SHARE PLEDGE AGREEMENT RELATING TO
APPENDIX 1
Execution Version
SIG BETEILIGUNGS GMBH
PACTIV LLC
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.
▇▇▇▇▇▇▇▇ CHANCE PARTNERSCHAFTSGESELLSCHAFT VON RECHTSANWÄLTEN, WIRTSCHAFTSPRÜFERN, STEUERBERATERN UND SOLICITORS • SITZ: FRANKFURT AM MAIN • ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇
APPENDIX 1
Contents | |||
Clause | Page | ||
1. | Definitions and Language .............................................................................................. | 7 | |
2. | Pledged Shares ............................................................................................................. | 14 | |
3. | Pledge ........................................................................................................................... | 14 | |
4. | Scope of the Pledge ...................................................................................................... | 15 | |
5. | Purpose of the Pledge................................................................................................... | 16 | |
6. | Exercise of Membership Rights ................................................................................... | 16 | |
7. | Enforcement of the Pledge ........................................................................................... | 16 | |
8. | Limitations on Enforcement ........................................................................................ | 17 | |
9. | Approval and Confirmation ......................................................................................... | 20 | |
10. | Undertakings of each Pledgor ...................................................................................... | 20 | |
11. | Delegation .................................................................................................................... | 21 | |
12. | Indemnity ..................................................................................................................... | 21 | |
13. | No Liability .................................................................................................................. | 22 | |
14. | Duration and Independence ......................................................................................... | 22 | |
15. | Release of Pledge (Pfandfreigabe) .............................................................................. | 23 | |
16. | Partial Invalidity; Waiver ............................................................................................. | 23 | |
17. | Amendments ................................................................................................................ | 24 | |
18. | Notices and their Language ......................................................................................... | 24 | |
19. | Notification .................................................................................................................. | 25 | |
20. | Applicable Law, Jurisdiction ....................................................................................... | 25 | |
Schedule 1 ................................................................................................................................ | 27 | ||
Part 1 List of Current Borrowers ............................................................................................. | 27 | ||
Part 2 List of Current Guarantors, Current October 2010 Secured Notes Guarantors, Current | |||
February 2011 Secured Notes Guarantors, Current August 2011 Secured Notes | |||
Guarantors and Current September 2012 Secured Notes Guarantors | .......................... 28 | ||
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Part 3 Copy of Shareholders List (Gesellschafterliste) 33
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This SHARE PLEDGE AGREEMENT (the "Agreement") is made on 14 February 2014
BETWEEN:
(1) | SIG Beteiligungs GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) organised under the laws of the Federal Republic of Germany, having its business address at ▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of ▇▇▇▇▇ under HRB 6373 (the "Pledgor 1"); |
(2) | Pactiv LLC, a company organised under the laws of Delaware, with the corporate identity number 0624402 having its business address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇, (the "Pledgor 2" and, together with Pledgor 1, the "Pledgors"); |
(3) | 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 ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, which is registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Hamburg under HRB 71774 (the "Company); and |
(4) | The Bank of New York Mellon, having its business address at ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, 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 third amended and restated senior secured multi-currency term and revolving credit agreement dated 28 September 2012 of up to USD 2,355,000,000 and EUR 380,000,000 between, inter alios, 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 "Third Amended and Restated Credit Agreement"), which amends and restates the multi-currency term and revolving credit agreement originally dated 5 November 2009 between, inter alios, the Current Borrowers, the Current Guarantors, Credit Suisse AG as administrative agent and others (as amended and restated pursuant to the Third 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 alios, ▇▇▇▇▇▇▇▇ Group Issuer LLC, ▇▇▇▇▇▇▇▇ Group Issuer Inc., and ▇▇▇▇▇▇▇▇ Group Issuer (Luxembourg) S.A as Issuers (as defined below) and certain affiliates of the |
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Issuers as 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 EUR 450,000,000 (the "2009 Senior Secured Notes") to certain noteholders.
(C) | On September 14, 2012, an offer was made to purchase USD 1,125,000,000 7.75% USD notes due 2016 issued under the 2009 Senior Secured Notes Indenture. Approximately USD 777,489,000 aggregate principal amount of the USD notes were tendered. The settlement took place on September 28, 2012. The remainder of the USD notes were redeemed on October 29, 2012. The EUR 450,000,000 7.75% 2009 Senior Secured Notes issued under the 2009 Senior Secured Notes Indenture were redeemed on December 13, 2012 (the transactions described in the last three sentences, collectively, the “2009 Senior Secured Notes Redemption”). |
(D) | Pursuant to a senior secured notes indenture dated 15 October 2010 between, inter alios, 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 (as defined below), 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"). |
(E) | Pursuant to a senior secured notes indenture dated 1 February 2011 between, inter alios, 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"). |
(F) | Pursuant to a senior secured notes indenture dated 9 August 2011 between, inter alios, 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, |
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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 "August 2011 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 "August 2011 Secured Notes"). In connection with the release from escrow of the proceeds of the August 2011 Secured Notes, which occurred on 8 September 2011 RGHL US Escrow II Inc. and RGHL US Escrow II LLC were merged with and into ▇▇▇▇▇▇▇▇ Group Issuer Inc. and ▇▇▇▇▇▇▇▇ Group Issuer LLC (together with ▇▇▇▇▇▇▇▇ Group Issuer (Luxembourg) S.A., the "August 2011 Ultimate Issuers"), respectively, and the obligations of the August 2011 Escrow Issuers were 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. The August 2011 Ultimate Issuers and certain affiliates of the August 2011 Ultimate Issuers listed in Schedule 1 Part 2 hereto which have acceded to the August 2011 Secured Notes Indenture as current August 2011 secured notes guarantors (the "Current August 2011 Secured Notes Guarantors") guarantee the August 2011 Secured Notes.
(G) | Pursuant to a senior secured notes indenture dated 28 September 2012 between, inter alios, the Issuers, The Bank of New York Mellon as indenture trustee, principal paying agent, transfer agent, collateral agent and registrar, The Bank of New York Mellon, London Branch as paying agent and Wilmington Trust (London) Limited as additional collateral agent (as amended, varied, novated, supplemented, superseded or extended from time to time, the "September 2012 Secured Notes Indenture"), the Issuers have issued secured notes due 2020 in the aggregate principal amount of USD 3,250,000,000 (the "September 2012 Secured Notes") which are guaranteed by certain affiliates of the Issuers listed in Schedule 1 Part 2 hereto as current September 2012 secured notes guarantors (the "Current September 2012 Secured Notes Guarantors"). |
(H) | As a result of the Third Amended and Restated Credit Agreement and the amendment No. 8 and incremental term loan assumption agreement dated 27 November 2013 between, inter alios, the Current Borrowers, the Current Guarantors, Credit Suisse AG as administrative agent and others (the "Amendment No. 8 and Incremental Term Loan Assumption Agreement") certain lenders have agreed to grant incremental term loans in an aggregate amount of up to USD 2,212,650,000 and EUR 297,000,000 to repay the existing borrowings under the Third Amended and Restated Credit Agreement. |
(I) | As a result of the Credit Agreement and the loan modification agreement dated 27 December 2013 between, inter alios, the Current Borrowers, the Current Guarantors, Credit Suisse AG as administrative agent and others (the "Loan Modification Agreement"), the parties have agreed to refinance certain indebtedness and amend certain terms of the revolving facility provided under the Credit Agreement, including without limitation, to extend the maturity and to reduce the aggregate principal amount of the Euro tranche of the revolving facility to EUR 54,235,000. |
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(J) | The Pledgors have agreed to grant an additional pledge (subject to the pledges arising under the Existing Share Pledge Agreements (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). |
(K) | 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 alios, the Collateral Agent, The Bank of New York Mellon as 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"). |
(L) | The Pledgors have entered into the Existing Share Pledge Agreements (as defined below). |
NOW, IT IS AGREED as follows:
1. | DEFINITIONS AND LANGUAGE |
1.1 | Definitions |
In this Agreement:
"Administrative Agent" means Credit Suisse AG, Cayman Islands Branch, having its business address at Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ 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.
"August 2011 Secured Notes Documents" shall mean the August 2011 Secured Notes Indenture, the August 2011 Secured Notes Guarantees, the August 2011 Secured Notes, the Intercreditor Arrangements, any supplemental indenture, any security document relating to the August 2011 Secured Notes and/or the August 2011 Secured Notes Indenture and any other document that may be entered into pursuant to any of the foregoing.
"August 2011 Secured Notes Guarantees" shall mean the guarantees of the obligations of the Issuers under the August 2011 Secured Notes and the August 2011 Secured Notes Indenture by the August 2011 Secured Notes Guarantors.
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"August 2011 Secured Notes Guarantors" means the Current August 2011 Secured Notes Guarantors and any entity which may accede to the August 2011 Secured Notes Indenture as additional guarantor.
"August 2011 Secured Notes Holders" shall mean the holders from time to time of the August 2011 Secured Notes.
"August 2011 Secured Notes Indenture Trustee" shall mean The Bank of New York Mellon, in its capacity as indenture trustee under the August 2011 Secured Notes Indenture and any successor appointed as indenture trustee under the August 2011 Secured Notes Indenture.
"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 ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, 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 October 2010 Secured Notes Documents, the February 2011 Secured Notes Documents, the August 2011 Secured Notes Documents and the September 2012 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 October 2010 Secured Notes Indenture and/or the February 2011 Secured Notes Indenture and/or the August 2011 Secured Notes Indenture and/or the September 2012 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 alios , Beverage Packaging Holdings (Luxembourg) I S.A., Rank Group Holdings Limited (now ▇▇▇▇▇▇▇▇ Group Holdings Limited), Beverage Packaging Holdings (Luxembourg) II S.A., Beverage Packaging Holdings (Luxembourg) III S.à ▇.▇., Credit Suisse AG (formerly Credit Suisse) as security trustee and others.
"Existing Shares 1" has the meaning given to such term in sub-Clause 2.1 hereof.
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"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 Agreements" means:
(a) | the share pledge agreement dated 2 March 2011 and 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; |
(b) | the share pledge agreement dated 8 September 2011 and 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; and |
(c) | the share pledge agreement dated 7 November 2012 and 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
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(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.
"Grantors" means the Loan Parties, the Issuers, the August 2011 Ultimate Issuers, the October 2010 Secured Notes Guarantors, the February 2011 Secured Notes Guarantors, the August 2011 Notes Guarantors and the September 2012 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, the August 2011 Ultimate Issuers, the October 2010 Secured Notes Guarantors, the February 2011 Secured Notes Guarantors, the August 2011 Notes Guarantors and the September 2012 Secured Notes Guarantors under the Credit Documents and "Grantor" means any of them.
"Grantors' Agent" shall mean ▇▇▇▇▇▇▇▇ Group Holdings Limited or any other person appointed as agent of the Grantors in accordance with the Principal Finance Documents.
"Group" means ▇▇▇▇▇▇▇▇ 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 750,000,000 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.
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"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.
"2013 Intercreditor Agreement" means the intercreditor agreement dated 15 November 2013 between, inter alios, Beverage Packaging Holdings (Luxembourg) I S.A., ▇▇▇▇▇▇▇▇ Group Holdings Limited, Beverage Packaging Holdings (Luxembourg) II S.A., Beverage Packaging Holdings II Issuer Inc., Credit Suisse AG as administrative agent and The Bank of New York Mellon as noteholders trustee.
"Intercreditor Arrangements" means the First Lien Intercreditor Agreement, the Existing Intercreditor Agreement and the 2013 Intercreditor Agreement, in each case as amended, novated, supplemented, restated, or modified from time to time.
"Issuers" means ▇▇▇▇▇▇▇▇ Group Issuer LLC, ▇▇▇▇▇▇▇▇ Group Issuer Inc., and ▇▇▇▇▇▇▇▇ Group Issuer (Luxembourg) S.A and "Issuer" means any of them.
"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 Third Amended and Restated Credit Agreement, the Amendment No. 8 and Incremental Term Loan Assumption Agreement and the Loan Modification 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 ▇.▇. 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.
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"Local Facility Provider" means HSBC Trinkaus & ▇▇▇▇▇▇▇▇▇ ▇▇, 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.
"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 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.
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"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 October 2010 Secured Notes Indenture, the February 2011 Secured Notes Indenture, the August 2011 Secured Notes Indenture, the September 2012 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 October 2010 Secured Notes Holders, the February 2011 Secured Notes Holders, the August 2011 Secured Notes Holders and the September 2012 Secured Notes Holders, the October 2010 Secured Notes Indenture Trustee, the February 2011 Secured Notes Indenture Trustee, the August 2011 Secured Notes Indenture Trustee and the September 2012 Secured Notes Indenture Trustee, the Collateral Agent, the Local Facility Providers and the Cash Management Banks.
"September 2012 Secured Notes Documents" shall mean the September 2012 Secured Notes Indenture, the September 2012 Secured Notes Guarantees, the September 2012 Secured Notes, the Intercreditor Arrangements, any supplemental indenture, any security document relating to the September 2012 Secured Notes and/or the September 2012 Secured Notes Indenture and any other document that may be entered into pursuant to any of the foregoing.
"September 2012 Secured Notes Guarantees" shall mean the guarantees of the obligations of the Issuers under the September 2012 Secured Notes and the September 2012 Secured Notes Indenture by the September 2012 Secured Notes Guarantors.
"September 2012 Secured Notes Guarantors" means the Current September 2012 Secured Notes Guarantors and any entity which may accede to the September 2012 Secured Notes Indenture as additional guarantor.
"September 2012 Secured Notes Holders" shall mean the holders from time to time of the September 2012 Secured Notes.
"September 2012 Secured Notes Indenture Trustee" shall mean The Bank of New York Mellon, in its capacity as indenture trustee under the September 2012 Secured Notes Indenture and any successor appointed as indenture trustee under the September 2012 Secured Notes Indenture.
"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.
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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 3 (Copy of Shareholders List). |
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. |
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4. | SCOPE OF THE PLEDGE |
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. |
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
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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 PLEDGE |
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 PLEDGE |
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. |
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. |
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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. |
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, |
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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 1'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 lead to a violation of the capital maintenance requirement as set out in Section 30 para 1 of the 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 Pledgor 1'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 1'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 1'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. |
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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 up-stream 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 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 1'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 1'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 |
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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.
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; |
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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; |
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 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 Agreements 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
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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 ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ 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 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 (▇▇▇▇▇ 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 (▇▇▇▇▇ 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 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. |
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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 their accessory nature (Akzessorietät) cease to exist by operation of German mandatory law. |
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 ▇▇▇▇), 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 |
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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 Pledgors: | SIG Beteiligungs GmbH | ||
Address: | ▇▇▇▇▇▇▇▇▇▇ ▇▇, | ||
▇▇▇▇▇ ▇▇▇▇▇▇▇, | |||
▇▇▇▇▇▇▇ | |||
Fax: | ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ | ||
Attention: | Managing | Directors | |
(Geschäftsführung) | |||
for the Pledgors with a copy to: | |||
Address: | c/o Rank Group Limited | ||
▇▇▇▇▇ ▇ | |||
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ | |||
▇▇ ▇▇▇ ▇▇▇▇ | |||
▇▇▇▇▇▇▇▇ ▇▇▇▇ | |||
New Zealand | |||
Telephone. | ▇▇▇ ▇▇▇▇ ▇▇▇ | ||
Fax: | ▇▇▇ ▇▇▇▇ ▇▇▇ | ||
Attention: | ▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||
For the Pledgee: | The Bank of New York Mellon | ||
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Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
The United States of
America
Telephone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
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 | 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. |
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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 of the 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. |
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Schedule 1
PART 1
LIST OF CURRENT BORROWERS
SIG Euro Holding AG & Co. KGaA
Closure Systems International Holdings Inc.
Closure Systems International B.V.
▇▇▇▇▇▇▇▇ Consumer Products Holdings LLC
▇▇▇▇▇▇▇▇ Group Holdings Inc.
Pactiv LLC
Beverage Packaging Holdings (Luxembourg) III S.à ▇.▇.
Evergreen Packaging Inc.
▇▇▇▇▇▇▇▇ Consumer Products Inc.
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PART 2
LIST OF CURRENT GUARANTORS, CURRENT OCTOBER 2010 SECURED NOTES GUARANTORS, CURRENT FEBRUARY 2011 SECURED NOTES GUARANTORS, CURRENT AUGUST 2011 SECURED NOTES GUARANTORS AND CURRENT SEPTEMBER 2012 SECURED NOTES GUARANTORS
SIG Austria Holding GmbH
SIG Combibloc GmbH
SIG Combibloc GmbH & Co. KG
Closure Systems International (Brazil) Sistemas de Vedação Ltda.
SIG Beverages Brasil Ltda
SIG Combibloc do Brasil Ltda
Evergreen Packaging Canada Limited
Pactiv Canada Inc.
Omni-Pac Ekco GmbH Verpackungsmittel
Omni-Pac GmbH Verpackungsmittel
Pactiv Deutschland Holdinggesellschaft mbH
SIG Combibloc GmbH
SIG Combibloc Holding GmbH
SIG Combibloc Systems GmbH
SIG Combibloc Zerspanungstechnik GmbH
SIG Euro Holding AG & Co. KGaA
SIG Information Technology GmbH
SIG International Services GmbH
SIG Beteiligungs GmbH
Beverage Packaging Holdings (Luxembourg) I S.A.
Beverage Packaging Holdings (Luxembourg) II S.A.
Beverage Packaging Holdings (Luxembourg) III S.à ▇.▇.
Evergreen Packaging (Luxembourg) S.à ▇.▇.
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▇▇▇▇▇▇▇▇ Group Issuer (Luxembourg) S.A.
Beverage Packaging Holdings (Luxembourg) IV S.à ▇.▇.
Beverage Packaging Holdings (Luxembourg) V S.A.
Beverage Packaging Holdings (Luxembourg) VI S.à ▇.▇.
CSI en Ensenada, S. de ▇.▇. de C.V.
CSI en Saltillo, S. de ▇.▇. de C.V.
CSI Tecniservicio, S. de ▇.▇. de C.V.
Grupo CSI de Mexico, S. de ▇.▇. de ▇.▇.
▇▇▇▇▇▇▇▇ Metals Company de Mexico, S. de ▇.▇. de CV
Pactiv Foodservice México, S. de ▇.▇. de C.V.
Grupo Corporativo Jaguar S.A. de C.V.
Servicios Industriales Jaguar, S.A. de C.V.
Servicio Terrestre Jaguar, S.A. de C.V.
Pactiv Mexico S. de ▇.▇. de C.V.
Closure Systems International B.V.
Evergreen Packaging International B.V.
▇▇▇▇▇▇▇▇ Packaging International B.V.
▇▇▇▇▇▇▇▇ Group Holdings Limited
Whakatane Mill Limited
SIG allCap AG
SIG Combibloc Group AG
SIG Combibloc Procurement AG
SIG Combibloc (Schweiz) AG
SIG Schweizerische Industrie-Gesellschaft AG
SIG Technology AG
SIG Combibloc Ltd.
▇▇▇▇▇▇ Packaging PX Company
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▇▇▇▇▇▇ Packaging PX, LLC
Bakers Choice Products, Inc.
BCP/ ▇▇▇▇▇▇ Holdings L.L.C.
Beverage Packaging Holdings II Issuer Inc.
Blue Ridge Holding Corp.
Blue Ridge Paper Products Inc.
Closure Systems International Americas, Inc.
Closure Systems International Holdings Inc.
Closure Systems International Inc.
Closure Systems International Packaging Machinery Inc.
Closure Systems Mexico Holdings LLC
CSI Mexico LLC
CSI Sales & Technical Services Inc.
Evergreen Packaging Inc.
GPACSUB LLC
GPC Capital Corp. I
GPC Capital Corp. II
GPC Holdings LLC
GPC OPCO GP LLC
GPC SUB GP LLC
▇▇▇▇▇▇ Packaging Acquisition Corp.
▇▇▇▇▇▇ Packaging Company, Inc.
▇▇▇▇▇▇ Packaging Company, ▇.▇.
▇▇▇▇▇▇ Packaging LC, ▇.▇.
▇▇▇▇▇▇ Packaging LP Acquisition LLC
▇▇▇▇▇▇ Packaging PET Technologies Inc.
▇▇▇▇▇▇ Packaging Plastic Products Inc.
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▇▇▇▇▇▇ Packaging PX Holding Corporation
▇▇▇▇▇▇ Packaging Regioplast STS Inc.
▇▇▇▇▇▇ Packaging GP Acquisition LLC
Pactiv LLC
Pactiv Germany Holdings Inc.
Pactiv International Holdings Inc.
Pactiv Management Company LLC
PCA West Inc.
Pactiv Packaging Inc.
RenPac Holdings Inc.
▇▇▇▇▇▇▇▇ Consumer Products Holdings LLC.
▇▇▇▇▇▇▇▇ Presto Products Inc.
▇▇▇▇▇▇▇▇ Consumer Products Inc.
▇▇▇▇▇▇▇▇ Group Holdings Inc.
▇▇▇▇▇▇▇▇ Group Issuer Inc.
▇▇▇▇▇▇▇▇ Group Issuer LLC
▇▇▇▇▇▇▇▇ Manufacturing, Inc.
▇▇▇▇▇▇▇▇ Services Inc.
SIG Combibloc Inc.
SIG Holding USA, LLC
Spirit Foodservice Products, Inc.
Spirit Foodservice, Inc.
Master Containers, Inc.
Southern Plastics, Inc.
BRPP, LLC
▇▇▇▇▇▇ Packaging Minster LLC
▇▇▇▇▇▇ Packaging Holdings Company
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▇▇▇▇▇▇ Recycling Company, ▇.▇.
▇▇▇▇▇▇ Packaging West Jordan, LLC
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PART 3
COPY OF SHAREHOLDERS LIST (GESELLSCHAFTERLISTE)
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