not be acceptable for enforcement
but will have to be translated, by a certified translator, into German for such purposes. |
- 24 -
SCHEDULE 1
PART 1
LIST OF CURRENT BORROWERS
SIG Euro Holding AG & Co. KGaA
Closure Systems International Holdings Inc.
Closure Systems International B.V.
SIG Austria Holding GmbH
Reynolds Consumer Products Holdings Inc.
Reynolds Group Holdings Inc.
Pactiv Corporation
PART 2
LIST OF CURRENT GUARANTORS, CURRENT 2009 SENIOR SECURED NOTES
GUARANTORS, CURRENT OCTOBER 2010 SECURED NOTES GUARANTORS
AND CURRENT FEBRUARY 2011 SECURED NOTES GUARANTORS
Whakatane Mill Australia Pty Limited
SIG Austria Holding GmbH
SIG Combibloc GmbH & Co KG
SIG Combibloc GmbH
SIG Beverages Brasil Ltda
SIG Combibloc do Brasil Ltda.
Closure Systems International (Brazil) Sistemas de Vedação Ltda
CSI Latin American Holdings Corporation
Evergreen Packaging Canada Limited
CSI Closure Systems Manufacturing de Centro America, S.R.L.
- 25 -
SIG Holdings (UK) Limited
SIG Combibloc Limited
Closure Systems International (UK) Limited
Reynolds Consumer Products (UK) Limited
Reynolds Subco (UK) Limited
Kama Europe Limited
Ivex Holdings, Ltd.
SIG Euro Holding AG & Co. KGaA
SIG Beverages Germany GmbH
SIG Combibloc Holding GmbH
SIG Vietnam Beteiligungs GmbH
SIG Combibloc GmbH
SIG Combibloc Systems GmbH
SIG Combibloc Zerspanungstechnik GmbH
SIG Information Technology GmbH
SIG International Services GmbH
Closure Systems International Holdings (Germany) GmbH
Closure Systems International Deutschland GmbH
Pactiv Hamburg Holdings GmbH
Pactiv Deutschland Holdinggesellschaft mbH
Omni-Pac Ekco GmbH Verpackungsmittel
Omni-Pac GmbH Verpackungsmittel
SIG Asset Holdings Limited
Closure Systems International (Hong Kong) Limited
SIG Combibloc Limited
- 26 -
Evergreen Packaging (Hong Kong) Limited
Closure Systems International Holdings (Hungary) Kft.
CSI
Hungary Gyártó és Kereskedelmi Kft. (aka CSI Hungary)
Closure Systems International Holdings (Japan) KK
Closure Systems International Japan, Limited
Beverage Packaging Holdings (Luxembourg) I S.A.
Beverage
Packaging Holdings (Luxembourg) III S.à r.l.
Evergreen
Packaging (Luxembourg) S.à r.l.
Reynolds Group Issuer (Luxembourg) S.A.
Bienes Industriales del Norte S.A. de C.V.
CSI en Ensenada, S. de R.L. de C.V.
CSI en Saltillo, S. de R.L. de C.V.
CSI Tecniservicio, S. de R.L. de C.V.
Grupo CSI de Mexico, S. de R.L. de C.V.
Técnicos de Tapas Innovativas S.A. de C.V.
Evergreen Packaging Mexico, S. de R.L. de C.V.
Reynolds Metals Company de Mexico, S. de R.L. de C.V.
Maxpack, S. de R.L. de C.V.
Closure Systems International B.V.
Reynolds Consumer Products International B.V.
Evergreen Packaging International B.V.
Reynolds
Packaging International B.V.
Reynolds Group Holdings Limited
Whakatane Mill Limited
SIG Combibloc Group AG
- 27 -
SIG Technology AG
SIG allCap AG
SIG Combibloc (Schweiz) AG
SIG Schweizerische Industrie-Gesellschaft AG
SIG Combibloc Procurement AG
SIG Reinag AG
SIG Combibloc Ltd.
SIG Holding USA Inc.
SIG Combibloc Inc.
Closure Systems International Americas, Inc.
Closure Systems International Holdings Inc.
Closure Systems International Inc.
Reynolds Packaging Machinery Inc.
Closure Systems Mexico Holdings LLC
CSI Mexico LLC
CSI Sales & Technical Services Inc.
Bakers Choice Products, Inc.
Reynolds Consumer Products Holdings Inc.
Reynolds Consumer Products Inc.
Reynolds
Foil Inc.
Reynolds Group Holdings Inc.
Reynolds Services Inc.
Blue Ridge Holding Corp.
Blue Ridge Paper Products Inc.
Evergreen Packaging International (US) Inc.
- 28 -
Evergreen Packaging Inc.
Evergreen Packaging USA Inc.
Reynolds Packaging, Inc.
Reynolds Packaging LLC
Reynolds Packaging Kama Inc.
Reynolds Food Packaging LLC
Reynolds Flexible Packaging Inc.
Southern Plastics Inc.
Ultra Pac, Inc.
BRPP, LLC
Reynolds Group Issuer Inc.
Reynolds Group Issuer LLC
Pactiv Corporation (formerly Reynolds Acquisition Corporation)
Pactiv
Factoring LLC
Pactiv RSA LLC
Pactiv Retirement Administration LLC
Pactiv Germany Holdings, Inc.
Pactiv International Holdings Inc.
Pactiv Management Company LLC
PCA West Inc.
Prairie Packaging, Inc.
PWP Holdings, Inc.
PWP Industries, Inc.
Newspring Industrial Corp.
Pactiv Canada Inc.
- 29 -
The Baldwin Group Limited
J. & W. Baldwin (Holdings) Limited
Omni-Pac U.K. Limited
Conference Cup Ltd.
Dopaco Canada, Inc.
Dopaco, Inc.
Garven Incorporated
Central de Bolsas, S. de R.L. de C.V.
Servicios Industriales Jaguar, S. de C.V.
Servicio
Terrestre Jaguar, S. de C.V.
Grupo Corporativo Jaguar, S. de C.V.
Pactiv México, S. de R.L. de C.V.
PART 3
LIST OF CURRENT NEW SECURED NOTES
GUARANTORS1
Whakatane Mill Australia Pty Limited
SIG Beverages Brasil Ltda
SIG Combibloc do Brasil Ltda.
Closure Systems International (Brazil) Sistemas de Vedação Ltda
CSI Latin American Holdings Corporation
Evergreen Packaging Canada Limited
CSI
Closure Systems Manufacturing de Centro America, S.R.L.
SIG Holdings (UK) Limited
SIG Combibloc Limited
Closure Systems International (UK) Limited
Reynolds Consumer Products (UK) Limited
Reynolds Subco (UK) Limited
Kama Europe Limited
Ivex Holdings, Ltd.
SIG Euro Holding AG & Co. KGaA
SIG Beverages Germany GmbH
SIG Combibloc Holding GmbH
SIG Vietnam Beteiligungs GmbH
SIG Combibloc GmbH
SIG Combibloc Systems GmbH
SIG
Combibloc Zerspanungstechnik GmbH
SIG Information Technology GmbH
SIG International Services GmbH
|
|
|
| 1 |
|
Post closing Austrian guarantors excluded. |
| |
| |
|
|
- 31 -
Closure Systems International Holdings (Germany) GmbH
Closure Systems International Deutschland GmbH
Pactiv Hamburg Holdings GmbH
Pactiv
Deutschland Holdinggesellschaft mbH
Omni-Pac Ekco GmbH Verpackungsmittel
Omni-Pac GmbH Verpackungsmittel
SIG Asset Holdings Limited
Closure Systems International (Hong Kong) Limited
SIG Combibloc Limited
Evergreen Packaging (Hong Kong) Limited
Closure Systems International Holdings (Hungary) Kft.
CSI
Hungary Gyártó és Kereskedelmi Kft. (aka CSI Hungary)
Closure Systems International Holdings (Japan) KK
Closure Systems International Japan, Limited
Beverage Packaging Holdings (Luxembourg) I S.A.
Beverage
Packaging Holdings (Luxembourg) III S.à r.l.
Evergreen
Packaging (Luxembourg) S.à r.l.
Reynolds
Group Issuer (Luxembourg) S.A.
Bienes Industriales del Norte S.A. de C.V.
CSI en Ensenada, S. de R.L. de C.V.
CSI en Saltillo, S. de R.L. de C.V.
CSI Tecniservicio, S. de R.L. de C.V.
Grupo CSI
de Mexico, S. de R.L. de C.V.
Tecnicos de Tapas Innovativas S.A. de C.V.
Evergreen Packaging Mexico, S. de R.L. de C.V.
- 32 -
Reynolds Metals Company de Mexico, S. de R.L. de C.V.
Maxpack, S. de R.L. de C.V.
Closure Systems International B.V.
Reynolds Consumer Products International B.V.
Evergreen Packaging International B.V.
Reynolds Packaging International B.V.
Reynolds Group Holdings Limited
Whakatane Mill Limited
SIG Combibloc Group AG
SIG Technology AG
SIG allCap AG
SIG Combibloc (Schweiz) AG
SIG Schweizerische Industrie-Gesellschaft AG
SIG Combibloc Procurement AG
SIG Reinag AG
SIG Combibloc Ltd.
SIG Holding USA Inc.
SIG Combibloc Inc.
Closure Systems International Americas, Inc.
Closure Systems International Holdings Inc.
Closure Systems International Inc.
Reynolds Packaging Machinery Inc.
Closure Systems Mexico Holdings LLC
CSI Mexico LLC
CSI Sales & Technical Services Inc.
- 33 -
Bakers Choice Products, Inc.
Reynolds
Consumer Products Holdings Inc.
Reynolds Consumer Products Inc.
Reynolds Foil Inc.
Reynolds Group Holdings Inc.
Reynolds Services Inc.
Blue Ridge Holding Corp.
Blue Ridge Paper Products Inc.
Evergreen Packaging International (US) Inc.
Evergreen Packaging Inc.
Evergreen Packaging USA Inc.
Reynolds
Packaging, Inc.
Reynolds Packaging LLC
Reynolds Packaging Kama Inc.
Reynolds Food Packaging LLC
Reynolds Flexible Packaging Inc.
Southern Plastics Inc.
Ultra Pac, Inc.
BRPP, LLC
Reynolds Group Issuer Inc.
Reynolds Group Issuer LLC
Pactiv Corporation (formerly Reynolds Acquisition Corporation)
Pactiv Factoring LLC
Pactiv RSA LLC
Pactiv Retirement Administration LLC
- 34 -
Pactiv Germany Holdings, Inc.
Pactiv International Holdings Inc.
Pactiv Management Company LLC
PCA West Inc.
Prairie Packaging, Inc.
PWP Holdings, Inc.
PWP Industries, Inc.
Newspring Industrial Corp.
Pactiv Canada Inc.
The Baldwin Group Limited
J. & W. Baldwin (Holdings) Limited
Omni-Pac U.K. Limited
Conference Cup Ltd.
Dopaco Canada, Inc.
Dopaco, Inc.
Garven Incorporated
Central de Bolsas, S. de R.L. de C.V.
Servicios Industriales Jaguar, S. de C.V.
Servicio Terrestre Jaguar, S. de C.V.
Grupo Corporativo Jaguar, S. de C.V.
Pactiv
México, S. de R.L. de C.V.
- 35 -
PART 4
COPY OF SHAREHOLDERS LIST (GESELLSCHAFTERLISTE)
- 36 -
Liste der Gesellschafter
der
SIG Combibloc Holding GmbH
mit Sitz in Waldshut-Tiengen
(Amtsgericht Freiburg i, Br., HRB 620756)
gemäß § 40 Abs. 1 S. 1 GmbHG
(nach erfolgter Umflrmierung der Gesellschafterin SIG Holding AG in SIG Combibloc Group AG)
| |
|
|
|
|
|
|
|
|
| |
|
|
|
(Ubernommene |
|
|
|
| |
|
|
|
Geschäftsanteile |
|
laufende Nummarn |
|
| Gesellschafter |
|
|
|
(Nennbetrage) |
|
der Geschäftsanteile |
|
| 1. |
|
SIG Euro Holding AG & Co. KGaA mit Sitz in Waldshut-Tiengen (Amtsgericht Freiburg i. B., HRB 621259) |
|
EUR |
|
|
4.939,480,00 |
(1) |
| |
|
|
|
|
|
|
|
|
| 2. |
|
SIG Combibloc Group AG mit Sitz in Neuhausen am Rheinfall/Schweiz (Handelsregister Kanton Schaffhausen, Firmennummer: CH-290.3.004.149-2) |
|
EUR |
|
|
260,520,00 |
(2) |
| |
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
| Stammkapital Insgesamt |
|
EUR |
|
|
5,200,000,00 |
|
| |
|
|
|
|
|
|
|
Walsshut- Tiengen, den
| |
|
|
|
|
|
|
|
/s/ Marco Hausener
|
|
|
|
/s/ André Rosnstock |
|
|
|
|
|
|
André Rosnstock
|
|
|
- Geschäftsführer -
|
|
|
|
- Geschäftsführer - |
|
|
Appendix 4
SIG COMBIBLOC SYSTEMS GMBH
as Pledgor
SIG COMBIBLOC ZERSPANUNGSTECHNIK GMBH
as Company
THE BANK OF NEW YORK MELLON
as Collateral Agent and Pledgee
SHARE PLEDGE AGREEMENT RELATING TO THE
SHARES IN SIG COMBIBLOC
ZERSPANUNGSTECHNIK GMBH
(Geschäftsanteilsverpfändung)
The taking of this document or any certified copy of it or any document which constitutes
substitute documentation for it, or any document which includes written confirmations or references
to it, into Austria as well as printing out any e-mail communication which refers to any Credit
Document (as defined in Clause 1 of this document) in Austria or sending any e-mail communication
to which a pdf scan of this document is attached to an Austrian addressee or sending any e-mail
communication carrying an electronic or digital signature which refers to any Credit Document to an
Austrian addressee may cause the imposition of Austrian stamp duty. Accordingly, keep the original
document as well as all certified copies thereof and written and signed references to it outside of
Austria and avoid printing out any email communication which refers to any Credit Document in
Austria or sending any e-mail communication to which a pdf scan of this document is attached to an
Austrian addressee or sending any e-mail communication carrying an electronic or digital signature
which refers to any Credit Document to an Austrian addressee.
Contents
| |
|
|
|
|
| Clause |
|
Page |
1. Definitions and Language |
|
|
5 |
|
2. Pledged Shares |
|
|
12 |
|
3. Pledge |
|
|
12 |
|
4. Scope of the Pledges |
|
|
12 |
|
5. Purpose of the Pledges |
|
|
13 |
|
6. Exercise of Membership Rights |
|
|
14 |
|
7. Enforcement of the Pledges |
|
|
14 |
|
8. Limitations on Enforcement |
|
|
15 |
|
9. Approval and Confirmation |
|
|
18 |
|
10. Undertakings of the Pledgor |
|
|
18 |
|
11. Delegation |
|
|
19 |
|
12. Indemnity |
|
|
20 |
|
13. No Liability |
|
|
20 |
|
14. Duration and Independence |
|
|
20 |
|
15. Release of Pledge (Pfandfreigabe) |
|
|
21 |
|
16. Partial Invalidity; Waiver |
|
|
21 |
|
17. Amendments |
|
|
22 |
|
18. Notices and their Language |
|
|
22 |
|
19. Notification |
|
|
24 |
|
20. Applicable Law, Jurisdiction |
|
|
24 |
|
- 1 -
| |
|
|
|
|
| Clause |
|
Page |
Schedule 1 |
|
|
25 |
|
Part 1 List of Current Borrowers |
|
|
25 |
|
Part 2 List of Current Guarantors, Current 2009 Senior Secured Notes Guarantors, Current October 2010 Secured Notes Guarantors and
Current February 2011 Secured Notes Guarantors |
|
|
25 |
|
Part 3 List of Current New Secured Notes Guarantors |
|
|
31 |
|
Part 4 Copy of Shareholders List (Gesellschafterliste) |
|
|
36 |
|
- 2 -
This SHARE PLEDGE AGREEMENT (the “Agreement”) is made on September 8, 2011
BETWEEN:
| (1) |
|
SIG Combibloc Systems GmbH, a limited liability company (Gesellschaft mit beschränkter
Haftung) organised under the laws of the Federal Republic of Germany, having its business
address at Rurstraße 58, 52441 Linnich, Germany, which is registered in the commercial
register (Handelsregister) of the local court (Amtsgericht) of Duren under HRB 3935 (the
“Pledgor”); |
| |
| (2) |
|
SIG Combibloc Zerspanungstechnik GmbH, a limited liability company (Gesellschaft mit
beschränkter Haftung) organised under the laws of the Federal Republic of Germany having its
corporate seat in Aachen, Germany and its business address at Walkmühlenstraße 4-10, 53074
Aachen, Germany, which is registered in the commercial register (Handelsregister) of the local
court (Amtsgericht) of Aachen under HRB 3814 (the “Company); and |
| |
| (3) |
|
The Bank of New York Mellon, having its business address at 1 Wall Street, New York, N.Y.
10286, The United States of America in its capacity as collateral agent under the First Lien
Intercreditor Agreement (as defined below) (the “Collateral Agent” or the “Pledgee”). |
WHEREAS:
| (A) |
|
Pursuant to the second amended and restated senior secured multi-currency term and revolving
credit agreement dated 9 August 2011 of currently up to USD 4,445,000,000 and EUR 330,000,000
between, inter alia, the parties listed in Schedule 1 Part 1 hereto as current borrowers (the
“Current Borrowers”), the parties listed in Schedule 1 Part 2 hereto as current guarantors
(the “Current Guarantors”), Credit Suisse AG as administrative agent and others (as amended,
varied, novated, restated, supplemented, superseded or extended from time to time, the “Second
Amended and Restated Credit Agreement”), which amends and restates the multicurrency term and
revolving credit agreement dated 5 November 2009 between, inter alia, the Current Borrowers
and the Current Guarantors, Credit Suisse AG as administrative agent and others (as amended
and restated pursuant to the Second Amended and Restated Credit Agreement and as further
amended, varied, novated, restated, supplemented, superseded or extended from time to time,
hereinafter the “Credit Agreement”), certain lenders (together the “Original Lenders”) have
granted certain facilities to the Current Borrowers and certain other entities which may
accede or may have acceded to the Credit Agreement as additional borrowers. |
| |
| (B) |
|
Pursuant to a senior secured notes indenture dated 5 November 2009 between, inter alia,
Reynolds Group Issuer LLC, Reynolds Group Issuer Inc., and Reynolds Group Issuer (Luxembourg)
S.A as ultimate issuers (the “Issuers”), certain affiliates of the Issuers listed in Schedule
1 Part 2 hereto as current 2009 senior secured notes guarantors (the “Current 2009 Senior
Secured Notes Guarantors”) and The Bank of New York Mellon, as indenture trustee, principal
paying agent, transfer agent and registrar, (as amended, varied, novated, supplemented,
superseded or extended from time to time, the “2009 Senior Secured Notes Indenture”), the
Issuers have issued |
- 3 -
| |
|
senior secured notes due 2016 in the aggregate principal amount of USD
1,125,000,000 (the “US Secured Notes”) and senior secured notes due 2016 in the aggregate
principal amount of EUR 450,000,000 (the “Euro Secured Notes” and together with the US Secured
Notes the “2009 Senior Secured Notes”) to certain noteholders. |
| |
| (C) |
|
Pursuant to a senior secured notes indenture dated 15 October 2010 between, inter
alia, RGHL US Escrow I LLC, RGHL US Escrow I Inc., and RGHL Escrow Issuer
(Luxembourg) I S.A. as escrow issuers (the “Escrow Issuers”), The Bank of New
York Mellon as indenture trustee, The Bank of New York Mellon, London Branch as
principal paying agent, The Bank of New York Mellon as collateral agent and
Wilmington Trust (London) Limited as additional collateral agent (as amended,
varied, novated, supplemented, superseded or extended from time to time, the
“October 2010 Secured Notes Indenture”), the Escrow Issuers have issued secured
notes due 2019 in the aggregate principal amount of USD 1,500,000,000 in escrow
(the “October 2010 Secured Notes”). In connection with the release from escrow of
the proceeds of the October 2010 Secured Notes, which occurred on 16 November
2010, the Escrow Issuers were merged with and into the Issuers, with each of the
Issuers surviving the applicable mergers or other transfers and assuming by operation
of law the obligations of the applicable Escrow Issuers with respect to the October
2010 Secured Notes Indenture and the October 2010 Secured Notes. Certain affiliates
of the Issuers listed in Schedule 1 Part 2 hereto have acceded to the October 2010
Secured Notes Indenture as current October 2010 secured notes guarantors (the
“Current October 2010 Secured Notes Guarantors”). |
| |
| (D) |
|
Pursuant to a senior secured notes indenture dated 1 February 2011 between, inter
alia, the Issuers, The Bank of New York Mellon as indenture trustee, The Bank of
New York Mellon, London Branch as principal paying agent, The Bank of New York
Mellon as collateral agent and Wilmington Trust (London) Limited as additional
collateral agent (as amended, varied, novated, supplemented, superseded or extended
from time to time, the “February 2011 Secured Notes Indenture”), the Issuers have
issued secured notes due 2021 in the aggregate principal amount of USD
1,000,000,000 (the “February 2011 Secured Notes”) which are guaranteed by
certain affiliates of the Issuers listed in Schedule 1 Part 2 hereto as current February
2011 secured notes guarantors (the “Current February 2011 Secured Notes
Guarantors”). |
| |
| (E) |
|
The Pledgor has entered into the Existing Share Pledge Agreements (as defined
below). |
| |
| (F) |
|
Pursuant to a senior secured notes indenture dated 9 August 2011 between, inter alia,
the RGHL US Escrow II LLC and RGHL US Escrow II Inc. as escrow issuers (the
“August 2011 Escrow Issuers”), The Bank of New York Mellon as indenture trustee,
The Bank of New York Mellon, London Branch as principal paying agent, The Bank
of New York Mellon as collateral agent and Wilmington Trust (London) Limited as
additional collateral agent (as amended, varied, novated, supplemented, superseded or
extended from time to time, the “New Secured Notes Indenture”), the August 2011
Escrow Issuers have issued senior secured notes due 2019 in the aggregate principal |
- 4 -
| |
|
amount of USD 1,500,000,000 (the “New Secured Notes”). In connection with the release from
escrow of the proceeds of the New Secured Notes, RGHL US Escrow II Inc. and RGHL US Escrow
II LLC shall be merged with and into Reynolds Group Issuer Inc. and Reynolds Group Issuer
LLC (together with Reynolds Group Issuer (Luxembourg) S.A. the “August 2011 Ultimate
Issuers”), respectively, and the obligations of the August 2011 Escrow Issuers shall be
assumed by the August 2011 Ultimate Issuers pursuant to one or more supplemental indentures
between, among others, the August 2011 Escrow Issuers, the August 2011 Ultimate Issuers, The
Bank of New York Mellon, as trustee, principal paying agent, transfer agent, registrar and
collateral agent and Wilmington Trust (London) Limited, as additional collateral agent. At
such time certain affiliates of the August 2011 Ultimate Issuers listed in Schedule 1 Part 3
hereto as current new secured notes guarantors (the “Current New Secured Notes Guarantors”)
will accede to the New Secured Notes Indenture). |
| |
| (G) |
|
As a result of the Second Amended and Restated Credit Agreement and the
amendment No. 6 and incremental term loan assumption agreement dated 9 August
2011 between, inter alia, the Current Borrowers, the Current Guarantors, Credit
Suisse AG as administrative agent and others (the “Amendment No. 6 and
Incremental Term Loan Assumption Agreement”) certain lenders have agreed to
grant incremental term loans in an aggregate amount of up to USD 2,000,000,000. |
| |
| (H) |
|
The Pledgor has agreed to grant an additional pledge (subject to the pledges arising
under the Existing Share Pledge Agreements (as defined below)) over its Shares (as
defined below) in the Company as security for the Pledgee’s respective claims against
the Grantors (as defined below) (or any of them) in respect of the Obligations (as
defined below). |
| |
| (I) |
|
The security created by or pursuant to this Agreement is to be administered by the
Collateral Agent for the Secured Parties (as defined below) pursuant to a first lien
intercreditor agreement dated 5 November 2009 (as amended by the Amendment No.
1 and Joinder Agreement (as defined below)) between, inter alia, the Collateral
Agent, the Indenture Trustee, the Administrative Agent and the Grantors (each as
defined below) and others (as amended, varied, novated, supplemented, superseded or
extended from time to time, the “First Lien Intercreditor Agreement”). |
NOW, IT IS AGREED as follows:
| 1. |
|
DEFINITIONS AND LANGUAGE |
| |
| 1.1 |
|
In this Agreement: |
| |
| |
|
“Administrative Agent” means Credit Suisse AG, Cayman Islands Branch, having its business
address at Eleven Madison Avenue, New York, NY 10010, United States of America in its
capacity as administrative agent under the Credit Agreement and any successor appointed as
administrative agent under the Credit Agreement. |
- 5 -
| |
|
“Amendment No.1 and Joinder Agreement” means the joinder agreement dated 21 January 2010 relating
to the First Lien Intercreditor Agreement made among (amongst others) the Collateral Agent,
Wilmington Trust (London) Limited, Credit Suisse AG and Reynolds Group Holdings Limited pursuant to
which Wilmington Trust (London) Limited is appointed as additional collateral agent and became
party to the First Lien Intercreditor Agreement. |
| |
| |
|
“Borrowers” means the Current Borrowers and any entity which may accede to the Credit Agreement as
an additional borrower and “Borrower” means any of them. |
| |
| |
|
“Cash Management Bank” shall mean Citibank N.A., Banco Nacional De Mexico S.A., Citibank
International PLC, UK, Citibank (China) Co., Limited, Citibank Global Markets Deutschland AG & Co
KGaA, Citibank ZRT, Hungary, a Lender, the Administrative Agent or any of the Lender’s or the
Administrative Agent’s affiliates (at the time the cash management services arrangement is entered
into) provided in each case it has become a party to, or by execution of an additional bank secured
party acknowledgment has agreed to be bound by the terms of, the First Lien Intercreditor Agreement
in its capacity as cash management bank. |
| |
| |
|
“Cash Management Services” shall mean any agreement or arrangement by a Cash Management Bank to
provide any composite accounting or other cash pooling arrangements and netting, overdraft
protection and other arrangements with any bank arising under standard business terms of such Cash
Management Bank to a Grantor. |
| |
| |
|
“Credit Documents” shall mean the Loan Documents, the 2009 Senior Secured Notes Documents, the
October 2010 Secured Notes Documents, the February 2011 Secured Notes Documents and the New Secured
Notes Documents. |
| |
| |
|
“Enforcement Event” shall mean an Event of Default. |
| |
| |
|
“Event of Default” means any event of default (Kündigungsgrund) under the Credit Agreement and/or
the 2009 Senior Secured Notes Indenture and/or the October 2010 Secured Notes Indenture and/or the
February 2011 Secured Notes Indenture and/or the New Secured Notes Indenture. |
| |
| |
|
“Existing Intercreditor Agreement” means the existing intercreditor agreement dated 11 May 2007 (as
amended by a letter dated 21 June 2007 and a further letter dated 29 June 2007, as amended and
restated on 5 November 2009 and as further amended on 5 November 2010) between, inter alia,
Beverage Packaging Holdings (Luxembourg) I S.A., Rank Group Holdings Limited (now Reynolds Group
Holdings Limited), Beverage Packaging Holdings (Luxembourg) II S.A., Beverage Packaging Holdings
(Luxembourg) III S. á r.l., Credit Suisse AG (formerly Credit Suisse) as security trustee and
others. |
| |
| |
|
“Existing Share Pledge Agreements” means |
| |
a) |
|
the share pledge agreement dated 5 November 2009 (as amended by a confirmation and
amendment agreement dated 4 May 2010) entered into |
- 6 -
| |
|
|
between SIG Combibloc Systems GmbH as
pledgor and The Bank of New York Mellon as collateral agent and as pledgee and others as
pledgees; |
| |
| |
b) |
|
a confirmation and amendment agreement dated 4 May 2010 entered into
between, inter alios, SIG Combibloc Systems GmbH as pledgor and The Bank
of New York Mellon as collateral agent and others (the “Confirmation and
Amendment Agreement”); |
| |
| |
c) |
|
the share pledge agreement dated 16 November 2010 entered into between
SIG Combibloc Systems GmbH as pledgor and The Bank of New York
Mellon as collateral agent and as pledgee; and |
| |
| |
d) |
|
the share pledge agreement dated 2 March 2011 entered into between SIG
Combibloc Systems GmbH as pledgor and The Bank of New York Mellon as
collateral agent and as pledgee, |
| |
|
“Existing Shares” has the meaning given to such term in sub-Clause 2.1 hereof. |
| |
| |
|
“February 2011 Secured Notes Documents” shall mean the February 2011 Secured Notes Indenture, the
February 2011 Secured Notes Guarantees, the February 2011 Secured Notes, the Intercreditor
Arrangements, any supplemental indenture, any security document relating to the February 2011
Secured Notes and/or the February 2011 Secured Notes Indenture and any other document that may be
entered into pursuant to any of the foregoing. |
| |
| |
|
“February 2011 Secured Notes Guarantees” shall mean the guarantees of the obligations of the
Issuers under the February 2011 Secured Notes and the February 2011 Secured Notes Indenture by the
February 2011 Secured Notes Guarantors. |
| |
| |
|
“February 2011 Secured Notes Guarantors” means the Current February 2011 Secured Notes Guarantors
and any entity which may accede to the February 2011 Secured Notes Indenture as additional
guarantor. |
| |
| |
|
“February 2011 Secured Notes Holders” shall mean the holders from time to time of the February 2011
Secured Notes. |
| |
| |
|
“February 2011 Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its
capacity as indenture trustee under the February 2011 Secured Notes Indenture and any successor
appointed as indenture trustee under the February 2011 Secured Notes Indenture. |
| |
| |
|
“Future Shares” means all additional shares in the capital of the Company (irrespective of their
nominal value) which the Pledgor may acquire in the future in the event of a share transfer, a
share split, a share combination, an increase of the capital of the Company (including by way of
authorised capital (genehmigtes Kapital)) or otherwise. |
| |
| |
|
“Grantors” means the Loan Parties, the Issuers, the 2009 Senior Secured Notes Guarantors, the
October 2010 Secured Notes Guarantors, the February 2011 Secured |
- 7 -
| |
|
Notes Guarantors and the New Secured Notes Guarantors and any person that has granted a security
interest to the Collateral Agent and/or the Secured Parties in respect of the obligations of the
Loan Parties, the Issuers and the 2009 Senior Secured Notes Guarantors, the October 2010 Secured
Notes Guarantors, the February 2011 Secured Notes Guarantors and the New Secured Notes Guarantors
under the Credit Documents and “Grantor” means any of them. |
| |
| |
|
“Grantors’ Agent” shall mean Reynolds Group Holdings Limited or any other person appointed as agent
of the Grantors in accordance with the Principal Finance Documents. |
| |
| |
|
“Group” means Reynolds Group Holdings Limited and its direct or indirect subsidiaries
(Tochtergesellschaften). |
| |
| |
|
“Hedge Counterparty” means a Lender, the Administrative Agent or any of the Lender’s or the
Administrative Agent’s affiliates (at the time a hedging agreement is entered into) who has entered
into a hedging agreement for the purpose of hedging interest rate liabilities and/or any exchange
rate and/or commodity price risks provided it has become a party, or by execution of an additional
bank secured party acknowledgment has agreed to be bound by the terms of, to the First Lien
Intercreditor Agreement in its capacity as hedge counterparty. |
| |
| |
|
“Incremental Assumption Agreement” shall mean an incremental assumption agreement relating to
incremental facilities of up to USD 2,000,000,000 among, and in form and substance reasonably
satisfactory to, one or more Borrowers, the Administrative Agent, one or more Incremental Term
Lenders and/or one or more Incremental Revolving Credit Lenders pursuant to which one or more
Incremental Term Lenders make available Incremental Term Loan Commitments and/or one or more
Incremental Revolving Credit Lenders make available Incremental Revolving Credit Commitments
respectively. |
| |
| |
|
“Incremental Revolving Credit Lender” shall mean a Lender with an Incremental Revolving Credit
Commitment or an outstanding revolving loan under the Credit Agreement of any class as a result of
an Incremental Revolving Credit Commitment. |
| |
| |
|
“Incremental Revolving Credit Commitment” shall mean the commitment of any Lender, established
pursuant to the Credit Agreement, to make available certain revolving credit loans to one or more
Borrowers. |
| |
| |
|
“Incremental Term Lender” shall mean a Lender with an Incremental Term Loan Commitment. |
| |
| |
|
“Incremental Term Loan Commitment” shall mean the commitment of any Lender, established pursuant to
the Credit Agreement, to make available certain term loans to one or more Borrowers. |
- 8 -
| |
|
“Indenture Trustee” shall mean The Bank of New York Mellon, in its capacity as indenture trustee
under the 2009 Senior Secured Notes Indenture and any successor appointed as indenture trustee
under the 2009 Senior Secured Notes Indenture. |
| |
| |
|
“Intercreditor Arrangements” means the First Lien Intercreditor Agreement and the Existing
Intercreditor Agreement, in each case as amended, novated, supplemented, restated, or modified from
time to time. |
| |
| |
|
“Issuing Bank” means Credit Suisse AG or any other Lender or any affiliate of Credit Suisse AG or
any other Lender that issues letters of credit or bank guarantees under the Credit Agreement. |
| |
| |
|
“Lenders” shall mean the Original Lenders and any entity which may become a lender under the Credit
Agreement in the future and “Lender” means any of them. |
| |
| |
|
“Loan Documents” shall mean the Credit Agreement, the Amendment No.l and Joinder Agreement, the
Second Amended and Restated Credit Agreement and the Amendment No. 6 and Incremental Term Loan
Assumption Agreement, any borrowing subsidiary agreement and/or guarantor joinder agreement
relating to the Credit Agreement, any letter of credit or bank guarantee relating to the Credit
Agreement, any security documents relating to the Credit Agreement, any hedging agreement entered
into by a Hedge Counterparty and a Grantor, each Incremental Assumption Agreement, the
Intercreditor Arrangements, each Promissory Note, any agreement between a Grantor and a Cash
Management Bank relating to Cash Management Services, each Local Facility Agreement and any other
document that may be entered into pursuant to any of the foregoing in relation to the Credit
Agreement. |
| |
| |
|
“Loan Parties” shall mean the Borrowers, the Current Guarantors and any entity which may accede to
the Credit Agreement as additional guarantor and a “Loan Party” means any of them. |
| |
| |
|
“Local Facilities” means working capital facilities provided to a Grantor (other than Beverage
Packaging Holdings (Luxembourg) I S.A., Beverage Packaging Holdings (Luxembourg) II S.A. Beverage
Packaging Holdings (Luxembourg) III S. á r.l. and the Borrowers) by a Local Facility Provider and
“Local Facility” means any of them. |
| |
| |
|
“Local Facility Agreements” shall mean any agreement under which a Local Facility is made
available. |
| |
| |
|
“Local Facility Provider” means HSBC Trinkaus & Burkhardt AG, Deutsche Bank AG, Commerzbank
Aktiengesellschaft and Hong Kong and Shanghai Banking Corporation Ltd., Thailand, Bank of America,
N.A., Canada Branch, FIA Card Services, N.A., Citibank N.A., Citibank (China) Co., Ltd., Banco
Nacional de Mexico, S.A., Integrante del Grupo Financiero Banamex, Bank of America, N.A., provided
in each case it has become a party to, or by execution of an additional bank secured party
acknowledgment has agreed to be bound by the terms of, the First Lien Intercreditor Agreement in
its capacity as local facility provider. |
- 9 -
| |
|
“New Secured Notes Documents” shall mean the New Secured Notes Indenture, the New Secured Notes
Guarantees, the New Secured Notes, the Intercreditor Arrangements, any supplemental indenture, any
security document relating to the New Secured Notes and/or the New Secured Notes Indenture and any
other document that may be entered into pursuant to any of the foregoing. |
| |
| |
|
“New Secured Notes Guarantees” shall mean the guarantees of the obligations of the August 2011
Escrow Issuers and/or of the August 2011 Ultimate Issuers under the New Secured Notes and the New
Secured Notes Indenture by the New Secured Notes Guarantors. |
| |
| |
|
“New Secured Notes Guarantors” means the Current New Secured Notes Guarantors and any entity which
may accede to the New Secured Notes Indenture as additional guarantor. |
| |
| |
|
“New Secured Notes Holders” shall mean the holders from time to time of the New Secured Notes. |
| |
| |
|
“New Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its capacity as
indenture trustee under the New Secured Notes Indenture and any successor appointed as indenture
trustee under the New Secured Notes Indenture. |
| |
| |
|
“Obligations” shall mean all present and future obligations and liabilities (whether actual or
contingent and whether owed jointly or severally or in any other capacity whatsoever) of each
Grantor to the Pledgee under each or any of the Credit Documents (including, but not limited to,
the Parallel Obligations), including with respect to all costs, charges and expenses incurred by
the Pledgee in connection with the protection, preservation or enforcement of its rights under the
Credit Documents or any other document evidencing or securing any such liabilities. The Obligations
shall further include any obligation based on unjust enrichment (ungerechtfertigte Bereicherung) or
tort (Delikt). |
| |
| |
|
“October 2010 Secured Notes Documents” shall mean the October 2010 Secured Notes Indenture, the
October 2010 Secured Notes Guarantees, the October 2010 Secured Notes, the Intercreditor
Arrangements, any supplemental indenture relating to the October 2010 Secured Notes Indenture, any
security document relating to the October 2010 Secured Notes and/or the October 2010 Secured Notes
Indenture and any other document that may be entered into pursuant to any of the foregoing. |
| |
| |
|
“October 2010 Secured Notes Guarantees” shall mean the guarantees of the obligations of the Issuers
under the October 2010 Secured Notes and the October 2010 Secured Notes Indenture by the October
2010 Secured Notes Guarantors. |
| |
| |
|
“October 2010 Secured Notes Guarantors” means the Current October 2010 Secured Notes Guarantors and
any entity which may accede to the October 2010 Secured Notes Indenture as additional guarantor. |
- 10 -
| |
|
“October 2010 Secured Notes Holders” shall mean the holders from time to time of the October 2010
Secured Notes. |
| |
| |
|
“October 2010 Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its
capacity as indenture trustee under the October 2010 Secured Notes Indenture and any successor
appointed as indenture trustee under the October
2010 Secured Notes Indenture. |
| |
| |
|
“Parallel Obligations” means the independent obligations of any of the Grantors arising pursuant to
the First Lien Intercreditor Agreement to pay to the Collateral Agent sums equal to the sums owed
by such Grantor to the other Secured Parties (or any of them) under the Credit Documents. |
| |
| |
|
“Pledge” and “Pledges” have the meanings given to such terms in Clause 3.1. |
| |
| |
|
“Principal Finance Documents” means the Credit Agreement, the 2009 Senior Secured Notes Indenture,
the October 2010 Secured Notes Indenture, the February
2011 Secured Notes Indenture, the New Secured Notes Indenture and the First Lien
Intercreditor Agreement. |
| |
| |
|
“Promissory Note” shall mean any promissory note executed and delivered by a Borrower upon the
request of a Lender evidencing the amount of principal owed by such Borrower to such Lender under
the Credit Agreement. |
| |
| |
|
“Secured Parties” shall mean the Lenders (including in their capacity as issuing bank(s), and/or
Hedge Counterparties under the Credit Agreement), the Hedge Counterparties, the Administrative
Agent, any Issuing Bank, the beneficiaries of each indemnification obligation undertaken by any
Grantor under any Credit Document, the 2009 Senior Secured Notes Holders, the October 2010 Secured
Notes Holders, the February 2011 Secured Notes Holders and the New Secured Notes Holders, the
Indenture Trustee, the October 2010 Secured Notes Indenture Trustee, the February 2011 Secured
Notes Indenture Trustee and the New Secured Notes Indenture Trustee, the Collateral Agent, the
Local Facility Providers and the Cash Management Banks. |
| |
| |
|
“2009 Senior Secured Notes Documents” shall mean the 2009 Senior Secured Notes Indenture, the 2009
Senior Secured Notes Guarantees, the 2009 Senior Secured Notes, the Intercreditor Arrangements, any
supplemental indenture, any security document relating to the 2009 Senior Secured Notes and/or the
2009 Senior Secured Notes Indenture and any other document that may be entered into pursuant to any
of the foregoing. |
| |
| |
|
“2009 Senior Secured Notes Guarantees” shall mean the guarantees of the obligations of the Issuers
under the 2009 Senior Secured Notes and the 2009 Senior Secured Notes Indenture by the 2009 Senior
Secured Notes Guarantors. |
| |
| |
|
“2009 Senior Secured Notes Guarantors” means the Current 2009 Senior Secured Notes Guarantors and
any entity which may accede to the 2009 Senior Secured Notes Indenture as additional guarantor. |
- 11 -
| |
|
“2009 Senior Secured Notes Holders” shall mean the holders from time to time of the 2009
Senior Secured Notes. |
| |
| |
|
“Shares” means the Existing Shares and the Future Shares. |
| |
| 1.2 |
|
Construction |
| |
| |
|
In this Agreement any reference to a “Clause”, a “sub-Clause” or a “Schedule” shall,
subject to any contrary indication, be construed as a reference to a Clause, a sub-Clause
or a Schedule hereof. |
| |
| 1.3 |
|
This Agreement is made in the English language. For the avoidance of doubt, the
English language version of this Agreement shall prevail over any translation of this
Agreement. However, where a German translation of a word or phrase appears in the
text of this Agreement, the German translation of such word or phrase shall prevail. |
| |
| 2. |
|
PLEDGED SHARES |
| |
| 2.1 |
|
The Company has a nominal share capital (Stammkapital) of EUR 256,000 (in words: Euro two
hundred fifty-six thousand) which consists of one share (the “Existing Shares”). |
| |
| 2.2 |
|
The Pledgor is the owner of the Existing Shares and is registered as such in the shareholders
list (Gesellschafterliste) of the Company as filed (aufgenommen) with the commercial register
(Handelsregister), a copy of which is attached as Schedule 1 Part 4 (Copy of Shareholders
List). |
| |
| 3. |
|
PLEDGE |
| |
| 3.1 |
|
The Pledgor hereby pledges to the Pledgee the Shares together with all ancillary rights and
claims associated with the Shares as more particularly specified in Clause 4 (the “Pledge”
and/or the “Pledges”). |
| |
| 3.2 |
|
The Pledgee hereby accepts the Pledge. |
| |
| 3.3 |
|
The Pledge is in addition, and without prejudice, to any other security the Secured Parties
may now or hereafter hold in respect of the Obligations. |
| |
| 4. |
|
SCOPE OF THE PLEDGES |
| |
| 4.1 |
|
The Pledge constituted by this Agreement includes: |
| |
(a) |
|
the present and future rights to receive: |
| |
(i) |
|
dividends attributable to the Shares, if any; and |
| |
| |
(ii) |
|
liquidation proceeds, redemption proceeds (Einziehungsentgelt),
repaid
capital in case of a capital decrease, any compensation in case of
termination (Kundigung) and/or withdrawal (Austritt) of a shareholder |
- 12 -
| |
|
|
of the Company, the surplus in case of surrender (Preisgabe), any repayment
claim for any additional capital contributions (Nachschüsse) and all other
pecuniary claims associated with the Shares; |
| |
(b) |
|
the right to subscribe for newly issued shares; and |
| |
| |
(c) |
|
all other rights and benefits attributable to the Shares capable of being
pledged (verpfändbar) (including without limitation all present and future pecuniary
claims of the Pledgor against the Company arising under or in connection with any
domination and/or profit transfer agreement (Beherrschungs- und/oder
Gewinnabführungsvertrag) or partial profit transfer agreement
(Teilgewinnabfuhrungsvertrag) which may be entered into between the Pledgor and the
Company). |
| 4.2 |
|
Notwithstanding that the items set out in Clause 4.1 above are pledged hereunder, the Pledgor
shall be entitled to receive and retain the items set out in Clause 4.1 in respect of, and
otherwise deal (in accordance with the agreements between the parties) with all items
described in Clause 4.1 hereof in respect of the Shares at all times other than any time the
Pledgee is entitled to enforce the Pledge constituted hereunder. |
| |
| 4.3 |
|
On the date and during the period in which the Pledgee is entitled, in accordance with Clause
7 (Enforcement of the Pledges) hereof, to enforce the Pledge (or any part thereof): |
| |
(a) |
|
all dividends paid or payable and any other property received, receivable or
otherwise distributed in respect of or in exchange for the Shares; |
| |
| |
(b) |
|
all dividends or other distributions or payments paid or payable in respect
of the Shares in connection with the partial or total liquidation or dissolution of
the Company or in connection with the reduction of the amount of the registered share
capital of the Company; and |
| |
| |
(c) |
|
all cash paid, payable or otherwise distributed in respect of the principal
of, or in redemption of, or in exchange for the Shares, |
| |
|
shall be forthwith delivered to the Pledgee and held as security for and on behalf of the
Secured Parties. If such proceeds or property are received by the Pledgor, they shall be
received as trustee for the benefit of the Pledgee and shall be segregated from other
property or funds of the Pledgor and shall be forthwith delivered to the Pledgee as security
in the form so received (with any necessary endorsement). |
| |
| 5. |
|
PURPOSE OF THE PLEDGES |
| |
| |
|
The Pledge hereunder is constituted in order to secure the prompt and complete satisfaction
of any and all Obligations. The Pledge shall also cover any future extension of the
Obligations and the Pledgor herewith expressly agrees that the provisions of Section 1210
para 1 sentence 2 of the German Civil Code (Bürgerliches Gesetzbuch) shall not apply to this
Agreement. |
- 13 -
| 6. |
|
EXERCISE OF MEMBERSHIP RIGHTS |
| |
| |
|
The membership rights, including the voting rights, attached to the Shares remain with the
Pledgor. The Pledgor may exercise its membership rights in any manner which does not
adversely affect the validity and enforceability of the Pledge, the existence of all or
part of the Shares or cause an Event of Default to occur. The Pledgor undertakes, unless
otherwise agreed between the parties, that no resolutions will be passed which would, if
passed, constitute a breach of its obligations under Clause 1010 or any other obligation
under this Agreement. |
| |
| 7. |
|
ENFORCEMENT OF THE PLEDGES |
| |
| 7.1 |
|
If (i) an Enforcement Event has occurred and is continuing and (ii) the requirements set
forth in Sections 1273 para 2, 1204 et seg. of the German Civil Code with regard to the
enforcement of the Pledge are met (Pfandreife), in particular, if any of the Obligations have
become due and payable, then in order to enforce the Pledge, the Pledgee (acting on the
instructions of the Secured Parties) may at any time thereafter avail itself of all rights and
remedies that a pledgee has against a pledgor under the laws of the Federal Republic of
Germany. |
| |
| 7.2 |
|
Notwithstanding Section 1277 of the German Civil Code, the Pledgee is entitled to exercise
its rights without obtaining enforceable judgment or other instrument (vollstreckbarer Titel).
The Pledgee shall be entitled to have the Pledge enforced in any manner allowed under the laws
of the Federal Republic of Germany, in particular have the Pledge sold (including at public
auction). |
| |
| 7.3 |
|
The Pledgor hereby expressly agrees that 5 (five) business days’ prior written notice to the
Pledgor of the place and time of any such sale shall be sufficient and the Pledgee shall not
be obliged to deliver any further notices (including, but not limited to the notices set out
under Section 1234 of the German Civil Code) to the Pledgor prior to such sale. The sale may
take place at any place in the Federal Republic of Germany designated by the Pledgee. |
| |
| 7.4 |
|
If the Pledgee (acting on the instructions of the Secured Parties) should seek to enforce the
Pledge under sub-Clause 7.1, the Pledgor shall, at its own expense, render forthwith all
necessary assistance in order to facilitate the prompt sale of the Shares or any part thereof
and/or the exercise by the Pledgee of any other right it may have as Pledgee. |
| |
| 7.5 |
|
Whilst the requirements for enforcement under sub-Clause 7.1 are continuing, all subsequent
dividend payments attributable to the Shares and all payments based on similar ancillary
rights attributed to the Shares may be applied by the Pledgee in satisfaction in whole or in
part of the Obligations or treated as additional collateral. |
| |
| 7.6 |
|
Even if the requirements for enforcement referred to under sub-Clause 7.1 above are met, the
Pledgee shall not, whether as proxy or otherwise, be entitled to exercise the voting rights
attached to the Shares. However, the Pledgor shall, during the continuation of an event which
allows the Pledgee to enforce the Pledge, have the |
- 14 -
| |
|
obligations and the Pledgee shall have the
rights set forth in sub-Clause 10.6 below regardless of which resolutions are intended to be
adopted. |
| |
| 7.7 |
|
The Pledgee may, in its sole discretion, determine which of several security interests, if
applicable, shall be used to satisfy the Obligations. The Pledgor hereby expressly waives its
right pursuant to Section 1230 sentence 2 of the German Civil Code to limit the realisation of
the Pledge and pledges over the shares or partnership interests in one or more other companies
to such number of pledges as are necessary to satisfy the Obligations and agrees further that
the Pledgee may decide to enforce the Pledge over the shares in the Company
individually in separate proceedings or together with pledges over shares or partnership
interests in one or more other companies at one single proceeding (Gesamtverwertung). |
| |
| 7.8 |
|
The Pledgor hereby expressly waives all defences of revocation (Einrede der Anfechtbarkeit)
and set-off (Einrede der Aufrechenbarkeit) pursuant to Sections 770, 1211 of the German Civil
Code. |
| |
| 7.9 |
|
The Pledgor hereby expressly waives its defences based on defences any Grantor might have
against any of the Obligations (Einreden des Hauptschuldners) pursuant to Section 1211 para 1
sentence 1 alternative 1 of the German Civil Code. |
| |
| 7.10 |
|
If the Pledge is enforced or if the Pledgor has discharged any of the Obligations (or any
part of them), Section 1225 of the German Civil Code (legal subrogation of claims to a pledgor
— Forderungsubergang auf den Verpfander) shall not apply and no rights of the Pledgee shall
pass to the Pledgor by subrogation or otherwise. Further, the Pledgor shall at no time before,
on or after an enforcement of the Pledge and as a result of the Pledgor entering into this
Agreement, be entitled to demand indemnification or compensation from the Company or the
Company’s affiliates or to assign any of these claims. |
| |
| 8. |
|
LIMITATIONS ON ENFORCEMENT |
| |
| 8.1 |
|
The Pledgee shall be entitled to apply proceeds of an enforcement of the Pledge
towards satisfaction of the Obligations without limitation in respect of: |
| |
(a) |
|
all and any amounts which are owed under the Credit Documents by the Pledgor
itself, the Company or by any of their subsidiaries; and |
| |
| |
(b) |
|
all and any amounts which correspond to funds that have been borrowed or
otherwise raised under the Credit Documents, in each case to the extent borrowed,
on-lent or otherwise passed on to, or issued for the benefit of, the Pledgor, the
Company or any of their subsidiaries, or for the benefit of any of their creditors and
in each case not repaid and outstanding from time to time |
| |
|
(in aggregate, the “Unlimited Enforcement Amount”). |
| |
| 8.2 |
|
Besides an application of proceeds from an enforcement of the Pledge towards
satisfaction of the Obligations in respect of the Unlimited Enforcement Amount |
- 15 -
| |
|
pursuant to Clause 8.1 above, the Pledgee shall not be entitled to apply proceeds of an
enforcement of the Pledge towards satisfaction of the Obligations but shall return to the
Pledgor proceeds of an enforcement of the Pledge if and to the extent that: |
| |
(a) |
|
the Pledge secures the obligations of a Grantor which is (x) a shareholder of
the Pledgor or (y) an affiliated company (verbundenes Unternehmen) within the meaning
of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of
the Pledgor (other than the Pledgor and its subsidiaries); and |
| |
| |
(b) |
|
the application of proceeds of an enforcement of the Pledge towards the
Obligations would have the effect of (x) reducing the Pledgor’s net assets
(Reinvermogen) (the “Net Assets”) to an amount of less than its stated share capital
(Stammkapital) or, if the Net Assets are already an amount of less than its stated
share capital, of causing such amount to be further reduced and (y) would thereby
affect the assets required for the obligatory preservation of the Pledgor’s stated
share capital (Stammkapital) according to section 30, 31 German Limited Liability
Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided
that the amount of the stated share capital to be taken into consideration shall be
the amount registered in the commercial register at the date hereof, and any increase
of the stated share capital registered after the date of this Agreement shall only be
taken into account if such increase has been effected with the prior written consent
of the Collateral Agent, |
| 8.3 |
|
The Net Assets shall be calculated as an amount equal to the sum of the values of the
Pledgor’s assets (consisting of all assets which correspond to the items set forth in section
266 sub-section(2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the
aggregate amount of the Pledgor’s liabilities (consisting of all liabilities and liability
reserves which correspond to the items set forth in section 266 sub-section (3) B, C and D of
the German Commercial Code), save that: |
| |
(a) |
|
any asset that is shown in the balance sheet with a book value (Buchwert)
that is significantly lower than the market value of such asset and that is not
necessary for the Pledgor’s business (nicht betriebsnotwendig) shall be taken into
account with its market value; |
| |
| |
(b) |
|
obligations under loans provided to the Pledgor by any member of the Group or
any other affiliated company shall not be taken into account as liabilities as far as
such loans are subordinated by law or by contract at least to the claims of the
unsubordinated creditors of the Pledgor; and |
| |
| |
(c) |
|
obligations under loans or other contractual liabilities incurred by the
Pledgor in violation of the provisions of the Credit Documents shall not be taken into
account as liabilities. |
| |
|
The Net Assets shall be determined in accordance with the generally accepted accounting
principles applicable from time to time in Germany (Grundsatze |
- 16 -
| |
|
Ordnungsmäßiger Buchführung)
and be based on the same principles that were applied by the Pledgor in the preparation of
its most recent annual balance sheet (Jahresbilanz). |
| |
| |
|
It being understood that the assets of the Pledgor will be assessed at liquidation values
(Liquidationswerte) if the managing directors of the Pledgor, at the time they prepare the
Management Determination (as defined below) are, due to factual or legal circumstances at
that time, in their opinion not able to make a positive prognosis as to whether the
business of the Pledgor can carry on as a going concern (positive Fortfuhrungsprognose), in
particular when the Pledge is enforced. |
| |
| 8.4 |
|
The limitations set out in Clause 8.2 above shall only apply if and to the extent that: |
| |
(a) |
|
without undue delay, but not later than within 5 business days, after receipt
of a notification by the Collateral Agent of its intention to enforce the Pledge (the
“Notice”), the Pledgor has confirmed in writing to the Collateral Agent (x) to what
extent such Pledge is up-stream or cross-stream security as described in Clause 8.2
above and (y) which amount of proceeds of an enforcement of the Pledge attributable to
the enforcement of such up-stream or cross-stream security cannot be applied towards
satisfaction of the Obligations but would have to be returned to the Pledgor as it
would otherwise cause the Net Assets of the Pledgor to fall below its stated share
capital (taking into account the adjustments set out in Clause 8.3 above) and such
confirmation is supported by evidence reasonably satisfactory to the Collateral Agent
(the “Management Determination”) and the Collateral Agent has not contested this and
argued that no or a lesser amount would be necessary to maintain the Pledgor’s stated
share capital; or |
| |
| |
(b) |
|
within 20 business days from the date the Collateral Agent has contested the
Management Determination, the Collateral Agent receives from the Pledgor an up to date
balance sheet prepared by a firm of auditors of international standard and reputation
(the “Determining Auditors”) which shows the value of the Pledgor’s Net Assets (the
“Balance Sheet”). The Balance Sheet shall be prepared in accordance with the
principles set out in Clause 8.3 above, provided that the final sentence of Clause 8.3
above shall not apply unless the Determining Auditors have in an independent
assessment determined that the assets of the Pledgor should be evaluated at
liquidation values (Liquidationswerte) in accordance with the generally accepted
accounting principles applicable from time to time in Germany (Grundsatze
ordnungsmaBiger Buchfuhrung) and shall contain further information (in reasonable
detail) relating to items to be adjusted pursuant to Clause 8.3 above. If the Pledgor
fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee
shall be entitled to apply the proceeds of an enforcement of the Pledge towards
satisfaction of the Obligations irrespective of the limitations set out in Clause
8.2 above. |
| 8.5 |
|
If the Pledgee disagrees with the Balance Sheet it shall be entitled to apply proceeds
of an enforcement of the Pledge in satisfaction of the Obligations up to an amount |
- 17 -
| |
|
which, according to the Balance Sheet, can be applied in satisfaction of the Obligations in
compliance with the limitations set out in Clause 8.2 above. In relation to any additional
amounts for which the Pledgor is liable under this Agreement, the Pledgee shall be entitled
to further pursue its claims (if any) and the Pledgor shall be entitled to prove that this
amount is necessary for maintaining its stated share capital (calculated as of the date the
Pledgee has given notice that it intends to enforce the security created under this
Agreement). |
| |
| 8.6 |
|
No reduction of the amount enforceable or applicable towards satisfaction of the Obligations
under this Clause 8 will prejudice the right of the Pledgee to continue enforcing the Pledge
(subject always to the operation of the limitations set out above at the time of such
enforcement) until full satisfaction to the claims secured. |
| |
| 9. |
|
APPROVAL AND CONFIRMATION |
| |
| |
|
The Pledgor as the sole shareholder of the Company hereby approves the Pledge over the
Shares and over any and all ancillary rights and claims associated with the Shares (as more
particularly specified in Clause 4) and pursuant to the articles of association of the
Company the Pledge is not subject to any approval of the Company. |
| |
| 10. |
|
UNDERTAKINGS OF THE PLEDGOR |
| |
| |
|
Unless otherwise agreed between the parties, during the term of this Agreement, the Pledgor
undertakes to the Pledgee: |
| |
| 10.1 |
|
to promptly effect any contributions in cash (Bareinlage) or kind (Sacheinlage) to be made in
respect of the Shares; |
| |
| 10.2 |
|
to inform the Pledgee promptly of any change made in the registered share capital of the
Company, or any changes made to the articles of association of the Company which would
materially adversely affect the security interest of the Pledgee and in each such case to
promptly deliver to the Pledgee a copy of the updated shareholders list (Gesellschafterliste)
and a copy of the amended articles of association (Satzung) both as filed (aufgenommen) with
the commercial register (Handelsregister); |
| |
| 10.3 |
|
to promptly notify the Pledgee, by notification in writing of the registration of an
objection (Widerspruch) in relation to the Shares of the Pledgor in the shareholders list
(Gesellschafterliste) as filed (aufgenommen) with the commercial register (Handelsregister). |
| |
| 10.4 |
|
to promptly notify the Pledgee, by notification in writing, of any attachment (Pfändung) in
respect of any of the Shares or any ancillary rights set out in sub-Clause 4.1 such notice to
be accompanied by any documents the Pledgee might need to defend itself against any claim of a
third party. In particular, the Pledgor shall promptly forward to the Pledgee a copy of the
attachment order (Pfändungsbeschluss), any transfer order (Überweisungsbeschluss) and all
other documents necessary for a defence against the attachment; |
- 18 -
| 10.5 |
|
in the event of any increase in the capital of the Company, not to allow, without the
prior written consent of the Pledgee (such consent not to be unreasonably withheld), any party
other than himself to subscribe for any Future Shares, and not to defeat, impair or circumvent
in any way the rights of the Pledgee created hereunder; |
| |
| 10.6 |
|
to promptly inform the Pledgee, by notification in writing, of all matters concerning the
Company of which the Pledgor is aware which would materially adversely affect the security
interest of the Pledgee. In particular, the Pledgor shall notify the Pledgee, by notification
in writing, forthwith of any shareholders’ meeting at which a shareholders’ resolution is
intended to be adopted which would have a materially adverse effect upon the Pledge. The
Pledgor shall allow, following the occurrence and during the continuance of any of the
circumstances which permit the Pledgee to enforce the Pledge constituted hereunder in
accordance with Clause 7, the Pledgee or, as the case may be, its proxy or any other person
designated by the Pledgee, to participate in all such shareholders’ meetings of the Company as
attendants without power to vote. Subject to the provision contained in sub-Clause 14.1, the
Pledgee’s right to attend a shareholders’ meeting shall lapse immediately upon complete
satisfaction and discharge of the Obligations; |
| |
| 10.7 |
|
to refrain from any acts or omissions, subject to the performance of its rights and duties
under the Existing Share Pledge Agreements, the purpose or effect of which is or would be the
dilution of the value of the Shares or the Shares ceasing to exist, unless permitted by the
Pledgee (acting reasonably); |
| |
| 10.8 |
|
not to amend the articles of association of the Company to the extent that such amendment
would materially adversely affect the security interest of the Pledgee created hereunder
without the prior written consent of the Pledgee (such consent not to be unreasonably
withheld); |
| |
| 10.9 |
|
insofar as additional declarations or actions are necessary for the creation of the Pledge in
favour of the Pledgee and at the Pledgee’s reasonable request (acting on the reasonable
instructions of the Secured Parties), to make such declarations and undertake such actions at
its own costs and expenses; and |
| |
| 10.10 |
|
for the avoidance of doubt, notification and consent requirements as set out in sub-Clauses
10.1 through 10.8 of this Agreement are deemed to be satisfied if and to the extent such
notification or consent has been delivered under the Existing Share Pledge Agreements provided
that such notification to the Pledgee or consent of the Pledgee makes reference to this
Agreement and each Existing Share Pledge Agreement. |
| |
| 11. |
|
DELEGATION |
| |
| |
|
The Pledgee shall have full power to delegate (either generally or specifically) the powers,
authorities and discretions conferred on it by this Agreement on such terms and conditions
as it shall see fit. The Pledgee shall only remain liable for diligently selecting and
providing initial instructions to such delegate. |
- 19 -
| 12. |
|
INDEMNITY |
| |
| |
|
The Pledgor shall reimburse the Pledgee (which, for purposes of this Clause 12, shall
include its officers, directors, employees, agents and counsel) upon request for all
properly incurred, reasonable and documented out-of-pocket expenses incurred or made by it
in connection with the Credit Documents. Such expenses shall include the properly incurred,
reasonable and documented compensation and expenses, disbursements and advances of the
Pledgee’s agents, counsel, accountants and experts. The Pledgor shall indemnify the Pledgee
against any and all loss, liability, claim, taxes, costs, damage or expense (including
properly incurred, reasonable and documented attorneys’ fees and expenses) incurred by or
in connection with the acceptance or administration of the Pledgee’s performance of its
duties under this Agreement and under German law, including the costs and expenses of
enforcing this Agreement and defending itself against or investigating any claim. The
obligation to pay such amounts shall survive the payment in full or defeasance of the
Obligations or the removal or resignation of the Pledgee. The Pledgee shall notify Reynolds
Group Holdings Limited of any claim for which it may seek indemnity promptly upon obtaining
actual
knowledge thereof; provided that any failure so to notify Reynolds Group Holdings Limited
shall not relieve the Pledgor of its indemnity obligations hereunder. The Pledgor may
defend itself against such claim and the Pledgee shall provide reasonable cooperation in
such defense. The Pledgee may have separate counsel and the Pledgor shall pay the properly
incurred, reasonable and documented fees and expenses of such counsel. The Pledgor need not
reimburse any expense or indemnify against any loss, liability or expense incurred by the
Pledgee through the Pledgee’s own wilful misconduct (Vorsatz) or gross negligence (grobe
Fahriässigkeit). No provision of this Agreement shall require the Pledgee to expend or risk
its own funds or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if repayment of such
funds or adequate indemnity against such risk or liability is not assured to its
satisfaction. |
| |
| 13. |
|
NO LIABILITY |
| |
| |
|
Except as otherwise agreed between the parties to this Agreement, none of the Pledgee, its
nominee(s) or agent(s) or delegate(s) shall be liable by reason of (a) taking any action
permitted by this Agreement or (b) any neglect or default in connection with the assets and
rights subject to the security interest created hereunder, save in respect of any loss or
damage which is suffered as a result of wilful misconduct (Vorsatz) or gross negligence
(grobe Fahriässigkeit) by the Pledgee, its nominee(s) or agent(s) or delegate(s), or (c) the
enforcement or realisation of all or any part of the security interest created hereunder. |
| |
| 14. |
|
DURATION AND INDEPENDENCE |
| |
| 14.1 |
|
This Agreement shall remain in full force and effect until complete satisfaction of the
Obligations. The Pledge shall not cease to exist, if any Grantor under the Credit Documents
has only temporarily discharged the Obligations. |
- 20 -
| 14.2 |
|
This Agreement shall create a continuing security and no change, amendment, or supplement
whatsoever in the Credit Documents or in any document or agreement related to any of the
Credit Documents shall affect the validity or the scope of this Agreement nor the obligations
which are imposed on the Pledgor pursuant to it. |
| |
| 14.3 |
|
This Agreement is independent from any other security or guarantee which may have been or
will be given to the Collateral Agent. None of such other security shall prejudice, or shall
be prejudiced by, or shall be merged in any way with this Agreement. |
| |
| 14.4 |
|
Waiving Section 418 of the German Civil Code, the Pledgor hereby agrees that the security
created hereunder shall not be affected by any transfer or assumption of the Obligations to,
or by, any third party. |
| |
| 15. |
|
RELEASE OF PLEDGE (PFANDFREIGABE) |
| |
| 15.1 |
|
Upon complete and irrevocable satisfaction of the Obligations, the Collateral Agent (as
instructed in accordance with the First Lien Intercreditor Agreement) will as soon as
reasonably practicable declare in writing the release of the Pledge (Pfandfreigabe) to the
Pledgor as a matter of record. For the avoidance of doubt, the parties are aware that upon
full and complete satisfaction of the Obligations the Pledge, due to its accessory nature
(Akzessorietät) ceases to exist by operation of German mandatory law. |
| |
| 15.2 |
|
At any time when the total value of the aggregate security granted by the Pledgor and any of
the other Grantors to secure the Obligations (the “Security”), which can be expected to be
realised in the event of an enforcement of the Security (realisierbarer Wert), exceeds 110% of
the Obligations (the “Limit”) not only temporarily, the Pledgee shall on demand of the Pledgor
release such part of the Security (Sicherheitenfreigabe) as the Pledgee (as instructed in
accordance with the First Lien Intercreditor Agreement) may in its reasonable discretion
determine so as to reduce the realisable value of the Security to the Limit. |
| |
| 15.3 |
|
The parties acknowledge that the Pledgee (as instructed in accordance with the First Lien
Intercreditor Agreement) will declare in writing the release of the Pledge (Pfandfreigabe) to
the Pledgor as soon as reasonably practicable in accordance with, and to the extent required
by, the Intercreditor Arrangements. |
| |
| 16. |
|
PARTIAL INVALIDITY; WAIVER |
| |
| 16.1 |
|
If at any time, any one or more of the provisions hereof is or becomes invalid, illegal or
unenforceable in any respect under the law of any jurisdiction, such provision shall as to
such jurisdiction, be ineffective to the extent necessary without affecting or impairing the
validity, legality and enforceability of the remaining provisions hereof or of such provisions
in any other jurisdiction. The invalid, illegal or unenforceable provision shall be deemed to
be replaced with such valid, legal or enforceable provision which comes as close as possible
to the original intent of the parties and the invalid, illegal or unenforceable provision.
Should a gap (Regelungslücke) become |
- 21 -
| |
|
evident in this Agreement, such gap shall, without
affecting or impairing the validity, legality and enforceability of the remaining provisions
hereof, be deemed to be filled in with such provision which comes as close as possible to the
original intent of the parties. |
| 16.2 |
|
No failure to exercise, nor any delay in exercising, on the part of the Pledgee, any right or
remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise
of any right or remedy prevent any further or other exercise thereof or the exercise of any
other right or remedy. The rights and remedies provided hereunder are cumulative and not
exclusive of any rights or remedies provided by law. |
| |
| 16.3 |
|
In particular, the Pledge shall not be affected and shall in any event extend to any and all
shares in the Company even if the number or nominal value of the Existing Shares or the
aggregate share capital of the Company as stated in Clause 1.2 are inaccurate or deviate from
the actual facts. |
| |
| 17. |
|
AMENDMENTS |
| |
| |
|
Changes and amendments to this Agreement including this Clause 17 shall be made in writing
except where notarisation is required. |
| |
| 18. |
|
NOTICES AND THEIR LANGUAGE |
| |
| 18.1 |
|
All notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail or sent
by fax, as follows: |
| |
|
|
|
|
|
| For the Pledgor: |
|
SIG Combibloc Systems GmbH |
| |
|
|
Address:
|
|
RurstraBe 58, 52441
Linnich, Germany, |
| |
|
|
Telephone:
|
|
+49 2462 79 0 |
| |
|
|
Fax:
|
|
+49 2462 79 2519 |
| |
|
|
Attention:
|
|
Managing directors
(Geschäftsführung) |
- 22 -
| |
|
|
|
|
|
for the Pledgor with a copy to: |
|
|
|
|
|
|
|
|
|
|
|
Address:
|
|
c/o Rank Group Limited |
|
|
|
|
|
|
|
|
|
Level 9 |
|
|
|
|
|
|
|
|
|
148 Quay Street |
|
|
|
|
|
|
|
|
|
PO Box 3515 |
|
|
|
|
|
|
|
|
|
Auckland 1140 |
|
|
|
|
|
|
|
|
|
New Zealand |
|
|
|
|
|
|
|
Telephone.
|
|
+649 3666 259 |
|
|
|
|
|
|
|
Fax:
|
|
+649 3666 263 |
|
|
|
|
|
|
|
Attention:
|
|
Helen Golding |
|
|
|
|
|
| For the Pledgee: |
|
The Bank of New York Mellon |
|
|
|
|
|
|
|
Address:
|
|
101 Barclay Street, 4E |
|
|
|
|
|
|
|
|
|
New York, N.Y. 10286 |
|
|
|
|
|
|
|
|
|
The United States of |
|
|
|
|
|
|
|
|
|
America |
|
|
|
|
|
|
|
Telephone:
|
|
+212 298 1528 |
|
|
|
|
|
|
|
Fax:
|
|
+212 815 5366 |
|
|
|
|
|
|
|
Attention:
|
|
International Corporate
Trust |
| 18.2 |
|
Any party hereto may change its address or fax number for notices and other communications
hereunder by notice to the other parties hereto. As agreed to in writing by the parties,
notices and other communications hereunder may also be delivered by e-mail to the e-mail
address of a representative of the applicable party to this Agreement provided from time to
time by such party. |
| |
| 18.3 |
|
All notices and other communications given to any party in connection with this Agreement in
accordance with the provisions of this Agreement shall be deemed (widerlegbare Vermutung)
received on the date sent (if a business day) and on the |
- 23 -
| |
|
next business day thereafter (in all
other cases) if delivered by hand or overnight courier service or sent by fax or on the date
five business days after dispatch by certified or registered mail if mailed, in each case
delivered, sent or mailed (properly addressed) to such party as provided in this Clause 18 or
in accordance with the latest unrevoked direction from such party given in accordance with
this Clause 18. |
| 18.4 |
|
Any notice or other communication under or in connection with this Agreement shall be in the
English language or, if in any other language, accompanied by a translation into English. In
the event of any conflict between the English text and the text in any other language, the
English text shall prevail. |
| |
| 19. |
|
NOTIFICATION |
| |
| 19.1 |
|
The Pledgor and the Pledgee hereby give notice of this Agreement and the Pledge of the rights
pursuant to Clause 3 and Clause 4 to the Company. |
| |
| 19.2 |
|
The Company hereby acknowledges the notification pursuant to Clause 19.1 above. |
| |
| 20. |
|
APPLICABLE LAW, JURISDICTION |
| |
| 20.1 |
|
This Agreement is governed by the laws of the Federal Republic of Germany. |
| |
| 20.2 |
|
The place of jurisdiction for any and all disputes arising under or in connection with this
Agreement shall be the courts in Frankfurt am Main. The Pledgee however, shall also be
entitled to take action against the Pledgor in any other court of competent jurisdiction.
Further, the taking of proceedings against the Pledgor in any one or more jurisdictions shall
not preclude the taking of proceedings in any other jurisdiction (whether concurrently or not)
if and to the extent permitted by applicable law. |
The Notary advised the persons appearing:
| • |
|
that a pledge is a security instrument of strictly accessory nature (which means that it
comes into legal existence only if, to the extent that, and as long as, the underlying secured
claims do in fact exist, and that the owners of the secured claims and the pledgees must be
identical); |
| |
| • |
|
that notwithstanding Section 16 para 3 German Limited Liability Companies Act (Gesetz
betreffend die Gesellschaften mit beschränkter Haftung) there is no bona fide creation,
acquisition nor ranking of a pledge of shares (in the sense that the pledgees are not
protected if the shares purported to be pledged do not exist or have been previously
encumbered for the benefit of a third party); and |
| |
| • |
|
that the English original version of this Agreement will not be acceptable for enforcement
but will have to be translated, by a certified translator, into German for such purposes. |
- 24 -
SCHEDULE 1
PART 1
LIST OF CURRENT BORROWERS
SIG Euro Holding AG & Co. KGaA
Closure Systems International Holdings Inc.
Closure Systems International B.V.
SIG Austria Holding GmbH
Reynolds Consumer Products Holdings Inc.
Reynolds Group Holdings Inc.
Pactiv Corporation
PART 2
LIST OF CURRENT GUARANTORS, CURRENT 2009 SENIOR SECURED NOTES
GUARANTORS, CURRENT OCTOBER 2010 SECURED NOTES GUARANTORS
AND CURRENT FEBRUARY 2011 SECURED NOTES GUARANTORS
Whakatane Mill Australia Pty Limited
SIG Austria Holding GmbH
SIG Combibloc GmbH & Co KG
SIG Combibloc GmbH
SIG Beverages Brasil Ltda
SIG Combibloc do Brasil Ltda.
Closure Systems International (Brazil) Sistemas de Vedação Ltda
CSI Latin American Holdings Corporation
Evergreen Packaging Canada Limited
CSI Closure Systems Manufacturing de Centro America, S.R.L.
- 25 -
SIG Holdings (UK) Limited
SIG Combibloc Limited
Closure Systems International (UK) Limited
Reynolds Consumer Products (UK) Limited
Reynolds Subco (UK) Limited
Kama Europe Limited
Ivex Holdings, Ltd.
SIG Euro Holding AG & Co. KGaA
SIG Beverages Germany GmbH
SIG Combibloc Holding GmbH
SIG Vietnam Beteiligungs GmbH
SIG Combibloc GmbH
SIG Combibloc Systems GmbH
SIG Combibloc Zerspanungstechnik GmbH
SIG Information Technology GmbH
SIG International Services GmbH
Closure Systems International Holdings (Germany) GmbH
Closure Systems International Deutschland GmbH
Pactiv Hamburg Holdings GmbH
Pactiv Deutschland Holdinggesellschaft mbH
Omni-Pac Ekco GmbH Verpackungsmittel
Omni-Pac GmbH Verpackungsmittel
SIG Asset Holdings Limited
Closure Systems International (Hong Kong) Limited
SIG Combibloc Limited
- 26 -
Evergreen Packaging (Hong Kong) Limited
Closure Systems International Holdings (Hungary) Kft.
CSI Hungary Gyártó és Kereskedelmi Kft. (aka CSI Hungary)
Closure Systems International Holdings (Japan) KK
Closure Systems International Japan, Limited
Beverage Packaging Holdings (Luxembourg) I S.A.
Beverage Packaging Holdings (Luxembourg) III S.á r.l.
Evergreen Packaging (Luxembourg) S.á r.l.
Reynolds Group Issuer (Luxembourg) S.A.
Bienes Industriales del Norte S.A. de C.V.
CSI en Ensenada, S. de R.L. de C.V.
CSI en Saltillo, S. de R.L. de C.V.
CSI Tecniservicio, S. de R.L. de C.V.
Grupo CSI de Mexico, S. de R.L. de C.V.
Tecnicos de Tapas Innovativas S.A. de C.V.
Evergreen Packaging Mexico, S. de R.L. de C.V.
Reynolds Metals Company de Mexico, S. de R.L. de C.V.
Maxpack, S. de R.L. de C.V.
Closure Systems International B.V.
Reynolds Consumer Products International B.V.
Evergreen Packaging International B.V.
Reynolds Packaging International B.V.
Reynolds Group Holdings Limited
Whakatane Mill Limited
SIG Combibloc Group AG
- 27 -
SIG Technology AG
SIG allCap AG
SIG Combibloc (Schweiz) AG
SIG Schweizerische Industrie-Gesellschaft AG
SIG Combibloc Procurement AG
SIG Reinag AG
SIG Combibloc Ltd.
SIG Holding USA Inc.
SIG Combibloc Inc.
Closure Systems International Americas, Inc.
Closure Systems International Holdings Inc.
Closure Systems International Inc.
Reynolds Packaging Machinery Inc.
Closure Systems Mexico Holdings LLC
CSI Mexico LLC
CSI Sales & Technical Services Inc.
Bakers Choice Products, Inc.
Reynolds Consumer Products Holdings Inc.
Reynolds Consumer Products Inc.
Reynolds Foil Inc.
Reynolds Group Holdings Inc.
Reynolds Services Inc.
Blue Ridge Holding Corp.
Blue Ridge Paper Products Inc.
Evergreen Packaging International (US) Inc.
- 28 -
Evergreen Packaging Inc.
Evergreen Packaging USA Inc.
Reynolds Packaging, Inc.
Reynolds Packaging LLC
Reynolds Packaging Kama Inc.
Reynolds Food Packaging LLC
Reynolds Flexible Packaging Inc.
Southern Plastics Inc.
Ultra Pac, Inc.
BRPP, LLC
Reynolds Group Issuer Inc.
Reynolds Group Issuer LLC
Pactiv Corporation (formerly Reynolds Acquisition Corporation)
Pactiv Factoring LLC
Pactiv RSA LLC
Pactiv Retirement Administration LLC
Pactiv Germany Holdings, Inc.
Pactiv International Holdings Inc.
Pactiv Management Company LLC
PCA West Inc.
Prairie Packaging, Inc.
PWP
Holdings, Inc.
PWP Industries, Inc.
Newspring Industrial Corp.
Pactiv Canada Inc.
- 29 -
The Baldwin Group Limited
J. & W. Baldwin (Holdings) Limited
Omni-Pac U.K. Limited
Conference Cup Ltd.
Dopaco Canada, Inc.
Dopaco, Inc.
Garven Incorporated
Central de Bolsas, S. de R.L. de C.V.
Servicios Industriales Jaguar, S. de C.V.
Servicio Terrestre Jaguar, S. de C.V.
Grupo Corporativo Jaguar, S. de C.V.
Pactiv México, S. de R.L. de C.V.
- 30 -
PART 3
LIST OF CURRENT NEW SECURED NOTES GUARANTORS1
Whakatane Mill Australia Pty Limited
SIG Beverages Brasil Ltda
SIG Combibloc do Brasil Ltda.
Closure Systems International (Brazil) Sistemas de Vedação Ltda
CSI Latin American Holdings Corporation
Evergreen Packaging Canada Limited
CSI Closure Systems Manufacturing de Centro America, S.R.L.
SIG Holdings (UK) Limited
SIG Combibloc Limited
Closure Systems International (UK) Limited
Reynolds Consumer Products (UK) Limited
Reynolds Subco (UK) Limited
Kama Europe Limited
Ivex Holdings, Ltd.
SIG Euro Holding AG & Co. KGaA
SIG Beverages Germany GmbH
SIG Combibloc Holding GmbH
SIG Vietnam Beteiligungs GmbH
SIG Combibloc GmbH
SIG Combibloc Systems GmbH
SIG Combibloc Zerspanungstechnik GmbH
1 Post-closing Austrian guarantors excluded.
- 31 -
SIG Information Technology GmbH
SIG International Services GmbH
Closure Systems International Holdings (Germany) GmbH
Closure Systems International Deutschland GmbH
Pactiv Hamburg Holdings GmbH
Pactiv Deutschland Holdinggesellschaft mbH
Omni-Pac Ekco GmbH Verpackungsmittel
Omni-Pac GmbH Verpackungsmittel
SIG Asset Holdings Limited
Closure Systems International (Hong Kong) Limited
SIG Combibloc Limited
Evergreen Packaging (Hong Kong) Limited
Closure Systems International Holdings (Hungary) Kft.
CSI Hungary Gyarto es Kereskedelmi Kft. (aka CSI Hungary)
Closure Systems International Holdings (Japan) KK
Closure Systems International Japan, Limited
Beverage Packaging Holdings (Luxembourg) I S.A.
Beverage Packaging Holdings (Luxembourg) III S.á r.l.
Evergreen Packaging (Luxembourg) S.á r.l.
Reynolds Group Issuer (Luxembourg) S.A.
Bienes Industriales del Norte S.A. de C.V.
CSI en Ensenada, S. de R.L. de C.V.
CSI en Saltillo, S. de R.L. de C.V.
CSI Tecniservicio, S. de R.L. de C.V.
Grupo CSI de Mexico, S. de R.L. de C.V.
- 32 -
Tecnicos de Tapas Innovativas S.A. de C.V.
Evergreen Packaging Mexico, S. de R.L. de C.V.
Reynolds Metals Company de Mexico, S. de R.L. de C.V.
Maxpack, S. de R.L. de C.V.
Closure Systems International B.V.
Reynolds Consumer Products International B.V.
Evergreen Packaging International B.V.
Reynolds Packaging International B.V.
Reynolds Group Holdings Limited
Whakatane Mill Limited
SIG Combibloc Group AG
SIG Technology AG
SIG allCap AG
SIG Combibloc (Schweiz) AG
SIG Schweizerische Industrie-Gesellschaft AG
SIG Combibloc Procurement AG
SIG Reinag AG
SIG Combibloc Ltd.
SIG Holding USA Inc.
SIG Combibloc Inc.
Closure Systems International Americas, Inc.
Closure Systems International Holdings Inc.
Closure Systems International Inc.
Reynolds Packaging Machinery Inc.
Closure Systems Mexico Holdings LLC
- 33 -
CSI Mexico LLC
CSI Sales & Technical Services Inc.
Bakers Choice Products, Inc.
Reynolds Consumer Products Holdings Inc.
Reynolds Consumer Products Inc.
Reynolds Foil Inc.
Reynolds Group Holdings Inc.
Reynolds Services Inc.
Blue Ridge Holding Corp.
Blue Ridge Paper Products Inc.
Evergreen Packaging International (US) Inc.
Evergreen Packaging Inc.
Evergreen Packaging USA Inc.
Reynolds Packaging, Inc.
Reynolds Packaging LLC
Reynolds Packaging Kama Inc.
Reynolds Food Packaging LLC
Reynolds Flexible Packaging Inc.
Southern Plastics Inc.
Ultra Pac, Inc.
BRPP, LLC
Reynolds Group Issuer Inc.
Reynolds Group Issuer LLC
Pactiv Corporation (formerly Reynolds Acquisition Corporation)
Pactiv Factoring LLC
- 34 -
Pactiv RSA LLC
Pactiv Retirement Administration LLC
Pactiv Germany Holdings, Inc.
Pactiv International Holdings Inc.
Pactiv Management Company LLC
PCA West Inc.
Prairie Packaging, Inc.
PWP Holdings, Inc.
PWP Industries, Inc.
Newspring Industrial Corp.
Pactiv Canada Inc.
The Baldwin Group Limited
J. & W. Baldwin (Holdings) Limited
Omni-Pac U.K. Limited
Conference Cup Ltd.
Dopaco Canada, Inc.
Dopaco, Inc.
Garven Incorporated
Central de Bolsas, S. de R.L. de C.V.
Servicios Industriales Jaguar, S. de C.V.
Servicio Terrestre Jaguar, S. de C.V.
Grupo Corporativo Jaguar, S. de C.V.
Pactiv Mexico, S. de R.L. de C.V.
- 35 -
PART 4
COPY OF SHAREHOLDERS LIST (GESELLSCHAFTERLISTE)
- 36 -
73 HR B 3814
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Liste der Gesellschafter
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Amtsgericht Aachen
(: 0241/9459-2742 |
fur die Firma
SIG Combibloc
Zerspanungstechnik GmbH
Walkmühlenstraße 4
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Bitte Rückseite beachten! |
52074 Aachen
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Bitte vollstandig ausfullen |
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Betrag der |
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SIG Combiblcc
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Systems
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Gmbh
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RurstraBe 58 52441 Linnich.
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256.000. EURO |
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Summe(vgl. Hinweise):
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256.000 EURO |
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Die Lage der Geschaftsfaume ist unverändert.
o Die Geschaftsraume
Ort und Datum: Aachen, 07.01.20
Eigenhandige Unterschrifteh der Geschaftsfuhrer:.
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/s/ H-J. Bücker |
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(H-J. Bücker)
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Es
unterzeiehnen so viele Geschaftsfuhrer, wie satzungsgemäß zur Vertretung erfordl sind
Appendix 5
SIG COMBIBLOC HOLDING GMBH
as Pledgor
PACTIV HAMBURG HOLDINGS GMBH
as Company
THE BANK OF NEW YORK MELLON
as Collateral Agent and Pledgee
SHARE PLEDGE AGREEMENT RELATING TO THE
SHARES IN PACTIV HAMBURG HOLDINGS GMBH
(Geschäftsanteilsverpfändung)
The taking of this document or any certified copy of it or any document which constitutes
substitute documentation for it, or any document which includes written confirmations or
references to it, into Austria as well as printing out any e-mail communication which refers
to any Credit Document (as defined in Clause 1 of this document) in Austria or sending any
e-mail communication to which a pdf scan of this document is attached to an Austrian addressee
or sending any e-mail communication carrying an electronic or digital signature which refers
to any Credit Document to an Austrian addressee may cause the imposition of Austrian stamp
duty. Accordingly, keep the original document as well as all certified copies thereof and
written and signed references to it outside of Austria and avoid printing out any email
communication which refers to any Credit Document in Austria or sending any e-mail
communication to which a pdf scan of this document is attached to an Austrian addressee or
sending
any e-mail communication carrying an electronic or digital signature which refers to
any Credit Document to an Austrian addressee.
Contents
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Page |
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1. Definitions and Language |
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5 |
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2. Pledged Shares |
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12 |
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3. Pledge |
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12 |
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4. Scope of the Pledges |
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12 |
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5. Purpose of the Pledges |
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6. Exercise of Membership Rights |
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13 |
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7. Enforcement of the Pledges |
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8. Limitations on Enforcement |
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9. Approval and Confirmation |
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10. Undertakings of the Pledgor |
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11. Delegation |
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12. Indemnity |
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13. No Liability |
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14. Duration and Independence |
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15. Release
of Pledge (Pfandfreigabe) |
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16. Partial Invalidity; Waiver |
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17. Amendments |
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18. Notices and their Language |
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19. Notification |
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20. Applicable Law, Jurisdiction |
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- 1 -
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Page |
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Schedule 1 |
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Part 1 List of Current Borrowers |
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Part 2 List of Current Guarantors, Current 2009 Senior Secured Notes Guarantors Current, October 2010 Secured Notes Guarantors and February 2011 Secured Notes
Current Guarantors |
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Part 3 List of Current New Secured Notes Guarantors |
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Part 4 Copy
of Shareholders List (Gesellschafterliste) |
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36 |
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- 2 -
This SHARE PLEDGE AGREEMENT (the “Agreement”) is made on September 8, 2011
BETWEEN:
| (1) |
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SIG Combibloc Holding GmbH, a limited liability company (Gesellschaft mit beschränkter
Haftung) organised under the laws of the Federal Republic of Germany, having its business
address at Rurstraße 58, 52441 Linnich, Germany, which is registered in the commercial
register (Handelsregister) of the local court (Amtsgericht) of Düren under HRB 5751 (the
“Pledgor”); |
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| (2) |
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Pectiv Hamburg Holdings GmbH, a limited liability company (Gesellschaft mit beschränkter
Haftung) organised under the laws of the Federal Republic of Germany having its corporate seat
in Hamburg, Germany and its business address at Friedensallee 25, 22765 Hamburg, Germany,
which is registered in the commercial register (Handelsregister) of the local court
(Amtsgericht) of Hamburg under HRB 106481 (the “Company); and |
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| (3) |
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The Bank of New York Mellon, having its business address at 1 Wall Street, New York, NY
10286, The United States of America in its capacity as collateral agent under the First Lien
Intercreditor Agreement (as defined below) (the “Collateral Agent” or the “Pledgee”). |
WHEREAS:
| (A) |
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Pursuant to the second amended and restated senior secured multi-currency term and revolving
credit agreement dated 9 August 2011 of currently up to USD 4,445,000,000 and EUR 330,000,000
between, inter alia, the parties listed in Schedule 1 Part 1 hereto as current borrowers (the
“Current Borrowers”), the parties listed in Schedule 1 Part 2 hereto as current guarantors
(the “Current Guarantors”), Credit Suisse AG as administrative agent and others (as amended,
varied, novated, restated, supplemented, superseded or extended from time to time, the “Second
Amended and Restated Credit Agreement”), which amends and restates the multicurrency term and
revolving credit agreement dated 5 November 2009 between, inter alia, the Current Borrowers
and the Current Guarantors, Credit Suisse AG as administrative agent and others (as amended
and restated pursuant to the Second Amended and Restated Credit Agreement and as further
amended, varied, novated, restated, supplemented, superseded or extended from time to time,
hereinafter the “Credit Agreement”), certain lenders (together the “Original Lenders”) have
granted certain facilities to the Current Borrowers and certain other entities which may
accede or may have acceded to the Credit Agreement as additional borrowers. |
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| (B) |
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Pursuant to a senior secured notes indenture dated 5 November 2009 between, inter alia,
Reynolds Group Issuer LLC, Reynolds Group Issuer Inc., and Reynolds Group Issuer (Luxembourg)
S.A as ultimate issuers (the “Issuers”), certain affiliates of the Issuers listed in Schedule
1 Part 2 hereto as current 2009 senior secured notes guarantors (the “Current 2009 Senior
Secured Notes Guarantors”) and The Bank of New York Mellon, as indenture trustee, principal
paying agent, transfer agent and registrar, (as amended, varied, novated, supplemented,
superseded or extended from time to time, the “2009 Senior Secured Notes Indenture”), the
Issuers have issued |
- 3 -
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senior secured notes due 2016 in the aggregate principal amount of USD
1,125,000,000 (the “US Secured Notes”) and senior secured notes due 2016 in the aggregate
principal amount of EUR 450,000,000 (the “Euro Secured Notes” and together with the US Secured
Notes the “2009 Senior Secured Notes”) to certain noteholders. |
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| (C) |
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Pursuant to a senior secured notes indenture dated 15 October 2010 between, inter
alia, RGHL US Escrow I LLC, RGHL US Escrow I Inc., and RGHL Escrow Issuer
(Luxembourg) I S.A. as escrow issuers (the “Escrow Issuers”), The Bank of New
York Mellon as indenture trustee, The Bank of New York Mellon, London Branch as
principal paying agent, The Bank of New York Mellon as collateral agent and
Wilmington Trust (London) Limited as additional collateral agent (as amended,
varied, novated, supplemented, superseded or extended from time to time, the
“October 2010 Secured Notes Indenture”), the Escrow Issuers have issued secured
notes due 2019 in the aggregate principal amount of USD 1,500,000,000 in escrow
(the “ October 2010 Secured Notes”). In connection with the release from escrow of
the proceeds of the October 2010 Secured Notes, which occurred on 16 November
2010, the Escrow Issuers were merged with and into the Issuers, with each of the
Issuers surviving the applicable mergers or other transfers and assuming by operation
of law the obligations of the applicable Escrow Issuers with respect to the October
2010 Secured Notes Indenture and the October 2010 Secured Notes. Certain affiliates
of the Issuers listed in Schedule 1 Part 2 hereto have acceded to the October 2010
Secured Notes Indenture as current October 2010 secured notes guarantors (the
“Current October 2010 Secured Notes Guarantors”). |
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| (D) |
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Pursuant to a senior secured notes indenture dated 1 February 2011 between, inter
alia, the Issuers, The Bank of New York Mellon as indenture trustee, The Bank of
New York Mellon, London Branch as principal paying agent, The Bank of New York
Mellon as collateral agent and Wilmington Trust (London) Limited as additional
collateral agent (as amended, varied, novated, supplemented, superseded or extended
from time to time, the “February 2011 Secured Notes Indenture”), the Issuers have
issued secured notes due 2021 in the aggregate principal amount of USD
1,000,000,000 (the “February 2011 Secured Notes”) which are guaranteed by
certain affiliates of the Issuers listed in Schedule 1 Part 2 hereto as current February
2011 secured notes guarantors (the “Current February 2011 Secured Notes
Guarantors”). |
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| (E) |
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The Pledgor has entered into the Existing Share Pledge Agreement (as defined
below). |
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| (F) |
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Pursuant to a senior secured notes indenture dated 9 August 2011 between, inter alia,
the RGHL US Escrow II LLC and RGHL US Escrow II Inc. as escrow issuers (the
“August 2011 Escrow Issuers”), The Bank of New York Mellon as indenture trustee,
The Bank of New York Mellon, London Branch as principal paying agent, The Bank
of New York Mellon as collateral agent and Wilmington Trust (London) Limited as
additional collateral agent (as amended, varied, novated, supplemented, superseded or
extended from time to time, the “New Secured Notes Indenture”), the August 2011
Escrow Issuers have issued senior secured notes due 2019 in the aggregate principal |
- 4 -
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amount of USD 1,500,000,000 (the “New Secured Notes”). In connection with the release from
escrow of the proceeds of the New Secured Notes, RGHL US Escrow II Inc. and RGHL US Escrow
II LLC shall be merged with and into Reynolds Group Issuer Inc. and Reynolds Group Issuer
LLC (together with Reynolds Group Issuer (Luxembourg) S.A. the “August 2011 Ultimate
Issuers”), respectively, and the obligations of the August 2011 Escrow Issuers shall be
assumed by the August 2011 Ultimate Issuers pursuant to one or more supplemental indentures
between, among others, the August 2011 Escrow Issuers, the August 2011 Ultimate Issuers, The
Bank of New York Mellon, as trustee, principal paying agent, transfer agent, registrar and
collateral agent and Wilmington Trust (London) Limited, as additional collateral agent. At
such time certain affiliates of the August 2011 Ultimate Issuers listed in Schedule 1 Part 3
hereto as current new secured notes guarantors (the “Current New Secured Notes Guarantors”)
will accede to the New Secured Notes Indenture). |
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| (G) |
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As a result of the Second Amended and Restated Credit Agreement and the
amendment No. 6 and incremental term loan assumption agreement dated 9 August
2011 between, inter alia, the Current Borrowers, the Current Guarantors, Credit
Suisse AG as administrative agent and others (the “Amendment No. 6 and
Incremental Term Loan Assumption Agreement”) certain lenders have agreed to
grant incremental term loans in an aggregate amount of up to USD 2,000,000,000. |
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| (H) |
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The Pledgor has agreed to grant an additional pledge (subject to the pledges arising
under the Existing Share Pledge Agreement (as defined below)) over its Shares (as
defined below) in the Company as security for the Pledgee’s respective claims against
the Grantors (as defined below) (or any of them) in respect of the Obligations (as
defined below). |
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| (I) |
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The security created by or pursuant to this Agreement is to be administered by the
Collateral Agent for the Secured Parties (as defined below) pursuant to a first lien
intercreditor agreement dated 5 November 2009 (as amended by the Amendment No.
1 and Joinder Agreement (as defined below)) between, inter alia, the Collateral
Agent, the Indenture Trustee, the Administrative Agent and the Grantors (each as
defined below) and others (as amended, varied, novated, supplemented, superseded or
extended from time to time, the “First Lien Intercreditor Agreement”). |
NOW, IT IS AGREED as follows:
| 1. |
|
DEFINITIONS AND LANGUAGE |
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| 1.1 |
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In this Agreement: |
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“Administrative Agent” means Credit Suisse AG, Cayman Islands Branch, having its business
address at Eleven Madison Avenue, New York, NY 10010, United States of America in its
capacity as administrative agent under the Credit Agreement and any successor appointed as
administrative agent under the Credit Agreement. |
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“Amendment No.1 and Joinder Agreement” means the joinder agreement dated 21 January 2010
relating to the First Lien Intercreditor Agreement made among |
- 5 -
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(amongst others) the Collateral Agent, Wilmington Trust (London) Limited, Credit Suisse AG and
Reynolds Group Holdings Limited pursuant to which Wilmington Trust (London) Limited is appointed as
additional collateral agent and became party to the First Lien Intercreditor Agreement. |
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“Borrowers” means the Current Borrowers and any entity which may accede to the Credit Agreement as
an additional borrower and “Borrower” means any of them. |
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“Cash Management Bank” shall mean Citibank N.A., Banco Nacional De Mexico S.A., Citibank
International PLC, UK, Citibank (China) Co., Limited, Citibank Global Markets Deutschland AG & Co
KGaA, Citibank ZRT, Hungary, a Lender, the Administrative Agent or any of the Lender’s or the
Administrative Agent’s affiliates (at the time the cash management services arrangement is entered
into) provided in each case it has become a party to, or by execution of an additional bank secured
party acknowledgment has agreed to be bound by the terms of, the First Lien Intercreditor Agreement
in its capacity as cash management bank. |
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“Cash Management Services” shall mean any agreement or arrangement by a Cash Management Bank to
provide any composite accounting or other cash pooling arrangements and netting, overdraft
protection and
other arrangements with any bank arising under standard business terms of such Cash Management Bank
to a Grantor. |
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“Credit Documents” shall mean the Loan Documents, the 2009 Senior Secured Notes Documents, the
October 2010 Secured Notes Documents, the February 2011 Secured Notes Documents and the New Secured
Notes Documents. |
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“Enforcement Event” shall mean an Event of Default. |
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“Event of Default” means any event of default (Kündigungsgrund) under the Credit Agreement and/or
the 2009 Senior Secured Notes Indenture and/or the October 2010 Secured Notes Indenture and/or the
February 2011 Secured Notes Indenture and/or the New Secured Notes Indenture. |
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“Existing Intercreditor Agreement” means the existing intercreditor agreement dated 11 May 2007 (as
amended by a letter dated 21 June 2007 and a further letter dated 29 June 2007, as amended and
restated on 5 November 2009 and as further amended on 5 November 2010) between, inter alia,
Beverage Packaging Holdings (Luxembourg) I S.A., Rank Group Holdings Limited (now Reynolds Group
Holdings Limited), Beverage Packaging Holdings (Luxembourg) II S.A., Beverage Packaging Holdings
(Luxembourg) III s.à r.l. Credit Suisse AG (formerly Credit Suisse) as security trustee and others. |
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“Existing Share Pledge Agreement” means the share pledge agreement dated 2 March 2011 entered into
between SIG Combibloc Holding GmbH as pledgor and The Bank of New York Mellon as collateral agent
and as pledgee. |
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“Existing Shares” has the meaning given to such term in sub-Clause 2.1 hereof. |
- 6 -
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“February 2011 Secured Notes Documents” shall mean the February 2011 Secured Notes Indenture, the
February 2011 Secured Notes Guarantees, the February 2011 Secured Notes, the Intercreditor
Arrangements, any supplemental indenture, any security document relating to the February 2011
Secured Notes and/or the February 2011 Secured Notes Indenture and any other document that may be
entered into pursuant to any of the foregoing. |
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“February 2011 Secured Notes Guarantees” shall mean the guarantees of the obligations of the
Issuers under the February 2011 Secured Notes and the February 2011 Secured Notes Indenture by the
February 2011 Secured Notes Guarantors. |
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“February 2011 Secured Notes Guarantors” means the Current February 2011 Secured Notes Guarantors
and any entity which may accede to the February 2011 Secured Notes Indenture as additional
guarantor. |
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“February 2011 Secured Notes Holders” shall mean the holders from time to time of the February 2011
Secured Notes. |
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“February 2011 Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its
capacity as indenture trustee under the February 2011 Secured Notes Indenture and any successor
appointed as indenture trustee under the February 2011 Secured Notes Indenture. |
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“Future Shares” means all additional shares in the capital of the Company (irrespective of their
nominal value) which the Pledgor may acquire in the future in the event of a share transfer, a
share split, a share combination, an increase of the capital of the Company (including by way of
authorised capital (genehmigtes Kapital)) or otherwise. |
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“Grantors” means the Loan Parties, the Issuers, the 2009 Senior Secured Notes Guarantors, the
October 2010 Secured Notes Guarantors, the February 2011 Secured Notes Guarantors and the New
Secured Notes Guarantors and any person that has granted a security interest to the Collateral
Agent and/or the Secured Parties in respect of the obligations of the Loan Parties, the Issuers and
the 2009 Senior Secured Notes Guarantors, the October 2010 Secured Notes Guarantors, the February
2011 Secured Notes Guarantors and the New Secured Notes Guarantors under the Credit Documents and
“Grantor” means any of them. |
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“Grantors’ Agent” shall mean Reynolds Group Holdings Limited or any other person appointed as agent
of the Grantors in accordance with the Principal Finance Documents. |
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“Group” means Reynolds Group Holdings Limited and its direct or indirect subsidiaries
(Tochtergesellschaften). |
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“Hedge Counterparty” means a Lender, the Administrative Agent or any of the Lender’s or the
Administrative Agent’s affiliates (at the time a hedging agreement is entered into) who has entered
into a hedging agreement for the purpose of hedging |
- 7 -
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interest rate liabilities and/or any exchange rate and/or commodity price risks provided it has
become a party, or by execution of an additional bank secured party acknowledgment has agreed to be
bound by the terms of, to the First Lien Intercreditor Agreement in its capacity as hedge
counterparty. |
| |
| |
|
“Incremental Assumption Agreement” shall mean an incremental assumption agreement relating to
incremental facilities of up to USD 2,000,000,000 among, and in form and substance reasonably
satisfactory to, one or more Borrowers, the Administrative Agent, one or more Incremental Term
Lenders and/or one or more Incremental Revolving Credit Lenders pursuant to which one or more
Incremental Term Lenders make available Incremental Term Loan Commitments and/or one or more
Incremental Revolving Credit Lenders make available Incremental Revolving Credit Commitments
respectively. |
| |
| |
|
“Incremental Revolving Credit Lender” shall mean a Lender with an Incremental Revolving Credit
Commitment or an outstanding revolving loan under the Credit Agreement of any class as a result of
an Incremental Revolving Credit Commitment. |
| |
| |
|
“Incremental Revolving Credit Commitment” shall mean the commitment of any Lender, established
pursuant to the Credit Agreement, to make available certain revolving credit loans to one or more
Borrowers. |
| |
| |
|
“Incremental Term Lender” shall mean a Lender with an Incremental Term Loan Commitment. |
| |
| |
|
“Incremental Term Loan Commitment” shall mean the commitment of any Lender, established pursuant to
the Credit Agreement, to make available certain term loans to one or more Borrowers. |
| |
| |
|
“Indenture Trustee” shall mean The Bank of New York Mellon, in its capacity as indenture trustee
under the 2009 Senior Secured Notes Indenture and any successor appointed as indenture trustee
under the 2009 Senior Secured Notes Indenture. |
| |
| |
|
“Intercreditor Arrangements” means the First Lien Intercreditor Agreement and the Existing
Intercreditor Agreement, in each case as amended, novated, supplemented, restated, or modified from
time to time. |
| |
| |
|
“Issuing Bank” means Credit Suisse AG or any other Lender or any affiliate of Credit Suisse AG or
any other Lender that issues letters of credit or bank guarantees under the Credit Agreement. |
| |
| |
|
“Lenders” shall mean the Original Lenders and any entity which may become a lender under the Credit
Agreement in the future and “Lender” means any of them. |
| |
| |
|
“Loan Documents” shall mean the Credit Agreement, the Amendment No.l and Joinder Agreement, the
Second Amended and Restated Credit Agreement and the Amendment No. 6 and Incremental Term Loan
Assumption Agreement, any borrowing subsidiary agreement and/or guarantor joinder agreement
relating to the |
- 8 -
| |
|
Credit Agreement, any letter of credit or bank guarantee relating to the Credit Agreement, any
security documents relating to the Credit Agreement, any hedging agreement entered into by a Hedge
Counterparty and a Grantor, each Incremental Assumption Agreement, the Intercreditor Arrangements,
each Promissory Note, any agreement between a Grantor and a Cash Management Bank relating to Cash
Management Services, each Local Facility Agreement and any other document that may be entered into
pursuant to any of the foregoing in relation to the Credit Agreement. |
| |
| |
|
“Loan Parties” shall mean the Borrowers, the Current Guarantors and any entity which may accede to
the Credit Agreement as additional guarantor and a “Loan Party” means any of them. |
| |
| |
|
“Local Facilities” means working capital facilities provided to a Grantor (other than Beverage
Packaging Holdings (Luxembourg) I S.A., Beverage Packaging Holdings (Luxembourg) II S.A. Beverage
Packaging Holdings (Luxembourg) III S.à r.l. and the Borrowers) by a Local Facility Provider and
“Local Facility” means any of them. |
| |
| |
|
“Local Facility Agreements” shall mean any agreement under which a Local Facility is made
available. |
| |
| |
|
“Local Facility Provider” means HSBC Trinkaus & Burkhardt AG, Deutsche Bank AG, Commerzbank
Aktiengesellschaft and Hong Kong and Shanghai Banking Corporation Ltd., Thailand, Bank of America,
N.A., Canada Branch, FIA Card Services, N.A., Citibank N.A., Citibank (China) Co., Ltd., Banco
Nacional de Mexico, S.A., Integrante del Grupo Financiero Banamex, Bank of America, N.A., provided
in each case it has become a party to, or by execution of an additional bank secured party
acknowledgment has agreed to be bound by the terms of, the First Lien Intercreditor Agreement in
its capacity as local facility provider. |
| |
| |
|
“New Secured Notes Documents” shall mean the New Secured Notes Indenture, the New Secured Notes
Guarantees, the New Secured Notes, the Intercreditor Arrangements, any supplemental indenture, any
security document relating to the New Secured Notes and/or the New Secured Notes Indenture and any
other document that may be entered into pursuant to any of the foregoing. |
| |
| |
|
“New Secured Notes Guarantees” shall mean the guarantees of the obligations of the August 2011
Escrow Issuers and/or of the August 2011 Ultimate Issuers under the New Secured Notes and the New
Secured Notes Indenture by the New Secured Notes Guarantors. |
| |
| |
|
“New Secured Notes Guarantors” means the Current New Secured Notes Guarantors and any entity which
may accede to the New Secured Notes Indenture as additional guarantor. |
| |
| |
|
“New Secured Notes Holders” shall mean the holders from time to time of the New Secured Notes. |
- 9 -
| |
|
“New Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its capacity
as indenture trustee under the New Secured Notes Indenture and any successor appointed as indenture
trustee under the New Secured Notes Indenture, |
| |
| |
|
“Obligations” shall mean all present and future obligations and liabilities (whether actual or
contingent and whether owed jointly or severally or in any other capacity whatsoever) of each
Grantor to the Pledgee under each or any of the Credit Documents (including, but not limited to,
the Parallel Obligations), including with respect to all costs, charges and expenses incurred by
the Pledgee in connection with the protection, preservation or enforcement of its rights under the
Credit Documents or any other document evidencing or securing any such liabilities. The Obligations
shall further include any obligation based on unjust enrichment (ungerechtfertigte Bereicherung) or
tort (Delikt). |
| |
| |
|
“October 2010 Secured Notes Documents” shall mean the October 2010 Secured Notes Indenture, the
October 2010 Secured Notes Guarantees, the October 2010 Secured Notes, the Intercreditor
Arrangements, any supplemental indenture relating to the October 2010 Secured Notes Indenture, any
security document relating to the October 2010 Secured Notes and/or the October 2010 Secured Notes
Indenture and any other document that may be entered into pursuant to any of the foregoing. |
| |
| |
|
“October 2010 Secured Notes Guarantees” shall mean the guarantees of the obligations of the Issuers
under the October 2010 Secured Notes and the October 2010 Secured Notes Indenture by the October
2010 Secured Notes Guarantors. |
| |
| |
|
“October 2010 Secured Notes Guarantors” means the Current October 2010 Secured Notes Guarantors and
any entity which may accede to the October 2010 Secured Notes Indenture as additional guarantor. |
| |
| |
|
“October 2010 Secured Notes Holders” shall mean the holders from time to time of the October 2010
Secured Notes. |
| |
| |
|
“October 2010 Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its
capacity as indenture trustee under the October 2010 Secured Notes Indenture and any successor
appointed as indenture trustee under the October 2010 Secured Notes Indenture. |
| |
| |
|
“Parallel Obligations” means the independent obligations of any of the Grantors arising pursuant to
the First Lien Intercreditor Agreement to pay to the Collateral Agent sums equal to the sums owed
by such Grantor to the other Secured Parties (or any of them) under the Credit Documents. |
| |
| |
|
“Pledge” and “Pledges” have the meanings given to such terms in Clause 3.1. |
| |
| |
|
“Principal Finance Documents” means the Credit Agreement, the 2009 Senior Secured Notes Indenture,
the October 2010 Secured Notes Indenture, the February |
- 10 -
| |
|
2011 Secured Notes Indenture, the New Secured Notes Indenture and the First Lien
Intercreditor Agreement. |
| |
|
“Promissory Note” shall mean any promissory note executed and delivered by a Borrower upon
the request of a Lender evidencing the amount of principal owed by such Borrower to such
Lender under the Credit Agreement. |
| |
| |
|
“Secured Parties” shall mean the Lenders (including in their capacity as issuing bank(s),
and/or Hedge Counterparties under the Credit Agreement), the Hedge Counterparties, the
Administrative Agent, any Issuing Bank, the beneficiaries of each indemnification
obligation undertaken by any Grantor under any Credit Document, the 2009 Senior Secured
Notes Holders, the October 2010 Secured Notes Holders, the February 2011 Secured Notes
Holders and the New Secured Notes Holders, the Indenture Trustee, the October 2010 Secured
Notes Indenture Trustee, the February 2011 Secured Notes Indenture Trustee and the New
Secured Notes Indenture Trustee, the Collateral Agent, the Local Facility Providers and the
Cash Management Banks. |
| |
| |
|
“2009 Senior Secured Notes Documents” shall mean the 2009 Senior Secured Notes Indenture,
the 2009 Senior Secured Notes Guarantees, the 2009 Senior Secured Notes, the Intercreditor
Arrangements, any supplemental indenture, any security document relating to the 2009 Senior
Secured Notes and/or the 2009 Senior Secured Notes Indenture and any other document that
may be entered into pursuant to any of the foregoing. |
| |
| |
|
“2009 Senior Secured Notes Guarantees” shall mean the guarantees of the obligations of the
Issuers under the 2009 Senior Secured Notes and the 2009 Senior Secured Notes Indenture by
the 2009 Senior Secured Notes Guarantors. |
| |
| |
|
“2009 Senior Secured Notes Guarantors” means the Current 2009 Senior Secured Notes
Guarantors and any entity which may accede to the 2009 Senior Secured Notes Indenture as
additional guarantor. |
| |
| |
|
“2009 Senior Secured Notes Holders” shall mean the holders from time to time of the 2009
Senior Secured Notes. |
| |
| |
|
“Shares” means the Existing Shares and the Future Shares. |
| |
| 1.2 |
|
Construction |
| |
| |
|
In this Agreement any reference to a “Clause”, a “sub-Clause” or a “Schedule” shall,
subject to any contrary indication, be construed as a reference to a Clause, a sub-Clause
or a Schedule hereof. |
| |
| 1.3 |
|
This Agreement is made in the English language. For the avoidance of doubt, the
English language version of this Agreement shall prevail over any translation of this
Agreement. However, where a German translation of a word or phrase appears in the
text of this Agreement, the German translation of such word or phrase shall prevail. |
- 11 -
| 2. |
|
PLEDGED SHARES |
| |
| 2.1 |
|
The Company has a nominal share capital (Stammkapital) of EUR 25,000 (in words: Euro twenty
five thousand) which is divided into two shares, persisting of one share with a nominal amount
(Nennbetrag) of EUR 1,000 (in words: Euro one thousand) carrying the serial number (laufende
Nummer) 1 and one share with the nominal amount of EUR 24,000 (in words: Euro twenty four
thousand) carrying the serial number (laufende Nummer) 2 (the “Existing Shares”). |
| |
| 2.2 |
|
The Pledgor is the owner of the Existing Shares and is registered as such in the shareholders
list (Gesellschafterliste) of the Company as filed (aufgenommen) with the commercial
register (Handelsregister), a copy of which is attached as Schedule 1 Part 4 (Copy of
Shareholders List). |
| |
| 3. |
|
PLEDGE |
| |
| 3.1 |
|
The Pledgor hereby pledges to the Pledgee the Shares together with all ancillary rights and
claims associated with the Shares as more particularly specified in Clause 4 (the “Pledge”
and/or the “Pledges”). |
| |
| 3.2 |
|
The Pledgee hereby accepts the Pledge. |
| |
| 3.3 |
|
The Pledge is in addition, and without prejudice, to any other security the Secured Parties
may now or hereafter hold in respect of the Obligations. |
| |
| 4. |
|
SCOPE OF THE PLEDGES |
| |
| 4.1 |
|
The Pledge constituted by this Agreement includes: |
| |
(a) |
|
the present and future rights to receive: |
| |
(i) |
|
dividends attributable to the Shares, if any; and |
| |
| |
(ii) |
|
liquidation proceeds, redemption proceeds (Einziehungsentgelt)
repaid capital in case of a capital decrease, any compensation in case of
termination (Kündigung) and/or withdrawal (Austritt) of a
shareholder
of the Company, the surplus in case of surrender (Preisgabe), any
repayment claim for any additional capital contributions
(Nachschüsse)
and all other pecuniary claims associated with the Shares; |
| |
(b) |
|
the right to subscribe for newly issued shares; and |
| |
| |
(c) |
|
all other rights and benefits attributable to the Shares capable of being
pledged (verpfändbar) (including without limitation all present
and future pecuniary claims of the Pledgor against the Company arising
under or in connection with |
- 12 -
| |
|
|
any domination and/or profit transfer agreement
(Beherrschungs-und/oder Gewinnabführungsvertrag) or partial
profit transfer agreement (Teilgewinnabführungsvertrag) which may
be entered into between the Pledgor and the Company). |
| 4.2 |
|
Notwithstanding that the items set out in Clause 4.1 above are pledged hereunder, the Pledgor
shall be entitled to receive and retain the items set out in Clause 4.1 in respect of, and
otherwise deal (in accordance with the agreements between the parties) with all items
described in Clause 4.1 hereof in respect of the Shares at all times other than any time the
Pledgee is entitled to enforce the Pledge constituted hereunder. |
| |
| 4.3 |
|
On the date and during the period in which the Pledgee is entitled, in accordance with Clause
7 (Enforcement of the Pledges) hereof, to enforce the Pledge (or any part thereof): |
| |
(a) |
|
all dividends paid or payable and any other property received, receivable or
otherwise distributed in respect of or in exchange for the Shares; |
| |
| |
(b) |
|
all dividends or other distributions or payments paid or payable in respect
of the Shares in connection with the partial or total liquidation or dissolution of
the Company or in connection with the reduction of the amount of the registered share
capital of the Company; and |
| |
| |
(c) |
|
all cash paid, payable or otherwise distributed in respect of the principal
of, or in redemption of, or in exchange for the Shares, |
| |
|
shall be forthwith delivered to the Pledgee and held as security for and on behalf of the
Secured Parties. If such proceeds or property are received by the Pledgor, they shall be
received as trustee for the benefit of the Pledgee and shall be segregated from other
property or funds of the Pledgor and shall be forthwith delivered to the Pledgee as security
in the form so received (with any necessary endorsement). |
| |
| 5. |
|
PURPOSE OF THE PLEDGES |
| |
| |
|
The Pledge hereunder is constituted in order to secure the prompt and complete satisfaction
of any and all Obligations. The Pledge shall also cover any future extension of the
Obligations and the Pledgor herewith expressly agrees that the provisions of Section 1210
para 1 sentence 2 of the German Civil Code (Bürgerliches Gesetzbuch) shall not
apply to this Agreement. |
| |
| 6. |
|
EXERCISE OF MEMBERSHIP RIGHTS |
| |
| |
|
The membership rights, including the voting rights, attached to the Shares remain with the
Pledgor. The Pledgor may exercise its membership rights in any manner which does not
adversely affect the validity and enforceability of the Pledge, the existence of all or part
of the Shares or cause an Event of Default to occur. The Pledgor undertakes, unless
otherwise agreed between the parties, that no resolutions |
- 13 -
| |
|
will be passed which would, if passed, constitute a breach of its obligations under
Clause 10 or any other obligation under this Agreement. |
| 7. |
|
ENFORCEMENT OF THE PLEDGES |
| |
| 7.1 |
|
If (i) an Enforcement Event has occurred and is continuing and (ii) the requirements set
forth in Sections 1273 para 2, 1204 et seq. of the German Civil Code with regard to the
enforcement of the Pledge are met (Pfandreife), in particular, if any of the Obligations have
become due and payable, then in order to enforce the Pledge, the Pledgee (acting on the
instructions of the Secured Parties) may at any time thereafter avail itself of all rights and
remedies that a pledgee has against a pledgor under the laws of the Federal Republic of
Germany. |
| |
| 7.2 |
|
Notwithstanding Section 1277 of the German Civil Code, the Pledgee is entitled to exercise
its rights without obtaining enforceable judgment or other instrument (vollstreckbarer Titel).
The Pledgee shall be entitled to have the Pledge enforced in any manner allowed under the laws
of the Federal Republic of Germany, in particular have the Pledge sold (including at public
auction). |
| |
| 7.3 |
|
The Pledgor hereby expressly agrees that 5 (five) business days’ prior written notice to the
Pledgor of the place and time of any such sale shall be sufficient and the Pledgee shall not
be obliged to deliver any further notices (including, but not limited to the notices set out
under Section 1234 of the German Civil Code) to the Pledgor prior to such sale. The sale may
take place at any place in the Federal Republic of Germany designated by the Pledgee. |
| |
| 7.4 |
|
If the Pledgee (acting on the instructions of the Secured Parties) should seek to enforce the
Pledge under sub-Clause 7.1, the Pledgor shall, at its own expense, render forthwith all
necessary assistance in order to facilitate the prompt sale of the Shares or any part thereof
and/or the exercise by the Pledgee of any other right it may have as Pledgee. |
| |
| 7.5 |
|
Whilst the requirements for enforcement under sub-Clause 7.1 are continuing, all subsequent
dividend payments attributable to the Shares and all payments based on similar ancillary
rights attributed to the Shares may be applied by the Pledgee in satisfaction in whole or in
part of the Obligations or treated as additional collateral. |
| |
| 7.6 |
|
Even if the requirements for enforcement referred to under sub-Clause 7.1 above are met, the
Pledgee shall not, whether as proxy or otherwise, be entitled to exercise the voting rights
attached to the Shares. However, the Pledgor shall, during the continuation of an event which
allows the Pledgee to enforce the Pledge, have the obligations and the Pledgee shall have the
rights set forth in sub-Clause 10.6 below regardless of which resolutions are intended to be
adopted. |
| |
| 7.7 |
|
The Pledgee may, in its sole discretion, determine which of several security interests, if
applicable, shall be used to satisfy the Obligations. The Pledgor hereby expressly waives its
right pursuant to Section 1230 sentence 2 of the German Civil Code to limit the realisation of
the Pledge and pledges over the shares or partnership interests in one |
- 14 -
| |
|
or more other companies to such number of pledges as are necessary to satisfy the
Obligations and agrees further that the Pledgee may decide to enforce the Pledge over the shares in the Company individually in separate proceedings or together with pledges over shares or partnership interests in one or more other companies at one single proceeding
(Gesamtverwertung). |
| 7.8 |
|
The Pledgor hereby expressly waives all defences of revocation (Einrede der Anfechtbarkeit)
and set-off (Einrede der Aufrechenbarkeit) pursuant to Sections 770, 1211 of the German Civil
Code. |
| |
| 7.9 |
|
The Pledgor hereby expressly waives its defences based on defences any Grantor might have
against any of the Obligations (Einreden des Hauptschuldners) pursuant to Section 1211 para 1
sentence 1 alternative 1 of the German Civil Code. |
| |
| 7.10 |
|
If the Pledge is enforced or if the Pledgor has discharged any of the Obligations (or any part of
them), Section 1225 of the German Civil Code (legal subrogation of claims to a pledgor -
Forderungsübergang auf den Verpfänder) shall not apply and no rights of the
Pledgee shall pass to the Pledgor by subrogation or otherwise. Further, the Pledgor shall at no
time before, on or after an enforcement of the Pledge and as a result of the Pledgor entering into
this Agreement, be entitled to demand indemnification or compensation from the Company or the
Company’s affiliates or to assign any of these claims. |
| |
| 8. |
|
LIMITATIONS ON ENFORCEMENT |
| |
| 8.1 |
|
The Pledgee shall be entitled to apply proceeds of an enforcement of the Pledge
towards satisfaction of the Obligations without limitation in respect of: |
| |
(a) |
|
all and any amounts which are owed under the Credit Documents by the Pledgor
itself, the Company or by any of their subsidiaries; and |
| |
| |
(b) |
|
all and any amounts which correspond to funds that have been borrowed or
otherwise raised under the Credit Documents, in each case to the extent borrowed,
on-lent or otherwise passed on to, or issued for the benefit of, the Pledgor, the
Company or any of their subsidiaries, or for the benefit of any of their creditors and
in each case not repaid and outstanding from time to time |
| |
|
(in aggregate, the “Unlimited Enforcement Amount”). |
| |
| 8.2 |
|
Besides an application of proceeds from an enforcement of the Pledge towards
satisfaction of the Obligations in respect of the Unlimited Enforcement Amount
pursuant to Clause 8.1 above, the Pledgee shall not be entitled to apply proceeds of an
enforcement of the Pledge towards satisfaction of the Obligations but shall return to
the Pledgor proceeds of an enforcement of the Pledge if and to the extent that: |
| |
(a) |
|
the Pledge secures the obligations of a Grantor which is (x) a shareholder of
the Pledgor or (y) an affiliated company (verbundenes Unternehmen) within the meaning
of section 15 of the German Stock Corporation Act (Aktiengesetz) |
- 15 -
| |
|
|
of a shareholder of the Pledgor (other than the Pledgor and its subsidiaries); and |
| |
(b) |
|
the application of proceeds of an enforcement of the Pledge towards the Obligations would have
the effect of (x) reducing the Pledgor’s net assets (Reinvermögen) (the “Net Assets”) to
an amount of less than its stated share capital (Stammkapital) or, if the Net Assets are already an
amount of less than its stated share capital, of causing such amount to be further reduced and (y)
would thereby affect the assets required for the obligatory preservation of the Pledgor’s stated
share capital (Stammkapital) according to section 30, 31 German Limited Liability Companies Act
(Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided that the amount
of the stated share capital to be taken into consideration shall be the amount registered in the commercial
register at the date hereof, and any increase of the stated share capital registered after the date
of this Agreement shall only be taken into account if such increase has been effected with the
prior written consent of the Collateral Agent. |
| 8.3 |
|
The Net Assets shall be calculated as an amount equal to the sum of the values of the
Pledgor’s assets (consisting of all assets which correspond to the items set forth in section
266 sub-section(2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the
aggregate amount of the Pledgor’s liabilities (consisting of all liabilities and liability
reserves which correspond to the items set forth in section 266 sub-section (3) B, C and D of
the German Commercial Code), save that: |
| |
(a) |
|
any asset that is shown in the balance sheet with a book value (Buchwert) that
is significantly lower than the market value of such asset and that is not necessary
for the Pledgor’s business (nicht betriebsnotwendig) shall be taken into account with
its market value; |
| |
| |
(b) |
|
obligations under loans provided to the Pledgor by any member of the Group or
any other affiliated company shall not be taken into account as liabilities as far as
such loans are subordinated by law or by contract at least to the claims of the
unsubordinated creditors of the Pledgor; and |
| |
| |
(c) |
|
obligations under loans or other contractual liabilities incurred by the
Pledgor in violation of the provisions of the Credit Documents shall not be taken into
account as liabilities. |
| |
|
The Net Assets shall be determined in accordance with the generally accepted accounting principles
applicable from time to time in Germany (Grundsätze ordnungsmäßiger
Buchführung) and be based on the same principles that were applied by the Pledgor in the
preparation of its most recent annual balance sheet (Jahresbilanz). |
| |
| |
|
It being understood that the assets of the Pledgor will be assessed at liquidation values
(Liquidationswerte) if the managing directors of the Pledgor, at the time they prepare the
Management Determination (as defined below) are, due to factual or legal |
- 16 -
| |
|
circumstances at that
time, in their opinion not able to make a positive prognosis as to whether the business of the
Pledgor can carry on as a going concern (positive Fortführungsprognose), in particular
when the Pledge is enforced. |
| 8.4 |
|
The limitations set out in Clause 8.2 above shall only apply if and to the extent that: |
| |
(a) |
|
without undue delay, but not later than within 5 business days, after receipt
of a notification by the Collateral Agent of its intention to enforce the Pledge (the
“Notice”), the Pledgor has confirmed in writing to the Collateral Agent (x) to what
extent such Pledge is up-stream or cross-stream security as described in Clause 8.2
above and (y) which amount of proceeds of an enforcement of the Pledge attributable to
the enforcement of such up-stream or cross-stream security cannot be applied towards
satisfaction of the Obligations but would have to be returned to the Pledgor as it
would otherwise cause the Net Assets of the Pledgor to fall below its stated share
capital (taking into account the adjustments set out in Clause 8.3 above) and such
confirmation is supported by evidence reasonably satisfactory to the Collateral Agent
(the “Management Determination”) and the Collateral Agent has not contested this and
argued that no or a lesser amount would be necessary to maintain the Pledgor’s stated
share capital; or |
| |
| |
(b) |
|
within 20 business days from the date the Collateral Agent has contested the Management
Determination, the Collateral Agent receives from the Pledgor an up to date balance sheet prepared
by a firm of auditors of international standard and reputation (the “Determining Auditors”) which
shows the value of the Pledgor’s Net Assets (the “Balance Sheet”). The Balance Sheet shall be
prepared in accordance with the principles set out in Clause 8.3 above, provided that the final
sentence of Clause 8.3 above shall not apply unless the Determining Auditors have in an independent
assessment determined that the assets of the Pledgor should be evaluated at liquidation values
(Liquidationswerte) in accordance with the generally accepted accounting principles applicable from
time to time in Germany (Grundsätze ordnungsmäßger Buchführung) and
shall contain further information (in reasonable detail) relating to items to be adjusted pursuant
to Clause 8.3 above. If the Pledgor fails to deliver a Balance Sheet within the aforementioned time
period, the Pledgee shall be entitled to apply the proceeds of an enforcement of the Pledge towards
satisfaction of the Obligations irrespective of the limitations set out in Clause 8.2 above. |
| 8.5 |
|
If the Pledgee disagrees with the Balance Sheet it shall be entitled to apply proceeds
of an enforcement of the Pledge in satisfaction of the Obligations up to an amount
which, according to the Balance Sheet, can be applied in satisfaction of the
Obligations in compliance with the limitations set out in Clause 8.2 above. In relation
to any additional amounts for which the Pledgor is liable under this Agreement, the
Pledgee shall be entitled to further pursue its claims (if any) and the Pledgor shall be
entitled to prove that this amount is necessary for maintaining its stated share capital
(calculated as of the date the Pledgee has given notice that it intends to enforce the
security created under this Agreement). |
- 17 -
| 8.6 |
|
No reduction of the amount enforceable or applicable towards satisfaction of the Obligations
under this Clause 8 will prejudice the right of the Pledgee to continue enforcing the Pledge
(subject always to the operation of the limitations set out above at the time of such
enforcement) until full satisfaction to the claims secured. |
| |
| 9. |
|
APPROVAL AND CONFIRMATION |
| |
| |
|
The Pledgor as the sole shareholder of the Company hereby approves the Pledge over the
Shares and over any and all ancillary rights and claims associated with the Shares (as more
particularly specified in Clause 4) and pursuant to the articles of association of the
Company the Pledge is not subject to any approval of the Company. |
| |
| 10. |
|
UNDERTAKINGS OF THE PLEDGOR |
| |
| |
|
Unless otherwise agreed between the parties, during the term of this Agreement, the Pledgor
undertakes to the Pledgee: |
| |
| 10.1 |
|
to promptly effect any contributions in cash (Bareinlage) or kind (Sacheinlage) to be made in
respect of the Shares; |
| |
| 10.2 |
|
to inform the Pledgee promptly of any change made in the registered share capital of the
Company, or any changes made to the articles of association of the Company which would
materially adversely affect the security interest of the Pledgee and in each such case to
promptly deliver to the Pledgee a copy of the updated shareholders list (Gesellschafterliste)
and a copy of the amended articles of association (Satzung) both as filed (aufgenommen) with
the commercial register (Handelsregister); |
| |
| 10.3 |
|
to promptly notify the Pledgee, by notification in writing of the registration of an
objection (Widerspruch) in relation to the Shares of the Pledgor in the shareholders list
(Gesellschafterliste) as filed (aufgenommen) with the commercial register (Handelsregister). |
| |
| 10.4 |
|
to promptly notify the Pledgee, by notification in writing, of any attachment (Pfändung)
in respect of any of the Shares or any ancillary rights set out in sub-Clause 4.1 such notice to be
accompanied by any documents the Pledgee might need to defend itself against any claim of a third
party. In particular, the Pledgor shall promptly forward to the Pledgee a copy of the attachment
order (Pfändungsbeschluss), any transfer order (Überweisungsbeschluss) and all other documents
necessary for a defence against the attachment; |
| |
| 10.5 |
|
in the event of any increase in the capital of the Company, not to allow, without the prior
written consent of the Pledgee (such consent not to be unreasonably withheld), any party other
than himself to subscribe for any Future Shares, and not to defeat, impair or circumvent in
any way the rights of the Pledgee created hereunder; |
| |
| 10.6 |
|
to promptly inform the Pledgee, by notification in writing, of all matters concerning the
Company of which the Pledgor is aware which would materially adversely affect the security
interest of the Pledgee. In particular, the Pledgor shall notify the Pledgee, |
- 18 -
| |
|
by notification in writing, forthwith of any shareholders’ meeting at which a shareholders’
resolution is intended to be adopted which would have a materially adverse effect upon the
Pledge. The Pledgor shall allow, following the occurrence and during the continuance of any
of the circumstances which permit the Pledgee to enforce the Pledge constituted hereunder
in accordance with Clause 7, the Pledgee or, as the case may be, its proxy or any other
person designated by the Pledgee, to participate in all such shareholders’ meetings of the
Company as attendants without power to vote. Subject to the provision contained in
sub-Clause 14.1, the Pledgee’s right to attend a shareholders’ meeting shall lapse
immediately upon complete satisfaction and discharge of the Obligations; |
| |
| 10.7 |
|
to refrain from any acts or omissions, subject to the performance of its rights and duties
under the Existing Share Pledge Agreement, the purpose or effect of which is or would be the
dilution of the value of the Shares or the Shares ceasing to exist, unless permitted by the
Pledgee (acting reasonably); |
| |
| 10.8 |
|
not to amend the articles of association of the Company to the extent that such amendment
would materially adversely affect the security interest of the Pledgee created hereunder
without the prior written consent of the Pledgee (such consent not to be unreasonably
withheld); |
| |
| 10.9 |
|
insofar as additional declarations or actions are necessary for the creation of the Pledge in
favour of the Pledgee and at the Pledgee’s reasonable request (acting on the reasonable
instructions of the Secured Parties), to make such declarations and undertake such actions at
its own costs and expenses; and |
| |
| 10.10 |
|
for the avoidance of doubt, notification and consent requirements as set out in sub-Clauses
10.1 through 10.8 of this Agreement are deemed to be satisfied if and to the extent such
notification or consent has been delivered under the Existing Share Pledge Agreement provided
that such notification to the Pledgee or consent of the Pledgee makes reference to this
Agreement and the Existing Share Pledge Agreement. |
| |
| 11. |
|
DELEGATION |
| |
| |
|
The Pledgee shall have full power to delegate (either generally or specifically) the powers,
authorities and discretions conferred on it by this Agreement on such terms and conditions
as it shall see fit. The Pledgee shall only remain liable for diligently selecting and
providing initial instructions to such delegate. |
| |
| 12. |
|
INDEMNITY |
| |
| |
|
The Pledgor shall reimburse the Pledgee (which, for purposes of this Clause 12, shall
include its officers, directors, employees, agents and counsel) upon request for all
properly incurred, reasonable and documented out-of-pocket expenses incurred or made by it
in connection with the Credit Documents. Such expenses shall include the properly incurred,
reasonable and documented compensation and expenses, disbursements and advances of the
Pledgee’s agents, counsel, accountants and experts. The Pledgor shall indemnify the Pledgee
against any and all loss, liability, |
- 19 -
| |
|
claim, taxes, costs, damage or expense (including properly incurred, reasonable and
documented attorneys’ fees and expenses) incurred by or in connection with the acceptance or
administration of the Pledgee’s performance of its duties under this Agreement and under
German law, including the costs and expenses of enforcing this Agreement and defending
itself against or investigating any claim. The obligation to pay such amounts shall survive
the payment in full or defeasance of the Obligations or the removal or resignation of the
Pledgee. The Pledgee shall notify Reynolds Group Holdings Limited of any claim for which it
may seek indemnity promptly upon obtaining actual knowledge thereof; provided that any
failure so to notify Reynolds Group Holdings Limited shall not relieve the Pledgor of its
indemnity obligations hereunder. The Pledgor may defend itself against such claim and the
Pledgee shall provide reasonable cooperation in such defense. The Pledgee may have separate
counsel and the Pledgor shall pay the properly incurred, reasonable and documented fees and
expenses of such counsel. The Pledgor need not reimburse any expense or indemnify against
any loss, liability or expense incurred by the Pledgee through the Pledgee’s own wilful
misconduct (Vorsatz) or gross negligence (grobe Fahrlässigkeit). No provision of this
Agreement shall require the Pledgee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if repayment of such funds or adequate indemnity against such
risk or liability is not assured to its satisfaction. |
| |
| 13. |
|
NO LIABILITY |
| |
| |
|
Except as otherwise agreed between the parties to this Agreement, none of the Pledgee, its
nominee(s) or agent(s) or delegate(s) shall be liable by reason of (a) taking any action
permitted by this Agreement or (b) any neglect or default in connection with the assets and
rights subject to the security interest created hereunder, save in respect of any loss or
damage which is suffered as a result of wilful misconduct (Vorsatz) or gross negligence
(grobe Fahrlässigkeit) by the Pledgee, its nominee(s) or agent(s) or delegate(s), or (c) the
enforcement or realisation of all or any part of the security interest created hereunder. |
| |
| 14. |
|
DURATION AND INDEPENDENCE |
| |
| 14.1 |
|
This Agreement shall remain in full force and effect until complete satisfaction of the
Obligations. The Pledge shall not cease to exist, if any Grantor under the Credit Documents
has only temporarily discharged the Obligations. |
| |
| 14.2 |
|
This Agreement shall create a continuing security and no change, amendment, or supplement
whatsoever in the Credit Documents or in any document or agreement related to any of the
Credit Documents shall affect the validity or the scope of this Agreement nor the obligations
which are imposed on the Pledgor pursuant to it. |
| |
| 14.3 |
|
This Agreement is independent from any other security or guarantee which may have been or
will be given to the Collateral Agent. None of such other security shall prejudice, or shall
be prejudiced by, or shall be merged in any way with this Agreement. |
- 20 -
| 14.4 |
|
Waiving Section 418 of the German Civil Code, the Pledgor hereby agrees that the security
created hereunder shall not be affected by any transfer or assumption of the Obligations to,
or by, any third party. |
| |
| 15. |
|
RELEASE OF PLEDGE (PFANDFREIGABE) |
| |
| 15.1 |
|
Upon complete and irrevocable satisfaction of the Obligations, the Collateral Agent (as
instructed in accordance with the First Lien Intercreditor Agreement) will as soon as
reasonably practicable declare in writing the release of the Pledge (Pfandfreigabe) to the
Pledgor as a matter of record. For the avoidance of doubt, the parties are aware that upon
full and complete satisfaction of the Obligations the Pledge, due to its accessory nature
(Akzessorietät) ceases to exist by operation of German mandatory law. |
| |
| 15.2 |
|
At any time when the total value of the aggregate security granted by the Pledgor and any of
the other Grantors to secure the Obligations (the “Security”), which can be expected to be
realised in the event of an enforcement of the Security (realisierbarer Wert), exceeds 110% of
the Obligations (the “Limit”) not only temporarily, the Pledgee shall on demand of the Pledgor
release such part of the Security (Sicherheitenfreigabe) as the Pledgee (as instructed in
accordance with the First Lien Intercreditor Agreement) may in its reasonable discretion
determine so as to reduce the realisable value of the Security to the Limit. |
| |
| 15.3 |
|
The parties acknowledge that the Pledgee (as instructed in accordance with the First Lien
Intercreditor Agreement) will declare in writing the release of the Pledge (Pfandfreigabe) to
the Pledgor as soon as reasonably practicable in accordance with, and to the extent required
by, the Intercreditor Arrangements. |
| |
| 16. |
|
PARTIAL INVALIDITY; WAIVER |
| |
| 16.1 |
|
If at any time, any one or more of the provisions hereof is or becomes invalid, illegal or
unenforceable in any respect under the law of any jurisdiction, such provision shall as to
such jurisdiction, be ineffective to the extent necessary without affecting or impairing the
validity, legality and enforceability of the remaining provisions hereof or of such provisions
in any other jurisdiction. The invalid, illegal or unenforceable provision shall be deemed to
be replaced with such valid, legal or enforceable provision which comes as close as possible
to the original intent of the parties and the invalid, illegal or unenforceable provision.
Should a gap (Regelungslücke) become evident in this Agreement, such gap shall, without
affecting or impairing the validity, legality and enforceability of the remaining provisions
hereof, be deemed to be filled in with such provision which comes as close as possible to the
original intent of the parties. |
| |
| 16.2 |
|
No failure to exercise, nor any delay in exercising, on the part of the Pledgee, any right or
remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise
of any right or remedy prevent any further or other exercise thereof or the exercise of any
other right or remedy. The rights and remedies provided hereunder are cumulative and not
exclusive of any rights or remedies provided by law. |
- 21 -
| 16.3 |
|
In particular, the Pledge shall not be affected and shall in any event extend to any and all shares in the Company even if the number or nominal value of the Existing Shares or the
aggregate share capital of the Company as stated in Clause 2 are inaccurate or deviate from
the actual facts. |
| |
| 17. |
|
AMENDMENTS |
| |
| |
|
Changes and amendments to this Agreement including this Clause 17 shall be made in writing
except where notarisation is required. |
| |
| 18. |
|
NOTICES AND THEIR LANGUAGE |
| |
| 18.1 |
|
All notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail or sent
by fax, as follows: |
| |
|
|
|
|
|
|
|
| |
|
For the Pledgor: |
|
SIG Combibloc Holding GmbH |
|
|
|
|
|
|
|
|
|
|
|
Address:
|
|
Rurstrafße 58, 52441
Linnich, Germany, |
|
|
|
|
|
|
|
|
|
|
|
Telephone:
|
|
+49 2462 79 0 |
|
|
|
|
|
|
|
|
|
|
|
Fax:
|
|
+49 2462 79 2519 |
|
|
|
|
|
|
|
|
|
|
|
Attention:
|
|
Managing directors
(Geschäftsführung) |
| |
|
|
|
|
|
|
|
|
|
for the Pledgor with a copy to: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Address:
|
|
c/o Rank Group Limited
Level 9
148 Quay Street
PO Box 3515
Auckland 1140
New Zealand |
|
|
|
|
|
|
|
|
|
|
|
Telephone.
|
|
+649 3666 259 |
|
|
|
|
|
|
|
|
|
|
|
Fax:
|
|
+649 3666 263 |
|
|
|
|
|
|
|
|
|
|
|
Attention:
|
|
Helen Golding |
- 22 -
| |
|
|
|
|
|
|
|
| |
|
For the Pledgee: |
|
The Bank of New York Mellon |
|
|
|
|
|
|
|
|
|
|
|
Address:
|
|
101 Barclay Street, 4E
New York, NY 10286
The United States of America |
|
|
|
|
|
|
|
|
|
|
|
Telephone:
|
|
+212 298 1528 |
|
|
|
|
|
|
|
|
|
|
|
Fax:
|
|
+212 815 5366 |
|
|
|
|
|
|
|
|
|
|
|
Attention:
|
|
International Corporate Trust |
| 18.2 |
|
Any party hereto may change its address or fax number for notices and other communications
hereunder by notice to the other parties hereto. As agreed to in writing by the parties,
notices and other communications hereunder may also be delivered by e-mail to the e-mail
address of a representative of the applicable party to this Agreement provided from time to
time by such party. |
| |
| 18.3 |
|
All notices and other communications given to any party in connection with this Agreement in
accordance with the provisions of this Agreement shall be deemed (widerlegbare Vermutung)
received on the date sent (if a business day) and on the next business day thereafter (in all
other cases) if delivered by hand or overnight courier service or sent by fax or on the date
five business days after dispatch by certified or registered mail if mailed, in each case
delivered, sent or mailed (properly addressed) to such party as provided in this Clause 18 or
in accordance with the latest unrevoked direction from such party given in accordance with
this Clause 18. |
| |
| 18.4 |
|
Any notice or other communication under or in connection with this Agreement shall be in the
English language or, if in any other language, accompanied by a translation into English.
In the event of any conflict between the English text and the text in any other language,
the English text shall prevail. |
| |
| 19. |
|
NOTIFICATION |
| |
| 19.1 |
|
The Pledgor and the Pledgee hereby give notice of this Agreement and the Pledge of the rights
pursuant to Clause 3 and Clause 4 to the Company. |
| |
| 19.2 |
|
The Company hereby acknowledges the notification pursuant to Clause 19.1 above. |
- 23 -
| 20. |
|
APPLICABLE LAW, JURISDICTION |
| |
| 20.1 |
|
This Agreement is governed by the laws of the Federal Republic of Germany. |
| |
| 20.2 |
|
The place of jurisdiction for any and all disputes arising under or in connection with this
Agreement shall be the courts in Frankfurt am Main. The Pledgee however, shall also be
entitled to take action against the Pledgor in any other court of competent jurisdiction.
Further, the taking of proceedings against the Pledgor in any one or more jurisdictions shall
not preclude the taking of proceedings in any other jurisdiction (whether concurrently or not)
if and to the extent permitted by applicable law. |
The Notary advised the persons appearing:
| • |
|
that a pledge is a security instrument of strictly
accessory nature (which means that it comes into
legal existence only if, to the extent that, and as
long as, the underlying secured claims do in fact
exist, and that the owners of the secured claims and
the pledgees must be identical); |
| |
| • |
|
that notwithstanding Section 16 para 3 German
Limited Liability Companies Act (Gesetz betreffend
die Gesellschaften mit beschränkter Haftung) there
is no bona fide creation, acquisition nor ranking of
a pledge of shares (in the sense that the pledgees
are not protected if the shares purported to be
pledged do not exist or have been previously
encumbered for the benefit of a third party); and |
| |
| • |
|
that the English original version of this Agreement
will not be acceptable for enforcement but will have
to be translated, by a certified translator, into
German for such purposes. |
- 24 -
SCHEDULE 1
PART 1
LIST OF CURRENT BORROWERS
SIG Euro Holding AG & Co. KGaA
Closure Systems International Holdings Inc.
Closure Systems International B.V.
SIG Austria Holding GmbH
Reynolds Consumer Products Holdings Inc.
Reynolds Group Holdings Inc.
Pactiv Corporation
- 25 -
PART 2
LIST OF CURRENT GUARANTORS, CURRENT 2009 SENIOR SECURED NOTES GUARANTORS, CURRENT OCTOBER 2010 SECURED NOTES GUARANTORS AND CURRENT FEBRUARY 2011 SECURED NOTES GUARANTORS
Whakatane Mill Australia Pty Limited
SIG Austria Holding GmbH
SIG Combibloc GmbH & Co KG
SIG Combibloc GmbH
SIG Beverages Brasil Ltda.
SIG Combibloc do Brasil Ltda.
Closure Systems International (Brazil) Sistemas de Vedação Ltda
CSI Latin American Holdings Corporation
Evergreen Packaging Canada Limited
CSI Closure Systems Manufacturing de Centro America, S.R.L.
SIG Holdings (UK) Limited
SIG Combibloc Limited
Closure Systems International (UK) Limited
Reynolds Consumer Products (UK) Limited
Reynolds Subco (UK) Limited
Kama Europe Limited
Ivex Holdings, Ltd.
SIG Euro Holding AG & Co. KGaA
SIG Beverages Germany GmbH
SIG Combibloc Holding GmbH
SIG Vietnam Beteiligungs GmbH
SIG Combibloc GmbH
- 26 -
SIG Combibloc Systems GmbH
SIG Combibloc Zerspanungstechnik GmbH
SIG Information Technology GmbH
SIG International Services GmbH
Closure Systems International Holdings (Germany) GmbH
Closure Systems International Deutschland GmbH
Pactiv Hamburg Holdings GmbH
Pactiv Deutschland Holdinggesellschaft mbH
Omni-Pac Ekco GmbH Verpackungsmittel
Omni-Pac GmbH Verpackungsmittel
SIG Asset Holdings Limited
Closure Systems International (Hong Kong) Limited
SIG Combibloc Limited
Evergreen Packaging (Hong Kong) Limited
Closure Systems International Holdings (Hungary) Kft.
CSI Hungary Gyártó és Kereskedelmi Kft. (aka CSI Hungary)
Closure Systems International Holdings (Japan) KK
Closure Systems International Japan, Limited
Beverage Packaging Holdings (Luxembourg) I S.A.
Beverage Packaging Holdings (Luxembourg) III S.à r.l.
Evergreen Packaging (Luxembourg) S.à r.l.
Reynolds Group Issuer (Luxembourg) S.A.
Bienes Industriales del Norte S.A. de C.V.
CSI en Ensenada, S. de R.L. de C.V.
CSI en Saltillo, S. de R.L. de C.V.
- 27 -
CSI Tecniservicio, S. de R.L. de C.V.
Grupo CSI de Mexico, S. de R.L. de C.V.
Técnicos de Tapas Innovativas S.A. de C.V.
Evergreen Packaging Mexico, S. de R.L. de C.V.
Reynolds Metals Company de Mexico, S. de R.L. de C.V.
Maxpack, S. de R.L. de C.V.
Closure Systems International B.V.
Reynolds Consumer Products International B.V.
Evergreen Packaging International B.V.
Reynolds Packaging International B.V.
Reynolds Group Holdings Limited
Whakatane Mill Limited
SIG Combibloc Group AG
SIG Technology AG
SIG allCap AG
SIG Combibloc (Schweiz) AG
SIG Schweizerische Industrie-Gesellschaft AG
SIG Combibloc Procurement AG
SIG Reinag AG
SIG Combibloc Ltd.
SIG Holding USA Inc.
SIG Combibloc Inc.
Closure Systems International Americas, Inc.
Closure Systems International Holdings Inc.
Closure Systems International Inc.
- 28 -
Reynolds Packaging Machinery Inc.
Closure Systems Mexico Holdings LLC
CSI Mexico LLC
CSI Sales & Technical Services Inc.
Bakers Choice Products, Inc.
Reynolds Consumer Products Holdings Inc.
Reynolds Consumer Products Inc.
Reynolds Foil Inc.
Reynolds Group Holdings Inc.
Reynolds Services Inc.
Blue Ridge Holding Corp.
Blue Ridge Paper Products Inc.
Evergreen Packaging International (US) Inc.
Evergreen Packaging Inc.
Evergreen Packaging USA Inc.
Reynolds Packaging, Inc.
Reynolds Packaging LLC
Reynolds Packaging Kama Inc.
Reynolds Food Packaging LLC
Reynolds Flexible Packaging Inc.
Southern Plastics Inc.
Ultra Pac, Inc.
BRPP, LLC
Reynolds Group Issuer Inc.
Reynolds Group Issuer LLC
- 29 -
Pactiv Corporation (formerly Reynolds Acquisition Corporation)
Pactiv Factoring LLC
Pactiv RSA LLC
Pactiv Retirement Administration LLC
Pactiv Germany Holdings, Inc.
Pactiv International Holdings Inc.
Pactiv Management Company LLC
PCA West Inc.
Prairie Packaging, Inc.
PWP Holdings, Inc.
PWP Industries, Inc.
Newspring Industrial Corp.
Pactiv Canada Inc.
The Baldwin Group Limited
J. & W. Baldwin (Holdings) Limited
Omni-Pac U.K. Limited
Conference Cup Ltd.
Dopaco Canada, Inc.
Dopaco, Inc.
Garven Incorporated
Central de Bolsas, S. de R.L. de C.V.
Servicios Industriales Jaguar, S. de C.V.
Servicio Terrestre Jaguar, S. de C.V.
Grupo Corporativo Jaguar, S. de C.V.
Pactiv México, S. de R.L. de C.V.
- 30 -
PART 3
LIST OF CURRENT NEW SECURED NOTES GUARANTORS
Whakatane Mill Australia Pty Limited
SIG Beverages Brasil Ltda.
SIG Combibloc do Brasil Ltda.
Closure Systems International (Brazil) Sistemas de Vedàçao Ltda
CSI Latin American Holdings Corporation
Evergreen Packaging Canada Limited
CSI Closure Systems Manufacturing de Centro America, S.R.L.
SIG Holdings (UK) Limited
SIG Combibloc Limited
Closure Systems International (UK) Limited
Reynolds Consumer Products (UK) Limited
Reynolds Subco (UK) Limited
Kama Europe Limited
Ivex Holdings, Ltd.
SIG Euro Holding AG & Co. KGaA
SIG Beverages Germany GmbH
SIG Combibloc Holding GmbH
SIG Vietnam Beteiligungs GmbH
SIG Combibloc GmbH
SIG Combibloc Systems GmbH
SIG Combibloc Zerspanungstechnik GmbH
SIG Information Technology GmbH
|
|
|
| 1 |
|
Post-closing Austrian guarantors excluded. |
- 31 -
SIG International Services GmbH
Closure Systems International Holdings (Germany) GmbH
Closure Systems International Deutschland GmbH
Pactiv Hamburg Holdings GmbH
Pactiv Deutschland Holdinggesellschaft mbH
Omni-Pac Ekco GmbH Verpackungsmittel
Omni-Pac GmbH Verpackungsmittel
SIG Asset Holdings Limited
Closure Systems International (Hong Kong) Limited
SIG Combibloc Limited
Evergreen Packaging (Hong Kong) Limited
Closure Systems International Holdings (Hungary) Kft.
CSI Hungary Gyàrtó és Kereskedelmi Kft. (aka CSI Hungary)
Closure Systems International Holdings (Japan) KK
Closure Systems International Japan, Limited
Beverage Packaging Holdings (Luxembourg) I S.A.
Beverage Packaging Holdings (Luxembourg) III S.à r.l.
Evergreen
Packaging (Luxembourg) S.à r.l.
Reynolds Group Issuer (Luxembourg) S.A.
Bienes Industriales del Norte S.A. de C.V.
CSI en Ensenada, S. de R.L. de C.V.
CSI en Saltillo, S. de R.L. de C.V.
CSI Tecniservicio, S. de R.L. de C.V.
Grupo CSI de Mexico, S. de R.L. de C.V.
Técnicos de Tapas Innovativas S.A. de C.V.
- 32 -
Evergreen Packaging Mexico, S. de R.L. de C.V.
Reynolds Metals Company de Mexico, S. de R.L. de C.V.
Maxpack, S. de R.L. de C.V.
Closure Systems International B.V.
Reynolds Consumer Products International B.V.
Evergreen Packaging International B.V.
Reynolds Packaging International B.V.
Reynolds Group Holdings Limited
Whakatane Mill Limited
SIG Combibloc Group AG
SIG Technology AG
SIG allCap AG
SIG Combibloc (Schweiz) AG
SIG Schweizerische Industrie-Gesellschaft AG
SIG Combibloc Procurement AG
SIG Reinag AG
SIG Combibloc Ltd.
SIG Holding USA Inc.
SIG Combibloc Inc.
Closure Systems International Americas, Inc.
Closure Systems International Holdings Inc.
Closure Systems International Inc.
Reynolds Packaging Machinery Inc.
Closure Systems Mexico Holdings LLC
CSI Mexico LLC
- 33 -
CSI Sales & Technical Services Inc.
Bakers Choice Products, Inc.
Reynolds Consumer Products Holdings Inc.
Reynolds Consumer Products Inc.
Reynolds Foil Inc.
Reynolds Group Holdings Inc.
Reynolds Services Inc.
Blue Ridge Holding Corp.
Blue Ridge Paper Products Inc.
Evergreen Packaging International (US) Inc.
Evergreen Packaging Inc.
Evergreen Packaging USA Inc.
Reynolds Packaging, Inc.
Reynolds Packaging LLC
Reynolds Packaging Kama Inc.
Reynolds Food Packaging LLC
Reynolds Flexible Packaging Inc.
Southern Plastics Inc.
Ultra Pac, Inc.
BRPP, LLC
Reynolds Group Issuer Inc.
Reynolds Group Issuer LLC
Pactiv Corporation (formerly Reynolds Acquisition Corporation)
Pactiv Factoring LLC
Pactiv RSA LLC
- 34 -
Pactiv Retirement Administration LLC
Pactiv Germany Holdings, Inc.
Pactiv International Holdings Inc.
Pactiv Management Company LLC
PCA West Inc.
Prairie Packaging, Inc.
PWP Holdings, Inc.
PWP Industries, Inc.
Newspring Industrial Corp.
Pactiv Canada Inc.
The Baldwin Group Limited
J. & W. Baldwin (Holdings) Limited
Omni-Pac U.K. Limited
Conference Cup Ltd.
Dopaco Canada, Inc.
Dopaco, Inc.
Garven Incorporated
Central de Bolsas, S. de R.L. de C.V.
Servicios Industriales Jaguar, S. de C.V.
Servicio Terrestre Jaguar, S. de C.V.
Grupo Corporativo Jaguar, S. de C.V.
Pactiv México, S. de R.L. de C.V.
- 35 -
PART 4
COPY OF SHAREHOLDERS LIST (GESELLSCHAFTERLISTE)
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Amtsgericht Hamburg
HRB 106481
Amtlicher Ausdruck aus dem Registerordner
Dokument: Liste der Gesellschafter
(20355_HRB106481_GEL_S-2011-03-02_4479207_#001.PDF)
Eingestellt in den Registerordner am (letztes Freigabedatum): 09.03.2011
Abgerufen aus dem Registerordner am: 09.08.2011 14:19:42
Dieser Ausdruck bezeugt den Inhalt eines Dokuments des Registerordners.
Dieser Ausdruck wird nicht unterschrieben und gilt als beglaubigte Abschrift.
Hamburg, den 09.08.2011
Heil
Justizobersedretär
Liste der Gesellschafter
der Pactiv Hamburg Holdings gMBhmit dem sitz in Hambarg, HRB AG Hambarg 106481
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| Lfd. Nr. der |
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Gesellschafter (Name, Vorname und Wohnort |
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Nennbetrag eines jeden |
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bzw. Firma und Sitz) |
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Geschäftsanteils (in Euro) |
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SIG Combibloc Holding GmbH, mit dem Sitz in Linnich, eingetragen im
Handelsregister beim Amtsgericht Düren unter HRB 5751 |
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1.000,00 |
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SIG Combibloc Holding GmbH, mit dem Sitz in Linnich, eingetragen im
Handelsregister beim Amtsgericht Düren unter HRB 5751 |
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24.000,00 |
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UR-Nr.85/2011-G
Der unterzeichnete Notar bestätigt hiermit, dass die geänderten
Eintragungen in der vorstehenden Gesellschafterliste, den
Veränderungen entsprechen, die sich aufgrund seiner Urkunde Nr.
84/2011-G vom 02.03.2011 ergeben, und die Übrigen Eintragungen mit
dem Inhalt der zuletzt im Handelsregister aufgenommenen Liste Übereinstimmen.
Frankfurt am Main, 2. März 2011
Dr. Gerber
Notar
Frankfurt am Main, den 03.03.2011
Hiennit beglaubige ich die Übereinatimraung, der in dieser Datei enthaltenen Bilddaten (Absohrift)
mit dem mir vorliegenden Papierdokcument (Ursohrift).
Dr. Olaf Gerber
Notar
Appendix 6
CLOSURE SYSTEMS INTERNATIONAL HOLDINGS (GERMANY) GMBH
as Pledgor
CLOSURE SYSTEMS INTERNATIONAL DEUTSCHLAND GMBH
as Company
THE BANK OF NEW YORK MELLON
as Collateral Agent and Pledgee
SHARE PLEDGE AGREEMENT RELATING TO THE
SHARES IN CLOSURE SYSTEMS INTERNATIONAL
DEUTSCHLAND GMBH
(Geschäftsanteilsverpfändung)
The taking of this document or any certified copy of it or any document which constitutes
substitute documentation for it, or any document which includes written confirmations or references
to it, into Austria as well as printing out any e-mail communication which refers to any Credit
Document (as defined in Clause 1 of this document) in Austria or sending any e-mail communication
to which a pdf scan of this document is attached to an Austrian addressee or sending any e-mail
communication carrying an electronic or digital signature which refers to any Credit Document to an
Austrian addressee may cause the imposition of Austrian stamp duty. Accordingly, keep the original
document as well as all certified copies thereof and written and signed references to it outside of
Austria and avoid printing out any email communication which refers to any Credit Document in
Austria or sending any e-mail communication to which a pdf scan of this document is attached to an
Austrian addressee or sending any e-mail communication carrying an electronic or digital signature
which refers to any Credit Document to an Austrian addressee.
Contents
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| Clause |
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Page |
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1. |
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Definitions and Language |
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5 |
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2. |
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Pledged Shares |
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12 |
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3. |
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Pledge |
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12 |
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4. |
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Scope of the Pledges |
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12 |
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5. |
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Purpose of the Pledges |
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13 |
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6. |
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Exercise of Membership Rights |
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14 |
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7. |
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Enforcement of the Pledges |
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14 |
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8. |
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Limitations on Enforcement |
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15 |
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9. |
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Approval and Confirmation |
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18 |
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10. |
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Undertakings of the Pledgor |
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11. |
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Delegation |
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12. |
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Indemnity |
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13. |
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No Liability |
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14. |
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Duration and Independence |
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15. |
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Release of Pledge (Pfandfreigabe) |
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16. |
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Partial Invalidity; Waiver |
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17. |
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Amendments |
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22 |
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18. |
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Notice and their Language |
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19. |
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Notification |
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20. |
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Applicable Law, Jurisdiction |
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24 |
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Schedule 1 |
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25 |
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Part 1 List of Current Borrowers |
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Part 2 List of Current Guarantors, Current 2009 Senior Secured Notes Guarantors, Current
October 2010 Secured Notes Guarantors and Current February 2011 Secured Notes
Guarantors |
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Part 3 List of Current New Secured Notes Guarantors |
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31 |
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Part 4 Copy of Shareholders List (Gesellschafterliste) |
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- 1 -
This SHARE PLEDGE AGREEMENT (the “Agreement”) is made on September 8, 2011
BETWEEN:
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Closure Systems International Holdings (Germany) GmbH, a limited liability company
(Gesellschaft mit beschrankter Haftung) organised under the laws of the Federal Republic of
Germany, having its business address at Mainzer StraBe 185, 67547 Worms, Germany, which is
registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of
Mainz under HRB 41388 (the “Pledgor”); |
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| (2) |
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Closure Systems International Deutschland GmbH, a limited liability company (Gesellschaft mit
beschrankter Haftung) organised under the laws of the Federal Republic of Germany having its
corporate seat in Worms, Germany and its business address at Mainzer Straße 185, 67547 Worms,
Germany, which is registered in the commercial register (Handelsregister) of the local court
(Amtsgericht) of Mainz under HRB 10054 (the “Company”); and |
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| (3) |
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The Bank of New York Mellon, having its business address at 1 Wall Street, New York, N.Y.
10286, The United States of America, in its capacity as collateral agent under the First Lien
Intercreditor Agreement (as defined below) (the “Collateral Agent” or the “Pledgee”). |
WHEREAS:
| (A) |
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Pursuant to the second amended and restated senior secured multi-currency term and revolving
credit agreement dated 9 August 2011 of currently up to USD 4,445,000,000 and EUR 330,000,000
between, inter alia, the parties listed in Schedule 1 Part 1 hereto as current borrowers (the
“Current Borrowers”), the parties listed in Schedule 1 Part 2 hereto as current guarantors
(the “Current Guarantors”), Credit Suisse AG as administrative agent and others (as amended,
varied, novated, restated, supplemented, superseded or extended from time to time, the “Second
Amended and Restated Credit Agreement”), which amends and restates the multicurrency term and
revolving credit agreement dated 5 November 2009 between, inter alia, the Current Borrowers
and the Current Guarantors, Credit Suisse AG as administrative agent and others (as amended
and restated pursuant to the Second Amended and Restated Credit Agreement and as further
amended, varied, novated, restated, supplemented, superseded or extended from time to time,
hereinafter the
“Credit Agreement”), certain lenders (together the “Original Lenders”) have granted certain
facilities to the Current Borrowers and certain other entities which may accede or may have
acceded to the Credit Agreement as additional borrowers. |
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| (B) |
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Pursuant to a senior secured notes indenture dated 5 November 2009 between, inter alia,
Reynolds Group Issuer LLC, Reynolds Group Issuer Inc., and Reynolds Group Issuer (Luxembourg)
S.A as ultimate issuers (the “Issuers”), certain affiliates of the Issuers listed in Schedule
1 Part 2 hereto as current 2009 senior secured notes guarantors (the “Current 2009 Senior
Secured Notes Guarantors”) and The Bank of New York Mellon, as indenture trustee, principal
paying agent, transfer agent and registrar, (as amended, varied, novated, supplemented,
superseded or extended from time to time, the “2009 Senior Secured Notes Indenture”), the
Issuers have issued senior secured notes due 2016 in the aggregate principal amount of USD |
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1,125,000,000 (the “US Secured Notes”) and senior secured notes due 2016 in the aggregate
principal amount of EUR 450,000,000 (the “Euro Secured Notes” and together with the US
Secured Notes the “2009 Senior Secured Notes”) to certain noteholders. |
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| (C) |
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Pursuant to a senior secured notes indenture dated 15 October 2010 between, inter
alia, RGHL US Escrow I LLC, RGHL US Escrow I Inc., and RGHL Escrow Issuer
(Luxembourg) I S.A. as escrow issuers (the “Escrow Issuers”), The Bank of New
York Mellon as indenture trustee, The Bank of New York Mellon, London Branch as
principal paying agent, The Bank of New York Mellon as collateral agent and
Wilmington Trust (London) Limited as additional collateral agent (as amended,
varied, novated, supplemented, superseded or extended from time to time, the
“October 2010 Secured Notes Indenture”), the Escrow Issuers have issued secured
notes due 2019 in the aggregate principal amount of USD 1,500,000,000 in escrow
(the “ October 2010 Secured Notes”). In connection with the release from escrow of
the proceeds of the October 2010 Secured Notes, which occurred on 16 November
2010, the Escrow Issuers were merged with and into the Issuers, with each of the
Issuers surviving the applicable mergers or other transfers and assuming by operation
of law the obligations of the applicable Escrow Issuers with respect to the October
2010 Secured Notes Indenture and the October 2010 Secured Notes. Certain affiliates
of the Issuers listed in Schedule 1 Part 2 hereto have acceded to the October 2010
Secured Notes Indenture as current October 2010 secured notes guarantors (the
“Current October 2010 Secured Notes Guarantors”). |
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| (D) |
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Pursuant to a senior secured notes indenture dated 1 February 2011 between, inter
alia, the Issuers, The Bank of New York Mellon as indenture trustee, The Bank of
New York Mellon, London Branch as principal paying agent, The Bank of New York
Mellon as collateral agent and Wilmington Trust (London) Limited as additional
collateral agent (as amended, varied, novated, supplemented, superseded or extended
from time to time, the “February 2011 Secured Notes Indenture”), the Issuers have
issued secured notes due 2021 in the aggregate principal amount of USD
1,000,000,000 (the “February 2011 Secured Notes”) which are guaranteed by
certain affiliates of the Issuers listed in Schedule 1 Part 2 hereto as current February
2011 secured notes guarantors (the “Current February 2011 Secured Notes
Guarantors”). |
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| (E) |
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The Pledgor has entered into the Existing Share Pledge Agreements (as defined
below). |
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| (F) |
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Pursuant to a senior secured notes indenture dated 9 August 2011 between, inter alia,
the RGHL US Escrow II LLC and RGHL US Escrow II Inc. as escrow issuers (the
“August 2011 Escrow Issuers”), The Bank of New
York Mellon as indenture trustee,
The Bank of New York Mellon, London Branch as principal paying agent, The Bank
of New York Mellon as collateral agent and Wilmington Trust (London) Limited as
additional collateral agent (as amended, varied, novated, supplemented, superseded or
extended from time to time, the “New Secured Notes Indenture”), the August 2011
Escrow Issuers have issued senior secured notes due 2019 in the aggregate principal
amount of USD 1,500,000,000 (the “New Secured Notes”). In connection with the |
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release from escrow of the proceeds of the New Secured Notes, RGHL US Escrow II Inc. and
RGHL US Escrow II LLC shall be merged with and into Reynolds Group Issuer Inc. and Reynolds
Group Issuer LLC (together with Reynolds Group Issuer (Luxembourg) S.A. the “August 2011
Ultimate Issuers”), respectively, and the obligations of the August 2011 Escrow Issuers
shall be assumed by the August 2011 Ultimate Issuers pursuant to one or more supplemental
indentures between, among others, the August 2011 Escrow Issuers, the August 2011 Ultimate
Issuers, The Bank of New York Mellon, as trustee, principal paying agent, transfer agent,
registrar and collateral agent and Wilmington Trust (London) Limited, as additional
collateral agent. At such time certain affiliates of the August 2011 Ultimate Issuers listed
in Schedule 1 Part 3 hereto as current new secured notes guarantors (the “Current New
Secured Notes Guarantors”) will accede to the New Secured Notes Indenture). |
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| (G) |
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As a result of the Second Amended and Restated Credit Agreement and the
amendment No. 6 and incremental term loan assumption agreement dated 9 August
2011 between, inter alia, the Current Borrowers, the Current Guarantors, Credit
Suisse AG as administrative agent and others (the “Amendment No. 6 and
Incremental Term Loan Assumption Agreement”) certain lenders have agreed to
grant incremental term loans in an aggregate amount of up to USD 2,000,000,000. |
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| (H) |
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The Pledgor has agreed to grant an additional pledge (subject to the pledges arising
under the Existing Share Pledge Agreements (as defined below)) over its Shares (as
defined below) in the Company as security for the Pledgee’s respective claims against
the Grantors (as defined below) (or any of them) in respect of the Obligations (as
defined below). |
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| (I) |
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The security created by or pursuant to this Agreement is to be administered by the
Collateral Agent for the Secured Parties (as defined below) pursuant to a first lien
intercreditor agreement dated 5 November 2009 (as amended by the Amendment No.
1 and Joinder Agreement (as defined below)) between, inter alia, the Collateral
Agent, the Indenture Trustee, the Administrative Agent and the Grantors (each as
defined below) and others (as amended, varied, novated, supplemented, superseded or
extended from time to time, the “First Lien Intercreditor Agreement”). |
NOW, IT IS AGREED as follows:
| 1. |
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DEFINITIONS AND LANGUAGE |
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| 1.1 |
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In this Agreement: |
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“Administrative Agent” means Credit Suisse AG, Cayman Islands Branch, having its business
address at Eleven Madison Avenue, New York, NY 10010, United States of America in its
capacity as administrative agent under the Credit Agreement and any successor appointed as
administrative agent under the Credit Agreement. |
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“Amendment No. 1 and Joinder Agreement” means the joinder agreement dated 21 January 2010 relating
to the First Lien Intercreditor Agreement made among (amongst others) the Collateral Agent,
Wilmington Trust (London) Limited, Credit Suisse AG and Reynolds Group Holdings Limited pursuant to
which Wilmington Trust (London) Limited is appointed as additional collateral agent and became
party to the First Lien Intercreditor Agreement. |
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“Borrowers” means the Current Borrowers and any entity which may accede to the Credit Agreement as
an additional borrower and “Borrower” means any of them. |
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“Cash Management Bank” shall mean Citibank N.A., Banco Nacional De Mexico S.A., Citibank
International PLC, UK, Citibank (China) Co., Limited, Citibank Global Markets Deutschland AG &
Co KGaA, Citibank ZRT, Hungary, a Lender, the Administrative Agent or any of the Lender’s or the
Administrative Agent’s affiliates (at the time the cash management services arrangement is entered
into) provided in each case it has become a party to, or by execution of an additional bank secured
party acknowledgment has agreed to be bound by the terms of, the First Lien Intercreditor Agreement
in its capacity as cash management bank. |
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“Cash Management Services” shall mean any agreement or arrangement by a Cash Management Bank to
provide any composite accounting or other cash pooling arrangements and netting, overdraft
protection and other arrangements with any bank arising under standard business terms of such Cash
Management Bank to a Grantor. |
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“Credit Documents” shall mean the Loan Documents, the 2009 Senior Secured Notes Documents, the
October 2010 Secured Notes Documents, the February 2011 Secured Notes Documents and the New Secured
Notes Documents. |
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“Enforcement Event” shall mean an Event of Default. |
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“Event of Default” means any event of default (Kündigungsgrund) under the Credit Agreement and/or
the 2009 Senior Secured Notes Indenture and/or the October 2010 Secured Notes Indenture and/or the
February 2011 Secured Notes Indenture and/or the New Secured Notes Indenture. |
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“Existing Intercreditor Agreement” means the existing intercreditor agreement dated 11 May 2007 (as
amended by a letter dated 21 June 2007 and a further letter dated 29 June 2007, as amended and
restated on 5 November 2009 and as further amended on 5 November 2010) between, inter alia, Beverage Packaging Holdings (Luxembourg) I S.A., Rank Group Holdings Limited (now Reynolds Group
Holdings Limited), Beverage Packaging Holdings (Luxembourg) II S.A., Beverage Packaging Holdings
(Luxembourg) III S.à r.l., Credit Suisse AG (formerly Credit Suisse) as security trustee and
others. |
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“Existing Share Pledge Agreements” means |
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a) |
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the share pledge agreement dated 5 November 2009 (as amended by a confirmation and
amendment agreement dated 4 May 2010) entered into |
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between Closure Systems International
Holdings (Germany) GmbH as pledgor and The Bank of New York Mellon as collateral agent and as
pledgee and others as pledgees; |
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b) |
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a confirmation and amendment agreement dated 4 May 2010 entered into between, inter alios,
Closure Systems International Holdings (Germany) GmbH as pledgor and The Bank of New York
Mellon as collateral agent and others (the “Confirmation and Amendment Agreement”); |
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c) |
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the share pledge agreement dated 16 November 2010 entered into between Closure Systems
International Holdings (Germany) GmbH as pledgor and The Bank of New York Mellon as collateral
agent and as pledgee; and |
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d) |
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the share pledge agreement dated 2 March 2011 entered into between Closure Systems
International Holdings (Germany) GmbH as pledgor and The Bank of New York Mellon as collateral
agent and as pledgee. |
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“Existing Shares” has the meaning given to such term in sub-Clause 2.1 hereof. |
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“February 2011 Secured Notes Documents” shall mean the February 2011 Secured Notes Indenture, the
February 2011 Secured Notes Guarantees, the February 2011 Secured Notes, the Intercreditor
Arrangements, any supplemental indenture, any security document relating to the February 2011
Secured Notes and/or the February 2011 Secured Notes Indenture and any other document that may be
entered into pursuant to any of the foregoing. |
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“February 2011 Secured Notes Guarantees” shall mean the guarantees of the obligations of the
Issuers under the February 2011 Secured Notes and the February 2011 Secured Notes Indenture by the
February 2011 Secured Notes Guarantors. |
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“February 2011 Secured Notes Guarantors” means the Current February 2011 Secured Notes Guarantors
and any entity which may accede to the February 2011 Secured Notes Indenture as additional
guarantor. |
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“February 2011 Secured Notes Holders” shall mean the holders from time to time of the February 2011
Secured Notes. |
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“February 2011 Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its
capacity as indenture trustee under the February 2011 Secured Notes Indenture and any successor
appointed as indenture trustee under the February 2011 Secured Notes Indenture. |
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“Future Shares” means all additional shares in the capital of the Company (irrespective of their
nominal value) which the Pledgor may acquire in the future in the event of a share transfer, a
share split, a share combination, an increase of the capital of the Company (including by way of
authorised capital (genehmigtes Kapital) or otherwise. |
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“Grantors” means the Loan Parties, the Issuers, the 2009 Senior Secured Notes Guarantors, the
October 2010 Secured Notes Guarantors, the February 2011 Secured Notes Guarantors and the New
Secured Notes Guarantors and any person that has granted a security interest to the Collateral
Agent and/or the Secured Parties in respect of the obligations of the Loan Parties, the Issuers and
the 2009 Senior Secured Notes Guarantors, the October 2010 Secured Notes Guarantors, the February
2011 Secured Notes Guarantors and the New Secured Notes Guarantors under the Credit Documents and
“Grantor” means any of them. |
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“Grantors’ Agent” shall mean Reynolds Group Holdings Limited or any other person appointed as agent
of the Grantors in accordance with the Principal Finance Documents. |
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“Group” means Reynolds Group Holdings Limited and its direct or indirect subsidiaries
(Tochtergesellschaften). |
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“Hedge Counterparty” means a Lender, the Administrative Agent or any of the Lender’s or the
Administrative Agent’s affiliates (at the time a hedging agreement is entered into) who has entered
into a hedging agreement for the purpose of hedging interest rate liabilities and/or any exchange
rate and/or commodity price risks provided it has become a party, or by execution of an additional
bank secured party acknowledgment has agreed to be bound by the terms of, to the First Lien
Intercreditor Agreement in its capacity as hedge counterparty. |
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“Incremental Assumption Agreement” shall mean an incremental assumption agreement relating to
incremental facilities of up to USD 2,000,000,000 among, and in form and substance reasonably
satisfactory to, one or more Borrowers, the Administrative Agent, one or more Incremental Term
Lenders and/or one or more Incremental Revolving Credit Lenders pursuant to which one or more
Incremental Term Lenders make available Incremental Term Loan Commitments and/or one or more
Incremental Revolving Credit Lenders make available Incremental Revolving Credit Commitments
respectively. |
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“Incremental Revolving Credit Lender” shall mean a Lender with an Incremental Revolving Credit
Commitment or an outstanding revolving loan under the Credit Agreement of any class as a result of
an Incremental Revolving Credit Commitment. |
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“Incremental Revolving Credit Commitment” shall mean the commitment of any Lender, established
pursuant to the Credit Agreement, to make available certain revolving credit loans to one or more
Borrowers. |
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“Incremental Term Lender” shall mean a Lender with an Incremental Term Loan Commitment. |
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“Incremental Term Loan Commitment” shall mean the commitment of any Lender, established pursuant to
the Credit Agreement, to make available certain term loans to one or more Borrowers. |
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“Indenture Trustee” shall mean The Bank of New York Mellon, in its capacity as indenture trustee
under the 2009 Senior Secured Notes Indenture and any successor appointed as indenture trustee
under the 2009 Senior Secured Notes Indenture. |
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“Intercreditor Arrangements” means the First Lien Intercreditor Agreement and the Existing
Intercreditor Agreement, in each case as amended, novated, supplemented, restated, or modified from
time to time. |
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“Issuing Bank” means Credit Suisse AG or any other Lender or any affiliate of Credit Suisse AG or
any other Lender that issues letters of credit or bank guarantees under the Credit Agreement. |
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“Lenders” shall mean the Original Lenders and any entity which may become a lender under the Credit
Agreement in the future and “Lender” means any of them. |
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“Loan Documents” shall mean the Credit Agreement, the Amendment No.1 and Joinder Agreement, the
Second Amended and Restated Credit Agreement and the Amendment No. 6 and Incremental Term Loan
Assumption Agreement, any borrowing subsidiary agreement and/or guarantor joinder agreement
relating to the Credit Agreement, any letter of credit or bank guarantee relating to the Credit
Agreement, any security documents relating to the Credit Agreement, any hedging agreement entered
into by a Hedge Counterparty and a Grantor, each Incremental Assumption Agreement, the
Intercreditor Arrangements, each Promissory Note, any agreement between a Grantor and a Cash
Management Bank relating to Cash Management Services, each Local Facility Agreement and any other
document that may be entered into pursuant to any of the foregoing in relation to the Credit
Agreement. |
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“Loan Parties” shall mean the Borrowers, the Current Guarantors and any entity which may accede to
the Credit Agreement as additional guarantor and a “Loan Party” means any of them. |
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“Local Facilities” means working capital facilities provided to a Grantor (other than Beverage
Packaging Holdings (Luxembourg) I S.A., Beverage Packaging Holdings (Luxembourg) II S.A. Beverage
Packaging Holdings (Luxembourg) III S.à r.l. and the Borrowers) by a Local Facility Provider and
“Local Facility” means any of them, |
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“Local Facility Agreements” shall mean any agreement under which a Local Facility is made
available. |
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“Local Facility Provider” means HSBC Trinkaus & Burkhardt AG, Deutsche Bank AG, Commerzbank
Aktiengesellschaft and Hong Kong and Shanghai Banking Corporation Ltd., Thailand, Bank of America,
N.A., Canada Branch, FIA Card Services, N.A., Citibank N.A., Citibank (China) Co., Ltd., Banco
Nacional de Mexico, S.A., Integrante del Grupo Financiero Banamex, Bank of America, N.A., provided
in each case it has become a party to, or by execution of an additional bank secured party
acknowledgment has agreed to be bound by the terms of, the First Lien Intercreditor Agreement in
its capacity as local facility provider. |
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“New Secured Notes Documents” shall mean the New Secured Notes Indenture, the New Secured
Notes Guarantees, the New Secured Notes, the Intercreditor Arrangements, any supplemental
indenture, any security document relating to the New Secured Notes and/or the New Secured Notes
Indenture and any other document that may be entered into pursuant to any of the foregoing. |
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“New Secured Notes Guarantees” shall mean the guarantees of the obligations of the August 2011
Escrow Issuers and/or of the August 2011 Ultimate Issuers under the New Secured Notes and the New
Secured Notes Indenture by the New Secured Notes Guarantors. |
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“New Secured Notes Guarantors” means the Current New Secured Notes Guarantors and any entity which
may accede to the New Secured Notes Indenture as additional guarantor. |
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“New Secured Notes Holders” shall mean the holders from time to time of the New Secured Notes. |
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“New Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its capacity as
indenture trustee under the New Secured Notes Indenture and any successor appointed as indenture
trustee under the New Secured Notes Indenture. |
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“Obligations” shall mean all present and future obligations and liabilities (whether actual or
contingent and whether owed jointly or severally or in any other capacity whatsoever) of each
Grantor to the Pledgee under each or any of the Credit Documents (including, but not limited to,
the Parallel Obligations), including with respect to all costs, charges and expenses incurred by
the Pledgee in connection with the protection, preservation or enforcement of its rights under the
Credit Documents or any other document evidencing or securing any such liabilities. The Obligations
shall further include any obligation based on unjust enrichment (ungerechtfertigte Bereicherung) or
tort (Delikt). |
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“October 2010 Secured Notes Documents” shall mean the October 2010 Secured Notes Indenture, the
October 2010 Secured Notes Guarantees, the October 2010 Secured Notes, the Intercreditor
Arrangements, any supplemental indenture relating to the October 2010 Secured Notes Indenture, any
security document relating to the October 2010 Secured Notes and/or the October 2010 Secured Notes
Indenture and any other document that may be entered into pursuant to any of the foregoing. |
| |
| |
|
“October 2010 Secured Notes Guarantees” shall mean the guarantees of the obligations of the Issuers
under the October 2010 Secured Notes and the October 2010 Secured Notes Indenture by the October
2010 Secured Notes Guarantors. |
| |
| |
|
“October 2010 Secured Notes Guarantors” means the Current October 2010 Secured Notes Guarantors and
any entity which may accede to the October 2010 Secured Notes Indenture as additional guarantor. |
- 10 -
| |
|
“October 2010 Secured Notes Holders” shall mean the holders from time to time of the October 2010
Secured Notes. |
| |
| |
|
“October 2010 Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its
capacity as indenture trustee under the October 2010 Secured Notes Indenture and any successor
appointed as indenture trustee under the October
2010 Secured Notes Indenture. |
| |
| |
|
“Parallel Obligations” means the independent obligations of any of the Grantors arising pursuant to
the First Lien Intercreditor Agreement to pay to the Collateral Agent sums equal to the sums owed
by such Grantor to the other Secured Parties (or any of them) under the Credit Documents. |
| |
| |
|
“Pledge” and “Pledges” have the meanings given to such terms in Clause 3.1. |
| |
| |
|
“Principal Finance Documents” means the Credit Agreement, the 2009 Senior Secured Notes Indenture,
the October 2010 Secured Notes Indenture, the February
2011 Secured Notes Indenture, the New Secured Notes Indenture and the First Lien
Intercreditor Agreement. |
| |
| |
|
“Promissory Note” shall mean any promissory note executed and delivered by a Borrower upon the
request of a Lender evidencing the amount of principal owed by such Borrower to such Lender under
the Credit Agreement. |
| |
| |
|
“Secured Parties” shall mean the Lenders (including in their capacity as issuing bank(s), and/or
Hedge Counterparties under the Credit Agreement), the Hedge Counterparties, the Administrative
Agent, any Issuing Bank, the beneficiaries of each indemnification obligation undertaken by any
Grantor under any Credit Document, the 2009 Senior Secured Notes Holders, the October 2010 Secured
Notes Holders, the February 2011 Secured Notes Holders and the New Secured Notes Holders, the
Indenture Trustee, the October 2010 Secured Notes Indenture Trustee, the February 2011 Secured
Notes Indenture Trustee and the New Secured Notes Indenture Trustee, the Collateral Agent, the
Local Facility Providers and the Cash Management Banks. |
| |
| |
|
“2009 Senior Secured Notes Documents” shall mean the 2009 Senior Secured Notes Indenture, the 2009
Senior Secured Notes Guarantees, the 2009 Senior Secured Notes, the Intercreditor Arrangements, any
supplemental indenture, any security document relating to the 2009 Senior Secured Notes and/or the
2009 Senior Secured Notes Indenture and any other document that may be entered into pursuant to any
of the foregoing. |
| |
| |
|
“2009 Senior Secured Notes Guarantees” shall mean the guarantees of the obligations of the Issuers
under the 2009 Senior Secured Notes and the 2009 Senior Secured Notes Indenture by the 2009 Senior
Secured Notes Guarantors. |
| |
| |
|
“2009 Senior Secured Notes Guarantors” means the Current 2009 Senior Secured Notes Guarantors and
any entity which may accede to the 2009 Senior Secured Notes Indenture as additional guarantor. |
- 11 -
| |
|
“2009 Senior Secured Notes Holders” shall mean the holders from time to time of the 2009
Senior Secured Notes. |
| |
| |
|
“Shares” means the Existing Shares and the Future Shares. |
| |
| 1.2 |
|
Construction |
| |
| |
|
In this Agreement any reference to a “Clause”, a “sub-Clause” or a “Schedule” shall,
subject to any contrary indication, be construed as a reference to a Clause, a sub-Clause
or a Schedule hereof. |
| |
| 1.3 |
|
This Agreement is made in the English language. For the avoidance of doubt, the English language version of this Agreement shall prevail over any translation of this Agreement.
However, where a German translation of a word or phrase appears in the text of this Agreement, the German translation of such word or phrase shall prevail. |
| |
| 2. |
|
PLEDGED SHARES |
| |
| 2.1 |
|
The Company has a nominal share capital (Stammkapital) of DM 17,000,000 (in words: Deutsche
Mark seventeen million) which consists of one share (the “Existing Shares”). |
| |
| 2.2 |
|
The Pledgor is the owner of the Existing Shares and is registered as such in the shareholders
list (Gesellschafterliste) of the Company as filed (aufgenommen) with the commercial register
(Handelsregister), a copy of which is attached as Schedule 1 Part 4 (Copy of Shareholders
List). |
| |
| 3. |
|
PLEDGE |
| |
| 3.1 |
|
The Pledgor hereby pledges to the Pledgee the Shares together with all ancillary rights and
claims associated with the Shares as more particularly specified in Clause 4 (the “Pledge”
and/or the “Pledges”). |
| |
| 3.2 |
|
The Pledgee hereby accepts the Pledge. |
| |
| 3.3 |
|
The Pledge is in addition, and without prejudice, to any other security the Secured Parties
may now or hereafter hold in respect of the Obligations. |
| |
| 4. |
|
SCOPE OF THE PLEDGES |
| |
| 4.1 |
|
The Pledge constituted by this Agreement
includes: |
| |
(a) |
|
the present and future rights to
receive: |
| |
(i) |
|
dividends attributable to the Shares, if any; and |
| |
| |
(ii) |
|
liquidation proceeds, redemption proceeds
(Einziehungsentgelt), repaid
capital in case of a capital decrease, any compensation in case of
termination (Kündigung) and/or withdrawal (Austritt) of a shareholder |
- 12 -
| |
|
|
of the Company, the surplus in case of surrender (Preisgabe), any
repayment claim for any additional capital contributions (Nachschüsse) and
all other pecuniary claims associated with the Shares; |
| |
(b) |
|
the right to subscribe for newly issued shares; and |
| |
| |
(c) |
|
all other rights and benefits attributable to the Shares capable of being
pledged (verpfändbar) (including without limitation all present and future pecuniary
claims of the Pledgor against the Company arising under or in connection with any
domination and/or profit transfer agreement (Beherrschungs- und/oder
Gewinnabführungsvertrag) or partial profit transfer agreement
(Teilgewinnabführungsvertrag) which may be entered into between the Pledgor and the
Company). |
| 4.2 |
|
Notwithstanding that the items set out in Clause 4.1 above are pledged hereunder, the Pledgor
shall be entitled to receive and retain the items set out in Clause 4.1 in respect of, and
otherwise deal (in accordance with the agreements between the parties) with all items
described in Clause 4.1 hereof in respect of the Shares at all times other than any time the
Pledgee is entitled to enforce the Pledge constituted hereunder. |
| |
| 4.3 |
|
On the date and during the period in which the Pledgee is entitled, in accordance with Clause
7 (Enforcement of the Pledges) hereof, to enforce the Pledge (or any part thereof): |
| |
(a) |
|
all dividends paid or payable and any other property received, receivable or
otherwise distributed in respect of or in exchange for the Shares; |
| |
| |
(b) |
|
all dividends or other distributions or payments paid or payable in respect
of the Shares in connection with the partial or total liquidation or dissolution of
the Company or in connection with the reduction of the amount of the registered share
capital of the Company; and |
| |
| |
(c) |
|
all cash paid, payable or otherwise distributed in respect of the principal
of, or in redemption of, or in exchange for the Shares, |
| |
|
shall be forthwith delivered to the Pledgee and held as security for and on behalf of the
Secured Parties. If such proceeds or property are received by the Pledgor, they shall be
received as trustee for the benefit of the Pledgee and shall be segregated from other
property or funds of the Pledgor and shall be forthwith delivered to the Pledgee as
security in the form so received (with any necessary endorsement). |
| |
| 5. |
|
PURPOSE OF THE PLEDGES |
| |
| |
|
The Pledge hereunder is constituted in order to secure the prompt and complete satisfaction
of any and all Obligations. The Pledge shall also cover any future extension of the
Obligations and the Pledgor herewith expressly agrees that the provisions of Section 1210
para 1 sentence 2 of the German Civil Code (Bürgerliches Gesetzbuch) shall not apply to
this Agreement. |
- 13 -
| 6. |
|
EXERCISE OF MEMBERSHIP RIGHTS |
| |
| |
|
The membership rights, including the voting rights, attached to the Shares remain
with the Pledgor. The Pledgor may exercise its membership rights in any manner which does
not adversely affect the validity and enforceability of the Pledge, the existence of all or
part of the Shares or cause an Event of Default to occur. The Pledgor undertakes, unless
otherwise agreed between the parties, that no resolutions will be passed which would, if
passed, constitute a breach of its obligations under Clause 10 or any other obligation
under this Agreement. |
| |
| 7. |
|
ENFORCEMENT OF THE PLEDGES |
| |
| 7.1 |
|
If (i) an Enforcement Event has occurred and is continuing and (ii) the requirements set
forth in Sections 1273 para 2, 1204 et seq. of the German Civil Code with regard to the
enforcement of the Pledge are met (Pfandreife), in particular, if any of the Obligations have
become due and payable, then in order to enforce the Pledge, the Pledgee (acting on the
instructions of the Secured Parties) may at any time thereafter avail itself of all rights and
remedies that a pledgee has against a pledgor under the laws of the Federal Republic of
Germany. |
| |
| 7.2 |
|
Notwithstanding Section 1277 of the German Civil Code, the Pledgee is entitled to exercise
its rights without obtaining enforceable judgment or other instrument (vollstreckbarer Titel).
The Pledgee shall be entitled to have the Pledge enforced in any manner allowed under the laws
of the Federal Republic of Germany, in particular have the Pledge sold (including at public
auction). |
| |
| 7.3 |
|
The Pledgor hereby expressly agrees that 5 (five) business days’ prior written notice to the
Pledgor of the place and time of any such sale shall be sufficient and the Pledgee shall not
be obliged to deliver any further notices (including, but not limited to the notices set out
under Section 1234 of the German Civil Code) to the Pledgor prior to such sale. The sale may
take place at any place in the Federal Republic of Germany designated by the Pledgee. |
| |
| 7.4 |
|
If the Pledgee (acting on the instructions of the Secured Parties) should seek to enforce the
Pledge under sub-Clause 7.1, the Pledgor shall, at its own expense, render forthwith all
necessary assistance in order to facilitate the prompt sale of the Shares or any part thereof
and/or the exercise by the Pledgee of any other right it may have as Pledgee. |
| |
| 7.5 |
|
Whilst the requirements for enforcement under sub-Clause 7.1 are continuing, all subsequent
dividend payments attributable to the Shares and all payments based on similar ancillary
rights attributed to the Shares may be applied by the Pledgee in satisfaction in whole or in
part of the Obligations or treated as additional collateral. |
| |
| 7.6 |
|
Even if the requirements for enforcement referred to under sub-Clause 7.1 above are met, the
Pledgee shall not, whether as proxy or otherwise, be entitled to exercise the voting rights
attached to the Shares. However, the Pledgor shall, during the continuation of an event which
allows the Pledgee to enforce the Pledge, have the |
- 14 -
| |
|
obligations and the Pledgee shall have the
rights set forth in sub-Clause 10.6 below regardless of which resolutions are intended to be
adopted. |
| |
| 7.7 |
|
The Pledgee may, in its sole discretion, determine which of several security interests, if
applicable, shall be used to satisfy the Obligations. The Pledgor hereby expressly waives its
right pursuant to Section 1230 sentence 2 of the German Civil Code to limit the realisation of
the Pledge and pledges over the shares or partnership interests in one or more other companies
to such number of pledges as are necessary to satisfy the Obligations and agrees further that
the Pledgee may decide to enforce the Pledge over the shares in the Company individually in
separate proceedings or together with pledges over shares or partnership interests in one or
more other companies at one single proceeding (Gesamtverwertung). |
| |
| 7.8 |
|
The Pledgor hereby expressly waives all defences of revocation (Einrede der Anfechtbarkeit)
and set-off (Einrede der Aufrechenbarkeit) pursuant to Sections 770, 1211 of the German Civil
Code. |
| |
| 7.9 |
|
The Pledgor hereby expressly waives its defences based on defences any Grantor might have
against any of the Obligations (Einreden des Hauptschuldners) pursuant to Section 1211 para 1
sentence 1 alternative 1 of the German Civil Code. |
| |
| 7.10 |
|
If the Pledge is enforced or if the Pledgor has discharged any of the Obligations (or any
part of them), Section 1225 of the German Civil Code (legal subrogation of claims to a pledgor
— Forderungsübergang auf den Verpfänder) shall not apply and no rights of the Pledgee shall
pass to the Pledgor by subrogation or otherwise. Further, the Pledgor shall at no time before,
on or after an enforcement of the Pledge and as a result of the Pledgor entering into this
Agreement, be entitled to demand indemnification or compensation from the Company or the
Company’s affiliates or to assign any of these claims. |
| |
| 8. |
|
LIMITATIONS ON ENFORCEMENT |
| |
| 8.1 |
|
The Pledgee shall be entitled to apply proceeds of an enforcement of the Pledge
towards satisfaction of the Obligations without limitation in respect of: |
| |
(a) |
|
all and any amounts which are owed under the Credit Documents by the Pledgor
itself, the Company or by any of their subsidiaries; and |
| |
| |
(b) |
|
all and any amounts which correspond to funds that have been borrowed or
otherwise raised under the Credit Documents, in each case to the extent borrowed,
on-lent or otherwise passed on to, or issued for the benefit of, the Pledgor, the
Company or any of their subsidiaries, or for the benefit of any of their creditors and
in each case not repaid and outstanding from time to time |
| |
(in aggregate, the “Unlimited Enforcement Amount”). |
| |
| 8.2 |
|
Besides an application of proceeds from an enforcement of the Pledge towards
satisfaction of the Obligations in respect of the Unlimited Enforcement Amount |
- 15 -
| |
|
pursuant to Clause 8.1 above, the Pledgee shall not be entitled to apply proceeds of an
enforcement of the Pledge towards satisfaction of the Obligations but shall return to the
Pledgor proceeds of an enforcement of the Pledge if and to the extent that: |
| |
(a) |
|
the Pledge secures the obligations of a Grantor which is (x) a shareholder of
the Pledgor or (y) an affiliated company (verbundenes Unternehmen) within the meaning
of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of
the Pledgor (other than the Pledgor and its subsidiaries); and |
| |
| |
(b) |
|
the application of proceeds of an enforcement of the Pledge towards the
Obligations would have the effect of (x) reducing the Pledge’s net assets
(Reinvermögen) (the “Net Assets”) to an amount of less than its stated share capital
(Stammkapital) or, if the Net Assets are already an amount of less than its stated
share capital, of causing such amount to be further reduced and (y) would thereby
affect the assets required for the obligatory preservation of the Pledgor’s stated
share capital (Stammkapital) according to section 30, 31 German Limited Liability
Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided
that the amount of the stated share capital to be taken into consideration shall be the
amount registered in the commercial register at the date hereof, and any increase of
the stated share capital registered after the date of this Agreement shall only be
taken into account if such increase has been effected with the prior written consent of
the Collateral Agent. |
| 8.3 |
|
The Net Assets shall be calculated as an amount equal to the sum of the values of the
Pledgor’s assets (consisting of all assets which correspond to the items set forth in section
266 sub-section(2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the
aggregate amount of the Pledgor’s liabilities (consisting of all liabilities and liability
reserves which correspond to the items set forth in section 266 sub-section (3) B, C and D of
the German Commercial Code), save that: |
| |
(a) |
|
any asset that is shown in the balance sheet with a book value (Buchwert) that
is significantly lower than the market value of such asset and that is not necessary
for the Pledgor’s business (nicht betriebsnotwendig) shall be taken into account with
its market value; |
| |
| |
(b) |
|
obligations under loans provided to the Pledgor by any member of the Group or
any other affiliated company shall not be taken into account as liabilities as far as
such loans are subordinated by law or by contract at least to the claims of the
unsubordinated creditors of the Pledgor; and |
| |
| |
(c) |
|
obligations under loans or other contractual liabilities incurred by the
Pledgor in violation of the provisions of the Credit Documents shall not be taken into
account as liabilities. |
| |
|
The Net Assets shall be determined in accordance with the generally accepted accounting
principles applicable from time to time in Germany (Grundsätze |
- 16 -
| |
|
ordnungsmäβiger Buchführung) and be based on the same principles that were applied by the
Pledgor in the preparation of its most recent annual balance sheet (Jahresbilanz). |
| |
| |
|
It being understood that the assets of the Pledgor will be assessed at liquidation values
(Liquidationswerte) if the managing directors of the Pledgor, at the time they prepare the
Management Determination (as defined below) are, due to factual or legal circumstances at
that time, in their opinion not able to make a positive prognosis as to whether the
business of the Pledgor can carry on as a going concern (positive Fortführungsprognose), in
particular when the Pledge is enforced. |
| |
| 8.4 |
|
The limitations set out in Clause 8.2 above shall only apply if and to the extent that: |
| |
(a) |
|
without undue delay, but not later than within 5 business days, after receipt
of a notification by the Collateral Agent of its intention to enforce the Pledge (the
“Notice”), the Pledgor has confirmed in writing to the Collateral Agent (x) to what
extent such Pledge is up-stream or cross-stream security as described in Clause 8.2
above and (y) which amount of proceeds of an enforcement of the Pledge attributable to
the enforcement of such up-stream or cross-stream security cannot be applied towards
satisfaction of the Obligations but would have to be returned to the Pledgor as it
would otherwise cause the Net Assets of the Pledgor to fall below its stated share
capital (taking into account the adjustments set out in Clause 8.3 above) and such
confirmation is supported by evidence reasonably satisfactory to the Collateral Agent
(the “Management Determination”) and the Collateral Agent has not contested this and
argued that no or a lesser amount would be necessary to maintain the Pledgor’s stated
share capital; or |
| |
| |
(b) |
|
within 20 business days from the date the Collateral Agent has contested the
Management Determination, the Collateral Agent receives from the Pledgor an up to date
balance sheet prepared by a firm of auditors of international standard and reputation
(the “Determining Auditors”) which shows the value of the Pledgor’s Net Assets (the
“Balance Sheet”). The Balance Sheet shall be prepared in accordance with the
principles set out in Clause 8.3 above, provided that the final sentence of Clause 8.3
above shall not apply unless the Determining Auditors have in an independent
assessment determined that the assets of the Pledgor should be evaluated at
liquidation values (Liquidationswerte) in accordance with the generally accepted
accounting principles applicable from time to time in Germany (Grundsätze
ordnungsmäβiger Buchführung) and shall contain further information (in reasonable
detail) relating to items to be adjusted pursuant to Clause 8.3 above. If the Pledgor
fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee
shall be entitled to apply the proceeds of an enforcement of the Pledge towards
satisfaction of the Obligations irrespective of the limitations set out in Clause 8.2
above. |
| 8.5 |
|
If the Pledgee disagrees with the Balance Sheet it shall be entitled to apply proceeds
of an enforcement of the Pledge in satisfaction of the Obligations up to an amount |
- 17 -
| |
|
which, according to the Balance Sheet, can be applied in satisfaction of the Obligations in
compliance with the limitations set out in Clause 8.2 above. In relation to any additional
amounts for which the Pledgor is liable under this Agreement, the Pledgee shall be entitled
to further pursue its claims (if any) and the Pledgor shall be entitled to prove that this
amount is necessary for maintaining its stated share capital (calculated as of the date the
Pledgee has given notice that it intends to enforce the security created under this
Agreement). |
| |
| 8.6 |
|
No reduction of the amount enforceable or applicable towards satisfaction of the Obligations
under this Clause 8 will prejudice the right of the Pledgee to continue enforcing the Pledge
(subject always to the operation of the limitations set out above at the time of such
enforcement) until full satisfaction to the claims secured. |
| |
| 9. |
|
APPROVAL AND CONFIRMATION |
| |
| |
|
The Pledgor as the sole shareholder of the Company hereby approves the Pledge over the
Shares and over any and all ancillary rights and claims associated with the Shares (as more
particularly specified in Clause 4) and pursuant to the articles of association of the
Company the Pledge is not subject to any approval of the Company. |
| |
| 10. |
|
UNDERTAKINGS OF THE PLEDGOR |
| |
| |
|
Unless otherwise agreed between the parties, during the term of this Agreement, the Pledgor
undertakes to the Pledgee: |
| |
| 10.1 |
|
to promptly effect any contributions in cash (Bareinlage) or kind (Sacheinlage) to be made in
respect of the Shares; |
| |
| 10.2 |
|
to inform the Pledgee promptly of any change made in the registered share capital of the
Company, or any changes made to the articles of association of the Company which would
materially adversely affect the security interest of the Pledgee and in each such case to
promptly deliver to the Pledgee a copy of the updated shareholders list (Gesellschafterliste)
and a copy of the amended articles of association (Satzung) both as filed (aufgenommen) with
the commercial register (Handelsregister); |
| |
| 10.3 |
|
to promptly notify the Pledgee, by notification in writing of the registration of an
objection (Widerspruch) in relation to the Shares of the Pledgor in the shareholders list
(Gesellschafterliste) as filed (aufgenommen) with the commercial register (Handelsregister). |
| |
| 10.4 |
|
to promptly notify the Pledgee, by notification in writing, of any attachment (Pfändung) in
respect of any of the Shares or any ancillary rights set out in sub-Clause 4.1 such notice to
be accompanied by any documents the Pledgee might need to defend itself against any claim of a
third party. In particular, the Pledgor shall promptly forward to the Pledgee a copy of the
attachment order (Pfändungsbeschluss), any transfer order (Überweisungsbeschluss) and all
other documents necessary for a defence against the attachment; |
- 18 -
| 10.5 |
|
in the event of any increase in the capital of the Company, not to allow, without the prior
written consent of the Pledgee (such consent not to be unreasonably withheld), any party other
than himself to subscribe for any Future Shares, and not to defeat, impair or circumvent in
any way the rights of the Pledgee created hereunder; |
| |
| 10.6 |
|
to promptly inform the Pledgee, by notification in writing, of all matters concerning the
Company of which the Pledgor is aware which would materially adversely affect the security
interest of the Pledgee. In particular, the Pledgor shall notify the Pledgee, by notification
in writing, forthwith of any shareholders’ meeting at which a shareholders’ resolution is
intended to be adopted which would have a materially adverse effect upon the Pledge. The
Pledgor shall allow, following the occurrence and during the continuance of any of the
circumstances which permit the Pledgee to enforce the Pledge constituted hereunder in
accordance with Clause 7, the Pledgee or, as the case may be, its proxy or any other person
designated by the Pledgee, to participate in all such shareholders’ meetings of the Company as
attendants without power to vote. Subject to the provision contained in sub-Clause 14.1, the
Pledgee’s right to attend a shareholders’ meeting shall lapse immediately upon complete
satisfaction and discharge of the Obligations; |
| |
| 10.7 |
|
to refrain from any acts or omissions, subject to the performance of its rights and duties
under the Existing Share Pledge Agreements, the purpose or effect of which is or would be the
dilution of the value of the Shares or the Shares ceasing to exist, unless permitted by the
Pledgee (acting reasonably); |
| |
| 10.8 |
|
not to amend the articles of association of the Company to the extent that such amendment
would materially adversely affect the security interest of the Pledgee created hereunder
without the prior written consent of the Pledgee (such consent not to be unreasonably
withheld); |
| |
| 10.9 |
|
insofar as additional declarations or actions are necessary for the creation of the Pledge in
favour of the Pledgee and at the Pledgee’s reasonable request (acting on the reasonable
instructions of the Secured Parties), to make such declarations and undertake such actions at
its own costs and expenses; and |
| |
| 10.10 |
|
for the avoidance of doubt, notification and consent requirements as set out in sub-Clauses
10.1 through 10.8 of this Agreement are deemed to be satisfied if and to the extent such
notification or consent has been delivered under the Existing Share Pledge Agreements provided
that such notification to the Pledgee or consent of the Pledgee makes reference to this
Agreement and each Existing Share Pledge Agreement. |
| |
| 11. |
|
DELEGATION |
| |
| |
|
The Pledgee shall have full power to delegate (either generally or specifically) the powers,
authorities and discretions conferred on it by this Agreement on such terms and conditions
as it shall see fit. The Pledgee shall only remain liable for diligently selecting and
providing initial instructions to such delegate. |
- 19 -
| 12. |
|
INDEMNITY |
| |
| |
|
The Pledgor shall reimburse the Pledgee (which, for purposes of this Clause 12, shall
include its officers, directors, employees, agents and counsel) upon request for all
properly incurred, reasonable and documented out-of-pocket expenses incurred or made by it
in connection with the Credit Documents. Such expenses shall include the properly incurred,
reasonable and documented compensation and expenses, disbursements and advances of the
Pledgee’s agents, counsel, accountants and experts. The Pledgor shall indemnify the Pledgee
against any and all loss, liability, claim, taxes, costs, damage or expense (including
properly incurred, reasonable and documented attorneys’ fees and expenses) incurred by or in
connection with the acceptance or administration of the Pledgee’s performance of its duties
under this Agreement and under German law, including the costs and expenses of enforcing
this Agreement and defending itself against or investigating any claim. The obligation to
pay such amounts shall survive the payment in full or defeasance of the Obligations or the
removal or resignation of the Pledgee. The Pledgee shall notify Reynolds Group Holdings
Limited of any claim for which it may seek indemnity promptly upon obtaining actual
knowledge thereof; provided that any failure so to notify Reynolds Group Holdings Limited
shall not relieve the Pledgor of its indemnity obligations hereunder. The Pledgor may defend
itself against such claim and the Pledgee shall provide reasonable cooperation in such
defense. The Pledgee may have separate counsel and the Pledgor shall pay the properly
incurred, reasonable and documented fees and expenses of such counsel. The Pledgor need not
reimburse any expense or indemnify against any loss, liability or expense incurred by the
Pledgee through the Pledgee’s own wilful misconduct (Vorsatz) or gross negligence (grobe
Fahrlässigkeit). No provision of this Agreement shall require the Pledgee to expend or risk
its own funds or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if repayment of such
funds or adequate indemnity against such risk or liability is not assured to its
satisfaction. |
| |
| 13. |
|
NO LIABILITY |
| |
| |
|
Except as otherwise agreed between the parties to this Agreement, none of the Pledgee, its
nominee(s) or agent(s) or delegate(s) shall be liable by reason of (a) taking any action
permitted by this Agreement or (b) any neglect or default in connection with the assets and
rights subject to the security interest created hereunder, save in respect of any loss or
damage which is suffered as a result of wilful misconduct (Vorsatz) or gross negligence
(grobe Fahrlässigkeit) by the Pledgee, its nominee(s) or agent(s) or delegate(s), or (c) the
enforcement or realisation of all or any part of the security interest created hereunder. |
| |
| 14. |
|
DURATION AND INDEPENDENCE |
| |
| 14.1 |
|
This Agreement shall remain in full force and effect until complete satisfaction of the
Obligations. The Pledge shall not cease to exist, if any Grantor under the Credit Documents
has only temporarily discharged the Obligations. |
- 20 -
| 14.2 |
|
This Agreement shall create a continuing security and no change, amendment, or supplement
whatsoever in the Credit Documents or in any document or agreement related to any of the
Credit Documents shall affect the validity or the scope of this Agreement nor the obligations
which are imposed on the Pledgor pursuant to it. |
| |
| 14.3 |
|
This Agreement is independent from any other security or guarantee which may have been or
will be given to the Collateral Agent. None of such other security shall prejudice, or shall
be prejudiced by, or shall be merged in any way with this Agreement. |
| |
| 14.4 |
|
Waiving Section 418 of the German Civil Code, the Pledgor hereby agrees that the security
created hereunder shall not be affected by any transfer or assumption of the Obligations to,
or by, any third party. |
| |
| 15. |
|
RELEASE OF PLEDGE (PFANDFREIGABE) |
| |
| 15.1 |
|
Upon complete and irrevocable satisfaction of the Obligations, the Collateral Agent (as
instructed in accordance with the First Lien Intercreditor Agreement) will as soon as
reasonably practicable declare in writing the release of the Pledge (Pfandfreigabe) to the
Pledgor as a matter of record. For the avoidance of doubt, the parties are aware that upon
full and complete satisfaction of the Obligations the Pledge, due to its accessory nature
(Akzessorietät) ceases to exist by operation of German mandatory law. |
| |
| 15.2 |
|
At any time when the total value of the aggregate security granted by the Pledgor and any of
the other Grantors to secure the Obligations (the “Security”), which can be expected to be
realised in the event of an enforcement of the Security (realisierbarer Wert), exceeds 110% of
the Obligations (the “Limit”) not only temporarily, the Pledgee shall on demand of the Pledgor
release such part of the Security (Sicherheitenfreigabe) as the Pledgee (as instructed in
accordance with the First Lien Intercreditor Agreement) may in its reasonable discretion
determine so as to reduce the realisable value of the Security to the Limit. |
| |
| 15.3 |
|
The parties acknowledge that the Pledgee (as instructed in accordance with the First Lien
Intercreditor Agreement) will declare in writing the release of the Pledge (Pfandfreigabe) to
the Pledgor as soon as reasonably practicable in accordance with, and to the extent required
by, the Intercreditor Arrangements. |
| |
| 16. |
|
PARTIAL INVALIDITY; WAIVER |
| |
| 16.1 |
|
If at any time, any one or more of the provisions hereof is or becomes invalid, illegal or
unenforceable in any respect under the law of any jurisdiction, such provision shall as to
such jurisdiction, be ineffective to the extent necessary without affecting or impairing the
validity, legality and enforceability of the remaining provisions hereof or of such provisions
in any other jurisdiction. The invalid, illegal or unenforceable provision shall be deemed to
be replaced with such valid, legal or enforceable provision which comes as close as possible
to the original intent of the parties and the invalid, illegal or unenforceable provision.
Should a gap (Regelungslücke) become |
- 21 -
| |
|
evident in this Agreement, such gap shall, without
affecting or impairing the validity, legality and enforceability of the remaining provisions
hereof, be deemed to be filled in with such provision which comes as close as possible to the
original intent of the parties. |
| 16.2 |
|
No failure to exercise, nor any delay in exercising, on the part of the Pledgee, any right or
remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise
of any right or remedy prevent any further or other exercise thereof or the exercise of any
other right or remedy. The rights and remedies provided hereunder are cumulative and not
exclusive of any rights or remedies provided by law. |
| |
| 16.3 |
|
In particular, the Pledge shall not be affected and shall in any event extend to any and all shares in the Company even if the number or nominal value of the Existing Shares or the
aggregate share capital of the Company as stated in Clause 2 are inaccurate or deviate from
the actual facts. |
| |
| 17. |
|
AMENDMENTS |
| |
| |
|
Changes and amendments to this Agreement including this Clause 17 shall be made in writing
except where notarisation is required. |
| |
| 18. |
|
NOTICES AND THEIR LANGUAGE |
| |
| 18.1 |
|
All notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail or sent
by fax, as follows: |
| |
|
|
|
|
|
| For the Pledgor: |
|
Closure Systems International Holdings
(Germany) GmbH |
|
|
|
|
|
|
|
Address:
|
|
Mainzer Straße 185,
67547 Worms, Germany |
|
|
|
|
|
|
|
Telephone:
|
|
+49 6241 400 10 |
|
|
|
|
|
|
|
Fax:
|
|
+49 6241 400 187 |
|
|
|
|
|
|
|
Attention:
|
|
Managing directors
(Geschäftsführung) |
- 22 -
| |
|
|
|
|
|
| for the Pledgor with a copy to: |
|
|
|
|
Address:
|
|
c/o Rank Group Limited |
|
|
|
|
Level 9 |
|
|
|
|
148 Quay Street |
|
|
|
|
PO Box 3515 |
|
|
|
|
Auckland 1140 |
|
|
|
|
New Zealand |
|
|
|
|
|
|
|
Telephone:
|
|
+649 3666 259 |
|
|
|
|
|
|
|
Fax:
|
|
+649 3666 263 |
|
|
|
|
|
|
|
Attention:
|
|
Helen Golding |
|
|
|
|
|
For the Pledgee:
|
|
The Bank of
New York
Mellon |
|
|
|
|
|
|
|
|
|
Address: |
|
101 Barclay Street, 4E |
|
|
|
|
New York, N.Y. 10286 |
|
|
|
|
The United States of |
|
|
|
|
America |
|
|
|
|
|
|
|
Telephone:
|
|
+212 298 1528 |
|
|
|
|
|
|
|
Fax:
|
|
+212 815 5366 |
|
|
|
|
|
|
|
Attention:
|
|
International Corporate Trust |
| 18.2 |
|
Any party hereto may change its address or fax number for notices and other communications
hereunder by notice to the other parties hereto. As agreed to in writing by the parties,
notices and other communications hereunder may also be delivered by e-mail to the e-mail
address of a representative of the applicable party to this Agreement provided from time to
time by such party. |
- 23 -
| 18.3 |
|
All notices and other communications given to any party in connection with this Agreement in
accordance with the provisions of this Agreement shall be deemed (widerlegbare Vermutung)
received on the date sent (if a business day) and on the next business day thereafter (in all
other cases) if delivered by hand or overnight courier service or sent by fax or on the date
five business days after dispatch by certified or registered mail if mailed, in each case
delivered, sent or mailed (properly addressed) to such party as provided in this Clause 18 or
in accordance with the latest unrevoked direction from such party given in accordance with
this Clause 18. |
| |
| 18.4 |
|
Any notice or other communication under or in connection with this Agreement shall be in the
English language or, if in any other language, accompanied by a translation into English. In
the event of any conflict between the English text and the text in any other language, the
English text shall prevail. |
| |
| 19. |
|
NOTIFICATION |
| |
| 19.1 |
|
The Pledgor and the Pledgee hereby give notice of this Agreement and the Pledge of the rights
pursuant to Clause 3 and Clause 4 to the Company. |
| |
| 19.2 |
|
The Company hereby acknowledges the notification pursuant to Clause 19.1 above. |
| |
| 20. |
|
APPLICABLE LAW, JURISDICTION |
| |
| 20.1 |
|
This Agreement is governed by the laws of the Federal Republic of Germany. |
| |
| 20.2 |
|
The place of jurisdiction for any and all disputes arising under or in connection with this
Agreement shall be the courts in Frankfurt am Main. The Pledgee however, shall also be
entitled to take action against the Pledgor in any other court of competent jurisdiction.
Further, the taking of proceedings against the Pledgor in any one or more jurisdictions shall
not preclude the taking of proceedings in any other jurisdiction (whether concurrently or not)
if and to the extent permitted by applicable law. |
The Notary advised the persons appearing:
| • |
|
that a pledge is a security instrument of strictly accessory nature (which means that it
comes into legal existence only if, to the extent that, and as long as, the underlying secured
claims do in fact exist, and that the owners of the secured claims and the pledgees must be
identical); |
| |
| • |
|
that notwithstanding Section 16 para 3 German Limited Liability Companies Act (Gesetz
betreffend die Gesellschaften mit beschränkter Haftung) there is no bona fide creation,
acquisition nor ranking of a pledge of shares (in the sense that the pledgees are not
protected if the shares purported to be pledged do not exist or have been previously
encumbered for the benefit of a third party); and |
| |
| • |
|
that the English original version of this Agreement will not be acceptable for enforcement
but will have to be translated, by a certified translator, into German for
such purposes. |
- 24 -
SCHEDULE 1
PART 1
LIST OF CURRENT BORROWERS
SIG Euro Holding AG & Co. KGaA
Closure Systems International Holdings Inc.
Closure Systems International B.V.
SIG Austria Holding GmbH
Reynolds Consumer Products Holdings Inc.
Reynolds Group Holdings Inc.
Pactiv Corporation
PART 2
LIST OF CURRENT GUARANTORS, CURRENT 2009 SENIOR SECURED NOTES
GUARANTORS, CURRENT OCTOBER 2010 SECURED NOTES GUARANTORS
AND CURRENT FEBRUARY 2011 SECURED NOTES GUARANTORS
Whakatane Mill Australia Pty Limited SIG
Austria Holding GmbH
SIG Combibloc GmbH & Co KG
SIG Combibloc GmbH
SIG Beverages Brasil Ltda
SIG Combibloc do Brasil Ltda.
Closure Systems International (Brazil) Sistemas de Vedacao Ltda
CSI Latin American Holdings Corporation
Evergreen Packaging Canada Limited
- 25 -
CSI Closure Systems Manufacturing de Centro America, S.R.L.
SIG Holdings (UK) Limited
SIG Combibloc Limited
Closure Systems International (UK) Limited
Reynolds Consumer Products (UK) Limited
Reynolds Subco (UK) Limited
Kama Europe Limited
Ivex Holdings, Ltd.
SIG Euro Holding AG & Co. KGaA
SIG Beverages Germany GmbH
SIG Combibloc Holding GmbH
SIG Vietnam Beteiligungs GmbH
SIG Combibloc GmbH
SIG Combibloc Systems GmbH
SIG Combibloc Zerspanungstechnik GmbH
SIG Information Technology GmbH
SIG International Services GmbH
Closure Systems International Holdings (Germany) GmbH
Closure Systems International Deutschland GmbH
Pactiv Hamburg Holdings GmbH
Pactiv Deutschland Holdinggesellschaft mbH
Omni-Pac Ekco GmbH Verpackungsmittel
Omni-Pac GmbH Verpackungsmittel
SIG Asset Holdings Limited
Closure Systems International (Hong Kong) Limited
- 26 -
SIG Combibloc Limited
Evergreen Packaging (Hong Kong) Limited
Closure Systems International Holdings (Hungary) Kft.
CSI Hungary Gyártó és Kereskedelmi Kft. (aka CSI Hungary)
Closure Systems International Holdings (Japan) KK
Closure Systems International Japan, Limited
Beverage Packaging Holdings (Luxembourg) I S.A.
Beverage Packaging Holdings (Luxembourg) III S.à r.l.
Evergreen Packaging (Luxembourg) S.à r.l,
Reynolds Group Issuer (Luxembourg) S.A.
Bienes Industriales del Norte S.A. de C.V.
CSI en Ensenada, S. de R.L. de C.V.
CSI en Saltillo, S. de R.L. de C.V.
CSI Tecniservicio, S. de R.L. de C.V.
Grupo CSI de Mexico, S. de R.L. de C.V.
Técnicos de Tapas Innovativas S.A. de C.V.
Evergreen Packaging Mexico, S. de R.L. de C.V.
Reynolds Metals Company de Mexico, S. de R.L. de C.V.
Maxpack, S. de R.L. de C.V.
Closure Systems International B.V.
Reynolds Consumer Products International B.V.
Evergreen Packaging International B.V.
Reynolds Packaging International B.V.
Reynolds Group Holdings Limited
Whakatane Mill Limited
- 27 -
SIG Combibloc Group AG
SIG Technology AG
SIG allCap AG
SIG Combibloc (Schweiz) AG
SIG Schweizerische Industrie-Gesellschaft AG
SIG Combibloc Procurement AG
SIG Reinag AG
SIG Combibloc Ltd.
SIG Holding USA Inc.
SIG Combibloc Inc.
Closure Systems International Americas, Inc.
Closure Systems International Holdings Inc.
Closure Systems International Inc.
Reynolds Packaging Machinery Inc.
Closure Systems Mexico Holdings LLC
CSI Mexico LLC
CSI Sales & Technical Services Inc.
Bakers Choice Products, Inc.
Reynolds Consumer Products Holdings Inc.
Reynolds Consumer Products Inc.
Reynolds Foil Inc.
Reynolds Group Holdings Inc.
Reynolds Services Inc.
Blue Ridge Holding Corp.
Blue Ridge Paper Products Inc.
- 28 -
Evergreen Packaging International (US) Inc.
Evergreen Packaging Inc.
Evergreen Packaging USA Inc.
Reynolds Packaging, Inc.
Reynolds Packaging LLC
Reynolds Packaging Kama Inc.
Reynolds Food Packaging LLC
Reynolds Flexible Packaging Inc.
Southern Plastics Inc.
Ultra Pac, Inc.
BRPP, LLC
Reynolds Group Issuer Inc.
Reynolds Group Issuer LLC
Pactiv Corporation (formerly Reynolds Acquisition Corporation)
Pactiv Factoring LLC
Pactiv RSA LLC
Pactiv Retirement Administration LLC
Pactiv Germany Holdings, Inc.
Pactiv International Holdings Inc.
Pactiv Management Company LLC
PCA West Inc.
Prairie Packaging, Inc.
PWP Holdings, Inc.
PWP Industries, Inc.
Newspring Industrial Corp.
- 29 -
Pactiv Canada Inc.
The Baldwin Group Limited
J. & W. Baldwin (Holdings) Limited
Omni-Pac U.K. Limited
Conference Cup Ltd.
Dopaco Canada, Inc.
Dopaco, Inc.
Garven Incorporated
Central de Bolsas, S. de R.L. de C.V.
Servicios Industriales Jaguar, S. de C.V.
Servicio Terrestre Jaguar, S. de C.V.
Grupo Corporativo Jaguar, S. de C.V.
Pactiv México, S. de R.L. de C.V.
- 30 -
PART 3
LIST OF CURRENT NEW SECURED NOTES GUARANTORS1
Whakatane Mill Australia Pty Limited
SIG Beverages Brasil Ltda
SIG Combibloc do Brasil Ltda.
Closure Systems International (Brazil) Sistemas de Vedação Ltda
CSI Latin American Holdings Corporation
Evergreen Packaging Canada Limited
CSI Closure Systems Manufacturing de Centro America, S.R.L.
SIG Holdings (UK) Limited
SIG Combibloc Limited
Closure Systems International (UK) Limited
Reynolds Consumer Products (UK) Limited
Reynolds Subco (UK) Limited
Kama Europe Limited
Ivex Holdings, Ltd.
SIG Euro Holding AG & Co. KGaA
SIG Beverages Germany GmbH
SIG Combibloc Holding GmbH
SIG Vietnam Beteiligungs GmbH
SIG Combibloc GmbH
|
|
|
| 1 |
|
Post closing Austrian guarantors excluded. |
- 31 -
SIG Combibloc Systems GmbH
SIG Combibloc Zerspanungstechnik GmbH
SIG Information Technology GmbH
SIG International Services GmbH
Closure Systems International Holdings (Germany) GmbH
Closure Systems International Deutschland GmbH
Pactiv Hamburg Holdings GmbH
Pactiv Deutschland Holdinggesellschaft mbH
Omni-Pac Ekco GmbH Verpackungsmittel
Omni-Pac GmbH Verpackungsmittel
SIG Asset Holdings Limited
Closure Systems International (Hong Kong) Limited
SIG Combibloc Limited
Evergreen Packaging (Hong Kong) Limited
Closure Systems International Holdings (Hungary) Kft.
CSI Hungary Gyártó és Kereskedelmi Kft. (aka CSI Hungary)
Closure Systems International Holdings (Japan) KK
Closure Systems International Japan, Limited
Beverage Packaging Holdings (Luxembourg) I S.A.
Beverage Packaging Holdings (Luxembourg) III S.à r.l.
Evergreen Packaging (Luxembourg) S.à r.l.
Reynolds Group Issuer (Luxembourg) S.A.
Bienes Industriales del Norte S.A. de C.V.
CSI en Ensenada, S. de R.L. de C.V.
CSI en Saltillo, S. de R.L. de C.V.
- 32 -
CSI Tecniservicio, S. de R.L. de C.V.
Grupo CSI de Mexico, S. de R.L. de C.V.
Técnicos de Tapas Innovativas S.A. de C.V.
Evergreen Packaging Mexico, S. de R.L. de C.V.
Reynolds Metals Company de Mexico, S. de R.L. de C.V.
Maxpack, S. de R.L. de C.V.
Closure Systems International B.V.
Reynolds Consumer Products International B.V.
Evergreen Packaging International B.V.
Reynolds Packaging International B.V.
Reynolds Group Holdings Limited
Whakatane Mill Limited
SIG Combibloc Group AG
SIG Technology AG
SIG allCap AG
SIG Combibloc (Schweiz) AG
SIG Schweizerische Industrie-Gesellschaft AG
SIG Combibloc Procurement AG
SIG Reinag AG
SIG Combibloc Ltd.
SIG Holding USA Inc.
SIG Combibloc Inc.
Closure Systems International Americas, Inc.
Closure Systems International Holdings Inc.
Closure Systems International Inc.
- 33 -
Reynolds Packaging Machinery Inc.
Closure Systems Mexico Holdings LLC
CSI Mexico LLC
CSI Sales & Technical Services Inc.
Bakers Choice Products, Inc.
Reynolds Consumer Products Holdings Inc.
Reynolds Consumer Products Inc.
Reynolds Foil Inc.
Reynolds Group Holdings Inc.
Reynolds Services Inc.
Blue Ridge Holding Corp.
Blue Ridge Paper Products Inc.
Evergreen Packaging International (US) Inc.
Evergreen Packaging Inc.
Evergreen Packaging USA Inc.
Reynolds Packaging, Inc.
Reynolds Packaging LLC
Reynolds Packaging Kama Inc.
Reynolds Food Packaging LLC
Reynolds Flexible Packaging Inc.
Southern Plastics Inc.
Ultra Pac, Inc.
BRPP, LLC
Reynolds Group Issuer Inc.
Reynolds Group Issuer LLC
- 34 -
Pactiv Corporation (formerly Reynolds Acquisition Corporation)
Pactiv Factoring LLC
Pactiv RSA LLC
Pactiv Retirement Administration LLC
Pactiv Germany Holdings, Inc.
Pactiv International Holdings Inc.
Pactiv Management Company LLC
PCA West Inc.
Prairie Packaging, Inc.
PWP Holdings, Inc.
PWP Industries, Inc.
Newspring Industrial Corp.
Pactiv Canada Inc.
The Baldwin Group Limited
J. & W. Baldwin (Holdings) Limited
Omni-Pac U.K. Limited
Conference Cup Ltd.
Dopaco Canada, Inc.
Dopaco, Inc.
Garven Incorporated
Central de Bolsas, S. de R.L. de C.V.
Servicios Industriales Jaguar, S.de C.V.
Servicio Terrestre Jaguar, S. de C.V.
Grupo Corporativo Jaguar, S. de C.V.
Pactiv México, S. de R.L. de C.V.
- 35 -
PART 4
COPY OF SHAREHOLDERS LIST (GESELLSCHAFTERLISTE)
- 36 -
Amtsgericht Mainz
HRB 10054
Ausdruck aus dem Registerordner
| Dokument: 55116_HRB10054_GEL_R_2008-04-22_933851_#001.PDF
(Liste der Gesellschafter) |
Eingestellt in den Registerordner am: 09.05.2008
Abgerufen aus dem Registerordner am: 04.08.2011 11:40:09
| |
|
|
|
Mainz, den 04.08.2011
/s/ [ILLEGIBLE]
Metzler
Justizbeschäftigte
|
|
|
Dieses Schrelben 1st maschinell ersteilt und auch ohne Unterschrift wirksam.
Liste der Gesellschafter
der Alcoa Deutschland GmbH
zukünftig
Closure Systems International Deutschland GmbH
mit dem Sitz in Worms
| |
|
|
|
|
| Gesellschafter |
|
Einlage in DM |
|
Closure Systems International Holdings (Germany) GmbH
Düsseldorf zukünftig Worms |
|
|
17.000.000,– |
|
| |
Stammkapital DM |
|
|
17.000.000,– |
|
Worms, den 22.04.08
Die Geschäftsführung:
| |
|
|
|
|
| /s/ [ILLEGIBLE]
|
|
| (der einzelvertretungsberechtigte Geschäftsführer) |
|
| |
|
Appendix 7
PACTIV DEUTSCHLAND HOLDINGGESELLSCHAFT MBH
as Pledgor
OMNI-PAC-EKCO GMBH VERPACKUNGSMITTEL
OMNI-PAC GMBH VERPACKUNGSMITTEL
as Companies
THE BANK OF NEW YORK MELLON
as Collateral Agent and Pledgee
SHARE PLEDGE AGREEMENT RELATING TO THE
SHARES IN OMNI-PAC EKCO GMBH
VERPACKUNGSMITTEL AND OMNI-PAC GMBH
VERPACKUNGSMITTEL
(Geschäftsanteilsverpfändung)
The taking of this document or any certified copy of it or any document which constitutes
substitute documentation for it, or any document which includes written confirmations or references
to it, into Austria as well as printing out any e-mail communication which refers to any Credit
Document (as defined in Clause 1 of this document) in Austria or sending any e-mail communication
to which a pdf scan of this document is attached to an Austrian addressee or sending any e-mail
communication carrying an electronic or digital signature which refers to any Credit Document to an
Austrian addressee may cause the imposition of Austrian stamp duty. Accordingly, keep the original
document as well as all certified copies thereof and written and signed references to it outside of
Austria and avoid printing out any e-mail communication which refers to any Credit Document in
Austria or sending any e-mail communication to which a pdf scan of this document is attached to an
Austrian addressee or sending any e-mail communication carrying an electronic or digital signature
which refers to any Credit Document to an Austrian addressee.
Contents
| |
|
|
|
|
|
|
| Clause |
|
Page |
|
1. |
|
Definitions and Language |
|
|
5 |
|
2. |
|
Pledged Shares |
|
|
12 |
|
3. |
|
Pledge |
|
|
12 |
|
4. |
|
Scope of the Pledges |
|
|
12 |
|
5. |
|
Purpose of the Pledges |
|
|
13 |
|
6. |
|
Exercise of Membership Rights |
|
|
14 |
|
7. |
|
Enforcement of the Pledges |
|
|
14 |
|
8. |
|
Limitations on Enforcement |
|
|
15 |
|
9. |
|
Approval and Confirmation |
|
|
18 |
|
10. |
|
Undertakings of the Pledgor |
|
|
18 |
|
11. |
|
Delegation |
|
|
19 |
|
12. |
|
Indemnity |
|
|
20 |
|
13. |
|
No Liability |
|
|
20 |
|
14. |
|
Duration and Independence |
|
|
21 |
|
15. |
|
Release of Pledge (Pfandfreigabe) |
|
|
21 |
|
16. |
|
Partial Invalidity; Waiver |
|
|
21 |
|
17. |
|
Amendments |
|
|
22 |
|
18. |
|
Notices and their Language |
|
|
22 |
|
19. |
|
Notification |
|
|
24 |
|
20. |
|
Applicable Law, Jurisdiction |
|
|
24 |
|
Schedule 1 |
|
|
25 |
|
Part 1 List of Current Borrowers |
|
|
25 |
|
Part 2 List of Current Guarantors, Current 2009 Senior Secured Notes Guarantors, Current
October 2010 Secured Notes Guarantors and Current February 2011 Secured Notes
Guarantors |
|
|
25 |
|
Part 3 List of Current New Secured Notes Guarantors |
|
|
30 |
|
Part 4 Copy of Shareholders Lists (Gesellschafterlisten) |
|
|
36 |
|
- 1 -
This SHARE PLEDGE AGREEMENT (the “Agreement”) is made on September 8, 2011
BETWEEN:
| (1) |
|
Pactiv Deutschland Holdinggesellschaft mbH, a limited liability company (Gesellschaft mit
beschränkter Haftung) organised under the laws of the Federal Republic of Germany, having its
business address at Friedensallee 23-25, 22765 Hamburg, Germany, which is registered in the
commercial register (Handelsregister) of the local court (Amtsgericht) of Hamburg under HRB
71774 (the “Pledgor”); |
| |
| (2) |
|
Omni-Pac Ekco GmbH Verpackungsmittel, a limited liability company (Gesellschaft mit
beschränkter Haftung) organised under the laws of the Federal Republic of Germany, having its
corporate seat in Hamburg, Germany and its business address at Friedensallee 23-25, 22765
Hamburg, Germany, which is registered in the commercial register (Handelsregister) of the
local court (Amtsgericht) of Hamburg under HRB 102663 (the “Company 1”); |
| |
| (3) |
|
Omni-Pac GmbH Verpackungsmittel, a limited liability company (Gesellschaft mit beschränkter
Haftung) organised under the laws of the Federal Republic of Germany, having its corporate
seat in Elsfleth, Germany and its business address at Am Tidehafen 5, 26931 Elsfleth, Germany,
which is registered in the commercial register (Handelsregister) of the local court
(Amtsgericht) of Oldenburg under HRB 201738 (the “Company 2” and together with Company 1 and
Company 2, the “Companies”); and |
| |
| (4) |
|
The Bank of New York Mellon, having its business address at 1 Wall Street, New York, NY
10286, The United States of America, in its capacity as collateral agent under the First Lien
Intercreditor Agreement (as defined below) (the “Collateral Agent” or the “Pledgee”). |
WHEREAS:
| (A) |
|
Pursuant to the second amended and restated senior secured multi-currency term and revolving
credit agreement dated 9 August 2011 of currently up to USD 4,445,000,000 and EUR 330,000,000
between, inter alia, the parties listed in Schedule 1 Part 1 hereto as current borrowers (the
“Current Borrowers”), the parties listed in Schedule 1 Part 2 hereto as current guarantors
(the “Current Guarantors”), Credit Suisse AG as administrative agent and others (as amended,
varied, novated, restated, supplemented, superseded or extended from time to time, the “Second
Amended and Restated Credit Agreement”), which amends and restates the multicurrency term and
revolving credit agreement dated 5 November 2009 between, inter alia, the Current Borrowers
and the Current Guarantors, Credit Suisse AG as administrative agent and others (as amended
and restated pursuant to the Second Amended and Restated Credit Agreement and as further
amended, varied, novated, restated, supplemented, superseded or extended from time to time,
hereinafter the “Credit Agreement”), certain lenders (together the “Original Lenders”) have
granted certain facilities to the Current Borrowers and certain other entities which may
accede or may have acceded to the Credit Agreement as additional borrowers. |
| |
| (B) |
|
Pursuant to a senior secured notes indenture dated 5 November 2009 between, inter alia,
Reynolds Group Issuer LLC, Reynolds Group Issuer Inc., and Reynolds Group |
- 3 -
| |
|
Issuer (Luxembourg) S.A as ultimate issuers (the “Issuers”), certain affiliates of the
Issuers listed in Schedule 1 Part 2 hereto as current 2009 senior secured notes guarantors
(the “Current 2009 Senior Secured Notes Guarantors”) and The Bank of New York Mellon, as
indenture trustee, principal paying agent, transfer agent and registrar, (as amended,
varied, novated, supplemented, superseded or extended from time to time, the “2009 Senior
Secured Notes Indenture”), the Issuers have issued senior secured notes due 2016 in the
aggregate principal amount of USD 1,125,000,000 (the “US Secured Notes”) and senior secured
notes due 2016 in the aggregate principal amount of EUR 450,000,000 (the “Euro Secured
Notes” and together with the US Secured Notes the “2009 Senior Secured Notes”) to certain
noteholders. |
| |
| (C) |
|
Pursuant to a senior secured notes indenture dated 15 October 2010 between, inter
alia, RGHL US Escrow I LLC, RGHL US Escrow I Inc., and RGHL Escrow Issuer
(Luxembourg) I S.A. as escrow issuers (the “Escrow Issuers”), The Bank of New
York Mellon as indenture trustee, The Bank of New York Mellon, London Branch as
principal paying agent, The Bank of New York Mellon as collateral agent and
Wilmington Trust (London) Limited as additional collateral agent (as amended,
varied, novated, supplemented, superseded or extended from time to time, the
“October 2010 Secured Notes Indenture”), the Escrow Issuers have issued secured
notes due 2019 in the aggregate principal amount of USD 1,500,000,000 in escrow
(the “ October 2010 Secured Notes”). In connection with the release from escrow of
the proceeds of the October 2010 Secured Notes, which occurred on 16 November
2010, the Escrow Issuers were merged with and into the Issuers, with each of the
Issuers surviving the applicable mergers or other transfers and assuming by operation
of law the obligations of the applicable Escrow Issuers with respect to the October
2010 Secured Notes Indenture and the October 2010 Secured Notes. Certain affiliates
of the Issuers listed in Schedule 1 Part 2 hereto have acceded to the October 2010
Secured Notes Indenture as current October 2010 secured notes guarantors (the
“Current October 2010 Secured Notes Guarantors”). |
| |
| (D) |
|
Pursuant to a senior secured notes indenture dated 1 February 2011 between, inter
alia, the Issuers, The Bank of New York Mellon as indenture trustee, The Bank of
New York Mellon, London Branch as principal paying agent, The Bank of New York
Mellon as collateral agent and Wilmington Trust (London) Limited as additional
collateral agent (as amended, varied, novated, supplemented, superseded or extended
from time to time, the “February 2011 Secured Notes Indenture”), the Issuers have
issued secured notes due 2021 in the aggregate principal amount of USD
1,000,000,000 (the “February 2011 Secured Notes”) which are guaranteed by
certain affiliates of the Issuers listed in Schedule 1 Part 2 hereto as current February
2011 secured notes guarantors (the “Current February 2011 Secured Notes
Guarantors”). |
| |
| (E) |
|
The Pledgor has entered into the Existing Share Pledge Agreement (as defined
below). |
| |
| (F) |
|
Pursuant to a senior secured notes indenture dated 9 August 2011 between, inter alia,
the RGHL US Escrow II LLC and RGHL US Escrow II Inc. as escrow issuers (the |
- 4 -
| |
|
“August 2011 Escrow Issuers”), The Bank of New York Mellon as indenture trustee, The Bank
of New York Mellon, London Branch as principal paying agent, The Bank of New York Mellon as
collateral agent and Wilmington Trust (London) Limited as additional collateral agent (as
amended, varied, novated, supplemented, superseded or extended from time to time, the “New
Secured Notes Indenture”), the August 2011 Escrow Issuers have issued senior secured notes
due 2019 in the aggregate principal amount of USD 1,500,000,000 (the “New Secured Notes”).
In connection with the release from escrow of the proceeds of the New Secured Notes, RGHL
US Escrow II Inc. and RGHL US Escrow II LLC shall be merged with and into Reynolds Group
Issuer Inc. and Reynolds Group Issuer LLC (together with Reynolds Group Issuer (Luxembourg)
S.A. the “August 2011 Ultimate Issuers”), respectively, and the obligations of the August
2011 Escrow Issuers shall be assumed by the August 2011 Ultimate Issuers pursuant to one or
more supplemental indentures between, among others, the August 2011 Escrow Issuers, the
August 2011 Ultimate Issuers, The Bank of New York Mellon, as trustee, principal paying
agent, transfer agent, registrar and collateral agent and Wilmington Trust (London)
Limited, as additional collateral agent. At such time certain affiliates of the August 2011
Ultimate Issuers listed in Schedule 1 Part 3 hereto as current new secured notes guarantors
(the “Current New Secured Notes Guarantors”) will accede to the New Secured Notes
Indenture). |
| |
| (G) |
|
As a result of the Second Amended and Restated Credit Agreement and the
amendment No. 6 and incremental term loan assumption agreement dated 9 August
2011 between, inter alia, the Current Borrowers, the Current Guarantors, Credit
Suisse AG as administrative agent and others (the “Amendment No. 6 and
Incremental Term Loan Assumption Agreement”) certain lenders have agreed to
grant incremental term loans in an aggregate amount of up to USD 2,000,000,000. |
| |
| (H) |
|
The Pledgor has agreed to grant an additional pledge (subject to the pledges arising
under the Existing Share Pledge Agreement (as defined below)) over its Shares (as
defined below) in the Companies as security for the Pledgee‘s respective claims
against the Grantors (as defined below) (or any of them) in respect of the Obligations
(as defined below). |
| |
| (I) |
|
The security created by or pursuant to this Agreement is to be administered by the
Collateral Agent for the Secured Parties (as defined below) pursuant to a first lien
intercreditor agreement dated 5 November 2009 (as amended by the Amendment No.
1 and Joinder Agreement (as defined below)) between, inter alia, the Collateral
Agent, the Indenture Trustee, the Administrative Agent and the Grantors (each as
defined below) and others (as amended, varied, novated, supplemented, superseded or
extended from time to time, the “First Lien Intercreditor Agreement”). |
NOW, IT IS AGREED as follows:
| 1. |
|
DEFINITIONS AND LANGUAGE |
| |
| 1.1 |
|
In this Agreement: |
- 5 -
| |
|
“Administrative Agent” means Credit Suisse AG, Cayman Islands Branch, having its business address
at Eleven Madison Avenue, New York, NY 10010, United States of America in its capacity as
administrative agent under the Credit Agreement and any successor appointed as administrative agent
under the Credit Agreement. |
| |
| |
|
“Amendment No. 1 and Joinder Agreement” means the joinder agreement dated 21 January 2010 relating
to the First Lien Intercreditor Agreement made among (amongst others) the Collateral Agent,
Wilmington Trust (London) Limited, Credit Suisse AG and Reynolds Group Holdings Limited pursuant to
which Wilmington Trust (London) Limited is appointed as additional collateral agent and became
party to the First Lien Intercreditor Agreement. |
| |
| |
|
“Borrowers” means the Current Borrowers and any entity which may accede to the Credit Agreement as
an additional borrower and “Borrower” means any of them. |
| |
| |
|
“Cash Management Bank” shall mean Citibank N.A., Banco Nacional De Mexico S.A., Citibank
International PLC, UK, Citibank (China) Co., Limited, Citibank Global Markets Deutschland AG & Co
KGaA, Citibank ZRT, Hungary, a Lender, the Administrative Agent or any of the Lender’s or the
Administrative Agent’s affiliates (at the time the cash management services arrangement is entered
into) provided in each case it has become a party to, or by execution of an additional bank secured
party acknowledgment has agreed to be bound by the terms of, the First Lien Intercreditor Agreement
in its capacity as cash management bank. |
| |
| |
|
“Cash Management Services” shall mean any agreement or arrangement by a Cash Management Bank to
provide any composite accounting or other cash pooling arrangements and netting, overdraft
protection and other arrangements with any bank arising under standard business terms of such Cash
Management Bank to a Grantor. |
| |
| |
|
“Credit Documents” shall mean the Loan Documents, the 2009 Senior Secured Notes Documents, the
October 2010 Secured Notes Documents, the February 2011 Secured Notes Documents and the New Secured
Notes Documents. |
| |
| |
|
“Enforcement Event” shall mean an Event of Default. |
| |
| |
|
“Event of Default” means any event of default (Kündigungsgrund) under the Credit Agreement and/or
the 2009 Senior Secured Notes Indenture and/or the October 2010 Secured Notes Indenture and/or the
February 2011 Secured Notes Indenture and/or the New Secured Notes Indenture. |
| |
| |
|
“Existing Intercreditor Agreement” means the existing intercreditor agreement dated 11 May 2007 (as
amended by a letter dated 21 June 2007 and a further letter dated 29 June 2007, as amended and
restated on 5 November 2009 and as further amended on 5 November 2010) between, inter alia,
Beverage Packaging Holdings (Luxembourg) I S.A., Rank Group Holdings Limited (now Reynolds Group
Holdings Limited), Beverage Packaging Holdings (Luxembourg) II S.A., Beverage Packaging Holdings
(Luxembourg) III S.a r.l., Credit Suisse AG (formerly Credit Suisse) as security trustee and
others. |
- 6 -
| |
|
“Existing Share Pledge Agreement” means the share pledge agreement dated 2 March 2011 entered into
between Pactiv Deutschland Holdinggesellschaft mbH as pledgor and The Bank of New York Mellon as
collateral agent and as pledgee. |
| |
| |
|
“Existing Shares” has the meaning given to such term in sub-Clause 2.1 hereof. |
| |
| |
|
“February 2011 Secured Notes Documents” shall mean the February 2011 Secured Notes Indenture, the
February 2011 Secured Notes Guarantees, the February 2011 Secured Notes, the Intercreditor
Arrangements, any supplemental indenture, any security document relating to the February 2011
Secured Notes and/or the February 2011 Secured Notes Indenture and any other document that may be
entered into pursuant to any of the foregoing. |
| |
| |
|
“February 2011 Secured Notes Guarantees” shall mean the guarantees of the obligations of the
Issuers under the February 2011 Secured Notes and the February 2011 Secured Notes Indenture by the
February 2011 Secured Notes Guarantors. |
| |
| |
|
“February 2011 Secured Notes Guarantors” means the Current February 2011 Secured Notes Guarantors
and any entity which may accede to the February 2011 Secured Notes Indenture as additional
guarantor. |
| |
| |
|
“February 2011 Secured Notes Holders” shall mean the holders from time to time of the February 2011
Secured Notes. |
| |
| |
|
“February 2011 Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its
capacity as indenture trustee under the February 2011 Secured Notes Indenture and any successor
appointed as indenture trustee under the February 2011 Secured Notes Indenture. |
| |
| |
|
“Future Shares” means all additional shares in the capital of the Companies (irrespective of their
nominal value) which the Pledgor may acquire in the future in the event of a share transfer, a
share split, a share combination, an increase of the capital of any of the Companies (including by
way of authorised capital (genehmigtes. Kapital)) or otherwise. |
| |
| |
|
“Grantors” means the Loan Parties, the Issuers, the 2009 Senior Secured Notes Guarantors, the
October 2010 Secured Notes Guarantors, the February 2011 Secured Notes Guarantors and the New
Secured Notes Guarantors and any person that has granted a security interest to the Collateral
Agent and/or the Secured Parties in respect of the obligations of the Loan Parties, the Issuers and
the 2009 Senior Secured Notes Guarantors, the October 2010 Secured Notes Guarantors, the February
2011 Secured Notes Guarantors and the New Secured Notes Guarantors under the Credit Documents and
“Grantor” means any of them. |
| |
| |
|
“Grantors’ Agent” shall mean Reynolds Group Holdings Limited or any other person appointed as agent
of the Grantors in accordance with the Principal Finance Documents. |
- 7 -
| |
|
“Group” means Reynolds Group Holdings Limited and its direct or indirect subsidiaries
(Tochtergesellschaften). |
| |
| |
|
“Hedge Counterparty” means a Lender, the Administrative Agent or any of the Lender’s or the
Administrative Agent’s affiliates (at the time a hedging agreement is entered into) who has entered
into a hedging agreement for the purpose of hedging interest rate liabilities and/or any exchange
rate and/or commodity price risks provided it has become a party, or by execution of an additional
bank secured party acknowledgment has agreed to be bound by the terms of, to the First Lien
Intercreditor Agreement in its capacity as hedge counterparty. |
| |
| |
|
“Incremental Assumption Agreement” shall mean an incremental assumption agreement relating to
incremental facilities of up to USD 2,000,000,000 among, and in form and substance reasonably
satisfactory to, one or more Borrowers, the Administrative Agent, one or more Incremental Term
Lenders and/or one or more Incremental Revolving Credit Lenders pursuant to which one or more
Incremental Term Lenders make available Incremental Term Loan Commitments and/or one or more
Incremental Revolving Credit Lenders make available Incremental Revolving Credit Commitments
respectively. |
| |
| |
|
“Incremental Revolving Credit Lender” shall mean a Lender with an Incremental Revolving Credit
Commitment or an outstanding revolving loan under the Credit Agreement of any class as a result of
an Incremental Revolving Credit Commitment. |
| |
| |
|
“Incremental Revolving Credit Commitment” shall mean the commitment of any Lender, established
pursuant to the Credit Agreement, to make available certain revolving credit loans to one or more
Borrowers. |
| |
| |
|
“Incremental Term Lender” shall mean a Lender with an Incremental Term Loan Commitment. |
| |
| |
|
“Incremental Term Loan Commitment” shall mean the commitment of any Lender, established pursuant to
the Credit Agreement, to make available certain term loans to one or more Borrowers. |
| |
| |
|
“Indenture Trustee” shall mean The Bank of New York Mellon, in its capacity as indenture trustee
under the 2009 Senior Secured Notes Indenture and any successor appointed as indenture trustee
under the 2009 Senior Secured Notes Indenture. |
| |
| |
|
“Intercreditor Arrangements” means the First Lien Intercreditor Agreement and the Existing
Intercreditor Agreement, in each case as amended, novated, supplemented, restated, or modified from
time to time. |
| |
| |
|
“Issuing Bank” means Credit Suisse AG or any other Lender or any affiliate of Credit Suisse AG or
any other Lender that issues letters of credit or bank guarantees under the Credit Agreement. |
| |
| |
|
“Lenders” shall mean the Original Lenders and any entity which may become a |
- 8 -
| |
|
lender under the Credit
Agreement in the future and “Lender” means any of them. |
| |
| |
|
“Loan Documents” shall mean the Credit Agreement, the Amendment No.l and Joinder Agreement, the
Second Amended and Restated Credit Agreement and the Amendment No. 6 and Incremental Term Loan
Assumption Agreement, any borrowing subsidiary agreement and/or guarantor joinder agreement
relating to the Credit Agreement, any letter of credit or bank guarantee relating to the Credit
Agreement, any security documents relating to the Credit Agreement, any hedging agreement entered
into by a Hedge Counterparty and a Grantor, each Incremental Assumption Agreement, the
Intercreditor Arrangements, each Promissory Note, any agreement between a Grantor and a Cash
Management Bank relating to Cash Management Services, each Local Facility Agreement and any other
document that may be entered into pursuant to any of the foregoing in relation to the Credit
Agreement. |
| |
| |
|
“Loan Parties” shall mean the Borrowers, the Current Guarantors and any entity which may accede to
the Credit Agreement as additional guarantor and a “Loan Party” means any of them. |
| |
| |
|
“Local Facilities” means working capital facilities provided to a Grantor (other than Beverage
Packaging Holdings (Luxembourg) I S.A., Beverage Packaging Holdings (Luxembourg) II S.A. Beverage
Packaging Holdings (Luxembourg) III S.à r.l. and the Borrowers) by a Local Facility Provider and
“Local Facility” means any of them. |
| |
| |
|
“Local Facility Agreements” shall mean any agreement under which a Local Facility is made
available. |
| |
| |
|
“Local Facility Provider” means HSBC Trinkaus & Burkhardt AG, Deutsche Bank AG, Commerzbank
Aktiengesellschaft and Hong Kong and Shanghai Banking Corporation Ltd., Thailand, Bank of America,
N.A., Canada Branch, FIA Card Services, N.A., Citibank N.A.,
Citibank (China) Co., Ltd., Banco Nacional de Mexico, S.A., Integrante del Grupo Financiero
Banamex, Bank of America, N.A., provided in each case it has become a party to, or by execution of
an additional bank secured party acknowledgment has agreed to be bound by the terms of, the First
Lien Intercreditor Agreement in its capacity as local facility provider. |
| |
| |
|
“New Secured Notes Documents” shall mean the New Secured Notes Indenture, the New Secured Notes
Guarantees, the New Secured Notes, the Intercreditor Arrangements, any supplemental indenture, any
security document relating to the New Secured Notes and/or the New Secured Notes Indenture and any
other document that may be entered into pursuant to any of the foregoing. |
| |
| |
|
“New Secured Notes Guarantees” shall mean the guarantees of the obligations of the August 2011
Escrow Issuers and/or of the August 2011 Ultimate Issuers under the New Secured Notes and the New
Secured Notes Indenture by the New Secured Notes Guarantors. |
- 9 -
| |
|
“New Secured Notes Guarantors” means the Current New Secured Notes Guarantors and any entity which
may accede to the New Secured Notes Indenture as additional guarantor. |
| |
| |
|
“New Secured Notes Holders” shall mean the holders from time to time of the New Secured Notes. |
| |
| |
|
“New Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its capacity as
indenture trustee under the New Secured Notes Indenture and any successor appointed as indenture
trustee under the New Secured Notes Indenture. |
| |
| |
|
“Obligations” shall mean all present and future obligations and liabilities (whether actual or
contingent and whether owed jointly or severally or in any other capacity whatsoever) of each
Grantor to the Pledgee under each or any of the Credit Documents (including, but not limited to,
the Parallel Obligations), including with respect to all costs, charges and expenses incurred by
the Pledgee in connection with the protection, preservation or enforcement of its rights under the
Credit Documents or any other document evidencing or securing any such liabilities. The Obligations
shall further include any obligation based on unjust enrichment (ungerechtfertigte Bereicherung) or
tort (Delikt). |
| |
| |
|
“October 2010 Secured Notes Documents” shall mean the October 2010 Secured Notes Indenture, the
October 2010 Secured Notes Guarantees, the October 2010 Secured Notes, the Intercreditor
Arrangements, any supplemental indenture relating to the October 2010 Secured Notes Indenture, any
security document relating to the October 2010 Secured Notes and/or the October 2010 Secured Notes
Indenture and any other document that may be entered into pursuant to any of the foregoing. |
| |
| |
|
“October 2010 Secured Notes Guarantees” shall mean the guarantees of the obligations of the Issuers
under the October 2010 Secured Notes and the October 2010 Secured Notes Indenture by the October
2010 Secured Notes Guarantors. |
| |
| |
|
“October 2010 Secured Notes Guarantors” means the Current October 2010 Secured Notes Guarantors and
any entity which may accede to the October 2010 Secured Notes Indenture as additional guarantor. |
| |
| |
|
“October 2010 Secured Notes Holders” shall mean the holders from time to time of the October 2010
Secured Notes. |
| |
| |
|
“October 2010 Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its
capacity as indenture trustee under the October 2010 Secured Notes Indenture and any successor
appointed as indenture trustee under the October 2010 Secured Notes Indenture. |
| |
| |
|
“Parallel Obligations” means the independent obligations of any of the Grantors arising pursuant to
the First Lien Intercreditor Agreement to pay to the Collateral Agent sums equal to the sums owed
by such Grantor to the other Secured Parties (or |
- 10 -
| |
|
any of them) under the Credit Documents. |
| |
| |
|
“Pledge” and “Pledges” have the meanings given to such terms in Clause 3.1. |
| |
| |
|
“Principal Finance Documents” means the Credit Agreement, the 2009 Senior Secured Notes
Indenture, the October 2010 Secured Notes Indenture, the February 2011 Secured Notes
Indenture, the New Secured Notes Indenture and the First Lien Intercreditor Agreement. |
| |
| |
|
“Promissory Note” shall mean any promissory note executed and delivered by a Borrower upon
the request of a Lender evidencing the amount of principal owed by such Borrower to such
Lender under the Credit Agreement. |
| |
| |
|
“Secured Parties” shall mean the Lenders (including in their capacity as issuing bank(s),
and/or Hedge Counterparties under the Credit Agreement), the Hedge Counterparties, the
Administrative Agent, any Issuing Bank, the beneficiaries of each indemnification obligation
undertaken by any Grantor under any Credit Document, the 2009 Senior Secured Notes Holders,
the October 2010 Secured Notes Holders, the February 2011 Secured Notes Holders and the New
Secured Notes Holders, the Indenture Trustee, the October 2010 Secured Notes Indenture
Trustee, the February 2011 Secured Notes Indenture Trustee and the New Secured Notes
Indenture Trustee, the Collateral Agent, the Local Facility Providers and the Cash
Management Banks. |
| |
| |
|
“2009 Senior Secured Notes Documents” shall mean the 2009 Senior Secured Notes Indenture,
the 2009 Senior Secured Notes Guarantees, the 2009 Senior Secured Notes, the Intercreditor
Arrangements, any supplemental indenture, any security document relating to the 2009 Senior
Secured Notes and/or the 2009 Senior Secured Notes Indenture and any other document that may
be entered into pursuant to any of the foregoing. |
| |
| |
|
“2009 Senior Secured Notes Guarantees” shall mean the guarantees of the obligations of the
Issuers under the 2009 Senior Secured Notes and the 2009 Senior Secured Notes Indenture by
the 2009 Senior Secured Notes Guarantors. |
| |
| |
|
“2009 Senior Secured Notes Guarantors” means the Current 2009 Senior Secured Notes
Guarantors and any entity which may accede to the 2009 Senior Secured Notes Indenture as
additional guarantor. |
| |
| |
|
“2009 Senior Secured Notes Holders” shall mean the holders from time to time of the 2009
Senior Secured Notes. |
| |
| |
|
“Shares” means the Existing Shares and the Future Shares. |
| |
| 1.2 |
|
Construction |
| |
| |
|
In this Agreement any reference to a “Clause”, a “sub-Clause” or a “Schedule” shall, subject
to any contrary indication, be construed as a reference to a Clause, a sub-Clause or a
Schedule hereof. |
- 11 -
| 1.3 |
|
This Agreement is made in the English language. For the avoidance of doubt, the English
language version of this Agreement shall prevail over any translation of this Agreement.
However, where a German translation of a word or phrase appears in the text of this Agreement,
the German translation of such word or phrase shall prevail. |
| |
| 2. |
|
PLEDGED SHARES |
| |
| 2.1 |
|
Company 1 has a nominal share capital (Stammkapital) of EUR 25,000 (in words:
Euro twenty five thousand) which is divided into two shares which shares have a
nominal amount of EUR 24,900 (in words: Euro twenty four thousand nine hundred)
and EUR 100 (in words: Euro one hundred) (the “Existing Shares 1”). |
| |
| |
|
Company 2 has a nominal share capital (Stammkapital) of EUR 25,000 (in words: Euro twenty
five thousand) which is divided into two shares, persisting of one share with a nominal
amount (Nennbetrag) of EUR 24,900 (in words: Euro twenty four thousand nine hundred)
carrying the serial number (laufende Nummer) 1 and one share with a nominal
amount (Nennbetrag) of EUR 100 (in words: Euro one hundred) carrying the serial number
(laufende Nummer) 2 (the “Existing Shares 2” and together with the Existing Shares 1, the
“Existing Shares”). |
| |
| 2.2 |
|
The Pledgor is the owner of the Existing Shares and is registered as such in the
relevant shareholders list (Gesellschafterliste) of the Companies as filed
(aufgenommen) with the commercial register (Handelsregister), a copy of which is
attached as Schedule 1 Part 4 (Copy of Shareholders Lists). |
| |
| 3. |
|
PLEDGE |
| |
| 3.1 |
|
The Pledgor hereby pledges to the Pledgee the Shares together with all ancillary rights and
claims associated with the Shares as more particularly specified in Clause 4 (the “Pledge”
and/or the “Pledges”). |
| |
| 3.2 |
|
The Pledgee hereby accepts the Pledge. |
| |
| 3.3 |
|
The Pledge is in addition, and without prejudice, to any other security the Secured Parties
may now or hereafter hold in respect of the Obligations. |
| |
| 4. |
|
SCOPE OF THE PLEDGES |
| |
| 4.1 |
|
The Pledge constituted by this Agreement includes: |
| |
(a) |
|
the present and future rights to receive: |
| |
(i) |
|
dividends attributable to the Shares, if any; and |
| |
| |
(ii) |
|
liquidation proceeds, redemption proceeds
(Einziehungsentgelt), repaid
capital in case of a capital decrease, any compensation in case of
termination (Kündigung) and/or withdrawal (Austritt) of a shareholder
of the Companies, the surplus in case of surrender (Preisgabe), any |
- 12 -
| |
|
|
repayment claim for any additional capital contributions (Nachschüsse) and
all other pecuniary claims associated with the Shares; |
| |
(b) |
|
the right to subscribe for newly issued shares; and |
| |
| |
(c) |
|
all other rights and benefits attributable to the Shares capable of being
pledged (verpfändbar) (including without limitation all present and future pecuniary
claims of the Pledgor against any of the Companies arising under or in connection with
any domination and/or profit transfer agreement (Beherrschungs- und/oder
Gewinnabführungsvertrag) or partial profit transfer agreement
(Teilgewinnabführungsvertrag) which may be entered into between the Pledgor and any of
the Companies). |
| 4.2 |
|
Notwithstanding that the items set out in Clause 4.1 above are pledged hereunder, the Pledgor
shall be entitled to receive and retain the items set out in Clause 4.1 in respect of, and
otherwise deal (in accordance with the agreements between the parties) with all items
described in Clause 4.1 hereof in respect of the Shares at all times other than any time the
Pledgee is entitled to enforce the Pledge constituted hereunder. |
| |
| 4.3 |
|
On the date and during the period in which the Pledgee is entitled, in accordance with Clause
7 (Enforcement of the Pledges) hereof, to enforce the Pledge (or any part thereof): |
| |
(a) |
|
all dividends paid or payable and any other property received, receivable or
otherwise distributed in respect of or in exchange for the Shares; |
| |
| |
(b) |
|
all dividends or other distributions or payments paid or payable in respect
of the Shares in connection with the partial or total liquidation or dissolution of
any of the
Companies or in connection with the reduction of the amount of the registered share
capital of any of the Companies; and |
| |
| |
(c) |
|
all cash paid, payable or otherwise distributed in respect of the principal
of, or in redemption of, or in exchange for the Shares, |
| |
|
shall be forthwith delivered to the Pledgee and held as security for and on behalf of the
Secured Parties. If such proceeds or property are received by the Pledgor, they shall be
received as trustee for the benefit of the Pledgee and shall be segregated from other
property or funds of the Pledgor and shall be forthwith delivered to the Pledgee as security
in the form so received (with any necessary endorsement). |
| |
| 5. |
|
PURPOSE OF THE PLEDGES |
| |
| |
|
The Pledge hereunder is constituted in order to secure the prompt and complete satisfaction
of any and all Obligations. The Pledge shall also cover any future extension of the
Obligations and the Pledgor herewith expressly agrees that the provisions of Section 1210
para 1 sentence 2 of the German Civil Code (Bürgerliches Gesetzbuch) shall not
apply to this Agreement. |
- 13 -
| 6. |
|
EXERCISE OF MEMBERSHIP RIGHTS |
| |
| |
|
The membership rights, including the voting rights, attached to the Shares remain with the
Pledgor. The Pledgor may exercise its membership rights in any manner which does not
adversely affect the validity and enforceability of the Pledge, the existence of all or
part of the Shares or cause an Event of Default to occur. The Pledgor undertakes, unless
otherwise agreed between the parties, that no resolutions will be passed which would, if
passed, constitute a breach of its obligations under Clause 10 or any other obligation
under this Agreement. |
| |
| 7. |
|
ENFORCEMENT OF THE PLEDGES |
| |
| 7.1 |
|
If (i) an Enforcement Event has occurred and is continuing and (ii) the requirements set
forth in Sections 1273 para 2, 1204 et seq. of the German Civil Code with regard to the
enforcement of the Pledge are met (Pfandreife), in particular, if any of the Obligations has
become due and payable, then in order to enforce the Pledge, the Pledgee (acting on the
instructions of the Secured Parties) may at any time thereafter avail itself of all rights and
remedies that a pledgee has against a pledgor under the laws of the Federal Republic of
Germany. |
| |
| 7.2 |
|
Notwithstanding Section 1277 of the German Civil Code, the Pledgee is entitled to exercise
its rights without obtaining enforceable judgment or other instrument (vollstreckbarer Titel),
The Pledgee shall be entitled to have the Pledge enforced in any manner allowed under the laws
of the Federal Republic of Germany, in particular have the Pledge sold (including at public
auction). |
| |
| 7.3 |
|
The Pledgor hereby expressly agrees that 5 (five) business days’ prior written notice to the
Pledgor of the place and time of any such sale shall be sufficient and the Pledgee shall not
be obliged to deliver any further notices (including, but not limited to the notices set out
under Section 1234 of the German Civil Code) to the Pledgor prior to such sale. The sale may
take place at any place in the Federal Republic of Germany designated by the Pledgee. |
| |
| 7.4 |
|
If the Pledgee (acting on the instructions of the Secured Parties) should seek to enforce the
Pledge under sub-Clause 7.1, the Pledgor shall, at its own expense, render forthwith all
necessary assistance in order to facilitate the prompt sale of the Shares or any part thereof
and/or the exercise by the Pledgee of any other right it may have as Pledgee. |
| |
| 7.5 |
|
Whilst the requirements for enforcement under sub-Clause 7.1 are continuing, all subsequent
dividend payments attributable to the Shares and all payments based on similar ancillary
rights attributed to the Shares may be applied by the Pledgee in satisfaction in whole or in
part of the Obligations or treated as additional collateral. |
| |
| 7.6 |
|
Even if the requirements for enforcement referred to under sub-Clause 7.1 above are met, the
Pledgee shall not, whether as proxy or otherwise, be entitled to exercise the voting rights
attached to the Shares. However, the Pledgor shall, during the continuation of an event which
allows the Pledgee to enforce the Pledge, have the |
- 14 -
|
|
obligations and the Pledgee shall have the
rights set forth in sub-Clause 10.6 below regardless of which resolutions are intended to be
adopted. |
| |
| 7.7 |
|
The Pledgee may, in its sole discretion, determine which of several security interests, if
applicable, shall be used to satisfy the Obligations. The Pledgor hereby expressly waives its
right pursuant to Section 1230 sentence 2 of the German Civil Code to limit the realisation of
the Pledge and pledges over the shares or partnership interests in one or more other companies
to such number of pledges as are necessary to satisfy the Obligations and agrees further that
the Pledgee may decide to enforce the Pledge over the shares in the Companies individually in
separate proceedings or together with pledges over shares or partnership interests in one or
more other companies at one single proceeding (Gesamtverwertung). |
| |
| 7.8 |
|
The Pledgor hereby expressly waives all defences of revocation (Einrede der Anfechtbarkeit)
and set-off (Einrede der Aufrechenbarkeit) pursuant to Sections 770, 1211 of the German Civil
Code. |
| |
| 7.9 |
|
The Pledgor hereby expressly waives its defences based on defences any Grantor might have
against any of the Obligations (Einreden des Hauptschuldners) pursuant to Section 1211 para 1
sentence 1 alternative 1 of the German Civil Code. |
| |
| 7.10 |
|
If the Pledge is enforced or if the Pledgor has discharged any of the Obligations (or any
part of them), Section 1225 of the German Civil Code (legal subrogation of claims to a pledgor
— Forderungsübergang auf den Verpfänder) shall not apply and no rights of the Pledgee shall
pass to. the Pledgor by subrogation or otherwise. Further, the Pledgor shall at no time
before, on or after an enforcement of the Pledge and as a result of the Pledgor entering into
this Agreement, be entitled to demand indemnification or compensation from any of the
Companies or any of the Companies’ affiliates or to assign any of these claims. |
| |
| 8. |
|
LIMITATIONS ON ENFORCEMENT |
| |
| 8.1 |
|
The Pledgee shall be entitled to apply proceeds of an enforcement of the Pledge towards
satisfaction of the Obligations without limitation in respect of: |
| |
(a) |
|
all and any amounts which are owed under the Credit Documents by the Pledgor
itself, any of the Companies or by any of their subsidiaries; and |
| |
| |
(b) |
|
all and any amounts which correspond to funds that have been borrowed or
otherwise raised under the Credit Documents, in each case to the extent borrowed,
on-lent or otherwise passed on to, or issued for the benefit of, the Pledgor, any of
the Companies or any of their subsidiaries, or for the benefit of any of their
creditors and in each case not repaid and outstanding from time to time |
| |
|
(in aggregate, the “Unlimited Enforcement Amount”). |
- 15 -
| 8.2 |
|
Besides an application of proceeds from an enforcement of the Pledge towards
satisfaction of the Obligations in respect of the Unlimited Enforcement Amount
pursuant to Clause 8.1 above, the Pledgee shall not be entitled to apply proceeds of an
enforcement of the Pledge towards satisfaction of the Obligations but shall return to
the Pledgor proceeds of an enforcement of the Pledge if and to the extent that: |
| |
(a) |
|
the Pledge secures the obligations of a Grantor which is (x) a shareholder of
the Pledgor or (y) an affiliated company (verbundenes Unternehmen) within the
meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a
shareholder of the Pledgor (other than the Pledgor and its subsidiaries); and |
| |
| |
(b) |
|
the application of proceeds of an enforcement of the Pledge towards the
Obligations would have the effect of (x) reducing the Pledgor’s net assets
(Reinvermögen) (the “Net Assets”) to an amount of less than its stated share capital
(Stammkapital) or, if the Net Assets are already an amount of less than its stated
share capital, of causing such amount to be further reduced and (y) would thereby
affect the assets required for the obligatory preservation of the Pledgor’s stated
share capital (Stammkapital) according to section 30, 31 German Limited Liability
Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided
that the amount of the stated share capital to be taken into consideration shall be
the amount registered in the commercial register at the date hereof, and any increase
of the stated share capital registered after the date of this Agreement shall only be
taken into account if such increase has been effected with the prior written consent
of the Collateral Agent. |
| 8.3 |
|
The Net Assets shall be calculated as an amount equal to the sum of the values of the
Pledgor’s assets (consisting of all assets which correspond to the items set forth in
section 266 sub-section(2) A, B and C of the German Commercial Code
(Handelsgesetzbuch) less the aggregate amount of the Pledgor’s liabilities (consisting
of all liabilities and liability reserves which correspond to the items set forth in section
266 sub-section (3) B, C and D of the German Commercial Code), save that: |
| |
(a) |
|
any asset that is shown in the balance sheet with a book value (Buchwert) that
is significantly lower than the market value of such asset and that is not necessary
for the Pledgor’s business (nicht betriebsnotwendig) shall be taken into account with
its market value; |
| |
| |
(b) |
|
obligations under loans provided to the Pledgor by any member of the Group or
any other affiliated company shall not be taken into account as liabilities as far as
such loans are subordinated by law or by contract at least to the claims of the
unsubordinated creditors of the Pledgor; and |
| |
| |
(c) |
|
obligations under loans or other contractual liabilities incurred by the
Pledgor in violation of the provisions of the Credit Documents shall not be taken into
account as liabilities. |
- 16 -
| |
|
The Net Assets shall be determined in accordance with the generally accepted accounting
principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung)
and be based on the same principles that were applied by the Pledgor in the preparation of
its most recent annual balance sheet (Jahresbilanz). |
| |
| |
|
It being understood that the assets of the Pledgor will be assessed at liquidation values
(Liquidationswerte) if the managing directors of the Pledgor, at the time they prepare the
Management Determination (as defined below) are, due to factual or legal circumstances at
that time, in their opinion not able to make a positive prognosis as to whether the business
of the Pledgor can carry on as a going concern (positive Fortführungsprognose), in
particular when the Pledge is enforced. |
| |
| 8.4 |
|
The limitations set out in Clause 8.2 above shall only apply if and to the extent that: |
| |
(a) |
|
without undue delay, but not later than within 5 business days, after receipt
of a notification by the Collateral Agent of its intention to enforce the Pledge (the
“Notice”), the Pledgor has confirmed in writing to the Collateral Agent (x) to what
extent such Pledge is up-stream or cross-stream security as described in Clause 8.2
above and (y) which amount of proceeds of an enforcement of the Pledge attributable to
the enforcement of such up-stream or cross-stream security cannot be applied towards
satisfaction of the Obligations but would have to be returned to the Pledgor as it
would otherwise cause the Net Assets of the Pledgor to fall below its
stated share capital (taking into account the adjustments set out in Clause 8.3
above) and such confirmation is supported by evidence reasonably satisfactory to the
Collateral Agent (the “Management Determination”) and the Collateral Agent has not
contested this and argued that no or a lesser amount would be necessary to maintain
the Pledgor’s stated share capital; or |
| |
| |
(b) |
|
within 20 business days from the date the Collateral Agent has contested the
Management Determination, the Collateral Agent receives from the Pledgor an up to date
balance sheet prepared by a firm of auditors of international standard and reputation
(the “Determining Auditors”) which shows the value of the Pledgor’s Net Assets (the
“Balance Sheet”). The Balance Sheet shall be prepared in accordance with the principles
set out in Clause 8.3 above, provided that the final sentence of Clause 8.3 above shall
not apply unless the Determining Auditors have in an independent assessment determined
that the assets of the Pledgor should be evaluated at liquidation values
(Liquidationswerte) in accordance with the generally accepted accounting principles
applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and
shall contain further information (in reasonable detail) relating to items to be
adjusted pursuant to Clause 8.3 above. If the Pledgor fails to deliver a Balance Sheet
within the aforementioned time period, the Pledgee shall be entitled to apply the
proceeds of an enforcement of the Pledge towards satisfaction of the Obligations
irrespective of the limitations set out in Clause 8.2 above. |
- 17 -
| 8.5 |
|
If the Pledgee disagrees with the Balance Sheet it shall be entitled to apply proceeds of an
enforcement of the Pledge in satisfaction of the Obligations up to an amount which, according
to the Balance Sheet, can be applied in satisfaction of the Obligations in compliance with the
limitations set out in Clause 8.2 above. In relation to any additional amounts for which the
Pledgor is liable under this Agreement, the Pledgee shall be entitled to further pursue its
claims (if any) and the Pledgor shall be entitled to prove that this amount is necessary for
maintaining its stated share capital (calculated as of the date the Pledgee has given notice
that it intends to enforce the security created under this Agreement). |
| |
| 8.6 |
|
No reduction of the amount enforceable or applicable towards satisfaction of the Obligations
under this Clause 8 will prejudice the right of the Pledgee to continue enforcing the Pledge
(subject always to the operation of the limitations set out above at the time of such
enforcement) until full satisfaction to the claims secured. |
| |
| 9. |
|
APPROVAL AND CONFIRMATION |
| |
| |
|
The Pledgor, as the sole shareholder of Company 1 and of Company 2, hereby approves the
Pledge over the Shares and over any and all ancillary rights and claims associated with the
Shares (as more particularly specified in Clause 4) and pursuant to the articles of
association of each Company the Pledge is not subject to any approval of any of the
Companies. |
| |
| 10. |
|
UNDERTAKINGS OF THE PLEDGOR |
| |
| |
|
Unless otherwise agreed between the parties, during the term of this Agreement, the Pledgor
undertakes to the Pledgee: |
| |
| 10.1 |
|
to promptly effect any contributions in cash (Bareinlage) or kind (Sacheinlage) to be made in
respect of the Shares; |
| |
| 10.2 |
|
to inform the Pledgee promptly of any change made in the registered share capital of any of
the Companies, or any changes made to the articles of association of any of the Companies
which would materially adversely affect the security interest of the Pledgee and in each such
case to promptly deliver to the Pledgee a copy of the updated shareholders list
(Gesellschafterliste) and a copy of the amended articles of association (Satzung) both as
filed (aufgenommen) with the commercial register (Handelsregister); |
| |
| 10.3 |
|
to promptly notify the Pledgee, by notification in writing of the registration of an
objection (Widerspruch) in relation to the Shares of the Pledgor in the shareholders list
(Gesellschafterliste) as filed (aufgenommen) with the commercial register (Handelsregister). |
| |
| 10.4 |
|
to promptly notify the Pledgee, by notification in writing, of any attachment (Pfändung) in
respect of any of the Shares or any ancillary rights set out in sub-Clause 4.1 such notice to
be accompanied by any documents the Pledgee might need to defend itself against any claim of a
third party. In particular, the Pledgor shall |
- 18 -
| |
|
promptly forward to the Pledgee a copy of the
attachment order (Pfändungsbeschluss), any transfer order (Überweisungsbeschluss) and all
other documents necessary for a defence against the attachment; |
| |
| 10.5 |
|
in the event of any increase in the capital of any of the Companies, not to allow, without
the prior written consent of the Pledgee (such consent not to be unreasonably withheld), any
party other than himself to subscribe for any Future Shares, and not to defeat, impair or
circumvent in any way the rights of the Pledgee created hereunder; |
| |
| 10.6 |
|
to promptly inform the Pledgee, by notification in writing, of all matters concerning of any
of the Companies of which the Pledgor is aware which would materially adversely affect the
security interest of the Pledgee. In particular, the Pledgor shall notify the Pledgee, by
notification in writing, forthwith of any shareholders’ meeting at which a shareholders’
resolution is intended to be adopted which would have a materially adverse effect upon the
Pledge. The Pledgor shall allow, following the occurrence and during the continuance of any of
the circumstances which permit the Pledgee to enforce the Pledge constituted hereunder in
accordance with Clause 7, the Pledgee or, as the case may be, its proxy or any other person
designated by the Pledgee, to participate in all such shareholders’ meetings of any of the
Companies as attendants without power to vote. Subject to the provision contained in
sub-Clause 14.1, the Pledgee’s right to attend a shareholders’ meeting shall lapse immediately
upon complete satisfaction and discharge of the Obligations; |
| |
| 10.7 |
|
to refrain from any acts or omissions, subject to the performance of its rights and duties
under the Existing Share Pledge Agreement, the purpose or effect of which is or would be the
dilution of the value of the Shares or the Shares ceasing to exist, unless permitted by the
Pledgee (acting reasonably); |
| |
| 10.8 |
|
not to amend the articles of association of any of the Companies to the extent that such
amendment would materially adversely affect the security interest of the Pledgee created
hereunder without the prior written consent of the Pledgee (such consent not to be
unreasonably withheld); |
| |
| 10.9 |
|
insofar as additional declarations or actions are necessary for the creation of the Pledge in
favour of the Pledgee and at the Pledgee’s reasonable request (acting on the reasonable
instructions of the Secured Parties), to make such declarations and undertake such actions at
its own costs and expenses; and |
| |
| 10.10 |
|
for the avoidance of doubt, notification and consent requirements as set out in sub-Clauses
10.1 through 10.8 of this Agreement are deemed to be satisfied if and to the extent such
notification or consent has been delivered under the Existing Share Pledge Agreement provided
that such notification to the Pledgee or consent of the Pledgee makes reference to this
Agreement and the Existing Share Pledge Agreement. |
| |
| 11. |
|
DELEGATION |
| |
| |
|
The Pledgee shall have full power to delegate (either generally or specifically) the powers,
authorities and discretions conferred on it by this Agreement on such terms |
- 19 -
| |
|
and conditions
as it shall see fit. The Pledgee shall only remain liable for diligently selecting and
providing initial instructions to such delegate. |
| |
| 12. |
|
INDEMNITY |
| |
| |
|
The Pledgor shall reimburse the Pledgee (which, for purposes of this Clause 12, shall
include its officers, directors, employees, agents and counsel) upon request for all
properly incurred, reasonable and documented out-of-pocket expenses incurred or made by it
in connection with the Credit Documents. Such expenses shall include the properly incurred,
reasonable and documented compensation and expenses, disbursements and advances of the
Pledgee’s agents, counsel, accountants and experts. The Pledgor shall indemnify the Pledgee
against any and all loss, liability, claim, taxes, costs, damage or expense (including
properly incurred, reasonable and documented attorneys’ fees and expenses) incurred by or in
connection with the acceptance or administration of the Pledgee’s performance of its duties
under this Agreement and under German law, including the costs and expenses of enforcing
this Agreement and defending itself against or investigating any claim. The obligation to
pay such amounts shall survive the payment in full or defeasance of the Obligations or the
removal or resignation of the Pledgee. The Pledgee shall notify Reynolds Group Holdings
Limited of any claim for which it may seek indemnity promptly upon obtaining actual
knowledge thereof; provided that any failure so to notify Reynolds Group Holdings Limited
shall not relieve the Pledgor of its indemnity obligations hereunder. The Pledgor may defend
itself against such claim and the Pledgee shall provide reasonable cooperation in such
defense. The Pledgee may have separate counsel and the Pledgor shall pay the properly
incurred, reasonable and documented fees and expenses of such counsel. The Pledgor need not
reimburse any expense or indemnify against any loss, liability or expense incurred by the
Pledgee through the Pledgee’s own wilful misconduct (Vorsatz) or gross negligence (grobe
Fahrlässigkeit). No provision of this Agreement shall require the Pledgee to expend or risk
its own funds or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if repayment of such
funds or adequate indemnity against such risk or liability is not assured to its
satisfaction. |
| |
| 13. |
|
NO LIABILITY |
| |
| |
|
Except as otherwise agreed between the parties to this Agreement, none of the Pledgee, its
nominee(s) or agent(s) or delegate(s) shall be liable by reason of (a) taking any action
permitted by this Agreement or (b) any neglect or default in connection with the assets and
rights subject to the security interest created hereunder, save in respect of any loss or
damage which is suffered as a result of wilful misconduct (Vorsatz) or gross negligence
(grobe Fahrlässigkeit) by the Pledgee, its nominee(s) or agent(s) or delegate(s), or (c) the
enforcement or realisation of all or any part of the security interest created hereunder. |
- 20 -
| 14. |
|
DURATION AND INDEPENDENCE |
| |
| 14.1 |
|
This Agreement shall remain in full force and effect until complete satisfaction of the
Obligations. The Pledge shall not cease to exist, if any Grantor under the Credit Documents
has only temporarily discharged the Obligations. |
| |
| 14.2 |
|
This Agreement shall create a continuing security and no change, amendment, or supplement
whatsoever in the Credit Documents or in any document or agreement related to any of the
Credit Documents shall affect the validity or the scope of this Agreement nor the obligations
which are imposed on the Pledgor pursuant to it. |
| |
| 14.3 |
|
This Agreement is independent from any other security or guarantee which may have been or
will be given to the Collateral Agent. None of such other security shall prejudice, or shall
be prejudiced by, or shall be merged in any way with this Agreement. |
| |
| 14.4 |
|
Waiving Section 418 of the German Civil Code, the Pledgor hereby agrees that the security
created hereunder shall not be affected by any transfer or assumption of the Obligations to,
or by, any third party. |
| |
| 15. |
|
RELEASE OF PLEDGE (PFANDFREIGABE) |
| |
| 15.1 |
|
Upon complete and irrevocable satisfaction of the Obligations, the Collateral Agent (as
instructed in accordance with the First Lien Intercreditor Agreement) will as soon as
reasonably practicable declare in writing the release of the Pledge (Pfandfreigabe) to the
Pledgor as a matter of record. For the avoidance of doubt, the parties are aware that upon
full and complete satisfaction of the Obligations the Pledge, due to its accessory nature
(Akzessorietät) ceases to exist by operation of German mandatory law. |
| |
| 15.2 |
|
At any time when the total value of the aggregate security granted by the Pledgor and any of
the other Grantors to secure the Obligations (the “Security”), which can be expected to be
realised in the event of an enforcement of the Security (realisierbarer Wert), exceeds 110% of
the Obligations (the “Limit”) not only temporarily, the Pledgee shall on demand of the Pledgor
release such part of the Security (Sicherheitenfreigabe) as the Pledgee (as instructed
in accordance with the First Lien Intercreditor Agreement) may in its reasonable discretion
determine so as to reduce the realisable value of the Security to the Limit. |
| |
| 15.3 |
|
The parties acknowledge that the Pledgee (as instructed in accordance with the First Lien
Intercreditor Agreement) will declare in writing the release of the Pledge (Pfandfreigabe) to
the Pledgor as soon as reasonably practicable in accordance with, and to the extent required
by, the Intercreditor Arrangements. |
| |
| 16. |
|
PARTIAL INVALIDITY; WAIVER |
| |
| 16.1 |
|
If at any time, any one or more of the provisions hereof is or becomes invalid, illegal or
unenforceable in any respect under the law of any jurisdiction, such provision shall |
- 21 -
| |
|
as to
such jurisdiction, be ineffective to the extent necessary without affecting or impairing the
validity, legality and enforceability of the remaining provisions hereof or of such provisions
in any other jurisdiction. The invalid, illegal or unenforceable provision shall be deemed to
be replaced with such valid, legal or enforceable provision which comes as close as possible
to the original intent of the parties and the invalid, illegal or unenforceable provision.
Should a gap (Regelungslücke) become evident in this Agreement, such gap shall, without
affecting or impairing the validity, legality and enforceability of the remaining provisions
hereof, be deemed to be filled in with such provision which comes as close as possible to the
original intent of the parties, |
| |
| 16.2 |
|
No failure to exercise, nor any delay in exercising, on the part of the Pledgee, any right or
remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise
of any right or remedy prevent any further or other exercise thereof or the exercise of any
other right or remedy. The rights and remedies provided hereunder are cumulative and not
exclusive of any rights or remedies provided by law. |
| |
| 16.3 |
|
In particular, the Pledge shall not be affected and shall in any event extend to any and all
shares in each of the Companies even if the number or nominal value of the Existing Shares or
the aggregate share capital of any of the Companies as stated in Clause 2 are inaccurate or
deviate from the actual facts. |
| |
| 17. |
|
AMENDMENTS |
| |
| |
|
Changes and amendments to this Agreement including this Clause 17 shall be made in writing
except where notarisation is required. |
| |
| 18. |
|
NOTICES AND THEIR LANGUAGE |
| |
| 18.1 |
|
All notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail or sent
by fax, as follows: |
| |
|
|
|
|
|
| For the Pledgor: |
|
Pactiv Deutschland Holdinggesellschaft
mbH |
|
|
|
|
|
|
|
Address:
|
|
Friedensallee 23-25,
22765 Hamburg, Germany |
|
|
|
|
|
|
|
Telephone:
|
|
+49 40 39199211 |
|
|
|
|
|
|
|
Fax:
|
|
+49 40 39199298 |
|
|
|
|
|
|
|
Attention:
|
|
Managing directors
(Geschäftsführung) |
- 22 -
| |
|
|
|
|
|
for the Pledgor with a copy to: |
|
|
|
|
|
|
Address:
|
|
c/o Rank Group Limited
Level 9
148 Quay Street
PO Box 3515
Auckland 1140
New Zealand |
|
|
|
|
|
|
|
Telephone:
|
|
+649 3666 259 |
|
|
|
|
|
|
|
Fax:
|
|
+649 3666 263 |
|
|
|
|
|
|
|
Attention:
|
|
Helen Golding |
|
|
|
|
|
For the Pledgee: |
|
The Bank of New York Mellon |
|
|
|
|
|
|
|
Address:
|
|
101 Barclay Street, 4E
New York, NY 10286
The United States of
America |
|
|
|
|
|
|
|
Telephone:
|
|
+212 298 1528 |
|
|
|
|
|
|
|
Fax:
|
|
+212 815 5366 |
|
|
|
|
|
|
|
Attention:
|
|
International Corporate |
|
|
|
|
Trust |
| 18.2 |
|
Any party hereto may change its address or fax number for notices and other communications
hereunder by notice to the other parties hereto. As agreed to in writing by the parties,
notices and other communications hereunder may also be delivered by e-mail to the e-mail
address of a representative of the applicable party to this Agreement provided from time to
time by such party. |
- 23 -
| 18.3 |
|
All notices and other communications given to any party in connection with this Agreement in
accordance with the provisions of this Agreement shall be deemed (widerlegbare Vermutung)
received on the date sent (if a business day) and on the next business day thereafter (in all
other cases) if delivered by hand or overnight courier service or sent by fax or on the date
five business days after dispatch by certified or registered mail if mailed, in each case
delivered, sent or mailed (properly addressed) to such party as provided in this Clause 18 or
in accordance with the latest unrevoked direction from such party given in accordance with
this Clause 18. |
| |
| 18.4 |
|
Any notice or other communication under or in connection with this Agreement shall be in the
English language or, if in any other language, accompanied by a translation into English.
In the event of any conflict between the English text and the text in any other language,
the English text shall prevail. |
| |
| 19. |
|
NOTIFICATION |
| |
| 19.1 |
|
The Pledgor and the Pledgee hereby give notice of this Agreement and the Pledge of the rights
pursuant to Clause 3 and Clause 4 to the Companies. |
| |
| 19.2 |
|
The Companies hereby acknowledge the notification pursuant to Clause 19.1 above. |
| |
| 20. |
|
APPLICABLE LAW, JURISDICTION
|
| |
| 20.1 |
|
This Agreement is governed by the laws of the Federal Republic of Germany. |
| |
| |
| 20.2 |
|
The place of jurisdiction for any and all disputes arising under or in connection with this
Agreement shall be the courts in Frankfurt am Main. The Pledgee however, shall also be
entitled to take action against the Pledgor in any other court of competent jurisdiction.
Further, the taking of proceedings against the Pledgor in any one or more jurisdictions shall
not preclude the taking of proceedings in any other jurisdiction (whether concurrently or not)
if and to the extent permitted by applicable law. |
The Notary advised the persons appearing:
| • |
|
that a pledge is a security instrument of strictly accessory nature (which means that it
comes into legal existence only if, to the extent that, and as long as, the underlying secured
claims do in fact exist, and that the owners of the secured claims and the pledgees must be
identical); |
| |
| • |
|
that notwithstanding Section 16 Para 3 German Limited Liability Companies Act (Genets
betreffend die Gesellschaften mit beschränkter Haftung) there is no bona fide creation,
acquisition nor ranking of a pledge of shares (in the sense that the pledgees are not
protected if the shares purported to be pledged do not exist or have been previously
encumbered for the benefit of a third party); and |
| |
| • |
|
that the English original version of this Agreement will not be acceptable for enforcement
but will have to be translated, by a certified translator, into German for
such purposes. |
- 24 -
SCHEDULE 1
PART 1
LIST OF CURRENT BORROWERS
SIG Euro Holding AG & Co. KGaA
Closure Systems International Holdings Inc.
Closure Systems International B.V.
SIG Austria Holding GmbH
Reynolds Consumer Products Holdings Inc.
Reynolds Group Holdings Inc.
Pactiv Corporation
PART 2
LIST OF CURRENT GUARANTORS, CURRENT 2009 SENIOR SECURED NOTES
GUARANTORS, CURRENT OCTOBER 2010 SECURED NOTES GUARANTORS
AND CURRENT FEBRUARY 2011 SECURED NOTES GUARANTORS
Whakatane Mill Australia Pty Limited
SIG Austria Holding GmbH
SIG Combibloc GmbH & Co KG
SIG Combibloc GmbH
SIG Beverages Brasil Ltda
SIG Combibloc do Brasil Ltda.
Closure Systems International (Brazil) Sistemas de Vedação Ltda
CSI Latin American Holdings Corporation
Evergreen Packaging Canada Limited
CSI Closure Systems Manufacturing de Centro America, S.R.L.
SIG Holdings (UK) Limited
- 25 -
SIG Combibloc Limited
Closure Systems International (UK) Limited
Reynolds Consumer Products (UK) Limited
Reynolds Subco (UK) Limited
Kama Europe Limited
Ivex Holdings, Ltd.
SIG Euro Holding AG & Co. KGaA
SIG Beverages Germany GmbH
SIG Combibloc Holding GmbH
SIG Vietnam Beteiligungs GmbH
SIG Combibloc GmbH
SIG Combibloc Systems GmbH
SIG Combibloc Zerspanungstechnik GmbH
SIG Information Technology GmbH
SIG International Services GmbH
Closure Systems International Holdings (Germany) GmbH
Closure Systems International Deutschland GmbH
Pactiv Hamburg Holdings GmbH
Pactiv Deutschland Holdinggesellschaft mbH
Omni-Pac Ekco GmbH Verpackungsmittel
Omni-Pac GmbH Verpackungsmittel
SIG Asset Holdings Limited
Closure Systems International (Hong Kong) Limited
SIG Combibloc Limited
Evergreen Packaging (Hong Kong) Limited
- 26 -
Closure Systems International Holdings (Hungary) Kft.
CSI Hungary Gyártó és Kereskedelmi Kft. (aka CSI Hungary)
Closure Systems International Holdings (Japan) KK
Closure Systems International Japan, Limited
Beverage Packaging Holdings (Luxembourg) I S.A.
Beverage Packaging Holdings (Luxembourg) III S.à r.l.
Evergreen Packaging (Luxembourg) S.à r.l.
Reynolds Group Issuer (Luxembourg) S.A.
Bienes Industriales del Norte S.A. de C.V.
CSI en Ensenada, S. de R.L. de C.V.
CSI en Saltillo, S. de R.L. de C.V.
CSI Tecniservicio, S. de R.L. de C.V.
Grupo CSI de Mexico, S. de R.L. de C.V.
Tecnicos de Tapas Innovativas S.A. de C.V.
Evergreen Packaging Mexico, S. de R.L. de C.V.
Reynolds Metals Company de Mexico, S. de R.L. de C.V.
Maxpack, S. de R.L. de C.V.
Closure Systems International B.V.
Reynolds Consumer Products International B,V.
Evergreen Packaging International B.V.
Reynolds Packaging International B.V.
Reynolds Group Holdings Limited
Whakatane Mill Limited
SIG Combibloc Group AG
SIG Technology AG
- 27 -
SIG allCap AG
SIG Combibloc (Schweiz) AG
SIG Schweizerische Industrie-Gesellschaft AG
SIG Combibloc Procurement AG
SIG Reinag AG
SIG Combibloc Ltd.
SIG Holding USA Inc.
SIG Combibloc Inc.
Closure Systems International Americas, Inc.
Closure Systems International Holdings Inc.
Closure Systems International Inc.
Reynolds Packaging Machinery Inc.
Closure Systems Mexico Holdings LLC
CSI Mexico LLC
CSI Sales & Technical Services Inc.
Bakers Choice Products, Inc.
Reynolds Consumer Products Holdings Inc.
Reynolds Consumer Products Inc.
Reynolds Foil Inc.
Reynolds Group Holdings Inc.
Reynolds Services Inc.
Blue Ridge Holding Corp.
Blue Ridge Paper Products Inc.
Evergreen Packaging International (US) Inc.
Evergreen Packaging Inc.
- 28 -
Evergreen Packaging USA Inc.
Reynolds Packaging, Inc.
Reynolds Packaging LLC
Reynolds Packaging Kama Inc.
Reynolds Food Packaging LLC
Reynolds Flexible Packaging Inc.
Southern Plastics Inc.
Ultra Pac, Inc.
BRPP, LLC
Reynolds Group Issuer Inc.
Reynolds Group Issuer LLC
Pactiv Corporation (formerly Reynolds Acquisition Corporation)
Pactiv Factoring LLC
Pactiv RSA LLC
Pactiv Retirement Administration LLC
Pactiv Germany Holdings, Inc.
Pactiv International Holdings Inc.
Pactiv Management Company LLC
PCA West Inc.
Prairie Packaging, Inc.
PWP Holdings, Inc.
PWP Industries, Inc.
Newspring Industrial Corp.
Pactiv Canada Inc.
The Baldwin Group Limited
- 29 -
J. & W. Baldwin (Holdings) Limited
Omni-Pac U.K. Limited
Conference Cup Ltd.
Dopaco Canada, Inc.
Dopaco, Inc.
Garven Incorporated
Central de Bolsas, S. de R.L. de C.V.
Servicios Industriales Jaguar, S. de C.V.
Servicio Terrestre Jaguar, S. de C.V.
Grupo Corporativo Jaguar, S. de C.V.
Pactiv Mexico, S. de R.L. de C.V.
PART 3
LIST OF CURRENT NEW SECURED NOTES GUARANTORS1
Whakatane Mill Australia Pty Limited
SIG Beverages Brasil Ltda
SIG Combibloc do Brasil Ltda.
Closure Systems International (Brazil) Sistemas de Vedação Ltda
CSI Latin American Holdings Corporation
Evergreen Packaging Canada Limited
CSI Closure Systems Manufacturing de Centra America, S.R.L.
SIG Holdings (UK) Limited
SIG Combibloc Limited
Closure Systems International (UK) Limited
Reynolds Consumer Products (UK) Limited
|
|
|
| 1 |
|
Post closing Austrian guarantors excluded. |
- 30 -
Reynolds Subco (UK) Limited
Kama Europe Limited
Ivex Holdings, Ltd.
SIG Euro Holding AG & Co. KGaA
SIG Beverages Germany GmbH
SIG Combibloc Holding GmbH
SIG Vietnam Beteiligungs GmbH
SIG Combibloc GmbH
SIG Combibloc Systems GmbH
SIG Combibloc Zerspanungstechnik GmbH
SIG Information Technology GmbH
SIG International Services GmbH
Closure Systems International Holdings (Germany) GmbH
Closure Systems International Deutschland GmbH
Pactiv Hamburg Holdings GmbH
Pactiv Deutschland Holdinggesellschaft mbH
Omni-Pac Ekco GmbH Verpackungsmittel
Omni-Pac GmbH Verpackungsmittel
SIG Asset Holdings Limited
Closure Systems International (Hong Kong) Limited
SIG Combibloc Limited
Evergreen Packaging (Hong Kong) Limited
Closure Systems International Holdings (Hungary) Kft.
CSI Hungary Gyarto es Kereskedelmi Kft. (aka CSI Hungary)
Closure Systems International Holdings (Japan) KK
- 31 -
Closure Systems International Japan, Limited
Beverage Packaging Holdings (Luxembourg) I S.A.
Beverage Packaging Holdings (Luxembourg) III S.à r.l.
Evergreen Packaging (Luxembourg) S.à r.l.
Reynolds Group Issuer (Luxembourg) S.A.
Bienes Industriales del Norte S.A. de C.V.
CSI en Ensenada, S. de R.L. de C.V.
CSI en Saltillo, S. de R.L. de C.V.
CSI Tecniservicio, S. de R.L. de C.V.
Grupo CSI de Mexico, S. de R.L. de C.V.
Tecnicos de Tapas Innovativas S.A. de C.V.
Evergreen Packaging Mexico, S. de R.L. de C.V.
Reynolds Metals Company de Mexico, S. de R.L. de C.V.
Maxpack, S. de R.L. de C.V.
Closure Systems International B.V.
Reynolds Consumer Products International B.V.
Evergreen Packaging International B.V.
Reynolds Packaging International B.V.
Reynolds Group Holdings Limited
Whakatane Mill Limited
SIG Combibloc Group AG
SIG Technology AG
SIG allCap AG
SIG Combibloc (Schweiz) AG
SIG Schweizerische Industrie-Gesellschaft AG
- 32 -
SIG Combibloc Procurement AG
SIG Reinag AG SIG
Combibloc Ltd. SIG
Holding USA Inc.
SIG Combibloc Inc.
Closure Systems International Americas, Inc.
Closure Systems International Holdings Inc.
Closure Systems International Inc.
Reynolds Packaging Machinery Inc.
Closure Systems Mexico Holdings LLC
CSI Mexico LLC
CSI Sales & Technical Services Inc,
Bakers Choice Products, Inc.
Reynolds Consumer Products Holdings Inc.
Reynolds Consumer Products Inc.
Reynolds Foil Inc.
Reynolds Group Holdings Inc.
Reynolds Services Inc.
Blue Ridge Holding Corp.
Blue Ridge Paper Products Inc.
Evergreen Packaging International (US) Inc.
Evergreen Packaging Inc.
Evergreen Packaging USA Inc.
Reynolds Packaging, Inc.
Reynolds Packaging LLC
- 33 -
Reynolds Packaging Kama Inc.
Reynolds Food Packaging LLC
Reynolds Flexible Packaging Inc.
Southern Plastics Inc.
Ultra Pac, Inc.
BRPP, LLC
Reynolds Group Issuer Inc.
Reynolds Group Issuer LLC
Pactiv Corporation (formerly Reynolds Acquisition Corporation)
Pactiv Factoring LLC
Pactiv RSA LLC
Pactiv Retirement Administration LLC
Pactiv Germany Holdings, Inc.
Pactiv International Holdings Inc.
Pactiv Management Company LLC
PCA West Inc.
Prairie Packaging, Inc.
PWP Holdings, Inc.
PWP Industries, Inc.
Newspring Industrial Corp.
Pactiv Canada Inc.
The Baldwin Group Limited
J. & W. Baldwin (Holdings) Limited
Omni-Pac U.K. Limited
Conference Cup Ltd.
- 34 -
Dopaco Canada, Inc.
Dopaco, Inc.
Garven Incorporated
Central de Bolsas, S. de R.L. de C.V.
Servicios Industrials Jaguar, S. de C.V.
Servicio Terrestre Jaguar, S. de C.V.
Grupo Corporativo Jaguar, S. de C.V.
Pactiv México, S. de R.L. de C.V.
- 35 -
PART 4
COPY OF SHAREHOLDERS LISTS
(GESELLSCHAFTERLISTEN)
- 36 -
Amtsgericht Hamburg
HRB 102663
Amtlicher Ausdruck aus dem Registerordner
Dokument: Liste der Gesellschafter
(20355_HRB102663_GEL_S_2008-07-02_2208909_#00l.PDF)
Eingestellt in den Registerordner am
(letztes Freigabedatum): 15.07.2008
Abgerufen aus dem Registerordner am; 09.08.2011 14:19:50
Dieser Ausdruck bezeugt den Inhalt eines Dokuments des Registerordners.
Dieser Ausdruck wird nicht
unterschrieben und gilt als beglaubigte Abschrift.
Hamburg, den 09.08.2011
/s/ [ILLEGIBLE]
Heil
Justizobersekretär
NOTARIAT AM ALSTERTOR
DR HENNING VOSCHBRAU DR. ROLF-HERMANN HENNIGES
DR. WOLFGANG ENGELHARDT JOHANN JONETZKIJ
DR. ROBERT DIEKGRĂF DR ARNE HELMS, L.L.M DR. MICHAEL VON HINDEN
NOTARE
Liste der Gesellschafter der Gesellschaft mit
beschränkter Haftung in Firma Omni-Pac Ekco GmbH
Verpackungsmittel mit dem Sitz in Hamburg mit der
übernommenen Stammeinlage (Liste gem. § 40 GmbHG)
die Gesellschaft mit beschränkter Haftung in Firma
Pactiv Deutschland Holdinggeseldschaft mbH
mit dem Site in Hamburg
| |
|
|
|
|
|
|
|
|
|
(Amtsgericht Hamburg, HR B 71 774) |
|
|
|
|
|
|
|
|
eine Stammeinlage in Hölie von |
|
EUR |
|
|
24.900,00 |
|
eine Stammeinlage in Hölie von |
|
EUR |
|
|
100,00 |
|
Hamburg, den 2. Juli 2008
| |
|
|
|
|
| |
|
|
| |
/s/ Petro Kowalskyj
|
|
| |
Petro Kowalskyj |
|
| |
| |
/s/ Stefan Beese
|
|
| |
Stefan Beese |
|
| |
|
|
| |
ALSTERTOR 14-20095 HAMBURG — ECKE
FERDINANDSTRASSE
TELEFON: (040) 300502-0. TELEFAX:
(040) 300502-92/-93/-94
POSTANSCHRIFT: POSTFACH 10
54 09 -20037 HAMBURG
WWW ALSTERTOR DE -
NOTARIAT@ALSTBRTOR DE
NOTARIAT AM ALSTERTOR
DR. HENNING VOSCHERAU DR. ROLF-HERMANN HENNIGES
DR. WOLFGANG ENGELHARDT
JOHANN JONETZKI
DR. ROBERT DIEKGRĂF DR. ARNE HELMS, LL.M. DR.
MICHAEL VON HINDEN
NOTARE
ELEKTRONISCH BEGLAUBIGTE ABSCHRIFT
Durch die von mir erstellte qualifizierte elektronische Signatur beglaubige ich die inhaltliche
Übereinstimmung dieses elektronischen Dokuments mit dem mir bei Erstellung der qualifi-zierten
elektronischen Signatur in Urschrift vorliegenden Dokument.
Hamburg, 7. Juli 2008
Dr. Wolfgang Engelhardt, Notar
ALSTERTOR 14 — 20095 HAMBURG - ECKE FERDINANDSTRASSE
TELEFON: (0 40) 30 05 02-0 - TELEFAX: (040) 300502-92/-93/-94
POSTANSCHRIPT: POSTFACH10 54 09 — 20037 HAMBURG
WWW. ALSTERTOR.DE - NOTARIAT@ALSTERTOR.DE
Beglaubigte Fotokopie
Liste der Gesellschafter
der Gesellschaft mit beschränkter Haftung in Firma
Omni-Pac GmbH Verpackungsmittel
mit dem Sitz in Elsfleth
Amtsgericht Oldenburg (i. Oldenburg), HRB 201738
mit den üibernommenen Geschäftsaateilen
| |
|
|
|
|
|
|
|
|
|
|
|
|
| Gesellschafter |
|
Geschäftsanteil Nr. |
|
|
Nennbe-trag in EUR |
|
|
Historie |
|
Gesellschaft mit
beschränkter
Haftung in Firma |
|
|
1 |
|
|
|
24.900,00 |
|
|
|
|
|
Pactiv Deutschland,
Holdinggesellschaft
mbH mit Sitz in
Hamburg
(Amtsgericht:
Hamburg, HRB 71774) |
|
|
2 |
|
|
|
100,00 |
|
|
von Omni-Pac Verpackungsmittel Ver-waltungs GmbH (AG Oldenburg HRB 100267) durch Verschmslzung übergegangen
|
Stammkapital in EUR |
|
|
|
|
|
|
25.000,00 |
|
|
|
|
|
Stand: 6. Juni 2008
| Grand der Liste: |
|
Veränderungen. vor dem 1. November 2008
und Nummerierung der Geschaftsanteile |
Hamburg, den 13. Oktober 2010
| |
|
|
|
|
| |
|
|
| |
/s/ Petro Kowalskyj
|
|
| |
Petro Kowalskyj |
|
| |
| |
/s/ Stefan Beese
|
|
| |
Stefan Beese |
|
| |
|
|
| |
Appendix 8
SIG COMBIBLOC HOLDING GMBH
as Pledgor
SIG COMBIBLOC SYSTEMS GMBH
SIG VIETNAM BETEILIGUNGS GMBH
SIG COMBIBLOC GMBH
as Companies
THE BANK OF NEW YORK MELLON
as Collateral Agent and Pledgee
SHARE PLEDGE AGREEMENT RELATING TO THE
SHARES IN SIG COMBIBLOC SYSTEMS GMBH,
SIG VIETNAM BETEILIGUNGS GMBH AND SIG
COMBIBLOC GMBH
(Geschäftsanteilsverpfändung)
The taking of this document or any certified copy of it or any document which constitutes
substitute documentation for it, or any document which includes written confirmations or references
to it, into Austria as well as printing out any e-mail communication which refers to any Credit
Document (as defined in Clause 1 of this document) in Austria or sending any e-mail communication
to which a pdf scan of this document is attached to an Austrian addressee or sending any e-mail
communication carrying an electronic or digital signature which refers to any Credit Document to an
Austrian addressee may cause the imposition of Austrian stamp duty. Accordingly, keep the original
document as well as all certified copies thereof and written and signed references to it outside of
Austria and avoid printing out any email communication which refers to any Credit Document in
Austria or sending any e-mail communication to which a pdf scan of this document is attached to an
Austrian addressee or sending any e-mail communication carrying an electronic or digital signature
which refers to any Credit Document to an Austrian addressee.
Contents
| |
|
|
|
|
| Clause |
|
Page |
|
1. Definitions and Language |
|
|
6 |
|
2. Pledged Shares |
|
|
12 |
|
3. Pledge |
|
|
13 |
|
4. Scope of the Pledges |
|
|
13 |
|
5. Purpose of the Pledges |
|
|
14 |
|
6. Exercise of Membership Rights |
|
|
14 |
|
7. Enforcement of the Pledges |
|
|
14 |
|
8. Limitations on Enforcement |
|
|
16 |
|
9. Approval and Confirmation |
|
|
19 |
|
10. Undertakings of the Pledgor |
|
|
19 |
|
11. Delegation |
|
|
20 |
|
12. Indemnity |
|
|
20 |
|
13. No Liability |
|
|
21 |
|
14. Duration and Independence |
|
|
21 |
|
15. Release of Pledge (Pfandfreigabe) |
|
|
22 |
|
16. Partial Invalidity; Waiver |
|
|
22 |
|
17. Amendments |
|
|
23 |
|
18. Notices and their Language |
|
|
23 |
|
19. Notification |
|
|
24 |
|
20. Applicable Law, Jurisdiction |
|
|
25 |
|
Schedule 1 |
|
|
26 |
|
Part 1 List of Current Borrowers |
|
|
26 |
|
Part 2 List of Current Guarantors, Current 2009 Senior Secured Notes Guarantors, Current
October 2010 Secured Notes Guarantors and Current February 2011 Secured Notes
Guarantors |
|
|
26 |
|
Part 3 List of Current New Secured Notes Guarantors |
|
|
31 |
|
Schedule 2 Copy of Shareholders Lists (Gesellschafterlisten) |
|
|
37 |
|
Schedule 3 Copy of Shareholders’ resolution in respect of Pledgor |
|
|
38 |
|
- 1 -
This SHARE PLEDGE AGREEMENT (the “Agreement”) is made on September 8, 2011
BETWEEN:
| (1) |
|
SIG Combibloc Holding GmbH, a limited liability company (Gesellschaft mit beschrdnkter
Haftung) organised under the laws of the Federal Republic of Germany, having its business
address at Rurstraße 58, 52441 Linnich, Germany, which is registered in the commercial
register (Handelsregister) of the local court (Amtsgericht) of Duren under HRB 5751 (the
“Pledgor”); |
| |
| (2) |
|
SIG Combibloc Systems GmbH, a limited liability company (Gesellschaft mit beschrdnkter
Haftung) organised under the laws of the Federal Republic of Germany having its corporate seat
in Linnich, Germany and its business address at Rurstraße 58, 52441 Linnich, Germany, which is
registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of
Düren under HRB 3935 (the “Company 1”); |
| |
| (3) |
|
SIG Vietnam Beteiligungs GmbH, a limited liability company (Gesellschaft mit beschränkter
Haftung) organised under the laws of the Federal Republic of Germany having its corporate seat
in Waldshut-Tiengen, Germany and its business address at Weilheimer Straße 5, 79761
Waldshut-Tiengen, Germany, which is registered in the commercial register (Handelsregister) of
the local court (Amtsgericht) of Freiburg i. Br. under HRB 621587 (the “Company 2”); |
| |
| (4) |
|
SIG Combibloc GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung)
organised under the laws of the Federal Republic of Germany having its corporate seat in
Linnich, Germany and its business address at Rurstraße 58, 52441 Linnich, Germany, which is
registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of
Düren under HRB 5182 (the “Company 3” and together with Company 1, Company 2 and Company 3,
the “Companies”); and |
| |
| (5) |
|
The Bank of New York Mellon, having its business address at 1 Wall Street, New York, N.Y.
10286, The United States of America, in its capacity as collateral agent under the First Lien
Intercreditor Agreement (as defined below) (the “Collateral Agent” or the “Pledgee”).
|
WHEREAS:
| (A) |
|
Pursuant to the second amended and restated senior secured multi-currency term and revolving
credit agreement dated 9 August 2011 of currently up to USD 4,445,000,000 and EUR 330,000,000
between, inter alia, the parties listed in Schedule 1 Part 1 hereto as current borrowers (the
“Current Borrowers”), the parties listed in Schedule 1 Part 2 hereto as current guarantors
(the “Current Guarantors”), Credit Suisse AG as administrative agent and others (as amended,
varied, novated, restated, supplemented, superseded or extended from time to time, the “Second
Amended and Restated Credit Agreement”), which amends and restates the multicurrency term and
revolving credit agreement dated 5 November 2009 between, inter alia, the Current Borrowers
and the Current Guarantors, Credit Suisse AG as administrative agent and others (as amended
and restated pursuant to the Second Amended and Restated Credit Agreement and as further
amended, varied, novated, restated, supplemented, superseded or extended from time to time,
hereinafter the |
- 3 -
| |
|
“Credit Agreement”), certain lenders (together the “Original Lenders”) have granted certain
facilities to the Current Borrowers and certain other entities which may accede or may have
acceded to the Credit Agreement as additional borrowers. |
| (B) |
|
Pursuant to a senior secured notes indenture dated 5 November 2009 between, inter alia,
Reynolds Group Issuer LLC, Reynolds Group Issuer Inc., and Reynolds Group Issuer (Luxembourg)
S.A as ultimate issuers (the “Issuers”), certain affiliates of the Issuers listed in Schedule
1 Part 2 hereto as current 2009 senior secured notes guarantors (the “Current 2009 Senior
Secured Notes Guarantors”) and The Bank of New York Mellon, as indenture trustee, principal
paying agent, transfer agent and registrar, (as amended, varied, novated, supplemented,
superseded or extended from time to time, the “2009 Senior Secured Notes Indenture”), the
Issuers have issued senior secured notes due 2016 in the aggregate principal amount of USD
1,125,000,000 (the “US Secured Notes”) and senior secured notes due 2016 in the aggregate
principal amount of EUR 450,000,000 (the “Euro Secured Notes” and together with the US Secured
Notes the “2009 Senior Secured Notes”) to certain noteholders. |
| |
| (C) |
|
Pursuant to a senior secured notes indenture dated 15 October 2010 between, inter alia, RGHL
US Escrow I LLC, RGHL US Escrow I Inc., and RGHL Escrow Issuer (Luxembourg) I S.A. as escrow
issuers (the “Escrow Issuers”), The Bank of New York Mellon as indenture trustee, The Bank of
New York Mellon, London Branch as principal paying agent, The Bank of New York Mellon as
collateral agent and Wilmington Trust (London) Limited as additional collateral agent (as
amended, varied, novated, supplemented, superseded or extended from time to time, the “October
2010 Secured Notes Indenture”), the Escrow Issuers have issued secured notes due 2019 in the
aggregate principal amount of USD 1,500,000,000 in escrow (the “ October 2010 Secured Notes”).
In connection with the release from escrow of the proceeds of the October 2010 Secured Notes,
which occurred on 16 November 2010, the Escrow Issuers were merged with and into the Issuers,
with each of the Issuers surviving the applicable mergers or other transfers and assuming by
operation of law the obligations of the applicable Escrow Issuers with respect to the October
2010 Secured Notes Indenture and the October 2010 Secured Notes. Certain affiliates
of the Issuers listed in Schedule 1 Part 2 hereto have acceded to the October 2010
Secured Notes Indenture as current October 2010 secured notes guarantors (the
“Current October 2010 Secured Notes Guarantors”). |
| |
| (D) |
|
Pursuant to a senior secured notes indenture dated 1 February 2011 between, inter
alia, the Issuers, The Bank of New York Mellon as indenture trustee, The Bank of
New York Mellon, London Branch as principal paying agent, The Bank of New York
Mellon as collateral agent and Wilmington Trust (London) Limited as additional
collateral agent (as amended, varied, novated, supplemented, superseded or extended
from time to time, the “February 2011 Secured Notes Indenture”), the Issuers have
issued secured notes due 2021 in the aggregate principal amount of USD
1,000,000,000 (the “February 2011 Secured Notes”) which are guaranteed by
certain affiliates of the Issuers listed in Schedule 1 Part 2 hereto as current February
2011 secured notes guarantors (the “Current February 2011 Secured Notes
Guarantors”). |
- 4 -
| (E) |
|
The Pledgor has entered into the Existing Share Pledge Agreements (as defined
below). |
| |
| (F) |
|
Pursuant to a senior secured notes indenture dated 9 August 2011 between, inter alia,
the RGHL US Escrow II LLC and RGHL US Escrow II Inc. as escrow issuers (the
“August 2011 Escrow Issuers”), The Bank of New York Mellon as indenture trustee,
The Bank of New York Mellon, London Branch as principal paying agent, The Bank
of New York Mellon as collateral agent and Wilmington Trust (London) Limited as
additional collateral agent (as amended, varied, novated, supplemented, superseded or
extended from time to time, the “New Secured Notes Indenture”), the August 2011
Escrow Issuers have issued senior secured notes due 2019 in the aggregate principal
amount of USD 1,500,000,000 (the “New Secured Notes”). In connection with the
release from escrow of the proceeds of the New Secured Notes, RGHL US Escrow II
Inc. and RGHL US Escrow II LLC shall be merged with and into Reynolds Group
Issuer Inc. and Reynolds Group Issuer LLC (together with Reynolds Group Issuer
(Luxembourg) S.A. the “August 2011 Ultimate Issuers”), respectively, and the
obligations of the August 2011 Escrow Issuers shall be assumed by the August 2011
Ultimate Issuers pursuant to one or more supplemental indentures between, among
others, the August 2011 Escrow Issuers, the August 2011 Ultimate Issuers, The Bank
of New York Mellon, as trustee, principal paying agent, transfer agent, registrar and
collateral agent and Wilmington Trust (London) Limited, as additional collateral
agent. At such time certain affiliates of the August 2011 Ultimate Issuers listed in
Schedule 1 Part 3 hereto as current new secured notes guarantors (the “Current New
Secured Notes Guarantors”) will accede to the New Secured Notes Indenture). |
| |
| (G) |
|
As a result of the Second Amended and Restated Credit Agreement and the
amendment No. 6 and incremental term loan assumption agreement dated 9 August
2011 between, inter alia, the Current Borrowers, the Current Guarantors, Credit
Suisse AG as administrative agent and others (the “Amendment No. 6 and
Incremental Term Loan Assumption Agreement”) certain lenders have agreed to
grant incremental term loans in an aggregate amount of up to USD 2,000,000,000. |
| |
| (H) |
|
The Pledgor has agreed to grant an additional pledge (subject to the pledges arising
under the Existing Share Pledge Agreements (as defined below)) over its Shares (as
defined below) in the Companies as security for the Pledgee’s respective claims
against the Grantors (as defined below) (or any of them) in respect of the Obligations
(as defined below). |
| |
| (I) |
|
SIG Euro Holding AG & Co. KGaA and SIG Combibloc Group AG as the
shareholders of the Pledgor have approved the Pledge (as defined below) over the
Shares (as defined below) and over any and all ancillary rights and claims associated
with the Shares (as defined below) (as more particularly specified in Clause 4) and
consented to their transfer upon enforcement of the Pledge (as defined below). Such
approval has been granted by a shareholders’ resolution as required in section 13
paragraph 6 of the articles of association of the Pledgor a copy of which is attached as
Schedule 3. |
- 5 -
| (J) |
|
The security created by or pursuant to this Agreement is to be administered by the
Collateral Agent for the Secured Parties (as defined below) pursuant to a first lien
intercreditor agreement dated 5 November 2009 (as amended by the Amendment No, 1 and Joinder
Agreement (as defined below)) between, inter alia, the Collateral Agent, the Indenture
Trustee, the Administrative Agent and the Grantors (each as defined below) and others (as
amended, varied, novated, supplemented, superseded or extended from time to time, the “First
Lien Intercreditor Agreement”). |
NOW, IT IS AGREED as follows:
| 1. |
|
DEFINITIONS AND LANGUAGE |
| |
| 1.1 |
|
In this Agreement: |
| |
| |
|
“Administrative Agent” means Credit Suisse AG, Cayman Islands Branch, having its business
address at Eleven Madison Avenue, New York, NY 10010, United States of America in its
capacity as administrative agent under the Credit Agreement and any successor appointed as
administrative agent under the Credit Agreement. |
| |
| |
|
“Amendment No. 1 and Joinder Agreement” means the joinder agreement dated 21 January 2010
relating to the First Lien Intercreditor Agreement made among (amongst others) the
Collateral Agent, Wilmington Trust (London) Limited, Credit Suisse AG and Reynolds Group
Holdings Limited pursuant to which Wilmington Trust (London) Limited is appointed as
additional collateral agent and became party to the First Lien Intercreditor Agreement. |
| |
| |
|
“Borrowers” means the Current Borrowers and any entity which may accede to the Credit
Agreement as an additional borrower and “Borrower” means any of them. |
| |
| |
|
“Cash Management Bank” shall mean Citibank N.A., Banco Nacional De Mexico S.A., Citibank
International PLC, UK, Citibank (China) Co., Limited, Citibank Global Markets Deutschland AG
& Co KGaA, Citibank ZRT, Hungary, a Lender, the Administrative Agent or any of the Lender’s
or the Administrative Agent’s affiliates (at the time the cash management services
arrangement is entered into) provided in each case it has become a party to, or by execution
of an additional bank secured party acknowledgment has agreed to be bound by the terms of,
the First Lien Intercreditor Agreement in its capacity as cash management bank. |
| |
| |
|
“Cash Management Services” shall mean any agreement or arrangement by a Cash Management Bank
to provide any composite accounting or other cash pooling arrangements and netting,
overdraft protection and other arrangements with any bank arising under standard business
terms of such Cash Management Bank to a Grantor. |
| |
| |
|
“Credit Documents” shall mean the Loan Documents, the 2009 Senior Secured Notes Documents,
the October 2010 Secured Notes Documents, the February 2011 Secured Notes Documents and the
New Secured Notes Documents. |
| |
| |
|
“Enforcement Event” shall mean an Event of Default. |
- 6 -
| |
|
“Event of Default” means any event of default (Kündigungsgrund) under the Credit Agreement and/or
the 2009 Senior Secured Notes Indenture and/or the October 2010 Secured Notes Indenture and/or the
February 2011 Secured Notes Indenture and/or the New Secured Notes Indenture. |
| |
| |
|
“Existing Intercreditor Agreement” means the existing intercreditor agreement dated 11 May 2007 (as
amended by a letter dated 21 June 2007 and a further letter dated 29 June 2007, as amended and
restated on 5 November 2009 and as further amended on 5 November 2010) between, inter alia,
Beverage Packaging Holdings (Luxembourg) I S.A., Rank Group Holdings Limited (now Reynolds Group
Holdings Limited), Beverage Packaging Holdings (Luxembourg) II S.A., Beverage Packaging Holdings
(Luxembourg) III S.à r.l., Credit Suisse AG (formerly Credit Suisse) as security trustee and
others. |
| |
| |
|
“Existing Share Pledge Agreements” means |
| |
a) |
|
the share pledge agreement dated 5 November 2009 (as amended by a confirmation and amendment
agreement dated 4 May 2010) entered into between SIG Combibloc Holding GmbH as pledgor and The
Bank of New York Mellon as collateral agent and as pledgee and others as pledgees; |
| |
| |
b) |
|
a confirmation and amendment agreement dated 4 May 2010 entered into between, inter alios,
SIG Combibloc Holding GmbH as pledgor and The Bank of New York Mellon as collateral agent and
others (the “Confirmation and Amendment Agreement”); |
| |
| |
c) |
|
the share pledge agreement dated 16 November 2010 entered into between SIG Combibloc Holding
GmbH as pledgor and The Bank of New York Mellon as Collateral Agent and as pledgee; and |
| |
| |
d) |
|
the share pledge agreement dated 2 March 2011 entered into between SIG Combibloc Holding GmbH
as pledgor and The Bank of New York Mellon as collateral agent and as pledgee. |
| |
|
“Existing Shares” has the meaning given to such term in sub-Clause 2.1 hereof. |
| |
| |
|
“February 2011 Secured Notes Documents” shall mean the February 2011 Secured Notes Indenture, the
February 2011 Secured Notes Guarantees, the February 2011 Secured Notes, the Intercreditor
Arrangements, any supplemental indenture, any security document relating to the February 2011
Secured Notes and/or the February 2011 Secured Notes Indenture and any other document that may be
entered into pursuant to any of the foregoing. |
| |
| |
|
“February 2011 Secured Notes Guarantees” shall mean the guarantees of the obligations of the
Issuers under the February 2011 Secured Notes and the February 2011 Secured Notes Indenture by the
February 2011 Secured Notes Guarantors. |
- 7 -
| |
|
“February 2011 Secured Notes Guarantors” means the Current February 2011 Secured Notes Guarantors
and any entity which may accede to the February 2011 Secured Notes Indenture as additional
guarantor. |
| |
| |
|
“February 2011 Secured Notes Holders” shall mean the holders from time to time of the February 2011
Secured Notes. |
| |
| |
|
“February 2011 Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its
capacity as indenture trustee under the February 2011 Secured Notes Indenture and any successor
appointed as indenture trustee under the February 2011 Secured Notes Indenture. |
| |
| |
|
“Future Shares” means all additional shares in the capital of the Companies (irrespective of their
nominal value) which the Pledgor may acquire in the future in the event of a share transfer, a
share split, a share combination, an increase of the capital of any of the Companies (including by
way of authorised capital (genehmigtes Kapital)) or otherwise. |
| |
| |
|
“Grantors” means the Loan Parties, the Issuers, the 2009 Senior Secured Notes Guarantors, the
October 2010 Secured Notes Guarantors, the February 2011 Secured Notes Guarantors and the New
Secured Notes Guarantors and any person that has granted a security interest to the Collateral
Agent and/or the Secured Parties in respect of the obligations of the Loan Parties, the Issuers and
the 2009 Senior Secured Notes Guarantors, the October 2010 Secured Notes Guarantors, the February
2011 Secured Notes Guarantors and the New Secured Notes Guarantors under the Credit Documents and
“Grantor” means any of them. |
| |
| |
|
“Grantors’ Agent” shall mean Reynolds Group Holdings Limited or any other person appointed as agent
of the Grantors in accordance with the Principal Finance Documents. |
| |
| |
|
“Group” means Reynolds Group Holdings Limited and its direct or indirect subsidiaries
(Tochtergesellschaften). |
| |
| |
|
“Hedge Counterparty” means a Lender, the Administrative Agent or any of the Lender’s or the
Administrative Agent’s affiliates (at the time a hedging agreement is entered into) who has entered
into a hedging agreement for the purpose of hedging interest rate liabilities and/or any exchange
rate and/or commodity price risks provided it has become a party, or by execution of an additional
bank secured party acknowledgment has agreed to be bound by the terms of, to the First Lien
Intercreditor Agreement in its capacity as hedge counterparty. |
| |
| |
|
“Incremental Assumption Agreement” shall mean an incremental assumption agreement relating to
incremental facilities of up to USD 2,000,000,000 among, and in form and substance reasonably
satisfactory to, one or more Borrowers, the Administrative Agent, one or more Incremental Term
Lenders and/or one or more Incremental Revolving Credit Lenders pursuant to which one or more
Incremental Term Lenders make available Incremental Term Loan Commitments and/or one or |
- 8 -
| |
|
more Incremental Revolving Credit Lenders make available Incremental Revolving Credit Commitments
respectively. |
| |
|
“Incremental Revolving Credit Lender” shall mean a Lender with an Incremental Revolving Credit
Commitment or an outstanding revolving loan under the Credit Agreement of any class as a result of
an Incremental Revolving Credit Commitment. |
| |
| |
|
“Incremental Revolving Credit Commitment” shall mean the commitment of any Lender, established
pursuant to the Credit Agreement, to make available certain revolving credit loans to one or more
Borrowers. |
| |
| |
|
“Incremental Term Lender” shall mean a Lender with an Incremental Term Loan Commitment. |
| |
| |
|
“Incremental Term Loan Commitment” shall mean the commitment of any Lender, established pursuant to
the Credit Agreement, to make available certain term loans to one or more Borrowers. |
| |
| |
|
“Indenture Trustee” shall mean The Bank of New York Mellon, in its capacity as indenture trustee
under the 2009 Senior Secured Notes Indenture and any successor appointed as indenture trustee
under the 2009 Senior Secured Notes Indenture. |
| |
| |
|
“Intercreditor Arrangements” means the First Lien Intercreditor Agreement and the Existing
Intercreditor Agreement, in each case as amended, novated, supplemented, restated, or modified from
time to time. |
| |
| |
|
“Issuing Bank” means Credit Suisse AG or any other Lender or any affiliate of Credit Suisse AG or
any other Lender that issues letters of credit or bank guarantees under the Credit Agreement. |
| |
| |
|
“Lenders” shall mean the Original Lenders and any entity which may become a lender under the Credit
Agreement in the future and “Lender” means any of them. |
| |
| |
|
“Loan Documents” shall mean the Credit Agreement, the Amendment No.l and Joinder Agreement, the
Second Amended and Restated Credit Agreement and the Amendment No. 6 and Incremental Term Loan
Assumption Agreement, any borrowing subsidiary agreement and/or guarantor joinder agreement
relating to the Credit Agreement, any letter of credit or bank guarantee relating to the Credit
Agreement, any security documents relating to the Credit Agreement, any hedging agreement entered
into by a Hedge Counterparty and a Grantor, each Incremental Assumption Agreement, the
Intercreditor Arrangements, each Promissory Note, any agreement between a Grantor and a Cash
Management Bank relating to Cash Management Services, each Local Facility Agreement and any other
document that may be entered into pursuant to any of the foregoing in relation to the Credit
Agreement. |
- 9 -
| |
|
“Loan Parties” shall mean the Borrowers, the Current Guarantors and any entity which may accede to
the Credit Agreement as additional guarantor and a “Loan Party” means any of them. |
| |
| |
|
“Local Facilities” means working capital facilities provided to a Grantor (other than Beverage
Packaging Holdings (Luxembourg) I S.A., Beverage Packaging Holdings (Luxembourg) II S.A. Beverage
Packaging Holdings (Luxembourg) III S.à.r.l. and the Borrowers) by a Local Facility Provider and
“Local Facility” means any of them. |
| |
| |
|
“Local Facility Agreements” shall mean any agreement under which a Local Facility is made
available. |
| |
| |
|
“Local Facility Provider” means HSBC Trinkaus & Burkhardt AG, Deutsche Bank AG, Commerzbank
Aktiengesellschaft and Hong Kong and Shanghai Banking Corporation Ltd., Thailand, Bank of America,
N.A., Canada Branch, FIA Card Services, N.A., Citibank N.A., Citibank (China) Co., Ltd., Banco
National de Mexico, S.A., Integrante del Grupo Financiero Banamex, Bank of America, N.A., provided
in each case it has become a party to, or by execution of an additional bank secured party
acknowledgment has agreed to be bound by the terms of, the First Lien Intercreditor Agreement in
its capacity as local facility provider. |
| |
| |
|
“New Secured Notes Documents” shall mean the New Secured Notes Indenture, the New Secured Notes
Guarantees, the New Secured Notes, the Intercreditor Arrangements, any supplemental indenture, any
security document relating to the New Secured Notes and/or the New Secured Notes Indenture and any
other document that may be entered into pursuant to any of the foregoing. |
| |
| |
|
“New Secured Notes Guarantees” shall mean the guarantees of the obligations of the August 2011
Escrow Issuers and/or of the August 2011 Ultimate Issuers under the New Secured Notes and the New
Secured Notes Indenture by the New Secured Notes Guarantors. |
| |
| |
|
“New Secured Notes Guarantors” means the Current New Secured Notes Guarantors and any entity which
may accede to the New Secured Notes Indenture as additional guarantor. |
| |
| |
|
“New Secured Notes Holders” shall mean the holders from time to time of the New Secured Notes. |
| |
| |
|
“New Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its capacity as
indenture trustee under the New Secured Notes Indenture and any successor appointed as indenture
trustee under the New Secured Notes Indenture. |
| |
| |
|
“Obligations” shall mean all present and future obligations and liabilities (whether actual or
contingent and whether owed jointly or severally or in any other capacity whatsoever) of each
Grantor to the Pledgee under each or any of the Credit Documents (including, but not limited to,
the Parallel Obligations), including with |
- 10 -
| |
|
respect to all costs, charges and expenses incurred by
the Pledgee in connection with the protection, preservation or enforcement of its rights under the
Credit Documents or any other document evidencing or securing any such liabilities. The Obligations
shall further include any obligation based on unjust enrichment (ungerechtfertigte Bereicherung) or
tort (Delikt), |
| |
|
“October 2010 Secured Notes Documents” shall mean the October 2010 Secured Notes Indenture, the
October 2010 Secured Notes Guarantees, the October 2010 Secured Notes, the Intercreditor
Arrangements, any supplemental indenture relating to the October 2010 Secured Notes Indenture, any
security document relating to the October 2010 Secured Notes and/or the October 2010 Secured Notes
Indenture and any other document that may be entered into pursuant to any of the foregoing. |
| |
| |
|
“October 2010 Secured Notes Guarantees” shall mean the guarantees of the obligations of the Issuers
under the October 2010 Secured Notes and the October 2010 Secured Notes Indenture by the October
2010 Secured Notes Guarantors. |
| |
| |
|
“October 2010 Secured Notes Guarantors” means the Current October 2010 Secured Notes Guarantors and
any entity which may accede to the October 2010 Secured Notes Indenture as additional guarantor. |
| |
| |
|
“October 2010 Secured Notes Holders” shall mean the holders from time to time of the October 2010
Secured Notes. |
| |
| |
|
“October 2010 Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its
capacity as indenture trustee under the October 2010 Secured Notes Indenture and any successor
appointed as indenture trustee under the October
2010 Secured Notes Indenture. |
| |
| |
|
“Parallel Obligations” means the independent obligations of any of the Grantors arising pursuant to
the First Lien Intercreditor Agreement to pay to the Collateral Agent sums equal to the sums owed
by such Grantor to the other Secured Parties (or any of them) under the Credit Documents. |
| |
| |
|
“Pledge” and “Pledges” have the meanings given to such terms in Clause 3.1. |
| |
| |
|
“Principal Finance Documents” means the Credit Agreement, the 2009 Senior Secured Notes Indenture,
the October 2010 Secured Notes Indenture, the February
2011 Secured Notes Indenture, the New Secured Notes Indenture and the First Lien
Intercreditor Agreement. |
| |
| |
|
“Promissory Note” shall mean any promissory note executed and delivered by a Borrower upon the
request of a Lender evidencing the amount of principal owed by such Borrower to such Lender under
the Credit Agreement. |
| |
| |
|
“Secured Parties” shall mean the Lenders (including in their capacity as issuing bank(s), and/or
Hedge Counterparties under the Credit Agreement), the Hedge Counterparties, the Administrative
Agent, any Issuing Bank, the beneficiaries of each |
- 11 -
| |
|
indemnification obligation undertaken by any
Grantor under any Credit Document, the 2009 Senior Secured Notes Holders, the October 2010 Secured
Notes Holders, the February 2011 Secured Notes Holders and the New Secured Notes Holders, the
Indenture Trustee, the October 2010 Secured Notes Indenture Trustee, the February 2011 Secured
Notes Indenture Trustee and the New Secured Notes Indenture Trustee, the Collateral Agent, the
Local Facility Providers and the Cash Management Banks. |
| |
|
“2009 Senior Secured Notes Documents” shall mean the 2009 Senior Secured Notes Indenture,
the 2009 Senior Secured Notes Guarantees, the 2009 Senior Secured Notes, the Intercreditor
Arrangements, any supplemental indenture, any security document relating to the 2009 Senior
Secured Notes and/or the 2009 Senior Secured Notes Indenture and any other document that
may be entered into pursuant to any of the foregoing. |
| |
| |
|
“2009 Senior Secured Notes Guarantees” shall mean the guarantees of the obligations of the
Issuers under the 2009 Senior Secured Notes and the 2009 Senior Secured Notes Indenture by
the 2009 Senior Secured Notes Guarantors. |
| |
| |
|
“2009 Senior Secured Notes Guarantors” means the Current 2009 Senior Secured Notes
Guarantors and any entity which may accede to the 2009 Senior Secured Notes Indenture as
additional guarantor. |
| |
| |
|
“2009 Senior Secured Notes Holders” shall mean the holders from time to time of the 2009
Senior Secured Notes. |
| |
| |
|
“Shares” means the Existing Shares and the Future Shares. |
| |
| 1.2 |
|
Construction |
| |
| |
|
In this Agreement any reference to a “Clause”, a “sub-Clause” or a “Schedule” shall,
subject to any contrary indication, be construed as a reference to a Clause, a sub-Clause
or a Schedule hereof. |
| |
| 1.3 |
|
This Agreement is made in the English language. For the avoidance of doubt, the
English language version of this Agreement shall prevail over any translation of this
Agreement. However, where a German translation of a word or phrase appears in the
text of this Agreement, the German translation of such word or phrase shall prevail. |
| |
| 2. |
|
PLEDGED SHARES |
| |
| 2.1 |
|
The Company 1 has a nominal share capital (Stammkapital) of EUR 1,000,000 (in words: Euro one
million) which consists of one share carrying the serial number (laufende Nummer) 1 (the
“Existing Shares 1”). |
| |
| |
|
The Company 2 has a nominal share capital (Stammkapital) of EUR 25,000 (in words: Euro
twenty five thousand) which consists of one share (the “Existing Shares 2”). |
| |
| |
|
The Company 3 has a nominal share capital (Stammkapital) of EUR 30,700,000 (in words: Euro
thirty million seven hundred thousand) which is divided into three |
- 12 -
| |
|
shares. The Pledgor is
the owner of two shares in Company 3, one share with a nominal amount (Nennbetrag) of EUR
30,392,500 (in words: Euro thirty million three hundred ninety-two thousand five hundred)
and one share with a nominal amount (Nennbetrag) of EUR 500 (in words: Euro five hundred)
(the “Existing Shares 3” and together with the Existing Shares 1 and the Existing Shares 2,
the “Existing Shares”). |
| 2.2 |
|
The Pledgor is the owner of the Existing Shares and is registered as such in the relevant
shareholders list (Gesellschafterliste) of the Companies as filed (aufgenommen) with the
commercial register (Handelsregister), a copy of which is attached as Schedule 2 (Copy of
Shareholders Lists). |
| |
| 3. |
|
PLEDGE |
| |
| 3.1 |
|
The Pledgor hereby pledges to the Pledgee the Shares together with all ancillary rights and
claims associated with the Shares as more particularly specified in Clause 4 (the “Pledge”
and/or the “Pledges”). |
| |
| 3.2 |
|
The Pledgee hereby accepts the Pledge. |
| |
| 3.3 |
|
The Pledge is in addition, and without prejudice, to any other security the Secured Parties
may now or hereafter hold in respect of the Obligations. |
| |
| 4. |
|
SCOPE OF THE PLEDGES |
| |
| 4.1 |
|
The Pledge constituted by this Agreement includes: |
| |
(a) |
|
the present and future rights to receive: |
| |
(i) |
|
dividends attributable to the Shares, if any; and |
| |
| |
(ii) |
|
liquidation proceeds, redemption proceeds (Einziehungsentgelt),
repaid capital in case of a capital decrease, any compensation in case of
termination (Kündigung) and/or withdrawal (Austritt) of a shareholder
of the Companies, the surplus in case of surrender (Preisgabe), any
repayment claim for any additional capital contributions (Nachschüsse)
and all other pecuniary claims associated with the Shares; |
| |
(b) |
|
the right to subscribe for newly issued shares; and |
| |
| |
(c) |
|
all other rights and benefits attributable to the Shares capable of being
pledged (verpfändbar) (including without limitation all present and future pecuniary
claims of the Pledgor against any of the Companies arising under or in connection with
any domination and/or profit transfer agreement (Beherrschungs- und/oder
Gewinnabführungsvertrag) or partial profit transfer agreement
(Teilgewinnabführungsvertrag) which may be entered into between the Pledgor and any of
the Companies). |
- 13 -
| 4.2 |
|
Notwithstanding that the items set out in Clause 4.1 above are pledged hereunder, the Pledgor
shall be entitled to receive and retain the items set out in Clause 4.1 in respect of, and
otherwise deal (in accordance with the agreements between the parties) with all items
described in Clause 4.1 hereof in respect of the Shares at all times other than any time the
Pledgee is entitled to enforce the Pledge constituted hereunder. |
| |
| 4.3 |
|
On the date and during the period in which the Pledgee is entitled, in accordance with Clause
7 (Enforcement of the Pledges) hereof, to enforce the Pledge (or any part thereof): |
| |
(a) |
|
all dividends paid or payable and any other property received, receivable or
otherwise distributed in respect of or in exchange for the Shares; |
| |
| |
(b) |
|
all dividends or other distributions or payments paid or payable in respect
of the Shares in connection with the partial or total liquidation or dissolution of
any of the Companies or in connection with the reduction of the amount of the
registered share capital of any of the Companies; and |
| |
| |
(c) |
|
all cash paid, payable or otherwise distributed in respect of the principal
of, or in redemption of, or in exchange for the Shares, |
| |
|
shall be forthwith delivered to the Pledgee and held as security for and on behalf of the
Secured Parties. If such proceeds or property are received by the Pledgor, they shall be
received as trustee for the benefit of the Pledgee and shall be segregated from other
property or funds of the Pledgor and shall be forthwith delivered to the Pledgee as
security in the form so received (with any necessary endorsement). |
| |
| 5. |
|
PURPOSE OF THE PLEDGES |
| |
| |
|
The Pledge hereunder is constituted in order to secure the prompt and complete satisfaction
of any and all Obligations. The Pledge shall also cover any future extension of the
Obligations and the Pledgor herewith expressly agrees that the provisions of Section 1210
para 1 sentence 2 of the German Civil Code (Bürgerliches Gesetzbuch) shall not apply to this
Agreement. |
| |
| 6. |
|
EXERCISE OF MEMBERSHIP RIGHTS |
| |
| |
|
The membership rights, including the voting rights, attached to the Shares remain with the
Pledgor. The Pledgor may exercise its membership rights in any manner which does not
adversely affect the validity and enforceability of the Pledge, the existence of all or part
of the Shares or cause an Event of Default to occur. The Pledgor undertakes, unless
otherwise agreed between the parties, that no resolutions will be passed which would, if
passed, constitute a breach of its obligations under Clause 10 or any other obligation under this
Agreement. |
| |
| 7. |
|
ENFORCEMENT OF THE PLEDGES |
| |
| 7.1 |
|
If (i) an Enforcement Event has occurred and is continuing and (ii) the requirements set
forth in Sections 1273 para 2, 1204 et seq. of the German Civil Code with regard |
- 14 -
| |
|
to the enforcement of the Pledge are met (Pfandreife), in particular, if any of the Obligations have
become due and payable, then in order to enforce the Pledge, the Pledgee (acting on the
instructions of the Secured Parties) may at any time thereafter avail itself of all rights and
remedies that a pledgee has against a pledgor under the laws of the Federal Republic of
Germany. |
| |
| 7.2 |
|
Notwithstanding Section 1277 of the German Civil Code, the Pledgee is entitled to exercise
its rights without obtaining enforceable judgment or other instrument (vollstreckbarer Titel).
The Pledgee shall be entitled to have the Pledge enforced in any manner allowed under the laws
of the Federal Republic of Germany, in particular have the Pledge sold (including at public
auction). |
| |
| 7.3 |
|
The Pledgor hereby expressly agrees that 5 (five) business days’ prior written notice to the
Pledgor of the place and time of any such sale shall be sufficient and the Pledgee shall not
be obliged to deliver any further notices (including, but not limited to the notices set out
under Section 1234 of the German Civil Code) to the Pledgor prior to such sale. The sale may
take place at any place in the Federal Republic of Germany designated by the Pledgee. |
| |
| 7.4 |
|
If the Pledgee (acting on the instructions of the Secured Parties) should seek to enforce the
Pledge under sub-Clause 7.1, the Pledgor shall, at its own expense, render forthwith all
necessary assistance in order to facilitate the prompt sale of the Shares or any part thereof
and/or the exercise by the Pledgee of any other right it may have as Pledgee. |
| |
| 7.5 |
|
Whilst the requirements for enforcement under sub-Clause 7.1 are continuing, all subsequent
dividend payments attributable to the Shares and all payments based on similar ancillary
rights attributed to the Shares may be applied by the Pledgee in satisfaction in whole or in
part of the Obligations or treated as additional collateral. |
| |
| 7.6 |
|
Even if the requirements for enforcement referred to under sub-Clause 7.1 above are met, the
Pledgee shall not, whether as proxy or otherwise, be entitled to exercise the voting rights
attached to the Shares. However, the Pledgor shall, during the continuation of an event which
allows the Pledgee to enforce the Pledge, have the obligations and the Pledgee shall have the
rights set forth in sub-Clause 10.6 below regardless of which resolutions are intended to be
adopted. |
| |
| 7.7 |
|
The Pledgee may, in its sole discretion, determine which of several security interests, if
applicable, shall be used to satisfy the Obligations. The Pledgor hereby expressly waives its
right pursuant to Section 1230 sentence 2 of the German Civil Code to limit the realisation of
the Pledge and pledges over the shares or partnership interests in one or more other companies
to such number of pledges as are necessary to satisfy the Obligations and agrees further that
the Pledgee may decide to enforce the Pledge over the shares in the Companies individually in
separate proceedings or together with pledges over shares or partnership interests in one or
more other companies at one single proceeding (Gesamtverwertung). |
- 15 -
| 7.8 |
|
The Pledgor hereby expressly waives all defences of revocation (Einrede der
Anfechtbarkeit) and set-off (Einrede der Aufrechenbarkeit) pursuant to Sections 770, 1211 of
the German Civil Code. |
| |
| 7.9 |
|
The Pledgor hereby expressly waives its defences based on defences any Grantor might have
against any of the Obligations (Einreden des Hauptsehuldners) pursuant to Section 1211 para 1
sentence 1 alternative 1 of the German Civil Code. |
| |
| 7.10 |
|
If the Pledge is enforced or if the Pledgor has discharged any of the Obligations (or any
part of them), Section 1225 of the German Civil Code (legal subrogation of claims to a pledgor
— Forderungsübergang auf den Verpfänder) shall not apply and no rights of the Pledgee shall
pass to the Pledgor by subrogation or otherwise. Further, the Pledgor shall at no time before,
on or after an enforcement of the Pledge and as a result of the Pledgor entering into this
Agreement, be entitled to demand indemnification or compensation from any of the Companies or
any of the Companies’ affiliates or to assign any of these claims. |
| |
| 8. |
|
LIMITATIONS ON ENFORCEMENT |
| |
| 8.1 |
|
The Pledgee shall be entitled to apply proceeds of an enforcement of the Pledge towards satisfaction of the Obligations without limitation in respect of: |
| |
(a) |
|
all and any amounts which are owed under the Credit Documents by the Pledgor
itself, any of the Companies or by any of their subsidiaries; and |
| |
| |
(b) |
|
all and any amounts which correspond to funds that have been borrowed or
otherwise raised under the Credit Documents, in each case to the extent borrowed,
on-lent or otherwise passed on to, or issued for the benefit of, the Pledgor, any of
the Companies or any of their subsidiaries, or for the benefit of any of their
creditors and in each case not repaid and outstanding from time to time |
| |
|
(in aggregate, the “Unlimited Enforcement Amount”). |
| |
| 8.2 |
|
Besides an application of proceeds from an enforcement of the Pledge towards
satisfaction of the Obligations in respect of the Unlimited Enforcement Amount
pursuant to Clause 8.1 above, the Pledgee shall not be entitled to apply proceeds of an
enforcement of the Pledge towards satisfaction of the Obligations but shall return to
the Pledgor proceeds of an enforcement of the Pledge if and to the extent that: |
| |
(a) |
|
the Pledge secures the obligations of a Grantor which is (x) a shareholder of
the Pledgor or (y) an affiliated company (verbundenes Unternehmen) within the meaning
of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of
the Pledgor (other than the Pledgor and its subsidiaries); and |
| |
| |
(b) |
|
the application of proceeds of an enforcement of the Pledge towards the
Obligations would have the effect of (x) reducing the Pledgor’s net assets |
- 16 -
| |
|
|
(Reinvermögen) (the “Net Assets”) to an amount of less than its stated share capital
(Stammkapital) or, if the Net Assets are already an amount of less than its stated
share capital, of causing such amount to be further reduced and (y) would thereby
affect the assets required for the obligatory preservation of the Pledgor’s stated
share capital (Stammkapital) according to section 30, 31 German Limited Liability
Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung)
provided that the amount of the stated share capital to be taken into consideration
shall be the amount registered in the commercial register at the date hereof, and
any
increase of the stated share capital registered after the date of this Agreement
shall only be taken into account if such increase has been effected with the prior
written consent of the Collateral Agent. |
| 8.3 |
|
The Net Assets shall be calculated as an amount equal to the sum of the values of the
Pledgor’s assets (consisting of all assets which correspond to the items set forth in section
266 sub-section(2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the
aggregate amount of the Pledgor’s liabilities (consisting of all liabilities and liability
reserves which correspond to the items set forth in section 266 sub-section (3) B, C and D of
the German Commercial Code), save that: |
| |
(a) |
|
any asset that is shown in the balance sheet with a book value (Buchwert) that
is significantly lower than the market value of such asset and that is not necessary
for the Pledgor’s business (nicht betriebsnotwendig) shall be taken into account with
its market value; |
| |
| |
(b) |
|
obligations under loans provided to the Pledgor by any member of the Group or
any other affiliated company shall not be taken into account as liabilities as far as
such loans are subordinated by law or by contract at least to the claims of the
unsubordinated creditors of the Pledgor; and |
| |
| |
(c) |
|
obligations under loans or other contractual liabilities incurred by the
Pledgor in violation of the provisions of the Credit Documents shall not be taken into
account as liabilities. |
| |
|
The Net Assets shall be determined in accordance with the generally accepted accounting
principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung)
and be based on the same principles that were applied by the Pledgor in the preparation of
its most recent annual balance sheet (Jahresbilanz). |
| |
| |
|
It being understood that the assets of the Pledgor will be assessed at liquidation values
(Liquidationswerte) if the managing directors of the Pledgor, at the time they prepare the
Management Determination (as defined below) are, due to factual or legal circumstances at
that time, in their opinion not able to make a positive prognosis as to whether the business
of the Pledgor can carry on as a going concern (positive Fortführungsprognose), in
particular when the Pledge is enforced. |
- 17 -
| 8.4 |
|
The limitations set out in Clause 8.2 above shall only apply if and to the extent that: |
| |
(a) |
|
without undue delay, but not later than within 5 business days, after receipt
of a notification by the Collateral Agent of its intention to enforce the Pledge (the
“Notice”), the Pledgor has confirmed in writing to the Collateral Agent (x) to what
extent such Pledge is up-stream or cross-stream security as described in Clause 8.2
above and (y) which amount of proceeds of an enforcement of the Pledge attributable to
the enforcement of such up-stream or cross-stream security cannot be applied towards
satisfaction of the Obligations but would have to be returned to the Pledgor as it
would otherwise cause the Net Assets of the Pledgor to fall below its stated share
capital (taking into account the adjustments set out in Clause 8.3 above) and such
confirmation is supported by evidence reasonably satisfactory to the Collateral Agent
(the “Management Determination”) and the Collateral Agent has not contested this and
argued that no or a lesser amount would be necessary to maintain the Pledgor’s stated
share capital; or |
| |
| |
(b) |
|
within 20 business days from the date the Collateral Agent has contested the
Management Determination, the Collateral Agent receives from the Pledgor an up to date
balance sheet prepared by a firm of auditors of international standard and reputation
(the “Determining Auditors”) which shows the value of the Pledgor’s Net Assets (the
“Balance Sheet”). The Balance Sheet shall be prepared in accordance with the principles
set out in Clause 8.3 above, provided that the final sentence of Clause 8.3 above shall
not apply unless the Determining Auditors have in an independent assessment determined
that the assets of the Pledgor should be evaluated at liquidation values
(Liquidationswerte) in accordance with the generally accepted accounting principles
applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and
shall contain further information (in reasonable detail) relating to items to be
adjusted pursuant to Clause 8.3 above. If the Pledgor fails to deliver a Balance Sheet
within the aforementioned time period, the Pledgee shall be entitled to apply the
proceeds of an enforcement of the Pledge towards satisfaction of the Obligations
irrespective of the limitations set out in Clause 8.2 above. |
| 8.5 |
|
If the Pledgee disagrees with the Balance Sheet it shall be entitled to apply proceeds of an
enforcement of the Pledge in satisfaction of the Obligations up to an amount which, according
to the Balance Sheet, can be applied in satisfaction of the Obligations in compliance with the
limitations set out in Clause 8.2 above. In relation to any additional amounts for which the
Pledgor is liable under this Agreement, the Pledgee shall be entitled to further pursue its
claims (if any) and the Pledgor shall be entitled to prove that this amount is necessary for
maintaining its stated share capital (calculated as of the date the Pledgee has given notice
that it intends to enforce the security created under this Agreement). |
| |
| 8.6 |
|
No reduction of the amount enforceable or applicable towards satisfaction of the Obligations
under this Clause 8 will prejudice the right of the Pledgee to continue |
- 18 -
| |
|
enforcing the Pledge (subject always to the operation of the limitations set out above at the time of such
enforcement) until full satisfaction to the claims secured. |
| 9. |
|
APPROVAL AND CONFIRMATION |
| |
| |
|
The Pledgor as the sole shareholder of Company 1 and Company 2 hereby approves the Pledge
over the Shares and over any and all ancillary rights and claims associated with the Shares
(as more particularly specified in Clause 44). Pursuant to the articles of association of
each of the Companies the Pledge is not subject to any approval of the relevant Company. |
| |
| 10. |
|
UNDERTAKINGS OF THE PLEDGOR |
| |
| |
|
Unless otherwise agreed between the parties, during the term of this Agreement, the Pledgor
undertakes to the Pledgee: |
| |
| 10.1 |
|
to promptly effect any contributions in cash (Bareinlage) or kind (Sacheinlage) to be made in
respect of the Shares; |
| |
| 10.2 |
|
to inform the Pledgee promptly of any change made in the registered share capital of any of
the Companies, or any changes made to the articles of association of any of the Companies
which would materially adversely affect the security interest of the Pledgee and in each such
case to promptly deliver to the Pledgee a copy of the updated shareholders list
(Gesellschafterliste) and a copy of the amended articles of association (Satzung) both as
filed (aufgenommen) with the commercial register (Handelsregister); |
| |
| 10.3 |
|
to promptly notify the Pledgee, by notification in writing of the registration of an
objection (Widerspruch) in relation to the Shares of the Pledgor in the shareholders list
(Gesellschafterliste) as filed (aufgenommen) with the commercial register (Handelsregister). |
| |
| 10.4 |
|
to promptly notify the Pledgee, by notification in writing, of any attachment (Pfändung) in
respect of any of the Shares or any ancillary rights set out in sub-Clause 4.1 such notice to
be accompanied by any documents the Pledgee might need to defend itself against any claim of a
third party. In particular, the Pledgor shall promptly forward to the Pledgee a copy of the
attachment order (Pfändungsbeschluss), any transfer order (Überweisimgsbeschluss) and all
other documents necessary for a defence against the attachment; |
| |
| 10.5 |
|
in the event of any increase in the capital of any of the Companies, not to allow, without
the prior written consent of the Pledgee (such consent not to be unreasonably withheld), any
party other than himself to subscribe for any Future Shares, and not to defeat, impair or
circumvent in any way the rights of the Pledgee created hereunder; |
| |
| 10.6 |
|
to promptly inform the Pledgee, by notification in writing, of all matters concerning of any
of the Companies of which the Pledgor is aware which would materially adversely affect the
security interest of the Pledgee. In particular, the Pledgor shall |
- 19 -
| |
|
notify the Pledgee, by notification in writing, forthwith of any shareholders’ meeting at which a shareholders’
resolution is intended to be adopted which would have a materially adverse effect upon the
Pledge. The Pledgor shall allow, following the occurrence and during the continuance of any of
the circumstances which permit the Pledgee to enforce the Pledge constituted hereunder in
accordance with Clause 7, the Pledgee or, as the case may be, its proxy or any other person
designated by the Pledgee, to participate in all such shareholders’ meetings of any of the
Companies as attendants without power to vote. Subject to the provision contained in
sub-Clause 14.1, the Pledgee’s right to attend a shareholders’ meeting shall lapse immediately
upon complete satisfaction and discharge of the Obligations; |
| 10.7 |
|
to refrain from any acts or omissions, subject to the performance of its rights and duties
under the Existing Share Pledge Agreements, the purpose or effect of which is or would be the
dilution of the value of the Shares or the Shares ceasing to exist, unless permitted by the
Pledgee (acting reasonably); |
| |
| 10.8 |
|
not to amend the articles of association of any of the Companies to the extent that such
amendment would materially adversely affect the security interest of the Pledgee created
hereunder without the prior written consent of the Pledgee (such consent not to be
unreasonably withheld); |
| |
| 10.9 |
|
insofar as additional declarations or actions are necessary for the creation of the Pledge in
favour of the Pledgee and at the Pledgee’s reasonable request (acting on the reasonable
instructions of the Secured Parties), to make such declarations and undertake such actions at
its own costs and expenses; and |
| |
| 10.10 |
|
for the avoidance of doubt, notification and consent requirements as set out in sub-Clauses
10.1 through 10.8 of this Agreement are deemed to be satisfied if and to the extent such
notification or consent has been delivered under the Existing Share Pledge Agreements provided
that such notification to the Pledgee or consent of the Pledgee makes reference to this
Agreement and each Existing Share Pledge Agreement. |
| |
| 11. |
|
DELEGATION |
| |
| |
|
The Pledgee shall have full power to delegate (either generally or specifically) the powers,
authorities and discretions conferred on it by this Agreement on such terms and conditions
as it shall see fit. The Pledgee shall only remain liable for diligently selecting and
providing initial instructions to such delegate. |
| |
| 12. |
|
INDEMNITY |
| |
| |
|
The Pledgor shall reimburse the Pledgee (which, for purposes of this Clause 12, shall
include its officers, directors, employees, agents and counsel) upon request for all
properly incurred, reasonable and documented out-of-pocket expenses incurred or made by it
in connection with the Credit Documents. Such expenses shall include the properly incurred,
reasonable and documented compensation and expenses, disbursements and advances of the
Pledgee’s agents, counsel, accountants and experts. The Pledgor shall indemnify the Pledgee
against any and all loss, liability, |
- 20 -
| |
|
claim, taxes, costs, damage or expense (including properly incurred, reasonable and documented attorneys’ fees and expenses) incurred by or in
connection with the acceptance or administration of the Pledgee’s performance of its duties
under this Agreement and under German law, including the costs and expenses of enforcing
this Agreement and defending itself against or investigating any claim. The obligation to
pay such amounts shall survive the payment in full or defeasance of the Obligations or the
removal or resignation of the Pledgee. The Pledgee shall notify Reynolds Group Holdings
Limited of any claim for which it may seek indemnity promptly upon obtaining actual
knowledge thereof; provided that any failure so to notify Reynolds Group Holdings Limited
shall not relieve the Pledgor of its indemnity obligations hereunder. The Pledgor may defend
itself against such claim and the Pledgee shall provide reasonable cooperation in such
defense. The Pledgee may have separate counsel and the Pledgor shall pay the properly
incurred, reasonable and documented fees and expenses of such counsel. The Pledgor need not
reimburse any expense or indemnify against any loss, liability or expense incurred by the
Pledgee through the Pledgee’s own wilful misconduct (Vorsatz) or gross negligence
(grobe Fahrlässigkeit). No provision of this Agreement shall require the Pledgee to expend or risk
its own funds or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if repayment of such
funds or adequate indemnity against such risk or liability is not assured to its
satisfaction. |
| 13. |
|
NO LIABILITY |
| |
| |
|
Except as otherwise agreed between the parties to this Agreement, none of the Pledgee, its
nominee(s) or agent(s) or delegate(s) shall be liable by reason of (a) taking any action
permitted by this Agreement or (b) any neglect or default in connection with the assets and
rights subject to the security interest created hereunder, save in respect of any loss or
damage which is suffered as a result of wilful misconduct (Vorsatz) or gross negligence
(grobe Fahrlässigkeit) by the Pledgee, its nominee(s) or agent(s) or delegate(s), or (c) the
enforcement or realisation of all or any part of the security interest created hereunder. |
| |
| 14. |
|
DURATION AND INDEPENDENCE |
| |
| 14.1 |
|
This Agreement shall remain in full force and effect until complete satisfaction of the
Obligations, The Pledge shall not cease to exist, if any Grantor under the Credit Documents
has only temporarily discharged the Obligations. |
| |
| 14.2 |
|
This Agreement shall create a continuing security and no change, amendment, or supplement
whatsoever in the Credit Documents or in any document or agreement related to any of the
Credit Documents shall affect the validity or the scope of this Agreement nor the obligations
which are imposed on the Pledgor pursuant to it. |
| |
| 14.3 |
|
This Agreement is independent from any other security or guarantee which may have been or
will be given to the Collateral Agent. None of such other security shall prejudice, or shall
be prejudiced by, or shall be merged in any way with this Agreement. |
- 21 -
| 14.4 |
|
Waiving Section 418 of the German Civil Code, the Pledgor hereby agrees that the security
created hereunder shall not be affected by any transfer or assumption of the Obligations to,
or by, any third party. |
| |
| 15. |
|
RELEASE OF PLEDGE (PFANDFREIGABE) |
| |
| 15.1 |
|
Upon complete and irrevocable satisfaction of the Obligations, the Collateral Agent (as
instructed in accordance with the First Lien Intercreditor Agreement) will as soon as
reasonably practicable declare in writing the release of the Pledge (Pfandfreigabe) to the
Pledgor as a matter of record. For the avoidance of doubt, the parties are aware that upon
full and complete satisfaction of the Obligations the Pledge, due to its accessory nature
(Akzessorietät) ceases to exist by operation of German mandatory law. |
| |
| 15.2 |
|
At any time when the total value of the aggregate security granted by the Pledgor and any of
the other Grantors to secure the Obligations (the “Security”), which can be expected to be
realised in the event of an enforcement of the Security (realisierbarer Wert), exceeds 110% of
the Obligations (the “Limit”) not only temporarily, the Pledgee shall on demand of the Pledgor
release such part of the Security (Sicherheitenfreigabe) as the Pledgee (as instructed in
accordance with the First Lien Intercreditor Agreement) may in its reasonable discretion
determine so as to reduce the realisable value of the Security to the Limit. |
| |
| 15.3 |
|
The parties acknowledge that the Pledgee (as instructed in accordance with the First Lien
Intercreditor Agreement) will declare in writing the release of the Pledge (Pfandfreigabe) to
the Pledgor as soon as reasonably practicable in accordance with, and to the extent required
by, the Intercreditor Arrangements. |
| |
| 16. |
|
PARTIAL INVALIDITY; WAIVER |
| |
| 16.1 |
|
If at any time, any one or more of the provisions hereof is or becomes invalid, illegal or
unenforceable in any respect under the law of any jurisdiction, such provision shall as to
such jurisdiction, be ineffective to the extent necessary without affecting or impairing the
validity, legality and enforceability of the remaining provisions hereof or of such provisions
in any other jurisdiction. The invalid, illegal or unenforceable provision shall be deemed to
be replaced with such valid, legal or enforceable provision which comes as close as possible
to the original intent of the parties and the invalid, illegal or unenforceable provision.
Should a gap (Regelungslücke) become evident in this Agreement, such gap shall, without
affecting or impairing the validity, legality and enforceability of the remaining provisions
hereof, be deemed to be filled in with such provision which comes as close as possible to the
original intent of the parties. |
| |
| 16.2 |
|
No failure to exercise, nor any delay in exercising, on the part of the Pledgee, any right or
remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise
of any right or remedy prevent any further or other exercise thereof or the exercise of any
other right or remedy. The rights and remedies provided hereunder are cumulative and not
exclusive of any rights or remedies provided by law. |
- 22 -
| 16.3 |
|
In particular, the Pledge shall not be affected and shall in any event extend to any and all shares in each of the Companies even if the number or nominal value of the Existing Shares or
the aggregate share capital of any of the Companies as stated in Clause 2 are inaccurate or
deviate from the actual facts. |
| |
| 17. |
|
AMENDMENTS |
| |
| |
|
Changes and amendments to this Agreement including this Clause 17 shall be made in writing
except where notarisation is required. |
| |
| 18. |
|
NOTICES AND THEIR LANGUAGE |
| |
| 18.1 |
|
All notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail or sent
by fax, as follows: |
| |
|
|
|
|
| For the Pledgor: |
|
SIG Combibloc Holding GmbH |
|
|
Address:
|
|
Rurstraße 58, 52441
Linnich, Germany |
|
|
|
|
|
|
|
Telephone:
|
|
+49 2462 790 |
|
|
|
|
|
|
|
Fax:
|
|
+49 2462 792519 |
|
|
|
|
|
|
|
Attention:
|
|
Managing directors
(Geschäftsführung) |
|
|
|
|
|
for the Pledgor with a copy to: |
|
|
|
|
|
|
Address:
|
|
c/o Rank Group Limited
Level 9
148 Quay Street
PO Box 3515
Auckland 1140
New Zealand |
|
|
|
|
|
|
|
Telephone:
|
|
+649 3666 259 |
|
|
|
|
|
|
|
Fax:
|
|
+649 3666 263 |
|
|
|
|
|
|
|
Attention:
|
|
Helen Golding |
- 23 -
| |
|
|
|
|
|
| For the Pledgee: |
|
The Bank of New York Mellon |
|
|
|
|
|
|
|
Address:
|
|
101 Barclay Street,
4E New York,
N.Y. 10286
The United
States of America |
|
|
|
|
|
|
|
Telephone:
|
|
+212 298 1528 |
|
|
|
|
|
|
|
Fax:
|
|
+212 815 5366 |
|
|
|
|
|
|
|
Attention:
|
|
International
Corporate Trust |
| 18.2 |
|
Any party hereto may change its address or fax number for notices and other communications
hereunder by notice to the other parties hereto. As agreed to in writing by the parties,
notices and other communications hereunder may also be delivered by e-mail to the e-mail
address of a representative of the applicable party to this Agreement provided from time to
time by such party. |
| |
| 18.3 |
|
All notices and other communications given to any party in connection with this Agreement in
accordance with the provisions of this Agreement shall be deemed (widerlegbare Vermutung)
received on the date sent (if a business day) and on the next business day thereafter (in all
other cases) if delivered by hand or overnight courier service or sent by fax or on the date
five business days after dispatch by certified or registered mail if mailed, in each case
delivered, sent or mailed (properly addressed) to such party as provided in this Clause 18 or
in accordance with the latest unrevoked direction from such party given in accordance with
this Clause 18. |
| |
| 18.4 |
|
Any notice or other communication under or in connection with this Agreement shall be in the
English language or, if in any other language, accompanied by a translation into English. In
the event of any conflict between the English text and the text in any other language, the
English text shall prevail. |
| |
| 19. |
|
NOTIFICATION |
| |
| 19.1 |
|
The Pledgor and the Pledgee hereby give notice of this Agreement and the Pledge of the rights
pursuant to Clause 3 and Clause 4 to the Company. |
| |
| 19.2 |
|
The Company hereby acknowledges the notification pursuant to Clause 19.1 above. |
- 24 -
| 20. |
|
APPLICABLE LAW, JURISDICTION |
| |
| 20.1 |
|
This Agreement is governed by the laws of the Federal Republic of Germany. |
| |
| 20.2 |
|
The place of jurisdiction for any and all disputes arising under or in connection with this
Agreement shall be the courts in Frankfurt am Main. The Pledgee however, shall also be
entitled to take action against the Pledgor in any other court of competent jurisdiction.
Further, the taking of proceedings against the Pledgor in any one or more jurisdictions shall
not preclude the taking of proceedings in any other jurisdiction (whether concurrently or not)
if and to the extent permitted by applicable law. |
The Notary advised the persons appearing:
| • |
|
that a pledge is a security instrument of strictly accessory nature (which means that it
comes into legal existence only if, to the extent that, and as long as, the underlying secured
claims do in fact exist, and that the owners of the secured claims and the pledgees must be
identical); |
| |
| • |
|
that notwithstanding Section 16 para 3 German Limited Liability Companies Act (Gesetz
betreffend die Gesellschaften mit beschränkter Haftung) there is no bona fide creation,
acquisition nor ranking of a pledge of shares (in the sense that the pledgees are not
protected if the shares purported to be pledged do not exist or have been previously
encumbered for the benefit of a third party); and |
| |
| • |
|
that the English original version of this Agreement will not be acceptable for enforcement
but will have to be translated, by a certified translator, into German for such purposes. |
- 25 -
SCHEDULE 1
PART 1
LIST OF CURRENT BORROWERS
SIG Euro Holding AG & Co. KGaA
Closure Systems International Holdings Inc.
Closure Systems International B.V.
SIG Austria Holding GmbH
Reynolds Consumer Products Holdings Inc.
Reynolds Group Holdings Inc.
Pactiv Corporation
PART 2
LIST OF CURRENT GUARANTORS, CURRENT 2009 SENIOR SECURED NOTES
GUARANTORS, CURRENT OCTOBER 2010 SECURED NOTES GUARANTORS
AND CURRENT FEBRUARY 2011 SECURED NOTES GUARANTORS
Whakatane Mill Australia Pty Limited
SIG
Austria Holding GmbH
SIG Combibloc GmbH & Co KG
SIG Combibloc GmbH
SIG
Beverages Brasil Ltda
SIG Combibloc do Brasil Ltda.
Closure Systems International (Brazil) Sistemas de Vedação Ltda
CSI Latin
American Holdings Corporation
Evergreen Packaging Canada Limited
CSI Closure Systems Manufacturing de Centro America, S.R.L.
- 26 -
SIG Holdings (UK) Limited
SIG Combibloc Limited
Closure Systems International (UK) Limited
Reynolds Consumer Products (UK) Limited
Reynolds Subco (UK) Limited
Kama Europe Limited
Ivex Holdings, Ltd.
SIG Euro Holding AG & Co. KGaA
SIG Beverages Germany GmbH
SIG Combibloc Holding GmbH
SIG Vietnam Beteiligungs GmbH
SIG Combibloc GmbH
SIG Combibloc Systems GmbH
SIG Combibloc Zerspanungstechnik GmbH
SIG Information Technology GmbH
SIG International Services GmbH
Closure Systems International Holdings (Germany) GmbH
Closure Systems International Deutschland GmbH
Pactiv Hamburg Holdings GmbH
Pactiv Deutschland Holdinggesellschaft mbH
Omni-Pac Ekco GmbH Verpackungsmittel
Omni-Pac GmbH Verpackungsmittel
SIG Asset Holdings Limited
Closure Systems International (Hong Kong) Limited
SIG Combibloc Limited
- 27 -
Evergreen Packaging (Hong Kong) Limited
Closure Systems International Holdings (Hungary) Kft.
CSI Hungary Gyártó és Kereskedelmi Kft. (aka CSI Hungary)
Closure Systems International Holdings (Japan) KK
Closure Systems International Japan, Limited
Beverage Packaging Holdings (Luxembourg) I S.A.
Beverage Packaging Holdings (Luxembourg) III S.à r.l.
Evergreen Packaging (Luxembourg) S.à r.l.
Reynolds Group Issuer (Luxembourg) S.A.
Bienes Industriales del Norte S.A. de C.V.
CSI en Ensenada, S. de R.L. de C.V.
CSI en Saltillo, S. de R.L. de C.V.
CSI Tecniservicio, S. de R.L. de C.V.
Grupo CSI de Mexico, S. de R.L. de C.V.
Técnicos de Tapas Innovativas S.A. de C.V.
Evergreen Packaging Mexico, S. de R.L. de C.V.
Reynolds Metals Company de Mexico, S. de R.L. de C.V.
Maxpack, S. de R.L. de C.V.
Closure Systems International B.V.
Reynolds Consumer Products International B.V.
Evergreen Packaging International B.V.
Reynolds Packaging International B.V.
Reynolds Group Holdings Limited
Whakatane Mill Limited
SIG Combibloc Group AG
- 28 -
SIG Technology AG
SIG allCap AG
SIG Combibloc (Schweiz) AG
SIG Schweizerische Industrie-Gesellschaft AG
SIG Combibloc Procurement AG
SIG Reinag AG
SIG Combibloc Ltd.
SIG Holding USA Inc.
SIG Combibloc Inc.
Closure Systems International Americas, Inc.
Closure Systems International Holdings Inc.
Closure Systems International Inc.
Reynolds Packaging Machinery Inc.
Closure Systems Mexico Holdings LLC
CSI Mexico LLC
CSI Sales & Technical Services Inc.
Bakers Choice Products, Inc.
Reynolds Consumer Products Holdings Inc.
Reynolds Consumer Products Inc.
Reynolds Foil Inc.
Reynolds Group Holdings Inc.
Reynolds Services Inc.
Blue Ridge Holding Corp.
Blue Ridge Paper Products Inc.
Evergreen Packaging International (US) Inc.
- 29 -
Evergreen Packaging Inc.
Evergreen Packaging USA Inc.
Reynolds Packaging, Inc.
Reynolds Packaging LLC
Reynolds Packaging Kama
Inc.
Reynolds Food Packaging LLC
Reynolds Flexible Packaging Inc.
Southern Plastics Inc.
Ultra Pac, Inc.
BRPP, LLC
Reynolds Group Issuer Inc.
Reynolds Group Issuer LLC
Pactiv Corporation (formerly Reynolds Acquisition Corporation)
Pactiv
Factoring LLC
Pactiv RSA LLC
Pactiv Retirement Administration LLC
Pactiv Germany
Holdings, Inc.
Pactiv International Holdings Inc.
Pactiv Management Company LLC
PCA West Inc.
Prairie Packaging, Inc.
PWP Holdings, Inc.
PWP Industries, Inc.
Newspring Industrial Corp.
Pactiv Canada Inc.
- 30 -
The Baldwin Group Limited
J. & W. Baldwin (Holdings) Limited
Omni-Pac U.K. Limited
Conference Cup Ltd.
Dopaco Canada, Inc.
Dopaco, Inc.
Garven Incorporated
Central de Bolsas, S. de R.L. de C.V.
Servicios Industriales Jaguar, S. de C.V.
Servicio Terrestre Jaguar, S. de C.V.
Grupo Corporativo Jaguar, S. de C.V.
Pactiv Mexico, S. de R.L. de C.V.
PART 3
LIST OF CURRENT NEW SECURED NOTES GUARANTORS1
Whakatane Mill Australia Pty Limited
SIG Beverages Brasil Ltda
SIG Combibloc do Brasil Ltda.
Closure Systems International (Brazil) Sistemas de Vedação Ltd
CSI Latin American Holdings Corporation
Evergreen Packaging Canada Limited
CSI Closure Systems Manufacturing de Centro America, S.R.L.
SIG Holdings (UK) Limited
|
|
|
| 1 |
|
Post-closing Austrian guarantors excluded. |
- 31 -
SIG Combibloc Limited
Closure Systems International (UK) Limited
Reynolds Consumer Products (UK) Limited
Reynolds Subco (UK) Limited
Kama Europe Limited
Ivex Holdings, Ltd.
SIG Euro Holding AG & Co. KGaA
SIG Beverages Germany GmbH
SIG Combibloc Holding GmbH
SIG Vietnam Beteiligungs GmbH
SIG Combibloc GmbH
SIG Combibloc Systems GmbH
SIG Combibloc Zerspanungstechnik GmbH
SIG Information Technology GmbH
SIG International Services GmbH
Closure Systems International Holdings (Germany) GmbH
Closure Systems International Deutschland GmbH
Pactiv Hamburg Holdings GmbH
Pactiv Deutschland Holdinggesellschaft mbH.
Omni-Pac Ekco GmbH Verpackungsmittel
Omni-Pac GmbH Verpackungsmittel
SIG Asset Holdings Limited
Closure Systems International (Hong Kong) Limited
SIG Combibloc Limited
Evergreen Packaging (Hong Kong) Limited
- 32 -
Closure Systems International Holdings (Hungary) Kft.
CSI Hungary Gyártó és Kereskedelmi Kft. (aka CSI Hungary)
Closure Systems International Holdings (Japan) KK
Closure Systems International Japan, Limited
Beverage Packaging Holdings (Luxembourg) I S.A.
Beverage Packaging Holdings (Luxembourg) III S.à r.l.
Evergreen Packaging (Luxembourg) S.à r.l.
Reynolds Group Issuer (Luxembourg) S.A.
Bienes Industriales del Norte S.A. de C.V.
CSI en Ensenada, S. de R.L. de C.V.
CSI en Saltillo, S. de R.L. de C.V.
CSI Tecniservicio, S. de R.L. de C.V.
Grupo CSI de Mexico, S. de R.L. de C.V.
Técnicos de Tapas Innovativas S.A. de C.V.
Evergreen Packaging Mexico, S. de R.L. de C.V.
Reynolds Metals Company de Mexico, S. de R.L. de C.V.
Maxpack, S. de R.L. de C.V.
Closure Systems International B.V.
Reynolds Consumer Products International B.V.
Evergreen Packaging International B.V.
Reynolds Packaging International B.V.
Reynolds Group Holdings Limited
Whakatane Mill Limited
SIG Combibloc Group AG
SIG Technology AG
- 33 -
SIG allCap AG
SIG Combibloc (Schweiz) AG
SIG Schweizerische Industrie-Gesellschaft AG
SIG Combibloc Procurement AG
SIG Reinag AG
SIG Combibloc Ltd.
SIG Holding USA Inc.
SIG Combibloc Inc.
Closure Systems International Americas, Inc.
Closure Systems International Holdings Inc.
Closure Systems International Inc.
Reynolds Packaging Machinery Inc.
Closure Systems Mexico Holdings LLC
CSI Mexico LLC
CSI Sales & Technical Services Inc.
Bakers Choice Products, Inc.
Reynolds Consumer Products Holdings Inc.
Reynolds Consumer Products Inc.
Reynolds Foil Inc.
Reynolds Group Holdings Inc.
Reynolds Services Inc.
Blue Ridge Holding Corp.
Blue Ridge Paper Products Inc.
Evergreen Packaging International (US) Inc.
Evergreen Packaging Inc.
- 34 -
Evergreen Packaging USA Inc.
Reynolds Packaging, Inc.
Reynolds Packaging LLC
Reynolds Packaging Kama Inc.
Reynolds Food Packaging LLC
Reynolds Flexible Packaging Inc.
Southern Plastics Inc.
Ultra Pac, Inc.
BRPP, LLC
Reynolds Group Issuer Inc.
Reynolds Group Issuer LLC
Pactiv Corporation (formerly Reynolds Acquisition Corporation)
Pactiv Factoring LLC
Pactiv RSA LLC
Pactiv Retirement Administration LLC
Pactiv Germany Holdings, Inc.
Pactiv International Holdings Inc.
Pactiv Management Company LLC
PCA West Inc.
Prairie Packaging, Inc.
PWP Holdings, Inc.
PWP Industries, Inc.
Newspring Industrial Corp.
Pactiv Canada Inc.
The Baldwin Group Limited
- 35 -
J. & W. Baldwin (Holdings) Limited
Omni-Pac U.K. Limited
Conference Cup Ltd.
Dopaco Canada, Inc.
Dopaco, Inc.
Garven Incorporated
Central de Bolsas, S. de R.L. de C.V.
Servicios Industriales Jaguar, S. de C.V.
Servicio Terrestre Jaguar, S. de C.V.
Grupo Corporativo Jaguar, S. de C.V.
Pactiv México, S. de R.L. de C.V.
- 36 -
SCHEDULE 2
COPY OF SHAREHOLDERS LISTS
(GESELLSCHAFTERLISTEN)
- 37 -
Berichtigte Liste der Gesellschafter
der
SIG Combibloc International Systems GmbH
mit dem Sitz in Linnich
(künftig unter SIG Combibloc Systems GmbH firmierend)
Nach dem Wirksamwerden der Verschmelzung der SIG Combitec Maschinenbau GmbH mit dem Sitz in Neuss
(als übertragender Gesellschaft) mit der SIG Combibloc International Systems GmbH mit dem Sitz in
Linnich (als übernehmen-der Gesellschaft) im Wege der Aufnahme sind an der Gesellschaft beteiligt:
| |
|
|
|
|
|
Lfd.
|
|
Firma und Sitz
|
|
Nennbetrag der |
Nr.
|
|
der Gesellschafter
|
|
Geschäftsanteile |
|
|
|
|
|
1 .
|
|
SIG.Combibloc Holding GmbH |
|
|
|
|
mit dem Sitz in Waldshut-Tiengen |
|
|
|
|
mit einem Geschäftsanteil im Nennbetrag von
|
|
Euro 1.000,000,00 |
| |
Stammkapital:
|
|
|
|
Euro 1,000,000,00 |
Linnich, den, 11.04. 2000
Die sämtlichen Geschäftsführer der übernehmenden” Gesellschaft;
Dr. Otto Schraut
Karl-Ernst Beinersdorf
| |
|
|
|
|
| /s/ [ILLEGIBLE] |
|
| |
|
| /s/ [ILLEGIBLE] |
|
| |
|
| /s/ [ILLEGIBLE] |
|
Liste der Gesellschafter
der Firma
SIG Vietnam Beteilligungs GmbH
mit dem Sitz in Waldshut-Tiengen
| |
|
|
|
Name und Anschrift
|
|
Betrag der übernommenen |
des Gesellschafters
|
|
Stammeinlaae |
|
|
|
SIG Combibloc Holding GmbH |
|
|
mit Sitz in Waldshut-Tiengen
|
|
EUR 25.000,00 |
|
|
|
Stammkapital:
|
|
EUR 25.000.00 |
Waldshut-Tiengen, den 29.11.2004
Die Geschäftsführer:
| |
|
|
|
/s/ Marco Haussener
|
|
/s/ Andre Rosenstock |
|
|
|
Marco Haussener
|
|
Andre Rosenstock |
Liste der Gesellschafter
der Firma
SiG Combibloc Vermögensverwaltungs-GmbH
mit dem Sitz in Linnich
Nach Wirksamwerden der formwechseinden Umwandlung der SiG Combibloc Vermögensverwaltimgs-GmbH &
Co. KGaA in eine GmbH und anschließender Rückabtretung des von der ehemaligen Komplementärin
treuhändarisch für die SIG Combibloc Holding GmbH gehaltenen Geschaäftsanteils sind an der
Gesellschaft beteiligt:
| |
|
|
|
| |
|
|
|
Gesellschafter
|
|
|
Stammeinlagen |
|
|
|
|
1. SIG Combibloc Holding GmbH
|
|
|
EUR 30.392.500,00 |
in Waldshut-Tiengen
|
|
|
EUR 500,00 |
|
|
|
|
2.. SIG Euro Holding AG & Co. KGaA |
|
|
|
in Waidshut-Tiengen
|
|
|
EUR 307.000,00 |
|
|
|
|
Stammkapital:
|
|
|
EUR 30,700,000,00 |
Linnich, den 03.08.2007
Die Geschäftsführer
| |
|
|
|
/s/ W.W.Schäfers
W.W.Schäfers
|
|
|
/s/ [ILLEGIBLE]
SCHEDULE 3
COPY OF SHAREHOLDERS’ RESOLUTION IN RESPECT OF PLEDGOR
- 38 -
MINUTES OF THE RESOLUTIONS MADE BY THE
SHAREHOLDERS OF
SIG Combibloc Holding GmbH
A.
PREAMBLE
I. SIG Combibloc Holding GmbH (the “Company”) with its registered seat in
Linnich, registered with the Commercial Register of the Local Court Düren under
HR B 5751, has a stated share capital of EUR 5,200,000 (five million two hundred
thousand Euros), consisting of two shares, i.e. one share in the nominal amount of
EUR 4,939,480 (four million nine hundred thousand thirty nine thousand four
hundred eighty Euros) which is held by SIG Euro Holding AG & Co.
KGaA (“SIG
Euro Holding”) with its seat in Linnich, registered with the Commercial Register of
the Local Court Düren under HR B 5754 and one share in the nominal amount of
EUR 260,520 (two hundred sixty thousand five hundred twenty Euros) which is held
by SIG Combibloc Group AG (“SIG Combibloc Group”) with its seat in Neuhausen
am Rheinfall, Switzerland, registered in the commercial register of the Canton of
Schaffhausen under the company number CH-290.3.004.149-2
II. The Company is part of the Reynolds group of companies, which includes
RGHL (as defined below) and each of its subsidiaries (the “Reynolds Group”).
As part of the Reynolds Group, the Company is a guarantor and security provider in respect of the
Reynolds Group’s existing financing arrangements, including by:
| |
a) |
|
providing a guarantee and security with respect to the senior secured credit
agreement (the “Senior Secured Credit Agreement”) dated as of November 5, 2009,
between, among others, Reynolds Group Holdings Limited (“RGHL”), the borrowers
listed therein and Credit Suisse AG, as amended, amended or restated, supplemented or
otherwise modified from time to time (the “Senior Secured Credit Facilities”); |
| |
| |
b) |
|
providing a guarantee and security with respect to the 7.75% senior secured notes due
2016 issued by members of the Reynolds Group in aggregate principal amounts of
US$1,125,000,000 and €450,000,000 pursuant to an indenture dated as of November 5, 2009
(the “2009 Notes”); |
| |
| |
c) |
|
providing a guarantee and security with respect to the 7.125% senior secured notes
due 2019 issued by members of the Reynolds Group in an aggregate principal amount of
US$1,500,000,000 pursuant to an indenture dated as of October 15, 2010 (the “October
2010 Secured Notes”); and |
| |
| |
d) |
|
providing a guarantee and security with respect to the 6.875% senior secured notes
due 2021 issued by members of the Reynolds Group in an aggregate principal amount of
US$1,000,000,000 pursuant to an indenture dated as of February 1, 2011 (the “February
2011 Secured Notes”); |
(the 2009 Notes, the October 2010 Secured Notes and the February 2011 Secured Notes being
together, the “Existing Secured Notes,” and together with the Senior
Secured Credit Facilities, the “Existing Secured indebtedness”),
| |
e) |
|
incurring and providing a guarantee of certain notes issued by members of the
Reynolds Group, including (i) 8% senior notes due 2016 issued in an aggregate principal
amount of €480,000,000 pursuant to an indenture dated June 29, 2007, (ii) 9.5% senior
subordinated notes due 2017 issued in an aggregate principal amount of €420,000,000
pursuant to an indenture dated June 29, 2007 (together with (i), the “2007 Notes”), (iii)
8.5% senior notes due 2018 issued in an aggregate principal amount of US$1,000,000,000
pursuant to an indenture dated May 4, 2010 (the “May 2010 Notes”), (iv) 9.0% senior notes
due 2019 issued in an aggregate principal amount of US$1,500,000,000 pursuant to an
indenture dated October 15, 2010 (the “October 2010 Senior Notes”) and (v) 8.250% senior
notes due 2021 issued in an aggregate principal amount of US$1,000,000,000 pursuant to an
indenture dated February 1, 2011 (the “February 2011 Senior Notes”) (the 2007 Notes, the
May
2010 Notes, the October 2010 Senior Notes and the February 2011 Senior Notes being
together, the “Existing Notes”); and |
| |
| |
f) |
|
being party to the intercreditor arrangements in respect of the guarantees,
indebtedness and security described above (the “Intercreditor Arrangements”), |
the Existing Secured Indebtedness, the Existing Notes and the Intercreditor Arrangements
being, together, the “Existing Financing Arrangements”.
It is currently intended that RGHL will indirectly acquire the GPC group of companies (the “GPC
Group”) through the merger of an indirect wholly owned subsidiary of RGHL with and into Graham
Packaging Company Inc. (“GPC”), with GPC surviving such merger and becoming an indirect
wholly owned subsidiary of RGHL (the “Acquisition”).
The Company has previously considered and approved the entry by the Company into the Senior Secured
Credit Agreement, as amended or otherwise modified from time to time;
RGHL has determined it may be necessary or advisable to incur additional indebtedness under the
Senior Secured Credit Facilities in order to partially fund the Acquisition, the associated costs
and transactions required to effect the Acquisition and for general corporate purposes, and the
Company is now considering entering into amendments to, and/or an amendment and restatement of, the
Senior Secured Credit Agreement, pursuant to which additional indebtedness would be incurred and
the proceeds made available under certain incremental facilities and subject to certain conditions
(the “Credit Agreement Amendment”).
RGHL has entered into a commitment letter, attached hereto as Exhibit 1, (together with
the term sheets attached thereto, the “Commitment Letter”), pursuant to which certain
lenders have provided commitments for three bridge financing facilities comprised of: a senior
secured bank bridge facility, a senior secured notes bridge facility and a senior unsecured notes
bridge facility, each as more particularly described in the Commitment Letter (collectively, the
“Bridge Financing Facilities”), which may be used to partially fund the Acquisition and the
associated costs and
2
transactions required to effect the Acquisition.
RGHL may determine, in lieu of or in combination with issuing the New Secured Notes (as defined
below), New Unsecured Notes (as defined below) and/or incurring the Additional Bank Debt (as
defined below), that it is necessary or advisable to draw on one or more of the Bridge Financing
Facilities in order to fund all or part of the Acquisition.
In addition, RGHL and/or certain direct or indirect subsidiaries of RGHL intend to incur additional
indebtedness as set forth below. In connection with such incurrence of indebtedness, it is intended
that the Existing Financing Arrangements be supplemented and/or amended, by, among other things,
RGHL and/or certain of its direct or indirect subsidiaries doing one or more of the following:
| |
a) |
|
the entry into of a new indenture (the “New Unsecured Notes Indenture”), or
accession thereto, by certain members of the Reynolds Group in respect of the issue of new
unsecured notes by indirect subsidiaries of RGHL (the “New Unsecured Notes”),
including the issuance of the New Unsecured Notes and provision of related guarantees in
respect of the New Unsecured Notes by certain members of the Reynolds Group (including the
Company, as applicable) and, following the Acquisition, potentially by certain members of
the GPC Group (the “New Unsecured Notes Guarantees”); |
| |
| |
b) |
|
the entry into of a new indenture (the “New Secured Notes Indenture”), or
accession thereto, by certain members of the Reynolds Group in respect of the issue of new
senior secured notes by indirect subsidiaries of RGHL (the “New Secured Notes”),
including the issuance of the New Secured Notes and the provision of related guarantees in
respect of the New Secured Notes by certain members of the Reynolds Group (including the
Company, as applicable) and, following the Acquisition, potentially by certain members of
the GPC Group (the “New Secured Notes Guarantees”); |
| |
| |
|
|
The proceeds from the issuance of the New Unsecured Notes and the New Secured Notes may
be used to partially fund the Acquisition and the associated costs and transactions
required (including, without limitation, the repayment of existing indebtedness of GPC
Group and contractual payments to existing shareholders of GPC Group) to effect the
Acquisition and for general corporate purposes. |
| |
| |
|
|
It is expected that the Existing Secured Indebtedness and/or the Intercreditor
Arrangements will be amended, restated, extended, confirmed, affirmed, re-affirmed,
released and/or retaken, as necessary, in order to ensure that following the entry into
the New Secured Notes Indenture, the New Secured Notes will have the benefit of (i)
guarantees from substantially the same guarantors (including the Company) that
guarantee the Existing Secured Indebtedness and, following the Acquisition, potentially
from certain members of the GPC Group and (ii) substantially the same collateral provided
in respect of the Existing Secured Indebtedness and, following the Acquisition,
potentially security provided by certain members of the GPC Group. |
| |
| |
|
|
The New Secured Notes and the New Unsecured Notes may be issued into |
3
| |
|
|
escrow prior to the
date of the Acquisition. If the New Secured Notes or the New Unsecured Notes are issued
into escrow, the Company will not be required to provide its guarantees and security with
respect to the New Secured Notes or the New Unsecured Notes (as relevant) until such time
as the escrow is released. It is currently intended that if the New Secured Notes or the
New Unsecured Notes are issued into escrow the relevant escrow issuers, which shall be
affiliates of RGHL (the “Escrow Issuers”), will merge or otherwise be
consolidated with Reynolds Group Issuer Inc., a Delaware corporation, Reynolds Group
Issuer LLC, a Delaware limited liability company, and Reynolds Group Issuer (Luxembourg)
S.A., a société anonyme (a public limited liability company) under the laws of Luxembourg
(the “Existing Issuers”) or any other affiliates of RGHL which may
issue the New Secured Notes and the New Unsecured Notes (together with the Existing
Issuers, the “Issuers”) on the release of the escrow, with the Issuers being the
surviving entities (the “Escrow and Merger Arrangements”). |
| |
| |
|
|
It is currently intended that if the New Secured Notes or the New Unsecured Notes are not
issued into escrow, the New Secured Notes and the New Unsecured Notes may be issued by the
Issuers; |
| |
| |
c) |
|
the entry into of one or more registration rights agreements or joinders thereto by certain
members of the Reynolds Group (including the Company) and, following the Acquisition,
potentially certain members of the GPC Group pursuant to which such entities agree to register
the re-sale of the New Unsecured Notes and the New Secured Notes and/or register the issuance
of the Unsecured Exchange Securities and the Secured Exchange Securities (each as defined
below) (the “Unsecured Notes Registration Rights Agreement” and the “Secured Notes
Registration Rights Agreement”, respectively); |
| |
| |
d) |
|
the entry into of one or more purchase agreements or joinders thereto providing for the
issuance and sale of the New Unsecured Notes and the New Secured Notes and related guarantees
by certain members of the Reynolds Group (including the Company) and, following the
Acquisition, potentially certain members of the GPC Group (the “Unsecured Notes Purchase
Agreement” and the “Secured Notes Purchase Agreement”, respectively); |
| |
| |
e) |
|
the entry into the Credit Agreement Amendment and/or joinders thereto; |
| |
| |
f) |
|
the incurrence of additional indebtedness (the “Additional Bank Debt”) under the
Senior Secured Credit Facilities as amended by the Credit Agreement Amendment (the
“Amended Senior Secured Credit Facilities”) which will have the benefit of
substantially the same guarantees and security as already provided in respect of the Senior
Secured Credit Facilities and it is expected that the security and guarantees provided in
respect of the Senior Secured Credit Facilities and/or the Intercreditor Arrangements will be
amended, restated, extended, affirmed, re-affirmed, confirmed, released and/or retaken, as
necessary, in order to effectuate the foregoing. The Additional Bank Debt may also have the
benefit of guarantees and security provided, following the Acquisition, potentially by |
4
| |
|
|
certain
members of the GPC Group, as a result of such GPC Group entities granting guarantees and
security in respect of the Amended Senior Secured Credit Facilities. |
| |
| |
|
|
It is intended that the Additional Bank Debt will not be drawn down until the date of the
Acquisition, however the Credit Agreement Amendment will allow for such funds either (i) to
be made available as delayed draw term loans that would be funded on the date of the
Acquisition or (ii) to be drawn down into escrow prior to the date of the Acquisition, |
| |
| |
|
|
If the Additional Bank Debt is either made available as delayed draw term loans or is drawn
into escrow prior to the date of the Acquisition, the Company will not be required to
confirm its guarantees and security with respect to the Additional Bank Debt until such time
as either the delayed draw term loans are funded or the escrow is released or otherwise
terminated (the “Bank Escrow Arrangements”); |
| |
| |
g) |
|
the incurrence of additional indebtedness pursuant to the terms described in
the Commitment Letter; |
| |
| |
h) |
|
the entry into the Facilities Documents (as such term is defined in the
Commitment Letter), including, without limitation, any credit agreements,
intercreditor agreements, security documents, indentures, registration rights
agreements, purchase agreements, notes, joinders or any other documents in
connection with the Bridge Financing Facilities or the conversion of any
such Bridge Financing Facilities into term loans and/or exchange notes as
described in the Commitment Letter; |
| |
| |
i) |
|
the provision by certain members of the Reynolds Group (including the
Company as an existing guarantor) of certain affirmations, reaffirmations
and/or confirmations that the guarantees in place in respect of the Existing
Secured Indebtedness and Existing Notes continue in full force and effect,
notwithstanding the Transactions (as defined below), the Escrow and
Merger Arrangements, the Bank Escrow Arrangements and, in the case of
the Senior Secured Credit Facilities, extend to the Additional Bank Debt,
the Amended Senior Secured Credit Facilities and the Bridge Financing
Facilities, if any, as applicable; |
| |
| |
j) |
|
the amendment, restatement, affirmation, re-affirmation, supplement, extension, confirmation
or release and retake of security, or grant of new or additional security (which may be
second, third or junior ranking) or other action in respect of collateral under the applicable
agreements, instruments or other documents creating security interests in respect of the
Existing Secured indebtedness (collectively, the “Security Documents”) in order to
provide that such Security Documents (i) secure obligations with respect to the New Secured
Notes, the Additional Bank Debt and any secured Bridge Financing Facilities, as applicable, on
a pari passu basis with the Existing Secured Indebtedness to the extent possible and (ii)
continue to secure obligations in respect of the Existing Secured Indebtedness (including
after the consummation of the Escrow and Merger Arrangements and the Bank Escrow
Arrangements); |
5
| |
k) |
|
the entry into any amendments, supplements, joinders, designations, confirmations or
other documents in connection with the first lien intercreditor agreement dated as of
November 5, 2009, between, among others, The Bank of New York Mellon, as the collateral
agent, Credit Suisse AG, and the grantors from time to time party thereto and the
representatives from time to time party thereto as amended by Amendment No. 1 and Joinder
Agreement, dated as of January 21, 2010 (as further amended, extended, restated or
otherwise modified the “FLICA”) to the extent required in order to permit the New
Secured Notes and/or the Additional Bank Debt to be included as “Obligations”
thereunder; |
| |
| |
l) |
|
the entry into of any amendments, supplements, accessions, designations,
confirmations or other documents in connection with the intercreditor agreement dated May
11, 2007, as amended and/or restated, including, without limitation, as of (i) November 5,
2009 by an amendment and restatement agreement and (ii) November 5, 2010 by an amendment
agreement, both between, among others, RGHL as parent, Credit Suisse AG, Cayman Islands
Branch, as administrative agent and The Bank of New York Mellon as collateral agent,
senior secured notes trustee and high yield noteholders trustee (as such intercreditor
agreement may be further amended, extended, restated or otherwise modified, the “2007
ICA”); and |
| |
| |
m) |
|
following the Acquisition, the possible accession by certain members of the GPC Group
to the Existing Financing Arrangements and the Transaction Documents (as defined below) as
guarantors and/or security providers. |
(collectively, the “Transactions”),
In order to effect the Transactions, it is intended that the Company enter into and/or approve, as
relevant, the following documents, (collectively, the “Transaction Documents”);
| |
a) |
|
the documents relating to the Bridge Financing Facilities, including, without
limitation, the Facilities Documents, and any credit agreements, intercreditor
agreements, security documents, indentures, registration rights agreements, purchase
agreements, notes, joinders, offering material or any other documents in connection with
the Bridge Financing Facilities or the conversion of any such Bridge Financing Facilities
into term loans and/or exchange notes as described in the Commitment Letter; |
| |
| |
b) |
|
the documents relating to the Amended Senior Secured Credit Facilities, the New
Secured Notes and the New Unsecured Notes, as more particularly described in Schedule
1; and |
| |
| |
c) |
|
the documents relating to the intercreditor arrangements in respect of Amended Senior
Secured Credit Facilities, the New Secured Notes, the New Unsecured Notes, the Existing
Secured Notes and the Existing Notes, as more particularly described in Schedule
2. |
6
B.
SHAREHOLDER RESOLUTIONS
In view of the foregoing, the signatories, acting on behalf of SIG Euro Holding and SIG
Combibloc Group, waiving all legal and statutory requirements as to form and time of convening and
holding a shareholder meeting, hereby unanimously pass the following resolutions:
I. The entry into the Transactions is hereby approved.
II. The execution, delivery and performance of the Transaction Documents and any other documents
related thereto or required to be executed, delivered and performed in order to give effect to the
Acquisition and the Transactions, (including any notices, certificates, requests, communications or
other documents (together with the Transaction Documents, the “Documents”), are hereby
approved or, as the case may be, ratified.
III. IT IS HEREBY APPROVED, that the managing directors (Geschäftsführer), proxy holders
(Prokuriten) and specified persons authorized by power of attorney (together the
“Representatives” and each of them individually a “Representative”) be, and each of
them hereby is, authorised to (i) negotiate, approve, make, agree and/or execute any amendments to
any Document as that Representative may (in his absolute discretion) think fit, the execution of
any Document by such Representative being conclusive evidence of the due authorisation by the
Company of the execution and delivery, on the Company’s behalf, of that Document, as so amended,
(ii) take such action and make such filings as are required under applicable law and (iii) do all
other acts and things as he or she may consider necessary or desirable, including granting powers
of attorneys, in connection with the transactions contemplated by the Documents.
IV. IT IS HEREBY APPROVED, that the Company be, and it hereby is, authorized and empowered to
prepare, with the Escrow Issuers or the Issuers, as applicable, one or more offering memoranda to
be used in connection with the offer and sale of (i) the New Unsecured Notes Guarantees and the New
Unsecured Notes, (the “New Unsecured Securities”) and (ii) the New Secured Notes Guarantees
and the New Secured Notes (the “New Secured Securities”) and security thereunder;
V. IT IS HEREBY APPROVED, that the Company be, and it hereby is, authorized and empowered to file
one or more registration statements on Form F-4 or any other form as appropriate, and/or shelf
registration statements (including the prospectuses contained therein and any required exhibits
thereto) (the “Registration Statement”) to register under the United States Securities Act
1933, as amended (the “Securities Act”) (i) the resale of the New Unsecured Securities and
the New Secured Securities, or (ii) the offer or offers to exchange (a) the New Unsecured Notes for
new unsecured notes (the “Unsecured Exchange Notes”) and new unsecured guarantees (the
“Unsecured Exchange Guarantees”) (the Unsecured Exchange Notes and Unsecured Exchange
Guarantees are together the “Unsecured Exchange Securities”) and (b) the New Secured Notes
for the new secured notes (the “Secured Exchange Notes”) and the new secured guarantees
(the “Secured Exchange Guarantees”) (the Secured Exchange Notes and the Secured Exchange
Guarantees are together the “Secured Exchange Securities”), ((a) and (b) collectively, and
in each case, with terms substantially identical in all material respects (other than with respect
7
to transfer restrictions and provision requiring the payment of additional interest in certain
circumstances) to the New Unsecured Securities and the New Secured Securities, as applicable,
constitute the “Exchange Offer”);
VI. IT IS HEREBY APPROVED, that any Representative be, and each of them hereby is, authorized and
empowered, in the name and on behalf of the Company to (i) prepare, execute (manually or by
facsimile signature), and file with the U.S. Securities and Exchange Commission (the
“Commission”), each such Registration Statement, and any amendment or amendments to any
such Registration Statement, and any supplement or supplements to the prospectus therein, (ii)
prepare and make use of one or more written communications that would constitute a “free writing
prospectus” as defined in Rule 405 under the Securities Act and take all actions to comply with the
requirements of Rules 164 and 433 under the Securities Act with respect to timely filing with the
Commission, legending and recordkeeping, (iii) to make any other filings related to the New
Unsecured Securities or the Unsecured Exchange Securities and the New Secured Securities or the
Secured Exchange Securities in other jurisdictions or with other agencies, regulatory authorities,
self-regulatory bodies or entities (including, without limitation, in connection with securities
laws of any U.S. state or territory) and (iv) to do and perform any and all such other acts, deeds
and things, in each case as such Representative may deem necessary or appropriate, to effect the
registration, provided, however, that in the case of each of clauses (i), (ii), (iii) and
(iv) above, no change, amendment, supplement, filing, act, deed or thing shall be inconsistent with
any determination made by this Board;
VII. IT IS HEREBY APPROVED, that any Representative be, and each of them hereby is, in the event of
an Exchange Offer authorized and empowered, in the name and on behalf of the Company, to negotiate
and agree upon the form, terms and provisions of one or more exchange agent agreements, in such
form or forms, and providing for such fees to be paid in respect of the proposed exchange of the
New Unsecured Securities for the Unsecured Exchange Securities and the New Secured Securities for
the Secured Exchange Securities (the “Exchange Agent Agreement”) as such Representative may
approve; and that the Company be, and it hereby is, authorized and empowered to enter into and
perform its obligations under each Exchange Agent Agreement; and that any Representative be, and
each of them hereby is, authorized and empowered, in the name of and on behalf of the Company, to
execute, (manually or by facsimile signature), each Exchange Agent Agreement, such Representative’s
execution thereof to be conclusive evidence of such Representative’s approval thereof and of such
Representative’s authority to do so;
VIII. IT IS HEREBY APPROVED FURTHER, that any Representative be, and each of them hereby is,
authorized and empowered, in the name and on behalf of the Company, to execute, (manually or by
facsimile signature), and deliver one or more supplemental indentures providing for the issuance of
the Unsecured Exchange Securities and the Secured Exchange Securities (the “Exchange
Securities”) and any certificates or other instruments evidencing any of the Exchange
Securities, including one or more certificates for any Exchange Securities in global form, the
execution of such supplemental indentures, certificates or other instruments by such Representative
to be conclusive evidence of the approval by such Representative of the terms thereof and of such
Representative’s authority to do so;
IX. IT IS HEREBY APPROVED, that if any Representative executes any of the
8
Exchange Securities, either manually or by facsimile signature, and then ceases to be an
Representative before the Exchange Securities so executed are authenticated or delivered under the
New Unsecured Notes Indenture and the New Secured Notes Indenture, as applicable or any related
supplemental indenture, or disposed of by the Company or any of its successors, as the case may be,
such Exchange Securities shall nevertheless be valid and may be authenticated and
delivered or disposed of as though the person who executed any of such Exchange Securities had not
ceased to be an Representative;
X. IT IS HEREBY APPROVED, that the offering, issuance and sale by the
Company of the Exchange Securities be, and they hereby are, approved, ratified and
confirmed in all respects; and
XI. IT IS HEREBY APPROVED, that any Representative be, and each of them hereby is, if required,
authorized and empowered, in the name and on behalf of the Company, to determine the states of the
United States in which appropriate action shall be taken to qualify or register the New Unsecured
Securities and Unsecured Exchange Securities of the Company with respect to the New Unsecured Notes
and the Unsecured Exchange Notes, and the New Secured Securities and Secured Exchange Securities of
the Company with respect to the New Secured Notes and the Secured Exchange Notes, to take or cause
to be taken any and all actions as such Representative may deem necessary or appropriate in order
to effect the registration or qualification (or exemption therefrom) of the New Unsecured
Securities and Unsecured Exchange Securities with respect to the New Unsecured Notes, and the New
Secured Securities and Secured Exchange Securities of the Company with respect to the New Secured
Notes, under the “blue sky” or securities laws of any of the states of the United States or under
the securities laws of any other nation, and in connection therewith, to verify, execute, deliver,
file, publish or cause to be verified, executed, delivered, filed or published all requisite
documents, including applications, reports, surety bonds, irrevocable consents and appointments of
attorneys for service of process and other papers and instruments which may be required under such
laws, and to take or cause to be taken any such further action as such Representative may deem
necessary or appropriate in order to maintain any such registration or qualification for as long as
such Representative may deem necessary or appropriate or as required by law; and that the execution
by any Representative of any such document or the performance by any Representative of any such
action in connection with the foregoing matters shall conclusively establish the approval,
ratification and confirmation by the Company and this Board of the documents so executed and the
actions so taken.
XII. IT IS HEREBY APPROVED, that the shares in the Company are pledged as security under or in
connection with the Transactions and that such shares are transferred in case of an enforcement of
the pledges over the shares.
XIII. In order to effect the resolutions passed above, the Representatives are
instructed to sign in the name and on behalf of the Company all necessary documents,
and to give and receive all declarations required in connection with the conclusion,
execution and performance of the Documents and any related transactions and actions
as referred to above including, without limitation, the granting of powers of attorney
in relation to the execution of any such document or the carrying out of any such
action.
9
XIV. For the purposes of the Transactions, the managing directors
(Geschätftsführer) are released from the restrictions of Section 181 German Civil
Code and are authorised to grant a release from the restrictions of Section 181
German Civil Code to the other Representatives.
XV. The managing directors (Geschäftsführer) and proxy holders (Prokuristen) of
the Company are instructed to pass corresponding shareholder resolutions in respect
of the Company’s direct or indirect subsidiaries, and with respect to the approval and
execution of the Documents by such subsidiary.
XVI. There are no further resolutions to pass.
XVII. The shareholder meeting of the Company is declared closed.
C.
WAIVER DECLARATION OF
SIG EURO HOLDING
The signatories, acting in the name and on behalf of SIG Euro Holding AG & Co. KGaA, declare:
As a precaution, any avoidance of the aforementioned resolutions is waived on the part of SIG Euro
Holding AG & Co. KGaA.
[signature page follows]
10
July 20,2011
Place, Date
| |
|
|
|
|
| |
SIG Euro Holding AG & Co. KGaA
By: SIG Reinag AG
|
|
| |
By: |
/s/ Marco Haussener
|
|
| |
|
Name: |
Marco Haussener |
|
| |
|
Title: |
Director |
|
| |
|
|
|
|
| |
By: |
/s/ Holger Dickers
|
|
| |
|
Name: |
Holger Dickers |
|
| |
|
Title: |
Director |
|
| |
| |
|
|
|
|
| |
Place, Date
SIG Combibloc Group AG
|
|
| |
By: |
/s/ Thomas James Degnan
|
|
| |
|
Name: |
Thomas James Degnan |
|
| |
|
Title: |
Director |
|
| |
SCHEDULE 1
New Secured Notes
| |
1. |
|
The New Secured Notes Indenture, between, among others, the duly
appointed trustee for the New Secured Notes, the Escrow Issuers or Issuers and the
guarantors, or any accession, joinder or supplemental indenture thereto. |
| |
| |
2. |
|
The Secured Notes Purchase Agreement, or any accession or joinder thereto. |
| |
| |
3. |
|
The Secured Notes Registration Rights Agreement, or any accession or
joinder thereto. |
| |
| |
4. |
|
Officer’s certificates in respect of the New Secured Notes and any
officer’s certificates in respect of any opinion given in respect of the New Secured
Notes. |
New Unsecured Notes
| |
5. |
|
The New Unsecured Notes Indenture, between, among others, the duly
appointed trustee for the New Unsecured Notes, the Escrow Issuers or Issuers and the
guarantors, or any accession, joinder or supplemental indenture thereto, |
| |
| |
6. |
|
The Unsecured Notes Purchase Agreement, or any accession or joinder thereto, |
| |
| |
7. |
|
Unsecured Notes Registration Rights Agreement, or any accession or
joinder thereto. |
| |
| |
8. |
|
Officer’s certificates in respect of the New Unsecured Notes and any
officer’s certificates in respect of any opinion given in respect of the New
Unsecured Notes. |
Other Documents relating to the New Secured Notes, the New Unsecured Notes, and/or the Amended
Senior Secured Credit Facilities
| |
9. |
|
A confirmation, affirmation or re-affirmation agreement, between, among
others, certain of the Loan Parties, each duly appointed collateral agent under the
First Lien Intercreditor Agreement, Credit Suisse AG, as administrative agent under
the Senior Secured Credit Facilities, and The Bank of New York Mellon, as trustee
under the 2009 Indenture and in other capacities, with respect to the continuing
security and/or guarantees in respect of the New Secured Notes and/or the Additional
Bank Debt (the “Reaffirmation Agreement”). |
| |
| |
10. |
|
The Credit Agreement Amendment, and any ancillary and/or related
documents necessary to give effect to such amendments to the Senior Secured Credit
Agreement. |
| |
| |
11. |
|
the amendment, restatement, affirmation, re-affirmation, supplement,
creation, extension, confirmation or release and retake of security, or grant of new
or additional security (which may be second ranking) or other action in respect of |
12
| |
|
|
collateral under the applicable agreements, instruments or other documents creating
security interests, in particular: |
| |
• |
|
various confirmation, reaffirmation or amendment agreements under German
law (including such agreements that require notarial recording) with respect to the
continuing or amendment of the existing German security agreements (the “German
Confirmation Agreements”); |
| |
| |
• |
|
Any agreements under which the Company grants new security such as new
share pledge agreements or new account pledge agreements (including such agreements
that require notarial recording) (the “German New Pledge Agreements”); |
| |
| |
• |
|
Any agreements under which the Company grants new security under non-German
law or confirms, reaffirms or amends existing agreements including but not limited to
share pledge agreements or interest pledge agreements relating to any
shares/interests in non-German subsidiaries ((including, without limitation, (i) a
Luxembourg law confirmation agreement in respect of a share pledge over Evergreen
Packaging (Luxembourg) S.à.r.l. and (ii) an English law deed of confirmation and
amendment in respect of the share pledge over SIG Combibloc Ltd) (the “Non-German
Pledge Agreements”). |
| |
12. |
|
Any other document, instrument and/or agreement for the purpose of confirming, affirming,
retaking or creating security in respect of the Additional Bank Debt and/or the New Secured
Notes. |
| |
| |
13. |
|
Any document, instrument and/or agreement for the purposes of implementing, or required as a
result of the implementation of, the Escrow and Merger Arrangements and/or the Bank Escrow
Arrangements, including any document, instrument or agreement which amends or otherwise varies
any security interest and/or guarantee granted by the Company. |
| |
| |
14. |
|
Any letters, notices or agreements of appointment in favour of certain related or unrelated
persons to act as process agent on behalf of the Company in respect of the Transactions. |
| |
| |
15. |
|
Any notices, certificates, requests, waivers, authorisations, amendments, letter agreements,
restatements, communications or other documents to be made, executed or entered into in
connection with the above and/or the Transactions. |
13
SCHEDULE 2
| 1. |
|
Any agreements, amendments, supplements, joinders, certificates or other documents required
to be entered into in connection with the 2007 ICA. |
| |
| 2. |
|
Any agreements, amendments, supplements, joinders, certificates, designations, confirmations
or other documents required to be entered into in connection with the FLICA including, without
limitation, in order to permit the New Secured Notes and/or Additional Bank Debt to be
included as “Obligations” thereunder |
14
EXHIBIT 1
COMMITMENT LETTER
15
Appendix 9
SIG EURO HOLDING AG & CO. KGAA
as Pledgor
SIG BEVERAGES GERMANY GMBH, SIG INTERNATIONAL SERVICES GMBH, SIG INFORMATION TECHNOLOGY GMBH, SIG COMBIBLOC GMBH AND SIG COMBIBLOC HOLDING GMBH
as Companies
THE BANK OF NEW YORK MELLON
as Collateral Agent and Pledgee
SHARE PLEDGE AGREEMENT RELATING TO THE
SHARES IN SIG BEVERAGES GERMANY GMBH,
SIG INTERNATIONAL SERVICES GMBH, SIG
INFORMATION TECHNOLOGY GMBH, SIG
COMBIBLOC GMBH AND SIG COMBIBLOC
HOLDING GMBH
(Geschäftsanteilsverpfändung)
The taking of this document or any certified copy of it or any document which constitutes
substitute documentation for it, or any document which includes written confirmations or references
to it, into Austria as well as printing out any e-mail communication which refers to any Credit
Document (as defined in Clause 1 of this document) in Austria or sending any e-mail communication
to which a pdf scan of this document is attached to an Austrian addressee or sending any e-mail
communication carrying an electronic or digital signature which refers to any Credit Document to an
Austrian addressee may cause the imposition of Austrian stamp duty. Accordingly, keep the original
document as well as all certified copies thereof and written and signed references to it outside of
Austria and avoid printing out any email communication which refers to any Credit Document in
Austria or sending any e-mail communication to which a pdf scan of this document is attached to an
Austrian addressee or sending any e-mail communication carrying an electronic or digital signature
which refers to any Credit Document to an Austrian addressee.
Contents
| |
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| Clause |
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Page |
|
1.Definitions and Language |
|
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5 |
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2.Pledged Shares |
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12 |
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3.Pledge |
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13 |
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4.Scope of the Pledges |
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13 |
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5.Purpose of the Pledges |
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14 |
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6.Exercise of Membership Rights |
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14 |
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7.Enforcement of the Pledges |
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14 |
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8.Approval and Confirmation |
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16 |
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9.Undertakings of the Pledgor |
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16 |
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10.Delegation |
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18 |
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11.Indemnity |
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18 |
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12.No Liability |
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18 |
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13.Duration and Independence |
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19 |
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14.Release of Pledge (Pfandfreigabe) |
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19 |
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15.Partial Invalidity; Waiver |
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20 |
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16.Amendments |
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20 |
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17.Notices and their Language |
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20 |
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18.Notification |
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22 |
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19.Applicable Law, Jurisdiction |
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23 |
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Schedule 1 |
|
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24 |
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Part 1 List of Current Borrowers |
|
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24 |
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Part 2 List of Current Guarantors, Current 2009 Senior Secured Notes Guarantors, Current
October 2010 Secured Notes Guarantors and Current February 2011 Secured Notes
Guarantors |
|
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24 |
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Part 3 List of Current New Secured Notes Guarantors |
|
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30 |
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Part 4 Copies of Shareholders Lists (Gesellschafterlisten) |
|
|
36 |
|
- 1 -
This SHARE PLEDGE AGREEMENT (the “Agreement”) is made on September 8, 2011 BETWEEN:
| (1) |
|
SIG Euro Holding AG & Co. KG aA, a limited liability company (Gesellschaft mit beschrankter
Haftung) organised under the laws of the Federal Republic of Germany, having its business
address at Rurstraße 58, 52441 Linnich, Germany, which is registered in the commercial
register (Handelsregister) of the local court (Amtsgericht) of Düren under HRB 5754 (the
“Pledgor”); |
| |
| (2) |
|
SIG Beverages Germany GmbH, a limited liability company (Gesellschaft mit beschrankter
Haftung) organised under the laws of the Federal Republic of Germany having its corporate seat
in Waldshut-Tiengen, Germany and its business address at Weilheimer Straße 5, 79761
Waldshut-Tiengen, Germany, which is registered in the commercial register (Handelsregister) of
the local court (Amtsgericht) of Freiburg i. Br. under HRB 702482 (the “Company 1”); |
| |
| (3) |
|
SIG International Services GmbH, a limited liability company (Gesellschaft mit beschrankter
Haftung) organised under the laws of the Federal Republic of Germany having its corporate seat
in Linnich, Germany and its business address at Rurstraße 58, 52441 Linnich, Germany, which is
registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of
Duren under HRB 3925 (the “Company 2”); |
| |
| (4) |
|
SIG Information Technology GmbH, a limited liability company (Gesellschaft mit beschrankter
Haftung) organised under the laws of the Federal Republic of Germany having its corporate seat
in Linnich, Germany and its business address at Rurstraße
58, 52441 Linnich, Germany, which is registered in the commercial register
(Handelsregister) of the local court (Amtsgericht) of Düren under HRB 4050 (the
“Company 3”); |
| |
| (5) |
|
SIG Combibloc Holding GmbH, a limited liability company (Gesellschaft mit
beschrankter Haftung) organised under the laws of the Federal Republic of Germany
having its corporate seat in Linnich, Germany and its business address at Rurstraße 59, 52441 Linnich, Germany, which is registered in the commercial register
(Handelsregister) of the local court (Amtsgericht) of Düren under HRB 5751 (the
“Company 4”); |
| |
| (6) |
|
SIG Combibloc GmbH, a limited liability company (Gesellschaft mit beschrankter Haftung)
organised under the laws of the Federal Republic of Germany having its corporate seat in
Linnich, Germany and its business address at Rurstraße 58, 52441 Linnich, Germany, which is
registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of
Düren under HRB 5182 (the “Company 5” and together with Company 1, Company 2, Company 3 and
Company 4 the “Companies”); and |
| |
| (7) |
|
The Bank of New York Mellon, having its business address at 1 Wall Street, New York, N.Y.
10286, The United States of America, in its capacity as collateral agent under the First Lien
Intercreditor Agreement (as defined below) (the “Collateral Agent” or the “Pledgee”). |
- 2 -
WHEREAS:
| (A) |
|
Pursuant to the second amended and restated senior secured multi-currency term and revolving
credit agreement dated 9 August 2011 of currently up to USD 4,445,000,000 and EUR 330,000,000
between, inter alia, the parties listed in Schedule 1 Part 1 hereto as current borrowers (the
“Current Borrowers”), the parties listed in Schedule 1 Part 2 hereto as current guarantors
(the “Current Guarantors”), Credit Suisse AG as administrative agent and others (as amended,
varied, novated, restated, supplemented, superseded or extended from time to time, the “Second
Amended and Restated Credit Agreement”), which amends and restates the multicurrency term and
revolving credit agreement dated 5 November 2009 between, inter alia, the Current Borrowers
and the Current Guarantors, Credit Suisse AG as administrative agent and others (as amended
and restated pursuant to the Second Amended and Restated Credit Agreement and as further
amended, varied, novated, restated, supplemented, superseded or extended from time to time,
hereinafter the “Credit Agreement”), certain lenders (together the “Original Lenders”) have
granted certain facilities to the Current Borrowers and certain other entities which may
accede or may have acceded to the Credit Agreement as additional borrowers. |
| |
| (B) |
|
Pursuant to a senior secured notes indenture dated 5 November 2009 between, inter alia,
Reynolds Group Issuer LLC, Reynolds Group Issuer Inc., and Reynolds Group Issuer (Luxembourg)
S.A as ultimate issuers (the “Issuers”), certain affiliates of the Issuers listed in Schedule
1 Part 2 hereto as current 2009 senior secured notes guarantors (the “Current 2009 Senior
Secured Notes Guarantors”) and The Bank of New York Mellon, as indenture trustee, principal
paying agent, transfer agent and registrar, (as amended, varied, novated, supplemented,
superseded or extended from time to time, the “2009 Senior Secured Notes Indenture”), the
Issuers have issued senior secured notes due 2016 in the aggregate principal amount of USD
1,125,000,000 (the “US Secured Notes”) and senior secured notes due 2016 in the aggregate
principal amount of EUR 450,000,000 (the “Euro Secured Notes” and together with the US Secured
Notes the “2009 Senior Secured Notes”) to certain noteholders. |
| |
| (C) |
|
Pursuant to a senior secured notes indenture dated 15 October 2010 between, inter alia, RGHL
US Escrow I LLC, RGHL US Escrow I Inc., and RGHL Escrow Issuer (Luxembourg) I S.A. as escrow
issuers (the “Escrow Issuers”), The Bank of New York Mellon as indenture trustee, The Bank of
New York Mellon, London Branch as principal paying agent, The Bank of New York Mellon as
collateral agent and Wilmington Trust (London) Limited as additional collateral agent (as
amended, varied, novated, supplemented, superseded or extended from time to time, the “October
2010 Secured Notes Indenture”), the Escrow Issuers have issued secured notes due 2019 in the
aggregate principal amount of USD 1,500,000,000 in escrow (the “ October 2010 Secured Notes”).
In connection with the release from escrow of the proceeds of the October 2010 Secured Notes,
which occurred on 16 November |
- 3 -
| |
|
2010, the Escrow Issuers were merged with and into the Issuers, with each of the
Issuers surviving the applicable mergers or other transfers and assuming by operation of
law the obligations of the applicable Escrow Issuers with respect to the October
2010 Secured Notes Indenture and the October 2010 Secured Notes. Certain affiliates
of the Issuers listed in Schedule 1 Part 2 hereto have acceded to the October 2010
Secured Notes Indenture as current October 2010 secured notes guarantors (the
“Current October 2010 Secured Notes Guarantors”). |
| |
| (D) |
|
Pursuant to a senior secured notes indenture dated 1 February 2011 between, inter
alia, the Issuers, The Bank of New York Mellon as indenture trustee, The Bank of
New York Mellon, London Branch as principal paying agent, The Bank of New York
Mellon as collateral agent and Wilmington Trust (London) Limited as additional
collateral agent (as amended, varied, novated, supplemented, superseded or extended
from time to time, the “February 2011 Secured Notes Indenture”), the Issuers have
issued secured notes due 2021 in the aggregate principal amount of USD
1,000,000,000 (the “February 2011 Secured Notes”) which are guaranteed by
certain affiliates of the Issuers listed in Schedule 1 Part 2 hereto as current February 2011 secured notes guarantors (the “Current February 2011 Secured Notes
Guarantors”). |
| |
| (E) |
|
The Pledgor has entered into the Existing Share Pledge Agreements (as defined
below). |
| |
| (F) |
|
Pursuant to a senior secured notes indenture dated 9 August 2011 between, inter alia,
the RGHL US Escrow II LLC and RGHL US Escrow II Inc. as escrow issuers (the
“August 2011 Escrow Issuers”), The Bank of New York Mellon as indenture trustee,
The Bank of New York Mellon, London Branch as principal paying agent, The Bank
of New York Mellon as collateral agent and Wilmington Trust (London) Limited as
additional collateral agent (as amended, varied, novated, supplemented, superseded or
extended from time to time, the “New Secured Notes Indenture”), the August 2011
Escrow Issuers have issued senior secured notes due 2019 in the aggregate principal
amount of USD 1,500,000,000 (the “New Secured Notes”). In connection with the
release from escrow of the proceeds of the New Secured Notes, RGHL US Escrow II
Inc. and RGHL US Escrow II LLC shall be merged with and into Reynolds Group
Issuer Inc. and Reynolds Group Issuer LLC (together with Reynolds Group Issuer
(Luxembourg) S.A. the “August 2011 Ultimate Issuers”), respectively, and the
obligations of the August 2011 Escrow Issuers shall be assumed by the August 2011
Ultimate Issuers pursuant to one or more supplemental indentures between, among
others, the August 2011 Escrow Issuers, the August 2011 Ultimate Issuers, The Bank
of New York Mellon, as trustee, principal paying agent, transfer agent, registrar and
collateral agent and Wilmington Trust (London) Limited, as additional collateral
agent. At such time certain affiliates of the August 2011 Ultimate Issuers listed in
Schedule 1 Part 3 hereto as current new secured notes guarantors (the “Current New
Secured Notes Guarantors”) will accede to the New Secured Notes Indenture). |
| |
| (G) |
|
As a result of the Second Amended and Restated Credit Agreement and the |
- 4 -
| |
|
amendment No. 6 and incremental term loan assumption agreement dated 9 August 2011 between, inter
alia, the Current Borrowers, the Current Guarantors, Credit Suisse AG as administrative agent and
others (the “Amendment No. 6 and Incremental Term Loan Assumption Agreement”) certain lenders have
agreed to grant incremental term loans in an aggregate amount of up to USD 2,000,000,000. |
| |
| (H) |
|
The Pledgor has agreed to grant an additional pledge (subject to the pledges arising
under the Existing Share Pledge Agreements (as defined below)) over its Shares (as
defined below) in the Companies as security for the Pledgee’s respective claims
against the Grantors (as defined below) (or any of them) in respect of the Obligations
(as defined below). |
| |
| (I) |
|
The security created by or pursuant to this Agreement is to be administered by the
Collateral Agent for the Secured Parties (as defined below) pursuant to a first lien
intercreditor agreement dated 5 November 2009 (as amended by the Amendment No.
1 and Joinder Agreement (as defined below)) between, inter alia, the Collateral
Agent, the Indenture Trustee, the Administrative Agent and the Grantors (each as
defined below) and others (as amended, varied, novated, supplemented, superseded or extended from time to time, the “First Lien Intercreditor Agreement”). |
NOW, IT IS AGREED as follows:
| 1. |
|
DEFINITIONS AND LANGUAGE |
| |
| 1.1 |
|
In this Agreement: |
| |
| |
|
“Administrative Agent” means Credit Suisse AG, Cayman Islands Branch, having its business
address at Eleven Madison Avenue, New York, NY 10010, United States of America in its
capacity as administrative agent under the Credit Agreement and any successor appointed as
administrative agent under the Credit Agreement. |
| |
| |
|
“Amendment No.l and Joinder Agreement” means the joinder agreement dated 21 January 2010
relating to the First Lien Intercreditor Agreement made among (amongst others) the
Collateral Agent, Wilmington Trust (London) Limited, Credit Suisse AG and Reynolds Group
Holdings Limited pursuant to which Wilmington Trust (London) Limited is appointed as
additional collateral agent and became party to the First Lien Intercreditor Agreement. |
| |
| |
|
“Borrowers” means the Current Borrowers and any entity which may accede to the Credit
Agreement as an additional borrower and “Borrower” means any of them. |
| |
| |
|
“Cash Management Bank” shall mean Citibank N.A., Banco Nacional De Mexico S.A., Citibank
International PLC, UK, Citibank (China) Co., Limited, Citibank Global Markets Deutschland AG
& Co KGaA, Citibank ZRT, Hungary, a Lender, the Administrative Agent or any of the Lender’s
or the Administrative Agent’s affiliates |
- 5 -
| |
|
(at the time the cash management services arrangement is entered into) provided in each case it has
become a party to, or by execution of an additional bank secured party acknowledgment has agreed to
be bound by the terms of, the First Lien Intercreditor Agreement in its capacity as cash management
bank. |
| |
| |
|
“Cash Management Services” shall mean any agreement or arrangement by a Cash Management Bank to
provide any composite accounting or other cash pooling arrangements and netting, overdraft
protection and other arrangements with any bank arising under standard business terms of such Cash
Management Bank to a Grantor. |
| |
| |
|
“Credit Documents” shall mean the Loan Documents, the 2009 Senior Secured Notes Documents, the
October 2010 Secured Notes Documents, the February 2011 Secured Notes Documents and the New Secured
Notes Documents. |
| |
| |
|
“Enforcement Event” shall mean an Event of Default. |
| |
| |
|
“Event of Default” means any event of default (Kündigungsgrund) under the Credit Agreement and/or
the 2009 Senior Secured Notes Indenture and/or the October 2010 Secured Notes Indenture and/or the
February 2011 Secured Notes Indenture and/or the New Secured Notes Indenture. |
| |
| |
|
“Existing Intercreditor Agreement” means the existing intercreditor agreement dated 11 May 2007 (as
amended by a letter dated 21 June 2007 and a further letter dated 29 June 2007, as amended and
restated on 5 November 2009 and as further amended on 5 November 2010) between, inter alia,
Beverage Packaging Holdings (Luxembourg) I S.A., Rank Group Holdings Limited (now Reynolds Group
Holdings Limited), Beverage Packaging Holdings (Luxembourg) II S.A., Beverage Packaging Holdings
(Luxembourg) III S.à r.l., Credit Suisse AG (formerly Credit Suisse) as security trustee and
others. |
| |
| |
|
“Existing Share Pledge Agreements” means |
| |
a) |
|
the share pledge agreement dated 5 November 2009 (as amended by a confirmation and amendment
agreement dated 4 May 2010) entered into between SIG Euro Holding AG & Co. KGaA as pledgor and
The Bank of New York Mellon as collateral agent and as pledgee and others as pledgees; |
| |
| |
b) |
|
a confirmation and amendment agreement dated 4 May 2010 entered into between, inter alios,
SIG Euro Holding AG & Co. KG aA as pledgor and The Bank of New York Mellon as collateral agent
and others (the “Confirmation and Amendment Agreement”); |
| |
| |
c) |
|
the share pledge agreement dated 16 November 2010 entered into between SIG Euro Holding AG &
Co. KGaA as pledgor and The Bank of New York Mellon as collateral agent and as pledgee; and |
- 6 -
| |
d) |
|
the share pledge agreement dated 2 March 2011 entered into between SIG Euro Holding AG & Co.
KGaA as pledgor and The Bank of New York Mellon as collateral agent and as pledgee. |
| |
|
“Existing Shares” has the meaning given to such term in sub-Clause 2.1 hereof. |
| |
| |
|
“February 2011 Secured Notes Documents” shall mean the February 2011 Secured Notes Indenture, the
February 2011 Secured Notes Guarantees, the February 2011 Secured Notes, the Intercreditor
Arrangements, any supplemental indenture, any security document relating to the February 2011
Secured Notes and/or the February 2011 Secured Notes Indenture and any other document that may be
entered into pursuant to any of the foregoing. |
| |
| |
|
“February 2011 Secured Notes Guarantees” shall mean the guarantees of the obligations of the
Issuers under the February 2011 Secured Notes and the February 2011 Secured Notes Indenture by the
February 2011 Secured Notes Guarantors. |
| |
| |
|
“February 2011 Secured Notes Guarantors” means the Current February 2011 Secured Notes Guarantors
and any entity which may accede to the February 2011 Secured Notes Indenture as additional
guarantor. |
| |
| |
|
“February 2011 Secured Notes Holders” shall mean the holders from time to time of the February 2011
Secured Notes. |
| |
| |
|
“February 2011 Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its
capacity as indenture trustee under the February 2011 Secured Notes Indenture and any successor
appointed as indenture trustee under the February 2011 Secured Notes Indenture. |
| |
| |
|
“Future Shares” means all additional shares in the capital of the Companies (irrespective of their
nominal value) which the Pledgor may acquire in the future in the event of a share transfer, a
share split, a share combination, an increase of the capital of any of the Companies (including by
way of authorised capital (genehmigtes Kapitat)) or otherwise. |
| |
| |
|
“Grantors” means the Loan Parties, the Issuers, the 2009 Senior Secured Notes Guarantors, the
October 2010 Secured Notes Guarantors, the February 2011 Secured Notes Guarantors and the New
Secured Notes Guarantors and any person that has granted a security interest to the Collateral
Agent and/or the Secured Parties in respect of the obligations of the Loan Parties, the Issuers and
the 2009 Senior Secured Notes Guarantors, the October 2010 Secured Notes Guarantors, the February
2011 Secured Notes Guarantors and the New Secured Notes Guarantors under the Credit Documents and
“Grantor” means any of them. |
- 7 -
| |
|
“Grantors’ Agent” shall mean Reynolds Group Holdings Limited or any other person appointed as agent
of the Grantors in accordance with the Principal Finance Documents |
| |
| |
|
“Group” means Reynolds Group Holdings Limited and its direct or indirect subsidiaries
(Tochtergesellschaften). |
| |
| |
|
“Hedge Counterparty” means a Lender, the Administrative Agent or any of the Lender’s or the
Administrative Agent’s affiliates (at the time a hedging agreement is entered into) who has entered
into a hedging agreement for the purpose of hedging interest rate liabilities and/or any exchange
rate and/or commodity price risks provided it has become a party, or by execution of an additional
bank secured party acknowledgment has agreed to be bound by the terms of, to the First Lien
Intercreditor Agreement in its capacity as hedge counterparty. |
| |
| |
|
“Incremental Assumption Agreement” shall mean an incremental assumption agreement relating to
incremental facilities of up to USD 2,000,000,000 among, and in form and substance reasonably
satisfactory to, one or more Borrowers, the Administrative Agent, one or more Incremental Term
Lenders and/or one or more Incremental Revolving Credit Lenders pursuant to which one or more
Incremental Term Lenders make available Incremental Term Loan Commitments and/or one or more
Incremental Revolving Credit Lenders make available Incremental Revolving Credit Commitments
respectively. |
| |
| |
|
“Incremental Revolving Credit Lender” shall mean a Lender with an Incremental Revolving Credit
Commitment or an outstanding revolving loan under the Credit Agreement of any class as a result of
an Incremental Revolving Credit Commitment. |
| |
| |
|
“Incremental Revolving Credit Commitment” shall mean the commitment of any Lender, established
pursuant to the Credit Agreement, to make available certain revolving credit loans to one or more
Borrowers. |
| |
| |
|
“Incremental Term Lender” shall mean a Lender with an Incremental Term Loan Commitment. |
| |
| |
|
“Incremental Term Loan Commitment” shall mean the commitment of any Lender, established pursuant to
the Credit Agreement, to make available certain term loans to one or more Borrowers. |
| |
| |
|
“Indenture Trustee” shall mean The Bank of New York Mellon, in its capacity as indenture trustee
under the 2009 Senior Secured Notes Indenture and any successor appointed as indenture trustee
under the 2009 Senior Secured Notes Indenture. |
| |
| |
|
“Intercreditor Arrangements” means the First Lien Intercreditor Agreement and the Existing
Intercreditor Agreement, in each case as amended, novated, supplemented, restated, or modified from
time to time. |
- 8 -
| |
|
“Issuing Bank” means Credit Suisse AG or any other Lender or any affiliate of Credit Suisse AG or
any other Lender that issues letters of credit or bank guarantees under the Credit Agreement. |
| |
| |
|
“Lenders” shall mean the Original Lenders and any entity which may become a lender under the Credit
Agreement in the future and “Lender” means any of them. |
| |
| |
|
“Loan Documents” shall mean the Credit Agreement, the Amendment No.l and Joinder Agreement, the
Second Amended and Restated Credit Agreement and the Amendment No. 6 and Incremental
Term Loan Assumption Agreement, any borrowing subsidiary agreement and/or guarantor joinder
agreement relating to the Credit Agreement, any letter of credit or bank guarantee relating to the
Credit Agreement, any security documents relating to the Credit Agreement, any hedging agreement
entered into by a Hedge Counterparty and a Grantor, each Incremental Assumption Agreement, the
Intercreditor Arrangements, each Promissory Note, any agreement between a Grantor and a Cash
Management Bank relating to Cash Management Services, each Local Facility Agreement and any other
document that may be entered into pursuant to any of the foregoing in relation to the Credit
Agreement. |
| |
| |
|
“Loan Parties” shall mean the Borrowers, the Current Guarantors and any entity which may accede to
the Credit Agreement as additional guarantor and a “Loan Party” means any of them. |
| |
| |
|
“Local Facilities” means working capital facilities provided to a Grantor (other than Beverage
Packaging Holdings (Luxembourg) I S.A., Beverage Packaging Holdings (Luxembourg) II S.A. Beverage
Packaging Holdings (Luxembourg) III S.à r.l. and the Borrowers) by a Local Facility Provider and
“Local Facility” means any of them. |
| |
| |
|
“Local Facility Agreements” shall mean any agreement under which a Local Facility is made
available. |
| |
| |
|
“Local Facility Provider” means HSBC Trinkaus & Burkhardt AG, Deutsche Bank AG, Commerzbank
Aktiengesellschaft and Hong Kong and Shanghai Banking Corporation Ltd., Thailand, Bank of America,
N.A., Canada Branch, FIA Card Services, N.A., Citibank N.A., Citibank (China) Co., Ltd., Banco
Nacional de Mexico, S.A., Integrante del Grupo Financiero Banamex, Bank of America, N.A., provided
in each case it has become a party to, or by execution of an additional bank secured party
acknowledgment has agreed to be bound by the terms of, the First Lien Intercreditor Agreement in
its capacity as local facility provider. |
| |
| |
|
“New Secured Notes Documents” shall mean the New Secured Notes Indenture, the New Secured Notes
Guarantees, the New Secured Notes, the Intercreditor Arrangements, any supplemental indenture, any
security document relating to the New Secured Notes and/or the New Secured Notes Indenture and any
other document that may be entered into pursuant to any of the foregoing. |
- 9 -
| |
|
“New Secured Notes Guarantees” shall mean the guarantees of the obligations of the August 2011
Escrow Issuers and/or of the August 2011 Ultimate Issuers under the New Secured Notes and the New
Secured Notes Indenture by the New Secured Notes Guarantors. |
| |
| |
|
“New Secured Notes Guarantors” means the Current New Secured Notes Guarantors and any entity which
may accede to the New Secured Notes Indenture as additional guarantor. |
| |
| |
|
“New Secured Notes Holders” shall mean the holders from time to time of the New Secured Notes. |
| |
| |
|
“New Secured Notes Indenture Trustee” shall mean The Bank of New York Mellon, in its capacity as
indenture trustee under the New Secured Notes Indenture and any successor appointed as indenture
trustee under the New Secured Notes Indenture. |
| |
| |
|
“Obligations” shall mean all present and future obligations and liabilities (whether actual or
contingent and whether owed jointly or severally or in any other capacity whatsoever) of each
Grantor to the Pledgee under each or any of the Credit Documents (including, but not limited to,
the Parallel Obligations), including with respect to all costs, charges and expenses incurred by
the Pledgee in connection with the protection, preservation or enforcement of its rights under the
Credit Documents or any other document evidencing or securing any such liabilities. The Obligations
shall further include any obligation based on unjust enrichment (ungerechtfertigte Bereicherung) or
tort (Delikt). |
| |
| |
|
“October 2010 Secured Notes Documents” shall mean the October 2010 Secured Notes Indenture, the
October 2010 Secured Notes Guarantees, the October 2010 Secured Notes, the Intercreditor
Arrangements, any supplemental indenture relating to the October 2010 Secured Notes Indenture, any
security document relating to the October 2010 Secured Notes and/or the October 2010 Secured Notes
Indenture and any other document that may be entered into pursuant to any of the foregoing. |
| |
| |
|
“October 2010 Secured Notes Guarantees” shall mean the guarantees of the obligations of the Issuers
under the October 2010 Secured Notes and the October 2010 Secured Notes Indenture by the October
2010 Secured Notes Guarantors. |
| |
| |
|
“October 2010 Secured Notes Guarantors” means the Current October 2010 Secured Notes Guarantors and
any entity which may accede to the October 2010 Secured Notes Indenture as additional guarantor. |
| |
| |
|
“October 2010 Secured Notes Holders” shall mean the holders from time to time of the October 2010
Secured Notes. |
| |
| |
|
“October 2010 Secured Notes Indenture Trustee” shall mean The Bank of New |
- 10 -
| |
|
York Mellon, in its capacity as indenture trustee under the October 2010 Secured Notes Indenture
and any successor appointed as indenture trustee under the October
2010 Secured Notes Indenture. |
| |
| |
|
“Parallel Obligations” means the independent obligations of any of the Grantors arising pursuant to
the First Lien Intercreditor Agreement to pay to the Collateral Agent sums equal to the sums owed
by such Grantor to the other Secured Parties (or any of them) under the Credit Documents. |
| |
| |
|
“Pledge” and “Pledges” have the meanings given to such terms in Clause 3.1. |
| |
| |
|
“Principal Finance Documents” means the Credit Agreement, the 2009 Senior Secured Notes Indenture,
the October 2010 Secured Notes Indenture, the February
2011 Secured Notes Indenture, the New Secured Notes Indenture and the First Lien
Intercreditor Agreement. |
| |
| |
|
“Promissory Note” shall mean any promissory note executed and delivered by a Borrower upon the
request of a Lender evidencing the amount of principal owed by such Borrower to such Lender under
the Credit Agreement. |
| |
| |
|
“Secured Parties” shall mean the Lenders (including in their capacity as issuing bank(s), and/or
Hedge Counterparties under the Credit Agreement), the Hedge Counterparties, the Administrative
Agent, any Issuing Bank, the beneficiaries of each indemnification obligation undertaken by any
Grantor under any Credit Document, the 2009 Senior Secured Notes Holders, the October 2010 Secured
Notes Holders, the February 2011 Secured Notes Holders and the New Secured Notes Holders, the
Indenture Trustee, the October 2010 Secured Notes Indenture Trustee, the February 2011 Secured
Notes Indenture Trustee and the New Secured Notes Indenture Trustee, the Collateral Agent, the
Local Facility Providers and the Cash Management Banks. |
| |
| |
|
“2009 Senior Secured Notes Documents” shall mean the 2009 Senior Secured Notes Indenture, the 2009
Senior Secured Notes Guarantees, the 2009 Senior Secured Notes, the Intercreditor Arrangements, any
supplemental indenture, any security document relating to the 2009 Senior Secured Notes and/or the
2009 Senior Secured Notes Indenture and any other document that may be entered into pursuant to any
of the foregoing. |
| |
| |
|
“2009 Senior Secured Notes Guarantees” shall mean the guarantees of the obligations of the Issuers
under the 2009 Senior Secured Notes and the 2009 Senior Secured Notes Indenture by the 2009 Senior
Secured Notes Guarantors. |
| |
| |
|
“2009 Senior Secured Notes Guarantors” means the Current 2009 Senior Secured Notes Guarantors and
any entity which may accede to the 2009 Senior Secured Notes Indenture as additional guarantor. |
- 11 -
| |
|
“2009 Senior Secured Notes Holders” shall mean the holders from time to time of the 2009
Senior Secured Notes. |
| |
| |
|
“Shares” means the Existing Shares and the Future Shares. |
| |
| 1.2 |
|
Construction |
| |
| |
|
In this Agreement any reference to a “Clause”, a “sub-Clause” or a “Schedule” shall,
subject to any contrary indication, be construed as a reference to a Clause, a sub-Clause
or a Schedule hereof. |
| |
| 1.3 |
|
This Agreement is made in the English language. For the avoidance of doubt, the
English language version of this Agreement shall prevail over any translation of this
Agreement. However, where a German translation of a word or phrase appears in the
text of this Agreement, the German translation of such word or phrase shall prevail. |
| |
| 2. |
|
PLEDGED SHARES |
| |
| 2.1 |
|
The Company 1 has a nominal share capital (Stammkapital) of EUR 50,000 (in words:
Euro fifty thousand) which consists of one share (the “Existing Shares 1”). |
| |
| |
|
The Company 2 has a nominal share capital (Stammkapital) of EUR 1,000,000 (in words: Euro
one million) which consists of one share (the “Existing Shares 2”). |
| |
| |
|
The Company 3 has a nominal share capital (Stammkapital) of EUR 5,000,000 (in words: Euro
five million) which is divided into two shares, one share in the nominal amount (Nennbetrag)
of EUR 100,000 (in words: Euro one hundred thousand) and one share in the nominal amount
(Nennbetrag) of EUR 400,000 (in words: Euro four hundred thousand) (the “Existing Shares
3”). |
| |
| |
|
The Company 4 has a nominal share capital (Stammkapital) of EUR 5,200,000 (in words: Euro
five million two hundred thousand) which is divided into two shares. The Pledgor is the
owner of one share in Company 4 with a nominal amount (Nennbetrag) of EUR 4,939,480 (in
words: Euro four million nine hundred thirty-nine thousand four hundred eighty) carrying the
serial number (laufende Nummer) 1 (the “Existing Shares 4”) |
| |
| |
|
The Company 5 has a nominal share capital (Stammkapital) of EUR 30,700,000 (in words: Euro
thirty million seven hundred thousand) which is divided into three shares. The Pledgor is
the owner of one share in Company 5 with a nominal amount (Nennbetrag) of EUR 307,000 (in
words: Euro three hundred seven thousand) (the “Existing Shares 5” and together with the
Existing Shares 1, the Existing Shares 2, the Existing Shares 3 and the Existing Shares 4
the “Existing Shares”). |
| |
| 2.2 |
|
The Pledgor is the owner of the Existing Shares and is registered as such in the
relevant shareholders list (Gesellschafterliste) of the Companies as filed |
- 12 -
| |
|
(aufgenommen) with the commercial register (Handelsregister), copies of which are attached
as Schedule 1 Part 4 (Copy of Shareholders Lists). |
| |
| 3. |
|
PLEDGE |
| |
| 3.1 |
|
The Pledgor hereby pledges to the Pledgee the Shares together with all ancillary rights and
claims associated with the Shares as more particularly specified in Clause 4 (the “Pledge”
and/or the “Pledges”). |
| |
| 3.2 |
|
The Pledgee hereby accepts the Pledges. |
| |
| 3.3 |
|
The Pledge is in addition, and without prejudice, to any other security the Secured Parties
may now or hereafter hold in respect of the Obligations. |
| |
| 4. |
|
SCOPE OF THE PLEDGES |
| |
| 4.1 |
|
The Pledges constituted by this Agreement include: |
| |
(a) |
|
the present and future rights to receive: |
| |
(i) |
|
dividends attributable to the Shares, if any; and |
| |
| |
(ii) |
|
liquidation proceeds, redemption proceeds (Einziehungsentgelf),
repaid
capital in case of a capital decrease, any compensation in case of
termination (Kündigung) and/or withdrawal {Austritt) of a shareholder
of the Companies, the surplus in case of surrender (Preisgabe), any
repayment claim for any additional capital contributions (Nachschüsse)
and all other pecuniary claims associated with the Shares; |
| |
(b) |
|
the right to subscribe for newly issued shares; and |
| |
| |
(c) |
|
all other rights and benefits attributable to the Shares capable of being
pledged (verpfändbar) (including without limitation all present and future pecuniary
claims of the Pledgor against any of the Companies arising under or in connection with
any domination and/or profit transfer agreement (Beherrschungs- und/oder
Gewinnabführungsvertrag) or partial profit transfer agreement
(Teilgewinnabführungsvertrag) which may be entered into between the Pledgor and any of
the Companies). |
| 4.2 |
|
Notwithstanding that the items set out in Clause 4.1 above are pledged hereunder, the
Pledgor shall be entitled to receive and retain the items set out in Clause 4.1 in respect
of, and otherwise deal (in accordance with the agreements between the parties) with
all items described in Clause 4.1 hereof in respect of the Shares at all times other than
any time the Pledgee is entitled to enforce the Pledges constituted hereunder. |
- 13 -
| 4.3 |
|
On the date and during the period in which the Pledgee is entitled, in accordance with Clause
7 (Enforcement of the Pledges) hereof, to enforce the Pledges (or any part thereof): |
| |
(a) |
|
all dividends paid or payable and any other property received, receivable or
otherwise distributed in respect of or in exchange for the Shares; |
| |
| |
(b) |
|
all dividends or other distributions or payments paid or payable in respect
of the Shares in connection with the partial or total liquidation or dissolution of
any of the Companies or in connection with the reduction of the amount of the
registered share capital of any of the Companies; and |
| |
| |
(c) |
|
all cash paid, payable or otherwise distributed in respect of the principal
of, or in redemption of, or in exchange for the Shares, |
| |
|
shall be forthwith delivered to the Pledgee and held as security for and on behalf of the
Secured Parties. If such proceeds or property are received by the Pledgor, they shall be
received as trustee for the benefit of the Pledgee and shall be segregated from other
property or funds of the Pledgor and shall be forthwith delivered to the Pledgee as
security in the form so received (with any necessary endorsement). |
| |
| 5. |
|
PURPOSE OF THE PLEDGES |
| |
| |
|
The Pledges hereunder are constituted in order to secure the prompt and complete
satisfaction of any and all Obligations. The Pledges shall also cover any future extension
of the Obligations and the Pledgor herewith expressly agrees that the provisions of Section
1210 para 1 sentence 2 of the German Civil Code (Bürgerliches Gesetzbuch) shall not apply to
this Agreement. |
| |
| 6. |
|
EXERCISE OF MEMBERSHIP RIGHTS |
| |
| |
|
The membership rights, including the voting rights, attached to the Shares remain with the
Pledgor. The Pledgor may exercise its membership rights in any manner which does not
adversely affect the validity and enforceability of the Pledges, the existence of all or
part of the Shares or cause an Event of Default to occur. The Pledgor undertakes, unless
otherwise agreed between the parties, that no resolutions will be passed which would, if
passed, constitute a breach of its obligations under Clause 09 or any other obligation under
this Agreement. |
| |
| 7. |
|
ENFORCEMENT OF THE PLEDGES |
| |
| 7.1 |
|
If (i) an Enforcement Event has occurred and is continuing and (ii) the requirements set
forth in Sections 1273 para 2, 1204 et seq. of the German Civil Code with regard to the
enforcement of any of the Pledges are met (Pfandreife), in particular, if any of the
Obligations have become due and payable, then in order to enforce the Pledges (or any of
them), the Pledgee (acting on the instructions of the Secured Parties) may at |
- 14 -
| |
|
any time
thereafter avail itself of all rights and remedies that a pledgee has against a pledgor under
the laws of the Federal Republic of Germany. |
| |
| 7.2 |
|
Notwithstanding Section 1277 of the German Civil Code, the Pledgee is entitled to exercise
its rights without obtaining enforceable judgment or other instrument (vollstreckbarer Titet).
The Pledgee shall be entitled to have the Pledges enforced in any manner allowed under the
laws of the Federal Republic of Germany, in particular have the Pledges sold (including at
public auction). |
| |
| 7.3 |
|
The Pledgor hereby expressly agrees that 5 (five) business days’ prior written notice to the
Pledgor of the place and time of any such sale shall be sufficient and the Pledgee shall not
be obliged to deliver any further notices (including, but not limited to the notices set out
under Section 1234 of the German Civil Code) to the Pledgor prior to such sale. The sale may
take place at any place in the Federal Republic of Germany designated by the Pledgee. |
| |
| 7.4 |
|
If the Pledgee (acting on the instructions of the Secured Parties) should seek to enforce the
Pledges under sub-Clause 7.1, the Pledgor shall, at its own expense, render forthwith all
necessary assistance in order to facilitate the prompt sale of the Shares or any part thereof
and/or the exercise by the Pledgee of any other right it may have as Pledgee. |
| |
| 7.5 |
|
Whilst the requirements for enforcement under sub-Clause 7.1 are continuing, all subsequent
dividend payments attributable to the Shares and all payments based on similar ancillary
rights attributed to the Shares may be applied by the Pledgee in satisfaction in whole or in
part of the Obligations or treated as additional collateral. |
| |
| 7.6 |
|
Even if the requirements for enforcement referred to under sub-Clause 7.1 above are met, the
Pledgee shall not, whether as proxy or otherwise, be entitled to exercise the voting rights
attached to the Shares. However, the Pledgor shall, during the continuation of an event which
allows the Pledgee to enforce the Pledges, have the obligations and the Pledgee shall have the
rights set forth in sub-Clause 9.6 below regardless of which resolutions are intended to be
adopted. |
| |
| 7.7 |
|
The Pledgee may, in its sole discretion, determine which of several security interests, if
applicable, shall be used to satisfy the Obligations. The Pledgor hereby expressly waives its
right pursuant to Section 1230 sentence 2 of the German Civil Code to limit the realisation of
the Pledges and pledges over the shares or partnership interests in one or more other
companies to such number of pledges as are necessary to satisfy the Obligations and agrees
further that the Pledgee may decide to enforce the Pledge over the shares in the Companies
individually in separate proceedings or together with pledges over shares or partnership
interests in one or more other companies at one single proceeding (Gesamtverwertung). |
- 15 -
| 7.8 |
|
The Pledgor hereby expressly waives all defences of revocation (Einrede der Anfechtbarkeit)
and set-off (Einrede der Aufrechenbarkeit) pursuant to Sections 770, 1211 of the German Civil
Code. |
| |
| 7.9 |
|
The Pledgor hereby expressly waives its defences based on defences any Grantor might have
against any of the Obligations (Einreden des Hauptschuldners) pursuant to Section 1211 para 1
sentence 1 alternative 1 of the German Civil Code. |
| |
| 7.10 |
|
If the Pledges are enforced or if the Pledgor has discharged any of the Obligations (or any
part of them), Section 1225 of the German Civil Code (legal subrogation of claims to a pledgor
— Forderungsübergang auf den Verpfänder) shall not apply and no rights of the Pledgee shall
pass to the Pledgor by subrogation or otherwise. Further, the Pledgor shall at no time before,
on or after an enforcement of the Pledges and as a result of the Pledgor entering into this
Agreement, be entitled to demand indemnification or compensation from any of the Companies or
any of the Companies’ affiliates or to assign any of these claims. |
| |
| 8. |
|
APPROVAL AND CONFIRMATION |
| |
| |
|
The Pledgor as the sole shareholder of the Companies other than Company 4 and Company 5
hereby approves the Pledges over the Shares in Company 1, Company 2 and Company 3 and over
any and all ancillary rights and claims associated with the Shares (as more particularly
specified in Clause 4). Pursuant to the articles of association of each of Companies the
Pledges are not subject to any approval of the relevant Company. |
| |
| 9. |
|
UNDERTAKINGS OF THE PLEDGOR |
| |
| |
|
Unless otherwise agreed between the parties, during the term of this Agreement, the Pledgor
undertakes to the Pledgee: |
| |
| 9.1 |
|
to promptly effect any contributions in cash (Bareinlage) or kind (Sacheinlage) to be made in
respect of the Shares; |
| |
| 9.2 |
|
to inform the Pledgee promptly of any change made in the registered share capital of any of
the Companies, or any changes made to the articles of association of any of the Companies
which would materially adversely affect the security interest of the Pledgee and in each such
case to promptly deliver to the Pledgee a copy of the updated shareholders list
(Gesellschafterliste) and a copy of the amended articles of association (Satzung) both as
filed (aufgenommen) with the commercial register (Handelsregister); |
| |
| 9.3 |
|
to promptly notify the Pledgee, by notification in writing of the registration of an
objection (Widerspruch) in relation to the Shares of the Pledgor in the shareholders list
(Gesellschafterliste) as filed (aufgenommen) with the commercial register (Handelsregister). |
- 16 -
| 9.4 |
|
to promptly notify the Pledgee, by notification in writing of any attachment (Pfändung) in
respect of any of the Shares or any ancillary rights set out in sub-Clause 4.1 such notice to
be accompanied by any documents the Pledgee might need to defend itself against any claim of a
third party. In particular, the Pledgor shall promptly forward to the Pledgee a copy of the
attachment order (Pfändungsbeschluss), any transfer order (Überweisungsbeschluss) and all other
documents necessary for a defence against the attachment; |
| |
| 9.5 |
|
in the event of any increase in the capital of any of the Companies, not to allow, without
the prior written consent of the Pledgee (such consent not to be unreasonably withheld), any
party other than himself to subscribe for any Future Shares, and not to defeat, impair or
circumvent in any way the rights of the Pledgee created hereunder; |
| |
| 9.6 |
|
to promptly inform the Pledgee, by notification in writing, of all matters concerning of any
of the Companies of which the Pledgor is aware which would materially adversely affect the
security interest of the Pledgee. In particular, the Pledgor shall notify the Pledgee, by
notification in writing, forthwith of any shareholders’ meeting at which a shareholders’
resolution is intended to be adopted which would have a materially adverse effect upon any of
the Pledges. The Pledgor shall allow, following the occurrence and during the continuance of
any of the circumstances which permit the Pledgee to enforce the Pledges constituted hereunder
in accordance with Clause 7, the Pledgee or, as the case may be, its proxy or any other person
designated by the Pledgee, to participate in all such shareholders’ meetings of any of the
Companies as attendants without power to vote. Subject to the provision contained in
sub-Clause 13.1, the Pledgee’s right to attend a shareholders’ meeting shall lapse immediately
upon complete satisfaction and discharge of the Obligations; |
| |
| 9.7 |
|
to refrain from any acts or omissions, subject to the performance of its rights and duties
under the Existing Share Pledge Agreements, the purpose or effect of which is or would be the
dilution of the value of the Shares or the Shares ceasing to exist, unless permitted by the
Pledgee (acting reasonably); |
| |
| 9.8 |
|
not to amend the articles of association of any of the Companies to the extent that such
amendment would materially adversely affect the security interest of the Pledgee created
hereunder without the prior written consent of the Pledgee (such consent not to be
unreasonably withheld); |
| |
| 9.9 |
|
insofar as additional declarations or actions are necessary for the creation of the Pledges
(or any of them) in favour of the Pledgee and at the Pledgee’s reasonable request (acting on
the reasonable instructions of the Secured Parties), to make such declarations and undertake
such actions at its own costs and expenses; and |
| |
| 9.10 |
|
for the avoidance of doubt, notification and consent requirements as set out in sub-Clauses
9.1 through 9.8 of this Agreement are deemed to be satisfied if and to the extent such
notification or consent has been delivered under the Existing Share Pledge |
- 17 -
| |
|
Agreements provided that such notification to the Pledgee or consent of the Pledgee makes
reference to this Agreement and each Existing Share Pledge Agreement. |
| |
| 10. |
|
DELEGATION |
| |
| |
|
The Pledgee shall have full power to delegate (either generally or specifically) the
powers, authorities and discretions conferred on it by this Agreement on such terms and
conditions as it shall see fit. The Pledgee shall only remain liable for diligently
selecting and providing initial instructions to such delegate. |
| |
| 11. |
|
INDEMNITY |
| |
| |
|
The Pledgor shall reimburse the Pledgee (which, for purposes of this Clause 11, shall
include its officers, directors, employees, agents and counsel) upon request for all
properly incurred, reasonable and documented out-of-pocket expenses incurred or made by it
in connection with the Credit Documents. Such expenses shall include the properly incurred,
reasonable and documented compensation and expenses, disbursements and advances of the
Pledgee’s agents, counsel, accountants and experts. The Pledgor shall indemnify the Pledgee
against any and all loss, liability, claim, taxes, costs, damage or expense (including
properly incurred, reasonable and documented attorneys’ fees and expenses) incurred by or in
connection with the acceptance or administration of the Pledgee’s performance of its duties
under this Agreement and under German law, including the costs and expenses of enforcing
this Agreement and defending itself against or investigating any claim. The obligation to
pay such amounts shall survive the payment in full or defeasance of the Obligations or the
removal or resignation of the Pledgee. The Pledgee shall notify Reynolds Group Holdings
Limited of any claim for which it may seek indemnity promptly upon obtaining actual
knowledge thereof; provided that any failure so to notify Reynolds Group Holdings Limited
shall not relieve the Pledgor of its indemnity obligations hereunder. The Pledgor may defend
itself against such claim and the Pledgee shall provide reasonable cooperation in such
defense. The Pledgee may have separate counsel and the Pledgor shall pay the properly
incurred, reasonable and documented fees and expenses of such counsel. The Pledgor need not
reimburse any expense or indemnify against any loss, liability or expense incurred by the
Pledgee through the Pledgee’s own wilful misconduct (Vorsatz) or gross negligence (grobe
Fahrlässigkeit). No provision of this Agreement shall require the Pledgee to expend or risk
its own funds or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if repayment of such
funds or adequate indemnity against such risk or liability is not assured to its
satisfaction. |
| |
| 12. |
|
NO LIABILITY |
| |
| |
|
Except as otherwise agreed between the parties to this Agreement, none of the Pledgee, its
nominee(s) or agent(s) or delegate(s) shall be liable by reason of (a) taking any action
permitted by this Agreement or (b) any neglect or default in |
- 18 -
| |
|
connection with the assets and rights subject to the security interest created hereunder,
save in respect of any loss or damage which is suffered as a result of wilful misconduct
(Vorsatz) or gross negligence (grobe Fahrlässigkeit) by the Pledgee, its nominee(s) or
agent(s) or delegate(s), or (c) the enforcement or realisation of all or any part of the
security interest created hereunder. |
| |
| 13. |
|
DURATION AND INDEPENDENCE |
| |
| 13.1 |
|
This Agreement shall remain in full force and effect until complete satisfaction of the
Obligations. The Pledges shall not cease to exist, if any Grantor under the Credit Documents
has only temporarily discharged the Obligations. |
| |
| 13.2 |
|
This Agreement shall create a continuing security and no change, amendment, or supplement
whatsoever in the Credit Documents or in any document or agreement related to any of the
Credit Documents shall affect the validity or the scope of this Agreement nor the obligations
which are imposed on the Pledgor pursuant to it. |
| |
| 13.3 |
|
This Agreement is independent from any other security or guarantee which may have been or
will be given to the Collateral Agent. None of such other security shall prejudice, or shall
be prejudiced by, or shall be merged in any way with this Agreement. |
| |
| 13.4 |
|
Waiving Section 418 of the German Civil Code, the Pledgor hereby agrees that the security
created hereunder shall not be affected by any transfer or assumption of the Obligations to,
or by, any third party. |
| |
| 14. |
|
RELEASE OF PLEDGE (PFANDFREIGABE) |
| |
| 14.1 |
|
Upon complete and irrevocable satisfaction of the Obligations, the Collateral Agent (as
instructed in accordance with the First Lien Intercreditor Agreement) will as soon as
reasonably practicable declare in writing the release of the Pledges (Pfandfreigabe) to the
Pledgor as a matter of record. For the avoidance of doubt, the parties are aware that upon
full and complete satisfaction of the Obligations the Pledges, due to their accessory nature
(Akzessorietät) ceases to exist by operation of German mandatory law. |
| |
| 14.2 |
|
At any time when the total value of the aggregate security granted by the Pledgor and any of
the other Grantors to secure the Obligations (the “Security”), which can be expected to be
realised in the event of an enforcement of the Security (realisierbarer Wert), exceeds 110% of
the Obligations (the “Limit”) not only temporarily, the Pledgee shall on demand of the Pledgor
release such part of the Security (Sicherheitenfreigabe) as the Pledgee (as instructed in
accordance with the First Lien Intercreditor Agreement) may in its reasonable discretion
determine so as to reduce the realisable value of the Security to the Limit. |
- 19 -
| 14.3 |
|
The parties acknowledge that the Pledgee (as instructed in accordance with the First Lien
Intercreditor Agreement) will declare in writing the release of the Pledges (Pfandfreigabe) to
the Pledgor as soon as reasonably practicable in accordance with, and to the extent required
by, the Intercreditor Arrangements. |
| |
| 15. |
|
PARTIAL INVALIDITY; WAIVER |
| |
| 15.1 |
|
If at any time, any one or more of the provisions hereof is or becomes invalid, illegal or
unenforceable in any respect under the law of any jurisdiction, such provision shall as to
such jurisdiction, be ineffective to the extent necessary without affecting or impairing the
validity, legality and enforceability of the remaining provisions hereof or of such provisions
in any other jurisdiction. The invalid, illegal or unenforceable provision shall be deemed to
be replaced with such valid, legal or enforceable provision which comes as close as possible
to the original intent of the parties and the invalid, illegal or unenforceable provision.
Should a gap (Regelungslücke) become evident in this Agreement, such gap shall, without
affecting or impairing the validity, legality and enforceability of the remaining provisions
hereof, be deemed to be filled in with such provision which comes as close as possible to the
original intent of the parties. |
| |
| 15.2 |
|
No failure to exercise, nor any delay in exercising, on the part of the Pledgee, any right or
remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise
of
any right or remedy prevent any further or other exercise thereof or the exercise of any
other right or remedy. The rights and remedies provided hereunder are cumulative and not
exclusive of any rights or remedies provided by law. |
| |
| 15.3 |
|
In particular, the Pledges shall not be affected and shall in any event extend to any and all shares in each of the Companies even if the number or nominal value of the Existing Shares or
the aggregate share capital of any of the Companies as stated in Clause 2 are inaccurate or
deviate from the actual facts. |
| |
| 16. |
|
AMENDMENTS |
| |
| |
|
Changes and amendments to this Agreement including this Clause 16 shall be made in writing
except where notarisation is required. |
| |
| 17. |
|
NOTICES AND THEIR LANGUAGE |
| |
| 17.1 |
|
All notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail or sent
by fax, as follows: |
- 20 -
| |
|
|
|
|
|
|
|
| |
|
For the Pledgor: |
|
SIG Euro Holding AG & Co. KG aA |
|
|
|
|
|
|
|
|
|
|
|
Address:
|
|
Rurstraße 58, 52441 Linnich,
Germany |
|
|
|
|
|
|
|
|
|
|
|
Telephone:
|
|
+49 2462-790 |
|
|
|
|
|
|
|
|
|
|
|
Fax:
|
|
+49 2462-792519 1 |
|
|
|
|
|
|
|
|
|
|
|
Attention:
|
|
Managing Directors
(Geschäftsführung) |
|
|
|
|
|
|
|
|
|
for the Pledgor with a copy to: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Address:
|
|
c/o Rank Group Limited |
|
|
|
|
|
|
Level 9 |
|
|
|
|
|
|
148 Quay Street |
|
|
|
|
|
|
PO Box 3515 |
|
|
|
|
|
|
Auckland 1140 |
|
|
|
|
|
|
New Zealand |
|
|
|
|
|
|
|
|
|
|
|
Telephone:
|
|
+649 3666 259 |
|
|
|
|
|
|
|
|
|
|
|
Fax:
|
|
+649 3666 263 |
|
|
|
|
|
|
|
|
|
|
|
Attention:
|
|
Helen Golding |
|
|
|
| 1 |
|
To be updated due to transfer of business seat |
- 21 -
| |
|
|
|
|
|
|
|
| |
|
For the Pledgee: |
|
The Bank of New York Mellon |
|
|
|
|
|
|
|
|
|
|
|
Address:
|
|
101 Barclay Street, 4E |
|
|
|
|
|
|
New York, N.Y. 10286 |
|
|
|
|
|
|
The United States of |
|
|
|
|
|
|
America |
|
|
|
|
|
|
|
|
|
|
|
Telephone:
|
|
+212 298 1528 |
|
|
|
|
|
|
|
|
|
|
|
Fax:
|
|
+212 815 5366 |
|
|
|
|
|
|
|
|
|
|
|
Attention:
|
|
International
Corporate Trust |
| 17.2 |
|
Any party hereto may change its address or fax number for notices and other communications
hereunder by notice to the other parties hereto. As agreed to in writing by the parties,
notices and other communications hereunder may also be delivered by e-mail to the e-mail
address of a representative of the applicable party to this Agreement provided from time to
time by such party. |
| |
| 17.3 |
|
All notices and other communications given to any party in connection with this Agreement in
accordance with the provisions of this Agreement shall be deemed (widerlegbare Vermutung)
received on the date sent (if a business day) and on the next business day thereafter (in all
other cases) if delivered by hand or overnight courier service or sent by fax or on the date
five business days after dispatch by certified or registered mail if mailed, in each case
delivered, sent or mailed (properly addressed) to such party as provided in this Clause 17 or
in accordance with the latest unrevoked direction from such party given in accordance with
this Clause 17. |
| |
| 17.4 |
|
Any notice or other communication under or in connection with this Agreement shall be in the
English language or, if in any other language, accompanied by a translation into English. In
the event of any conflict between the English text and the text in any other language, the
English text shall prevail. |
| |
| 18. |
|
NOTIFICATION |
| |
| 18.1 |
|
The Pledgor and the Pledgee hereby give notice of this Agreement and the Pledges of the
rights pursuant to Clause 3 and Clause 4 to the Companies. |
| |
| 18.2 |
|
The Companies hereby acknowledge the notification pursuant to Clause 18.1 above. |
- 22 -
| 19. |
|
APPLICABLE LAW, JURISDICTION |
| |
| 19.1 |
|
This Agreement is governed by the laws of the Federal Republic of Germany. |
| |
| 19.2 |
|
The place of jurisdiction for any and all disputes arising under or in connection with this
Agreement shall be the courts in Frankfurt am Main. The Pledgee however, shall also be
entitled to take action against the Pledgor in any other court of competent jurisdiction.
Further, the taking of proceedings against the Pledgor in any one or more jurisdictions shall
not preclude the taking of proceedings in any other jurisdiction (whether concurrently or not)
if and to the extent permitted by applicable law. |
The Notary advised the persons appearing:
| • |
|
that a pledge is a security instrument of strictly
accessory nature (which means that it comes into
legal existence only if, to the extent that, and as
long as, the underlying secured claims do in fact
exist, and that the owners of the secured claims and
the pledgees must be identical); |
| |
| • |
|
that notwithstanding Section 16 para 3
German Limited Liability Companies Act (Gesetz
betreffend die Gesellschaften mit beschränkter
Haftung) there is no bona fide creation, acquisition
nor ranking of a pledge of shares (in the sense that
the pledgees are not protected if the shares
purported to be pledged do not exist or have been
previously encumbered for the benefit of a third
party); and |
| |
| • |
|
that the English original version of this Agreement
will not be acceptable for enforcement but will have
to be translated, by a certified translator, into
German for such purposes. |
- 23 -
SCHEDULE 1
PART 1
LIST OF CURRENT BORROWERS
SIG Euro Holding AG & Co. KGaA
Closure Systems International Holdings Inc.
Closure Systems International B.V.
SIG Austria Holding GmbH
Reynolds Consumer Products Holdings Inc.
Reynolds Group Holdings Inc.
Pactiv Corporation
PART 2
LIST OF CURRENT GUARANTORS, CURRENT 2009 SENIOR SECURED NOTES GUARANTORS, CURRENT OCTOBER 2010 SECURED NOTES GUARANTORS AND CURRENT FEBRUARY 2011 SECURED NOTES GUARANTORS
Whakatane Mill Australia Pty Limited
SIG Austria Holding GmbH
SIG Combibloc GmbH & Co KG
SIG Combibloc GmbH
SIG Beverages Brasil Ltda
SIG Combibloc do Brasil Ltda.
Closure Systems International (Brazil) Sistemas de Vedacao Ltda
CSI Latin American Holdings Corporation
- 24 -
Evergreen Packaging Canada Limited
CSI Closure Systems Manufacturing de Centro America, S.R.L.
SIG Holdings (UK) Limited
SIG Combibloc Limited
Closure Systems International (UK) Limited
Reynolds Consumer Products (UK) Limited
Reynolds Subco (UK) Limited
Kama Europe Limited
Ivex Holdings, Ltd.
SIG Euro Holding AG & Co. KGaA
SIG Beverages Germany GmbH
SIG Combibloc Holding GmbH
SIG Vietnam Beteiligungs GmbH
SIG Combibloc GmbH
SIG Combibloc Systems GmbH
SIG Combibloc Zerspanungstechnik GmbH
SIG Information Technology GmbH
SIG International Services GmbH
Closure Systems International Holdings (Germany) GmbH
Closure Systems International Deutschland GmbH
Pactiv Hamburg Holdings GmbH
Pactiv Deutschland Holdinggesellschaft mbH
Omni-Pac Ekco GmbH Verpackungsmittel
Omni-Pac GmbH Verpackungsmittel
- 25 -
SIG Asset Holdings Limited
Closure Systems International (Hong Kong) Limited
SIG Combibloc Limited
Evergreen Packaging (Hong Kong) Limited
Closure Systems International Holdings (Hungary) Kft.
CSI Hungary Gyarto es Kereskedelmi Kft. (aka CSI Hungary)
Closure Systems International Holdings (Japan) KK
Closure Systems International Japan, Limited
Beverage Packaging Holdings (Luxembourg) I S.A.
Beverage Packaging Holdings (Luxembourg) III S.à r.l.
Evergreen
Packaging (Luxembourg) S.à r.l.
Reynolds Group Issuer (Luxembourg) S.A.
Bienes Industriales del Norte S.A. de C.V.
CSI en Ensenada, S. de R.L. de C.V.
CSI en Saltillo, S. de R.L. de C.V.
CSI Tecniservicio, S. de R.L. de C.V.
Grupo CSI de Mexico, S. de R.L. de C.V.
Técnicos de Tapas Innovativas S.A. de C.V.
Evergreen Packaging Mexico, S. de R.L. de C.V.
Reynolds Metals Company de Mexico, S. de R.L. de C.V.
Maxpack, S. de R.L. de C.V.
Closure Systems International B.V.
Reynolds Consumer Products International B.V.
Evergreen Packaging International B.V.
- 26 -
Reynolds Packaging International B.V.
Reynolds Group Holdings Limited
Whakatane Mill Limited
SIG Combibloc Group AG
SIG Technology AG SIG allCap AG
SIG Combibloc (Schweiz) AG
SIG Schweizerische Industrie-Gesellschaft AG
SIG Combibloc Procurement AG
SIG Reinag AG
SIG Combibloc Ltd.
SIG Holding USA Inc.
SIG Combibloc Inc.
Closure Systems International Americas, Inc.
Closure Systems International Holdings Inc.
Closure Systems International Inc.
Reynolds Packaging Machinery Inc.
Closure Systems Mexico Holdings LLC
CSI Mexico LLC
CSI Sales & Technical Services Inc.
Bakers Choice Products, Inc.
Reynolds Consumer Products
Holdings Inc. Reynolds Consumer Products Inc.
Reynolds Foil Inc.
- 27 -
Reynolds Group Holdings Inc.
Reynolds Services Inc.
Blue Ridge Holding Corp.
Blue Ridge Paper Products Inc.
Evergreen Packaging International (US) Inc.
Evergreen Packaging Inc.
Evergreen Packaging USA Inc.
Reynolds Packaging, Inc.
Reynolds Packaging LLC
Reynolds Packaging Kama Inc.
Reynolds Food Packaging LLC
Reynolds Flexible Packaging Inc.
Southern Plastics Inc.
Ultra Pac, Inc.
BRPP, LLC
Reynolds Group Issuer Inc.
Reynolds Group Issuer LLC
Pactiv Corporation (formerly Reynolds Acquisition Corporation)
Pactiv Factoring LLC
Pactiv RSA LLC
Pactiv Retirement Administration LLC
Pactiv Germany Holdings, Inc.
Pactiv International Holdings Inc.
Pactiv Management Company LLC
- 28 -
PCA West Inc.
Prairie Packaging. Inc.
PWP Holdings, Inc.
PWP Industries, Inc.
Newspring Industrial Corp.
Pactiv Canada Inc.
The Baldwin Group Limited
J. & W. Baldwin (Holdings) Limited
Omni-Pac U.K. Limited
Conference Cup Ltd.
Dopaco Canada, Inc.
Dopaco, Inc.
Garven Incorporated
Central de Bolsas, S. de R.L. de C.V.
Servicios Industriales Jaguar, S. de C.V.
Servicio Terrestre Jaguar, S. de C.V.
Grupo Corporativo Jaguar, S. de C.V.
Pactiv Mexico, S. de R.L. de C.V.
- 29 -
PART 3
LIST OF CURRENT NEW SECURED NOTES GUARANTORS2
Whakatane Mill Australia Pty Limited
SIG Beverages Brasil Ltda
SIG Combibloc do Brasil Ltda.
Closure Systems International (Brazil) Sistemas de Vedação Ltda
CSI Latin American Holdings Corporation
Evergreen Packaging Canada Limited
CSI Closure Systems Manufacturing de Centro America, S.R.L.
SIG Holdings (UK) Limited
SIG Combibloc Limited
Closure Systems International (UK) Limited
Reynolds Consumer Products (UK) Limited
Reynolds Subco (UK) Limited
Kama Europe Limited
Ivex Holdings, Ltd.
SIG Euro Holding AG & Co. KGaA
SIG Beverages Germany GmbH
SIG Combibloc Holding GmbH
SIG Vietnam Beteiligungs GmbH
SIG Combibloc GmbH
SIG Combibloc Systems GmbH
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| 2 |
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Post closing Austrian guarantors excluded. |
- 30 -
SIG Combibloc Zerspanungstechnik GmbH
SIG Information Technology GmbH
SIG International Services GmbH
Closure Systems International Holdings (Germany) GmbH
Closure Systems International Deutschland GmbH
Pactiv Hamburg Holdings GmbH
Pactiv Deutschland Holdinggesellschaft mbH
Omni-Pac Ekco GmbH Verpackungsmittel
Omni-Pac GmbH Verpackungsmittel
SIG Asset Holdings Limited
Closure Systems International (Hong Kong) Limited
SIG Combibloc Limited
Evergreen Packaging (Hong Kong) Limited
Closure Systems International Holdings (Hungary) Kft.
CSI Hungary Gyártó és Kereskedelmi Kft. (aka CSI Hungary)
Closure Systems International Holdings (Japan) KK
Closure Systems International Japan, Limited
Beverage Packaging Holdings (Luxembourg) I S.A.
Beverage Packaging Holdings (Luxembourg) III S.à r.l.
Evergreen Packaging (Luxembourg) S.à r.l.
Reynolds Group Issuer (Luxembourg) S.A.
Bienes Industriales del Norte S.A. de C.V.
CSI en Ensenada, S. de R.L. de C.V.
CSI en Saltillo, S. de R.L. de C.V.
- 31 -
CSI Tecniservicio, S. de R.L, de C.V.
Grupo CSI de Mexico, S. de R.L. de C.V.
Técriicos de Tapas Innovativas S.A. de C.V.
Evergreen Packaging Mexico, S. de R.L. de C.V.
Reynolds Metals Company de Mexico, S. de R.L. de C.V.
Maxpack, S. de R.L. de C.V.
Closure Systems International B.V.
Reynolds Consumer Products International B.V.
Evergreen Packaging International B.V.
Reynolds Packaging International B.V.
Reynolds Group Holdings Limited
Whakatane Mill Limited
SIG Combibloc Group AG
SIG Technology AG
SIG allCap AG
SIG Combibloc (Schweiz) AG
SIG Schweizerische Industrie-Gesellschaft AG
SIG Combibloc Procurement AG
SIG Reinag AG
SIG Combibloc Ltd.
SIG Holding USA Inc.
SIG Combibloc Inc.
Closure Systems International Americas, Inc.
Closure Systems International Holdings Inc.
- 32 -
Closure Systems International Inc.
Reynolds Packaging Machinery Inc.
Closure Systems Mexico Holdings LLC
CSI Mexico LLC
CSI Sales & Technical Services Inc.
Bakers Choice Products, Inc.
Reynolds Consumer Products Holdings Inc.
Reynolds Consumer Products Inc.
Reynolds Foil Inc.
Reynolds Group Holdings Inc.
Reynolds Services Inc.
Blue Ridge Holding Corp.
Blue Ridge Paper Products Inc.
Evergreen Packaging International (US) Inc.
Evergreen Packaging Inc.
Evergreen Packaging USA Inc.
Reynolds Packaging, Inc.
Reynolds Packaging LLC
Reynolds Packaging Kama Inc.
Reynolds Food Packaging LLC
Reynolds Flexible Packaging Inc.
Southern Plastics Inc.
Ultra Pac, Inc.
BRPP, LLC
- 33 -
Reynolds Group Issuer Inc.
Reynolds Group Issuer LLC
Pactiv Corporation (formerly Reynolds Acquisition Corporation)
Pactiv Factoring LLC
Pactiv RSA LLC
Pactiv Retirement Administration LLC
Pactiv Germany Holdings, Inc.
Pactiv International Holdings Inc.
Pactiv Management Company LLC
PCA West Inc.
Prairie Packaging, Inc.
PWP Holdings, Inc.
PWP Industries, Inc.
Newspring Industrial Corp.
Pactiv Canada Inc.
The Baldwin Group Limited
J. & W. Baldwin (Holdings) Limited
Omni-Pac U.K. Limited
Conference Cup Ltd.
Dopaco Canada, Inc.
Dopaco, Inc.
Garven Incorporated
Central de Bolsas, S. de R.L. de C.V.
Servicios Industriales Jaguar, S. de C.V.
- 34 -
Servicio Terrestre Jaguar, S. de C.V.
Grupo Corporativo Jaguar, S. de C.V.
Pactiv Mexico, S. de R.L. de C.V.
- 35 -
PART 4
COPIES OF SHAREHOLDERS LISTS (GESELLSCHAFTERLISTEN)
- 36 -
BADEN-WÜRTTEMBERG
Amtsgericht Freiburg i. Br.
- Registergericht -
HRB 702482
Amttlicher Ausdruck aus dem Registerordner
Dokumentname: 79098_HRB702482_GEL_S2008-08-084497446_#001.PDF
Eingestellt in den Registerordner am (letztes Freigabedatum): 26.06.2009
Unter der Dokumentart: Liste der Gesellschafter
Abgerufen aus dem Registerordner 04.08.2011 08:11:49
Der Ausdruck bezeugt einen Inhalt des Registerordners.
Dieser Ausdruck wird nicht unterschrieben und gilt als beglaubigte Abschrift.
Freiburg i. Br., den 04.08.2011
Urkundsbeamter/in der Geschäftsstelle
Lucci
Justizangestellte
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SIG Beverages |
SIG Bevarages Germany GmbH
Weilheimer Str.5, D-79761 Waldshut-Tiengen
Amtsgericht Freiburg
Registergericht
Bismarckallee 2
79098 Freiburg i. Br.
Waldshut-Tiengen, 3, September 2008
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von
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Tel direkt |
Joachim Frommherz
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(00 49) 0 77 41/ 8 44 55 |
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E-mail
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Fax direkt |
Joachim.frommherz@Sig.blz
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(00 49) 0 77 41/ 20 28 |
Gesellschafterwechsel bei der SIG Beverages Germany GmbH, Waldshut-Tiengen, HRB
702482, Registergericht Freiburg
Sehr geehrte Damen and Herren,
beigetügt erhaiten Sie eine aktualisierte Gesellschafterliste der SIG Beverages Germany GmbH,
Weilheimer Straße 5, 79761 Waldshut-Tiengen, HRB 702482, Registergericht Freiburg. Der
Gesellschafterwechsel ergab sich aufgrund der Verechmelzung des Altgesellschafters SIG Plastics
Holding GmbH, Weilheimer Str. 5, 79761 Waldshut-Tiengen, HRB 621389, Registergericht Freiburg,
auf den Neugesetlschafter SIG Euro Holding AG & Co. KGaA, Wellheimer Str. 5,79761 Waldshut-Tiengen,
HRB 621259, Registergericht Freiburg.
Für Rückfragen stehan wlr Ihnen game jederzelit zur verfügung.
Mit freundlichen Grüßen
SIG Beverages Germany GmbH
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/s/ Marco Haussener
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/s/ Joachim Frommherz |
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Marco Haussener
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Joachim Frommherz |
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SIG Beverages Germany GmbH
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Geschäftsfuhrung: |
Wellheimer Sir. 5,0-79761 Waldshut-Tiengen
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Macro Haussener |
HRB 7024B2 Amtsgericht Freiburg
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Joachlm Frommherz |
St.-Nr.: 20002/03010 |
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Deutsche Bank Oilsseldorf, KINr:336002100, BLZ 30070010 |
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Amtsgericht Freiburg
-Registergaricht-
Bismarckallee 2
79098 Freiburg
SIG Beverages Germany GmbH,
Weilheimer Str. 5,
79761 Waldshut-Tiengen,
HRB 702482, Registergericht Freiburg
Gesellschafterliste per 8. August 2008
Das Stammkapital in Höhe von EUR 50.000,00 der Gesellschaft per 8.6.2008 wird durch folgenden
Gesellschafter gehalten:
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SIG Euro Holding AG & Co. KGaA,
Weilheimer Str. 5, |
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79761 Waldshut-Tiengen, |
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HRB 821259, Registergericht Freiburg |
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EUR |
50.000.00 |
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Stammkapital gesamt |
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EUR |
50.000,00 |
Waldshut-Tiengen, den 3.9.2008
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/s/ Marco Haussener
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/s/ Joachlm Frommherz |
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Marco Haussener
Geschäftsführer
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Joachlm Frommherz
Geschäftsführer |
Liste der Gesellschafter
der
SIG International Services GmbH, Linnich
Alleinige Gesellschafterin:
SIG Euro Holding AG & Co. KGaA, Waldshut-Tiengen,
eingetragen im Handelsregister des Amtsgerichts Waldshut-Tiengen, HR B 1259
Übernommene Stammeinlage: 1.000.000.00 EUR, bestehend aus:
1 Geschäftsanteil à 1.000.000,00 EUR
Linnich, den 09.12.2005
/s/ [ILLEGIBLE]
Liste der Gesellschafter
der
SIG Information Technology GmbH, Linnich
Alleinige Gesellschafterin:
SIG Euro Holding AG & Co. KGaA, Waldshut-Tiengen;
eingetragen im Handelsregister des Amtsgerichts Waldshut-Tiengen, HR B 1259
Übernommene Stammelnlage: 500.000 Euro, bestehend aus:
1 Geschaftsanteil à 100.000 Euro
l Geschäftsanteil à 400.000 Euro
Linnich, den 27.09.2001
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/s/ André Rosenstock
André Rosenstock
Geschaftsfuhrer
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Liste der Gesellschafter
der Firma
SIG Combibloc Vermögensverwaltungs-GmbH
mit dem Sitz in Linnich
Nach Wirksamwerden der formwechselnden Umwandlung der SIG Combibloc
Vermögensverwaltungs-GrnbH & Co. KGaA in eine GmbH und anschließender
Rückabtretung des von dec ehemaligen Komplementärin treuhänderisch für die SIG
Combibloc Holding GmbH gehaltenen Geschaäftsanteils sind an der Gesetlschaft
beteiligt:
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| Gesellschafter |
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Stammeinlagen |
1. |
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SIG Combibloc Holding GmbH in Waldshut-Tiengen |
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EUR |
30.392.500,00 |
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EUR |
500,00 |
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2. |
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SIG Euro Holding AG & Co. KGaA in Waldshut-Tiengen |
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EUR |
307.000,00 |
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Stammkapital: |
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EUR |
30.7110,000,00 |
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Linnich, den 03.08.2007
Die Geschäftsführer:
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/s/ W.W. Schäfers
W.W. Schäfers
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/s/ [ILLEGIBLE] |
Liste der Gesellschafter
der
SIG Combibloc Holding GmbH
mit Sitz in Waldshut-Tiengen
(Amtsgericht Freiburg i, Br., HRB 620756)
gemäß § 40 Abs. 1S, 1 GmbHG
(nach erfolgter Umflrmierung der Gesellschafterin SIG Holding AG in SIG Combibloc Group AG)
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übernommene |
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Geschäftsanteile |
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laufende Nummern |
| Gesellschafter |
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(Nennbeträge) |
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der Geschäftsanteile |
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1.
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SIG Euro Holding AG & Co. KGaA mit Sitz in Waldshut-Tiengen (Amtsgericht Freiburg i. Br., HRB 621259)
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EUR |
4.939.480,00 |
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(1 |
) |
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2.
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SIG Combibloc Group AG mit Sitz In Neuhausen am Rheinfall/Schwelz (Handelsregister Kanton Schaffhausen, Flrmennummer: CH-290.3.004,149-2)
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EUR |
260.520,00 |
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(2 |
) |
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Stammkapital insgesamt
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EUR |
5,200,000,00 |
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Waldshut-Tiengen, den
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/s/ Marco Haussener
Marco Haussener
- Geschäftsführer -
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/s/ Andre Rosenstock
Andre Rosenstock
- Geschäftsführer -
|
Certified
Copy
POWER OF ATTORNEY
SIG Combibloc Systems GmbH
SIG Combibloc Systems GmbH is a limited liability company (Gesellschaft mil beschränkter
Haftung) incorporated under the laws of Germany, with its registered seat in Linnich, registered
with the Commercial Register of the Local Court Düren under HR B 3935 (the “Company”).
I.
PREAMBLE
The Company is part of the Reynolds group of companies, which includes RGHL (as defined below)
and each of its subsidiaries (the “Reynolds Group”).
As part of the Reynolds Group, the Company is a guarantor and security provider in respect of the
Reynolds Group’s existing financing arrangements, including by:
| (a) |
|
providing a guarantee and security with respect to the senior secured credit agreement (the
“Senior Secured Credit Agreement”) dated as of November 5, 2009, between, among
others, Reynolds Group Holdings Limited (“RGHL”), the borrowers listed therein and Credit
Suisse AG, as amended, amended or restated, supplemented or otherwise modified from time to
time (the “Senior Secured Credit Facilities”); |
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| (b) |
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providing a guarantee and security with respect to the 7.75% senior secured notes due 2016
issued by members of the Reynolds Group in aggregate principal amounts of US$1,125,000,000 and
€450,000,000 pursuant to an indenture dated as of November 5, 2009 (the “2009 Notes”): |
| |
| (c) |
|
providing a guarantee and security with respect to the 7.125% senior secured notes due 2019
issued by members of the Reynolds Group in an aggregate principal amount of US$1,500,000,000
pursuant to an indenture dated as of October 15, 2010 (the “October 2010 Secured
Notes”): and |
| |
| (d) |
|
providing a guarantee and security with respect to the 6.875% senior secured notes due 2021
issued by members of the Reynolds Group in an aggregate principal amount of US$1,000,000,000
pursuant to an indenture dated as of February 1,2011 (the “February 2011 Secured
Notes”): |
(the 2009 Notes, the October 2010 Secured Notes and the February 2011 Secured Notes being together,
the “Existing Secured Notes.” and together with the Senior Secured Credit Facilities, the
“Existing Secured Indebtedness”).
| (e) |
|
incurring and providing a guarantee of certain notes issued by members of the
Reynolds Group, including (i) 8% senior notes due 2016 issued in an aggregate
principal amount of €480,000,000 pursuant to an indenture dated June 29, 2007, (ii)
9.5% senior subordinated notes due 2017 issued in an aggregate principal amount of
€420,000,000 pursuant to an indenture dated June 29,2007 (together with (i), the
“2007 Notes”), (iii) 8.5% senior notes due 2018 issued in an aggregate principal
amount of US$1,000,000,000 pursuant to an indenture dated May 4, 2010 (the “May
2010 Notes”), (iv) 9.0% senior notes due 2019 issued in an aggregate principal
amount of US$1,500,000,000 pursuant to an indenture dated October 15, 2010 (the
“October 2010 Senior Notes”) and (v) 8.250% senior notes due 2021 issued in
an
aggregate principal amount of US$1,000,000,000 pursuant to an indenture dated
February 1, 2011 (the “February 2011 Senior Notes”) (the 2007 Notes, the May 2010 |
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|
Notes, the October 2010 Senior Notes and the February 2011 Senior Notes being together,
the “Existing Notes”): and |
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| (f) |
|
being party to the intercreditor arrangements in respect of the guarantees,
indebtedness and security described above (the “Intercreditor Arrangements”), |
the Existing Secured Indebtedness, the Existing Notes and the Intercreditor Arrangements being,
together, the “Existing Financing Arrangements”,
It is currently intended that RGHL will indirectly acquire the GPC group of companies (the “GPC
Group”) through the merger of an indirect wholly owned subsidiary of RGHL with and into Graham
Packaging Company inc. (“GPC”), with GPC surviving such merger and becoming an indirect
wholly owned subsidiary of RGHL (the “Acquisition”).
The Company has previously considered and approved the entry by the Company into the Senior Secured
Credit Agreement, as amended or otherwise modified from time to time;
RGHL has determined it may be necessary or advisable to incur additional indebtedness under the
Senior Secured Credit Facilities in order to partially fund the Acquisition, the associated costs
and transactions required to effect the Acquisition and for general corporate purposes, and the
Company is now considering entering into amendments to, and/or an amendment and restatement of, the
Senior Secured Credit Agreement, pursuant to which additional indebtedness would be incurred and
the proceeds made available under certain incremental facilities and subject to certain conditions
(the “Credit Agreement Amendment”).
RGHL has entered into a commitment letter, attached hereto as Exhibit 1. (together with the
term sheets attached thereto, the “Commitment Letter”), pursuant to which certain lenders
have provided commitments for three bridge financing facilities comprised of: a senior secured bank
bridge facility, a senior secured notes bridge facility and a senior unsecured notes bridge
facility, each as more particularly described in the Commitment Letter (collectively, the
“Bridge Financing Facilities”), which may be used to partially fund the Acquisition and the
associated costs and transactions required to effect the Acquisition.
RGHL may determine, in lieu of or in combination with issuing the New Secured Notes (as defined
below), New Unsecured Notes (as defined below) and/or incurring the Additional Bank Debt (as
defined below), that it is necessary or advisable to draw on one or more of the Bridge Financing
Facilities in order to fund all or part of the Acquisition.
In addition, RGHL and/or certain direct or indirect subsidiaries of RGHL intend to incur additional
indebtedness as set forth below. In connection with such incurrence of indebtedness, it is intended
that the Existing Financing Arrangements be supplemented and/or amended, by, among other things,
RGHL and/or certain of its direct or indirect subsidiaries doing one or more of the following:
| (a) |
|
the entry into of a new indenture (the “New Unsecured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new unsecured
notes by indirect subsidiaries of RGHL (the “New Unsecured Notes”), including the
issuance of the New Unsecured Notes and provision of related guarantees in respect of the New
Unsecured Notes by certain members of the Reynolds Group (including the Company, as
applicable) and, following the Acquisition, potentially by certain members of the GPC Group
(the “New Unsecured Notes Guarantees”): |
| |
| (b) |
|
the entry into of a new indenture (the “New Secured Notes indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new senior
secured notes by indirect subsidiaries of RGHL (the “New Secured Notes”), |
2
| |
|
including the issuance of the New Secured Notes and the provision of related guarantees in
respect of the New Secured Notes by certain members of the Reynolds Group (including the
Company, as applicable) and, following the Acquisition, potentially by certain members of
the GPC Group (the “New Secured Notes Guarantees”). |
| |
|
The proceeds from the issuance of the New Unsecured Notes and the New Secured Notes may be
used to partially fund the Acquisition and the associated costs and transactions required
(including, without limitation, the repayment of existing indebtedness of GPC Group and
contractual payments to existing shareholders of GPC Group) to effect the Acquisition and
for general corporate purposes. |
| |
| |
|
It is expected that the Existing Secured Indebtedness and/or the Intercreditor
Arrangements will be amended, restated, extended, confirmed, affirmed, re-affirmed,
released and/or retaken, as necessary, in order to ensure that following the entry into the New Secured
Notes Indenture, the New Secured Notes will have the benefit of (i) guarantees from
substantially the same guarantors (including the Company) that guarantee the Existing
Secured Indebtedness and, following the Acquisition, potentially from certain members of
the GPC Group and (ii) substantially the same collateral provided in respect of the
Existing Secured Indebtedness and, following the Acquisition, potentially security
provided by certain members of the GPC Group, |
| |
| |
|
The New Secured Notes and the New Unsecured Notes may be issued into escrow prior to the
date of the Acquisition, If the New Secured Notes or the New Unsecured Notes arc issued
into escrow, the Company will not be required to provide its guarantees and security with
respect to the New Secured Notes or the New Unsecured Notes (as relevant) until such time
as the escrow is released. It is currently intended that if the New Secured Notes or the
New Unsecured Notes are issued into escrow the relevant escrow issuers, which shall be
affiliates of RGHL (the “Escrow Issuers”), will merge or otherwise be consolidated
with Reynolds Group Issuer Inc., a Delaware corporation, Reynolds Group Issuer LLC, a
Delaware limited liability company, and Reynolds Group Issuer (Luxembourg) S.A., a société
anonyme (a public limited liability company) under the laws of Luxembourg (the
“Existing Issuers”) or any other affiliates of RGHL which may issue the New
Secured Notes and the New Unsecured Notes (together with the Existing Issuers, the
“Issuers”) on the release of the escrow, with the Issuers being the surviving
entities (the “Escrow and Merger Arrangements”). |
| |
| |
|
It is currently intended that if the New Secured Notes or the New Unsecured Notes are not
issued into escrow, the New Secured Notes and the New Unsecured Notes may be issued by the
Issuers; |
| |
| (c) |
|
the entry into of one or more registration rights agreements or joinders thereto by certain
members of the Reynolds Group (including the Company) and, following the Acquisition,
potentially by certain members of the GPC Group pursuant to which such entities agree to
register the re-sale of the New Unsecured Notes and the New Secured Notes and/or register the
issuance of the Unsecured Exchange Securities and the Secured Exchange Securities (each as
defined below) (the “Unsecured Notes Registration Rights Agreement” and the
“Secured Notes Registration Rights Agreement”, respectively); |
| |
| (d) |
|
the entry into of one or more purchase agreements or joinders thereto providing for the
issuance and sale of the New Unsecured Notes and the New Secured Notes and related guarantees
by certain members of the Reynolds Group (including the Company) and, following the
Acquisition, potentially by certain members of the GPC |
3
| |
|
Group (the “Unsecured Notes Purchase Agreement” and the “Secured Notes
Purchase Agreement”, respectively); |
| |
| (e) |
|
the entry into the Credit Agreement Amendment and/or joinders thereto; |
| |
| (f) |
|
the incurrence of additional indebtedness (the “Additional Bank Debt”) under the
Senior Secured Credit Facilities as amended by the Credit Agreement Amendment (the
“Amended Senior Secured Credit Facilities”) which will have the benefit of
substantially the same guarantees and security as already provided in respect of the Senior
Secured Credit Facilities and it is expected that the security and guarantees provided in
respect of the Senior Secured Credit Facilities and/or the Intercreditor Arrangements will be
amended, restated, extended, affirmed, re-affirmed, confirmed, released and/or retaken, as
necessary, in order to effectuate the foregoing, The Additional Bank Debt may also have the
benefit of guarantees and security provided, following the Acquisition, potentially by certain
members of the GPC Group, as a result of such GPC Group entities granting guarantees and
security in respect of the Amended Senior Secured Credit Facilities. |
| |
| |
|
It is intended that the Additional Bank Debt will not be drawn down until the date of the
Acquisition, however the Credit Agreement Amendment will allow for such funds either (i)
to be made available as delayed draw term loans that would be funded on the date of the
Acquisition or (ii) to be drawn down into escrow prior to the date of the Acquisition. |
| |
| |
|
If the Additional Bank Debt is either made available as delayed draw term loans or is
drawn into escrow prior to the date of the Acquisition, the Company will not be required
to confirm its guarantees and security with respect to the Additional Bank Debt until such
time as either the delayed draw term loans are funded or the escrow is released or
otherwise terminated (the “Bank Escrow Arrangements”): |
| |
| (g) |
|
the incurrence of additional indebtedness pursuant to the terms described in the
Commitment Letter; |
| |
| (h) |
|
the entry into the Facilities Documents (as such term is defined in the Commitment
Letter), including, without limitation, any credit agreements, intercreditor agreements,
security documents, indentures, registration rights agreements, purchase agreements,
notes, joinders or any other documents in connection with the Bridge Financing
Facilities or the conversion of any such Bridge Financing Facilities into term loans
and/or exchange notes as described in the Commitment Letter; |
| |
| (i) |
|
the provision by certain members of the Reynolds Group (including the Company as
an existing guarantor) of certain affirmations, reaffirmations and/or confirmations that
the guarantees in place in respect of the Existing Secured Indebtedness and Existing
Notes continue in full force and effect, notwithstanding the Transactions (as defined
below), the Escrow and Merger Arrangements, the Bank Escrow Arrangements and,
in the case of the Senior Secured Credit Facilities, extend to the Additional Bank
Debt, the Amended Senior Secured Credit Facilities and the Bridge Financing
Facilities, if any, as applicable; |
| |
| (j) |
|
the amendment, restatement, affirmation, re-affirmation, supplement, extension,
confirmation or release and retake of security, or grant of new or additional security
(which may be second, third or junior ranking) or other action in respect of collateral
under the applicable agreements, instruments or other documents creating security interests
in respect of the Existing Secured Indebtedness (collectively, the “Security
Documents”) in order to provide that such Security Documents (i) secure obligations
with respect to the New Secured Notes, the Additional Bank Debt and any secured |
4
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Bridge Financing Facilities, as applicable, on a pari passu basis with the Existing
Secured Indebtedness to the extent possible and (ii) continue to secure obligations in
respect of the Existing Secured Indebtedness (including after the consummation of the
Escrow and Merger Arrangements and the Bank Escrow Arrangements); |
| |
| (k) |
|
the entry into any amendments, supplements, joinders, designations, confirmations or
other documents in connection with the first lien intercreditor agreement dated as of November
5,2009, between, among others, The Bank of New York Mellon, as the collateral agent, Credit
Suisse AG, and the grantors from time to time party thereto and the representatives from time
to time party thereto as amended by Amendment No. 1 and Joinder Agreement, dated as of January
21, 2010 (as further amended, extended, restated or otherwise modified the “FLICA”) to
the extent required in order to permit the New Secured Notes and/or the Additional Bank Debt
to be included as “Obligations” thereunder; |
| |
| (l) |
|
the entry into of any amendments, supplements, accessions, designations,
confirmations or other documents in connection with the intercreditor agreement dated May
11, 2007, as amended and/or restated, including, without limitation, as of (i) November 5,
2009 by an amendment and restatement agreement and (ii) November 5, 2010 by an amendment
agreement, both between, among others, RGHL as parent, Credit Suisse AG, Cayman Islands
Branch, as administrative agent and The Bank of New York Mellon as collateral agent,
senior secured notes trustee and high yield noteholders trustee (as such intercreditor
agreement may be further amended, extended, restated or otherwise modified, the “2007
ICA”); and |
| |
| (m) |
|
following the Acquisition, the possible accession by certain members of the GPC Group to
the Existing Financing Arrangements and the Transaction Documents (as defined below) as
guarantors and/or security providers. |
(collectively, the “Transactions”).
In order to effect the Transactions, it is intended that the Company enter into and/or approve, as
relevant, the following documents, (collectively, the “Transaction Documents”):
| (a) |
|
the documents relating to the Bridge Financing Facilities, including, without limitation, the
Facilities Documents, and any credit agreements, intercreditor agreements, security documents,
indentures, registration rights agreements, purchase agreements, notes, joinders, offering
material or any other documents in connection with the Bridge Financing Facilities or the
conversion of any such Bridge Financing Facilities into term loans and/or exchange
notes as described in the Commitment Letter; |
| |
| (b) |
|
the documents relating to the Amended Senior Secured Credit Facilities, the New Secured Notes
and the New Unsecured Notes, as more particularly described in Schedule 1; and |
| |
| (c) |
|
the documents relating to the intercreditor arrangements in respect of Amended Senior Secured
Credit Facilities, the New Secured Notes, the New Unsecured Notes, the Existing Secured Notes
and the Existing Notes, as more particularly described in Schedule 2. |
5
II.
POWER OF ATTORNEY
The Company authorizes (bevollmächtigt) the person or persons listed in Schedule 3 (the
“Authorized Signatories”) hereto, each of them individually, to act for and in the name of
the Company, and, in such capacity, to consider, settle, approve, execute or deliver the following:
| 1. |
|
execution, delivery and performance of the Transaction Documents and any other documents
related thereto or required to be executed, delivered and performed in order to give effect to
the Acquisition and the Transactions, (including any notices, certificates, requests,
communications or other documents (together with the Transaction Documents, the
“Documents”); |
| |
| 2. |
|
any subsequent amendments (including by way of an amending agreement) to any Documents; |
| |
| 3. |
|
supplement, make alterations to and complete any blanks in any Documents (including, but not
limited to, altering or completing details of the parties), and |
| |
| 4. |
|
to do anything and consider, settle, approve, sign, agree, execute, deliver and/or issue any
documents that, in the opinion of the relevant Authorized Signatory, may be necessary,
expedient or incidental to any transaction or dealing contemplated by any of the Documents. |
In connection with the transactions, the Company hereby declares as follows:
The Authorized Signatories-each of them individually — are (i) released from the restrictions of
Section 181 second alternative German Civil Code (BGB) and to the extent legally possible according
to Section 181 first alternative German Civil Code (BGB) and (ii) authorized to grant sub-powers-of
attorney to third parties of their choice and with the same scope as this power-of-attorney and to
include the release from the restrictions of Section 181 German Civil Code (BGB). For the avoidance
of doubt, this power of attorney is to be construed broadly. The liability of each Authorized
Signatory shall be limited to willful misconduct and gross negligence. The Company shall — upon
receipt of a first demand (auf erstes Anfordern) - indemnify (freistellen) each Authorized
Signatory against expenses, losses, liabilities, judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges in connection therewith) incurred
by, or on behalf of, an Authorized Signatory in connection with this Power of Attorney,
This Power of Attorney shall be governed by the laws of the Federal Republic of Germany.
[Unterschriftsseite folgt/signature page follows]
6
Place, Date: July 23, 2011
SIG Combibloc Systems GmbH
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|
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|
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|
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By: |
/s/ Henrik Wagner
|
|
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Name: |
Henrik Wagner |
|
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Function: CEO / Managing Director |
|
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|
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By: |
/s/ Christian Alt
|
|
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Name: |
Christian Alt |
|
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Function: CEO / Managing Director |
|
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7
Schedule 1
New Secured Notes
| |
1. |
|
The New Secured Notes Indenture, between, among others, the duly appointed
trustee for the New Secured Notes, the Escrow Issuers or Issuers and the
guarantors, or any accession, joinder or supplemental indenture thereto. |
| |
| |
2. |
|
The Secured Notes Purchase Agreement, or any accession or joinder
thereto. |
| |
| |
3. |
|
The Secured Notes Registration Rights Agreement, or any accession
or joinder thereto. |
| |
| |
4. |
|
Officer’s certificates in respect of the New Secured Notes and any
officer’s certificates in respect of any opinion given in respect of the New
Secured Notes. |
New Unsecured Notes
| |
5. |
|
The New Unsecured Notes Indenture, between, among others, the duly appointed
trustee for the New Unsecured Notes, the Escrow Issuers or Issuers and the
guarantors, or any accession, joinder or supplemental indenture thereto. |
| |
| |
6. |
|
The Unsecured Notes Purchase Agreement, or any accession or joinder
thereto. |
| |
| |
7. |
|
Unsecured Notes Registration Rights Agreement, or any accession or
joinder thereto. |
| |
| |
8. |
|
Officer’s certificates in respect of the New Unsecured Notes and
any officer’s certificates in respect of any opinion given in respect of the New
Unsecured Notes. |
Other Documents relating to the New Secured Notes, the New Unsecured Notes, and/or the Amended
Senior Secured Credit Facilities
| |
9. |
|
A confirmation, affirmation or re-affirmation agreement, between, among others,
certain of the Loan Parties, each duly appointed collateral agent under the First
Lien Intercreditor Agreement, Credit Suisse AG, as administrative agent under the
Senior Secured Credit Facilities, and The Bank of New York Mellon, as trustee
under the 2009 Indenture and in other capacities, with respect to the continuing
security and/or guarantees in respect of the New Secured Notes and/or the
Additional Bank Debt (the “Reaffirmation Agreement”). |
| |
| |
10. |
|
The Credit Agreement Amendment, and any ancillary and/or related
documents necessary to give effect to such amendments to the Senior Secured
Credit Agreement. |
| |
| |
11. |
|
the amendment, restatement, affirmation, re-affirmation,
supplement, creation, extension, confirmation or release and retake of security,
or grant of new or additional security (which may be second ranking) or |
8
| |
|
|
other action in respect of collateral under the applicable agreements, instruments or
other documents creating security interests, in particular; |
| |
• |
|
various confirmation, reaffirmation or amendment agreements under German law
(including such agreements that require notarial recording) with respect to the
continuing or amendment of the existing German security agreements (the “German
Confirmation Agreements”); |
| |
| |
• |
|
Any agreements under which the Company grants new security such as new share
pledge agreements or new account pledge agreements (including such agreements that
require notarial recording) (the “German New Pledge Agreements”); |
| |
| |
• |
|
Any agreements under which the Company grants new security under non-German law or
confirms, reaffirms or amends existing agreements including but not limited to share
pledge agreements or interest pledge
agreements relating to any shares/interests in non-German subsidiaries (the
“Non-German Pledge Agreements”), |
| |
12. |
|
Any other document, instrument and/or agreement for the purpose of
confirming, affirming, retaking or creating security in respect of the
Additional Bank Debt and/or the New Secured Notes, |
| |
| |
13. |
|
Any document, instrument and/or agreement for the purposes of implementing, or required as a
result of the implementation of, the Escrow and Merger Arrangements and/or the Bank Escrow
Arrangements, including any document, instrument or agreement which amends or otherwise varies
any security interest and/or guarantee granted by the Company, |
| |
| |
14. |
|
Any letters, notices or agreements of appointment in favour of certain related or unrelated
persons to act as process agent on behalf of the Company in respect of the Transactions, |
| |
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15. |
|
Any notices, certificates, requests, waivers, authorisations, amendments, letter agreements,
restatements, communications or other documents to be made, executed or entered into in
connection with the above and/or the Transactions. |
9
SCHEDULE 2
1. Any agreements, amendments, supplements, joinders, certificates or other documents
required to be entered into in connection with the 2007 ICA.
| 2. |
|
Any agreements, amendments, supplements, joinders, certificates, designations,
confirmations or other documents required to be entered into in connection with the
FLICA including, without limitation, in order to permit the New Secured Notes
and/or Additional Bank Debt to be included as “Obligations” thereunder. |
10
Schedule 3
Authorised Signatories
| 1. |
|
Graeme Richard Hart |
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| 2. |
|
Bryce McCheyne Murray |
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| 3. |
|
Helen Dorothy Golding |
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| 4. |
|
Allen Philip Hugli |
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| 5. |
|
Gregory Alan Cole |
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| 6. |
|
Mark Dunkley |
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| 7. |
|
Cindi Lefari |
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| 8. |
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Philip John Presnell West |
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| 9. |
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Thomas James Degnan |
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| 10. |
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Robert Bailey |
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| 11. |
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Stephen David Pardy |
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| 12. |
|
Prudence Louise Wyllie |
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| 13. |
|
Chiara Francesca Brophy |
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| 14. |
|
Karen Michelle Mower |
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| 15. |
|
Jennie Blizard |
and the following attorneys-at-law of Debevoise & Plimpton LLP, all with its business address at
Taubenstr. 7-9, 60313 Frankfurt am Main, Germany:
| 1. |
|
Philipp von Hoist |
| |
| 2. |
|
Dr. David Witzel |
| |
| 3. |
|
Klaudius Heda |
| |
| 4. |
|
Daniel Wiedmann |
11
EXHIBIT 1
COMMITMENT LETTER
12
Certified Copy
POWER OF ATTORNEY
SIG Combibloc Zerspanungstcchnik GmbH
SIG Combibloc Zerspanungstechnik GmbH is a limited liability company (Gesellschaft mit
beschärnkter Haftung) incorporated under the laws of Germany, with its registered seat in Aachen,
registered with the Commercial Register of the Local Court Aachen under HRB 3814 (the
“Company”).
I.
PREAMBLE
The Company is part of the Reynolds group of companies, which includes RGHL (as defined below)
and each of its subsidiaries (the “Reynolds Group”).
As part of the Reynolds Group, the Company is a guarantor and security provider in respect of the
Reynolds Group’s existing financing arrangements, including by:
| (a) |
|
providing a guarantee and security with respect to the senior secured credit agreement (the
“Senior Secured Credit Agreement”) dated as of November 5, 2009, between, among others,
Reynolds Group Holdings Limited (“RGHL”). the borrowers listed therein and Credit
Suisse AG, as amended, amended or restated, supplemented or otherwise modified from time to
time (the “Senior Secured Credit Facilities”); |
| |
| (b) |
|
providing a guarantee and security with respect to the 7.75% senior secured notes due 2016
issued by members of the Reynolds Group in aggregate principal amounts of US$1,125,000,000 and
E450,000,000 pursuant to an indenture dated as of November 5, 2009 (the “2009 Notes”); |
| |
| (c) |
|
providing a guarantee and security with respect to the 7.125% senior seemed notes due 2019
issued by members of the Reynolds Group in an aggregate principal amount of US$1,500,000,000
pursuant to an indenture dated as of October 15, 2010 (the “October 2010 Secured
Notes”); and |
| |
| (d) |
|
providing a guarantee and security with respect to the 6.875% senior secured notes due 2021
issued by members of the Reynolds Group in an aggregate principal amount of US$1,000,000,000
pursuant to an indenture dated as of February 1, 2011 (the “February 2011 Secured
Notes”); |
(the 2009 Notes, the October 2010 Secured Notes and the February 2011 Secured Notes being together,
the “Existing Secured Notes,” and together with the Senior Secured Credit Facilities, the
“Existing Secured Indebtedness”),
| (e) |
|
incurring and providing a guarantee of certain notes issued by members of the
Reynolds Group, including (i) 8% senior notes due 2016 issued in an aggregate
principal amount of €480,000,000 pursuant to an indenture dated June 29, 2007, (ii)
9.5% senior subordinated notes due 2017 issued in an aggregate principal amount of
€420,000,000 pursuant to an indenture dated June 29, 2007 (together with (i), the
“2007 Notes”), (iii) 8,5% senior notes due 2018 issued in an aggregate principal
amount of US$1,000,000,000 pursuant to an indenture dated May 4, 2010 (the “May
2010 Notes”), (iv) 9.0% senior notes due 2019 issued in an aggregate principal
amount of US$1,500,000,000 pursuant to an indenture dated October 15, 2010 (the
“October 2010 Senior Notes”) and (v) 8,250% senior notes due 2021 issued in an
aggregate principal amount of US$1,000,000,000 pursuant to an indenture dated
February 1, 2011 (the “February 2011 Senior Notes”) (the 2007 Notes, the May 2010 |
| |
|
Notes, the October 2010 Senior Notes and the February 2011 Senior Notes being together,
the “Existing Notes”); and |
| |
| (f) |
|
being party to the intercreditor arrangements in respect of the guarantees,
indebtedness and security described above (the “Intercreditor Arrangements”), |
the Existing Secured Indebtedness, the Existing Notes and the Intercreditor Arrangements being,
together, the “Existing Financing Arrangements”,
It is currently intended that RGHL will indirectly acquire the GPC group of companies (the “GPC
Group”) through the merger of an indirect wholly owned subsidiary of RGHL with and into Graham
Packaging Company Inc, (“GPC”), with GPC surviving such merger and becoming an indirect
wholly owned subsidiary of RGHL (the “Acquisition”).
The Company has previously considered and approved the entry by the Company into the Senior Secured
Credit Agreement, as amended or otherwise modified from time to time;
RGHL has determined it may be necessary or advisable to incur additional indebtedness under the
Senior Secured Credit Facilities in order to partially fund the Acquisition, the associated costs
and transactions required to effect the Acquisition and for general corporate purposes, and the
Company is now considering entering into amendments to, and/or an amendment and restatement of, the
Senior Secured Credit Agreement, pursuant to which additional indebtedness would be incurred and
the proceeds made available under certain incremental facilities and subject to certain conditions
(the “Credit Agreement Amendment”).
RGHL has entered into a commitment letter, attached hereto as Exhibit 1, (together with the
term sheets attached thereto, the “Commitment Letter”), pursuant to which certain lenders
have provided commitments for three bridge financing facilities comprised of: a senior secured bank
bridge facility, a senior secured notes bridge facility and a senior unsecured notes bridge
facility, each as more particularly described in the Commitment Letter (collectively, the
“Bridge Financing Facilities”), which may be used to partially fund the Acquisition and the
associated costs and transactions required to effect the Acquisition.
RGHL may determine, in lieu of or in combination with issuing the New Secured Notes (as defined
below), New Unsecured Notes (as defined below) and/or incurring the Additional Bank Debt (as
defined below), that it is necessary or advisable to draw on one or more of the Bridge Financing
Facilities in order to fund all or part of the Acquisition.
In addition, RGHL and/or certain direct or indirect subsidiaries of RGHL intend to incur additional
indebtedness as set forth below. In connection with such incurrence of indebtedness, it is intended
that the Existing Financing Arrangements be supplemented and/or amended, by, among other things,
RGHL and/or certain of its direct or indirect subsidiaries doing one or more of the following:
| (a) |
|
the entry into of a new indenture (the “New Unsecured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new unsecured
notes by indirect subsidiaries of RGHL (the “New Unsecured Notes”), including the
issuance of the New Unsecured Notes and provision of related guarantees in respect of the New
Unsecured Notes by certain members of the Reynolds Group (including the Company, as
applicable) and, following the Acquisition, potentially by certain members of the GPC Group
(the “New Unsecured Notes Guarantees”): |
| |
| (b) |
|
the entry into of a new indenture (the “New Secured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new senior
secured notes by indirect subsidiaries of RGHL (the “New Secured Notes”), |
2
| |
|
including the issuance of the New Secured Notes and the provision of related
guarantees in respect of the New Secured Notes by certain members of the Reynolds Group
(including the Company, as applicable) and, following the Acquisition, potentially by
certain members of the GPC Group (the “New Secured Notes Guarantees”). |
| |
|
The proceeds from the issuance of the New Unsecured Notes and the New Secured Notes may be
used to partially fund the Acquisition and the associated costs and transactions required
(including, without limitation, the repayment of existing indebtedness of GPC Group and
contractual payments to existing shareholders of GPC Group) to effect the
Acquisition and for general corporate purposes, |
| |
|
It is expected that the Existing Secured Indebtedness and/or the Intercreditor
Arrangements will be amended, restated, extended, confirmed, affirmed, re-affirmed,
released and/or retaken, as necessary, in order to ensure that following the entry into
the New Secured Notes Indenture, the New Secured Notes will have the benefit of (i)
guarantees from substantially the same guarantors (including the Company) that guarantee
the Existing Secured Indebtedness and, following the Acquisition, potentially from certain
members of the GPC Group and (ii) substantially the same collateral provided in respect of
the Existing Secured Indebtedness and, following the Acquisition, potentially security
provided by certain members of the GPC Group. |
| |
|
The New Secured Notes and the New Unsecured Notes may be issued into escrow prior to the
date of the Acquisition. If the New Secured Notes or the New Unsecured Notes are issued
into escrow, the Company will not be required to provide its guarantees and security with
respect to the New Secured Notes or the New Unsecured Notes (as relevant) until such time
as the escrow is released. It is currently intended that if the New Secured Notes or the
New Unsecured Notes are issued into escrow the relevant escrow issuers, which shall be
affiliates of RGHL (the “Escrow Issuers”), will merge or otherwise be consolidated
with Reynolds Group Issuer Inc., a Delaware corporation, Reynolds Group Issuer LLC, a
Delaware limited liability company, and Reynolds Group Issuer (Luxembourg) S.A., a société
anonyme (a public limited liability company) under the laws of Luxembourg (the
“Existing Issuers”) or any other affiliates of RGHL which may issue the New Secured
Notes and the New Unsecured Notes (together with the Existing Issuers, the
“Issuers”) on the release of the escrow, with the Issuers being the surviving
entities (the “Escrow and Merger Arrangements”). |
| |
|
It is currently intended that if the New Secured Notes or the New Unsecured Notes are not
issued into escrow, the New Secured Notes and the New Unsecured Notes may be issued by the
Issuers; |
| (c) |
|
the entry into of one or more registration rights agreements or joinders thereto by certain
members of the Reynolds Group (including the Company) and, following the Acquisition,
potentially by certain members of the GPC Group pursuant to which such entities agree to
register the re-sale of the New Unsecured Notes and the New Secured Notes and/or register the
issuance of the Unsecured Exchange Securities and the Secured Exchange Securities (each as
defined below) (the “Unsecured Notes Registration Rights Agreement” and the
“Secured Notes Registration Rights Agreement”, respectively); |
| (d) |
|
the entry into of one or more purchase agreements or joinders thereto
providing for the issuance and sale of the New Unsecured Notes and the New Secured Notes and
related guarantees by certain members of the Reynolds Group (including the Company) and,
following the Acquisition, potentially by certain members of the GPC |
3
| |
|
Group (the “Unsecured Notes Purchase Agreement” and the “Secured Notes
Purchase Agreement”, respectively); |
| |
| (e) |
|
the entry into the Credit Agreement Amendment and/or joinders thereto; |
| (f) |
|
the incurrence of additional indebtedness (the “Additional Bank Debt”) under the
Senior Secured Credit Facilities as amended by the Credit Agreement Amendment (the
“Amended Senior Secured Credit Facilities”) which will have the benefit of
substantially the same guarantees and security as already provided in respect of the Senior
Secured Credit Facilities and it is expected that the security and guarantces provided in
respect of the Senior Secured Credit Facilities and/or the Intercreditor Arrangements will be
amended, restated, extended, affirmed, re-affirmed, confirmed, released and/or retaken, as
necessary, in order to effectuate the foregoing. The Additional Bank Debt may also have the
benefit of guarantees and security provided, following the Acquisition, potentially by certain
members of the GPC Group, as a result of such GPC Group entities granting guarantees and
security in respect of the Amended Senior Secured Credit Facilities. |
| |
|
It is intended that the Additional Bank Debt will not be drawn down until the date of the
Acquisition, however the Credit Agreement Amendment will allow for such funds either (i)
to be made available as delayed draw term loans that would be funded on the date of the
Acquisition or (ii) to be drawn down into escrow prior to the date of the Acquisition, |
| |
|
If the Additional Bank Debt is either made available as delayed draw term loans or is
drawn into escrow prior to the date of the Acquisition, the Company will not be required
to confirm its guarantees and security with respect to the Additional Bank Debt until such
time as either the delayed draw term loans are funded or the escrow is released or
otherwise terminated (the “Bank Escrow Arrangements”); |
| (g) |
|
the incurrence of additional indebtedness pursuant to the terms described in the
Commitment Letter; |
| (h) |
|
the entry into the Facilities Documents (as such term is defined in the Commitment
Letter), including, without limitation, any credit agreements, intercreditor agreements,
security documents, indentures, registration rights agreements, purchase agreements,
notes, joinders or any other documents in connection with the Bridge Financing
Facilities or the conversion of any such Bridge Financing Facilities into term loans
and/or exchange notes as described in the Commitment Letter; |
| |
| (i) |
|
the provision by certain members of the Reynolds Group (including the Company as
an existing guarantor) of certain affirmations, reaffirmations and/or confirmations that
the guarantees in place in respect of the Existing Secured Indebtedness and Existing
Notes continue in full force and effect, notwithstanding the Transactions (as defined
below), the Escrow and Merger Arrangements, the Bank Escrow Arrangements and,
in the case of the Senior Secured Credit Facilities, extend to the Additional Bank
Debt, the Amended Senior Secured Credit Facilities and the Bridge Financing
Facilities, if any, as applicable; |
| |
| (j) |
|
the amendment, restatement, affirmation, re-affirmation, supplement, extension,
confirmation or release and retake of security, or grant of new or additional security
(which may be second, third or junior ranking) or other action in respect of collateral
under the applicable agreements, instruments or other documents creating security interests
in respect of the Existing Secured Indebtedness (collectively, the “Security
Documents”) in order to provide that such Security Documents (i) secure obligations
with respect to the New Secured Notes, the Additional Bank Debt and any secured |
4
| |
|
Bridge Financing Facilities, as applicable, on a pari passu basis with the Existing
Secured Indebtedness to the extent possible and (ii) continue to secure obligations in
respect of the Existing Secured Indebtedness (including after the consummation of the
Escrow and Merger Arrangements and the Bank Escrow Arrangements); |
| (k) |
|
the entry into any amendments, supplements, joinders, designations, confirmations or
other documents in connection with the first lien intercreditor agreement dated as of November
5, 2009, between, among others, The Bank of New York Mellon, as the collateral agent, Credit
Suisse AG, and the grantors from time to time party thereto and the representatives from time
to time party thereto as amended by Amendment No. 1 and Joinder Agreement, dated as of January
21, 2010 (as further amended, extended, restated or otherwise modified the “PLICA”) to
the extent required in order to permit the New Secured Notes and/or the Additional Bank Debt
to be included as “Obligations” thereunder; |
| (1) |
|
the entry into of any amendments, supplements, accessions, designations, confirmations or other documents in connection with the intercreditor agreement dated May
11, 2007, as amended and/or restated, including, without limitation, as of (i) November 5,
2009 by an amendment and restatement agreement and (ii) November 5, 2010 by an amendment
agreement, both between, among others, RGHL as parent, Credit Suisse AG, Cayman Islands
Branch, as administrative agent and The Bank of New York Mellon as collateral agent,
senior secured notes trustee and high yield noteholders trustee (as such intercreditor
agreement may be further amended, extended, restated or otherwise modified, the “2007
ICA”); and |
| (m) |
|
following the Acquisition, the possible accession by certain members of the GPC Group to
the Existing Financing Arrangements and the Transaction Documents (as defined below) as
guarantors and/or security providers. |
(collectively, the “Transactions”).
In order to effect the Transactions, it is intended that the Company enter into and/or approve, as
relevant, the following documents, (collectively, the “Transaction Documents”):
| (a) |
|
the documents relating to the Bridge Financing Facilities, including, without limitation, the
Facilities Documents, and any credit agreements, intercreditor agreements, security documents,
indentures, registration rights agreements, purchase agreements, notes, joinders, offering
material or any other documents in connection with the Bridge Financing Facilities or the
conversion of any such Bridge Financing Facilities into term loans and/or exchange notes as
described in the Commitment Letter; |
| (b) |
|
the documents relating to the Amended Senior Secured Credit Facilities, the New Secured Notes
and the New Unsecured Notes, as more particularly described in Schedule 1; and |
| (a) |
|
the documents relating to the intercreditor arrangements in respect of Amended
Senior Secured Credit Facilities, the New Secured Notes, the New Unsecured Notes, the
Existing Secured Notes and the Existing Notes, as more particularly described in Schedule
2.
|
5
II.
POWER OF ATTORNEY
The Company authorizes (bevollmächtigt) the person or persons listed in Schedule 3
(the “Authorized Signatories”) hereto, each of them individually, to act for and in the
name of the Company, and, in such capacity, to consider, settle, approve, execute or deliver the
following:
| 2. |
|
execution, delivery and performance of the Transaction Documents and any other documents
related thereto or required to be executed, delivered and performed in order to give effect to
the Acquisition and the Transactions, (including any notices, certificates, requests,
communications or other documents (together with the Transaction Documents, the
“Documents”); |
| 3. |
|
any subsequent amendments (including by way of an amending agreement) to any Documents; |
| 4. |
|
supplement, make alterations to and complete any blanks in any Documents (including, but not
limited to, altering or completing details of the parties), and |
| 5. |
|
to do anything and consider, settle, approve, sign, agree, execute, deliver and/or issue any
documents that, in the opinion of the relevant Authorized Signatory, may be necessary,
expedient or incidental to any transaction or dealing contemplated by any of the Documents. |
In connection with the transactions, the Company hereby declares as follows:
The Authorized Signatories — each of them individually — are (i) released from the restrictions of
Section 181 second alternative German Civil Code (BGB) and to the extent legally possible
according to Section 181 first alternative German Civil Code (BGB) and (ii) authorized to
grant sub-powers-of attorney to third parties of their choice and with the same scope as this
power-of-attorney and to include the release from the restrictions of Section 181 German Civil Code
(BGB). For the avoidance of doubt, this power of attorney is to be construed broadly. The
liability of each Authorized Signatory shall be limited to willful misconduct and gross negligence.
The Company shall — upon receipt of a first demand (auf
erstes Anfordern) - indemnify
(freistellen) each Authorized Signatory against expenses, losses, liabilities, judgments,
fines, penalties and amounts paid in settlement (including all interest, assessments and other
charges in connection therewith) incurred by, or on behalf of, an Authorized Signatory in
connection with this Power of Attorney.
This Power of Attorney shall be governed by the laws of the Federal Republic of Germany.
[Unterschriftsseite folgt/signature page follows]
6
Place, Date: July 20, 2011
| |
|
| |
|
SIG Combibloc Zerspanungstechinik GmbH
|
|
| By: |
/s/
Herman-Joseph Bücker
|
|
| |
Name: Herman-Joseph Bücker |
|
| |
Function: CEO / Managing Director |
|
Schedule 1
New Secured Notes
| |
1. |
|
The New Secured Notes Indenture, between, among others, the duly
appointed trustee for the New Secured Notes, the Escrow Issuers or
Issuers and the guarantors, or any accession, joinder or supplemental
indenture thereto. |
| |
| |
2. |
|
The Secured Notes Purchase Agreement, or any accession or joinder
thereto. |
| |
| |
3. |
|
The Secured Notes Registration Rights Agreement, or any accession
or joinder thereto. |
| |
| |
4. |
|
Officer’s certificates in respect of the New Secured Notes and any
officer’s certificates in respect of any opinion given in respect of the New
Secured Notes. |
New Unsecured Notes
| |
5. |
|
The New Unsecured Notes Indenture, between, among others, the
duly appointed trustee for the New Unsecured Notes, the Escrow Issuers or
Issuers and the guarantors, or any accession, joinder or supplemental
indenture thereto. |
| |
| |
6. |
|
The Unsecured Notes Purchase Agreement, or any accession or
joinder
thereto. |
| |
| |
7. |
|
Unsecured Notes Registration Rights Agreement, or any accession or
joinder thereto. |
| |
| |
8. |
|
Officer’s certificates in respect of the New Unsecured Notes and
any officer’s certificates in respect of any opinion given in respect of the New
Unsecured Notes. |
Other Documents relating to the New Secured Notes, the New Unsecured Notes, and/or the Amended
Senior Secured Credit Facilities
| |
9. |
|
A confirmation, affirmation or re-affirmation agreement, between, among
others, certain of the Loan Parties, each duly appointed collateral
agent under the First Lien Intercreditor Agreement, Credit Suisse AG, as
administrative agent under the Senior Secured Credit Facilities, and The
Bank of New York Mellon, as trustee under the 2009 Indenture and in
other capacities, with respect to the continuing security and/or guarantees
in respect of the New Secured Notes and/or the Additional Bank Debt
(the “Reaffirmation Agreement”). |
| |
| |
10. |
|
The Credit Agreement Amendment, and any ancillary and/or related
documents necessary to give effect to such amendments to the Senior
Secured Credit Agreement. |
| |
| |
11. |
|
the amendment, restatement, affirmation, re-affirmation,
supplement, creation, extension, confirmation or release and retake of security, or
grant of new or additional security (which may be second ranking) or |
8
| |
|
|
other action in respect of collateral under the applicable agreements, instruments or
other documents creating security interests, in particular: |
| |
• |
|
various confirmation, reaffirmation or amendment agreements under German law
(including such agreements that require notarial recording) with respect to the continuing
or amendment of the existing German security agreements (the “German Confirmation
Agreements”): |
| |
| |
• |
|
Any agreements under which the Company grants new security such as new share pledge
agreements or new account pledge agreements (including such agreements that require
notarial recording) (the “German New Pledge Agreements”): |
| |
| |
• |
|
Any agreements under which the Company grants new security under non-German law or
confirms, reaffirms or amends existing agreements including but not limited to share
pledge agreements or interest pledge agreements relating to any shares/interests in
non-German subsidiaries (the “Non-German Pledge Agreements”). |
| |
12. |
|
Any other document, instrument and/or agreement for the purpose of confirming, affirming,
retaking or creating security in respect of the Additional Bank Debt and/or the New Secured
Notes. |
| |
| |
13. |
|
Any document, instrument and/or agreement for the purposes of implementing, or required as a
result of the implementation of, the Escrow and Merger Arrangements and/or the Bank Escrow
Arrangements, including any document, instrument or agreement which amends or otherwise varies
any security interest and/or guarantee granted by the Company. |
| |
| |
14. |
|
Any letters, notices or agreements of appointment in favour of certain related or unrelated
persons to act as process agent on behalf of the Company in respect of the Transactions. |
| |
| |
15. |
|
Any notices, certificates, requests, waivers, authorisations, amendments, letter agreements,
restatements, communications or other documents to be made, executed or entered into in
connection with the above and/or the Transactions. |
9
SCHEDULE 2
1. Any agreements, amendments, supplements, joinders, certificates or other documents
required to be entered into in connection with the 2007 ICA.
2. Any agreements, amendments, supplements, joinders, certificates, designations,
confirmations or other documents required to be entered into in connection with the
FLICA including, without limitation, in order to permit the New Secured Notes
and/or Additional Bank Debt to be included as “Obligations” thereunder.
10
Schedule 3
Authorised Signatories
1. Graeme Richard Hart
2. Bryce McCheyne Murray
3. Helen Dorothy Golding
4. Allen Philip Hugli
5. Gregory Alan Cole
6. Mark Dunkley
7. Cindi Lefari
8. Philip John Presnell West
9. Thomas James Degnan
10. Robert Bailey
11. Stephen David Pardy
12. Prudence Louise Wyllie
13. Chiara Francesca Brophy
14. Karen Michelle Mower
15. Jennie Blizard
and the
following attorneys-at-law of Debevoise & Plimpton LLP, all with its business
address at Taubenstr. 7-9, 60313 Frankfurt am Main, Germany:
16. Philipp von Holst
17. Dr. David Witzel
18. Klaudius Heda
19. Daniel Wiedmann
11
EXHIBIT 1
COMMITMENT LETTER
12
Certified Copy
VOLLMACHT
I.
PRÄAMBEL
1. Die unterzeichnete Closure Systems International B.V., eine Gesellschaft des Privatrechts mit
beschrankter Haftung (besloten vennootschap met beperkte aansprakelijkheid) nach niederländischem
Recht mit Sitz in Teleportboulevard 140, Amsterdam, Niederlande, eingetragen im Handelsregister
unter Nr. 34291082, (die “Vollmaclitgebein”), ordnungsgemäß vertieten durch ihre
Handlungsbevollmächtigte Orangefield Trust
(Netherlands) B.V., eine Gesellschaft nach niederlandischem Recht mit Sitz in Amsterdam,
Niederlande, eingetragen im Handelsregister unter Nr. 33135957, ist die einzige Gesellschafterin
der Closure Systems International Holdings (Germany) GmbH, mit Sitz in Worms, eingetragen im
Handelsregister des Amtsgerichts Mainz unter HR B 41388.
II.
Die Vollmachtgeberin bevollmächtigt hiermit, und zwar unter Befreiung von den Beschränkungen
des § 181 BGB und mit § 181 BGB vergleichbaren Beschränkungen nach anwendbarem Recht, mit dem Recht
zur Erteilung von Untervollmacht im gleichen Umfang (einschließlich der Befreiung von den
Beschränkungen des § 181 BGB und mit § 181 BGB vergleichbaren Beschränkungen nach anwendbarem
Recht), jede der folgcnden Personen
Philipp
von Holst,
David Witzel,
Daniel Wiedmann und
Klaudius Heda
alle geschäftsansässig in den Büros von Debevoise & Plimpton LLP, Taubenstraße 7-9, 60313 Frankfurt
am Main, Deutschland;
und zwar jeden einzeln, als bevollmähtigter
POWER OF ATTORNEY
I.
PREAMBLE
1. The undersigned Closure Systems International B,V., a private company with limited liability
(besloten vennootschap met beperkte aansprakelijkheid) under the laws of the Netherlands with
registered office in Teleportboulevard 140, Amsterdam, Netherlands, registered with the commercial
register under no. 34291082 (the “Grantor”), duly represented by its proxy holder
Orangefield Trust (Netherlands) B.V. a corporation under the laws of the Netherlands with
registered office in Amsterdam, Netherlands, registered with the commercial register under no.
33135957, is sole shareholder of Closure Systems International Holdings (Germany) GmbH, with its
seat in Worms, registered with the Commercial Register of the Local Court Mainz under HR B 41388.
II.
The Grantor hereby authorizes, empowers and instructs with relief from the restrictions of Section
181 German Civil Code, and from any restrictions comparable with Section 181 German Civil Code
under the applicable law and with the right of delegation and substitution to the same extent
(including release from any restrictions imposed by Section 181 German Civil Code and from
restrictions comparable with Section 181 German Civil Code under the applicable law), each of the
following persons
Philipp von Holst,
David Witzel,
Daniel Wiedmann und
Klaudius Heda
each with a business address at the offices of Debevoise & Plimpton LLP, Taubenstrasse 7-9, 60313
Frankfurt am Main, Germany;
each on his/her sole signature, is appointed to
Vertreter im Namen der Vollmachtgeberin (jeder ein “Bevollmächtigter”) in dieser
Eigenschaft,
1. (i) einen oder mehrere Bestätigungs-und/oder Änderungsverträge im Zusammenhang mit
bestehenden Sicherungsverträgen und (ii) neue Sicherungsverträge, insbesondere einen
Verpfändungsvertrag bezüglich der Anteile an der Closure Systems International Holdings
(Germany) GmbH zwischen der Vollmachtgeberin und The Bank of New York Mellon und anderen,
abzuschließen;
2. sämtliche Erklärungen abzugeben und
sämtliche Handlungen vorzunehmen, die zur
Durchführung der oben genannten Vereinbarungen nach dem Ermessen des Bevollmächtigten
erforderlich oder nützlich sind.
Änderungen bezüglich der Parteien im Zusammenhang mit den vorgenannten Verträgen
wirken sich nicht auf die hiermit erteilte Vollmacht aus.
Im Zweifel ist diese Vollmacht weit auszulegen.
Diese Vollmacht erlischt am 31. März 2012, 24:00 Uhr, wenn sie nicht zuvor widerrufen
wurde.
Die Haftung des Bevollmächtigten beschränkt sich auf Vorsatz und grobe Fahrlässigkeit.
Die Vollmachtgeberin wird auf erstes Anfordern jeden oben genannten Bevollmächtigten
hinsichtlich Aufwendungen, Verluste, Verpflichtungen, Gerichtsurteilen, Geldbußen, Strafen
und Beträgen, die in Vergleichen bezahlt werden (einschließlich aller Zinsen, Abgaben und
anderer Gebühren in diesem Zusammenhang) freisteilen, die bei einem Bevollmächtigten
entstehen oder auf Veranlassung eines Bevollmächtigten in Zusammenhang mit der Vollmacht
entstehen.
Die deutschsprachige Fassung dieser
act for and on behalf of the Grantor as attorney-in-fact (each an “Attorney-in-Fact”) and,
in such capacity,
1. to enter into (i) one or more confirmation and/or amendment agreements in connection with
existing security agreements and (ii) new pledge agreements, in particular a new pledge agreement
relating to shares in Closure Systems International Holdings (Germany) GmbH between the Grantor and
The Bank of New York Mellon and others;
2. to make all statements and do all acts and things deemed necessary or useful, at the
discretion of the Attorney-in-Fact, to give effect to the above mentioned agreements.
Changes relating to the parties of the above-mentioned agreements do not effect this Power of
Attorney.
For the avoidance of doubt, this Power of Attorney is to be construed broadly.
This Power of Attorney shall lapse on March 31, 2012, 24:00h, if not revoked earlier.
The Attorney-in-Fact’s liability shall be limited to willful misconduct and gross negligence.
The Grantor shall — upon receipt of a first demand (auf erstes Anfordern) — indemnify (freistellen)
each Attorney-in-Fact mentioned above against expenses, losses, liabilities, judgments, fines,
penalties and amounts paid in settlement (including all interest, assessments and other charges in
connection therewith) incurred by, or on behalf of, an Attorney-in-Fact in connection with this
Power of Attorney.
The German version of this Power of Attorney
2
Vollmacht ist bestimmend.
Die Vollmacht unterliegt dem Recht der Bundesrepublik Deutschland.
shall prevail.
The Power of Attorney shall be governed by the laws of the Federal Republic of Germany.
Ort/Place, Datum/Date: July 20, 2011
| |
|
|
|
|
Closure Systems International B.V.
By: Orangefield Trust (Netherlands) B.V.
Title: proxy holder
|
|
| BY: |
/s/ Maurice Noest
|
|
| |
Name: |
Maurice Noest |
|
| |
Function: General Proxyholder |
|
| |
| |
|
| BY: |
/s/ Mirjam Reijners-Sieger
|
|
| |
Name: |
Mirjam Reijners-Sieger |
|
| |
Function: General Proxyholder |
|
3
Certified Copy
POWER OF ATTORNEY
Closure Systems International Holdings (Germany) GmbH
Closure Systems International Holdings (Germany) GmbH is a limited liability company
(Gesellschaft mit beschränkter Haftung) incorporated under the laws of Germany, with its
registered seat in Worms, registered with the Commercial Register of the Local Court Mainz under HR
B 41388 (the “Company”).
I.
PREAMBLE
The Company is part of the Reynolds group of companies, which includes RGHL (as defined below) and
each of its subsidiaries (the “Reynolds Group”).
As part of the Reynolds Group, the Company is a guarantor and security provider in respect
of the Reynolds Group’s existing financing arrangements, including by:
| (a) |
|
providing a guarantee and security with respect to the senior secured credit
agreement (the “Senior Secured Credit Agreement”) dated as of November 5, 2009, between, among
others, Reynolds Group Holdings Limited (“RGHL”), the borrowers listed therein and
Credit Suisse AG, as amended, amended or restated, supplemented or otherwise modified from
time to time (the “Senior Secured Credit Facilities”); |
| (b) |
|
providing a guarantee and security with respect to the 7.75% senior secured notes due 2016
issued by members of the Reynolds Group in aggregate principal amounts of US$1,125,000,000 and
€450,000,000 pursuant to an indenture dated as of November 5, 2009 (the “2009 Notes”); |
| (c) |
|
providing a guarantee and security with respect to the 7.125% senior secured notes due 2019
issued by members of the Reynolds Group in an aggregate principal amount of US$1,500,000,000
pursuant to an indenture dated as of October 15, 2010 (the “October 2010 Secured
Notes”); and |
| (d) |
|
providing a guarantee and security with respect to the 6.875% senior secured notes due 2021
issued by members of the Reynolds Group in an aggregate principal amount of US$1,000,000,000
pursuant to an indenture dated as of February 1, 2011 (the “February 2011 Secured
Notes”); |
(the 2009 Notes, the October 2010 Secured Notes and the February 2011 Secured Notes being together,
the “Existing Secured Notes,” and together with the Senior Secured Credit Facilities, the
“Existing Secured Indebtedness”),
| (e) |
|
incurring and providing a guarantee of certain notes issued by members of the
Reynolds Group, including (i) 8% senior notes due 2016 issued in an aggregate
principal amount of €480,000,000 pursuant to an indenture dated June 29, 2007, (ii)
9.5% senior subordinated notes due 2017 issued in an aggregate principal amount of
€420,000,000 pursuant to an indenture dated June 29, 2007 (together with (i), the “2007
Notes”), (iii) 8.5% senior notes due 2018 issued in an aggregate principal amount
of US$1,000,000,000 pursuant to an indenture dated May 4, 2010 (the “May 2010
Notes”), (iv) 9.0% senior notes due 2019 issued in an aggregate principal amount of
US$1,500,000,000 pursuant to an indenture dated October 15, 2010 (the “October 2010 Senior
Notes”) and (v) 8.250% senior notes due 2021 issued in an
aggregate principal amount of US$1,000,000,000 pursuant to an indenture dated February 1,
2011 (the “February 2011 Senior Notes”) (the 2007 Notes, the May 2010 |
| |
|
Notes, the October 2010 Senior Notes and the February 2011 Senior Notes being
together, the “Existing Notes”); and |
| (f) |
|
being party to the intercreditor arrangements in respect of the guarantees,
indebtedness and security described above (the “Intercreditor Arrangements”), |
the Existing Secured Indebtedness, the Existing Notes and the Intercreditor Arrangements being,
together, the “Existing Financing Arrangements”.
It is currently intended that RGHL will indirectly acquire the GPC group of companies (the “GPC
Group”) through the merger of an indirect wholly owned subsidiary of RGHL with and into Graham
Packaging Company Inc. (“GPC”), with GPC surviving such merger and becoming an indirect
wholly owned subsidiary of RGHL (the “Acquisition”).
The Company has previously considered and approved the entry by the Company into the Senior Secured
Credit Agreement, as amended or otherwise modified from time to time;
RGHL has determined it may be necessary or advisable to incur additional indebtedness under the
Senior Secured Credit Facilities in order to partially fund the Acquisition, the associated costs
and transactions required to effect the Acquisition and for general corporate purposes, and the
Company is now considering entering into amendments to, and/or an amendment and restatement of, the
Senior Secured Credit Agreement, pursuant to which additional indebtedness would be incurred and the
proceeds made available under certain incremental facilities and subject to certain conditions (the
“Credit Agreement Amendment”).
RGHL has entered into a commitment letter, attached hereto as Exhibit 1, (together with the
term sheets attached thereto, the “Commitment Letter”), pursuant to which certain lenders
have provided commitments for three bridge financing facilities comprised of: a senior secured bank
bridge facility, a senior secured notes bridge facility and a senior unsecured notes bridge
facility, each as more particularly described in the Commitment Letter (collectively, the
“Bridge Financing Facilities”), which may be used to partially fund the Acquisition and the
associated costs and transactions required to effect the Acquisition.
RGHL may determine, in lieu of or in combination with issuing the New Secured Notes (as defined
below), New Unsecured Notes (as defined below) and/or incurring the Additional Bank Debt (as
defined below), that it is necessary or advisable to draw on one or more of the Bridge Financing
Facilities in order to fund all or part of the Acquisition.
In addition, RGHL and/or certain direct or indirect subsidiaries of RGHL intend to incur additional
indebtedness as set forth below. In connection with such incurrence of indebtedness, it is intended
that the Existing Financing Arrangements be supplemented and/or amended, by, among other things,
RGHL and/or certain of its direct or indirect subsidiaries doing one or more of the following:
| (a) |
|
the entry into of a new indenture (the “New Unsecured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new unsecured
notes by indirect subsidiaries of RGHL (the “New Unsecured Notes”), including the
issuance of the New Unsecured Notes and provision of related guarantees in respect of the New
Unsecured Notes by certain members of the Reynolds Group (including the Company, as
applicable) and, following the Acquisition, potentially by certain members of the GPC Group
(the “New Unsecured Notes Guarantees”); |
| (b) |
|
the entry into of a new indenture (the “New Secured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new senior
secured notes by indirect subsidiaries of RGHL (the “New Secured Notes”), including the issuance of the New Secured Notes and the provision of related |
2
| |
|
guarantees in respect
of the New Secured Notes by certain members of the Reynolds Group (including the Company,
as applicable) and, following the Acquisition, potentially by certain members of the GPC Group (the
“New Secured Notes Guarantees”). |
| |
|
The proceeds from the issuance of the New Unsecured Notes and the New Secured Notes may
be used to partially fund the Acquisition and the associated costs and transactions
required (including, without limitation, the repayment of existing indebtedness of GPC
Group and contractual payments to existing shareholders of GPC Group) to effect the
Acquisition and for general corporate purposes. |
| |
|
It is expected that the Existing Secured Indebtedness and/or the Intercreditor
Arrangements will be amended, restated, extended, confirmed, affirmed, re-affirmed,
released and/or retaken, as necessary, in order to ensure that following the entry into
the New Secured Notes Indenture, the New Secured Notes will have the benefit of
(i) guarantees from substantially the same guarantors
(including the Company) that guarantee the Existing Secured Indebtedness and, following
the Acquisition, potentially from certain members of the GPC Group and (ii) substantially
the same collateral provided in respect of the Existing Secured Indebtedness and,
following the Acquisition, potentially security provided by certain members of the GPC
Group. |
| |
|
The New Secured Notes and the New Unsecured Notes may be issued into escrow prior to the
date of the Acquisition. If the New Secured Notes or the New Unsecured Notes are issued
into escrow, the Company will not be required to provide its guarantees and security with
respect to the New Secured Notes or the New Unsecured Notes (as relevant) until such time
as the escrow is released. It is currently intended that if the New Secured Notes or the
New Unsecured Notes are issued into escrow the relevant escrow issuers, which shall be
affiliates of RGHL (the “Escrow Issuers”), will merge or otherwise be consolidated
with Reynolds Group Issuer Inc., a Delaware corporation, Reynolds Group Issuer LLC, a
Delaware limited liability company, and Reynolds Group Issuer (Luxembourg) S.A., a société
anonyme (a public limited liability company) under the laws of Luxembourg (the
“Existing Issuers”) or any other affiliates of RGHL which may issue the New
Secured Notes and the New Unsecured Notes (together with the Existing Issuers, the
“Issuers”) on the release of the escrow, with the Issuers being the surviving
entities (the “Escrow and Merger Arrangements”). |
| |
|
It is currently intended that if the New Secured Notes or the New Unsecured Notes are not
issued into escrow, the New Secured Notes and the New Unsecured Notes may be issued by the
Issuers; |
| (c) |
|
the entry into of one or more registration rights agreements or joinders thereto by certain
members of the Reynolds Group (including the Company) and, following the Acquisition,
potentially by certain members of the GPC Group pursuant to which such entities agree to
register the re-sale of the New Unsecured Notes and the New Secured Notes and/or register the
issuance of the Unsecured Exchange Securities and the Secured Exchange Securities (each as
defined below) (the “Unsecured Notes Registration Rights Agreement” and the
“Secured Notes Registration Rights Agreement”, respectively); |
| (d) |
|
the entry into of one or more purchase agreements or joinders thereto providing for the
issuance and sale of the New Unsecured Notes and the New Secured Notes and related guarantees
by certain members of the Reynolds Group (including the Company) and, following the
Acquisition, potentially by certain members of the GPC |
3
| |
|
Group (the “Unsecured Notes Purchase Agreement” and the “Secured Notes
Purchase Agreement”, respectively);
|
| (e) |
|
the entry into the Credit Agreement Amendment and/or joinders thereto; |
| (f) |
|
the incurrence of additional indebtedness (the “Additional Bank Debt”) under the
Senior Secured Credit Facilities as amended by the Credit Agreement Amendment (the
“Amended Senior Secured Credit Facilities”) which will have the benefit of
substantially the same guarantees and security as already provided in respect of the Senior
Secured Credit Facilities and it is expected that the security and guarantees provided in
respect of the Senior Secured Credit Facilities and/or the Intercreditor Arrangements will be
amended, restated, extended, affirmed, re-affirmed, confirmed, released and/or retaken, as
necessary, in order to effectuate the foregoing. The Additional Bank Debt may also have the
benefit of guarantees and security provided, following the Acquisition, potentially by certain
members of the GPC Group, as a result of such GPC Group entities granting guarantees and
security in respect of the Amended Senior Secured Credit Facilities. |
| |
|
It is intended that the Additional Bank Debt will not be drawn down until the date of the
Acquisition, however the Credit Agreement Amendment will allow for such funds either (i)
to be made available as delayed draw term loans that would be funded on the date of the
Acquisition or (ii) to be drawn down into escrow prior to the date of the Acquisition. |
| |
|
If the Additional Bank Debt is either made available as delayed draw term loans or is
drawn into escrow prior to the date of the Acquisition, the Company will not be required
to confirm its guarantees and security with respect to the Additional Bank Debt until such
time as either the delayed draw term loans are funded or the escrow is released or
otherwise terminated (the “Bank Escrow Arrangements”); |
| (g) |
|
the incurrence of additional indebtedness pursuant to the terms described in the Commitment
Letter; |
| (h) |
|
the entry into the Facilities Documents (as such term is defined in the Commitment Letter),
including, without limitation, any credit agreements, intercreditor agreements, security
documents, indentures, registration rights agreements, purchase agreements, notes, joinders or
any other documents in connection with the Bridge Financing Facilities or the conversion of
any such Bridge Financing Facilities into term loans and/or exchange notes as described in the
Commitment Letter; |
| (i) |
|
the provision by certain members of the Reynolds Group (including the Company as an existing
guarantor) of certain affirmations, reaffirmations and/or confirmations that the guarantees in
place in respect of the Existing Secured Indebtedness and Existing Notes continue in full
force and effect, notwithstanding the Transactions (as defined below), the Escrow and Merger
Arrangements, the Bank Escrow Arrangements and, in the case of the Senior Secured Credit
Facilities, extend to the Additional Bank Debt, the Amended Senior Secured Credit Facilities
and the Bridge Financing Facilities, if any, as applicable; |
| (j) |
|
the amendment, restatement, affirmation, re-affirmation, supplement, extension,
confirmation or release and retake of security, or grant of new or additional security
(which may be second, third or junior ranking) or other action in respect of collateral
under the applicable agreements, instruments or other documents creating security interests
in respect of the Existing Secured Indebtedness (collectively, the “Security
Documents”) in order to provide that such Security Documents (i) secure obligations
with respect to the New Secured Notes, the Additional Bank Debt and any secured |
4
| |
|
Bridge Financing Facilities, as applicable, on a pari passu basis with the
Existing Secured Indebtedness to the extent possible and (ii) continue to secure
obligations in respect of the Existing Secured Indebtedness (including after the
consummation of the Escrow and Merger Arrangements and the Bank Escrow Arrangements); |
| (k) |
|
the entry into any amendments, supplements, joinders, designations, confirmations or
other documents in connection with the first lien intercreditor agreement dated as of November
5, 2009, between, among others, The Bank of New York Mellon, as the collateral agent, Credit
Suisse AG, and the grantors from time to time party thereto and the representatives from time
to time party thereto as amended by Amendment No. 1 and Joinder Agreement, dated as of January
21, 2010 (as further amended, extended, restated or otherwise modified the “FLICA”) to
the extent required in order to permit the New Secured Notes and/or the Additional Bank Debt
to be included as “Obligations” thereunder; |
| (l) |
|
the entry into of any amendments, supplements, accessions, designations,
confirmations or other documents in connection with the intercreditor agreement dated May
11, 2007, as amended and/or restated, including, without limitation, as of (i)
November 5, 2009 by an amendment and restatement agreement and (ii) November 5, 2010 by an
amendment agreement, both between, among others, RGHL as parent, Credit Suisse AG, Cayman
Islands Branch, as administrative agent and The Bank of New York Mellon as collateral
agent, senior secured notes trustee and high yield noteholders trustee (as such
intercreditor agreement may be further amended, extended, restated or otherwise modified,
the “2007 ICA”); and |
| (m) |
|
following the Acquisition, the possible accession by certain members of the GPC Group to
the Existing Financing Arrangements and the Transaction Documents (as defined below) as
guarantors and/or security providers. |
(collectively, the “Transactions”).
In order to effect the Transactions, it is intended that the Company enter into and/or approve, as
relevant, the following documents, (collectively, the “Transaction Documents”):
| (a) |
|
the documents relating to the Bridge Financing Facilities, including, without limitation, the
Facilities Documents, and any credit agreements, intercreditor agreements, security documents,
indentures, registration rights agreements, purchase agreements, notes, joinders, offering
material or any other documents in connection with the Bridge Financing Facilities or the
conversion of any such Bridge Financing Facilities into term loans and/or exchange notes as
described in the Commitment Letter; |
| (b) |
|
the documents relating to the Amended Senior Secured Credit Facilities, the New Secured Notes
and the New Unsecured Notes, as more particularly described in Schedule 1; and |
| (c) |
|
the documents relating to the intercreditor arrangements in respect of Amended Senior Secured
Credit Facilities, the New Secured Notes, the New Unsecured Notes, the Existing Secured Notes
and the Existing Notes, as more particularly described in Schedule 2. |
5
II.
POWER OF ATTORNEY
The Company authorizes (bevollmächtigt) the person or persons listed in Schedule
3 (the “Authorized Signatories”) hereto, each of them individually, to act for
and in the name of the Company, and, in such capacity, to consider, settle, approve, execute or
deliver the following:
| 1. |
|
execution, delivery and performance of the Transaction Documents and any other documents
related thereto or required to be executed, delivered and performed in order to give effect to
the Acquisition and the Transactions, (including any notices, certificates, requests,
communications or other documents (together with the Transaction Documents, the
“Documents”); |
| 2. |
|
any subsequent amendments (including by way of an amending agreement) to any Documents; |
| 3. |
|
supplement, make alterations to and complete any blanks in any Documents (including, but not
limited to, altering or completing details of the parties), and |
| 4. |
|
to do anything and consider, settle, approve, sign, agree, execute, deliver and/or issue any
documents that, in the opinion of the relevant Authorized Signatory, may be necessary,
expedient or incidental to any transaction or dealing contemplated by any of the Documents. |
In connection with the transactions, the Company hereby declares as follows:
The Authorized Signatories — each of them individually — are (i) released from the restrictions of
Section 181 second alternative German Civil Code (BGB) and to the extent legally possible
according to Section 181 first alternative German Civil Code (BGB) and (ii) authorized to
grant sub-powers-of attorney to third parties of their choice and with the same scope as this
power-of-attorney and to include the release from the restrictions of Section 181 German Civil Code
(BGB). For the avoidance of doubt, this power of attorney is to be construed broadly. The
liability of each Authorized Signatory shall be limited to willful misconduct and gross negligence.
The Company shall — upon receipt of a first demand (auf erstes Anfordern) - indemnify
(freistellen) each Authorized Signatory against expenses, losses, liabilities, judgments,
fines, penalties and amounts paid in settlement (including all interest, assessments and other
charges in connection therewith) incurred by, or on behalf of, an Authorized Signatory in
connection with this Power of Attorney.
This Power of Attorney shall be governed by the laws of the Federal Republic of Germany.
[Unterschriftsseite folgt/signature page follows]
6
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|
|
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Place, Date: July 23, 2011
Closure Systems International Holdings (Germany) GmbH
|
|
| |
BY: |
/s/ Gregory Alan Cole
|
|
| |
|
Name: |
Gregory Alan Cole |
|
| |
|
Function: Managing Director |
|
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BY: |
/s/ Helen Golding
|
|
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|
Name: |
Helen Golding |
|
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Function: Managing Director |
|
| |
Schedule 1
New Secured Notes
| |
1. |
|
The New Secured Notes Indenture, between, among others, the duly appointed
trustee for the New Secured Notes, the Escrow Issuers or Issuers and the
guarantors, or any accession, joinder or supplemental indenture thereto. |
| |
| |
2. |
|
The Secured Notes Purchase Agreement, or any accession or joinder
thereto. |
| |
| |
3. |
|
The Secured Notes Registration Rights Agreement, or any accession
or joinder thereto. |
| |
| |
4. |
|
Officer’s certificates in respect of the New Secured Notes and any
officer’s certificates in respect of any opinion given in respect of the New
Secured Notes. |
New Unsecured Notes
| |
5. |
|
The New Unsecured Notes Indenture, between, among others, the duly appointed
trustee for the New Unsecured Notes, the Escrow Issuers or Issuers and the
guarantors, or any accession, joinder or supplemental indenture thereto. |
| |
| |
6. |
|
The Unsecured Notes Purchase Agreement, or any accession or joinder
thereto. |
| |
| |
7. |
|
Unsecured Notes Registration Rights Agreement, or any accession or
joinder thereto. |
| |
| |
8. |
|
Officer’s certificates in respect of the New Unsecured Notes and any
officer’s certificates in respect of any opinion given in respect of the New
Unsecured Notes. |
Other Documents relating to the New Secured Notes, the New Unsecured Notes, and/or the Amended
Senior Secured Credit Facilities
| |
9. |
|
A confirmation, affirmation or re-affirmation agreement, between, among others,
certain of the Loan Parties, each duly appointed collateral agent under the First
Lien Intercreditor Agreement, Credit Suisse AG, as administrative agent under the
Senior Secured Credit Facilities, and The Bank of New York Mellon, as trustee
under the 2009 Indenture and in other capacities, with respect to the continuing
security and/or guarantees in respect of the New Secured Notes and/or the
Additional Bank Debt (the “Reaffirmation Agreement”). |
| |
| |
10. |
|
The Credit Agreement Amendment, and any ancillary and/or related
documents necessary to give effect to such amendments to the Senior Secured
Credit Agreement. |
| |
| |
11. |
|
the amendment, restatement, affirmation, re-affirmation,
supplement, creation, extension, confirmation or release and retake of security,
or grant of new or additional security (which may be second ranking) or |
8
| |
|
|
other action in respect of collateral under the applicable agreements, instruments or
other documents creating security interests, in particular: |
| |
• |
|
various confirmation, reaffirmation or amendment agreements under German law
(including such agreements that require notarial recording) with respect to the continuing
or amendment of the existing German security agreements (the “German Confirmation
Agreements”); |
| |
| |
• |
|
Any agreements under which the Company grants new security such as new share pledge
agreements or new account pledge agreements (including such agreements that require
notarial recording) (the “German New Pledge
Agreements”); |
| |
| |
• |
|
Any agreements under which the Company grants new security under non-German law or
confirms, reaffirms or amends existing agreements including but not limited to share
pledge agreements or interest pledge agreements relating to any shares/interests in
non-German subsidiaries (the “Non-German Pledge Agreements”). |
| |
12. |
|
Any other document, instrument and/or agreement for the purpose of confirming, affirming,
retaking or creating security in respect of the Additional Bank Debt and/or the New Secured
Notes. |
| |
| |
13. |
|
Any document, instrument and/or agreement for the purposes of implementing, or required as a
result of the implementation of, the Escrow and Merger Arrangements and/or the Bank Escrow
Arrangements, including any document, instrument or agreement which amends or otherwise varies
any security interest and/or guarantee granted by the Company. |
| |
| |
14. |
|
Any letters, notices or agreements of appointment in favour of certain related or unrelated
persons to act as process agent on behalf of the Company in respect of the Transactions. |
| |
| |
15. |
|
Any notices, certificates, requests, waivers, authorisations, amendments, letter agreements,
restatements, communications or other documents to be made, executed or entered into in
connection with the above and/or the Transactions. |
9
SCHEDULE 2
1. Any agreements, amendments, supplements, joinders, certificates or other documents
required to be entered into in connection with the 2007 ICA.
| 2. |
|
Any agreements, amendments, supplements, joinders, certificates, designations,
confirmations or other documents required to be entered into in connection with the
FLICA including, without limitation, in order to permit the New Secured Notes
and/or Additional Bank Debt to be included as “Obligations” thereunder. |
10
Schedule 3
Authorised Signatories
1. Graeme Richard Hart
2. Bryce McCheyne Murray
3. Helen Dorothy Golding
4. Allen Philip Hugli
5. Gregory Alan Cole
6. Mark Dunkley
7. Cindi Lefari
8. Philip John Presnell West
9. Thomas James Degnan
10. Robert Bailey
11. Stephen David Pardy
12. Prudence Louise Wyllie
13. Chiaia Francesca Brophy
14. Karen Michelle Mower
15. Jennie Blizard
and the following attorneys-at-law of Debevoise & Plimpton LLP, all with its business
address at Taubenstr. 7-9, 60313 Frankfurt am Main, Germany:
1. Philipp von Hoist
2. Dr. David Witzel
3. Klaudius Heda
4, Daniel Wiedmann
11
EXHIBIT 1
COMMITMENT LETTER
12
Certified Copy
POWER OF ATTORNEY
Closure Systems International Deutschland GmbH
Closure Systems International Deutschland GmbH is a limited liability company (Gesellschaft mit
beschrankter Haftung) incorporated under the laws of Germany, with its registered seat in Worms,
registered with the Commercial Register of the Local Court Mainz under HR B 10054 (the
“Company”),
I.
PREAMBLE
The Company is part of the Reynolds group of companies, which includes RGHL (as defined below) and
each of its subsidiaries (the “Reynolds Group”).
As part of the Reynolds Group, the Company is a guarantor and security provider in respect of the
Reynolds Group’s existing financing arrangements, including by:
| (a) |
|
providing a guarantee and security with respect to the senior secured credit agreement (the
“Senior Secured Credit Agreement”) dated as of November 5, 2009, between, among others,
Reynolds Group Holdings Limited (“RGHL”). the borrowers listed therein and Credit
Suisse AG, as amended, amended or restated, supplemented or otherwise modified from time to
time (the “Senior Secured Credit Facilities”): |
| (b) |
|
providing a guarantee and security with respect to the 7.75% senior secured notes due 2016
issued by members of the Reynolds Group in aggregate principal amounts of US$1,125,000,000 and
6450,000,000 pursuant to an indenture dated as of November 5, 2009 (the “2009 Notes”): |
| (c) |
|
providing a guarantee and security with respect to the 7.125% senior secured notes due 2019
issued by members of the Reynolds Group In an aggregate principal amount of US$1,500,000,000
pursuant to an indenture dated as of October 15, 2010 (the “October 2010 Secured
Notes”); and |
| (d) |
|
providing a guarantee and security with respect to the 6.875% senior secured notes due 2021
Issued by members of the Reynolds Group in an aggregate principal amount of US$1,000,000,000
pursuant to an indenture dated as of February 1, 2011 (the “February 2011 Secured
Notes”); |
(the 2009 Notes, the October 2010 Secured Notes and the February 2011 Secured Notes being together,
the “Existing Secured Notes.” and together with the Senior Secured Credit Facilities, the
“Existing Secured Indebtedness”).
| (e) |
|
incurring and providing a guarantee of certain notes issued by members of the Reynolds
Group, including (i) 8% senior notes due 2016 issued in an aggregate principal amount of
€480,000,000 pursuant to an indenture dated June 29, 2007, (ii) 9.5% senior subordinated notes
due 2017 issued in an aggregate principal amount of €420,000,000 pursuant to an indenture
dated June 29, 2007 (together with (i), the “2007 Notes”), (iii) 8.5% senior
notes due 2018 issued in an aggregate principal amount of US$1,000,000,000 pursuant to an
indenture dated May 4, 2010 (the “May 2010 Notes”), (iv) 9,0% senior notes due
2019 issued in an aggregate principal amount of US$1,500,000,000 pursuant to an indenture
dated October 15, 2010 (the “October 2010 Senior Notes”) and (v) 8,250% senior notes
due 2021 issued in an aggregate principal amount of US$1,000,000,000 pursuant to an indenture
dated February 1, 2011 (the “February 2011 Senior Notes”) (the 2007 Notes, the May
2010 |
| |
|
Notes, the October 2010 Senior Notes and the February 2011 Senior Notes
being together, the “Existing Notes”); and |
| (f) |
|
being party to the intercreditor arrangements in respect of the
guarantees,
indebtedness and security described above (the “Intercreditor
Arrangements”). |
the Existing Secured Indebtedness, the Existing Notes and the Intercreditor
Arrangements being, together, the “Existing Financing Arrangements”,
It is currently intended that RGHL will indirectly acquire the GPC group of
companies (the “GPC Group”) through the merger of an indirect wholly
owned subsidiary of RGHL with and into Graham Packaging Company Inc.
(“GPC”), with GPC surviving such merger and becoming an indirect wholly
owned subsidiary of RGHL (the “Acquisition”).
The Company has previously considered and approved the entry by the Company into
the Senior Secured Credit Agreement, as amended or otherwise modified from time to
time;
RGHL has determined it may be necessary or advisable to incur additional indebtedness under
the Senior Secured Credit Facilities in order to partially fund the Acquisition, the
associated costs and transactions required to effect the Acquisition and for
general corporate purposes, and the Company is now considering entering into
amendments to, and/or an amendment and restatement of, the Senior Secured Credit
Agreement, pursuant to which additional indebtedness would be incurred and the
proceeds made available under certain incremental facilities and subject to
certain conditions (the “Credit Agreement Amendment”).
RGHL has entered into a commitment letter, attached hereto as Exhibit
1. (together with the term sheets attached thereto, the
“Commitment Letter”), pursuant to which certain lenders have provided
commitments for three bridge financing facilities comprised of: a senior secured
bank bridge facility, a senior secured notes bridge facility and a senior
unsecured notes bridge facility, each as more particularly described in the
Commitment Letter (collectively, the “Bridge Financing Facilities”), which
may be used to partially fund the Acquisition and the associated costs and
transactions required to effect the Acquisition,
RGHL may determine, in lieu of or in combination with Issuing the New Secured
Notes (as defined below), New Unsecured Notes (as defined below) and/or incurring
the Additional Bank Debt (as defined below), that it is necessary or advisable to
draw on one or more of the Bridge Financing Facilities in order to fund all or
part of the Acquisition.
In addition, RGHL and/or certain direct or indirect subsidiaries of RGHL intend to
incur additional indebtedness as set forth below. In connection with such
incurrence of indebtedness, it is intended that the Existing Financing
Arrangements be supplemented and/or amended, by, among other things, RGHL and/or
certain of its direct or indirect subsidiaries doing one or more of the following:
| (a) |
|
the entry into of a new indenture (the “New Unsecured
Notes Indenture”), or accession thereto, by certain members of the
Reynolds Group in respect of the issue of new unsecured notes by indirect
subsidiaries of RGHL (the “New Unsecured Notes”), including the
issuance of the New Unsecured Notes and provision of related guarantees in
respect of the New Unsecured Notes by certain members of the Reynolds Group
(including the Company, as applicable) and, following the Acquisition,
potentially by certain members of the GPC Group (the “New Unsecured Notes
Guarantees”); |
| (b) |
|
the entry into of a new indenture (the “New Secured
Notes Indenture”), or accession thereto, by certain members of the
Reynolds Group in respect of the issue of new senior secured notes by
indirect subsidiaries of RGHL (the “New Secured Notes”). |
2
| |
|
including the issuance of the New Secured Notes and the provision of related
guarantees in respect of the New Secured Notes by certain members of the Reynolds Group
(including the Company, as applicable) and, following the Acquisition, potentially by
certain members of the GPC Group (the “New Secured Notes Guarantees”), |
| |
|
The proceeds from the issuance of the New Unsecured Notes and the New Secured Notes may
be used to partially fund the Acquisition and the associated costs and transactions
required (including, without limitation, the repayment of existing indebtedness of GPC
Group and contractual payments to existing shareholders of GPC Group) to effect the
Acquisition and for general corporate purposes. |
| |
|
It is expected that the Existing Secured Indebtedness and/or the Intercreditor
Arrangements will be amended, restated, extended, confirmed, affirmed, re-affirmed,
released and/or retaken, as necessary, in order to ensure that following the entry into
the New Secured Notes Indenture, the New Secured Notes will have the benefit of (1)
guarantees from substantially the same guarantors (including the Company) that
guarantee the Existing Secured Indebtedness and, following the Acquisition, potentially
from certain members of the GPC Group and (ii) substantially the same collateral provided
in respect of the Existing Secured Indebtedness and, following the Acquisition,
potentially security provided by certain members of the GPC Group, |
| |
|
The New Secured Notes and the New Unsecured Notes may be issued into escrow prior to the
date of the Acquisition. If the New Secured Notes or the New Unsecured Notes are issued
into escrow, the Company will not be required to provide its guarantees and security with
respect to the New Secured Notes or the New Unsecured Notes (as relevant) until such time
as the escrow is released. It is currently intended that if the New Secured Notes or the
New Unsecured Notes are issued into escrow the relevant escrow issuers, which shall be
affiliates of RGHL (the “Escrow Issuers”), will merge or otherwise be consolidated
with Reynolds Group Issuer Inc., a Delaware corporation, Reynolds Group Issuer LLC, a
Delaware limited liability company, and Reynolds Group Issuer (Luxembourg) S.A., a société
anonyme (a public limited liability company) under the laws of Luxembourg (the
“Existing Issuers”) or any other affiliates of RGHL which may issue the New
Secured Notes and the New Unsecured Notes (together with the Existing Issuers, the
“Issuers”) on the release of the escrow, with the Issuers being the surviving
entities (the “Escrow and Merger Arrangements”). |
| |
|
It is currently Intended that if the New Secured Notes or the New Unsecured Notes are not
issued into escrow, the New Secured Notes and the New Unsecured Notes may be issued by the
Issuers; |
| (c) |
|
the entry into of one or more registration rights agreements or joinders thereto by certain
members of the Reynolds Group (including the Company) and, following the Acquisition,
potentially by certain members of the GPC Group pursuant to which such entities agree to
register the re-sale of the New Unsecured Notes and the New Secured Notes and/or register the
issuance of the Unsecured Exchange Securities and the Secured Exchange Securities (each as
defined below) (the “Unsecured Notes Registration Rights Agreement” and the
“Secured Notes Registration Rights Agreement”, respectively); |
| (d) |
|
the entry into of one or more purchase agreements or joinders thereto providing For the
issuance and sale of the New Unsecured Notes and the New Secured Notes and related guarantees
by certain members of the Reynolds Group (including the Company) and, following the
Acquisition, potentially by certain members of the GPC
|
3
| |
|
Group (the “Unsecured Notes Purchase Agreement” and the “Secured Notes
Purchase Agreement”, respectively); |
| (e) |
|
the entry into the Credit Agreement Amendment and/or Joinders thereto; |
| (f) |
|
the incurrence of additional indebtedness (the “Additional Bank Debt”) under the
Senior Secured Credit Facilities as amended by the Credit Agreement Amendment (the
“Amended Senior Secured Credit Facilities”) which will have the benefit of
substantially the same guarantees and security as already provided in respect of the Senior
Secured Credit Facilities and it is expected that the security and guarantees provided in
respect of the Senior Secured Credit Facilities and/or the Intercreditor Arrangements will be
amended, restated, extended, affirmed, re-affirmed, confirmed, released and/or retaken, as
necessary, in order to effectuate the foregoing. The Additional Bank Debt may also have the
benefit of guarantees and security provided, following the Acquisition, potentially by certain
members of the GPC Group, as a result of such GPC Group entities granting guarantees and
security in respect of the Amended Senior Secured Credit Facilities. |
| |
|
It is intended that the Additional Bank Debt will not be drawn down until the date of the
Acquisition, however the Credit Agreement Amendment will allow for such funds either (i)
to be made available as delayed draw term loans that would be funded on the date of the
Acquisition or (ii) to be drawn down into escrow prior to the date of the Acquisition. |
| |
|
If the Additional Bank Debt is either made available as delayed draw term loans or is
drawn into escrow prior to the date of the Acquisition, the Company will not be required
to confirm its guarantees and security with respect to the Additional Bank Debt until such
time as either the delayed draw term loans are funded or the escrow is released or
otherwise terminated (the “Bank Escrow Arrangements”): |
| (g) |
|
the incurrence of additional indebtedness pursuant to the terms described in the
Commitment Letter; |
| |
| (h) |
|
the entry into the Facilities Documents (as such term is defined in the Commitment
Letter), including, without limitation, any credit agreements, intercreditor agreements,
security documents, indentures, registration rights agreements, purchase agreements,
notes, joinders or any other documents in connection with the Bridge Financing
Facilities or the conversion of any such Bridge Financing Facilities into term loans
and/or exchange notes as described in the Commitment Letter; |
| |
| (i) |
|
the provision by certain members of the Reynolds Group (including the Company as
an existing guarantor) of certain affirmations, reaffirmations and/or confirmations that
the guarantees in place in respect of the Existing Secured Indebtedness and Existing
Notes continue in full force and effect, notwithstanding the Transactions (as defined
below), the Escrow and Merger Arrangements, the Bank Escrow Arrangements and,
in the case of the Senior Secured Credit Facilities, extend to the Additional Bank
Debt, the Amended Senior Secured Credit Facilities and the Bridge Financing
Facilities, if any, as applicable; |
| |
| (j) |
|
the amendment, restatement, affirmation, re-affirmation, supplement, extension,
confirmation or release and retake of security, or grant of new or additional security
(which may be second, third or junior ranking) or other action in respect of collateral
under the applicable agreements, instruments or other documents creating security interests
in respect of the Existing Secured Indebtedness (collectively, the “Security
Documents”) in order to provide that such Security Documents (i) secure obligations
with respect to the New Secured Notes, the Additional Bank Debt and any secured |
4
| |
|
Bridge Financing Facilities, as applicable, on a pari passu basis with the Existing
Secured Indebtedness to the extent possible and (ii) continue to secure obligations in
respect of the Existing Secured Indebtedness (including after the consummation of the
Escrow and Merger Arrangements and the Bank Escrow Arrangements); |
| |
| (k) |
|
the entry into any amendments, supplements, joinders, designations, confirmations or
other documents in connection with the first lien intercreditor agreement dated as of November
5, 2009, between, among others, The Bank of New York Mellon, as the collateral agent, Credit
Suisse AG, and the grantors from time to time party thereto and the representatives from time
to time party thereto as amended by Amendment No. 1 and Joinder Agreement, dated as of January
21, 2010 (as further amended, extended, restated or otherwise modified the
“FLICA”) to the extent required in order to permit the New Secured Notes and/or the
Additional Bank Debt to be included as “Obligations” thereunder; |
| |
| (l) |
|
the entry into of any amendments, supplements, accessions, designations,
confirmations or other documents in connection with the intercreditor agreement dated May
11, 2007, as amended and/or restated, including, without limitation, as of (i) November 5,
2009 by an amendment and restatement agreement and (ii) November 5, 2010 by an amendment
agreement, both between, among others, RGHL as parent, Credit Suisse AG, Cayman Islands
Branch, as administrative agent and The Bank of New York Mellon as collateral agent,
senior secured notes trustee and high yield noteholders trustee (as such intercreditor
agreement may be further amended, extended, restated or otherwise modified, the “2007
ICA”); and |
| |
| (m) |
|
following the Acquisition, the possible accession by certain members of the GPC Group to
the Existing Financing Arrangements and the Transaction Documents (as defined below) as
guarantors and/or security providers. |
(collectively, the “Transactions”),
In order to effect the Transactions, it is intended that the Company enter into and/or approve, as
relevant, the following documents, (collectively, the “Transaction Documents”):
| (a) |
|
the documents relating to the Bridge Financing Facilities, including, without limitation, the
Facilities Documents, and any credit agreements, intercreditor agreements, security documents,
indentures, registration rights agreements, purchase agreements, notes, joinders, offering
material or any other documents in connection with the Bridge Financing Facilities or the
conversion of any such Bridge Financing Facilities into term loans and/or exchange notes as
described in the Commitment Letter; |
| |
| (b) |
|
the documents relating to the Amended Senior Secured Credit Facilities, the New Secured Notes
and the New Unsecured Notes, as more particularly described in Schedule 1; and |
| (c) |
|
the documents relating to the intercreditor arrangements in respect of Amended Senior Secured
Credit Facilities, the New Secured Notes, the New Unsecured Notes, the Existing Secured Notes
and the Existing Notes, as more particularly described in Schedule 2. |
5
II.
POWER OF ATTORNEY
The Company authorizes (bevollmächligl) the person or persons listed in Schedule 3 (the
“Authorized Signatories”) hereto, each of them individually, to act for and in the name of
the Company, and, in such capacity, to consider, settle, approve, execute or deliver the following:
| 1. |
|
execution, delivery and performance of the Transaction Documents and any other documents
related thereto or required to be executed, delivered and performed in order to give effect to
the Acquisition and the Transactions, (including any notices, certificates, requests,
communications or other documents (together with the Transaction Documents, the
“Documents”): |
| 2. |
|
any subsequent amendments (including by way of an amending agreement) to any Documents; |
| 3. |
|
supplement, make alterations to and complete any blanks in any Documents (including, but not
limited to, altering or completing details of the parties), and |
| 4. |
|
to do anything and consider, settle, approve, sign, agree, execute, deliver and/or issue any
documents that, in the opinion of the relevant Authorized Signatory, may be necessary,
expedient or incidental to any transaction or dealing contemplated by any of the Documents. |
In connection with the transactions, the Company hereby declares as follows:
The Authorized Signatories — each of them individually — are (i) released from the restrictions of
Section 181 second alternative German Civil Code (BGB) and to the extent legally possible according
to Section 181 first alternative German Civil Code (BGB) and (ii) authorized to grant sub-powers-of
attorney to third parties of their choice and with the same scope as this power-of-attorney and to
include the release from the restrictions of Section 181 German Civil Code (BGB). For the avoidance
of doubt, this power of attorney is to be construed broadly. The liability of each Authorized
Signatory shall be limited to willful misconduct and gross negligence. The Company shall — upon
receipt of a first demand (auf erstes Anfordern) - indemnify (freistellen) each Authorized
Signatory against expenses, losses, liabilities, judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges in connection therewith) incurred
by, or on behalf of, an Authorized Signatory in connection with this Power of Attorney.
This Power of Attorney shall be governed by the laws of the Federal Republic of Germany.
[Unterschrifisselte folgt/signature page follows]
6
| |
|
|
|
|
| |
Place, Date: July 25, 2011
Closure Systems International Deutschland GmbH
|
|
| |
BY: |
/s/ Victor Lance Mitchell
|
|
| |
|
Name: |
Victor Lance Mitchell |
|
| |
|
Function: President & CEO |
|
| |
|
|
|
|
| |
BY: |
/s/ Robert E Smith
|
|
| |
|
Name: |
Robert E Smith |
|
| |
|
Function: CEO |
|
| |
Schedule 1
New Secured Notes
| |
1. |
|
The New Secured Notes Indenture, between, among others, the duly appointed
trustee for the New Secured Notes, the Escrow Issuers or Issuers and the
guarantors, or any accession, joinder or supplemental indenture thereto. |
| |
| |
2. |
|
The Secured Notes Purchase Agreement, or any accession or joinder
thereto. |
| |
| |
3. |
|
The Secured Notes Registration Rights Agreement, or any accession
or joinder thereto. |
| |
| |
4. |
|
Officer’s certificates in respect of the New Secured Notes and any
officer’s certificates in respect of any opinion given in respect of the New
Secured Notes. |
New Unsecured Notes
| |
5. |
|
The New Unsecured Notes Indenture, between, among others, the duly appointed
trustee for the New Unsecured Notes, the Escrow Issuers or Issuers and the
guarantors, or any accession, joinder or supplemental indenture thereto. |
| |
| |
6. |
|
The Unsecured Notes Purchase Agreement, or any accession or joinder
thereto. |
| |
| |
7. |
|
Unsecured Notes Registration Rights Agreement, or any accession or
joinder thereto. |
| |
| |
8. |
|
Officer’s certificates in respect of the New Unsecured Notes and
any officer’s certificates in respect of any opinion given in respect of the New
Unsecured Notes. |
Other Documents relating to the New Secured Notes, the New Unsecured Notes, and/or the Amended
Senior Secured Credit Facilities
| |
9. |
|
A confirmation, affirmation or re-affirmation agreement,
between, among others, certain of the Loan Parties, each duly appointed
collateral agent under the First Lien Intercreditor Agreement, Credit Suisse AG,
as administrative agent under the Senior Secured Credit Facilities, and The Bank
of New York Mellon, as trustee under the 2009 Indenture and in other capacities,
with respect to the continuing security and/or guarantees in respect of the New
Secured Notes and/or the Additional Bank Debt (the “Reaffirmation
Agreement”). |
| |
| |
10. |
|
The Credit Agreement Amendment, and any ancillary and/or related
documents necessary to give effect to such amendments to the Senior Secured
Credit Agreement. |
| |
| |
11. |
|
the amendment, restatement, affirmation, re-affirmation, supplement,
creation, .extension, confirmation or release and retake of security, or
grant of new or additional security (which may be second ranking) or other
action in respect of collateral under the applicable agreements, instruments
or other documents creating security interests, in particular: |
9
| |
• |
|
various confirmation, reaffirmation or amendment agreements under German law
(including such agreements that require notarial recording) with respect to the continuing
or amendment of the existing German security agreements (the “German Confirmation
Agreements”): |
| |
| |
• |
|
Any agreements under which the Company grants new security such as new share pledge
agreements or new account pledge agreements (including such agreements that require
notarial recording) (the “German New Pledge Agreements”); |
| |
| |
• |
|
Any agreements under which the Company grants new security under non-German law or
confirms, reaffirms or amends existing agreements including but not limited to share
pledge agreements or interest pledge agreements relating to any shares/interests in
non-German subsidiaries (the “Non-German Pledge Agreements”). |
| |
12. |
|
Any other document, instrument and/or agreement for the purpose of confirming, affirming,
retaking or creating security in respect of the Additional Bank Debt and/or the New Secured
Notes. |
| |
| |
13. |
|
Any document, instrument and/or agreement for the purposes of implementing, or required as a
result of the implementation of, the Escrow and Merger Arrangements and/or the Bank Escrow
Arrangements, including any document, instrument or agreement which amends or otherwise
varies any security interest and/or guarantee granted by the Company. |
| |
| |
14. |
|
Any letters, notices or agreements of appointment in favour of certain related or unrelated
persons to act as process agent on behalf of the Company in respect of the Transactions. |
| |
| |
15. |
|
Any notices, certificates, requests, waivers, authorisations, amendments, letter agreements,
restatements, communications or other documents to be made, executed or entered into in
connection with the above and/or the Transactions, |
10
SCHEDULE 2
| |
1. |
|
Any agreements, amendments, supplements, joinders, certificates or other documents
required to be entered into in connection with the 2007 ICA. |
| |
| |
2. |
|
Any agreements, amendments, supplements, joinders, certificates, designations,
confirmations or other documents required to be entered into in connection with the
FLICA including, without limitation, in order to permit the New Secured Notes
and/or Additional Bank Debt to be included as “Obligations” thereunder. |
11
Schedule 3
Authorised Signatories
| 1. |
|
Graeme Richard Hart |
| |
| 2. |
|
Bryce McCheyne Murray |
| |
| 3. |
|
Helen Dorothy Golding |
| |
| 4. |
|
Allen Philip Hugli |
| |
| 5. |
|
Gregory Alan Cole |
| |
| 6. |
|
Mark Dunkley |
| |
| 7. |
|
Cindi Lefari |
| |
| 8. |
|
Philip John Presnell West |
| |
| 9. |
|
Thomas James Degnan |
| |
| 10. |
|
Robert Bailey |
| |
| 11. |
|
Stephen David Pardy |
| |
| 12. |
|
Prudence Louise Wyllie |
| |
| 13. |
|
Chiara Francesca Brophy |
| |
| 14. |
|
Karen Michelle Mower |
| |
| 15. |
|
Jennie Blizard |
and the following attorneys-at-law of Debevoise & Plimpton LLP, all with its business address at
Taubenstr. 7-9, 60313 Frankfurt am Main, Germany:
1. Philipp von Hoist
2. Dr. David Witzel
3. Klaudius Heda
4. Daniel Wiedmann
12
EXHIBIT 1
COMMITMENT LETTER
13
Certified Copy
POWER OF ATTORNEY
SIG Combibloc Group AG
SIG Combibloc Group AG is a company incorporated under the laws of Switzerland, with its registered
seat in Neuhausen am Rheinfall, registered with the Commercial Register of the Canton of
Schaffhausen under CH-290.3.004.149-2 (the “Principal”).
The Principal hereby authorizes (bevollmächtigt) the person or persons (the “Authorized
Signatories”) listed in Exhibit A hereto, each of them individually, for and in the name of the
Principal, to execute (i) one or more confirmation and/or amendment agreements in connection with
existing security agreements and (ii) new pledge agreements relating to the shares in SIG Euro
Holding AG & Co, KGaA (Verpfändung von Kommanditaktien) and the shares in SIG Combibloc Holding
GmbH and any related documents, and to undertake any related transactions and actions.
The Authorized Signatories — each of them individually — are hereby (i) released from the
restrictions of Section 181 German Civil Code (BGB) and from restrictions comparable with Section
181 German Civil Code under any applicable law and (ii) authorized to grant sub-powers-of attorney
to third parties of their choice and with the same scope as this Power of Attorney and to include
the release from the restrictions of Section 181 German Civil Code (BGB) in such sub-powers-of
attorney. For the avoidance of doubt, this Power of Attorney shall be construed broadly. The
liability of each Authorized Signatory is to be limited to willful misconduct and gross negligence,
The Principal shall — upon receipt of a first demand (auf erstes Anfordern) - indemnify
(freistellen) each Authorized Signatory against expenses, losses, liabilities, judgments, fines,
penalties and amounts paid in settlement (including all interest, assessments and other charges in
connection therewith) incurred by, or on behalf of, an Authorized Signatory in connection with this
Power of Attorney.
This Power of Attorney shall be governed by the laws of the Federal Republic of Germany.
[Signature page follows]
Place/Ort, Date/Datum: Zurich, July 22, 2011
| |
|
|
|
|
| |
SIG Combibloc Group AG
|
|
| |
BY: |
/s/ Dr Jakob Höhn
|
|
| |
|
Name: |
Dr Jakob Höhn |
|
| |
|
Function: Vice President of the Board |
|
| |
2
Exhibit A
Authorized Signatories
| 1. |
|
Graeme Richard Hart |
| |
| 2. |
|
Bryce McCheyne Murray |
| |
| 3. |
|
Helen Dorothy Golding |
| |
| 4. |
|
Allen Philip Hugli |
| |
| 5. |
|
Gregory Alan Cole |
| |
| 6. |
|
Mark Dunkley |
| |
| 7. |
|
Cindi Lefari |
| |
| 8. |
|
Philip John Presnell West |
| |
| 9. |
|
Thomas James Degnan |
| |
| 10. |
|
Robert Bailey |
| |
| 11. |
|
Stephen David Pardy |
| |
| 12. |
|
Prudence Louise Wyllie |
| |
| 13. |
|
Chiara Francesca Brophy |
| |
| 14. |
|
Karen Michelle Mower |
| |
| 15. |
|
Jennie Blizard. |
and the following attorneys-at-law of Debevoise & Plimpton LLP, all with its business address at
Taubenstr. 7-9, 60313 Frankfurt am Main, Germany:
| 1. |
|
Philipp von Hoist; |
| |
| 2. |
|
David Witzel; |
| |
| 3. |
|
Klaudius Heda; |
| |
| 4. |
|
Daniel Wiedmann; |
3
Certified Copy
POWER OF ATTORNEY
SIG Combibloc Holding GmbH
SIG Combibloc Holding GmbH is a limited liability company (Gesellschaft mit bescbränkter Haftung)
incorporated under the laws of Germany, with its registered seat in Linnich, registered with the
Commercial Register of the Local Court Düren under HR B 5751 (the “Company”).
I.
PREAMBLE
The Company is part of the Reynolds group of companies, which includes RGHL (as defined below) and
each of its subsidiaries (the “Reynolds Group”).
As part of the Reynolds Group, the Company is a guarantor and security provider in respect of the
Reynolds Group’s existing financing arrangements, including by:
| (a) |
|
providing a guarantee and security with respect to the senior secured credit agreement (the
“Senior Secured Credit Agreement”) dated as of November 5, 2009, between, among others,
Reynolds Group Holdings Limited (“RGHL”), the borrowers listed therein and Credit
Suisse AG, as amended, amended or restated, supplemented or otherwise modified from time to
time (the “Senior Secured Credit Facilities”); |
| |
| (b) |
|
providing a guarantee and security with respect to the 7.75% senior secured notes due 2016
issued by members of the Reynolds Group in aggregate principal amounts of US$1,125,000,000 and
€450,000,000 pursuant to an indenture dated as of November 5, 2009 (the “2009 Notes”); |
| |
| (c) |
|
providing a guarantee and security with respect to the 7.125% senior secured notes due 2019
issued by members of the Reynolds Group in an aggregate principal amount of US$1,500,000,000
pursuant to an indenture dated as of October 15, 2010 (the “October 2010 Secured
Notes”): and |
| |
| (d) |
|
providing a guarantee and security with respect to the 6.875% senior secured notes due 2021
issued by members of the Reynolds Group in an aggregate principal amount Of US$1,000,000,000
pursuant to an indenture dated as of February 1, 2011 (the “February 2011 Secured
Notes”); |
(the 2009 Notes, the October 2010 Secured Notes and the February 2011 Secured Notes being together,
the “Existing Secured Notes,” and together with the Senior Secured Credit Facilities, the
“Existing Secured Indebtedness”),
| (e) |
|
incurring and providing a guarantee of certain notes issued by members of the
Reynolds Group, including (i) 8% senior notes due 2016 issued in an aggregate
principal amount of €480,000,000 pursuant to an indenture dated June 29, 2007, (ii)
9.5% senior subordinated notes due 2017 issued in an aggregate principal amount of
€420,000,000 pursuant to an indenture dated June 29, 2007 (together with (i), the
“2007 Notes”), (iii) 8.5% senior notes due 2018 issued in an aggregate principal
amount of US$1,000,000,000 pursuant to an indenture dated May 4, 2010 (the “May
2010 Notes”), (iv) 9.0% senior notes due 2019 issued in an aggregate principal
amount of US$1,500,000,000 pursuant to an indenture dated October 15, 2010 (the
“October 2010 Senior Notes”) and (v) 8.250% senior notes due 2021 issued in an
aggregate principal amount of US$1,000,000,000 pursuant to an indenture dated
February 1, 2011 (the “February 2011 Senior Notes”) (the 2007 Notes, the May 2010 |
| |
|
Notes, the October 2010 Senior Notes and the February 2011 Senior Notes being together,
the “Existing Notes”): and |
| |
| (f) |
|
being party to the intercreditor arrangements in respect of the guarantees,
indebtedness and security described above (the “Intercreditor Arrangements”), |
the Existing Secured Indebtedness, the Existing Notes and the Intercreditor Arrangements being,
together, the “Existing Financing Arrangements”.
It is currently intended that RGHL will indirectly acquire the GPC group of companies (the “GPC
Group”) through the merger of an indirect wholly owned subsidiary of RGHL with and into Graham
Packaging Company Inc. (“GPC”), with GPC surviving such merger and becoming an indirect
wholly owned subsidiary of RGHL (the “Acquisition”).
The Company has previously considered and approved the entry by the Company into the Senior Secured
Credit Agreement, as amended or otherwise modified from time to time;
RGHL has determined it may be necessary or advisable to incur additional indebtedness under the
Senior Secured Credit Facilities in order to partially fund the Acquisition, the associated costs
and transactions required to effect the Acquisition and for general corporate purposes, and the
Company is now considering entering into amendments to, and/or an amendment and restatement of, the
Senior Secured Credit Agreement, pursuant to which additional indebtedness would be incurred and
the proceeds made available under certain incremental facilities and subject to certain conditions
(the “Credit Agreement Amendment”).
RGHL has entered into a commitment letter, attached hereto as Exhibit 1, (together with the
term sheets attached thereto, the “Commitment Letter”), pursuant to which certain lenders
have provided commitments for three bridge financing facilities comprised of: a senior secured bank
bridge facility, a senior secured notes bridge facility and a senior unsecured notes bridge
facility, each as more particularly described in the Commitment Letter (collectively, the
“Bridge Financing Facilities”), which may be used to partially fund the Acquisition and the
associated costs and transactions required to effect the Acquisition.
RGHL may determine, in lieu of or in combination with issuing the New Secured Notes (as defined
below), New Unsecured Notes (as defined below) and/or incurring the Additional Bank Debt (as
defined below), that it is necessary or advisable to draw on one or more of the Bridge Financing
Facilities in order to fund all or part of the Acquisition.
In addition, RGHL and/or certain direct or indirect subsidiaries of RGHL intend to incur additional
indebtedness as set forth below. In connection with such incurrence of indebtedness, it is intended
that the Existing Financing Arrangements be supplemented and/or amended, by, among other things,
RGHL and/or certain of its direct or indirect subsidiaries doing one or more of the following:
| (a) |
|
the entry into of a new indenture (the “New Unsecured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new unsecured
notes by indirect subsidiaries of RGHL (the “New Unsecured Notes”), including the
issuance of the New Unsecured Notes and provision of related guarantees in respect of the New
Unsecured Notes by certain members of the Reynolds Group (including the Company, as
applicable) and, following the Acquisition, potentially by certain members of the GPC Group
(the “New Unsecured Notes Guarantees”): |
| |
| (b) |
|
the entry into of a new indenture (the “New Secured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new senior
secured notes by indirect subsidiaries of RGHL (the “New Secured Notes”), |
2
| |
|
including the issuance of the New Secured Notes and the provision of related guarantees in
respect of the New Secured Notes by certain members of the Reynolds Group (including the
Company, as applicable) and, following the Acquisition, potentially by certain members of
the GPC Group (the “New Secured Notes Guarantees”) |
| |
| |
|
The proceeds from the issuance of the New Unsecured Notes and the New Secured Notes may be
used to partially fund the Acquisition and the associated costs and transactions required
(including, without limitation, the repayment of existing indebtedness of GPC Group and
contractual payments to existing shareholders of GPC Group) to effect the Acquisition and
for general corporate purposes. |
| |
| |
|
It is expected that the Existing Secured Indebtedness and/or the Intercreditor
Arrangements will be amended, restated, extended, confirmed, affirmed, re-affirmed,
released and/or retaken, as necessary, in order to ensure that following the entry into
the New Secured Notes Indenture, the New Secured Notes will have the benefit of (i)
guarantees from substantially the same guarantors (including the Company) that guarantee
the Existing Secured Indebtedness and, following the Acquisition, potentially from certain
members of the GPC Group and (ii) substantially the same collateral provided in respect of
the Existing Secured Indebtedness and, following the Acquisition, potentially security
provided by certain members of the GPC Group. |
| |
| |
|
The New Secured Notes and the New Unsecured Notes may be issued into escrow prior to the
date of the Acquisition. If the New Secured Notes or the New Unsecured Notes are issued
into escrow, the Company will not be required to provide its guarantees and security with
respect to the New Secured Notes or the New Unsecured Notes (as relevant) until such time
as the escrow is released. It is currently intended that if the New Secured Notes or the
New Unsecured Notes are issued into escrow the relevant escrow issuers, which shall be
affiliates of RGHL (the “Escrow Issuers”), will merge or otherwise be consolidated
with Reynolds Group Issuer Inc., a Delaware corporation, Reynolds Group Issuer LLC, a
Delaware limited liability company, and Reynolds Group Issuer (Luxembourg) S.A., a société
anonyme (a public limited liability company) under the laws of Luxembourg (the
“Existing Issuers”) or any other affiliates of RGHL which may issue the New
Secured Notes and the New Unsecured Notes (together with the Existing Issuers, the
“Issuers”) on the release of the escrow, with the Issuers being the surviving
entities (the “Escrow and Merger Arrangements”). |
| |
| |
|
It is currently intended that if the New Secured Notes or the New Unsecured Notes are not
issued into escrow, the New Secured Notes and the New Unsecured Notes may be issued by the
Issuers; |
| |
| (c) |
|
the entry into of one or more registration rights agreements or joinders thereto by certain
members of the Reynolds Group (including the Company) and, following the Acquisition,
potentially by certain members of the GPC Group pursuant to which such entities agree to
register the re-sale of the New Unsecured Notes and the New Secured Notes and/or register the
issuance of the Unsecured Exchange Securities and the Secured Exchange Securities (each as
defined below) (the “Unsecured Notes Registration Rights Agreement” and the
“Secured Notes Registration Rights Agreement”, respectively); |
| |
| (d) |
|
the entry into of one or more purchase agreements or joinders thereto providing for the
issuance and sale of the New Unsecured Notes and the New Secured Notes and related guarantees
by certain members of the Reynolds Group (including the Company) and, following the
Acquisition, potentially by certain members of the GPC |
3
| |
|
Group (the “Unsecured Notes Purchase Agreement” and the “Secured Notes
Purchase Agreement”, respectively); |
| (e) |
|
the entry into the Credit Agreement Amendment and/or joinders thereto; |
| |
| (f) |
|
the incurrence of additional indebtedness (the “Additional Bank Debt”) under the
Senior Secured Credit Facilities as amended by the Credit Agreement Amendment (the
“Amended Senior Secured Credit Facilities”) which will have the benefit of
substantially the same guarantees and security as already provided in respect of the Senior
Secured Credit Facilities and it is expected that the security and guarantees provided in
respect of the Senior Secured Credit Facilities and/or the Intercreditor Arrangements will be
amended, restated, extended, affirmed, re-affirmed, confirmed, released and/or retaken, as
necessary, in order to effectuate the foregoing. The Additional Bank Debt may also have the
benefit of guarantees and security provided, following the Acquisition, potentially by certain
members of the GPC Group, as a result of such GPC Group entities granting guarantees and
security in respect of the Amended Senior Secured Credit Facilities. |
| |
| |
|
It is intended that the Additional Bank Debt will not be drawn down until the date of the
Acquisition, however the Credit Agreement Amendment will allow for such funds either (i)
to be made available as delayed draw term loans that would be funded on the date of the
Acquisition or (ii) to be drawn down into escrow prior to the date of the Acquisition, |
| |
| |
|
If the Additional Bank Debt is either made available as delayed draw term loans or is
drawn into escrow prior to the date of the Acquisition, the Company will not be required
to confirm its guarantees and security with respect to the Additional Bank Debt until such
time as either the delayed draw term loans are funded or the escrow is released or
otherwise terminated (the “Bank Escrow Arrangements”); |
| |
| (g) |
|
the incurrence of additional indebtedness pursuant to the terms described in the Commitment Letter; |
| |
| (h) |
|
the entry into the Facilities Documents (as such term is defined in the Commitment
Letter), including, without limitation, any credit agreements, intercreditor agreements,
security documents, indentures, registration rights agreements, purchase agreements
notes, joinders or any other documents in connection with the Bridge Financing
Facilities or the conversion of any such Bridge Financing Facilities into term loans
and/or exchange notes as described in the Commitment Letter; |
| |
| (i) |
|
the provision by certain members of the Reynolds Group (including the Company as
an existing guarantor) of certain affirmations, reaffirmations and/or confirmations that
the guarantees in place in respect of the Existing Secured Indebtedness and Existing
Notes continue in full force and effect, notwithstanding the Transactions (as defined
below), the Escrow and Merger Arrangements, the Bank Escrow Arrangements and,
in the case of the Senior Secured Credit Facilities, extend to the Additional Bank
Debt, the Amended Senior Secured Credit Facilities and the Bridge Financing
Facilities, if any, as applicable; |
| |
| (j) |
|
the amendment, restatement, affirmation, re-affirmation, supplement, extension, confirmation or release and retake of security, or grant of new or additional security
(which may be second, third or junior ranking) or other action in respect of collateral
under the applicable agreements, instruments or other documents creating security interests
in respect of the Existing Secured Indebtedness (collectively, the “Security
Documents”) in order to provide that such Security Documents (i) secure obligations
with respect to the New Secured Notes, the Additional Bank Debt and any secured |
4
| |
|
Bridge Financing Facilities, as applicable, on a pari passu basis with the Existing
Secured Indebtedness to the extent possible and (ii) continue to secure obligations in
respect of the Existing Secured Indebtedness (including after the consummation of the
Escrow and Merger Arrangements and the Bank Escrow Arrangements); |
| (k) |
|
the entry into any amendments, supplements, joinders, designations, confirmations or
other documents in connection with the first lien intercreditor agreement dated as of November
5, 2009, between, among others, The Bank of New York Mellon, as the collateral agent, Credit
Suisse AG, and the grantors from time to time party thereto and the representatives from time
to time party thereto as amended by Amendment No. 1 and Joinder Agreement, dated as of January
21, 2010 (as further amended, extended, restated or otherwise modified the “FLICA”) to
the extent required in order to permit the New Secured Notes and/or the Additional Bank Debt
to be included as “Obligations” thereunder; |
| |
| (l) |
|
the entry into of any amendments, supplements, accessions, designations, confirmations or other documents in connection with the intercreditor agreement dated May
11, 2007, as amended and/or restated, including, without limitation, as of (i) November 5,
2009 by an amendment and restatement agreement and (ii) November 5, 2010 by an amendment
agreement, both between, among others, RGHL as parent, Credit Suisse AG, Cayman Islands
Branch, as administrative agent and The Bank of New York Mellon as collateral agent,
senior secured notes trustee and high yield noteholders trustee (as such intercreditor
agreement may be further amended, extended, restated or otherwise modified, the “2007
ICA”); and |
| |
| (m) |
|
following the Acquisition, the possible accession by certain members of the GPC Group to
the Existing Financing Arrangements and the Transaction Documents (as defined below) as
guarantors and/or security providers. |
(collectively, the “Transactions”).
In order to effect the Transactions, it is intended that the Company enter into and/or approve, as
relevant, the following documents, (collectively, the “Transaction Documents”):
| (a) |
|
the documents relating to the Bridge Financing Facilities, including, without limitation, the
Facilities Documents, and any credit agreements, intercreditor agreements, security documents,
indentures, registration rights agreements, purchase agreements, notes, joinders, offering
material or any other documents in connection with the Bridge Financing Facilities or the
conversion of any such Bridge Financing Facilities into term loans and/or exchange notes as
described in the Commitment Letter; |
| |
| (b) |
|
the documents relating to the Amended Senior Secured Credit Facilities, the New Secured Notes
and the New Unsecured Notes, as more particularly described in Schedule 1; and |
| |
| (c) |
|
the documents relating to the intercreditor arrangements in respect of Amended Senior Secured
Credit Facilities, the New Secured Notes, the New Unsecured Notes, the Existing Secured Notes
and the Existing Notes, as more particularly described in Schedule 2. |
5
II.
POWER OF ATTORNEY
The Company authorizes (bevollmächtigt) the person or persons listed in Schedule 3 (the
“Authorized Signatories”) hereto, each of them individually, to act for and in the name of
the Company, and, in such capacity, to consider, settle, approve, execute or deliver the following:
| 1. |
|
execution, delivery and performance of the Transaction Documents and any other documents
related thereto or required to be executed, delivered and performed in order to give effect to
the Acquisition and the Transactions, (including any notices, certificates, requests,
communications or other documents (together with the Transaction Documents, the
“Documents”); |
| |
| 2. |
|
any subsequent amendments (including by way of an amending agreement) to any Documents; |
| |
| 3. |
|
supplement, make alterations to and complete any blanks in any Documents
(including, but not limited to, altering or completing details of the parties), and |
| |
| 4. |
|
a shareholder resolution to be executed by the Principal in its capacity as shareholder of
Whakatane Mill Limited approving the participation of Whakatane Mill Limited in the
Transactions as a guarantor and security provider; |
| |
| 5. |
|
a shareholder resolution to be executed by the Principal in its capacity as shareholder of
SIG Combibloc Limited (UK) approving the participation of SIG Combibloc Limited (UK) in the
Transactions as a guarantor and security provider; |
| |
| 6. |
|
to do anything and consider, settle, approve, sign, agree, execute, deliver and/or issue
any documents that, in the opinion of the relevant Authorized Signatory, may be
necessary, expedient or incidental to any transaction or dealing contemplated by any
of the Documents. |
In connection with the transactions, the Company hereby declares as follows:
The Authorized Signatories — each of them individually — are (i) released from the restrictions of
Section 181 second alternative German Civil Code (BGB) and to the extent legally possible according
to Section 181 first alternative German Civil Code (BGB) and (ii) authorized to grant sub-powers-of
attorney to third parties of their choice and with the same scope as this power-of-attorney and to include the
release from the restrictions of Section 181 German Civil Code (BGB). For the avoidance of doubt,
this power of attorney is to be construed broadly. The liability of each Authorized Signatory shall
be limited to willful misconduct and gross negligence. The Company shall — upon receipt of a first
demand (auf erstes Anfordern) - indemnify (freistellen) each Authorized Signatory against expenses,
losses, liabilities, judgments, fines, penalties and amounts paid in settlement (including all
interest, assessments and other charges in connection therewith) incurred by, or on behalf of, an
Authorized Signatory in connection with this Power of Attorney.
This Power of Attorney shall be governed by the laws of the Federal Republic of Germany,
[Unterschriftsseite folgt/signature page follows]
6
Place, Date: July 20, 2011,
| |
|
|
|
|
SIG Combibloc Holding GmbH
|
|
| BY: |
/s/ Holger Dickers
|
|
| |
Name: |
Holger Dickers |
|
| |
Function: CEO / Managing Director |
|
| |
|
|
|
|
| BY: |
/s/ Joachim Frommherz
|
|
| |
Name: |
Joachim Frommherz |
|
| |
Function: CEO / Managing Director |
|
| |
7
Schedule 1
New Secured Notes
| |
1. |
|
The New Secured Notes Indenture, between, among others, the duly appointed
trustee for the New Secured Notes, the Escrow Issuers or Issuers and the
guarantors, or any accession, joinder or supplemental indenture thereto. |
| |
| |
2. |
|
The Secured Notes Purchase Agreement, or any accession or joinder
thereto. |
| |
| |
3. |
|
The Secured Notes Registration Rights Agreement, or any accession
or joinder thereto. |
| |
| |
4. |
|
Officer’s certificates in respect of the New Secured Notes and any
officer’s certificates in respect of any opinion given in respect of the New
Secured Notes. |
New Unsecured Notes
| |
5. |
|
The New Unsecured Notes Indenture, between, among others, the duly appointed
trustee for the New Unsecured Notes, the Escrow Issuers or Issuers and the
guarantors, or any accession, Joinder or supplemental indenture thereto. |
| |
| |
6. |
|
The Unsecured Notes Purchase Agreement, or any accession or joinder
thereto. |
| |
| |
7. |
|
Unsecured Notes Registration Rights Agreement, or any accession or
joinder thereto. |
| |
| |
8. |
|
Officer’s certificates in respect of the New Unsecured Notes and
any officer’s certificates in respect of any opinion given in respect of the New
Unsecured Notes. |
Other Documents relating to the New Secured Notes, the New Unsecured Notes, and/or the Amended
Senior Secured Credit Facilities
| |
9. |
|
A confirmation, affirmation or re-affirmation agreement, between, among others,
certain of the Loan Parties, each duly appointed collateral agent under the First
Lien Intercreditor Agreement, Credit Suisse AG, as administrative agent under the
Senior Secured Credit Facilities, and The Bank of New York Mellon, as trustee
under the 2009 Indenture and in other capacities, with respect to the continuing
security and/or guarantees in respect of the New Secured Notes and/or the
Additional Bank Debt (the “Reaffirmation Agreement”). |
| |
| |
10. |
|
The Credit Agreement Amendment, and any ancillary and/or related
documents necessary to give effect to such amendments to the Senior Secured
Credit Agreement. |
| |
| |
11. |
|
the amendment, restatement, affirmation, re-affirmation, supplement,
creation, extension, confirmation or release and retake of security, or grant of
new or additional security (which may be second ranking) or |
8
| |
|
|
other action in respect of collateral under the applicable agreements, instruments or other
documents creating security interests, in particular: |
| |
• |
|
various confirmation, reaffirmation or amendment agreements under German law
(including such agreements that require notarial recording) with respect to the continuing
or amendment of the existing German security agreements (the “German Confirmation
Agreements”); |
| |
| |
• |
|
Any agreements under which the Company grants new security such as new share pledge
agreements or new account pledge agreements (including such agreements that require
notarial recording) (the “German New Pledge Agreements”). |
| |
| |
• |
|
Any agreements under which the Company grants new security under non-German law or
confirms, reaffirms or amends existing agreements including but not limited to share
pledge agreements or interest pledge agreements relating to any shares/interests in
non-German subsidiaries (including, without limitation, (i) a Luxembourg law confirmation
agreement in respect of a share pledge over Evergreen Packaging (Luxembourg) S.á.r.l,, and
(ii) an English law deed of confirmation and amendment in respect of the share pledge over
SIG Combibloc Ltd.) (the “Non-German Pledge Agreements”). |
| 12. |
|
Any other document, instrument and/or agreement for the purpose of confirming, affirming,
retaking or creating security in respect of the Additional Bank Debt and/or the New Secured
Notes. |
| |
| 13. |
|
Any document, instrument and/or agreement for the purposes of implementing, or required as a
result of the implementation of, the Escrow and Merger Arrangements and/or the Bank Escrow
Arrangements, including any document, instrument or agreement which amends or otherwise varies
any security interest and/or guarantee granted by the Company. |
| |
| 14. |
|
Any letters, notices or agreements of appointment in favour of certain related or unrelated
persons to act as process agent on behalf of the Company in respect of the Transactions. |
| |
| 15. |
|
Any notices, certificates, requests, waivers, authorisations, amendments, letter agreements,
restatements, communications or other documents to be made, executed or entered into in
connection with the above and/or the Transactions. |
9
SCHEDULE 2
1. Any agreements, amendments, supplements, joinders, certificates or other documents
required to be entered into in connection with the 2007 ICA.
2. Any agreements, amendments, supplements, joinders, certificates, designations,
confirmations or other documents required to be entered into in connection with the
FLICA including, without limitation, in order to permit the New Secured Notes
and/or Additional Bank Debt to be included as “Obligations” thereunder.
10
Schedule 3
Authorised Signatories
| 1. |
|
Graeme Richard Hart |
| |
| 2. |
|
Bryce McCheyne Murray |
| |
| 3. |
|
Helen Dorothy Golding |
| |
| 4. |
|
Allen Philip Hugli |
| |
| 5. |
|
Gregory Alan Cole |
| |
| 6. |
|
Mark Dunkley |
| |
| 7. |
|
Cindi Lefari |
| |
| 8. |
|
Philip John Presnell West |
| |
| 9. |
|
Thomas James Degnan |
| |
| 10. |
|
Robert Bailey |
| |
| 11. |
|
Stephen David Pardy |
| |
| 12. |
|
Prudence Louise Wyllie |
| |
| 13. |
|
Chiara Francesca Brophy |
| |
| 14. |
|
Karen Michelle Mower |
| |
| 15. |
|
Jennie Blizard |
and the following attorneys-at-law of Debevoise & Plimpton LLP, all with its business address at
Taubenstr. 7-9, 60313 Frankfurt am Main, Germany:
| 16. |
|
Philipp von Holst |
| |
| 17. |
|
Dr. David Witzel |
| |
| 18. |
|
Klaudius Heda |
| |
| 19. |
|
Daniel Wiedmann |
11
EXHIBIT 1
COMMITMENT LETTER
12
Certified Copy
POWER OF ATTORNEY
SIG Euro Holding AG & Co. KGaA
SIG Euro Holding AG & Co. KGaA is a company limited by shares
(Kommanditgesellschaft auf Aktien) incorporated under the laws of Germany, with its registered seat
in Linnich, registered with the Commercial Register of the Local Court Düren under HR B
5754 (the “Company”).
I.
PREAMBLE
The Company is part of the Reynolds group of companies, which includes RGHL (as defined below) and
each of its subsidiaries (the “Reynolds Group”).
As part of the Reynolds Group, the Company is a guarantor and security provider in respect of the
Reynolds Group’s existing financing arrangements, including by:
| (a) |
|
providing a guarantee and security with respect to the senior secured credit agreement (the
“Senior Secured Credit Agreement”) dated as of November 5, 2009, between, among others,
Reynolds Group Holdings Limited (“RGHL”), the borrowers listed therein and Credit Suisse AG,
as amended, amended or restated, supplemented or otherwise modified from time to time (the
“Senior Secured Credit Facilities”); |
| (b) |
|
providing a guarantee and security with respect to the 7.75% senior secured notes due 2016
issued by members of the Reynolds Group in aggregate principal amounts of US$1,125,000,000 and
€450,000,000 pursuant to an indenture dated as of November 5, 2009 (the “2009 Notes”); |
| (c) |
|
providing a guarantee and security with respect to the 7.125% senior secured notes due 2019
issued by members of the Reynolds Group in an aggregate principal amount of US$1,500,000,000
pursuant to an indenture dated as of October 15, 2010 (the “October 2010 Secured
Notes”); and |
| (d) |
|
providing a guarantee and security with respect to the 6.875% senior secured notes due 2021
issued by members of the Reynolds Group in an aggregate principal amount of US$1,000,000,000
pursuant to an indenture dated as of February 1, 2011 (the “February 2011 Secured
Notes”); |
(the 2009 Notes, the October 2010 Secured Notes and the February 2011 Secured Notes being together,
the “Existing Secured Notes,” and together with the Senior Secured Credit Facilities, the
“Existing Secured Indebtedness”),
[Signature Page to SIG Euro Holding AG & Co. KgaA Power of Attorney]
| (e) |
|
incurring and providing a guarantee of certain notes issued by members of the Reynolds
Group, including (i) 8% senior notes due 2016 issued in an aggregate principal amount of
€480,000,000 pursuant to an indenture dated June 29, 2007, (ii) 9.5% senior subordinated
notes due 2017 issued in an aggregate principal amount of €420,000,000 pursuant to an
indenture dated June 29, 2007 (together with (i), the “2007 Notes”), (iii) 8.5%
senior notes due 2018 issued in an aggregate principal amount of US$1,000,000,000 pursuant
to an indenture dated May 4, 2010 (the “May 2010 Notes”), (iv) 9.0% senior notes
due 2019 issued in an aggregate principal amount of US$1,500,000,000 pursuant to an
indenture dated October 15, 2010 (the “October 2010 Senior Notes”) and (v)
8.250% senior notes due 2021 issued in an aggregate principal amount of US$1,000,000,000
pursuant to an indenture dated February 1, 2011 (the “February 2011 Senior Notes”)
(the 2007 Notes, the May 2010 Notes, the October 2010 Senior Notes and the February 2011
Senior Notes being together, the “Existing Notes”); and |
| (f) |
|
being party to the intercreditor arrangements in respect of the guarantees, indebtedness and
security described above (the “Intercreditor Arrangements”), |
the Existing Secured Indebtedness, the Existing Notes and the Intercreditor Arrangements being,
together, the “Existing Financing Arrangements”.
It is currently intended that RGHL will indirectly acquire the GPC group of companies (the “GPC
Group”) through the merger of an indirect wholly owned subsidiary of RGHL with and into Graham
Packaging Company Inc. (“GPC”), with GPC surviving such merger and becoming an indirect
wholly owned subsidiary of RGHL (the “Acquisition”).
The Company has previously considered and approved the entry by the Company into the Senior Secured
Credit Agreement, as amended or otherwise modified from time to time;
RGHL has determined it may be necessary or advisable to incur additional indebtedness under the
Senior Secured Credit Facilities in order to partially fund the Acquisition, the associated costs
and transactions required to effect the Acquisition and for general corporate purposes, and the
Company is now considering entering into amendments to, and/or an amendment and
restatement of, the Senior Secured Credit Agreement, pursuant to which additional indebtedness
would be incurred and the proceeds made available under certain incremental facilities and subject
to certain conditions (the “Credit Agreement Amendment”),
RGHL has entered into a commitment letter, attached hereto as Exhibit 1, (together with the term
sheets attached thereto, the “Commitment Letter”), pursuant to which certain lenders have
provided commitments for three bridge financing facilities comprised of: a senior secured bank
bridge facility, a senior secured notes bridge facility and a senior unsecured notes bridge
facility, each as more particularly described in the Commitment Letter (collectively, the
“Bridge Financing Facilities”), which may be used to partially fund the Acquisition and the
associated costs and transactions required to effect the Acquisition,
RGHL may determine, in lieu of or in combination with issuing the New Secured Notes (as defined
below), New Unsecured Notes (as defined below) and/or incurring the Additional Bank Debt (as
defined below), that it is necessary or advisable to draw on one or more of the Bridge Financing
Facilities in order to fund all or part of the Acquisition.
In addition, RGHL and/or certain direct or indirect subsidiaries of RGHL intend to incur additional
Indebtedness as set forth below. In connection with such incurrence of Indebtedness, it is intended
that the Existing Financing Arrangements be supplemented and/or amended, by, among other things,
RGHL and/or certain of its direct or indirect subsidiaries doing one or more of the following:
2
| (a) |
|
the entry into of a new indenture (the “New Unsecured Notes Indenture”), or
accession thereto, by certain members of the Reynolds Group in respect of the issue of new
unsecured notes by indirect subsidiaries of RGHL (the “New Unsecured Notes”),
including the issuance of the New Unsecured Notes and provision of related guarantees in
respect of the New Unsecured Notes by certain members of the Reynolds Group (including the
Company, as applicable) and, following the Acquisition, potentially by certain members of the
GPC Group (the “New Unsecured Notes Guarantees”); |
| (b) |
|
the entry into of a new indenture (the “New Secured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new senior
secured notes by indirect subsidiaries of RGHL (the “New Secured Notes”), including
the issuance of the
New Secured Notes and the provision of related guarantees in respect of the New Secured
Notes by certain members of the Reynolds Group (including the Company, as applicable) and,
following the Acquisition, potentially by certain members of the GPC Group (the “New
Secured Notes Guarantees”). |
| |
| |
|
The proceeds from the issuance of the New Unsecured Notes and the New Secured Notes may be
used to partially fund the Acquisition and the associated costs and transactions required
(including, without limitation, the repayment of existing indebtedness of GPC Group and
contractual payments to existing shareholders of GPC Group) to effect the Acquisition and
for general corporate purposes. |
| |
| |
|
It is expected that the Existing Secured Indebtedness and/or the Intercreditor
Arrangements will be amended, restated, extended, confirmed, affirmed, re-affirmed,
released and/or retaken, as necessary, in order to ensure that following the entry into
the New Secured Notes Indenture, the New Secured Notes will have the benefit of (i)
guarantees from substantially the same guarantors (including the Company) that guarantee
the Existing Secured Indebtedness and, following the Acquisition, potentially from certain
members of the GPC Group and (ii) substantially the same collateral provided in respect of
the Existing Secured Indebtedness and, following the Acquisition, potentially security
provided by certain members of the GPC Group. |
| |
| |
|
The New Secured Notes and the New Unsecured Notes may be issued into escrow prior to the
date of the Acquisition. If the New Secured Notes or the New Unsecured Notes are issued
into escrow, the Company will not be required to provide its guarantees and security with
respect to the New Secured Notes or the New Unsecured Notes (as relevant) until such time
as the escrow is released, It is currently intended that if the New Secured Notes or the
New Unsecured Notes are issued into escrow the relevant escrow issuers, which shall be
affiliates of RGHL (the “Escrow Issuers”), will merge or otherwise be consolidated
with Reynolds Group Issuer Inc., a Delaware corporation, Reynolds Group Issuer LLC, a
Delaware limited liability company, and Reynolds Group Issuer (Luxembourg) S.A., a société
anonyme (a public limited liability company) under the laws of Luxembourg (the “Existing
Issuers”) or any other affiliates of RGHL which may issue the New Secured Notes and the
New Unsecured Notes (together with the Existing Issuers, the “Issuers”) on the
release of the escrow, with the Issuers being the surviving entities (the “Escrow
and Merger Arrangements”). |
| |
| |
|
It is currently intended that if the New Secured Notes or the New Unsecured Notes are not
issued into escrow, the New Secured Notes and the New Unsecured Notes may be issued by the
Issuers; |
| |
| (c) |
|
the entry into of one or more registration rights agreements or joinders thereto by
certain members of the Reynolds Group (including the Company) and, following the
Acquisition, potentially by certain members of the GPC Group pursuant to which |
3
| |
|
such entities agree to register the re-sale of the New Unsecured Notes and the
New Secured Notes and/or register the issuance of the Unsecured Exchange
Securities and the Secured Exchange Securities (each as defined below) (the “Unsecured
Notes Registration Rights Agreement” and the “Secured Notes Registration
Rights Agreement”, respectively); |
| (d) |
|
the entry into of one or more purchase agreements or joinders thereto providing for the
issuance and sale of the New Unsecured Notes and the New Secured Notes and related guarantees
by certain members of the Reynolds Group (including the Company) and, following the
Acquisition, potentially by certain member of the GPC Group (the “Unsecured Notes Purchase
Agreement” and the “Secured Notes Purchase Agreement”, respectively); |
| (e) |
|
the entry into the Credit Agreement Amendment and/or joinders thereto; |
| (f) |
|
the incurrence of additional indebtedness (the “Additional Bank Debt”) under
the Senior Secured Credit Facilities as amended by the Credit Agreement Amendment (the
“Amended Senior Secured. Credit Facilities”) which will have the benefit of
substantially the same guarantees and security as already provided in respect of
the Senior Secured Credit Facilities and it is expected that the security and guarantees
provided in respect of the Senior Secured Credit Facilities and/or the Intercreditor
Arrangements will be amended, restated, extended, affirmed, re-affirmed, confirmed, released
and/or retaken, as necessary, in order to effectuate the foregoing. The Additional Bank Debt
may also have the benefit of guarantees and security provided, following the Acquisition,
potentially by certain members of the GPC Group, as a
result of such GPC Group entities granting guarantees and security in respect
of the Amended Senior Secured Credit Facilities. |
| |
|
It is intended that the Additional Bank Debt will not be drawn down until the date of the
Acquisition, however the Credit Agreement Amendment will allow for such funds
either (i) to be made available as delayed draw term loans that would be funded
on the date of the Acquisition or (ii) to be drawn down into
escrow prior to the date of the Acquisition, |
| |
|
If the Additional Bank Debt is either made available as delayed draw term loans
or is drawn into escrow prior to the date of the Acquisition, the Company will
not be required to confirm its guarantees and security with respect to
the Additional Bank Debt until such time as either the delayed draw term loans are
funded or the escrow is released or otherwise terminated (the “Bank Escrow
Arrangements”); |
| (g) |
|
the incurrence of additional indebtedness pursuant to the terms described in
the Commitment Letter; |
| (h) |
|
the entry into the Facilities Documents (as such term is defined in the Commitment
Letter), including, without limitation, any credit agreements, intercreditor agreements,
security documents, indentures, registration rights agreements, purchase agreements,
notes, joinders or any other documents in connection with the Bridge Financing
Facilities or the conversion of any such Bridge Financing Facilities Into term
loans
and/or exchange notes as described in the Commitment Letter; |
| |
| (i) |
|
the provision by certain members of the Reynolds Group (including the Company as
an existing guarantor) of certain affirmations, reaffirmations and/or
confirmations that
the guarantees in place in respect of the Existing Secured Indebtedness and
Existing
Notes continue in full force and effect, notwithstanding the Transactions (as defined
below), the Escrow and Merger Arrangements, the Bank Escrow Arrangements and,
in the case of the Senior Secured Credit Facilities, extend to the
Additional Bank |
4
| |
|
Debt, the Amended Senior Secured Credit Facilities and the Bridge Financing Facilities,
if any, as applicable; |
| (j) |
|
the amendment, restatement, affirmation, re-affirmation, supplement, extension,
confirmation or release and retake of security, or giant of new or additional security
(which may be second, third or junior ranking) or other action in respect of collateral
under the applicable agreements, instruments or other documents creating security
interests in respect of the Existing Secured Indebtedness (collectively, the “Security
Documents”) in order to provide that such Security Documents (i) secure
obligations with respect to the New Secured Notes, the Additional Sank Debt and any
secured Bridge Financing Facilities, as applicable, on a pari passu basis with the
Existing Secured Indebtedness to the extent possible and (ii) continue to secure
obligations in respect of the Existing Secured Indebtedness (including after the
consummation of the Escrow and Merger Arrangements and the Bank Escrow Arrangements); |
| (k) |
|
the entry into any amendments, supplements, joinders, designations, confirmations or
other documents in connection with the first lien intercreditor agreement dated as of November
5, 2009, between, among others, The Bank of New York Mellon, as the collateral agent, Credit
Suisse AG, and the grantors from time to time party thereto and the representatives from time
to time party thereto as amended by Amendment No. 1 and Joinder Agreement, dated as of January
21, 2010 (as further amended, extended, restated or otherwise modified the “FLICA”) to
the extent required in order to permit the New Secured Notes and/or the Additional Bank Debt
to be included as “Obligations” thereunder; |
| (l) |
|
the entry into of any amendments, supplements, accessions, designations,
confirmations or other documents in connection with the intercreditor agreement dated May
11, 2007, as amended and/or restated, including, without limitation, as of (i) November 5,
2009 by an amendment and restatement agreement and (ii) November 5, 2010 by an amendment
agreement, both between, among others, RGHL as parent, Credit Suisse AG, Cayman Islands
Branch, as administrative agent and The Bank of New York Mellon as collateral
agent, senior secured notes trustee and high yield noteholders trustee (as such
intercreditor agreement may be further amended, extended, restated or otherwise modified,
the “2007 ICA”); and |
| (m) |
|
following the Acquisition, the possible accession by certain members of the GPC Group
to the Existing Financing Arrangements and the Transaction Documents (as defined below) as
guarantors and/or security providers. |
(collectively, the “Transactions”).
In order to effect the Transactions, it is intended that the Company enter into and/or approve,
as relevant, the following documents, (collectively, the “Transaction Documents”):
5
| (a) |
|
the documents relating to the Bridge Financing Facilities, including, without limitation,
the Facilities Documents, and any credit agreements, intercreditor agreements, security
documents, indentures, registration rights agreements, purchase agreements, notes, joinders,
offering material or any other documents in connection with the Bridge Financing Facilities or
the conversion of any such Bridge Financing Facilities into term loans and/or exchange notes
as described in the Commitment Letter; |
| (b) |
|
the documents relating to the Amended Senior Secured Credit Facilities, the New Secured Notes
and the New Unsecured Notes, as more particularly described in Schedule 1; and |
| (c) |
|
(c) the documents relating to the intercreditor arrangements in respect of Amended Senior
Secured Credit Facilities, the New Secured Notes, the New Unsecured Notes, the Existing
Secured Notes and the Existing Notes, as more particularly described in Schedule 2. |
II.
POWER OF ATTORNEY
The Company authorizes (bevollmächtigi) the person or persons listed in Schedule 3 (the
“Authorized Signatories”) hereto, each of them individually, to act for and in the name of
the Company, and, in such capacity, to consider, settle, approve, execute or deliver the following:
| 1. |
|
execution, delivery and performance of the Transaction Documents and any other
documents related thereto or required to be executed, delivered and performed in
order to give effect to the Acquisition and the Transactions, (including any notices,
certificates, requests, communications or other documents (together with the Transaction Documents, the “Documents”); |
| 2. |
|
any subsequent amendments (including by way of an amending agreement) to any
Documents; |
| 3. |
|
supplement, make alterations to and complete any blanks in any Documents (including, but not
limited to, altering or completing details of the parties), and |
| 4. |
|
to do anything and consider, settle, approve, sign, agree, execute, deliver and/or issue any
documents that, in the opinion of the relevant Authorized Signatory, may be necessary,
expedient or incidental to any transaction or dealing contemplated by any of the Documents. |
In connection with the transactions, the Company hereby declares as follows:
The Authorized Signatories — each of them individually — are (i) released from the restrictions of
Section 181 second alternative German Civil Code (BGB) and to the extent legally possible according
to Section 181 first alternative German Civil Code (BGB) and (ii) authorized to grant sub-powers-of
attorney to third parties of their choice and with the same scope as this power-of-attorney and to
include the release from the restrictions of Section 181 German Civil Code (BGB). For the avoidance
of doubt, this power of attorney is to be construed broadly. The liability of each Authorized
Signatory shall be limited to willful misconduct and gross negligence. The Company shall — upon
receipt of a first demand (auf erstes Anfordern) - indemnify (freistellen) each Authorized
Signatory against expenses, losses, liabilities, judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges in connection therewith) incurred
by, or on behalf of, an Authorized Signatory in connection with this Power of Attorney.
6
This Power of Attorney shall be governed by the laws of the Federal Republic of Germany.
[Unterschriftsseite folgt/signature page follows]
7
Place, Date: July 20, 2011
SIG Euro Holding AG & Co. KGaA
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BY: |
SIG Reinag AG as general partner (Komplementär)
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BY: |
/s/ Marco Haussener
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Name: |
Marco Haussener |
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Function: Director |
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BY: |
/s/ Holger Dickers
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Name: |
Holger Dickers |
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Function: Director |
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Schedule 1
New Secured Notes
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1. |
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The New Secured Notes Indenture, between, among others, the duly appointed
trustee for the New Secured Notes, the Escrow Issuers or Issuers and the
guarantors, or any accession, joinder or supplemental indenture thereto. |
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2. |
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The Secured Notes Purchase Agreement, or any accession or joinder
thereto, |
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3. |
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The Secured Notes Registration Rights Agreement, or any accession or
joinder thereto. |
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4. |
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Officer’s certificates in respect of the New Secured Notes and any
officer’s certificates in respect of any opinion given in respect of the New
Secured Notes. |
New Unsecured Notes
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5. |
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The New Unsecured Notes Indenture, between, among others, the duly appointed
trustee for the New Unsecured Notes, the Escrow Issuers or Issuers and the
guarantors, or any accession, joinder or supplemental indenture thereto. |
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6. |
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The Unsecured Notes Purchase Agreement, or any accession or joinder
thereto, |
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7. |
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Unsecured Notes Registration Rights Agreement, or any accession or
joinder thereto. |
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8. |
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Officer’s certificates in respect of the New Unsecured Notes and any
officer’s certificates in respect of any opinion given in respect of the New
Unsecured Notes. |
Other Documents relating to the New Secured Notes, the New Unsecured Notes, and/or the Amended
Senior Secured Credit Facilities
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9. |
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A confirmation, affirmation or re-affirmation agreement, between, among others,
certain of the Loan Parties, each duly appointed collateral agent under the First
Lien Intercreditor Agreement, Credit Suisse AG, as administrative agent under the
Senior Secured Credit Facilities, and The Bank of New York Mellon, as trustee
under the 2009 Indenture and in other capacities, with respect to the continuing
security and/or guarantees in respect of the New Secured Notes and/or the
Additional Bank Debt (the “Reaffirmation Agreement”). |
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10. |
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The Credit Agreement Amendment, and any ancillary and/or related
documents necessary to give effect to such amendments to the Senior Secured Credit
Agreement. |
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11. |
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the amendment, restatement, affirmation, re-affirmation, supplement,
creation, extension, confirmation or release and retake of security, or grant of
new or additional security (which may be second ranking) or other action in
respect of collateral under the applicable agreements, instruments or other
documents creating security interests, in particular: |
9
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• |
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various Confirmation, reaffirmation or amendment agreements
under German law (including such agreements that require notarial recording)
with respect to the continuing or amendment of the existing German security
agreements (the “German Confirmation Agreements”): |
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• |
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Any agreements under which the Company grants new security
such as new share pledge agreements or new account pledge agreements
(including such agreements that require notarial recording) (the “German
New Pledge Agreements”); |
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• |
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Any agreements under which the Company grants new security
under non-German law or confirms, reaffirms or amends existing agreements
including but not limited to share pledge agreements or interest pledge
agreements relating to any shares/interests in non-Gerinan subsidiaries
(including, without limitation, a Brazilian law amendment to a quota pledge
agreement over quotas in SIG Beverages Brasil Ltda.) (the “Non-German
Pledge Agreements”). |
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12. |
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Any other document, instrument and/or agreement for the purpose of
confirming, affirming, retaking or creating security in respect of the Additional
Bank Debt and/or the New Secured Notes. |
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13. |
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Any document, instrument and/or agreement for the purposes of
implementing, or required as a result of the implementation of, the Escrow end
Merger Arrangements and/or the Bank Escrow Arrangements, including any document,
instrument or agreement which amends or otherwise varies any security interest
and/or guarantee granted by the Company. |
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14. |
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Any letters, notices or agreements of appointment in favour of
certain related or unrelated persons to act as process agent on behalf of the
Company in respect of the Transactions. |
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15. |
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Any notices, certificates, requests, waivers, authorisations,
amendments, letter agreements, restatements, communications or other documents to
be made, executed or entered into in connection with the above and/or the
Transactions. |
10
SCHEDULE 2
1. Any agreement, amendments, supplements, joinders, certiflcates or other documents
required to be entered into in connection with the 2007 ICA.
| 2. |
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Any agreements, amendments, supplements, joinders, certificates, designations,
confirmation or other documents required to be entered into in connection with the
FLICA including, without limitation, in order to permit the New Secured Notes
and/or Additional Bank Debt to be included as “Obligations” thereunder. |
11
Schedule 3
Authorised Signatories
| 1. |
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Graeme Richard Hart |
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| 2. |
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Bryce McCheyne Murray |
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| 3. |
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Helen Dorothy Golding |
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| 4. |
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Allen Philip Hugli |
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| 5. |
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Gregory Alan Cole |
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| 6. |
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Mark Dunkley |
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| 7. |
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Cindi Lefari |
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| 8. |
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Philip John Presnell West |
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| 9. |
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Thomas James Degnan |
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| 10. |
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Robert Bailey |
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| 11. |
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Stephen David Pardy |
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| 12. |
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Prudence Louise Wyllie |
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| 13. |
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Chiara Francesca Brophy |
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| 14. |
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Karen Michelle Mower |
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| 15. |
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Jennie Blizard |
and the Following attorneys-at-law of Debevoise & Plimpton LLP, all with its business address at
Taubenstr. 7-9, 60313 Frankfurt am Main, Germany:
| 16. |
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Philipp von Hoist |
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| 17. |
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Dr. David Witzel |
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| 18. |
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Klaudius Heda |
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| 19. |
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Daniel Wiedmann |
12
EXHIBIT 1
COMMITMENT LETTER
13
Certified Copy
POWER OF ATTORNEY
SIG Beverages Germany GmbH
SIG Beverages Germany GmbH is a limited liability company (Gesellschaft mit beschränkter Haftung)
incorporated under the laws of Germany, with its registered seat in Waldshut-Tiengen, registered
with the Commercial Register of the Local Court Freiburg i. Br. under HR B 702482 (the “Company”).
I.
PREAMBLE
The Company is part of the Reynolds group of companies, which includes RGHL (as defined below) and
each of its subsidiaries (the “Reynolds Group”).
As part of the Reynolds Group, the Company is a guarantor and security provider in respect of the
Reynolds Group’s existing financing arrangements, including by:
| (a) |
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providing a guarantee and security with respect to the senior secured credit agreement (the
“Senior Secured Credit Agreement”) dated as of November 5, 2009, between, among others,
Reynolds Group Holdings Limited (“RGHL”), the borrowers listed therein and Credit
Suisse AG, as amended, amended or restated, supplemented or otherwise modified from time to
time (the “Senior,Secured Credit Facilities”); |
| (b) |
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providing a guarantee and security with respect to the 7.75% senior secured notes due 2016
issued by members of the Reynolds Group in aggregate principal amounts of US$1,125,000,000 and
€450,000,000 pursuant to an indenture dated as of November 5, 2009 (the “2009
Notes”); |
| (c) |
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providing a guarantee and security with respect to the 7.125% senior secured notes due 2019
issued by members of the Reynolds Group in an aggregate principal amount of US$1,500,000,000
pursuant to an indenture dated as of October 15, 2010 (the “October 2010 Secured
Notes”); and |
| (d) |
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providing a guarantee and security with respect to the 6.875% senior secured notes due 2021
issued by members of the Reynolds Group in an aggregate principal amount of US$1,000,000,000
pursuant to an indenture dated as of February I, 2011 (the “February 2011 Secured
Notes”): |
(the 2009 Notes, the October 2010 Secured Notes and the February 2011 Secured Notes being together,
the “Existing Secured Notes,” and together with the Senior Secured Credit Facilities, the
“Existing Secured Indebtedness”),
| (c) |
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incurring and providing a guarantee of certain notes issued by members of the Reynolds
Group, including (i) 8% senior notes due 2016 issued in an aggregate principal amount
of €480,000,000 pursuant to an indenture dated June 29, 2007, (ii) 9.5% senior subordinated
notes due 2017 issued in an aggregate principal amount of €420,000,000 pursuant to an
indenture dated June 29, 2007 (together with (i), the “2007 Notes”), (iii) 8.5% senior
notes due 2018 issued in an aggregate principal amount of US$1,000,000,000 pursuant to an
indenture dated May 4, 2010 (the “May 2010 Notes”), (iv) 9.0% senior notes due 2019
issued in an aggregate principal amount of US$1,500,000,000 pursuant to an indenture dated
October 15, 2010 (the “October 2010 Senior Notes”) and (v) 8.250% senior notes due
2021 issued in an aggregate principal amount of US$1,000,000,000 pursuant to an indenture
dated February 1, 2011 (the “February 2011 Senior Notes”) (the 2007 Notes, the May
2010 |
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Notes, the October 2010 Senior Notes and the February 2011 Senior Notes being together,
the “Existing. Notes”); and |
| (f) |
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being party to the intercreditor arrangements in respect of the guarantees,
indebtedness and security described above (the “Intercreditor Arrangements”), |
the Existing Secured Indebtedness, the Existing Notes and the Intercreditor Arrangements being,
together, the “Existing Financing Arrangements”.
It is currently intended that RGHL will indirectly acquire the GPC group of companies (the “GPC
Group”) through the merger of an indirect wholly owned subsidiary of RGHL with and into Graham
Packaging Company Inc. (“GPC”), with GPC surviving such merger and becoming an indirect wholly
owned subsidiary of RGHL (the “Acquisition”).
The Company has previously considered and approved the entry by the Company into the Senior Secured
Credit Agreement, as amended or otherwise modified from time to time;
RGHL has determined it may be necessary or advisable to incur additional indebtedness under the
Senior Secured Credit Facilities in order to partially fund the Acquisition, the associated costs
and transactions required to effect the Acquisition and for general corporate purposes, and the
Company is now considering entering into amendments to, and/or an amendment and restatement of, the
Senior Secured Credit Agreement, pursuant to which additional indebtedness would be incurred and
the proceeds made available under certain incremental facilities and subject to certain conditions
(the “Credit Agreement Amendment”).
RGHL has entered into a commitment letter, attached hereto as Exhibit 1, (together
with the term sheets attached thereto, the “Commitment Letter”), pursuant to which certain
lenders have provided commitments for three bridge financing facilities comprised of: a senior
secured bank bridge facility, a senior secured notes bridge facility and a senior unsecured notes
bridge facility, each as more particularly described in the Commitment Letter (collectively, the
“Bridge Financing Facilities”), which may be used to partially fund the Acquisition and the
associated costs and transactions required to effect the Acquisition.
RGHL may determine, in lieu of or in combination with issuing the New Secured Notes (as defined
below), New Unsecured Notes (as defined below) and/or incurring the Additional Bank Debt (as
defined below), that it is necessary or advisable to draw on one or more of the Bridge Financing
Facilities in order to fund all or part of the Acquisition.
In addition, RGHL and/or certain direct or indirect subsidiaries of RGHL intend to incur additional
indebtedness as set forth below. In connection with such incurrence of indebtedness, it is intended
that the Existing Financing Arrangements be supplemented and/or amended, by, among other things,
RGHL and/or certain of its direct or indirect subsidiaries doing one or more of the following:
| (a) |
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the entry into of a new indenture (the “New Unsecured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new unsecured
notes by indirect subsidiaries of RGHL (the “New Unsecured Notes”), including the
issuance of the New Unsecured Notes and provision of related guarantees in respect of the New
Unsecured Notes by certain members of the Reynolds Group (including the Company, as
applicable) and, following the Acquisition, potentially by certain members of the GPC Group
(the “New Unsecured Notes Guarantees”); |
| (b) |
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the entry into of a new indenture (the “New Secured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new senior
secured notes by indirect subsidiaries of RGHL (the “New Secured Notes”), including
the issuance of the New Secured Notes and the provision of related |
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guarantees in respect of the “New Secured Notes by certain members of the Reynolds Group
(including the Company, as applicable) and, following the Acquisition, potentially by
certain members of the GPC Group (the “New Secured Notes Guarantees”). |
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The proceeds from the issuance of the New Unsecured Notes and the New Secured Notes may be
used to partially fund the Acquisition and the associated costs and transactions required
(including, without limitation, the repayment of existing indebtedness of GPC Group and
contractual payments to existing shareholders of GPC Group) to effect the Acquisition and
for general corporate purposes. |
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It is expected that the Existing Secured Indebtedness and/or the Intercreditor
Arrangements will be amended, restated, extended, confirmed, affirmed, re-affirmed,
released and/or retaken, as necessary, in order to ensure that following the entry into
the New Secured Notes Indenture, the New Secured Notes will have the benefit of (i)
guarantees from substantially the same guarantors (including the Company) that guarantee
the Existing Secured Indebtedness and, following the Acquisition, potentially from certain
members of the GPC Group and (ii) substantially the same collateral provided in respect of
the Existing Secured Indebtedness and, following the Acquisition, potentially security
provided by certain members of the GPC Group. |
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The New Secured Notes and the New Unsecured Notes may be issued into escrow prior to the
date of the Acquisition. If the New Secured Notes or the New Unsecured Notes are issued
into escrow, the Company will not be required to provide its guarantees and security with
respect to the New Secured Notes or the New Unsecured Notes (as relevant) until such time
as the escrow is released. It is currently intended that if the New Secured Notes or the
New Unsecured Notes are issued into escrow the relevant escrow issuers, which shall be
affiliates of RGHL (the “Escrow Issuers”), will merge or otherwise be consolidated
with Reynolds Group Issuer Inc., a Delaware corporation, Reynolds Group Issuer LLC, a
Delaware limited liability company, and Reynolds Group Issuer (Luxembourg) S.A., a société
anonyme (a public limited liability company) under the laws of Luxembourg (the “Existing
Issuers”) or any other affiliates of RGHL which may issue the New Secured Notes and
the New Unsecured Notes (together with the Existing Issuers, the “Issuers”) on the
release of the escrow, with the Issuers being the surviving entities (the “Escrow
and Merger Arrangements”). |
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It is currently intended that if the New Secured Notes or the New Unsecured Notes are not
issued into escrow, the New Secured Notes and the New Unsecured Notes may be issued by the
Issuers; |
| (c) |
|
the entry into of one or more registration rights agreements or joinders thereto by certain
members of the Reynolds Group (including the Company) and, following the Acquisition,
potentially by certain members of the GPC Group pursuant to which such entities agree to
register the re-sale of the New Unsecured Notes and the New Secured Notes and/or register the
issuance of the Unsecured Exchange Securities and the Secured Exchange Securities (each as
defined below) (the “Unsecured Notes Registration Rights Agreement” and the
“Secured Notes Registration Rights Agreement”, respectively); |
| (d) |
|
the entry into of one or more purchase agreements or joinders thereto providing for the
issuance and sale of the New Unsecured Notes and the New Secured Notes and related guarantees
by certain members of the Reynolds Group (including the Company) and, following the
Acquisition, potentially by certain members of the GPC Group (the “Unsecured Notes
Purchase Agreement” and the “Secured Notes Purchase Agreement”, respectively); |
3
| (e) |
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the entry into the Credit Agreement Amendment and/or joinders thereto; |
| (f) |
|
the incurrence of additional indebtedness (the “Additional Bank Debt”) under the
Senior Secured Credit Facilities as amended by the Credit Agreement Amendment (the
“Amended Senior Secured Credit Facilities”) which will have the benefit of
substantially the same guarantees and security as already provided in respect of the Senior
Secured Credit Facilities and ft is expected that the security and guarantees
provided in respect of the Senior Secured Credit Facilities and/or the Intercreditor
Arrangements will be amended, restated, extended, affirmed, re-affirmed, confirmed, released
and/or retaken, as necessary, in order to effectuate the foregoing. The Additional Bank Debt
may also have the benefit of guarantees and security provided, following the Acquisition,
potentially by certain members of the GPC Group, as a result of such GPC Group entities
granting guarantees and security in respect of the Amended Senior Secured Credit Facilities, |
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It is intended that the Additional Bank Debt will not be drawn down until the date of the
Acquisition, however the Credit Agreement Amendment will allow for such funds either (i)
to be made available as delayed draw term loans that would be funded on the date of the
Acquisition or (ii) to be drawn down into escrow prior to the date of
the Acquisition. |
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If the Additional Bank Debt is either made available as delayed draw term loans or is
drawn into escrow prior to the date of the Acquisition, the Company will not be required
to confirm its guarantees and security with respect to the Additional Bank Debt until such
time as either the delayed draw term loans are funded or the escrow is released
or otherwise terminated (the “Bank Escrow Arrangements”): |
| (g) |
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the incurrence of additional indebtedness pursuant to the terms described in the
Commitment Letter; |
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| (h) |
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the entry into the Facilities Documents (as such term is defined in the Commitment
Letter), including, without limitation, any credit agreements, intercreditor agreements,
security documents, indentures, registration rights agreements, purchase agreements,
notes, joinders or any other documents in connection with the Bridge Financing
Facilities or the conversion of any such Bridge Financing Facilities into term loans
and/or exchange notes as described in the Commitment Letter; |
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| (i) |
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the provision by certain members of the Reynolds Group (including the Company as
an existing guarantor) of certain affirmations, reaffirmations and/or confirmations that
the guarantees in place in respect of the Existing Secured Indebtedness and Existing
Notes continue in full force and effect, notwithstanding the Transactions (as defined
below), the Escrow and Merger Arrangements, the Bank Escrow Arrangements and,
in the case of the Senior Secured Credit Facilities, extend to the Additional Bank
Debt, the Amended Senior Secured Credit Facilities and the Bridge Financing
Facilities, if any, as applicable; |
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| (j) |
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the amendment, restatement, affirmation, re-affirmation, supplement, extension,
confirmation or release and retake of security, or grant of new or additional security
(which may be second, third or junior ranking) or other action in respect of collateral
under the applicable agreements, instruments or other documents creating security interests
in respect of the Existing Secured Indebtedness (collectively, the “Security
Documents”) in order to provide that such Security Documents (i) secure obligations
with respect to the New Secured Notes, the Additional Bank Debt and any secured Bridge
Financing Facilities, as applicable, on a pari passu basis with the Existing Secured
Indebtedness to the extent possible and (ii) continue to secure obligations in |
4
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respect of the Existing Secured indebtedness
(including after the consummation of the Escrow
and Merger Arrangements and the Bank Escrow
Arrangements); |
| (k) |
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the entry into any amendments, supplements, joinders, designations, confirmations or
other documents in connection with the first lien intercreditor agreement dated as of November
5, 2009, between, among others, The Bank of New York Mellon, as the collateral agent, Credit
Suisse AG, and the grantors from time to time party thereto and the representatives from time
to time party thereto as amended by Amendment No. 1 and Joinder Agreement, dated as of January
21, 2010 (as further amended, extended, restated or otherwise modified the FLICA”) to
the extent required in order to permit the New Secured Notes and/or the Additional Bank Debt
to be included as “Obligations” thereunder; |
| (l) |
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the entry into of any amendments, supplements, accessions, designations,
confirmations or other documents in connection with the intercreditor agreement dated May
11, 2007, as amended and/or restated, including, without limitation, as of (i) November 5,
2009 by an amendment and restatement agreement and (ii) November 5, 2010 by an amendment
agreement, both between, among others, RGHL as parent, Credit Suisse AG, Cayman Islands
Branch, as administrative agent and The Bank of New York Mellon as collateral agent,
senior secured notes trustee and high yield noteholders trustee (as such intercreditor
agreement may be further amended, extended, restated or otherwise modified, the “2007
ICA”); and |
| (m) |
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following the Acquisition, the possible accession by certain members of the GPC Group to
the Existing Financing Arrangements and the Transaction Documents (as defined below) as
guarantors and/or security providers. |
(collectively, the “Transactions”).
In order to effect the Transactions, it is intended that the Company enter into and/or approve, as
relevant, the following documents, (collectively, the “Transaction Documents”);
| (a) |
|
the documents relating to the Bridge Financing Facilities, including, without limitation, the
Facilities Documents, and any credit agreements, intercreditor agreements, security documents,
indentures, registration rights agreements, purchase agreements, notes, joinders, offering
material or any other documents in connection with the Bridge Financing Facilities or the
conversion of any such Bridge Financing Facilities into term loans and/or exchange notes as
described in the Commitment Letter; |
| (b) |
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the documents relating to the Amended Senior Secured Credit Facilities, the New Secured Notes
and the New Unsecured Notes, as more particularly described in Schedule 1; and |
| (c) |
|
the documents relating to the intercreditor arrangements in respect of Amended Senior Secured
Credit Facilities, the New Secured Notes, the New Unsecured Notes, the Existing Secured Notes
and the Existing Notes, as more particularly described in Schedule 2. |
5
II.
POWER OF ATTORNEY
The Company authorizes (bevollmächtigt) the person or persons listed in Schedule 3 (the
“Authorized Signatories”) hereto, each of them individually, to act for and in the
name of the Company, and, in such capacity, to consider, settle, approve, execute or deliver the
following:
| 1. |
|
execution, delivery and performance of the Transaction Documents and any other documents
related thereto or required to be executed, delivered and performed in order to give effect to
the Acquisition and the Transactions, (including any notices, certificates, requests,
communications or other documents (together with the Transaction Documents, the
“Documents”): |
| 2. |
|
any subsequent amendments (including by way of an amending agreement) to any Documents; |
| 3. |
|
supplement, make alterations to and complete any blanks in any Documents (including, but not
limited to, altering or completing details of the parties), and |
| 4. |
|
to do anything and consider, settle, approve, sign, agree, execute, deliver and/or issue any
documents that, in the opinion of the relevant Authorized Signatory, may be necessary,
expedient or incidental to any transaction or dealing contemplated by any of the Documents. |
In connection with the transactions, the Company hereby declares as follows:
The Authorized Signatories — each of them individually — are (i) released from the restrictions of
Section 181 second alternative German Civil Code (BGB) and to the extent legally possible according
to Section 181 first alternative German Civil Code (BGB) and (ii) authorized to grant sub-powers-of
attorney to third parties of their choice and with the same scope as this power-of-attomey and to
include the release from the restrictions of Section 181 German Civil Code (BGB). For the avoidance
of doubt, this power of attorney is to be construed broadly. The liability of each Authorized
Signatory shall be limited to willful misconduct and gross negligence. The Company shall — upon
receipt of a first demand (auf erstes Anfordern) — indemnify (freistellen) each Authorized
Signatory against expenses, losses, liabilities, judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges in connection therewith) incurred
by, or on behalf of, an Authorized Signatory in connection with this Power of Attorney.
This Power of Attorney shall be governed by the laws of the Federal Republic of Germany.
[Unterschriftsseite folgt/signature page follows]
6
Place, Date: July 20, 2011
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SIG Beverages Germany GmbH
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By: |
/s/ Holger Dickers
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Name; Holger Dickers |
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Function: CEO/Managing Director |
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By: |
/s/ Joachim Frommherz
|
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Name: |
Joachim Frommherz |
|
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Function: CEO/Managing Director |
|
| |
Schedule 1
New Secured Notes
| |
1. |
|
The New Secured Notes Indenture, between, among others, the duly
appointed trustee for the New Secured Notes, the Escrow Issuers or Issuers
and the guarantors, or any accession, joinder or supplemental indenture
thereto, |
| |
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2. |
|
The Secured Notes Purchase Agreement, or any accession or joinder thereto, |
| |
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3. |
|
The Secured Notes Registration Rights Agreement, or any accession
or joinder thereto. |
| |
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4. |
|
Officer’s certificates in respect of the New Secured Notes and any
officer’s
certificates in respect of any opinion given in respect of the New Secured
Notes. |
New Unsecured Notes
| |
5. |
|
The New Unsecured Notes Indenture, between, among others, the duly
appointed trustee for the New Unsecured Notes, the Escrow Issuers or Issuers
and the guarantors, or any accession, joinder or supplemental indenture
thereto. |
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6. |
|
The Unsecured Notes Purchase Agreement, or any accession or joinder
thereto. |
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7. |
|
Unsecured Notes Registration Rights Agreement, or any accession or
joinder
thereto. |
| |
| |
8. |
|
Officer’s certificates in respect of the New Unsecured Notes and any
officer’s
certificates in respect of any opinion given in respect of the New Unsecured
Notes. |
Other Documents relating to the New Secured Notes, the New Unsecured Notes, and/or the Amended
Senior Secured Credit Facilities
| |
9. |
|
A confirmation, affirmation or re-affirmation agreement, between, among
others, certain of the Loan Parties, each duly appointed collateral agent under
the First Lien Intercreditor Agreement, Credit Suisse AG, as administrative
agent under the Senior Secured Credit Facilities, and The Bank of New York
Melton, as trustee under the 2009 Indenture and in other capacities, with
respect to the continuing security and/or guarantees in respect of the New
Secured Notes and/or the Additional Bank Debt (the “Reaffirmation
Agreement”), |
| |
| |
10. |
|
The Credit Agreement Amendment, and any ancillary and/or related
documents necessary to give effect to such amendments to the Senior
Secured Credit Agreement. |
| |
| |
11. |
|
the amendment, restatement, affirmation, re-affirmation, supplement,
creation, extension, confirmation or release and retake of security, or grant of
new or additional security (which may be second ranking) or other action in
respect of collateral under the applicable agreements, instruments or other
documents creating security interests, in particular: |
8
| |
• |
|
various confirmation, reaffirmation or amendment agreements
under German law (including such agreements that require notarial recording)
with respect to the continuing or amendment of the existing German security
agreements (the “German Confirmation Agreements”); |
| |
| |
• |
|
Any agreements under which the Company grants new security
such as new share pledge agreements or new account pledge agreements
(including such agreements that require notarial recording) (the “German
New Pledge Agreements”): |
| |
| |
• |
|
Any agreements under which the Company grants new
security under non-German law or confirms, reaffirms or amends existing
agreements including but not limited to share pledge agreements or interest
pledge agreements relating to any shares/interests in non-German subsidiaries
(including, without limitation, a Brazilian law amendment to a quota pledge
agreement over quotas in SIG Beverages Brasil Ltda.) (the “Non-German
Pledge Agreements”). |
| |
12. |
|
Any other document, instrument and/or agreement for the purpose of
confirming, affirming, retaking or Creating security in respect of the Additional
Bank Debt and/or the New Secured Notes. |
| |
| |
13. |
|
Any document, instrument and/or agreement for the purposes of
implementing, or required as a result of the implementation of, the Escrow and
Merger Arrangements and/or the Bank Escrow Arrangements, including any document,
instrument or agreement which amends or otherwise varies any security interest
and/or guarantee granted by the Company. |
| |
| |
14. |
|
Any letters, notices or agreements of appointment in favour of
certain related or unrelated persons to act as process agent on behalf of the
Company in respect of the Transactions. |
| |
| |
15. |
|
Any notices, certificates, requests, waivers, authorisations,
amendments, letter agreements, restatements, communications or other documents to
be made, executed or entered into in connection with the above and/or the
Transactions. |
9
SCHEDULE 2
| 1. |
|
Any agreements, amendments, supplements, joinders, certificates or other documents
required to be entered into in connection with the 2007 ICA.
|
| 2. |
|
Any agreements, amendments, supplements, joinders, certificates, designations,
confirmations or other documents required to be entered into in connection with the
FLICA including, without limitation, in order to permit the New Secured Notes
and/or Additional Bank Debt to be included as “Obligations” thereunder. |
10
Schedule 3
Authorised Signatories
| 1. |
|
Graeme Richard Hart |
| |
| 2. |
|
Bryce McCheyne Murray |
| |
| 3. |
|
Helen Dorothy Golding |
| |
| 4. |
|
Allen Philip Hugli |
| |
| 5. |
|
Gregory Alan Cole |
| |
| 6. |
|
Mark Dunkley |
| |
| 7. |
|
Cindi Lefari |
| |
| 8. |
|
Philip John Presnell West |
| |
| 9. |
|
Thomas James Degnan |
| |
| 10. |
|
Robert Bailey |
| |
| 11. |
|
Stephen David Pardy |
| |
| 12. |
|
Prudence Louise Wyllie |
| |
| 13. |
|
Chiara Francesca Brophy |
| |
| 14. |
|
Karen Michelle Mower |
| |
| 15. |
|
Jennie Blizard |
and the following attorneys-at-law of Debevoise & Plimpton LLP, all with its business address at
Taubenstr. 7-9, 60313 Frankfurt am Main, Germany:
| 1. |
|
Philipp von Holst |
| |
| 2. |
|
Dr. David Witzel |
| |
| 3. |
|
Klaudius Heda |
| |
| 4. |
|
Daniel Wiedmann |
11
EXHIBIT 1
COMMITMENT LETTER
12
Certified Copy
POWER OF ATTORNEY
SIG International Services GmbH
SIG International Services GmbH is a limited liability company (Gesellschaft mit beschränkter Haftung)
incorporated under the laws of Germany, with its registered seat in Linnich, registered with the
Commercial Register of the Local Court Düren under HR B 3925 (the “Company”).
I.
PREAMBLE
The Company is part of the Reynolds group of companies, which includes RGHL
(as defined below) and each of its subsidiaries (the “Reynolds Group”),
As part of the Reynolds Group, the Company is a guarantor and security provider in
respect of the Reynolds Group’s existing financing arrangements, including by:
| (a) |
|
providing a guarantee and security with respect to the senior secured credit agreement
(the “Senior Secured Credit Agreement”) dated as of November 5, 2009, between, among others,
Reynolds Group Holdings Limited (“RGHL”). the borrowers listed therein and Credit Suisse AG,
as amended, amended or restated, supplemented or otherwise modified from time to time
(the “Senior Secured Credit Facilities”); |
| |
| (b) |
|
providing a guarantee and security with respect to the 7.75% senior secured notes due 2016
issued by members of the Reynolds Group in aggregate principal amounts of US$1,125,000,000
and €450,000,000 pursuant to an indenture dated as of November 5,2009 (the “2009 Notes”); |
| |
| (c) |
|
providing a guarantee and security with respect to the 7.125% senior secured notes due 2019
issued by members of the Reynolds Group in an aggregate principal amount of US$1,500,000,000
pursuant to an indenture dated as of October 15, 2010 (the “October 2010 Secured Notes”); and |
| |
| (d) |
|
providing a guarantee and security with respect to the 6,875% senior secured notes due 2021
issued by members of the Reynolds Group in an aggregate principal amount of US$1,000,000,000 pursuant
to an indenture dated as of February 1, 2011 (the “February 2011 Secured Notes”); |
(the 2009 Notes, the October 2010 Secured Notes and the February 2011 Secured Notes being together, the
“Existing, Secured Notes.” and together with the Senior Secured Credit Facilities, the “Existing Secured Indebtedness”),
| (e) |
|
incurring and providing a guarantee of certain notes issued by members of the
Reynolds Group, including (i) 8% senior notes due 2016 issued in an aggregate
principal amount of €480,000,000 pursuant to an indenture dated June 29, 2007, (ii)
9.5% senior subordinated notes due 2017 issued in an aggregate principal amount of
Є420,000,000 pursuant to an indenture dated June 29, 2007 (together with (i), the
“2007 Notes”), (iii) 8,5% senior notes due 2018 issued in an aggregate principal
amount of US$1,000,000,000 pursuant to an indenture dated May 4, 2010 (the “May
2010 Notes”), (iv) 9.0% senior notes due 2019 issued in an aggregate principal
amount of US$1,500,000,000 pursuant to an indenture dated October 15, 2010 (the
“October 2010 Senior Notes”) and (v) 8.250% senior notes due 2021 issued in an
aggregate principal amount of US$1,000,000,000 pursuant to an indenture dated
February 1, 2011 (the “February 2011 Senior Notes”) (the 2007 Notes, the May 2010 |
[Signature Page to SIG International Services GmbH Power of Attorney]
| |
|
Notes, the October 2010 Senior Notes and the February 2011 Senior Notes being together,
the “Existing Notes”); and |
| |
| (f) |
|
being party to the intercreditor arrangements in respect of the guarantees,
indebtedness and security described above (the “intercreditor Arrangements”), |
the Existing Secured Indebtedness, the Existing Notes and the Intercreditor Arrangements being,
together, the “Existing Financing Arrangements”,
It is currently intended that RGHL will indirectly acquire the GPC group of companies (the “GPC
Group”) through the merger of an indirect wholly owned subsidiary of RGHL with and into Graham
Packaging Company Inc. (“GPC”). with GPC surviving such merger and becoming an indirect
wholly owned subsidiary of RGHL (the “Acquisition”).
The Company has previously considered and approved the entry by the Company into the Senior Secured
Credit Agreement, as amended or otherwise modified from time to time;
RGHL has determined it may be necessary or advisable to incur additional indebtedness under the
Senior Secured Credit Facilities in order to partially fund the Acquisition, the associated costs
and transactions required to effect the Acquisition and for general corporate purposes, and the
Company is now considering entering into amendments to, and/or an amendment and restatement of, the
Senior Secured Credit Agreement, pursuant to which additional indebtedness would be incurred and
the proceeds made available under certain incremental facilities and subject to certain conditions
(the “Credit Agreement Amendment”).
RGHL has entered into a commitment letter, attached hereto as Exhibit l, (together with the
term sheets attached thereto, the “Commitment Letter”), pursuant to which certain lenders
have provided commitments for three bridge financing facilities comprised of: a senior secured bank
bridge facility, a senior secured notes bridge facility and a senior unsecured notes bridge
facility, each as more particularly described in the Commitment Letter (collectively, the
“Bridge Financing Facilities”), which may be used to partially fund the Acquisition and the
associated costs and transactions required to effect the Acquisition.
RGHL may determine, in lieu of or in combination with issuing the New Secured Notes (as defined
below), New Unsecured Notes (as defined below) and/or incurring (the Additional Bank Debt (as
defined below), that it is necessary or advisable to draw on one or more of the Bridge Financing
Facilities in order to fund all or part of the Acquisition.
In addition, RGHL and/or certain direct or indirect subsidiaries of RGHL intend to incur additional
indebtedness as set forth below. In connection with such incurrence of indebtedness, it is intended
that the Existing Financing Arrangements be supplemented and/or amended, by, among other things,
RGHL and/or certain of its direct or indirect subsidiaries doing one or more of the following:
| (a) |
|
the entry into of a new indenture (the “New Unsecured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new unsecured
notes by indirect subsidiaries of RGHL (the “New Unsecured Notes”), including the
issuance of the New Unsecured Notes and provision of related guarantees in respect of the New
Unsecured Notes by certain members of the Reynolds Group (including the Company, as
applicable) and, following the Acquisition, potentially by certain members of the GPC Group
(the “New Unsecured Notes Guarantees”); |
| |
| (b) |
|
the entry into of a new indenture (the “New Secured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new senior
secured notes by indirect subsidiaries of RGHL (the “New Secured Notes”). |
2
| |
|
including the issuance of the New Secured Notes and the provision of related guarantees
in respect of the New Secured Notes by certain members of the Reynolds Group (including
the Company, as applicable) and, following the Acquisition, potentially by certain
members of the GPC Group (the “New Secured Notes Guarantees”). |
| |
| |
|
The proceeds from the issuance of the New Unsecured Notes and the New Secured Notes may
be used to partially fund the Acquisition and the associated costs and transactions
required (including, without limitation, the repayment of existing indebtedness of GPC
Group and contractual payments to existing shareholders of GPC Group) to effect the
Acquisition and for general corporate purposes. |
| |
| |
|
It is expected that the Existing Secured Indebtedness and/or the Intercreditor
Arrangements will be amended, restated, extended, confirmed, affirmed, re-affirmed,
released and/or retaken, as necessary, in order to ensure that following the entry into
the New Secured Notes Indenture, the New Secured Notes will have the benefit of (i)
guarantees from substantially the same guarantors (including the Company) that guarantee
the Existing Secured Indebtedness and, following the Acquisition, potentially from
certain members of the GPC Group and (ii) substantially the same collateral provided in
respect of the Existing Secured Indebtedness and, following the Acquisition, potentially
security provided by certain members of the GPC Group. |
| |
| |
|
The New Secured Notes and the New Unsecured Notes may be issued into escrow prior to the
date of the Acquisition. If the New Secured Notes or the New Unsecured Notes are issued
into escrow, the Company will not be required to provide its guarantees and security
with respect to the New Secured Notes or the New Unsecured Notes (as relevant) until
such time as the escrow is released. It is currently intended that if the New Secured
Notes or the New Unsecured Notes are issued into escrow the relevant escrow issuers,
which shall be affiliates of RGHL (the “Escrow Issuers”), will merge or
otherwise be consolidated with Reynolds Group Issuer Inc., a Delaware corporation,
Reynolds Group Issuer LLC, a Delaware limited liability company, and Reynolds Group
Issuer (Luxembourg) S.A., a société anonyme (a public limited liability company) under
the laws of Luxembourg (the “Existing Issuers”) or any other affiliates of RGHL
which may issue the New Secured Notes and the New Unsecured Notes (together with the
Existing Issuers, (the “Issuers”) on the release of the escrow, with the Issuers
being the surviving entities (the “Escrow and Merger Arrangements”). |
| |
| |
|
It is currently intended that if the New Secured Notes or the New Unsecured Notes are not
issued into escrow, the New Secured Notes and the New Unsecured Notes may be issued by
the Issuers; |
| |
| (c) |
|
the entry into of one or more registration rights agreements or joinders thereto by certain
members of the Reynolds Group (including the Company) and, following the Acquisition,
potentially by certain members of the GPC Group pursuant to which such entities agree to
register the re-sale of the New Unsecured Notes and the New Secured Notes and/or register the
issuance of the Unsecured Exchange Securities and the Secured Exchange Securities (each as
defined below) (the “Unsecured Notes Registration Rights Agreement” and the
“Secured Notes Registration Rights Agreement”, respectively); |
| |
| (d) |
|
the entry into of one or more purchase agreements or joinders thereto providing for the
issuance and sale of the New Unsecured Notes and the New Secured Notes and related guarantees
by certain members of me Reynolds Group (including the Company) and, following the
Acquisition, potentially by certain members of the GPC |
3
| |
|
Group (the “Unsecured Notes Purchase- Agreement” and the “Secured
Notes Purchase Agreement”, respectively); |
| (e) |
|
the entry into the Credit Agreement Amendment and/or joinders thereto; |
| |
| (f) |
|
the incurrence of additional indebtedness (the “Additional Bank Debt”) under
the Senior Secured Credit Facilities as amended by the Credit Agreement Amendment {the
“Amended Senior Secured Credit Facilities”) which will have the
benefit of substantially the same guarantees and security as already provided in respect of
the Senior Secured Credit Facilities and it is expected that the security and guarantees
provided in respect of the Senior Secured Credit Facilities and/or the Intercreditor
Arrangements will be amended, restated, extended, affirmed, re-affirmed, confirmed, released
and/or retaken, as necessary, in order to effectuate the foregoing. The Additional Bank Debt
may also have the benefit of guarantees and security provided, following the Acquisition,
potentially by certain members of the GPC Group, as a result of such GPC Group entities
granting guarantees and security in respect of the Amended Senior Secured Credit Facilities. |
| |
| |
|
It is intended that the Additional Bank Debt will not be drawn down until the date of
the Acquisition, however the Credit Agreement Amendment will allow for such funds either
(i) to be made available as delayed draw term loans that would be funded on the date of
the Acquisition or (ii) to be drawn down into escrow prior to the date of the
Acquisition, |
| |
| |
|
If the Additional Bank Debt is either made available as delayed draw term loans or is
drawn into escrow prior to the date of the Acquisition, the Company will not be required
to confirm its guarantees and security with respect to the Additional Bank Debt until
such time as either the delayed draw term loans are funded or the escrow is released or
otherwise terminated (the “Bank Escrow Arrangements”): |
| |
| (g) |
|
the incurrence of additional indebtedness pursuant to the terms described in the
Commitment Letter; |
| |
| (h) |
|
the entry into the Facilities Documents (as such term is defined in the Commitment
Letter), including, without limitation, any credit agreements, intercreditor agreements,
security documents, indentures, registration rights agreements, purchase agreements,
notes, joinders or any other documents in connection with the Bridge Financing
Facilities or the conversion of any such Bridge Financing Facilities into term loans
and/or exchange notes as described in the Commitment Letter; |
| |
| (i) |
|
the provision by certain members of the Reynolds Group (including the Company as
an existing guarantor) of certain affirmations, reaffirmations and/or confirmations that
the guarantees in place in respect of the Existing Secured Indebtedness and Existing
Notes continue in full force and effect, notwithstanding the Transactions (as defined
below), the Escrow and Merger Arrangements, the Bank Escrow Arrangements and,
in the case of the Senior Secured Credit Facilities, extend to the Additional Bank
Debt, the Amended Senior Secured Credit Facilities and the Bridge Financing
Facilities, if any, as applicable; |
| |
| (j) |
|
the amendment, restatement, affirmation, re-affirmation, supplement, extension,
confirmation or release and retake of security, or grant of new or additional security
(which may be second, third or junior ranking) or other action in
respect of collateral under the applicable agreements, instruments or other documents
creating security interests in respect of the Existing Secured Indebtedness
(collectively, the “Security Documents”) in order to provide that such Security
Documents (i) secure obligations with respect to the New Secured Notes, the Additional
Bank Debt and any secured |
4
| |
|
Bridge Financing Facilities, as applicable, on a pari passu basis with the Existing
Secured Indebtedness to the extent possible and (ii) continue to secure obligations in
respect of the Existing Secured Indebtedness (including after the consummation of the
Escrow and Merger Arrangements and the Bank Escrow Arrangements); |
| (k) |
|
the entry into any amendments, supplements, joinders, designations, confirmations or
other documents in connection with the first lien intercreditor agreement dated as of November
5, 2009, between, among others, The Bank of New York Mellon, as the collateral agent, Credit
Suisse AG, and the grantors from time to time party thereto and the representatives from time
to time party thereto as amended by Amendment No. 1 and Joinder Agreement, dated as of January
21, 2010 (as further amended, extended, restated or otherwise modified the “FLICA”) to
the extent required in order to permit the New Secured Notes and/or the Additional Bank Debt
to be included as “Obligations” thereunder; |
| |
| (l) |
|
the entry into of any amendments, supplements, accessions, designations,
confirmations or other documents in connection with the intercreditor agreement dated
May 11, 2007, as amended and/or restated, including, without limitation, as of (i)
November 5, 2009 by an amendment and restatement agreement and (ii) November 5, 2010 by
an amendment agreement, both between, among others, RGHL as parent, Credit Suisse AG,
Cayman Islands Branch, as administrative agent and The Bank of New York Mellon as
collateral agent, senior secured notes trustee and high yield noteholders trustee (as
such intercreditor agreement may be further amended, extended, restated or otherwise
modified, the “2007 ICA”): and |
| |
| |
| (m) |
|
following the Acquisition, the possible accession by certain members of the GPC Group to
the Existing Financing Arrangements and the Transaction Documents (as defined below) as
guarantors and/or security providers. |
(collectively, the “Transactions”).
In order to effect the Transactions, it is intended that the Company enter into and/or approve, as
relevant, the following documents, (collectively, the “Transaction Documents”):
| (a) |
|
the documents relating to the Bridge Financing Facilities, including, without (imitation, the
Facilities Documents, and any credit agreements, intercreditor agreements, security documents,
indentures, registration rights agreements, purchase agreements, notes, joinders, offering
material or any other documents in connection with the Bridge Financing Facilities or the
conversion of any such Bridge Financing Facilities into term loans and/or exchange notes as
described in the Commitment Letter; |
| |
| (b) |
|
the documents relating to the Amended Senior Secured Credit Facilities, the New Secured Notes
and the New Unsecured Notes, as more particularly described in Schedule 1; and |
| |
| (c) |
|
the documents relating to the intercreditor arrangements in respect of Amended Senior Secured
Credit Facilities, the New Secured Notes, the New Unsecured Notes, the Existing Secured Notes
and the Existing Notes, as more particularly described in Schedule 2. |
5
II.
POWER OF ATTORNEY
The Company authorizes (bevollmächtigt) the person or persons listed in Schedule 3 (the
“Authorized Signatories”) hereto, each of them individually, to act for and in the name of
the Company, and, in such capacity, to consider, settle, approve, execute or deliver the following:
| 1. |
|
execution, delivery and performance of the Transaction Documents and any other documents
related thereto or required to be executed, delivered and performed in order to give effect to
the Acquisition and the Transactions, (including any notices, certificates, requests,
communications or other documents (together with the Transaction Documents, the
“Documents”): |
| |
| 2. |
|
any subsequent amendments (including by way of an amending agreement) to any Documents; |
| |
| 3. |
|
supplement, make alterations to and complete any blanks in any Documents (including, but not
limited to, altering or completing details of the parties), and |
| |
| 4. |
|
to do anything and consider, settle, approve, sign, agree, execute, deliver and/or issue any
documents that, in the opinion of the relevant Authorized Signatory, may be necessary,
expedient or incidental to any transaction or dealing contemplated by any of the Documents, |
In connection with the transactions, the Company hereby declares as follows:
The Authorized Signatories — each of them individually — are (i) released from the restrictions of
Section 181 second alternative German Civil Code (BGB) and to the extent legally possible according
to Section 181 first alternative German Civil Code (BGB) and (ii) authorized to grant sub-powers-of
attorney to third parties of their choice and with the same scope as this power-of attorney and to
include the release from the restrictions of Section 181 German Civil Code (BGB). For the avoidance
of doubt, this power of attorney is to be construed broadly. The liability of each Authorized
Signatory shall be limited to willful misconduct and gross negligence. The Company shall — upon
receipt of a first demand (auf erstes Anfordern) - indemnify (freistellen) each Authorized
Signatory against expenses, losses, liabilities, judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges in connection therewith) incurred
by, or on behalf of, an Authorized Signatory in connection with this Power of Attorney,
This Power of Attorney shall be governed by the laws of the Federal Republic of Germany,
[Unterschriftsseite folgt/signature page follows]
6
Place, Date: July 20, 2011
SIG International Services GmbH
| |
|
|
|
|
| |
|
| BY: |
/s/ Marco Haussener
|
|
| |
Name: |
Marco Haussener |
|
| |
Function: Managing Director |
|
| |
| BY: |
/s/ Holger Dickers
|
|
| |
Name: |
Holger Dickers |
|
| |
Function: Managing Director |
|
| |
Schedule 1
New Secured Notes
| |
1. |
|
The New Secured Notes Indenture, between, among others, the duly
appointed trustee for the New Secured Notes, the Escrow Issuers or Issuers and
the guarantors, or any accession, joinder or supplemental indenture thereto. |
| |
| |
2. |
|
The Secured Notes Purchase Agreement, or any accession or joinder
thereto. |
| |
| |
3. |
|
The Secured Notes Registration Rights Agreement, or any accession
or joinder thereto. |
| |
| |
4. |
|
Officer’s certificates in respect of the New Secured Notes and any
officer’s certificates in respect of any opinion given in respect of the New
Secured Notes, |
New secured Notes
| |
5. |
|
The New Unsecured Notes Indenture, between, among others, the duly
appointed trustee for the New Unsecured Notes, the Escrow Issuers or Issuers and
the guarantors, or any accession, joinder or supplemental indenture thereto. |
| |
| |
6. |
|
The Unsecured Notes Purchase Agreement, or any accession or joinder
thereto. |
| |
| |
7. |
|
Unsecured Notes Registration Rights Agreement, or any accession or
joinder thereto, |
| |
| |
8. |
|
Officer’s certificates in respect of the New Unsecured Notes and
any officer’s certificates in respect of any opinion given in respect of the New
Unsecured Notes. |
Other Documents relating to the New Secured Notes, the New Unsecured Notes, and/or the Amended
Senior Secured Credit Facilities
| |
9. |
|
A confirmation, affirmation or re-affirmation agreement, between,
among others, certain of the Loan Parties, each duly appointed collateral agent
under the First Lien Intercreditor Agreement, Credit Suisse AG, as
administrative agent under the Senior Secured Credit Facilities, and The
Bank of New York Mellon, as trustee under the 2009 Indenture and in
other capacities, with respect to the continuing security and/or guarantees
in respect of the New Secured Notes and/or the Additional Bank Debt
(the “Reaffirmation Agreement”). |
| |
| |
10. |
|
The Credit Agreement Amendment, and any ancillary and/or related
documents necessary to give effect to such amendments to the Senior Secured
Credit Agreement. |
| |
| |
11. |
|
the amendment, restatement, affirmation, re-affirmation,
supplement, creation, extension, confirmation or release and retake of security,
or grant of new or additional security (which may be second ranking) or
|
8
| |
|
|
Other action in respect of collateral under the applicable agreements, instruments or
other documents creating security interests, in particular; |
| |
| |
• |
|
various confirmation, reaffirmation or amendment agreements under German law
(including such agreements that require notarial recording) with respect to the continuing
or amendment of the existing German security agreements (the “German Confirmation
Agreements”); |
| |
| |
• |
|
Any agreements under which the Company grants new security such as new share pledge
agreements or new account pledge agreements (including such agreements that require
notarial recording) (the “German New Pledge Agreements”); |
| |
| |
• |
|
Any agreements under which the Company grants new security under non-German law or
confirms, reaffirms or amends existing agreements including but not limited to share
pledge agreements or interest pledge agreements relating to any shares/interests in
non-German subsidiaries (the “Non-German Pledge Agreements”). |
| |
| |
12. |
|
Any other document, instrument and/or agreement for the purpose of confirming, affirming,
retaking or creating security in respect of the Additional Bank Debt and/or the New Secured
Notes. |
| |
| |
13. |
|
Any document, instrument and/or agreement for the purposes of implementing, or required as a
result of the implementation of, the Escrow and Merger Arrangements and/or the Bank Escrow
Arrangements, including any document, instrument or agreement which amends or otherwise varies
any security interest and/or guarantee granted by the Company. |
| |
| |
14. |
|
Any letters, notices or agreements of appointment in favour of certain related or unrelated
persons to act as process agent on behalf of the Company in respect of the Transactions. |
| |
| |
15. |
|
Any notices, certificates, requests, waivers, authorisations, amendments, letter agreements,
restatements, communications or other documents to be made, executed or entered into in
connection with the above and/or the Transactions. |
9
SCHEDULE 2
| 1. Any agreements, amendments, supplements, joinders, certificates or other documents
required to be entered into in connection with the 2007 JCA, |
| |
| 2. |
|
Any agreements, amendments, supplements, joinders, certificates, designations,
confirmations or other documents required to be entered into in connection with the
FLICA including, without Limitation, in order to permit the New Secured Notes
and/or Additional Bank Debt to be included as “Obligations” thereunder. |
10
Schedule 3
Authorised Signatories
| 1. |
|
Graeme Richard Hart |
| |
| 2. |
|
Bryce McCheyne Murray |
| |
| 3. |
|
Helen Dorothy Golding |
| |
| 4. |
|
Allen Philip Hugli |
| |
| 5. |
|
Gregory Alan Cole |
| |
| 6. |
|
Mark Dunkley |
| |
| 7. |
|
Cindi Lefari |
| |
| 8. |
|
Philip John Presnetll West |
| |
| 9. |
|
Thomas James Degnan |
| |
| 10. |
|
Robert Bailey |
| |
| 11. |
|
Stephen David Pardy |
| |
| 12. |
|
Prudence Louise Wyllie |
| |
| 13. |
|
Chiara Francesca Brophy |
| |
| 14. |
|
Karen Michelle Mower |
| |
| 15. |
|
Jennie Blizard |
and the following attorneys-at-law of Debevoise & Plimpton LLP, all with its business
address at Taubenstr. 7-9, 60313 Frankfurt am Main, Germany:
| 1. |
|
Philipp von Holst |
| |
| 2. |
|
Dr. David Witzel |
| |
| 3. |
|
Klaudius Heda |
| |
| 4. |
|
Daniel Wiedmann |
11
EXHIBIT I
COMMITMENT LETTER
12
Certified Copy
POWER OF ATTORNEY
SIG Information Technology GmbH
SIG Information Technology GmbH is a limited liability company (Gesellschaft mit beschränker
Haftung) incorporated under the laws of Germany, with its registered seat in Linnich, registered
with the Commercial Register of the Local Court Düren under HR B 4050 (the “Company”).
I.
PREAMBLE
The Company is part of the Reynolds group of companies, which includes RGHL (as defined below) and
each of its subsidiaries (the “Reynolds Group”).
As part of the Reynolds Group, the Company is a guarantor and security provider in respect of the
Reynolds Group’s existing financing arrangements, including by:
| (a) |
|
providing a guarantee and security with respect to the senior secured credit agreement (the
“Senior Secured Credit Agreement”) dated as of November 5, 2009, between, among others,
Reynolds Group Holdings Limited (“RGHL”), the borrowers listed therein and Credit Suisse AG,
as amended, amended or restated, supplemented or otherwise modified from time to time (the
“Senior Secured Credit Facilities”); |
| |
| (b) |
|
providing a guarantee and security with respect to the 7.75% senior secured notes due 2016
issued by members of the Reynolds Group in aggregate principal amounts of US$1,125,000,000 and
€450,000,000 pursuant to an indenture dated as of November 5, 2009 (the “2009 Notes”). |
| |
| (c) |
|
providing a guarantee and security with respect to the 7.125% senior secured notes due 2019
issued by members of the Reynolds Group in an aggregate principal amount of US$1,500,000,000
pursuant to an indenture dated as of October 15, 2010 (the “October 2010 Secured
Notes”) and |
| |
| (d) |
|
providing a guarantee and security with respect to the 6.875% senior secured notes due 2021
issued by members of the Reynolds Group in an aggregate principal amount of US$1,000,000,000
pursuant to an indenture dated as of February 1, 2011 (the “February 2011 Secured
Notes”). |
(the 2009 Notes, the October 2010 Secured Notes and the February 2011 Secured Notes being together,
the “Existing Secured Notes.” and together with the Senior Secured Credit Facilities, the
“Existing Secured Indebtedness”).
| (e) |
|
incurring and providing a guarantee of certain notes issued by members of the
Reynolds Group, including (i) 8% senior notes due 2016 issued in an aggregate
principal amount of €480,000,000 pursuant to an indenture dated June 29, 2007, (ii)
9.5% senior subordinated notes due 2017 issued in an aggregate principal amount of
€420,000,000 pursuant to an indenture dated June 29, 2007 (together with (i), the
“2007 Notes”), (iii) 8.5% senior notes due 2018 issued in an aggregate principal
amount of US$1,000,000,000 pursuant to an indenture dated May 4, 2010 (the “May
2010 Notes”) (iv) 9.0% senior notes due 2019 issued in an aggregate principal
amount of US$1,500,000,000 pursuant to an indenture dated October 15, 2010 (the
“October 2010 Senior Notes”) and (v) 8.250% senior notes due 2021 issued in an
aggregate principal amount of US$1,000,000,000 pursuant to an indenture dated
February 1, 2011 (the “February 2011 Senior Notes”) (the 2007 Notes, the
May 2010 |
[Signature Page to SIG Information Technology GmbH Power of Attorney]
| |
|
Notes, the October 2010 Senior Notes and the February 2011 Senior Notes being
together, the “Existing Notes”); and |
| |
| (f) |
|
being party to the intercreditor arrangements in respect of the guarantees,
indebtedness and security described above (the “Intercreditor Arrangements”), |
| |
| the Existing Secured Indebtedness, the Existing Notes and the Intercreditor Arrangements being,
together, the “Existing Financing Arrangements”. |
It is currently intended that RGHL will indirectly acquire the GPC group of companies (the “GPC
Group”) through the merger of an indirect wholly owned subsidiary of RGHL with and into Graham
Packaging Company Inc. (“GPC”), with GPC surviving such merger and becoming an indirect
wholly owned subsidiary of RGHL (the “Acquisition”).
The Company has previously considered and approved the entry by the Company into the Senior Secured
Credit Agreement, as amended or otherwise modified from time to time;
RGHL has determined it may be necessary or advisable to incur additional indebtedness under the
Senior Secured Credit Facilities in order to partially fund the Acquisition, the associated costs
and transactions required to effect the Acquisition and for general corporate purposes, and the
Company is now considering entering into amendments to, and/or an amendment and restatement of, the
Senior Secured Credit Agreement, pursuant to which additional indebtedness would be incurred and
the proceeds made available under certain incremental facilities and subject to certain conditions
(the “Credit Agreement Amendment”).
RGHL has entered into a commitment letter, attached hereto as Exhibit I. (together with the
term sheets attached thereto, the “Commitment Letter”), pursuant to which certain lenders
have provided commitments for three bridge financing facilities comprised of: a senior secured bank
bridge facility, a senior secured notes bridge facility and a senior unsecured notes bridge
facility, each as more particularly described in the Commitment Letter (collectively, the
“Bridge Financing Facilities”), which may be used to partially fund the Acquisition and the
associated costs and transactions required to effect the Acquisition.
RGHL may determine, in lieu of or in combination with issuing the New Secured Notes (as defined
below), New Unsecured Notes (as defined below) and/or incurring the Additional Bank Debt (as
defined below), that it is necessary or advisable to draw on one or more of the Bridge Financing
Facilities in order to fund all or part of the Acquisition,
In addition, RGHL and/or certain direct or indirect subsidiaries of RGHL intend to incur additional
indebtedness as set forth below. In connection with such incurrence of indebtedness, it is intended
that the Existing Financing Arrangements be supplemented and/or amended, by, among other things,
RGHL and/or certain of its director indirect subsidiaries doing one or more of the following:
| (a) |
|
the entry into of a new indenture (the “New Unsecured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new unsecured
notes by indirect subsidiaries of RGHL (the “New Unsecured Notes”), including the
issuance of the New Unsecured Notes and provision of related guarantees in respect of the New
Unsecured Notes by certain members of the Reynolds Group (including the Company, as
applicable) and, following the Acquisition, potentially by certain members of the GPC Group
(the “New Unsecured Notes Guarantees”); |
| |
| (b) |
|
the entry into of a new indenture (the “New Secured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new senior
secured notes by indirect subsidiaries of RGHL (the “New Secured Notes”), |
2
| |
|
including the issuance of the New Secured Notes and the provision of related guarantees in respect
of the New Secured Notes by certain members of the Reynolds Group (including the Company, as
applicable) and, following the Acquisition, potentially by certain members of the GPC Group (the
“New Secured Notes Guarantees”). |
| |
| |
|
The proceeds from the issuance of the New Unsecured Notes and the New Secured Notes may be
used to partially fund the Acquisition and the associated costs and transactions required
(including, without limitation, the repayment of existing indebtedness of GPC Group and
contractual payments to existing shareholders of GPC Group) to effect the Acquisition and
for general corporate purposes. |
| |
| |
|
It is expected that the Existing Secured Indebtedness and/or the Intercreditor
Arrangements will be amended, restated, extended, confirmed, affirmed, re-affirmed,
released and/or retaken, as necessary, in order to ensure that following the entry into
the New Secured Notes indenture, the New Secured Notes will have the benefit of (i)
guarantees from substantially the same guarantors (including the Company) that guarantee
the Existing Secured Indebtedness and, following the Acquisition, potentially from certain
members of the GPC Group and (ii) substantially the same collateral provided in respect of
the Existing Secured Indebtedness and, following the Acquisition, potentially security
provided by certain members of the GPC Group. |
| |
| |
|
The New Secured Notes and the New Unsecured Notes may be issued into escrow prior to the
date of the Acquisition. If the New Secured Notes or the New Unsecured Notes are issued
into escrow, the Company will not be required to provide its guarantees and security with
respect to the New Secured Notes or the New Unsecured Notes (as relevant) until such time
as the escrow is released. It is currently intended that if the New Secured Notes or the
New Unsecured Notes are issued into escrow the relevant escrow issuers, which shall be
affiliates of RGHL (the “Escrow Issuers”), will merge or otherwise be consolidated
with Reynolds Group Issuer Inc., a Delaware corporation, Reynolds Group Issuer LLC, a
Delaware limited liability company, and Reynolds Group Issuer (Luxembourg) S.A., a
société anonyme (a public limited liability company) under the laws of Luxembourg (the
“Existing Issuers”) or any other affiliates of RGHL which may issue the New
Secured Notes and the New Unsecured Notes (together with the Existing Issuers, the
“Issuers”) on the release of the escrow, with the Issuers being the surviving entities
(the “Escrow and Meger Arrangements”). |
| |
| |
|
It is currently intended that if the New Secured Notes or the New Unsecured Notes are not
issued into escrow, the New Secured Notes and the New Unsecured Notes may be issued by the
Issuers; |
| |
| (c) |
|
the entry into of one or more registration rights agreements or joinders thereto by certain
members of the Reynolds Group (including the Company) and, following the Acquisition,
potentially by certain members of the GPC Group pursuant to which such entities agree to
register the re-sale of the New Unsecured Notes and the New Secured Notes and/or register the
issuance of the Unsecured Exchange Securities and the Secured Exchange Securities (each as
defined below) (the “Unsecured Notes Registration Rights Agreement” and the
“Secured Notes Registration Rights Agreement”, respectively); |
| |
| (d) |
|
the entry into of one or more purchase agreements or joinders thereto providing for the
issuance and sale of the New Unsecured Notes and the New Secured Notes and related guarantees
by certain members of the Reynolds Group (including the Company) and, following the
Acquisition, potentially certain members of the GPC |
3
| |
|
Group (the “Unsecured Notes Purchase Agreement” and the “Secured Notes Purchase
Agreement”, respectively); |
| |
| (e) |
|
the entry into the Credit Agreement Amendment and/or joinders thereto; |
| |
| (f) |
|
the incurrence of additional indebtedness (the “Additional Bank Debt”) under the
Senior Secured Credit Facilities as amended by the Credit Agreement Amendment (the
“Amended Senior Secured Credit Facilities”) which will have the benefit of
substantially the same guarantees and security as already provided in respect of the Senior
Secured Credit Facilities and it is expected that the security and guarantees provided in
respect of the Senior Secured Credit Facilities and/or the Intercreditor Arrangements will be
amended, restated, extended, affirmed, re-affirmed, confirmed, released and/or retaken, as
necessary, in order to effectuate the foregoing. The Additional Bank Debt may also have the
benefit of guarantees and security provided, following the Acquisition, potentially by certain
members of the GPC Group, as a result of such GPC Group entities granting guarantees and
security in respect of the Amended Senior Secured Credit Facilities. |
| |
| |
|
It is intended that the Additional Bank Debt will not be drawn down until the date of the
Acquisition, however the Credit Agreement Amendment will allow for such funds either (i)
to be made available as delayed draw term loans that would be funded on the date of the
Acquisition or (ii) to be drawn down into escrow prior to the date of the Acquisition. |
| |
| |
|
If the Additional Bank Debt is either made available as delayed draw term loans or is
drawn into escrow prior to the date of the Acquisition, the Company will not be required
to confirm its guarantees and security with respect to the Additional Bank Debt until such
time as either the delayed draw term loans are funded or the escrow is released or
otherwise terminated (the “Bank Escrow Arrangements”); |
| |
| (g) |
|
the incurrence of additional indebtedness pursuant to the terms described in the Commitment Letter; |
| |
| (h) |
|
the entry into the Facilities Documents (as such term is defined in the Commitment
Letter), including, without limitation, any credit agreements, intercreditor agreements,
security documents, indentures, registration rights agreements, purchase agreements,
notes, joinders or any other documents in connection with the Bridge Financing
Facilities or the conversion of any such Bridge Financing Facilities into term loans
and/or exchange notes as described in the Commitment Letter; |
| |
| (i) |
|
the provision by certain members of the Reynolds Group (including the Company as
an existing guarantor) of certain affirmations, reaffirmations and/or confirmations that
the guarantees in place in respect of the Existing Secured Indebtedness and Existing
Notes continue in full force and effect, notwithstanding the Transactions (as defined
below), the Escrow and Merger Arrangements, the Bank Escrow Arrangements and,
in the case of the Senior Secured Credit Facilities, extend to the Additional Bank
Debt, the Amended Senior Secured Credit Facilities and the Bridge Financing
Facilities, if any, as applicable; |
| |
| (j) |
|
the amendment, restatement, affirmation, re-affirmation, supplement, extension, confirmation or release and retake of security, or grant of new or additional security
(which may be second, third or junior ranking) or other action in respect of collateral
under the applicable agreements, instruments or other documents creating security interests
in respect of the Existing Secured Indebtedness (collectively, the “Security
Documents”) in order to provide that such Security Documents (i) secure obligations
with respect to the New Secured Notes, the Additional Bank Debt and any secured |
4
| |
|
Bridge Financing Facilities, as applicable, on a pari passu basis with the Existing
Secured Indebtedness to the extent possible and (ii) continue to secure obligations in
respect of the Existing Secured Indebtedness (including after the consummation of the
Escrow and Merger Arrangements and the Bank Escrow Arrangements); |
| (k) |
|
the entry into any amendments, supplements, joinders, designations, confirmations or
other documents in connection with the first lien intercreditor agreement dated as of November
5, 2009, between, among others, The Bank of New York Mellon, as the collateral agent, Credit
Suisse AG, and the grantors from time to time party thereto and the representatives from time
to time party thereto as amended by Amendment No. 1 and Joinder Agreement, dated as of January
21, 2010 (as further amended, extended, restated or otherwise modified the “FLICA”) to the
extent required in order to permit the New Secured Notes and/or the Additional Bank Debt to be
included as “Obligations” thereunder; |
| |
| (1) |
|
the entry into of any amendments, supplements, accessions, designations, confirmations or other documents in connection with the intercreditor agreement dated May
11, 2007, as amended and/or restated, including, without limitation, as of (i) November
5,2009 by an amendment and restatement agreement and (ii) November 5, 2010 by an amendment
agreement, both between, among others, RGHL as parent, Credit Suisse AG, Cayman Islands
Branch, as administrative agent and The Bank of New York Mellon as collateral agent,
senior secured notes trustee and high yield noteholders trustee (as such intercreditor
agreement may be further amended, extended, restated or otherwise modified, the “2007
ICA”); and |
| |
| (m) |
|
following the Acquisition, the possible accession by certain members of the GPC Group to
the Existing Financing Arrangements and the Transaction Documents (as defined below) as
guarantors and/or security providers. |
(collectively, the “Transactions”).
In order to effect the Transactions, it is intended that the Company enter into and/or approve, as
relevant, the following documents, (collectively, the “Transaction Documents”):
| (a) |
|
the documents relating to the Bridge Financing Facilities, including, without limitation, the
Facilities Documents, and any credit agreements, intercreditor agreements, security documents,
indentures, registration rights agreements, purchase agreements, notes, joinders, offering
material or any other documents in connection with the Bridge Financing Facilities or the
conversion of any such Bridge Financing Facilities into term loans and/or exchange notes as
described In the Commitment Letter; |
| |
| (b) |
|
the documents relating to the Amended Senior Secured Credit Facilities, the New Secured Notes
and the New Unsecured Notes, as more particularly described in Schedule 1; and |
| |
| (c) |
|
the documents relating to the intercreditor arrangements in respect of Amended Senior Secured
Credit Facilities, the New Secured Notes, the New Unsecured Notes, the Existing Secured Notes
and the Existing Notes, as more particularly described in Schedule 2. |
5
II.
POWER OF ATTORNEY
The Company authorizes (bevollmächtigt) the person or persons listed in Schedule 3 (the
“Authorized Signatories”) hereto, each of them individually, to act for and in the name of
the Company, and, in such capacity, to consider, settle, approve, execute or deliver the following:
| 1. |
|
execution, delivery and performance of the Transaction Documents and any other documents
related thereto or required to be executed, delivered and performed in order to give effect to
the Acquisition and the Transactions, (including any notices, certificates, requests,
communications or other documents (together with the Transaction Documents, the
“Documents”‘); |
| |
| 2. |
|
any subsequent amendments (including by way of an amending agreement) to any Documents; |
| |
| 3. |
|
supplement, make alterations to and complete any blanks in any Documents (including, but not
limited to, altering or completing details of the parties), and |
| |
| 4. |
|
to do anything and consider, settle, approve, sign, agree, execute, deliver and/or issue any
documents that, in the opinion of the relevant Authorized Signatory, may be necessary,
expedient or incidental to any transaction or dealing contemplated by any of the Documents. |
In connection with the transactions, the Company hereby declares as follows:
The Authorized Signatories — each of them individually — are (i) released from the restrictions of
Section 181 second alternative German Civil Code (BGB) and to the extent legally possible according
to Section 181 first alternative German Civil Code (BGB) and (ii) authorized to grant sub-powers-of
attorney to third parties of their choice and with the same scope as this power-of-attorney and to
include the release from the restrictions of Section 181 German Civil Code (BGB). For the avoidance
of doubt, this power of attorney is to be construed broadly, The liability of each Authorized
Signatory shall be limited to willful misconduct and gross negligence. The Company shall — upon
receipt of a first demand (auf erstes Anfordern) - indemnify (freistellen) each Authorized
Signatory against expenses, losses, liabilities, judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges in connection therewith) incurred
by, or on behalf of, an Authorized Signatory in connection with this Power of Attorney.
This Power of Attorney shall be governed by the laws of the Federal Republic of Germany,
[Unterschriftsseite folgt/signature page follows]
6
Place, Date: July 20, 2011
| |
|
|
|
|
SIG Information Technology GmbH
|
|
| |
By: |
/s/ Timo Snellman
|
|
| |
|
Name: |
Timo Snellman |
|
| |
|
Function: CBO / Managing Director |
|
| |
Schedule 1
New Secured Notes
| |
1. |
|
The New Secured Notes Indenture, between, among
others, the duly appointed trustee for the New Secured Notes, the Escrow
Issuers or Issuers and the guarantors, or any accession, joinder or
supplemental indenture thereto. |
| |
| |
2. |
|
The Secured Notes Purchase Agreement, or any accession or
joinder thereto, |
| |
| |
3. |
|
The Secured Notes Registration Rights Agreement, or any
accession or joinder thereto. |
| |
| |
4. |
|
Officer’s certificates in respect of the New Secured Notes
and any officer’s certificates in respect of any opinion given in respect of
the New Secured Notes. |
New Unsecured Notes
| |
5. |
|
The New Unsecured Notes Indenture, between, among others, the
duly appointed trustee for the New Unsecured Notes, the Escrow Issuers or
Issuers and the guarantors, or any accession, joinder or supplemental
indenture thereto. |
| |
| |
6. |
|
The Unsecured Notes Purchase Agreement, or any accession or
joinder thereto. |
| |
| |
7. |
|
Unsecured Notes Registration Rights Agreement, or any
accession or joinder thereto. |
| |
| |
8. |
|
Officer’s certificates in respect of the New Unsecured Notes
and any officer’s certificates in respect of any opinion given in respect of
the New Unsecured Notes. |
Other Documents relating to the New Secured Notes, the New Unsecured Notes, and/or the Amended
Senior Secured Credit Facilities
| |
9. |
|
A confirmation, affirmation or re-affirmation agreement,
between, among others, certain of the Loan Parties, each duly appointed collateral agent
under the First Lien Intercreditor Agreement, Credit Suisse AG, as administrative agent under the Senior Secured Credit Facilities, and The
Bank of New York Mellon, as trustee under the 2009 Indenture and in other capacities, with respect to the continuing security and/or guarantees
in respect of the New Secured Notes and/or the Additional Bank Debt (the “Reaffirmation Agreement”). |
| |
| |
10. |
|
The Credit Agreement Amendment, and any ancillary and/or
related documents necessary to give effect to such amendments to the Senior Secured Credit Agreement, |
| |
| |
11. |
|
the amendment, restatement, affirmation, re-affirmation,
supplement, creation, extension, confirmation or release and retake of
security, or grant of new or additional security (which may be second ranking)
or |
8
| |
|
|
other action in respect of collateral under the applicable agreements,
instruments or other documents creating security interests, in
particular: |
| |
| |
• |
|
various confirmation, reaffirmation or amendment
agreements under German taw (including such agreements that require
notarial recording) with respect to the continuing or amendment of the
existing German security agreements (the “German Confirmation
Agreements”): |
| |
| |
• |
|
Any agreements under which the Company grants new
security such as new share pledge agreements or new account pledge
agreements (including such agreements that require notarial recording)
(the “German New Pledge Agreements”); |
| |
| |
• |
|
Any agreements under which the Company grants new
security under non-German law or confirms, reaffirms or amends existing
agreements including but not limited to share pledge agreements or
interest pledge agreements relating to any shares/interests in non-German
subsidiaries (the “Non-German Pledee Agreements”), |
| |
12. |
|
Any other document, instrument and/or agreement for the
purpose of confirming, affirming, retaking or creating security in respect of
the Additional Bank Debt and/or the New Secured Notes. |
| |
| |
13. |
|
Any document, instrument and/or agreement for the purposes of
implementing, or required as a result of the implementation of, the Escrow and
Merger Arrangements and/or the Bank Escrow Arrangements, including any
document, instrument or agreement which amends or otherwise varies any
security interest and/or guarantee granted by the Company. |
| |
| |
14. |
|
Any letters, notices or agreements of appointment in favour
of certain related or unrelated persons to act as process agent on behalf of
the Company in respect of the Transactions, |
| |
| |
15. |
|
Any notices, certificates, requests, waivers, authorisations,
amendments, letter agreements, restatements, communications or other documents
to be made, executed or entered into in connection with the above and/or the
Transactions. |
9
SCHEDULE 2
1. Any agreements, amendments, supplements, joinders, certificates or other documents required to
be entered into in connection with the 2007 ICA,
| 2. |
|
Any agreements, amendments, supplements, joinders, certificates, designations, confirmations
or other documents required to be entered into in connection with the FLICA including, without
limitation, in order to permit the New Secured Notes and/or Additional Bank Debt to be
included as “Obligations” thereunder. |
10
Schedule 3
Authorised Signatories
1. Graeme Richard Hail
2. Bryce McCheyne Murray
3. Helen Dorothy Golding
4. Allen Philip Hugli
5. Gregory Alan Cole
6. Mark Dunkley
7. Cindi Lefarf
8. Philip John Presnell West
9. Thomas James Degnan
10. Robert Bailey
11. Stephen David Pardy
12. Prudence Louise Wyliie
13. Chiara Francescs Brophy
14. Karen Michelle Mower
15. Jennie Blizard
and the following attorneys-at-law of Debevoise & Plimpton LLP, all with its business
address at Taubenstr. 7-9,60313 Frankfurt am Main, Germany:
16. Philipp von Hoist
17. Dr. David Witzel
18. Klaudius Heda
19. Daniel Wiedmann
11
EXHIBIT 1
COMMITMENT LETTER
Certified Copy
POWER OF ATTORNEY
SIG Combibloc GmbH
SIG Combibloc GmbH is a limited liability company (Gesellschaft mit beschrtinkter Haftung)
incorporated under the laws of Germany, with its registered seat in Linnich, registered with the
Commercial Register of the Local Court Diiren under HR B 5182 (the “Company”).
I.
PREAMBLE
The Company is part of the Reynolds group of companies, which includes RGHL (as defined below) and
each of its subsidiaries (the “Reynolds Group”).
As part of the Reynolds Group, the Company is a guarantor and security provider in respect of the
Reynolds Group’s existing financing arrangements, including by;
| (a) |
|
providing a guarantee and security with respect to the senior secured credit agreement (the
“Senior Secured Credit Agreement”) dated as of November 5, 2009, between, among others, Reynolds Group Holdings Limited (“RGHL”). the borrowers listed therein and Credit Suisse AG,
as amended, amended or restated, supplemented or otherwise modified from time to time (the
“Senior Secured Credit Facilities”); |
| |
| (b) |
|
providing a guarantee and security with respect to the 7.75% senior secured notes due 2016
issued by members of the Reynolds Group in aggregate principal amounts of US$1,125,000,000 and
€450,000,000 pursuant to an indenture dated as of November 5, 2009 (the “2009 Notes”): |
| |
| (c) |
|
providing a guarantee and security with respect to the 7.125% senior secured notes due 2019
issued by members of the Reynolds Group in an aggregate principal amount of US$1,500,000,000
pursuant to an indenture dated as of October 15, 2010 (the “October 2010 Secured
Notes”): and |
| |
| (d) |
|
providing a guarantee and security with respect to the 6.875% senior secured notes due 2021
issued by members of the Reynolds Group in an aggregate principal amount of US$1,000,000,000
pursuant to an indenture dated as of February 1, 2011 (the “February 2011 Secured
Notes”); |
(the 2009 Notes, the October 2010 Secured Notes and the February 2011 Secured Notes being together,
the “Existing Secured Notes.” and together with the Senior Secured Credit Facilities, the
“Existing Secured Indebtedness”)
| (e) |
|
incurring and providing a guarantee of certain notes issued by members of the
Reynolds Group, including (i) 8% senior notes due 2016 issued in an aggregate
principal amount of €480,000,000 pursuant to an indenture dated June 29, 2007, (ii)
9,5% senior subordinated notes due 2017 issued in an aggregate principal amount of
€420,000,000 pursuant to an indenture dated June 29, 2007 (together with (i), the
“2007 Notes”), (iii) 8.5% senior notes due 2018 issued in an aggregate principal
amount of US$1,000,000,000 pursuant to an indenture dated May 4, 2010 (the “May 2010 Notes”), (iv) 9.0% senior notes due 2019 issued in an aggregate principal
amount of US$1,500,000,000 pursuant to an indenture dated October 15, 2010 (the
“October 2010 Senior Notes”) and (v) 8.250% senior notes due 2021 issued in an
aggregate principal amount of US$1,000,000,000 pursuant to an indenture dated
February 1, 2011 (the “February 2011 Senior Notes”) (the 2007 Notes, the May 2010 |
| |
|
Notes, the October 2010 Senior Notes and the February 2011 Senior Notes being together,
the “Existing Notes”): and |
| (f) |
|
being party to the intercreditor arrangements in respect of
the guarantees, indebtedness and security described above (the
“Intercreditor Arrangements”), |
the Existing Secured Indebtedness, the Existing Notes and the Intercreditor Arrangements being,
together, the “Existing Financing Arrangements”.
It is currently intended that RGHL will indirectly acquire the GPC group of companies (the “GPC
Group” through the merger of an indirect wholly owned subsidiary of RGHL with and into Graham
Packaging Company Inc. (“GPC”), with GPC surviving such merger and becoming an indirect
wholly owned subsidiary of RGHL (the “Acquisition”).
The Company has previously considered and approved the entry by the Company into the Senior Secured
Credit Agreement, as amended or otherwise modified from time to time;
RGHL has determined it may be necessary or advisable to incur additional indebtedness under the
Senior Secured Credit Facilities in order to partially fund the Acquisition, the associated costs
and transactions required to effect the Acquisition and for general corporate purposes, and the
Company is now considering entering into amendments to, and/or an amendment and restatement of, the
Senior Secured Credit Agreement, pursuant to which additional indebtedness would be incurred and
the proceeds made available under certain incremental facilities and subject to certain conditions
(the “Credit Agreement Amendment”).
RGHL has entered into a commitment letter, attached hereto as Exhibit 1. (together with the
term sheets attached thereto, the “Commitment Letter”), pursuant to which certain lenders
have provided commitments for three bridge financing facilities comprised of: a senior secured bank
bridge facility, a senior secured notes bridge facility and a senior unsecured notes bridge
facility, each as more particularly described in the Commitment Letter (collectively, the
“Bridge Financing Facilities”), which may be used to partially fund the Acquisition and the
associated costs and transactions required to effect the Acquisition.
RGHL may determine, in lieu of or in combination with issuing the New Secured Notes (as defined
below), New Unsecured Notes (as defined below) and/or incurring the Additional Bank Debt (as
defined below), that it is necessary or advisable to draw on one or more of the Bridge Financing
Facilities in order to fund all or part of the Acquisition.
In addition, RGHL and/or certain direct or indirect subsidiaries of RGHL intend to incur additional
indebtedness as set forth below. In connection with such incurrence of indebtedness, it is intended
that the Existing Financing Arrangements be supplemented and/or amended, by, among other things,
RGHL and/or certain of its direct or indirect subsidiaries doing one or more of the following:
| (a) |
|
the entry into of a new indenture (the “New Unsecured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new unsecured
notes by indirect subsidiaries of RGHL (the “New Unsecured Notes”), including the
issuance of the New Unsecured Notes and provision of related guarantees in respect of the New
Unsecured Notes by certain members of the Reynolds Group (including the Company, as
applicable) and, following the Acquisition, potentially by certain members of the GPC Group
(the “New Unsecured Notes Guarantees”); |
| |
| (b) |
|
the entry into of a new indenture (the “New Secured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new senior
secured notes by indirect subsidiaries of RGHL (the “New Secured Notes”), |
2
| |
|
including the issuance of the New Secured Notes and the provision of related guarantees
in respect of the New Secured Notes by certain members of the Reynolds Group (including
the Company, as applicable) and, following the Acquisition, potentially by certain
members of the GPC Group (the “New Secured Notes Guarantees”). |
| |
|
The proceeds from the issuance of the New Unsecured Notes and the New Secured Notes may
be used to partially fund the Acquisition and the associated costs and transactions
required (including, without limitation, the repayment of existing indebtedness of GPC
Group and contractual payments to existing shareholders of GPC Group) to effect the
Acquisition and for general corporate purposes. |
| |
| |
|
It is expected that the Existing Secured Indebtedness and/or the Intercreditor
Arrangements will be amended, restated, extended, confirmed, affirmed, re-affirmed,
released and/or retaken, as necessary, in order to ensure that following the entry into
the New Secured Notes Indenture, the New Secured Notes will have the benefit of (i)
guarantees from substantially the same guarantors (including the Company) that guarantee
the Existing Secured Indebtedness and, following the Acquisition, potentially from certain
members of the GPC Group and (ii) substantially the same collateral provided in respect of
the Existing Secured Indebtedness and, following the Acquisition, potentially security
provided by certain members of the GPC Group, |
| |
| |
|
The New Secured Notes and the New Unsecured Notes may be issued into escrow prior to the
date of the Acquisition. If the New Secured Notes or the New Unsecured Notes are issued
into escrow, the Company will not be required to provide its guarantees and security with
respect to the New Secured Notes or the New Unsecured Notes (as relevant) until such time
as the escrow is released, It is currently intended that if the New Secured Notes or the
New Unsecured Notes are issued into escrow the relevant escrow issuers, which shall be
affiliates of RGHL (the “Escrow Issuers”), will merge or otherwise be consolidated
with Reynolds Group Issuer Inc., a Delaware corporation, Reynolds Group Issuer LLC, a
Delaware limited liability company, and Reynolds Group Issuer (Luxembourg) S. A., a
société anonyme (a public limited liability company) under the laws of Luxembourg (the
“Existing Issuers”) or any other affiliates of RGHL which may issue the New
Secured Notes and the New Unsecured Notes (together with the Existing Issuers, the
“Issuers”) on the release of the escrow, with the Issuers being the surviving
entities (the “Escrow and Merger Arrangements”), |
| |
| |
|
It is currently intended that if the New Secured Notes or the New Unsecured Notes are not
issued into escrow, the New Secured Notes and the New Unsecured Notes may be issued by the
Issuers; |
| |
| (c) |
|
the entry into of one or more registration rights agreements or joinders thereto by certain
members of the Reynolds Group (including the Company) and, following the Acquisition,
potentially by certain members of the GPC Group pursuant to which such entities agree to
register the re-sale of the New Unsecured Notes and the New Secured Notes and/or register the
issuance of the Unsecured Exchange Securities and the Secured Exchange Securities (each as
defined below) (the “Unsecured Notes Registration Rights Agreement” and the
“Secured Notes Registration Rights Agreement”, respectively); |
| |
| (d) |
|
the entry into of one or more purchase agreements or joinders thereto providing for the
issuance and sale of the New Unsecured Notes and the New Secured Notes and related guarantees
by certain members of the Reynolds Group (including the Company) and, following the
Acquisition, potentially by certain members of the GPC |
3
| |
|
Group (the “Unsecured Notes Purchase Agreement” and the “Secured Notes
Purchase Agreement”, respectively); |
| (e) |
|
the entry into the Credit Agreement Amendment and/or joinders thereto; |
| |
| (f) |
|
the incurrence of additional indebtedness (the “Additional Bank Debt”) under
the Senior Secured Credit Facilities as amended by the Credit Agreement Amendment (the
“Amended Senior Secured Credit Facilities”) which will have the benefit of
substantially the same guarantees and security as already provided in respect of the Senior
Secured Credit Facilities and it is expected that the security and guarantees provided in
respect of the Senior Secured Credit Facilities and/or the Intercreditor Arrangements will be
amended, restated, extended, affirmed, re-affirmed, confirmed, released and/or retaken, as
necessary, in order to effectuate the foregoing, The Additional Bank Debt may also have the
benefit of guarantees and security provided, following the Acquisition, potentially by certain
members of the GPC Group, as a result of such GPC Group entities granting guarantees and
security in respect of the Amended Senior Secured Credit Facilities, |
| |
| |
|
It is intended that the Additional Bank Debt will not be drawn down until the date of the
Acquisition, however the Credit Agreement Amendment will allow for such funds either (i)
to be made available as delayed draw term loans that would be funded on the date of the
Acquisition or (ii) to be drawn down into escrow prior to the date of the Acquisition. |
| |
| |
|
If the Additional Bank Debt is either made available as delayed draw term loans or is
drawn into escrow prior to the date of the Acquisition, the Company will not be required
to confirm its guarantees and security with respect to the Additional Bank Debt until
such time as either the delayed draw term loans are funded or the escrow is released or
otherwise terminated (the “Bank Escrow Arrangements”); |
| |
| (g) |
|
the incurrence of additional indebtedness pursuant to the terms described in the
Commitment Letter; |
| |
| (h) |
|
the entry into the Facilities Documents (as such term is defined in the Commitment
Letter), including, without limitation, any credit agreements, intercreditor agreements,
security documents, indentures, registration rights agreements, purchase agreements,
notes, joinders or any other documents in connection with the Bridge Financing
Facilities or the conversion of any such Bridge Financing Facilities into term loans
and/or exchange notes as described in the Commitment Letter; |
| |
| (i) |
|
the provision by certain members of the Reynolds Group (including the Company as
an existing guarantor) of certain affirmations, reaffirmations and/or confirmations that
the guarantees in place in respect of the Existing Secured Indebtedness and Existing
Notes continue in full force and effect, notwithstanding the Transactions (as defined
below), the Escrow and Merger Arrangements, the Bank Escrow Arrangements and,
in the case of the Senior Secured Credit Facilities, extend to the Additional Bank
Debt, the Amended Senior Secured Credit Facilities and the Bridge Financing
Facilities, if any, as applicable; |
| |
| (j) |
|
the amendment, restatement, affirmation, re-affirmation, supplement, extension,
confirmation or release and retake of security, or grant of new or additional security
(which may be second, third or junior ranking) or other action in respect of collateral
under the applicable agreements, instruments or other documents creating security
interests in respect of the Existing Secured Indebtedness (collectively, the “Security
Documents”) in order to provide that such Security Documents (i) secure obligations
with respect to the New Secured Notes, the Additional Bank Debt and any secured |
4
| |
|
Bridge Financing Facilities, as applicable, on a pari passu basis with the Existing
Secured Indebtedness to the extent possible and (ii) continue to secure obligations in
respect of the Existing Secured Indebtedness (including after the consummation of the
Escrow and Merger Arrangements and the Bank Escrow Arrangements); |
| (k) |
|
the entry into any amendments, supplements, joinders, designations, confirmations or
other documents in connection with the first lien intercreditor agreement dated as of November
5, 2009, between, among others, The Bank of New York Mellon, as the collateral agent, Credit
Suisse AG, and the grantors from time to time party thereto and the representatives from time
to time party thereto as amended by Amendment No. 1 and Joinder Agreement, dated as of January
21, 2010 (as further amended, extended, restated or otherwise modified the “FLICA”) to
the extent required in order to permit the New Secured Notes and/or the Additional Bank Debt
to be included as “Obligations” thereunder; |
| |
| (1) |
|
the entry into of any amendments, supplements, accessions, designations,
confirmations or other documents in connection with the intercreditor agreement dated May
11, 2007, as amended and/or restated, including, without limitation, as of (i) November 5,
2009 by an amendment and restatement agreement and (ii) November 5, 2010 by an amendment
agreement, both between, among others, RGHL as parent, Credit Suisse AG, Cayman Islands
Branch, as administrative agent and The Bank of New York Mellon as collateral agent,
senior secured notes trustee and high yield noteholders trustee (as such intercreditor
agreement may be further amended, extended, restated or otherwise modified, the “2007
ICA”): and |
| |
| (m) |
|
following the Acquisition, the possible accession by certain members of the GPC Group to
the Existing Financing Arrangements and the Transaction Documents (as defined below) as
guarantors and/or security providers, |
(collectively, the “Transactions”).
In order to effect the Transactions, it is intended that the Company enter into and/or approve, as
relevant, the following documents, (collectively, the “Transaction Documents”);
| (a) |
|
the documents relating to the Bridge Financing Facilities, including, without limitation, the
Facilities Documents, and any credit agreements, intercreditor agreements, security documents,
indentures, registration rights agreements, purchase agreements, notes, joinders, offering
material or any other documents in connection with the Bridge Financing Facilities or the
conversion of any such Bridge Financing Facilities into term loans and/or exchange notes as
described in the Commitment Letter; |
| |
| (b) |
|
the documents relating to the Amended Senior Secured Credit Facilities, the New Secured Notes
and the New Unsecured Notes, as more particularly described in Schedule 1; and |
| |
| (a) |
|
the documents relating to the intercreditor arrangements in respect of Amended
Senior Secured Credit Facilities, the New Secured Notes, the New Unsecured Notes, the
Existing Secured Notes and the Existing Notes, as more particularly described in Schedule
2. |
5
II
POWER OF ATTORNEY
The Company authorizes (bevollmächtigt) the person or persons listed in Schedule 3 (the
“Authorized Signatories”) hereto, each of them individually, to act for and in the name of
the Company, and, in such capacity, to consider, settle, approve, execute or deliver the following:
| 2. |
|
execution, delivery and performance of the Transaction Documents and any other documents
related thereto or required to be executed, delivered and performed in order to give effect to
the Acquisition and the Transactions, (including any notices, certificates, requests,
communications or other documents (together with the Transaction Documents, the
“Documents”): |
| |
| 3. |
|
any subsequent amendments (including by way of an amending agreement) to any Documents; |
| |
| 4. |
|
supplement, make alterations to and complete any blanks in any Documents (including, but not
limited to, altering or completing details of the parties), and |
| |
| 5. |
|
to do anything and consider, settle, approve, sign, agree, execute, deliver and/or issue any
documents that, in the opinion of the relevant Authorized Signatory, may be necessary,
expedient or incidental to any transaction or dealing contemplated by any of the Documents. |
In connection with the transactions, the Company hereby declares as follows;
The Authorized Signatories. each of them individually — are (i) released from the restrictions of
Section 181 second alternative German Civil Code (BGB) and to the extent legally possible according
to Section 181 first alternative German Civil Code (BGB) and (ii) authorized to grant sub-powers-of
attorney to third parties of their choice and with the same scope as this power-of-attorney and to
include the release from the restrictions of Section 181 German Civil Code (BGB). For the avoidance
of doubt, this power of attorney is to be construed broadly. The liability of each Authorized
Signatory shall be limited to willful misconduct and gross negligence. The Company shall — upon
receipt of a first demand (auf erstes Anfordern) - indemnify (freistelkn) each Authorized Signatory
against expenses, losses, liabilities, judgments, fines, penalties and amounts paid in settlement
(including all interest, assessments and other charges in connection therewith) incurred by, or on
behalf of, an Authorized Signatory in connection with this Power of Attorney,
This Power of Attorney shall be governed by the laws of the Federal Republic of Germany.
lUnterschriftsseite folgt/signature page follows]
6
Place,
Date: July 20, 2011
SIG Combibloc GmbH
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|
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|
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|
|
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By: |
/s/ Dr. Thomas Kloubert
|
|
| |
|
Name: |
Dr. Thomas Kloubert |
|
| |
|
Function: Managing Director |
|
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|
|
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|
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|
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By: |
/s/ Oliver Betzer
|
|
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|
Name: |
Oliver Betzer |
|
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|
Function: Managing Director |
|
| |
Schedule 1
New Secured Notes
| |
1. |
|
The New Secured Notes Indenture, between, among others, the duly
appointed trustee for the New Secured Notes, the Escrow Issuers or Issuers and the
guarantors, or any accession, joinder or supplemental indenture thereto. |
| |
| |
2. |
|
The Secured Notes Purchase Agreement, or any accession or joinder
thereto. |
| |
| |
3. |
|
The Secured Notes Registration Rights Agreement, or any accession or
joinder thereto, |
| |
| |
4. |
|
Officer’s certificates in respect of the New Secured Notes and any
officer’s certificates in respect of any opinion given in respect of the New
Secured Notes. |
New Unsecured Notes
| |
5. |
|
The New Unsecured Notes Indenture, between, among others, the duly
appointed trustee for the New Unsecured Notes, the Escrow Issuers or Issuers and
the guarantors, or any accession, joinder or supplemental indenture thereto. |
| |
| |
6. |
|
The Unsecured Notes Purchase Agreement, or any accession or joinder
thereto, |
| |
| |
7. |
|
Unsecured Notes Registration Rights Agreement, or any accession or
joinder thereto. |
| |
| |
8. |
|
Officer’s certificates in respect of the New Unsecured Notes and any
officer’s certificates in respect of any opinion given in respect of the New
Unsecured Notes. |
Other Documents relating to the New Secured Notes, the New Unsecured Notes, and/or the Amended
Senior Secured Credit Facilities
| |
9. |
|
A confirmation, affirmation or re-affirmation agreement, between,
among others, certain of the Loan Parties, each duly appointed collateral agent
under the First Lien Intercreditor Agreement, Credit Suisse AG, as administrative
agent under the Senior Secured Credit Facilities, and The Bank of New York Mellon,
as trustee under the 2009 Indenture and in other capacities, with respect to the
continuing security and/or guarantees in respect of the New Secured Notes and/or
the Additional Bank Debt (the “Reaffirmation Agreement”). |
| |
| |
10. |
|
The Credit Agreement Amendment, and any ancillary and/or related
documents necessary to give effect to such amendments to the Senior Secured Credit
Agreement. |
| |
| |
11. |
|
the amendment, restatement, affirmation, re-affirmation, supplement,
creation, extension, confirmation or release and retake of security, or grant of
new or additional security (which may be second ranking) or |
8
| |
|
|
Other action in respect of collateral under the applicable agreements, instruments or
other documents creating security interests, in particular: |
| |
• |
|
various confirmation, reaffirmation or amendment agreements under German law
(including such agreements that require notarial recording) with respect to the continuing
or amendment of the existing German security agreements (the “German Confirmation
Agreements”): |
| |
| |
• |
|
Any agreements under which the Company grants new security such as new share pledge
agreements or new account pledge agreements (including such agreements that require
notarial recording) (the “German New Pledge Agreements”); |
| |
| |
• |
|
Any agreements under which the Company grants new security under non-German law or
confirms, reaffirms or amends existing agreements including but not limited to share
pledge agreements or interest pledge agreements relating to any shares/interests in
non-German subsidiaries (the “Non-German Pledge Agreements”). |
| |
12. |
|
Any other document, instrument and/or agreement for the purpose of confirming, affirming,
retaking or creating security in respect of the Additional Bank Debt and/or the New Secured
Notes. |
| |
| |
13. |
|
Any document, instrument and/or agreement for the purposes of implementing, or required as a
result of the implementation of, the Escrow and Merger Arrangements and/or the Bank Escrow
Arrangements, including any document, instrument or agreement which amends or otherwise varies
any security interest and/or guarantee granted by the Company, |
| |
| |
14. |
|
Any letters, notices or agreements of appointment in favour of certain related or unrelated
persons to act as process agent on behalf of the Company in respect of the Transactions. |
| |
| |
15. |
|
Any notices, certificates, requests, waivers, authorisations, amendments, letter agreements,
restatements, communications or other documents to be made, executed or entered into in
connection with the above and/or the Transactions. |
9
SCHEDULE 2
1. Any agreements, amendments, supplements, joinders, certificates or other documents
required to be entered into in connection with the 2007 ICA,
2. Any agreements, amendments, supplements, joinders, certificates, designations,
confirmations or other documents required to be entered into in connection with the
FLICA including, without limitation, in order to permit the New Secured Notes
and/or Additional Bank, Debt to be included as “Obligations” thereunder.
10
Schedule 3
Authorised Signatories
| 1. |
|
Graeme Richard Hart |
| |
| 2. |
|
Bryce McCheyne Murray |
| |
| 3. |
|
Helen Dorothy Golding |
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| 4. |
|
Allen Philip Hugli |
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| 5. |
|
Gregory Alan Cole |
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| 6. |
|
Mark Dunkley |
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| 7. |
|
Cindi Lefari |
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| 8. |
|
Philip John Presnell West |
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| 9. |
|
Thomas James Degnan |
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| 10. |
|
Robert Bailey |
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| 11. |
|
Stephen David Pardy |
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| 12. |
|
Prudence Louise Wyllie |
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| 13. |
|
Chiara Francesca Brophy |
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| 14. |
|
Karen Michelle Mower |
| |
| 15. |
|
Jennie Blizard |
and the following attorneys-at-law of Debevoise & Plimpton LLP, all with its business address at
Taubenstr. 7-9, 60313 Frankfurt am Main, Germany:
| 16. |
|
Philipp von Holst |
| |
| 17. |
|
Dr. David Witzel |
| |
| 18. |
|
Klaudius Heda |
| |
| 19. |
|
Daniel Wiedmann |
11
EXHIBIT 1
COMMITMENT LETTER
12
Certified Copy
POWER OF ATTORNEY
SIG Vietnam Beteiligungs-GmbH
SIG Vietnam Beteiligungs-GmbH is a limited liability company (Gesellschaft mit beschränkter
Haftung) incorporated under the laws of Germany, with its registered seat in Waldshut-Tiengen,
registered with the Commercial Register of the Local Court Freiburg i. Br, under HR B 621587 (the
“Company”).
I.
PREAMBLE
The Company is part of the Reynolds group of companies, which includes RGHL (as defined below) and
each of its subsidiaries (the “Reynolds Group”).
As part of the Reynolds Group, the Company is a guarantor and security provider in respect of the
Reynolds Group’s existing financing arrangements, including by:
| (a) |
|
providing a guarantee and security with respect to the senior secured credit agreement (the
“Senior Secured Credit Agreement”) dated as of November 5, 2009, between, among others,
Reynolds Group Holdings Limited (“RGHL”), the borrowers listed therein and Credit
Suisse AG, as amended, amended or restated, supplemented or otherwise modified from time to
time (the “Senior Secured Credit Facilities”); |
| |
| (b) |
|
providing a guarantee and security with respect to the 7.75% senior secured notes due 2016
issued by members of the Reynolds Group in aggregate principal amounts of US$1,125,000,000 and
€450,000,000 pursuant to an indenture dated as of November 5, 2009 (the “2009 Notes”); |
| |
| (c) |
|
providing a guarantee and security with respect to the 7.125% senior secured notes due 2019
issued by members of the Reynolds Group in an aggregate principal amount of US$1,500,000,000
pursuant to an indenture dated as of October 15,2010 (the “October 2010 Secured
Notes”); and |
| |
| (d) |
|
providing a guarantee and security with respect to the 6.875% senior secured notes due 2021
issued by members of the Reynolds Group in an aggregate principal amount of US$1,000,000,000
pursuant to an indenture dated as of February 1,2011 (the “February 2011 Secured
Notes”); |
(the 2009 Notes, the October 2010 Secured Notes and the February 2011 Secured Notes being together,
the “Existing Secured Notes,” and together with the Senior Secured Credit Facilities, the
“Existing Secured Indebtedness”),
| (e) |
|
incurring and providing a guarantee of certain notes issued by members of the
Reynolds Group, including (i) 8% senior notes due 2016 issued in an aggregate
principal amount of €480,000,000 pursuant to an indenture dated June 29, 2007, (ii)
9.5% senior subordinated notes due 2017 issued in an aggregate principal amount of
€420,000,000 pursuant to an indenture dated June 29, 2007 (together with (i), the
“2007 Notes”), (iii) 8.5% senior notes due 2018 issued in an aggregate principal
amount of US$1,000,000,000 pursuant to an indenture dated May 4, 2010 (the “May
2010 Notes”), (iv) 9.0% senior notes due 2019 issued in an aggregate principal
amount of US$1,500,000,000 pursuant to an indenture dated October 15, 2010 (the
“October 2010 Senior Notes”) and (v) 8.250% senior notes due 2021 issued in an
aggregate principal amount of US$1,000,000,000 pursuant to an indenture dated
February 1, 2011 (the “February 2011 Senior Notes”) (the 2007 Notes, the May 2010 |
| |
|
Notes, the October 2010 Senior Notes and the February 2010 Senior Notes being
together, the “Existing Notes”); and |
| |
(f) |
|
being party to the intercreditor arrangements in respect of the guarantees,
indebtedness and security described above (the “Intercreditor
Arrangements”). |
| |
|
the Existing Secured Indebtedness, the Existing Notes and the Intercreditor Arrangements being,
together, the “Existing Financing Arrangements”, |
| |
| |
|
It is currently intended that RGHL will indirectly acquire the GPC group of companies (the “GPC
Group”) through the merger of an indirect wholly owned subsidiary of RGHL with and into Graham
Packaging Company Inc. (“GPC”), with GPC surviving such merger and becoming an indirect wholly
owned subsidiary of RGHL (the “Acquisition”), |
| |
| |
|
The Company has previously considered and approved the entry by the Company into the Senior Secured
Credit Agreement, as amended or otherwise modified from time to time; |
| |
| |
|
RGHL has determined it may be necessary or advisable to incur additional indebtedness under the
Senior Secured Credit Facilities in order to partially fund the Acquisition, the associated costs
and transactions required to effect the Acquisition and for general corporate purposes, and the
Company is now considering entering into amendments to, and/or an amendment and restatement of, the
Senior Secured Credit Agreement, pursuant to which additional indebtedness would be incurred and the
proceeds made available under certain incremental facilities and subject to certain conditions (the
“Credit Agreement Amendment”). |
| |
| |
|
RGHL has entered into a commitment letter, attached hereto as Exhibit 1, (together with the term
sheets attached thereto, the “Commitment Letter”), pursuant to which certain lenders have
provided commitments for three bridge financing facilities comprised of: a senior secured bank
bridge facility, a senior secured notes bridge facility and a senior unsecured notes bridge
facility, each as more particularly described in the Commitment Letter (collectively, the
“Bridge Financing Facilities”), which may be used to partially fund the Acquisition and the
associated costs and transactions required to effect the Acquisition. |
| |
| |
|
RGHL may determine, in lieu of or in combination with issuing the New Secured Notes (as defined
below), New Unsecured Notes (as defined below) and/or incurring the Additional Bank Debt (as
defined below), that it is necessary or advisable to draw on one or more of the Bridge Financing
Facilities in order to fund all or part of the Acquisition. |
| |
| |
|
In addition, RGHL and/or certain direct or indirect subsidiaries of RGHL intend to incur additional
indebtedness as set forth below. In connection with such incurrence of indebtedness, it is intended
that the Existing Financing Arrangements be supplemented and/or amended, by, among other things,
RGHL and/or certain of its direct or indirect subsidiaries doing one or more of the following: |
| |
(a) |
|
the entry into of a new indenture (the “New Unsecured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new unsecured
notes by indirect subsidiaries of RGHL (the “New Unsecured Notes”), including the
issuance of the New Unsecured Notes and provision of related guarantees in respect of the New
Unsecured Notes by certain members of the Reynolds Group (including the Company, as
applicable) and, following the Acquisition, potentially by certain members of the GPC Group
(the “New Unsecured Notes Guarantees”); |
| |
| |
(b) |
|
the entry into of a new indenture (the “New Secured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new senior
secured notes by indirect subsidiaries of RGHL (the “New Secured Notes”), including
the issuance of the New Secured Notes and the provision of related |
| |
|
|
guarantees in respect of the New Secured Notes by certain members of the Reynolds
Group (including the Company, as applicable) and, following the Acquisition, potentially
by certain members of the GPC Group (the “New Secured Notes Guarantees”). |
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|
|
The proceeds from the issuance of the New Unsecured Notes and the New Secured Notes may be
used to partially fund the Acquisition and the associated costs and transactions required
(including, without limitation, the repayment of existing indebtedness of GPC
Group and contractual payments to existing shareholders of GPC Group) to effect the
Acquisition and for general corporate purposes. |
| |
| |
|
|
It is expected that the Existing Secured Indebtedness and/or the Intercreditor
Arrangements will be amended, restated, extended, confirmed, affirmed, re-affirmed,
released and/or retaken, as necessary, in order to ensure that following the entry into
the New Secured Notes Indenture, the New Secured Notes will have the benefit of (i)
guarantees from substantially the same guarantors (including the Company) that guarantee
the Existing Secured Indebtedness and, following the Acquisition, potentially from certain
members of the GPC Group and (ii) substantially the same collateral provided in respect of
the Existing Secured Indebtedness and, following the Acquisition, potentially security
provided by certain members of the GPC Group. |
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The New Secured Notes and the New Unsecured Notes may be issued into escrow prior to the
date of the Acquisition, If the New Secured Notes or the New Unsecured Notes are issued
into escrow, the Company will not be required to provide its guarantees and security with
respect to the New Secured Notes or the New Unsecured Notes (as relevant) until such time
as the escrow is released. It is currently intended that if the New Secured Notes or the
New Unsecured Notes are issued into escrow the relevant escrow issuers, which shall be
affiliates of RGHL (the “Escrow Issuers”), will merge or otherwise be consolidated with
Reynolds Group Issuer Inc., a Delaware corporation, Reynolds Group Issuer LLC, a Delaware
limited liability company, and Reynolds Group Issuer (Luxembourg) S.A., a société anonyme
(a public limited liability company) under the laws of Luxembourg (the “Existing
Issuers”) or any other affiliates of RGHL which may issue the New Secured Notes and
the New Unsecured Notes (together with the Existing Issuers, the “Issuers”) on the
release of the escrow, with the Issuers being the surviving entities (the “Escrow and
Merger Arrangements”). |
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| |
|
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It is currently intended that if the New Secured Notes or the New Unsecured Notes are not
issued into escrow, the New Secured Notes and the New Unsecured Notes may be issued by the
Issuers; |
| (c) |
|
the entry into of one or more registration rights agreements or joinders thereto by certain
members of the Reynolds Group (including the Company) and, following the Acquisition,
potentially by certain members of the GPC Group pursuant to which such entities agree to
register the re-sale of the New Unsecured Notes and the New Secured Notes and/or register the
Issuance of the Unsecured Exchange Securities and the Secured Exchange Securities (each as
defined below) (the “Unsecured Notes Registration Rights Agreement” and the
“Secured Notes Registration Rights Agreement”, respectively); |
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| (d) |
|
the entry into of one or more purchase agreements or joinders thereto providing for the
issuance and sale of the New Unsecured Notes and the New Secured Notes and related guarantees
by certain members of the Reynolds Group (including the Company) and, following the
Acquisition, potentially by certain members of the GPC Group (the “Unsecured Notes
Purchase Agreement” and the “Secured Notes Purchase Agreement”, respectively); |
| |
| (e) |
|
the entry into the Credit Agreement Amendment and/or joinders thereto; |
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| (f) |
|
the incurrence of additional indebtedness (the “Additional Bank Debt”) under the
Senior Secured Credit Facilities as amended by the Credit Agreement Amendment (the
“Amended Senior Secured Credit Facilities”) which will have the benefit of
substantially the same guarantees and security as already provided in respect of the Senior
Secured Credit Facilities and it is expected that the security and guarantees provided in
respect of the Senior Secured Credit Facilities and/or the Intercreditor Arrangements will be
amended, restated, extended, affirmed, re-affirmed, confirmed, released and/or retaken, as
necessary, in order to effectuate the foregoing. The Additional Bank Debt may also have the
benefit of guarantees and security provided, following the Acquisition, potentially by certain
members of the GPC Group, as a result of such GPC Group entities granting guarantees and
security in respect of the Amended Senior Secured Credit Facilities. |
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It is intended that the Additional Bank Debt will not be drawn down until the date of the
Acquisition, however the Credit Agreement Amendment will allow for such funds either (i)
to be made available as delayed draw term loans that would be funded on the date of the
Acquisition or (ii) to be drawn down into escrow prior to the date of the Acquisition. |
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If the Additional Bank Debt is either made available as delayed draw term loans or is
drawn into escrow prior to the date of the Acquisition, the Company will not be required
to confirm its guarantees and security with respect to the Additional Bank Debt until such
time as either the delayed draw term loans are funded or the escrow is released or
otherwise terminated (the “Bank Escrow Arrangements”); |
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| (g) |
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the incurrence of additional indebtedness pursuant to the terms described in the
Commitment Letter; |
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| (h) |
|
the entry into the Facilities Documents (as such term is defined in the Commitment
Letter), including, without limitation, any credit agreements, intercreditor agreements,
security documents, indentures, registration rights agreements, purchase agreements,
notes, joinders or any other documents in connection with the Bridge Financing
Facilities or the conversion of any such Bridge Financing Facilities into term loans
and/or exchange notes as described in the Commitment Letter; |
| |
| (i) |
|
the provision by certain members of the Reynolds Group (including the Company as
an existing guarantor) of certain affirmations, reaffirmations and/or confirmations that
the guarantees in place in respect of the Existing Secured Indebtedness and Existing
Notes continue in full force and effect, notwithstanding the Transactions (as defined |
| |
|
below), the Escrow and Merger Arrangements, the Bank Escrow Arrangements and, in the
case of the Senior Secured Credit Facilities, extend to the Additional Bank Debt, the
Amended Senior Secured Credit Facilities and the Bridge Financing Facilities, if any, as
applicable; |
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| (j) |
|
the amendment, restatement, affirmation, re-affirmation, supplement, extension,
confirmation or release and retake of security, or grant of new or additional security (which
may be second, third or junior ranking) or other action in respect of collateral under the
applicable agreements, instruments or other documents creating security interests in respect
of the Existing Secured Indebtedness (collectively, the “Security Documents”) in
order to provide that such Security Documents (i) secure obligations with respect to the New
Secured Notes, the Additional Bank Debt and any secured Bridge Financing Facilities, as
applicable, on a pari passu basis with the Existing Secured Indebtedness to the extent
possible and (ii) continue to secure obligations in respect of the Existing Secured
Indebtedness (including after the consummation of the Escrow and Merger Arrangements and the
Bank Escrow Arrangements); |
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| (k) |
|
the entry into any amendments, supplements, joinders, designations, confirmations or
other documents in connection with the first lien intercreditor agreement dated as of
November 5, 2009, between, among others, The Bank of New York Mellon, as the collateral agent,
Credit Suisse AG, and the grantors from time to time party thereto and the representatives
from time to time party thereto as amended by Amendment No. 1 and Joinder Agreement, dated as
of January 21, 2010 (as further amended, extended, restated or otherwise modified the
“FLICA”) to the extent required in order to permit the New Secured Notes and/or the
Additional Bank Debt to be included as “Obligations” thereunder; |
| |
| (l) |
|
the entry into of any amendments, supplements, accessions, designations,
confirmations or other documents in connection with the intercreditor agreement dated May 11,
2007, as amended and/or restated, including, without limitation, as of (I) November 5, 2009
by an amendment and restatement agreement and (ii) November 5, 2010 by an amendment
agreement, both between, among others, RGHL as parent, Credit Suisse AG, Cayman Islands
Branch, as administrative agent and The Bank of New York Mellon as collateral agent, senior
secured notes trustee and high yield noteholders trustee (as such intercreditor agreement may
be further amended, extended, restated or otherwise modified, the “2007 ICA”): and |
| |
| (m) |
|
following the Acquisition, the possible accession by certain members of the GPC Group to
the Existing Financing Arrangements and the Transaction Documents (as defined below) as
guarantors and/or security providers. |
(collectively, the “Transactions”).
In order to effect the Transactions, it is intended that the Company enter into and/or approve, as
relevant, the following documents, (collectively, the “Transaction Documents”):
| (a) |
|
the documents relating to the Bridge Financing Facilities, including, without limitation, the
Facilities Documents, and any credit agreements, intercreditor agreements, security documents,
indentures, registration rights agreements, purchase agreements, notes, joinders, offering
material or any other documents in connection with the Bridge Financing Facilities or the
conversion of any such Bridge Financing Facilities into term loans and/or exchange notes as
described in the Commitment Letter; |
| |
| (b) |
|
the documents relating to the Amended Senior Secured Credit Facilities, the New Secured Notes
and the New Unsecured Notes, as more particularly described in Schedule 1; and |
| |
| (c) |
|
the documents relating to the intercreditor arrangements in respect of Amended Senior Secured
Credit Facilities, the New Secured Notes, the New Unsecured Notes, the Existing Secured Notes
and the Existing Notes, as more particularly described in Schedule 2, |
II,
POWER OF ATTORNEY
The Company authorizes (bevollmächligt) the person or persons listed in Schedule 3 (the
“Authorized Signatories”) hereto, each of them individually, to act for and in the name of
the Company, and, in such capacity, to consider, settle, approve, execute or deliver the following:
| 1. |
|
execution, delivery and performance of the Transaction Documents and any other documents
related thereto or required to be executed, delivered and performed in order to give effect to
the Acquisition and the Transactions, (including any notices, certificates, requests,
communications or other documents (together with the Transaction Documents, the
“Documents”); |
| |
| 2. |
|
any subsequent amendments (including by way of an amending agreement) to any Documents; |
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| 3. |
|
supplement, make alterations to and complete any blanks in any Documents (including, but not
limited to, altering or completing details of the parties), and |
| |
| 4. |
|
to do anything and consider, settle, approve, sign, agree, execute, deliver and/or issue any
documents that, In the opinion of the relevant Authorized Signatory, may be necessary,
expedient or incidental to any transaction or dealing contemplated by any of the Documents. |
In connection with the transactions, the Company hereby declares as follows:
The Authorized Signatories — each of them individually — are (i) released from the restrictions of
Section 181 second alternative German Civil Code (BGB) and to the extent legally possible according
to Section 181 first alternative German Civil Code (BGB) and (ii) authorized to grant sub-powers-of
attorney to third parties of their choice and with the same scope as this power-of-attorney and to
include the release from the restrictions of Section 181 German Civil Code (BGB). For the avoidance
of doubt, this power of attorney is to be construed broadly. The liability of each Authorized
Signatory shall be limited to willful misconduct and gross negligence. The Company shall — upon
receipt of a first demand (auf erstes Anfordern) - indemnify (freistellen) each Authorized
Signatory against expenses, losses, liabilities, judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges in connection therewith) incurred
by, or on behalf of, an Authorized Signatory in connection with this Power of Attorney.
This Power of Attorney shall be governed by the laws of the Federal Republic of
Germany.
[Unterschriftsseite folgt/signature page follows)
Place, Date: July 20, 2011
SIG Vietnam Beteiligungs-GmbH
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BY: |
/s/ Holger Dickers
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Name: |
Holger Dickers |
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Function: CEO / Managing Director |
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BY: |
/s/ Joachim Frommherz
|
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Name: |
Joachim Frommherz |
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Function: CEO / Managing Director |
|
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Execution Copy
Schedule 1
New Secured Notes
| |
1. |
|
The New Secured Notes Indenture, between, among others, the duly appointed
trustee for the New Secured Notes, the Escrow Issuers or Issuers and the
guarantors, or any accession, joinder or supplemental indenture thereto. |
| |
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2. |
|
The Secured Notes Purchase Agreement, or any accession or joinder
thereto. |
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3. |
|
The Secured Notes Registration Rights Agreement, or any accession
or joinder thereto. |
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4. |
|
Officer’s certificates in respect of the New Secured Notes and any
officer’s certificates in respect of any opinion given in respect of the New
Secured Notes. |
New Unsecured Notes
| |
5. |
|
The New Unsecured Notes Indenture, between, among others, the duly appointed
trustee for the New Unsecured Notes, the Escrow Issuers or Issuers and the
guarantors, or any accession, joinder or supplemental indenture thereto. |
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6. |
|
The Unsecured Notes Purchase Agreement, or any accession or joinder
thereto. |
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7. |
|
Unsecured Notes Registration Rights Agreement, or any accession or
joinder thereto. |
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8. |
|
Officer’s certificates in respect of the New Unsecured Notes and
any officer’s certificates in respect of any opinion given in respect of the New
Unsecured Notes. |
Other Documents relating to the New Secured Notes, the New Unsecured Notes, and/or the Amended
Senior Secured Credit Facilities
| |
9. |
|
A confirmation, affirmation or re-affirmation agreement, between, among others,
certain of the Loan Parties, each duly appointed collateral agent under the First
Lien Intercreditor Agreement, Credit Suisse AG, as administrative agent under the
Senior Secured Credit Facilities, and The Bank of New York Mellon, as trustee
under the 2009 Indenture and in other capacities, with respect to the continuing
security and/or guarantees in respect of the New Secured Notes and/or the
Additional Bank Debt (the “Reaffirmation Agreement”). |
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10. |
|
The Credit Agreement Amendment, and any ancillary and/or related
documents necessary to give effect to such amendments to the Senior Secured
Credit Agreement. |
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11. |
|
the amendment, restatement, affirmation, re-affirmation,
supplement, creation, extension, confirmation or release and retake of security,
or grant of new or additional security (which may be second ranking) or |
9
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other action in respect of collateral under the applicable agreements, instruments or
other documents creating security interests, in particular: |
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• |
|
various confirmation, reaffirmation or amendment agreements under German law
(including such agreements that require notarial recording) with respect to the continuing
or amendment of the existing German security agreements (the “German Confirmation
Agreements”); |
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• |
|
Any agreements under which the Company grants new security such as new share
pledge agreements or new account pledge agreements (including such agreements that require
notarial recording) (the “German New Pledge Agreements”); |
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• |
|
Any agreements under which the Company grants new security under non-German law or
confirms, reaffirms or amends existing agreements including but not limited to share
pledge agreements or interest pledge agreements relating to any shares/interests in
non-German subsidiaries (the “Non-German Pledge Agreements”). |
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12. |
|
Any other document, instrument and/or agreement for the purpose of confirming, affirming,
retaking or creating security in respect of the Additional Bank Debt and/or the New Secured
Notes. |
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13. |
|
Any document, instrument and/or agreement for the purposes of implementing, or required as a
result of the implementation of, the Escrow and Merger Arrangements and/or the Bank Escrow
Arrangements, including any document, instrument or agreement which amends or otherwise varies
any security interest and/or guarantee granted by the Company. |
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14. |
|
Any letters, notices or agreements of appointment in favour of certain related or unrelated
persons to act as process agent on behalf of the Company in respect of the Transactions. |
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15. |
|
Any notices, certificates, requests, waivers, authorisations, amendments, letter agreements,
restatements, communications or other documents to be made, executed or entered into in
connection with the above and/or the Transactions. |
SCHEDULE 2
| 1. Any agreements, amendments, supplements, joinders, certificates or other documents
required to be entered into in connection with the 2007 1CA. |
| |
| 2. |
|
Any agreements, amendments, supplements, joinders, certificates, designations,
confirmations or other documents required to be entered into in connection with the
FLICA including, without limitation, in order to permit the New Secured Notes
and/or Additional Bank Debt to be included as “Obligations” thereunder. |
Schedule 3
Authorised Signatories
1. Graeme Richard Hart
2. Bryce McCheyne Murray
3. Helen Dorothy Golding
4. Allen Philip Hugli
5. Gregory Alan Cole
6. Mark Dunkley
7. Cindi Lefari
5. Philip John Presnell West
9. Thomas James Degnan
10. Robert Bailey
11. Stephen David Pardy
12. Prudence Louise Wyllie
13. Chiara Francesca Brophy
14. Karen Michelle Mower
15. Jennie Blizard
and the following attorneys-at-law of Debevoise & Plimpton LLP, all with its business address at
Taubenstr. 7-9, 60313 Frankfurt am Main, Germany:
1. Philipp von Holst
2. Dr. David Witzel
3. Klaudius Heda
4. Daniel Wiedmann
EXHIBIT 1
COMMITMENT LETTER
Certified Copy
POWER OF ATTORNEY
Pactiv Deutschland Holdinggesellschaft mbH
Pactiv Deutschland Holdinggesellschaft mbH is a limited liability company (Gesetlschaft
mit beschränkter Haftung) incorporated under the laws of Germany, with its registered
seat in Hamburg, registered with the Commercial Register of the Local Court Hamburg
under HR B 71774 (the “Company”).
I.
PREAMBLE
The Company is part of the Reynolds group of companies, which includes RGHL (as defined
below) and each of its subsidiaries (the “Reynolds
Group”).
As part of the Reynolds Group, the Company is a guarantor and security provider in
respect of the Reynolds Group’s existing financing arrangements, including by:
| (a) |
|
providing a guarantee and security with respect to the senior secured
credit agreement (the “Senior Secured Credit Agreement”) dated as of November 5,
2009, between, among others, Reynolds Group Holdings Limited (“RGHL”). the
borrowers listed therein and Credit Suisse AG, as amended, amended or restated,
supplemented or otherwise modified from time to time (the “Senior Secured
Credit Facilities”): |
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| (b) |
|
providing a guarantee and security with respect to the 7.75% senior
secured notes due 2016 issued by members of the Reynolds Group in aggregate
principal amounts of US$1,125,000,000 and €450,000,000 pursuant to an indenture
dated as of November 5, 2009 (the “2009 Notes”); |
| |
| (c) |
|
providing a guarantee and security with respect to the 7.125% senior
secured notes due 2019 issued by members of the Reynolds Group in an aggregate
principal amount of US$1,500,000,000 pursuant to an indenture dated as of October
15, 2010 (the “October 2010 Secured Notes”); and |
| |
| (d) |
|
providing a guarantee and security with respect to the 6,875% senior secured
notes due 2021 issued by members of the Reynolds Group in an aggregate principal
amount of US$1,000,000,000 pursuant to an indenture dated as of February 1, 2011
(the “February 2011 Secured Notes”): |
(the 2009 Notes, the October 2010 Secured Notes and the February 2011 Secured Notes
being together, the “Existing Secured Notes,” and together with the Senior
Secured Credit Facilities, the “Existing Secured Indebtedness”),
| (e) |
|
incurring and providing a guarantee of certain notes issued by
members of the Reynolds Group, including (i) 8% senior notes due 2016 issued in an
aggregate principal amount of €480,000,000 pursuant to an indenture dated June 29,
2007, (ii) 9.5% senior subordinated notes due 2017 issued in an aggregate principal
amount of €420,000,000 pursuant to an indenture dated June 29, 2007 (together with
(i), the “2007 Notes”), (iii) 8.5% senior notes due 2018 issued in an
aggregate principal amount of US$1,000,000,000 pursuant to an indenture dated May
4, 2010 (the “May 2010 Notes”), (iv) 9.0% senior notes due 2019 issued in
an aggregate principal amount of US$1,500,000,000 pursuant to an indenture dated
October 15, 2010 (the “October 2010 Senior Notes”) and (v) 8.250% senior
notes due 2021 issued in an aggregate principal amount of US$1,000,000,000 pursuant
to an indenture dated |
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|
February 1, 2011 (the “February 2011 Senior Notes”) (the 2007
Notes, the May 2010 Notes, the October 2010 Senior Notes and the February 2011 Senior
Notes being together, the “Existing Notes”); and |
| (f) |
|
being party to the intercreditor arrangements in respect of the guarantees,
indebtedness and security described above (the “Intercreditor Arrangements”). |
the Existing Secured Indebtedness, the Existing Notes and the Intercreditor Arrangements being,
together, the “Existing Financing Arrangements”.
It is currently intended that RGHL will indirectly acquire the GPC group of companies (the “GPC
Group") through the merger of an indirect wholly owned subsidiary of RGHL with and into Graham
Packaging Company Inc. (“GPC”), with GPC surviving such merger and becoming an indirect
wholly owned subsidiary of RGHL (the “Acquisition").
The Company has previously considered and approved the entry by the Company into the Senior Secured
Credit Agreement, as amended or otherwise modified from time to time;
RGHL has determined it may be necessary or advisable to incur additional indebtedness under the
Senior Secured Credit Facilities in order to partially fund the Acquisition, the associated costs
and transactions required to effect the Acquisition and for general corporate purposes, and the
Company is now considering entering into amendments to, and/or an amendment and restatement of, the
Senior Secured Credit Agreement, pursuant to which additional indebtedness would be incurred and
the proceeds made available under certain incremental facilities and subject to certain conditions
(the “Credit Agreement Amendment”).
RGHL has entered into a commitment letter, attached hereto as Exhibit 1, (together with the
term sheets attached thereto, the “Commitment Letter”), pursuant to which certain lenders
have provided commitments for three bridge financing facilities comprised of: a senior secured bank
bridge facility, a senior secured notes bridge facility and a senior unsecured notes bridge
facility, each as more particularly described in the Commitment Letter (collectively, the
“Bridge Financing Facilities”), which may be used to partially fund the Acquisition and the
associated costs and transactions required to effect the Acquisition.
RGHL may determine, in lieu of or in combination with issuing the New Secured Notes (as defined
below), New Unsecured Notes (as defined below) and/or incurring the Additional Bank Debt (as
defined below), that it is necessary or advisable to draw on one or more of the Bridge Financing
Facilities in order to fund all or part of the Acquisition.
In addition, RGHL and/or certain direct or indirect subsidiaries of RGHL intend to incur additional
indebtedness as set forth below. In connection with such incurrence of indebtedness, it is intended
that the Existing Financing Arrangements be supplemented and/or amended, by, among other things,
RGHL and/or certain of its direct or indirect subsidiaries doing one or more of the following:
| (g) |
|
the entry into of a new indenture (the “New Unsecured Notes Indenture”), or
accession thereto, by certain members of the Reynolds Group in respect of the issue
of new unsecured notes by indirect subsidiaries of RGHL (the “New Unsecured
Notes”), including the issuance of the New Unsecured Notes and provision of
related
guarantees in respect of the New Unsecured Notes by certain members of the
Reynolds Group (including the Company, as applicable) and, following the
Acquisition, potentially by certain members of the GPC Group (the “New
Unsecured Notes Guarantees”): |
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| (h) |
|
the entry into of a new indenture (the “New Secured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new
senior secured notes by indirect subsidiaries of RGHL (the “New Secured
Notes”). |
2
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including the issuance of the New Secured Notes and the provision of related
guarantees in respect of the New Secured Notes by certain members of the Reynolds
Group (including the Company, as applicable) and, following the Acquisition,
potentially by certain members of the GPC Group (the “New Secured Notes
Guarantees”). |
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The proceeds from the issuance of the New Unsecured Notes and the New Secured Notes
may be used to partially fund the Acquisition and the associated costs and
transactions required (including, without limitation, the repayment of existing
indebtedness of GPC Group and contractual payments to existing shareholders of GPC
Group) to effect the Acquisition and for general corporate purposes. |
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| |
|
It is expected that the Existing Secured Indebtedness and/or the Intercreditor
Arrangements will be amended, restated, extended, confirmed, affirmed, re-affirmed,
released and/or retaken, as necessary, in order to ensure that following the entry
into the New Secured Notes Indenture, the New Secured Notes will have the benefit of
(i) guarantees from substantially the same guarantors (including the Company) that
guarantee the Existing Secured Indebtedness and, following the Acquisition,
potentially from certain members of the GPC Group and (ii) substantially the same
collateral provided in respect of the Existing Secured Indebtedness and, following the
Acquisition, potentially security provided by certain members of the GPC Group. |
| |
| |
|
The New Secured Notes and the New Unsecured Notes may be issued into escrow prior to
the date of the Acquisition. If the New Secured Notes or the New Unsecured Notes are
issued into escrow, the Company will not be required to provide its guarantees and
security with respect to the New Secured Notes or the New Unsecured Notes (as
relevant) until such time as the escrow is released. It is currently intended that if
the New Secured Notes or the New Unsecured Notes are issued into escrow the relevant
escrow issuers, which shall be affiliates of RGHL (the “Escrow Issuers”), will
merge or otherwise be consolidated with Reynolds Group Issuer Inc., a Delaware
corporation, Reynolds Group Issuer LLC, a Delaware limited liability company, and
Reynolds Group Issuer (Luxembourg) S.A., a soeiété anonyme (a public limited liability
company) under the laws of Luxembourg (the “Existing Issuers”) or any other
affiliates of RGHL which may issue the New Secured Notes and the New Unsecured Notes
(together with the Existing Issuers, the “Issuers”) on the release of the
escrow, with the Issuers being the surviving entities (the “Escrow and Merger
Arrangements”). |
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| |
|
It is currently intended that if the New Secured Notes or the New Unsecured Notes are
not issued into escrow, the New Secured Notes and the New Unsecured Notes may be
issued by the Issuers; |
| |
| (i) |
|
the entry into of one or more registration rights agreements or joinders thereto by
certain members of the Reynolds Group (including the Company) and, following the
Acquisition, potentially by certain members of the GPC Group pursuant to which such
entities agree to register the re-sale of the New Unsecured Notes and the New Secured
Notes and/or register the issuance of the Unsecured Exchange Securities and the Secured
Exchange Securities (each as defined below) (the “Unsecured Notes Registration
Rights Agreement” and the “Secured Notes Registration Rights Agreement”,
respectively); |
| |
| (j) |
|
the entry into of one or more purchase agreements or joinders thereto providing for the
issuance and sale of the New Unsecured Notes and the New Secured Notes and related guarantees
by certain members of the Reynolds Group (including the Company) and, following the
Acquisition, potentially by certain members of the GPC |
3
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Group (the “Unsecured Notes Purchase Agreement” and the “Secured Notes Purchase
Agreement”, respectively); |
| |
| (k) |
|
the entry into the Credit Agreement Amendment and/or joinders thereto; |
| |
| (I) |
|
the incurrence of additional indebtedness (the “Additional Bank Debt”) under the
Senior Secured Credit Facilities as amended by the Credit Agreement Amendment (the
“Amended Senior Secured Credit Facilities”) which will have the benefit of
substantially the same guarantees and security as already provided in respect of the Senior
Secured Credit Facilities and it is expected that the security and guarantees provided in
respect of the Senior Secured Credit Facilities and/or the Intercreditor Arrangements will be
amended, restated, extended, affirmed, re-affirmed, confirmed, released and/or retaken, as
necessary, in order to effectuate the foregoing. The Additional Bank Debt may also have the
benefit of guarantees and security provided, following the Acquisition, potentially by certain
members of the GPC Group, as a result of such GPC Group entities granting guarantees and
security in respect of the Amended Senior Secured Credit Facilities. |
| |
| |
|
It is intended that the Additional Bank Debt will not be drawn down until the date of
the Acquisition, however the Credit Agreement Amendment will allow for such funds
either (i) to be made available as delayed draw term loans that would be funded on the
date of the Acquisition or (ii) to be drawn down into escrow prior to the date of the
Acquisition. |
| |
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|
If the Additional Bank Debt is either made available as delayed draw term loans or is
drawn into escrow prior to the date of the Acquisition, the Company will not be
required to confirm its guarantees and security with respect to the Additional Bank
Debt until such time as either the delayed draw term loans are funded or the escrow is
released or otherwise terminated (the “Bank Escrow Arrangements”); |
| |
| (m) |
|
the incurrence of additional indebtedness pursuant to the terms described in the
Commitment Letter; |
| |
| (n) |
|
the entry into the Facilities Documents (as such term is defined in the Commitment
Letter), including, without limitation, any credit agreements, intercreditor agreements,
security documents, indentures, registration rights agreements, purchase agreements, notes,
joinders or any other documents in connection with the Bridge Financing Facilities or the
conversion of any such Bridge Financing Facilities into term loans and/or exchange notes as
described in the Commitment Letter; |
| |
| (o) |
|
the provision by certain members of the Reynolds Group (including the Company as an
existing guarantor) of certain affirmations, reaffirmations and/or confirmations that the
guarantees in place in respect of the Existing Secured Indebtedness and Existing Notes
continue in full force and effect, notwithstanding the Transactions (as defined below), the
Escrow and Merger Arrangements, the Bank Escrow Arrangements and, in the case of the Senior
Secured Credit Facilities, extend to the Additional Bank Debt, the Amended Senior Secured
Credit Facilities and the Bridge Financing Facilities, if any, as applicable; |
| |
| (p) |
|
the amendment, restatement, affirmation, re-affirmation, supplement, extension,
confirmation or release and retake of security, or grant of new or additional security
(which may be second, third or junior ranking) or other action in respect of collateral
under the applicable agreements, instruments or other documents creating security
interests in respect of the Existing Secured Indebtedness (collectively, the
“Security Documents”) in order to provide that such Security Documents (i)
secure obligations with respect to the New Secured Notes, the Additional Bank Debt and
any secured Bridge Financing Facilities, as applicable, on a pari passu basis
with the Existing |
4
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Secured Indebtedness to the extent possible and (ii) continue to secure obligations in
respect of the Existing Secured Indebtedness (including after the consummation of the
Escrow and Merger Arrangements and the Bank Escrow Arrangements); |
| |
| (q) |
|
the entry into any amendments, supplements, joinders, designations, confirmations or
other documents in connection with the first lien intercreditor agreement dated as of November
5, 2009, between, among others, The Bank of New York Mellon, as the collateral agent, Credit
Suisse AG, and the grantors from time to time party thereto and the representatives from time
to time party thereto as amended by Amendment No. 1 and Joinder Agreement, dated as of January
21, 2010 (as further amended, extended, restated or otherwise modified the “FLICA”) to
the extent required in order to permit the New Secured Notes and/or the Additional Bank Debt
to be included as “Obligations” thereunder; |
| |
| (r) |
|
the entry into of any amendments, supplements, accessions, designations,
confirmations or other documents in connection with the intercreditor agreement dated
May 11, 2007, as amended and/or restated, including, without limitation, as of (i)
November 5, 2009 by an amendment and restatement agreement and (ii) November 5, 2010
by an amendment agreement, both between, among others, RGHL as parent, Credit Suisse
AG, Cayman Islands Branch, as administrative agent and The Bank of New York Mellon as
collateral agent, senior secured notes trustee and high yield noteholders trustee (as
such intercreditor agreement may be further amended, extended, restated or otherwise
modified, the “2007ICA”); and |
| |
| (s) |
|
following the Acquisition, the possible accession by certain members of the GPC Group to
the Existing Financing Arrangements and the Transaction Documents (as defined below) as
guarantors and/or security providers. |
(collectively, the “Transactions”).
In order to effect the Transactions, it is intended that the Company enter into and/or approve,
as relevant, the following documents, (collectively, the “Transaction Documents”):
| (a) |
|
the documents relating to the Bridge Financing Facilities, including, without
limitation, the Facilities Documents, and any credit agreements, intercreditor
agreements, security documents, indentures, registration rights agreements, purchase
agreements, notes, joinders, offering material or any other documents in connection
with the Bridge Financing Facilities or the conversion of any such Bridge Financing
Facilities into term loans and/or exchange notes as described in the Commitment Letter; |
| |
| (b) |
|
the documents relating to the Amended Senior Secured Credit Facilities, the New
Secured Notes and the New Unsecured Notes, as more particularly described in Schedule
1; and |
| |
| (c) |
|
the documents relating to the intercreditor arrangements in respect of Amended
Senior Secured Credit Facilities, the New Secured Notes, the New Unsecured Notes, the
Existing Secured Notes and the Existing Notes, as more particularly described in
Schedule 2. |
5
II.
POWER OF ATTORNEY
The Company authorizes (bevollmächtigt) the person or persons listed in
Schedule 3 (the “Authorized Signatories”) hereto, each of them individually,
to act for and in the name of the Company, and, in such capacity, to consider, settle,
approve, execute or deliver the following:
| 1. |
|
execution, delivery and performance of the Transaction Documents and any other documents
related thereto or required to be executed, delivered and performed in order to give effect to
the Acquisition and the Transactions, (including any notices, certificates, requests,
communications or other documents (together with the Transaction Documents, the
“Documents”); |
| |
| 2. |
|
any subsequent amendments (including by way of an amending agreement) to any Documents; |
| |
| 3. |
|
supplement, make alterations to and complete any blanks in any Documents (including, but not
limited to, altering or completing details of the parties), and |
| |
| 4. |
|
to do anything and consider, settle, approve, sign, agree, execute, deliver and/or issue any
documents that, in the opinion of the relevant Authorized Signatory, may be necessary,
expedient or incidental to any transaction or dealing contemplated by any of the Documents. |
In connection with the transactions, the Company hereby declares as follows:
The Authorized Signatories — each of them individually — are (i) released from the restrictions
of Section 181 second alternative German Civil Code (BGB) and to the extent
legally possible according to Section 181 first alternative German Civil Code (BGB)
and (ii) authorized to grant sub-powers-of attorney to third parties of their choice
and with the same scope as this power-of-attorney and to include the release from the
restrictions of Section 181 German Civil Code (BGB). For the avoidance of
doubt, this power of attorney is to be construed broadly. The liability of each Authorized
Signatory shall be limited to willful misconduct and gross negligence. The Company shall -
upon receipt of a first demand (auf erstes Anfordern) - indemnify
(freistelln) each Authorized Signatory against expenses, losses,
liabilities, judgments, fines, penalties and amounts paid in settlement (including all
interest, assessments and other charges in connection therewith) incurred by, or on behalf of,
an Authorized Signatory in connection with this Power of Attorney.
This Power of Attorney shall be governed by the laws of the Federal Republic of Germany,
[Unterschriftsseite folgt/signature page follows]
6
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Pactiv Deutschland Holdinggesellschalft mbH
Place, Date:
|
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By: |
/s/ Petro Kowalskyj
|
|
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Name: |
Petro Kowalskyj |
|
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Title: |
Director |
|
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7
Execution Copy
Schedule 1
New Secured Notes
| |
1. |
|
The New Secured Notes Indenture, between, among others, the duly
appointed trustee for the New Secured Notes, the Escrow Issuers or Issuers. and
the guarantors, or any accession, joinder or supplemental indenture thereto. |
| |
| |
2. |
|
The Secured Notes Purchase Agreement, or any accession or joinder thereto. |
| |
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3. |
|
The Secured Notes Registration Rights Agreement, or any accession or
joinder thereto. |
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4. |
|
Officer’s certificates in respect of the New Secured Notes and any
officer’s certificates in respect of any opinion given in respect of the New
Secured Notes. |
New Unsecured Notes
| |
5. |
|
The New Unsecured Notes Indenture, between, among others, the duly
appointed trustee for the New Unsecured Notes, the Escrow Issuers or Issuers and
the guarantors, or any accession, joinder or supplemental indenture thereto. |
| |
| |
6. |
|
The Unsecured Notes Purchase Agreement, or any accession or joinder
thereto. |
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| |
7. |
|
Unsecured Notes Registration Rights Agreement, or any accession or
joinder thereto. |
| |
| |
8. |
|
Officer’s certificates in respect of the New Unsecured Notes and any
officer’s certificates in respect of any opinion given in respect of the New
Unsecured Notes. |
Other Documents relating to the New Secured Notes, the New Unsecured Notes, and/or the Amended
Senior Secured Credit Facilities
| |
9. |
|
A confirmation, affirmation or re-affirmation agreement, between, among
others, certain of the Loan Parties, each duly appointed collateral agent under
the First Lien Intercreditor Agreement, Credit Suisse AG, as administrative
agent under the Senior Secured Credit Facilities, and The Bank of New York
Mellon, as trustee under the 2009 Indenture and in other capacities, with
respect to the continuing security and/or guarantees in respect of the New
Secured Notes and/or the Additional Bank Debt (the “Reaffirmation
Agreement”). |
| |
| |
10. |
|
The Credit Agreement Amendment, and any ancillary and/or related
documents necessary to give effect to such amendments to the Senior Secured
Credit Agreement. |
| |
| |
11. |
|
the amendment, restatement, affirmation, re-affirmation,
supplement, creation, extension, confirmation or release and retake of security,
or grant of new or additional security (which may be second ranking) or other
action in respect of collateral under the applicable agreements, instruments or
other documents creating security interests, in particular: |
8
| |
• |
|
various confirmation, reaffirmation or amendment agreements under German law
(including such agreements mat require notarial recording) with respect to the continuing
or amendment of the existing German security agreements (the “German Confirmation
Agreements”); |
| |
| |
• |
|
Any agreements under which the Company grants new security such as new share
pledge agreements or new account pledge agreements (including such agreements that require
notarial recording) (the “German New Pledge Agreements”); |
| |
| |
• |
|
Any agreements under which the Company grants new security under non-German law or
confirms, reaffirms or amends existing agreements including but not limited to share
pledge agreements or interest pledge agreements relating to any shares/interests in
non-German subsidiaries (the “Non-German Pledge Agreements”). |
| |
12. |
|
Any other document, instrument and/or agreement for the purpose of confirming, affirming,
retaking or creating security in respect of the Additional Bank Debt and/or the New Secured
Notes. |
| |
| |
13. |
|
Any document, instrument and/or agreement for the purposes of implementing, or required as a
result of the implementation of, the Escrow and Merger Arrangements and/or the Bank Escrow
Arrangements, including any document, instrument or agreement which amends or otherwise varies
any security interest and/or guarantee granted by the Company, |
| |
| |
14. |
|
Any letters, notices or agreements of appointment in favour of certain related or unrelated
persons to act as process agent on behalf of the Company in respect of the Transactions. |
| |
| |
15. |
|
Any notices, certificates, requests, waivers, authorisations, amendments, letter agreements,
restatements, communications or other documents to be made, executed or entered into in
connection with the above and/or the Transactions. |
9
SCHEDULE 2
| 1. Any agreements, amendments, supplements, joinders, certificates or other documents
required to be entered into in connection with the 2007 ICA. |
| |
| 2. |
|
Any agreements, amendments, supplements, joinders, certificates, designations,
confirmations or other documents required to be entered into in connection with the
FLICA including, without limitation, in order to permit the New Secured Notes
and/or Additional Bank Debt to be included as “Obligations” thereunder. |
10
Schedule 3
Authorised Signatories
1. Graeme Richard Hart
2. Bryce McCheyne Murray
3. Helen Dorothy Golding
4. Allen Philip Hugli
5. Gregory Alan Cole
6. Mark Dunkley
7. Cindi Lefari
8. Philip John Presnell West
9. Thomas James Degnan
10. Robert Bailey
11. Stephen David Pardy
12. Prudence Louise Wyllie
13. Chiara Francesca Brophy
14. Karen Michelle Mower
15. Jennie Blizard
and the following attorneys-at-law of Debevoise & Plimpton LLP, all with its business address at
Taubenstr. 7-9, 60313 Frankfurt am Main, Germany:
16. Philipp von Hoist
17. Dr. David Witzel
18. Klaudius Heda
19. Daniel Wiedmann
11
EXHIBIT 1
COMMITMENT LETTER
12
Certified Copy
POWER OF ATTORNEY
Omni-Fac Ekco GmbH Verpackungsmittel
Omni-Pac Ekco GmbH Verpackungsmittel is a limited liability company (Gesellschaft
mit beschränkter Haftung) incorporated under the laws of Germany, with its registered
seat in Hamburg, registered with the Commercial Register of the Local Court Hamburg under HR B
102663 (the “Company”).
I.
PREAMBLE
The Company is part of the Reynolds group of companies, which includes RGHL (as defined below) and
each of its subsidiaries (the “Reynolds Group”).
As part of the Reynolds Group, the Company is a guarantor and security provider in respect of the
Reynolds Group’s existing financing arrangements, including by:
| (a) |
|
providing a guarantee and security with respect to the senior secured credit agreement (the
“Senior Secured Credit Agreement”) dated as of November 5, 2009, between, among others,
Reynolds Group Holdings Limited (“RGHL”). the borrowers listed therein and Credit
Suisse AG, as amended, amended or restated, supplemented or otherwise modified from time to
time (the “Senior Secured Credit Facilities”); |
| |
| (b) |
|
providing a guarantee and security with respect to the 7.75% senior secured notes due 2016
issued by members of the Reynolds Group in aggregate principal amounts of US$1,125,000,000 and
€450,000,000 pursuant to an indenture dated as of November 5, 2009 (the “2009 Notes”); |
| |
| (c) |
|
providing a guarantee and security with respect to the 7.125% senior secured notes due 2019
issued by members of the Reynolds Group in an aggregate principal amount of US$1,500,000,000
pursuant to an indenture dated as of October 15, 2010 (the “October 2010 Secured
Notes”); and |
| |
| (d) |
|
providing a guarantee and security with respect to the 6.875% senior secured notes due 2021
issued by members of the Reynolds Group in an aggregate principal amount of US$1,000,000,000
pursuant to an indenture dated as of February 1, 2011 (the “February 2011 Secured
Notes”); |
(the 2009 Notes, the October 2010 Secured Notes and the February 2011 Secured Notes being together,
the “Existing Secured Notes,” and together with the Senior Secured Credit Facilities, the
“Existing Secured Indebtedness”),
| (e) |
|
incurring and providing a guarantee of certain notes issued by members of the Reynolds
Group, including (i) 8% senior notes due 2016 issued in an aggregate principal amount of
€480,000,000 pursuant to an indenture dated June 29, 2007, (ii) 9.5% senior subordinated notes
due 2017 issued in an aggregate principal amount of €420,000,000 pursuant to an indenture
dated June 29, 2007 (together with (i), the “2007 Notes”), (iii) 8.5% senior notes due
2018 issued in an aggregate principal amount of US$1,000,000,000 pursuant to an indenture
dated May 4, 2010 (the “May 2010 Notes”), (iv) 9.0% senior notes due 2019 issued in an
aggregate principal amount of US $1,500,000,000 pursuant to an indenture dated October 15,
2010 (the “October 2010 Senior Notes”) and (v) 8.250% senior notes due 2021 issued in
an aggregate principal amount of US$1,000,000,000 pursuant to an indenture dated |
| |
|
February 1, 2011 (the “February 2011 Senior Notes”) (the 2007 Notes, the May
2010 Notes, the October 2010 Senior Notes and the February 2011 Senior Notes being
together, the “Existing Notes”); and |
| |
| (f) |
|
being party to the intercreditor arrangements in respect of the guarantees,
Indebtedness and security described above (the “Intercreditor Arrangements”), |
the Existing Secured Indebtedness, the Existing Notes and the Intercreditor Arrangements being,
together, the “Existing Financing Arrangements”.
It is currently intended that RGHL will indirectly acquire the GPC group of companies (the “GPC
Group”) through the merger of an indirect wholly owned subsidiary of RGHL with and into Graham
Packaging Company Inc. (“GPC”), with GPC surviving such merger and becoming an indirect
wholly owned subsidiary of RGHL (the “Acquisition”).
The Company has previously considered and approved the entry by the Company into the Senior Secured
Credit Agreement, as amended or otherwise modified from time to time;
RGHL has determined it may be necessary or advisable to incur additional indebtedness under the
Senior Secured Credit Facilities in order to partially fund the Acquisition, the associated costs
and transactions required to effect the Acquisition and for general corporate purposes, and the
Company is now considering entering into amendments to, and/or an amendment and restatement of, the
Senior Secured Credit Agreement, pursuant to which additional indebtedness would be incurred and
the proceeds made available under certain incremental facilities and subject to certain conditions
(the “Credit Agreement Amendment”).
RGHL has entered into a commitment letter, attached hereto as Exhibit 1, (together with the
term sheets attached thereto, the “Commitment Letter”), pursuant to which certain lenders
have provided commitments for three bridge financing facilities comprised of: a senior secured bank
bridge facility, a senior secured notes bridge facility and a senior unsecured notes bridge
facility, each as more particularly described in the Commitment Letter (collectively, the
“Bridge Financing Facilities”), which may be used to partially fund the Acquisition and the
associated costs and transactions required to effect the Acquisition.
RGHL may determine, in lieu of or in combination with issuing the New Secured Notes (as defined
below), New Unsecured Notes (as defined below) and/or incurring the Additional Bank Debt (as
defined below), that it is necessary or advisable to draw on one or more of the Bridge Financing
Facilities in order to fund all or part of the Acquisition.
In addition, RGHL and/or certain direct or indirect subsidiaries of RGHL intend to incur additional
indebtedness as set forth below. In connection with such incurrence of indebtedness, it is intended
that the Existing Financing Arrangements be supplemented and/or amended, by, among other things,
RGHL and/or certain of its direct or indirect subsidiaries doing one or more of the following:
| (a) |
|
the entry into of a new indenture (the “New Unsecured Notes Indenture”), or
accession thereto, by certain members of the Reynolds Group in respect of the issue
of new unsecured notes by indirect subsidiaries of RGHL (the “New Unsecured
Notes”), including the issuance of the New Unsecured Notes and provision of related
guarantees in respect of the New Unsecured Notes by certain members of the
Reynolds Group (including the Company, as applicable) and, following the
Acquisition, potentially by certain members of the GPC Group (the “New Unsecured Notes Guarantees”); |
| |
| (b) |
|
the entry into of a new indenture (the “New Secured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new
senior secured notes by indirect subsidiaries of RGHL (the “New Secured Notes”), |
2
| |
|
including the issuance of the New Secured Notes and the provision of related guarantees in
respect of the New Secured Notes by certain members of the Reynolds Group (including the Company,
as applicable) and, following the Acquisition, potentially by certain members of the GPC Group (the
“New Secured Notes Guarantees”). |
| |
| |
|
The proceeds from the issuance of the New Unsecured Notes and the New Secured Notes may be
used to partially fund the Acquisition and the associated costs and transactions required
(including, without limitation, the repayment of existing indebtedness of GPC Group and
contractual payments to existing shareholders of GPC Group) to effect the Acquisition and
for general corporate purposes. |
| |
| |
|
It is expected that the Existing Secured Indebtedness and/or the Intercreditor Arrangements
will be amended, restated, extended, confirmed, affirmed, re-affirmed, released and/or
retaken, as necessary, in order to ensure that following the entry into the New Secured
Notes Indenture, the New Secured Notes will have the benefit of (i) guarantees from
substantially the same guarantors (including the Company) that guarantee the Existing
Secured Indebtedness and, following the Acquisition, potentially from certain members of
the GPC Group and (ii) substantially the same collateral provided in respect of the
Existing Secured Indebtedness and, following the Acquisition, potentially security provided
by certain members of the GPC Group. |
| |
| |
|
The New Secured Notes and the New Unsecured Notes may be issued into escrow prior to the
date of the Acquisition. If the New Secured Notes or the New Unsecured Notes are issued
into escrow, the Company will not be required to provide its guarantees and security with
respect to the New Secured Notes or the New Unsecured Notes (as relevant) until such time
as the escrow is released. It is currently intended that if the New Secured Notes or the
New Unsecured Notes are issued into escrow the relevant escrow issuers, which shall be
affiliates of RGHL (the “Escrow Issuers”), will merge or otherwise be consolidated
with Reynolds Group Issuer Inc., a Delaware corporation, Reynolds Group Issuer LLC, a
Delaware limited liability company, and Reynolds Group Issuer (Luxembourg) S.A., a société
anonyme (a public limited liability company) under the laws of Luxembourg (the
“Existing Issuers”) or any other affiliates of RGHL which may issue the New Secured
Notes and the New Unsecured Notes (together with the Existing Issuers, the
“Issuers”) on the release of the escrow, with the Issuers being the surviving
entities (the “Escrow and Merger Arrangements”). |
| |
| |
|
It is currently intended that if the New Secured Notes or the New Unsecured Notes are not
issued into escrow, the New Secured Notes and the New Unsecured Notes may be issued by the
Issuers; |
| |
| (c) |
|
the entry into of one or more registration rights agreements or joinders thereto by certain
members of the Reynolds Group (including the Company) and, following the Acquisition,
potentially by certain members of the GPC Group pursuant to which such entities agree to
register the re-sale of the New Unsecured Notes and the New Secured Notes and/or register the
issuance of the Unsecured Exchange Securities and the Secured Exchange Securities (each as
defined below) (the “Unsecured Notes Registration Rights Agreement” and the
“Secured Notes Registration Rights Agreement”, respectively); |
| |
| (d) |
|
the entry into of one or more purchase agreements or joinders thereto providing for the
issuance and sale of the New Unsecured Notes and the New Secured Notes and related guarantees
by certain members of the Reynolds Group (including the Company) and, following the
Acquisition, potentially by certain members of the GPC |
3
| |
|
Group (the “Unsecured Notes Purchase Agreement” and the “Secured Notes Purchase
Agreement”, respectively); |
| |
| (e) |
|
the entry into the Credit Agreement Amendment and/or joinders thereto; |
| |
| (f) |
|
the incurrence of additional indebtedness (the “Additional Bank Debt”) under the
Senior Secured Credit Facilities as amended by the Credit Agreement Amendment (the
“Amended Senior Secured Credit Facilities”) which will have the benefit of
substantially the same guarantees and security as already provided in respect of the Senior
Secured Credit Facilities and it is expected that the security and guarantees provided in
respect of the Senior Secured Credit Facilities and/or the Intercreditor Arrangements will be
amended, restated, extended, affirmed, re-affirmed, confirmed, released and/or retaken, as
necessary, in order to effectuate the foregoing. The Additional Bank Debt may also have the
benefit of guarantees and security provided, following the Acquisition, potentially by certain
members of the GPC Group, as a result of such GPC Group entities granting guarantees and
security in respect of the Amended Senior Secured Credit Facilities. |
| |
| |
|
It is intended that the Additional Bank Debt will not be drawn down until the date of the
Acquisition, however the Credit Agreement Amendment will allow for such funds either (i) to
be made available as delayed draw term loans that would be funded on the date of the
Acquisition or (ii) to be drawn down into escrow prior to the date of the Acquisition. |
| |
| |
|
If the Additional Bank Debt is either made available as delayed draw term loans or is drawn
into escrow prior to the date of the Acquisition, the Company will not be required to
confirm its guarantees and security with respect to the Additional Bank Debt until such
time as either the delayed draw term loans are funded or the escrow is released or
otherwise terminated (the “Bank Escrow Arrangements”); |
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| (g) |
|
the incurrence of additional indebtedness pursuant to the terms described in the
Commitment Letter; |
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| (h) |
|
the entry into the Facilities Documents (as such term is defined in the Commitment
Letter), including, without limitation, any credit agreements, intercreditor agreements,
security documents, indentures, registration rights agreements, purchase agreements,
notes, joinders or any other documents in connection with the Bridge Financing
Facilities or the conversion of any such Bridge Financing Facilities into term loans
and/or exchange notes as described in the Commitment Letter; |
| |
| (i) |
|
the provision by certain members of the Reynolds Group (including the Company as
an existing guarantor) of certain affirmations, reaffirmations and/or confirmations that
the guarantees in place in respect of the Existing Secured Indebtedness and Existing
Notes continue in full force and effect, notwithstanding the Transactions (as defined
below), the Escrow and Merger Arrangements, the Bank Escrow Arrangements and,
in the case of the Senior Secured Credit Facilities, extend to the Additional Bank
Debt, the Amended Senior Secured Credit Facilities and the Bridge Financing
Facilities, if any, as applicable; |
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| (j) |
|
the amendment, restatement, affirmation, re-affirmation, supplement, extension,
confirmation or release and retake of security, or grant of new or additional security
(which may be second, third or junior ranking) or other action in respect of collateral
under the applicable agreements, instruments or other documents creating security interests
in respect of the Existing Secured Indebtedness
(collectively, the “Security Documents”) in order to provide that such Security
Documents (i) secure obligations with respect to the New Secured Notes, the Additional Bank
Debt and any secured Bridge Financing Facilities, as applicable, on a pari passu basis with
the Existing |
4
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Secured Indebtedness to the extent possible and (ii) continue to secure obligations in
respect of the Existing Secured Indebtedness (including after the consummation of the
Escrow and Merger Arrangements and the Bank Escrow Arrangements); |
| |
| (k) |
|
the entry into any amendments, supplements, joinders, designations, confirmations or
other documents in connection with the first lien intercreditor agreement dated as of November
5, 2009, between, among others, The Bank of New York Mellon, as the collateral agent, Credit
Suisse AG, and the grantors from time to time party thereto and the representatives from time
to time parry thereto as amended by Amendment No. 1 and Joinder Agreement, dated as of January
21, 2010 (as further amended, extended, restated or otherwise modified the “FLICA”) to the
extent required in order to permit the New Secured Notes and/or the Additional Bank Debt to be
included as “Obligations” thereunder; |
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| (l) |
|
the entry into of any amendments, supplements, accessions, designations,
confirmations or other documents in connection with the intercreditor agreement dated May
11, 2007, as amended and/or restated, including, without limitation, as of (i) November 5,
2009 by an amendment and restatement agreement and (ii) November 5, 2010 by an amendment
agreement, both between, among others, RGHL as parent, Credit Suisse AG, Cayman Islands
Branch, as administrative agent and The Bank of New York Mellon as collateral agent, senior
secured notes trustee and high yield noteholders trustee (as such intercreditor agreement
may be further amended, extended, restated or otherwise modified, the “2007 ICA”):
and |
| |
| (m) |
|
following the Acquisition, the possible accession by certain members of the GPC Group to
the Existing Financing Arrangements and the Transaction Documents (as defined below) as
guarantors and/or security providers. |
(collectively, the “Transactions”).
In order to effect the Transactions, it is intended that the Company enter into and/or approve, as
relevant, the following documents, (collectively, the “Transaction Documents”):
| (a) |
|
the documents relating to the Bridge Financing Facilities, including, without limitation, the
Facilities’ Documents, and any credit agreements, intercreditor agreements, security
documents, indentures, registration rights agreements, purchase agreements, notes, joinders,
offering material or any other documents in connection with the Bridge Financing Facilities or
the conversion of any such Bridge Financing Facilities into term loans and/or exchange notes
as described in the Commitment Letter; |
| |
| (b) |
|
the documents relating to the Amended Senior Secured Credit Facilities, the New Secured Notes
and the New Unsecured Notes, as more particularly described in Schedule 1; and |
| |
| (c) |
|
the documents relating to the intercreditor arrangements in respect of Amended Senior Secured
Credit Facilities, the New Secured Notes, the New Unsecured Notes, the Existing Secured Notes
and the Existing Notes, as more particularly described in Schedule 2. |
5
II.
POWER OF ATTORNEY
The Company authorizes (bevollmächtigt) the person or persons listed in Schedule 3 (the
“Authorized Signatories”) hereto, each of them individually, to act for and in the name of
the Company, and, in such capacity, to consider, settle, approve, execute or deliver the following:
| 1. |
|
execution, delivery and performance of the Transaction Documents and any other documents
related thereto or required to be executed, delivered and performed in order to give effect to
the Acquisition and the Transactions, (including any notices, certificates, requests,
communications or other documents (together with the Transaction Documents, the
“Documents”); |
| |
| 2. |
|
any subsequent amendments (including by way of an amending agreement) to any Documents; |
| |
| 3. |
|
supplement, make alterations to and complete any blanks in any Documents (including, but not
limited to, altering or completing details of the parties), and |
| |
| 4. |
|
to do anything and consider, settle, approve, sign, agree, execute, deliver and/or issue any
documents that, in the opinion of the relevant Authorized Signatory, may be necessary,
expedient or incidental to any transaction or dealing contemplated by any of the Documents. |
In connection with the transactions, the Company hereby declares as follows:
The Authorized Signatories — each of them individually — are (i) released from the restrictions of
Section 181 second alternative German Civil Code (BGB) and to the extent legally possible according
to Section 181 first alternative German Civil Code (BGB) and (ii) authorized to grant sub-powers-of
attorney to third parties of their choice and with the same scope as this power-of-attorney and to
include the release from the restrictions of Section 181 German Civil Code (BGB). For the avoidance
of doubt, this power of attorney is to be construed broadly. The liability of each Authorized
Signatory shall be limited to willful misconduct and gross negligence. The Company shall — upon
receipt of a first demand (auf erstes Anfordern) - indemnify (freistellen) each Authorized
Signatory against expenses, losses, liabilities, judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges in connection therewith) incurred
by, or on behalf of, an Authorized Signatory in connection with this Power of Attorney.
This Power of Attorney shall be governed by the laws of the Federal Republic of Germany.
[Unterschriftsseite folgt/signature page follows]
6
Omni-Pac Ekco GmbH Verpackungsmittel
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| Place, Date: |
July 20, 2011 |
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By: |
/s/ Stefan Beese |
|
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Name: |
Stefan Beese |
|
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Title: |
Director |
|
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| By: |
/s/ Petro Kowalskyj
|
|
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Name: |
Petro Kowalskyj |
|
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Title: |
Director |
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SCHEDULE 1
New Secured Notes
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1. |
|
The New Secured Notes Indenture, between, among others, the duly
appointed trustee for the New Secured Notes, the Escrow Issuers or Issuers and the
guarantors, or any accession, joinder or supplemental indenture thereto. |
| |
| |
2. |
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The Secured Notes Purchase Agreement, or any accession or joinder thereto. |
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3. |
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The Secured Notes Registration Rights Agreement, or any accession or
joinder thereto. |
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4. |
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Officer’s certificates in respect of the New Secured Notes and any
officer’s certificates in respect of any opinion given in respect of the New
Secured Notes. |
New Unsecured Notes
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5. |
|
The New Unsecured Notes Indenture, between, among others, the duly
appointed trustee for the New Unsecured Notes, the Escrow Issuers or Issuers and
the guarantors, or any accession, joinder or supplemental indenture thereto. |
| |
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6. |
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The Unsecured Notes Purchase Agreement, or any accession or joinder
thereto. |
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7. |
|
Unsecured Notes Registration Rights Agreement, or any accession or
joinder thereto. |
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8. |
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Officer’s certificates in respect of the New Unsecured Notes and any
officer’s certificates in respect of any opinion given in respect of the New
Unsecured Notes. |
Other Documents relating to the New Secured Notes, the New Unsecured Notes, and/or the Amended
Senior Secured Credit Facilities
| |
9. |
|
A confirmation, affirmation or re-affirmation agreement, between,
among others, certain of the Loan Parties, each duly appointed collateral agent
under the First Lien Intercreditor Agreement, Credit Suisse AG, as administrative
agent under the Senior Secured Credit Facilities, and The Bank of New York Mellon,
as trustee under the 2009 Indenture and in other capacities, with respect to the
continuing security and/or guarantees in respect of the New Secured Notes and/or
the Additional Bank Debt (the “Reaffirmation Agreement”). |
| |
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10. |
|
The Credit Agreement Amendment, and any ancillary and/or related
documents necessary to give effect to such amendments to the Senior Secured Credit
Agreement. |
| |
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11. |
|
the amendment, restatement, affirmation, re-affirmation, supplement,
creation, extension, confirmation or release and retake of security, or grant of
new or additional security (which may be second ranking) or other action in
respect of collateral under the applicable agreements, instruments or other
documents creating security interests, in particular: |
8
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• |
|
various confirmation, reaffirmation or amendment agreements under German law
(including such agreements that require notarial recording) with respect
to the continuing or amendment of the existing German security agreements (the
“German Confirmation Agreements”); |
| |
| |
• |
|
Any agreements under which the Company grants new security such as new share pledge
agreements or new account pledge agreements (including such agreements that require
notarial recording) (the “German New Pledge Agreements”); |
| |
| |
• |
|
Any agreements under which the Company grants new security under non-German law or
confirms, reaffirms or amends existing agreements including but not limited to share
pledge agreements or interest pledge agreements relating to any shares/interests in
non-German subsidiaries (the “Non-German Pledge Agreements”). |
| |
12. |
|
Any other document, instrument and/or agreement for the purpose of confirming, affirming,
retaking or creating security in respect of the Additional Bank Debt and/or the New Secured
Notes. |
| |
| |
13. |
|
Any document, instrument and/or agreement for the purposes of implementing, or required as a
result of the implementation of, the Escrow and Merger Arrangements and/or the Bank Escrow
Arrangements, including any document, instrument or agreement which amends or otherwise varies
any security interest and/or guarantee granted by the Company. |
| |
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14. |
|
Any letters, notices or agreements of appointment in favour of certain related or unrelated
persons to act as process agent on behalf of the Company in respect of the Transactions. |
| |
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15. |
|
Any notices, certificates, requests, waivers, authorisations, amendments,
letter agreements, restatements, communications or other documents to be
made, executed or entered into in connection with the above and/or the
Transactions. |
9
SCHEDULE 2
| 1. Any agreements, amendments, supplements, joinders, certificates or other documents
required to be entered into in connection with the 2007 ICA. |
| 2. |
|
Any agreements, amendments, supplements, joinders, certificates, designations,
confirmations or other documents required to be entered into in connection with the
FLICA including, without limitation, in order to permit the New Secured Notes
and/or Additional Bank Debt to be included as “Obligations” thereunder. |
10
Schedule 3
Authorised Signatories
| 1. |
|
Graeme Richard Hart |
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| 2. |
|
Bryce McCheyne Murray |
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| 3. |
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Helen Dorothy Golding |
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| 4. |
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Allen Philip Hugli |
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| 5. |
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Gregory Alan Cole |
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| 6. |
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Mark Dunkley |
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| 7. |
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Cindi Lefari |
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| 8. |
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Philip John Presnell West |
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| 9. |
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Thomas James Degnan |
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| 10. |
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Robert Bailey |
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| 11. |
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Stephen David Pardy |
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| 12. |
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Prudence Louise Wyllie |
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| 13. |
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Chiara Francesca Brophy |
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| 14. |
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Karen Michelle Mower |
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| 15. |
|
Jennie Blizard |
and the following attorneys-at-law of Debevoise & Plimpton LLP, all with its business address at
Taubenstr, 7-9, 60313 Frankfurt am Main, Germany:
| 16. |
|
Philipp von Holst |
| |
| 17. |
|
Dr. David Witzel |
| |
| 18. |
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Klaudius Heda |
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| 19. |
|
Daniel Wiedmann |
11
EXHIBIT 1
COMMITMENT LETTER
12
Certified Copy
POWER OF ATTORNEY
Omni-Pac GmbH Verpackungsmittel
Omni-Pac GmbH Verpackungsmittel is a limited liability company (Gesetlschaft mit beschränkter
Haftung) incorporated under the laws of Germany, with its registered seat in Elsfleth, registered
with the Commercial Register of the Local Court Oldenburg under HR B 201738 (the “Company”)
I.
PREAMBLE
The Company is part of the Reynolds group of companies, which includes RGHL (as defined below) and
each of its subsidiaries (the “Reynolds Group”).
As part of the Reynolds Group, the Company is a guarantor and security provider in respect of the
Reynolds Group’s existing financing arrangements, including by:
| (a) |
|
providing a guarantee and security with respect to the senior secured credit agreement (the
“Senior Secured Credit Agreement”) dated as of November 5, 2009, between, among others,
Reynolds Group Holdings Limited (“RGHL”), the borrowers listed therein and Credit
Suisse AG, as amended, amended or restated, supplemented or otherwise modified from time to
time (the “Senior Secured Credit Facilities”); |
| |
| (b) |
|
providing a guarantee and security with respect to the 7.75% senior secured notes due 2016
issued by members of the Reynolds Group in aggregate principal amounts of US$1,125,000,000 and
€450,000,000 pursuant to an indenture dated as of November 5,2009 (the “2009 Notes”); |
| |
| (c) |
|
providing a guarantee and security with respect to the 7.125% senior secured notes due 2019
issued by members of the Reynolds Group in an aggregate principal amount of US$1,500,000,000
pursuant to an indenture dated as of October 15, 2010 (the “October 2010 Secured
Notes”); and |
| |
| (d) |
|
providing a guarantee and security with respect to the 6.875% senior secured notes due 2021
issued by members of the Reynolds Group in an aggregate principal amount of US$1,000,000,000
pursuant to an indenture dated as of February 1,2011 (the “February 2011 Secured
Notes”); |
(the 2009 Notes, the October 2010 Secured Notes and the February 2011 Secured Notes being together,
the “Existing Secured Notes,” and together with the Senior Secured Credit Facilities, the
“Existing Secured Indebtedness”),
| (e) |
|
incurring and providing a guarantee of certain notes issued by members of the
Reynolds Group, including (i) 8% senior notes due 2016 issued in an aggregate
principal amount of €480,000,000 pursuant to an indenture dated June 29, 2007, (ii) 9.5%
senior subordinated notes due 2017 issued in an aggregate principal amount of €420,000,000
pursuant to an indenture dated June 29, 2007 (together with (i), the “2007 Notes”),
(iii) 8.5% senior notes due 2018 issued in an aggregate principal amount of
US$1,000,000,000 pursuant to an indenture dated May 4, 2010 (the “May 2010 Notes”),
(iv) 9.0% senior notes due 2019 issued in an aggregate principal amount of US$1,500,000,000
pursuant to an indenture dated October 15, 2010 (the “October 2010 Senior Notes”)
and (v) 8.250% senior notes due 2021 issued in an aggregate principal amount of
US$1,000,000,000 pursuant to an indenture dated |
| |
|
February 1,2011 (the “February 2011 Senior Notes”) (the 2007 Notes, the May 2010
Notes, the October 2010 Senior Notes and the February 2011 Senior Notes being together, the
“Existing Notes”); and |
| |
| (f) |
|
being party to the intercreditor arrangements in respect of the guarantees,
indebtedness and security described above (the “Intercreditor Arrangements”), |
the Existing Secured Indebtedness, the Existing Notes and the Intercreditor Arrangements being,
together, the “Existing Financing Arrangements”,
It is currently intended that RGHL will indirectly acquire the GPC group of companies (the “GPC
Group”) through the merger of an indirect wholly owned subsidiary of RGHL with and into Graham
Packaging Company Inc. (“GPC”), with GPC surviving such merger and becoming an indirect wholly
owned subsidiary of RGHL (the “Acquisition”),
The Company has previously considered and approved the entry by the Company into the Senior Secured
Credit Agreement, as amended or otherwise modified from time to time;
RGHL has determined it may be necessary or advisable to incur additional indebtedness under the
Senior Secured Credit Facilities in order to partially fund the Acquisition, the associated costs
and transactions required to effect the Acquisition and for general corporate purposes, and the
Company is now considering entering into amendments to, and/or an amendment and restatement of, the
Senior Secured Credit Agreement, pursuant to which additional indebtedness would be incurred and
the proceeds made available under certain incremental facilities and subject to certain conditions
(the “Credit Agreement Amendment”).
RGHL has entered into a commitment letter, attached hereto as Exhibit .1, (together with
the term sheets attached thereto, the “Commitment Letter”), pursuant to which certain
lenders have provided commitments for three bridge financing facilities comprised of; a senior
secured bank bridge facility, a senior secured notes bridge facility and a senior unsecured notes
bridge facility, each as more particularly described in the Commitment Letter (collectively, the
“Bridge Financing Facilities”), which may be used to partially fund the Acquisition and the
associated costs and transactions required to effect the Acquisition.
RGHL may determine, in lieu of or in combination with issuing the New Secured Notes (as defined
below), New Unsecured Notes (as defined below) and/or incurring the Additional Bank Debt (as
defined below), that it is necessary or advisable to draw on one or more of the Bridge Financing
Facilities in order to fund all or part of the Acquisition.
In addition, RGHL and/or certain direct or indirect subsidiaries of RGHL intend to incur additional
indebtedness as set forth below, In connection with such incurrence of indebtedness, it is intended
that the Existing Financing Arrangements be supplemented and/or amended, by, among other things,
RGHL and/or certain of its direct or indirect subsidiaries doing one or more of the following:
| (a) |
|
the entry into of a new indenture (the “New Unsecured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new unsecured
notes by indirect subsidiaries of RGHL (the “New Unsecured Notes”), including the
issuance of the New Unsecured Notes and provision of related guarantees in respect of the New
Unsecured Notes by certain members of the Reynolds Group (including the Company, as
applicable) and, following the Acquisition, potentially, by certain members of the GPC Group
(the “New Unsecured Notes Guarantees”); |
| |
| (b) |
|
the entry into of a new indenture (the “New Secured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new senior
secured notes by indirect subsidiaries of RGHL (the “New Secured Notes”), |
2
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|
including the issuance of the New Secured Notes and the provision of related guarantees in
respect of the New Secured Notes by certain members of the Reynolds Group (including the
Company, as applicable) and, following the Acquisition, potentially by certain members of
the GPC Group (the “New Secured Notes Guarantees”). |
| |
| |
|
The proceeds from the issuance of the New Unsecured Notes and the New Secured Notes may be
used to partially fund the Acquisition and the associated costs and transactions required
(including, without limitation, the repayment of existing indebtedness of GPC Group and
contractual payments to existing shareholders of GPC Group) to effect the Acquisition and
for general corporate purposes. |
| |
| |
|
It is expected that the Existing Secured Indebtedness and/or the Intercreditor Arrangements
will be amended, restated, extended, confirmed, affirmed, re-affirmed, released and/or
retaken, as necessary, in order to ensure that following the entry into the New Secured
Notes Indenture, the New Secured Notes will have the benefit of (i) guarantees from
substantially the same guarantors (including the Company) that guarantee the Existing
Secured Indebtedness and, following the Acquisition, potentially from certain members of
the GPC Group and (ii) substantially the same collateral provided in respect of the
Existing
Secured Indebtedness and, following the Acquisition, potentially security provided by
certain members of the GPC Group. |
| |
| |
|
The New Secured Notes and the New Unsecured Notes may be issued into escrow prior to the
date of the Acquisition. If the New Secured Notes or the New Unsecured Notes are issued
into escrow, the Company will not be required to provide its guarantees and security with
respect to the New Secured Notes or the New Unsecured Notes (as relevant) until such time
as the escrow is released. It is currently intended that if the New Secured Notes or the
New Unsecured Notes are issued into escrow the relevant escrow issuers, which shall be
affiliates of RGHL (the “Escrow Issuers”), will merge or otherwise be consolidated
with Reynolds Group Issuer Inc., a Delaware corporation, Reynolds Group Issuer LLC, a
Delaware limited liability company, and Reynolds Group Issuer (Luxembourg) S.A., a société
anonyme (a public limited liability company) under the laws of Luxembourg (the
“Existing Issuers”) or any other affiliates of RGHL which may issue the New Secured
Notes and the New Unsecured Notes (together with the Existing Issuers, the
“Issuers”) on the release of the escrow, with the Issuers being the surviving
entities (the “Escrow and Merger Arrangements”). |
| |
| |
|
It is currently intended that if the New Secured Notes or the New Unsecured Notes are not
issued into escrow, the New Secured Notes and the New Unsecured Notes may be issued by the
Issuers; |
| |
| (c) |
|
the entry into of one or more registration rights agreements or joinders thereto by certain
members of the Reynolds Group (including the Company) and, following the Acquisition,
potentially by certain members of the GPC Group pursuant to which such entities agree to
register the re-sale of the New Unsecured Notes and the New Secured Notes and/or register the
issuance of the Unsecured Exchange Securities and the Secured Exchange Securities (each as
defined below) (the “Unsecured Notes Registration Rights Agreement” and the
“Secured Notes Registration Rights Agreement”, respectively); |
| |
| (d) |
|
the entry into of one or more purchase agreements or joinders thereto providing for the
issuance and sale of the New Unsecured Notes and the New Secured Notes and related guarantees
by certain members of the Reynolds Group (including the Company) and, following the
Acquisition, potentially by certain members of the GPC |
3
| |
|
Group (the “Unsecured Notes Purchase Agreement” and the “Secured Notes
Purchase Agreement”, respectively); |
| |
| (e) |
|
the entry into the Credit Agreement Amendment and/or joinders thereto; |
| |
| (f) |
|
the incurrence of additional indebtedness (the “Additional Bank Debt”) under
the Senior Secured Credit Facilities as amended by the Credit Agreement Amendment (the
“Amended Senior Secured Credit Facilities”) which will have the benefit of
substantially the same guarantees and security as already provided in respect of the Senior
Secured Credit Facilities and it is expected that the security and guarantees provided in
respect of the Senior Secured Credit Facilities and/or the Intercreditor Arrangements will be
amended, restated, extended, affirmed, re-affirmed, confirmed, released and/or retaken, as
necessary, in order to effectuate the foregoing. The Additional Bank Debt may also have the
benefit of guarantees and security provided, following the Acquisition, potentially by certain
members of the GPC Group, as a result of such GPC Group entities granting guarantees and
security in respect of the Amended Senior Secured Credit Facilities. |
| |
| |
|
It is intended that the Additional Bank Debt will not be drawn down until the date of the
Acquisition, however the Credit Agreement Amendment will allow for such funds either (i) to
be made available as delayed draw term loans that would be funded on the date of the
Acquisition or (ii) to be drawn down into escrow prior to the date of the Acquisition. |
| |
| |
|
If the Additional Bank Debt is either made available as delayed draw term loans or is drawn
into escrow prior to the date of the Acquisition, the Company will not be required to
confirm its guarantees and security with respect to the Additional Bank Debt until such
time as either the delayed draw term loans are funded or the escrow is released or
otherwise terminated (the “Bank Escrow Arrangements”); |
| |
| (g) |
|
the incurrence of additional indebtedness pursuant to the terms described in the
Commitment Letter; |
| |
| (h) |
|
the entry into the Facilities Documents (as such term is defined in the Commitment
Letter), including, without limitation, any credit agreements, intercreditor agreements,
security documents, indentures, registration rights agreements, purchase agreements,
notes, joinders or any other documents in connection with the Bridge Financing
Facilities or the conversion of any such Bridge Financing Facilities into term loans
and/or exchange notes as described in the Commitment Letter; |
| |
| (i) |
|
the provision by certain members of the Reynolds Group (including the Company as
an existing guarantor) of certain affirmations, reaffirmations and/or confirmations that
the guarantees in place in respect of the Existing Secured Indebtedness and Existing
Notes continue in full force and effect, notwithstanding the Transactions (as defined
below), the Escrow and Merger Arrangements, the Bank Escrow Arrangements and,
in the case of the Senior Secured Credit Facilities, extend to the Additional Bank
Debt, the Amended Senior Secured Credit Facilities and the Bridge Financing
Facilities, if any, as applicable; |
| |
| (j) |
|
the amendment, restatement, affirmation, re-affirmation, supplement, extension,
confirmation or release and retake of security, or grant of new or additional security
(which may be second, third or junior ranking) or other action in respect of collateral
under the applicable agreements, instruments or other documents creating security interests
in respect of the Existing Secured Indebtedness (collectively, the “Security
Documents”) in order to provide that such Security Documents (i) secure obligations
with respect to the New Secured Notes, the Additional Bank Debt and any secured Bridge
Financing Facilities, as applicable, on a pari passu basis with the Existing |
4
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Secured Indebtedness to the extent possible and (ii) continue to secure obligations in
respect of the Existing Secured Indebtedness (including after the consummation of the
Escrow and Merger Arrangements and the Bank Escrow Arrangements); |
| |
| (k) |
|
the entry into any amendments, supplements, joinders, designations, confirmations or
other documents in connection with the first lien intercreditor agreement dated as of November
5, 2009, between, among others, The Bank of New York Mellon, as the collateral agent, Credit
Suisse AG, and the grantors from time to time party thereto and the representatives from time
to time party thereto as amended by Amendment No. 1 and Joinder Agreement, dated as of January
21, 2010 (as further amended, extended, restated or otherwise modified the “FLICA”) to
the extent required in order to permit the New Secured Notes and/or the Additional Bank Debt
to be included as “Obligations” thereunder; |
| |
| (l) |
|
the entry into of any amendments, supplements, accessions, designations,
confirmations or other documents in connection with the intercreditor agreement dated May
11, 2007, as amended and/or restated, including, without limitation, as of (i) November 5,
2009 by an amendment and restatement agreement and (ii) November 5, 2010 by an amendment
agreement, both between, among others, RGHL as parent, Credit Suisse AG, Cayman Islands
Branch, as administrative agent and The Bank of New York Mellon as collateral agent, senior
secured notes trustee and high yield noteholders trustee (as such intercreditor agreement
may be further amended, extended, restated or otherwise modified, the “2007 ICA”);
and |
| |
| (m) |
|
following the Acquisition, the possible accession by certain members of the GPC Group to
the Existing Financing Arrangements and the Transaction Documents (as defined below) as
guarantors and/or security providers. |
(collectively, the “Transactions”).
In order to effect the Transactions, it is intended that the Company enter into and/or approve, as
relevant, the following documents, (collectively, the “Transaction Documents”):
| (a) |
|
the documents relating to the Bridge Financing Facilities, including, without limitation, the
Facilities Documents, and any credit agreements, intercreditor agreements, security documents,
indentures, registration rights agreements, purchase agreements, notes, joinders, offering
material or any other documents in connection with the Bridge Financing Facilities or the
conversion of any such Bridge Financing Facilities into term loans and/or exchange notes as
described in the Commitment Letter; |
| |
| (b) |
|
the documents relating to the Amended Senior Secured Credit Facilities, the New Secured Notes
and the New Unsecured Notes, as more particularly described in Schedule 1; and |
| |
| (c) |
|
the documents relating to the intercreditor arrangements in respect of Amended Senior Secured
Credit Facilities, the New Secured Notes, the New Unsecured Notes, the Existing Secured Notes
and the Existing Notes, as more particularly described in Schedule 2. |
5
II.
POWER OF ATTORNEY
The Company authorizes (bevoltmächtigt) the person or persons listed in Schedule 3 (the
“Authorized Signatories”) hereto, each of them individually, to act for and in the name of
the Company, and, in such capacity, to consider, settle, approve, execute or deliver the following:
| 1. |
|
execution, delivery and.performance of the Transaction Documents and any other documents
related thereto or required to be executed, delivered and performed in order to give effect to
the Acquisition and the Transactions, (including any notices, certificates, requests,
communications or other documents (together with the Transaction Documents, the
“Documents”); |
| |
| 2. |
|
any subsequent amendments (including by way of an amending agreement) to any Documents; |
| |
| 3. |
|
supplement, make alterations to and complete any blanks in any Documents (including, but not
limited to, altering or completing details of the parties), and |
| |
| 4. |
|
to do anything and consider, settle, approve, sign, agree, execute, deliver and/or issue any
documents that, in the opinion of the relevant Authorized Signatory, may be necessary,
expedient or incidental to any transaction or dealing contemplated by any of the Documents. |
In connection with the transactions, the Company hereby declares as follows:
The Authorized Signatories — each of them individually — are (i) released from the restrictions of
Section 181 second alternative German Civil Code (BGB) and to the extent legally possible according
to Section 181 first alternative German Civil Code (BGB) and (ii) authorized to grant sub-powers-of
attorney to third parties of their choice and with the same scope as this power-of-attorney and to
include the release from the restrictions of Section 181 German Civil Code (BGB). For the avoidance
of doubt, this power of attorney is to be construed broadly. The liability of each Authorized
Signatory shall be limited to willful misconduct and gross negligence. The Company shall — upon
receipt of a first demand (auf erstes Anfordern) — indemnify (freistellen) each Authorized
Signatory against expenses, losses, liabilities, judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges in connection therewith) incurred
by, or on behalf of, an Authorized Signatory in connection with this Power of Attorney.
| This Power of Attorney shall be governed by the laws of the Federal Republic of Germany. |
[Unterschriftsseite folgt/signature page follows]
6
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Omni-Pac GmbH Verpackungsmittel
Place, Date:
|
|
| By: |
/s/ Stefan Beese |
|
| |
Name: |
Stefan Beese |
|
| |
Title: |
Director |
|
| |
|
| By: |
/s/ Petro Kowalskyj |
|
| |
Name: |
Petro Kowalskyj |
|
| |
Title: |
Director |
|
Schedule 1
New Secured Notes
| |
1. |
|
The New Secured Notes Indenture, between, among others, the duly
appointed trustee for the New Secured Notes, the Escrow Issuers or Issuers and
the guarantors, or any accession, joinder or supplemental indenture thereto. |
| |
| |
2. |
|
The Secured Notes Purchase Agreement, or any accession or joinder thereto. |
| |
| |
3. |
|
The Secured Notes Registration Rights Agreement, or any accession
or joinder thereto. |
| |
| |
4. |
|
Officer’s certificates in respect of the New Secured Notes and any
officer’s certificates in respect of any opinion given in respect of the New
Secured Notes. |
New Unsecured Notes
| |
5. |
|
The New Unsecured Notes Indenture, between, among others, the duly
appointed trustee for the New Unsecured Notes, the Escrow Issuers or
Issuers and the guarantors, or any accession, joinder or supplemental
indenture thereto. |
| |
| |
6. |
|
The Unsecured Notes Purchase Agreement, or any accession or joinder
thereto. |
| |
| |
7. |
|
Unsecured Notes Registration Rights Agreement, or any accession or
joinder thereto. |
| |
| |
8. |
|
Officer’s certificates in respect of the New Unsecured Notes and any
officer’s certificates in respect of any opinion given in respect of the New
Unsecured Notes. |
Other Documents relating to the New Secured Notes, the New Unsecured Notes, and/or the Amended
Senior Secured Credit Facilities
| |
9. |
|
A confirmation, affirmation or re-affirmation agreement, between,
among others, certain of the Loan Parties, each duly appointed collateral agent
under the First Lien Intercreditor Agreement, Credit Suisse AG, as administrative
agent under the Senior Secured Credit Facilities, and The Bank of New York Mellon,
as trustee under the 2009 Indenture and in other capacities, with respect to the
continuing security and/or guarantees
in respect of the New Secured Notes and/or the Additional Bank Debt (the
“Reaffirmation Agreement”). |
| |
| |
10. |
|
The Credit Agreement Amendment, and any ancillary and/or related
documents necessary to give effect to such amendments to the Senior Secured Credit
Agreement. |
| |
| |
11. |
|
the amendment, restatement, affirmation, re-affirmation, supplement,
creation, extension, confirmation or release and retake of security, or grant of
new or additional security (which may be second ranking) or other action in
respect of collateral under the applicable agreements, instruments or other
documents creating security interests, in particular: |
8
| |
• |
|
various confirmation, reaffirmation or amendment agreements under German law
(including such agreements that require notarial recording) with respect to the continuing
or amendment of the existing German security agreements (the “German
Confirmation Agreements”); |
| |
| |
• |
|
Any agreements under which the Company grants new security such as new share pledge
agreements or new account pledge agreements (including such agreements that require
notarial recording) (the “German New Pledge Agreements”): |
| |
| |
• |
|
Any agreements under which the Company grants new security under non-German law or
confirms, reaffirms or amends existing agreements including but not limited to share
pledge agreements or interest pledge agreements relating to any shares/interests in
non-German subsidiaries (the “Non-German Pledge Agreements”). |
| |
12. |
|
Any other document, instrument and/or agreement for the purpose of confirming, affirming,
retaking or creating security in respect of the Additional Bank Debt and/or the New Secured
Notes. |
| |
| |
13. |
|
Any document, instrument and/or agreement for the purposes of implementing, or required as a
result of the implementation of, the Escrow and Merger Arrangements and/or the Bank Escrow
Arrangements, including any document, instrument or agreement which amends or otherwise varies
any security interest and/or guarantee granted by the Company. |
| |
| |
14. |
|
Any letters, notices or agreements of appointment in favour of certain related or unrelated
persons to act as process agent on behalf of the Company in respect of the Transactions. |
| |
| |
15. |
|
Any notices, certificates, requests, waivers, authorisations, amendments, letter agreements,
restatements, commumcations or other documents to be made, executed or entered into in
connection with the above and/or the Transactions. |
9
SCHEDULE 2
1. Any agreements, amendments, supplements, joinders, certificates or other documents
required to be entered into in connection with the 2007 ICA.
| 2. |
|
Any agreements, amendments, supplements, joinders, certificates, designations,
confirmations or other documents required to be entered into in connection with the
FLICA including, without limitation, in order to permit the New Secured Notes
and/or Additional Bank Debt to be included as “Obligations” thereunder. |
10
Schedule 3
Authorised Signatories
1. Graeme Richard Hart
2. Bryce McCheyne Murray
3. Helen Dorothy Golding
4. Allen Philip Hugli
5. Gregory Alan Cole
6. Mark
Dunkley
7. Cindi Lefari
8. Philip John Presnell West
9. Thomas James Degnan
10. Robert Bailey
11. Stephen David Pardy
12. Prudence Louise Wyllie
13. Chiara Francesca Brophy
14. Karen Michelle Mower
15. Jennie Blizard
and the following attorneys-at-law of Debevoise & Plimpton LLP, all with its business address at
Taubenstr. 7-9, 60313 Frankfurt am Main, Germany:
16.
Philipp von Holst
17. Dr. David Witzel
18. Klaudius Heda
19. Daniel Wiedmann
11
EXHIBIT 1
COMMITMENT LETTER
12
Certified Copy
POWER OF ATTORNEY
Pactiv Hamburg Holdings GmbH
Pactiv
Hamburg Holdings GmbH is a limited liability company
(Gesellschaft mit beschränkter Haftung)
incorporated under the laws of Germany, with its registered seat in
Hamburg, registered with the
Commercial Register of the Local Court Hamburg under HR B 106481 (the
“Company”).
I.
PREAMBLE
The Company is part of the Reynolds group of companies, which includes RGHL (as defined below) and
each of its subsidiaries (the “Reynolds Group”).
As part of the Reynolds Group, the Company is a guarantor and security provider in respect of the
Reynolds Group’s existing financing arrangements, including by:
| (a) |
|
providing a guarantee and security with respect to the senior secured credit agreement (the
“Senior Secured Credit Agreement”) dated as of November 5, 2009, between, among others,
Reynolds Group Holdings Limited (“RGHL”), the borrowers listed therein and Credit
Suisse AG, as amended, amended or restated,
supplemented or otherwise modified from time to time (the “Senior Secured Credit
Facilities”); |
| |
| (b) |
|
providing a guarantee and security with respect to the 7.75% senior secured notes due 2016
issued by members of the Reynolds Group in aggregate principal amounts of US$1,125,000,000 and
450,000,000 pursuant to an indenture dated as of November 5,
2009 (the “2009 Notes”); |
| |
| (c) |
|
providing a guarantee and security with respect to the 7.125% senior secured notes due 2019
issued by members of the Reynolds Group in an aggregate principal amount of US$1,500,000,000
pursuant to an indenture dated as of October 15, 2010 (the “October 2010
Secured Notes”); and |
| |
| (d) |
|
providing a guarantee and security with respect to the 6.875% senior secured notes due 2021
issued by members of the Reynolds Group in an aggregate principal amount of US$1,000,000,000
pursuant to an indenture dated as of February 1, 2011 (the “February 2011 Secured
Notes”); |
(the 2009 Notes, the October 2010 Secured Notes and the February 2011 Secured Notes being together,
the “Existing Secured Notes,” and together with the Senior Secured Credit
Facilities, the “Existing Secured Indebtedness”),
| (e) |
|
incurring and providing a guarantee of certain notes issued by members of the
Reynolds Group, including (i) 8% senior notes due 2016 issued in an aggregate
principal amount of €480,000,000 pursuant to an indenture dated June 29, 2007, (ii)
9.5% senior subordinated notes due 2017 issued in an aggregate principal amount of
€420,000,000 pursuant to an indenture dated June 29, 2007 (together with (i), the
“2007 Notes”), (iii) 8.5% senior notes due 2018 issued in an aggregate principal
amount of US$1,000,000,000 pursuant to an indenture dated May 4, 2010 (the “May
2010 Notes”), (iv) 9.0% senior notes due 2019 issued in an aggregate principal
amount of US$1,500,000,000 pursuant to an indenture dated October 15, 2010 (the
“October 2010 Senior Notes”) and (v) 8.250% senior notes due 2021 issued in an
aggregate principal amount of US$1,000,000,000 pursuant to an indenture dated |
| |
|
February 1, 2011 (the “February 2011 Senior Notes”) (the 2007 Notes, the May 2010
Notes, the October 2010 Senior Notes and the February 2011 Senior Notes being together, the
“Existing Notes”); and |
| |
| (f) |
|
being party to the intercreditor arrangements in respect of the guarantees,
indebtedness and security described above (the “Intercreditor Arrangements”), |
| the Existing Secured Indebtedness, the Existing Notes and the Intercreditor Arrangements being,
together, the “Existing Financing Arrangements”. |
It is currently intended that RGHL will indirectly acquire the GPC group of companies (the “GPC
Group”) through the merger of an indirect wholly owned subsidiary of RGHL with and into Graham
Packaging Company Inc. (“GPC”), with GPC surviving such merger and becoming an indirect
wholly owned subsidiary of RGHL (the “Acquisition”).
The Company has previously considered and approved the entry by the Company into the Senior Secured
Credit Agreement, as amended or otherwise modified from time to time;
RGHL has determined it may be necessary or advisable to incur additional indebtedness under the
Senior Secured Credit Facilities in order to partially fund the Acquisition, the associated costs
and transactions required to effect the Acquisition and for general corporate purposes, and the
Company is now considering entering into amendments to, and/or an amendment and restatement of, the
Senior Secured Credit Agreement, pursuant to which additional indebtedness would be incurred and
the proceeds made available under certain incremental facilities and subject to certain conditions
(the “Credit Agreement Amendment”).
RGHL has entered into a commitment letter, attached hereto as Exhibit 1 (together with the
term sheets attached thereto, the “Commitment Letter”), pursuant to which certain lenders
have provided commitments for three bridge financing facilities comprised of: a senior secured bank
bridge facility, a senior secured notes bridge facility and a senior unsecured notes bridge
facility, each as more particularly described in the Commitment Letter (collectively, the
“Bridge Financing Facilities”), which may be used to
partially fund the Acquisition and the associated costs and transactions required to effect the Acquisition.
RGHL may determine, in lieu of or in combination with issuing the New Secured Notes (as defined
below), New Unsecured Notes (as defined below) and/or incurring the Additional Bank Debt (as
defined below), that it is necessary or advisable to draw on one or more of the Bridge Financing
Facilities in order to fund all or part of the Acquisition.
In addition, RGHL and/or certain direct or indirect subsidiaries of RGHL intend to incur additional
indebtedness as set forth below. In connection with such incurrence of indebtedness, it is intended
that the Existing Financing Arrangements be supplemented and/or amended, by, among other things,
RGHL and/or certain of its direct or indirect subsidiaries doing one or more of the following:
| (a) |
|
the entry into of a new indenture (the “New Unsecured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new unsecured
notes by indirect subsidiaries of RGHL (the “New Unsecured Notes”), including the
issuance of the New Unsecured Notes and provision of related guarantees in respect of the New
Unsecured Notes by certain members of the Reynolds Group (including the Company, as
applicable) and, following the Acquisition, potentially by certain members of the GPC Group
(the “New Unsecured Notes Guarantees”); |
| |
| (b) |
|
the entry into of a new indenture (the “New Secured Notes Indenture”), or accession
thereto, by certain members of the Reynolds Group in respect of the issue of new senior
secured notes by indirect subsidiaries of RGHL (the “New
Secured Notes”), |
2
| |
|
including the issuance of the New Secured Notes and the provision of related
guarantees in respect of the New Secured Notes by certain members of the Reynolds Group
(including the Company, as applicable) and, following the Acquisition, potentially by
certain members of the GPC Group (the “New Secured Notes Guarantees”). |
| |
|
The proceeds from the issuance of the New Unsecured Notes and the New Secured Notes may be
used to partially fund the Acquisition and the associated costs and transactions required
(including, without limitation, the repayment of existing indebtedness of GPC Group and
contractual payments to existing shareholders of GPC Group) to effect the Acquisition and
for general corporate purposes. |
| |
|
It is expected that the Existing Secured Indebtedness and/or the Intercreditor Arrangements
will be amended, restated, extended, confirmed, affirmed, re-affirmed, released and/or
retaken, as necessary, in order to ensure that following the entry into the New Secured
Notes Indenture, the New Secured Notes will have the benefit of (i) guarantees from
substantially the same guarantors (including the Company) that guarantee the Existing
Secured Indebtedness and, following the Acquisition, potentially from certain members of
the GPC Group and (ii) substantially the same collateral provided in respect of the
Existing Secured Indebtedness and, following the Acquisition, potentially security provided
by certain members of the GPC Group. |
| |
|
The New Secured Notes and the New Unsecured Notes may be issued into escrow prior to the
date of the Acquisition. If the New Secured Notes or the New Unsecured Notes are issued
into escrow, the Company will not be required to provide its guarantees and security with
respect to the New Secured Notes or the New Unsecured Notes (as relevant) until such time
as the escrow is released. It is currently intended that if the New Secured Notes or the
New Unsecured Notes are issued into escrow the relevant escrow issuers, which shall be
affiliates of RGHL (the “Escrow Issuers”), will merge or otherwise be consolidated
with Reynolds Group Issuer Inc., a Delaware corporation, Reynolds Group Issuer LLC, a
Delaware limited liability company, and Reynolds Group Issuer (Luxembourg) S.A., a societe”
anonyme (a public limited liability company) under the laws of Luxembourg (the
“Existing Issuers”) or any other affiliates of RGHL which may issue the New Secured
Notes and the New Unsecured Notes (together with the Existing Issuers, the
“Issuers”) on the release of the escrow, with the Issuers being the surviving
entities (the “Escrow and Merger Arrangements”). |
| |
|
It is currently intended that if the New Secured Notes or the New Unsecured Notes are not
issued into escrow, the New Secured Notes and the New Unsecured Notes may be issued by the
Issuers; |
| (c) |
|
the entry into of one or more registration rights agreements or joinders thereto by certain
members of the Reynolds Group (including the Company) and, following the Acquisition,
potentially by certain members of the GPC Group pursuant to which such entities agree to
register the re-sale of the New Unsecured Notes and the New Secured Notes and/or register the
issuance of the Unsecured Exchange Securities and the Secured Exchange Securities (each as
defined below) (the “Unsecured Notes Registration Rights Agreement” and the
“Secured Notes Registration Rights Agreement”, respectively); |
| (d) |
|
the entry into of one or more purchase agreements or joinders thereto providing for the
issuance and sale of the New Unsecured Notes and the New Secured Notes and related guarantees
by certain members of the Reynolds Group (including the Company) and, following the
Acquisition, potentially by certain members of the GPC |
3
| |
|
Group (the “Unsecured Notes Purchase Agreement” and the “Secured Notes
Purchase Agreement”, respectively); |
| (e) |
|
the entry into the Credit Agreement Amendment and/or joinders thereto; |
| (f) |
|
the incurrence of additional indebtedness (the “Additional Bank Debt”) under
the Senior Secured Credit Facilities as amended by the Credit Agreement Amendment (the
“Amended Senior Secured Credit Facilities”) which will have the benefit of
substantially the same guarantees and security as already provided in respect of the Senior
Secured Credit Facilities and it is expected that the security and guarantees provided in
respect of the Senior Secured Credit Facilities and/or the Intercreditor Arrangements will be
amended, restated, extended, affirmed, re-affirmed, confirmed, released and/or retaken, as
necessary, in order
to effectuate the foregoing. The Additional Bank Debt may also have the benefit of
guarantees and security provided, following the Acquisition, potentially by certain members
of the GPC Group, as a result of such GPC Group entities granting guarantees and security
in respect of the Amended Senior Secured Credit Facilities. |
| |
|
It is intended that the Additional Bank Debt will not be drawn down until the date of the
Acquisition, however the Credit Agreement Amendment will allow for such funds either (i) to
be made available as delayed draw term loans that would be funded on the date of the
Acquisition or (ii) to be drawn down into escrow prior to the date of the Acquisition. |
| |
|
If the Additional Bank Debt is either made available as delayed draw term loans or is drawn
into escrow prior to the date of the Acquisition, the Company will not be required to
confirm its guarantees and security with respect to the Additional Bank Debt until such
time as either the delayed draw term loans are funded or the escrow is released or
otherwise terminated (the “Bank Escrow Arrangements”); |
| (g) |
|
the incurrence of additional indebtedness pursuant to the terms described in the Commitment Letter; |
| (h) |
|
the entry into the Facilities Documents (as such term is defined in the Commitment
Letter), including, without limitation, any credit agreements, intercreditor agreements,
security documents, indentures, registration rights agreements, purchase agreements,
notes, joinders or any other documents in connection with the Bridge Financing
Facilities or the conversion of any such Bridge Financing Facilities into term loans
and/or exchange notes as described in the Commitment Letter; |
| |
| (i) |
|
the provision by certain members of the Reynolds Group (including the Company as
an existing guarantor) of certain affirmations, reaffirmations and/or confirmations that
the guarantees in place in respect of the Existing Secured Indebtedness and Existing
Notes continue in full force and effect, notwithstanding the Transactions (as defined
below), the Escrow and Merger Arrangements, the Bank Escrow Arrangements and,
in the case of the Senior Secured Credit Facilities, extend to the Additional Bank
Debt, the Amended Senior Secured Credit Facilities and the Bridge Financing
Facilities, if any, as applicable; |
| |
| (j) |
|
the amendment, restatement, affirmation, re-affirmation, supplement, extension,
confirmation or release and retake of security, or grant of new or additional security
(which may be second, third or junior ranking) or other action in respect of collateral
under the applicable agreements, instruments or other documents creating security interests
in respect of the Existing Secured Indebtedness (collectively, the “Security
Documents”) in order to provide that such Security Documents (i) secure obligations
with respect to the New Secured Notes, the Additional Bank Debt and any secured Bridge
Financing Facilities, as applicable, on a pari passu basis with the Existing |
4
| |
|
Secured Indebtedness to the extent possible and (ii) continue to secure obligations in
respect of the Existing Secured Indebtedness (including after the consummation of the
Escrow and Merger Arrangements and the Bank Escrow Arrangements); |
| (k) |
|
the entry into any amendments, supplements, joinders, designations, confirmations or
other documents in connection with the first lien intercreditor agreement dated as of November
5, 2009, between, among others, The Bank of New York Mellon, as the collateral agent, Credit
Suisse AG, and the grantors from time to time party thereto and the representatives from time
to time party thereto as amended by Amendment No. 1 and Joinder Agreement, dated as of January
21, 2010 (as further amended, extended, restated or otherwise modified the “FLICA”) to
the extent required in order to permit the New Secured Notes and/or the Additional Bank Debt
to be included as “Obligations” thereunder; |
| (1) |
|
the entry into of any amendments, supplements, accessions, designations,
confirmations or other documents in connection with the intercreditor agreement dated May
11, 2007, as amended and/or restated, including, without limitation, as of (i) November 5,
2009 by an amendment and restatement agreement and (ii) November 5, 2010 by an amendment
agreement, both between, among others, RGHL as parent, Credit Suisse AG, Cayman Islands
Branch, as administrative agent and The Bank of New York Mellon as collateral agent, senior
secured notes trustee and high yield noteholders trustee (as such intercreditor agreement
may be further amended, extended, restated or otherwise modified, the “2007 ICA”);
and |
| (m) |
|
following the Acquisition, the possible accession by certain members of the GPC Group to
the Existing Financing Arrangements and the Transaction Documents (as defined below) as
guarantors and/or security providers. |
(collectively, the “Transactions”).
In order to effect the Transactions, it is intended that the Company enter into and/or approve, as
relevant, the following documents, (collectively, the “Transaction Documents”):
| (a) |
|
the documents relating to the Bridge Financing Facilities, including, without limitation, the
Facilities Documents, and any credit agreements, intercreditor agreements, security documents,
indentures, registration rights agreements, purchase agreements, notes, joinders, offering
material or any other documents in connection with the Bridge Financing Facilities or the
conversion of any such Bridge Financing Facilities into term loans and/or exchange notes as
described in the Commitment Letter; |
| (b) |
|
the documents relating to the Amended Senior Secured Credit Facilities, the New Secured Notes
and the New Unsecured Notes, as more particularly described in Schedule 1; and |
| (c) |
|
the documents relating to the intercreditor arrangements in respect of Amended Senior Secured
Credit Facilities, the New Secured Notes, the New Unsecured Notes, the Existing Secured Notes
and the Existing Notes, as more particularly described in Schedule 2. |
5
II.
POWER OF ATTORNEY
The Company authorizes (bevollmächtigt) the person or persons listed in Schedule 3 (the
“Authorized Signatories”) hereto, each of them individually, to act for and in the name of
the Company, and, in such capacity, to consider, settle, approve, execute or deliver the following:
| 1. |
|
execution, delivery and.performance of the Transaction Documents and any other documents
related thereto or required to be executed, delivered and performed in order to give effect to
the Acquisition and the Transactions, (including any notices, certificates, requests,
communications or other documents (together with the Transaction Documents, the
“Documents”); |
| 2. |
|
any subsequent amendments (including by way of an amending agreement) to any Documents; |
| 3. |
|
supplement, make alterations to and complete any blanks in any Documents (including, but not
limited to, altering or completing details of the parties), and |
| 4. |
|
to do anything and consider, settle, approve, sign, agree, execute, deliver and/or issue any
documents that, in the opinion of the relevant Authorized Signatory, may be necessary,
expedient or incidental to any transaction or dealing contemplated by any of the Documents. |
In connection with the transactions, the Company hereby declares as follows:
The Authorized Signatories — each of them individually — are (i) released from the restrictions of
Section 181 second alternative German Civil Code (BGB) and to the extent legally possible according
to Section 181 first alternative German Civil Code (BGB) and (ii) authorized to grant sub-powers-of
attorney to third parties of their choice and with the same scope as this power-of-attorney and to
include the release from the restrictions of Section 181 German Civil Code (BGB). For the avoidance
of doubt, this power of attorney is to be construed broadly. The liability of each Authorized
Signatory shall be limited to willful misconduct and gross negligence. The Company shall — upon
receipt of
a first demand (auf erstes Anfordern) — indemnify (freistellen) each Authorized Signatory against
expenses, losses, liabilities, judgments, fines, penalties and amounts paid in settlement
(including all interest, assessments and other charges in connection therewith) incurred by, or on
behalf of, an Authorized Signatory in connection with this Power of Attorney.
This Power of Attorney shall be governed by the laws of the Federal Republic of Germany.
[Unterschriftsseite folgt/signature page follows]
6
Place,
Date: July 20, 2011
| |
|
| |
|
Pactiv Hamburg Holdings GmbH
|
|
| BY: |
/s/ Petro Kowalskyj
|
|
| |
Name: |
Petro Kowalskyj |
|
| |
Function: Director |
|
| |
Schedule 1
New Secured Notes
| |
1. |
|
The New Secured Notes Indenture, between, among others, the duly
appointed trustee for the New Secured Notes, the Escrow Issuers or Issuers and
the guarantors, or any accession, joinder or supplemental indenture thereto. |
| |
| |
2. |
|
The Secured Notes Purchase Agreement, or any accession or joinder thereto. |
| |
| |
3. |
|
The Secured Notes Registration Rights Agreement, or any accession
or joinder thereto. |
| |
| |
4. |
|
Officer’s certificates in respect of the New Secured Notes and any
officer’s certificates in respect of any opinion given in respect of the New
Secured Notes. |
New Unsecured Notes
| |
5. |
|
The New Unsecured Notes Indenture, between, among others, the duly
appointed trustee for the New Unsecured Notes, the Escrow Issuers or
Issuers and the guarantors, or any accession, joinder or supplemental
indenture thereto, |
| |
| |
6. |
|
The Unsecured Notes Purchase Agreement, or any accession or joinder
thereto. |
| |
| |
7. |
|
Unsecured Notes Registration Rights Agreement, or any accession or
joinder thereto. |
| |
| |
8. |
|
Officer’s certificates in respect of the New Unsecured Notes and any
officer’s certificates in respect of any opinion given in respect of the New
Unsecured Notes.. |
Other Documents relating to the New Secured Notes, the New Unsecured Notes, and/or the Amended
Senior Secured Credit Facilities
| |
9. |
|
A confirmation, affirmation or re-affirmation agreement, between, among
others, certain of the Loan Parties, each duly appointed collateral agent under
the First Lien Intercreditor Agreement, Credit Suisse AG, as administrative agent
under the Senior Secured Credit Facilities, and The Bank of New York Mellon, as
trustee under the 2009 Indenture and in other capacities, with respect to the
continuing security and/or guarantees in respect of the New Secured Notes and/or
the Additional Bank Debt (the “Reaffirmation Agreement”). |
| |
| |
10. |
|
The Credit Agreement Amendment, and any ancillary and/or related
documents necessary to give effect to such amendments to the Senior Secured Credit
Agreement. |
| |
| |
11. |
|
the amendment, restatement, affirmation, re-affirmation, supplement,
creation, extension, confirmation or release and retake of security, or grant of
new or additional security (which may be second ranking) or other action in
respect of collateral under the applicable agreements, instruments or other
documents creating security interests, in particular: |
8
| |
• |
|
various confirmation, reaffirmation or amendment agreements under German law (including
such agreements that require notarial recording) with respect to the continuing or
amendment of the existing German security agreements (the “German Confirmation
Agreements”); |
| |
| |
• |
|
Any agreements under which the Company grants new security such as new share pledge
agreements or new account pledge agreements (including such agreements that require
notarial recording) (the “German New Pledge Agreements”): |
| |
| |
• |
|
Any agreements under which the Company grants new security under non-German law or
confirms, reaffirms or amends existing agreements including but not limited to share
pledge agreements or Interest pledge agreements relating to any shares/interests in
non-German subsidiaries (the “Non-German Pledge Agreements”). |
| 12. |
|
Any other document, instrument and/or agreement for the purpose of confirming, affirming,
retaking or creating security in respect of the Additional Bank Debt and/or the New Secured
Notes. |
| |
| 13. |
|
Any document, instrument and/or agreement for the purposes of implementing, or required as a
result of the implementation of, the Escrow and Merger Arrangements and/or the Bank Escrow
Arrangements, including any document, instrument or agreement which amends or otherwise varies
any security interest and/or guarantee granted by the Company. |
| |
| 14. |
|
Any letters, notices or agreements of appointment in favour of certain related or unrelated
persons to act as process agent on behalf of the Company in respect of the Transactions. |
| |
| 15. |
|
Any notices, certificates, requests, waivers, authorisations, amendments, letter agreements,
restatements, communications or other documents to be made, executed or entered into in
connection with the above and/or the Transactions. |
9
Schedule 2
1. Any agreements, amendments, supplements, joinders, certificates or other documents
required to be entered into in connection with the 2007 ICA.
2. Any agreements, amendments, supplements, joinders, certificates, designations,
confirmations or other documents required to be entered into in connection with the
FLICA including, without limitation, in order to permit the New Secured Notes
and/or Additional Bank Debt to be included as “Obligations” thereunder.
10
Schedule 3
Authorised Signatories
| 1. |
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Graeme Richard Hart |
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| 2. |
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Bryce McCheyne Murray |
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| 3. |
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Helen Dorothy Golding |
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| 4. |
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Allen Philip Hugli |
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| 5. |
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Gregory Alan Cole |
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| 6. |
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Mark Dunkiey |
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| 7. |
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Cindi Lefari |
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| 8. |
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Philip John Presnell West |
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| 9. |
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Thomas James Degnan |
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| 10. |
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Robert Bailey |
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| 11. |
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Stephen David Pardy |
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| 12. |
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Prudence Louise Wyllie |
| |
| 13. |
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Chiara Francesca Brophy |
| |
| 14. |
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Karen Michelle Mower |
| |
| 15. |
|
Jennie Blizard |
and the following attorneys-at-law of Debevoise & Plimpton LLP, all with its business address at
Taubenstr. 7-9, 60313 Frankfurt am Main, Germany:
| 16. |
|
Philipp von Hoist |
| |
| 17. |
|
Dr. David Witzel |
| |
| 18. |
|
Klaudius Heda |
| |
| 19. |
|
Daniel Wiedmann |
11
EXHIBIT 1
COMMITMENT LETTER
12
Certified Copy
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| VOLLMACHT
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POWER OF ATTORNEY |
Pactiv Corporation
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eine nach dera Recht des Staates Delaware
gegründete Gesellschaft mit Sitz in 1900 West
Field Court, Lake Forest, IL 60045, USA (die
“Vollmachtgeberin”)
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a company incorporated under the laws of
Delaware, USA, having its seat in 1900 West
Field Court, Lake Forest, IL 60045, USA (the
“Principal”) |
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bevollmächtigt und beauftragt hiennit, und Z war
unter Befreiung von den Beschränkungen des §
181 BGB und mit dem Recht zur Erteilung von
Untervollmacht im gleichen Umfang, jede der
folgenden Personen
|
|
hereby authorizes, empowers and instructs with
relief from the restrictions of Section 181
German Civil Code and with the right of
delegation and substitution to the same extent,
each of the following persons |
Philipp von Hoist,
Dr. David Witzel,
Daniel Wiedmann
Klaudius Heda
| |
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alle geschäftsansässig in den
Büros von
Debevoise & Plimpton LLP, Taubenstraße 7-9,
60313 Frankfurt am Main, Deutschland,
und zwar jeden einzehi, als bevollmachtigter
Vertreter im Namen der Vollmachtgeberin
folgende Rechtsgeschäfte und
Rechtshandlungen vorzunchmen:
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each with a business
address at the offices of
Debevoise & Plimpton LLP, Taubenstrasse 7-
9, 60313 Frankfurt am Main, Germany,
each on his/her sole signature, to act for and on
behalf of the Principal as attorney-in-fact and,
in such capacity, to perform the following legal
acts and transactions: |
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1. Den Abschluss eines Verpfandungsvertrags
mit der The Bank of New York Mellon und
anderen zur Verpfandung ihrer
Gesellschaftsanteile an Pactiv Deutschland
Holdinggesellschaft mbH eingetragen im
Handelsregister des Amtsgerichts Hamburg
unter HRB 71774 und mit Sitz in der
Friedensallee 23-25, 22765 Hamburg (“Pactiv
Deutschland”) mit Sitz in Bonn.
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1. Conclusion of a share pledge agreement
with The Bank of New York Mellon and others
regarding Sie pledge of its shares in Pactiv
Deutschland Holdinggesellschaft mbH,
registered with the commercial register of the
local court in Hamburg under registration no.
HRB 71774 and having its business seat at
Friedensallee 23-25,22765 Hamburg (“Pactiv
Deutschland”). |
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2. Sämtliche Erklärungen abzugeben und
sämtliche Handlungen vorzunehmen, die nach
dem Ermessen des Bevollmächtigten
erforderlich oder nützlich
sind (einschließlich etwaiger Anmeldungen zum Handelsregister).
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2. To make all statements and do all acts and
things deemed necessary or useful, at the
discretion of the attorney-in-fact (including
applications with the
commercial register). |
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Im Zweifel ist diese Vollmacht weit
auszulegen.
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For the avoidance of doubt, this power of
attorney is to be construed broadly. |
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Diese Vollmacht erlischt am 31. März 2012,
24:00 Uhr, wenn sie nicht zuvor widerrufen
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This power of attorney shall lapse on March |
| |
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wurde.
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31,2012,24:00h, if not revoked earlier. |
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Die Haftung des Bevollmachtigten beschränkt
sichäuf Vorsatz.
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The attorney-in-fact’s liability shall be limited
to willful misconduct. |
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Die Vollmachtgeberin wird auf erstes
Anfordern jeden oben genarmten
Bevollmächtigten hinsichtlich Aufwendungen,
Verluste, Verpflichtungen, Gerichtsurteilen,
Geldbußen, Strafen und Beträgen, die in
Vergleichen bezahlt werden (einschließlich
aller Zinsen, Abgaben und anderer Gebuhren in
diesem Zusarrunenhang) freistellen, die bei
einem Bevollmächtigten entstehen oder auf
Veranlassung eines Bevollmächtigten in
Zusammenhang mit der Vollmacht entstehen.
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The Principal shall — upon receipt of a first
demand (auf erstes Anfordern) — indemnify
(freistellen) each Attorney-in-Fact mentioned
above against expenses, losses, liabilities,
judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments
and other charges in connection therewith)
incurred by, or on behalf of, an Attorney-in-
Fact in connection with this Power of Attorney. |
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Die deutschsprachige Fassung dieser
Vollmacht ist bestimmend.
Die Vollmacht unterliegt dem Recht der
Bundesrepublik Deutschland.
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The German version of this power of attorney
shall prevail.
The Power of Attorney shall be governed by
the laws of the Federal Republic of Germany. |
[Signature Page follows]
2
Ort/Place, Datum/Date:
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Pactiv Corporation
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By: |
/s/ Helen Golding
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Name: |
Helen Golding |
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Function: Vice President |
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3
Certified Copy
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The Bank of New York Mellon, a banking corporation company duly incorporated and existing
under the laws of the State of New York, and having its registered office at One Wall Street,
New York, NY 10286, U.S.A. (the “Company”) hereby undertakes as follows:
WHEREAS:
| (A) |
|
the Company has been appointed as collateral agent (the “Collateral Agent”) under a
first lien intercreditor agreement dated 5 November 2009 (as subsequently amended pursuant
to Amendment No. 1 and Joinder Agreement dated as of January 21, 2011) between,
among others, The Bank of New York Mellon as collateral agent and representative under
certain indentures, Credit Suisse AG as representative under a certain credit agreement,
Wilmington Trust (London) Limited as an additional collateral agent and each grantor
(including, without limitation, Reynolds Consumer Products Holdings Inc., Reynolds
Group Holdings Inc., Closure Systems Mernational Holdings Inc., Reynolds Group Issuer
LLC, Reynolds Group Issuer Inc.) that are parties thereto (the “Grantors”) (the “First
Lien Intercreditor Agreement”); and |
| |
| (B) |
|
pursuant to the First Lien Intercreditor Agreement, the Collateral Agent may hold
certain
security interests for itself and other secured parties in connection with the
obligations of
the Grantors under the certain credit agreement and certain indentures referred to
above. |
The Company acting herein by its duly authorized officers,
HEREBY APPOINTS Rudolf Schiifer, Volkmar Fenkl, Tereza Sipkova, Christopher Strakosch and
Tsampikos Trigenis as its true and lawful attorneys-in-fact, each with full power and
authority to act severally as herein described, in the name and on behalf of the Company:
To act on behalf of the Company in its capacity as Collateral Agent and on behalf of other
secured parties who have vested rights in the company as their Collateral Agent in any and all
matters in respect to the conclusion, implementation, amendment, approval, cancellation,
termination of security agreements and the establishment of other security as well as other
financing agreements and ancillary agreements granted to the Collateral Agent in accordance
with to the terms of the Collateral Agreement on such terms and conditions which the acting
attorney-in-fact considers appropriate in its absolute and unfettered discretion. The security
agreements include, in particular, pledges of shares and, without limitation, preparing and
executing documents, notices and reports, communicating with governmental bodies and obtaining
necessary approvals; and
To engage in any and all acts, things, and activities which are related to, incidental or
conducive directly or indirectly, to the attainment of the foregoing objectives, including, but
not limited to obtaining the notarization of any documents.
Giving and granting unto its said attorneys-in-fact full power and authority to do and perform each
and every act and thing whatsoever requisite, necessary and proper to be done in the performance of
the above to all intents and purposes as it might or could do if it were acting for itself with
full power of substitution and revocation, hereby ratifying and continuing all that its said
attorneys or their respective appointed substitute shall lawfully do or cause to be done by virtue
of this document unless revoked by the undersigned Company by written instrument
THIS POWER OF ATTORNEY shall become effective immediately and unless previously revoked, shall
expire upon August 31, 2012.
THIS POWER OF ATTORNEY shall be governed by and constructed in accordance with the laws of the
State of New York.
IN WITNESS WHEREOF, the Company has caused it name to be subscribed hereto by its duly
authorized representative this 5th day of August 2011.
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| THE BANK OF NEW YORK MELLON
|
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THE BANK OF NEW YORK MELLON |
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By: |
/s/ Sonia Chaliha
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By:
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/s/ Catherine F. Donohue |
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Name: Sonia Chaliha
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Name: Catherine F. Donohue |
|
Title: Managing Director
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Title: Vice President |
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| STATE OF NEW YORK |
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) |
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) ss: |
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| COUNTY OF NEW YORK
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) |
|
On the 5th day of August in the year 2011 before me, the undersigned, a Notary Public in and
for said State, personally appeared Sonia Ghaliha, Managing Director, and Catherine F.
Donohue, Vice President, personally known to me or proved to me on the basis of satisfactory
evidence to be the individuals whose names are subscribed to the within instrument and acknowledged
to me that they executed the same in their capacities, and that by their signatures on the
instrument, the individuals, or the person upon behalf of which the individual acted, executed the
instrument.
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WITNESS MY HAND AND OFFICIAL SEAL.
|
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| /s/ Danny Lee
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| NOTARY PUBLIC |
|
(Seal)
DANNY LEE, NOTARY PUBLIC
State of New York, NO. 01LE6161129
Qualified in New York County
Commission Expires February 20, 2015
BNY MELLON
Patricia A. Bicket
Vice President and Secretary, The Bank of New York Mellon
CERTIFICATE
I, the undersigned, Patricia A. Bicket, Secretary of The Bank of New York Mellon, a New York
banking corporation with its principal office at One Wall Street, New York, New York 10286, DO
HEREBY CERTIFY that the following individuals are duly appointed and qualified officers of The Bank
of New York Mellon:
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| Name |
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Title |
Sonia Chaliha
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Managing Director |
| |
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| Catherine F. Donohue
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Vice President |
I FURTHER CERTIFY that they have been authorized to execute Powers of Attorney on behalf of
the Bank in discharging or performing their duties within the Corporate Trust Division in
accordance with Section 6.4 of the By-Laws of The Bank of New York Mellon as amended through
October 12, 2010, a true copy of which is attached hereto.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of The Bank of New York
Mellon this 5th day of August, 2011.
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/s/ Patricia A. Bicket
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Secretary |
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One Wall Street, 9th Floor, New York, NY 10286
T 212 635 1787 F 212 635 1269 patricia.bicket@bnymellon.com
\
SIGNING AUTHORITIES
Extracts from By-Laws of
THE BANK OF NEW YORK MELLON
ARTICLE VI
As Amended through October 12, 2010
SECTION 6.1 [Intentionally Omitted]
SECTION 6.2 Senior Signing Powers. The Chief Executive Officer, the President, . any Vice
Chairman, any Senior Executive Vice President and any Executive Vice President is authorized to
accept, endorse, execute or sign any document, instrument or paper in the name of, or on behalf of,
the Bank in all transactions arising out of, or in connection with, the normal
course of the Bank’s business or in any fiduciary, representative or agency capacity and, when
required, to affix the seal of the Bank thereto. In such instances as in the judgment of the Chief
Executive Officer, the President, any Vice Chairman, any Senior Executive Vice President or any
Executive Vice President may be proper and desirable, any one of said officers may authorize in
writing, including email and other forms of electronic communication or approval, from time-to-time
any other officer to have the powers set forth in this section applicable only to the performance
or discharge of the duties of such officer within his or her particular division or function. Any
officer of the Bank authorized in or pursuant to Section 6.3 to have any of the powers set forth
therein, other than the officer signing pursuant to this Section 6.2, is authorized to attest to
the seal of the Bank on any documents requiring such seal.
SECTION 6.3. Limited Signing Powers. In such instances as in the judgment of the Chief
Executive Officer, the President, any Vice Chairman, any Senior Executive Vice President, or any
Executive Vice President may be proper and desirable, any one of said officers may authorize in
writing, including email and other forms of electronic communication or approval, from time to time
any other officer, employee or individual to have the limited signing powers or limited power to
affix the seal of the Bank to specified classes of documents set forth in a resolution of the Board
applicable only to the performance or discharge of the duties of such officer, employee or
individual within his or her division or function.
SECTION 6.4 Powers of Attorney. All powers of attorney on behalf of the Bank shall be executed
by any officer of the Bank jointly with the Chief Executive Officer, the President, any Vice
Chairman, any Senior Executive Vice President, any Executive Vice President, any Senior Vice
President or any Managing Director, provided that the execution by such Senior Vice President or
Managing Director of said Power of Attorney shall be applicable only to the performance or
discharge of the duties of such officer within his or her particular division or function. Any such
power of attorney may, however, be executed by any officer or officers or person or persons who may
be specifically authorized to execute the same by the Board of Directors and, at foreign branches
only, by any two officers provided one of such officers is the Branch Manager.
SECTION 6.5. Auditor. The Chief Auditor or any officer designated by the Chief Auditor is
authorized to certify in the name of, or on behalf of the Bank, in its own right or in a fiduciary
or representative capacity, as to the accuracy and completeness of any account, schedule of assets,
or other document, instrument or paper requiring such certification.
