QUOTA PLEDGE AGREEMENT Among The Bank of New York Mellon as Collateral Agent for the benefit of the Secured Parties under the First Lien Intercreditor Agreement Closure Systems International B.V. and Closure Systems International Holdings Inc. as...
EXHIBIT 4.134
Among
The Bank of New York Mellon
as Collateral Agent for the benefit of the Secured Parties under the First Lien Intercreditor
Agreement
Agreement
Closure Systems International B.V.
and
Closure Systems International Holdings Inc.
as Grantors
and
Closure Systems International (Brazil) Sistemas de Vedação Ltda.
as the Company
Dated as of
January 29, 2010
January 29, 2010
“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 Loan
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 Loan 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 Loan 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 Loan
Document to an Austrian addressee.”
This Quota Pledge Agreement (“Agreement”) is made as of January 29, 2010, by and
among:
(a) Closure Systems International B.V., a company, duly organized and existing in
accordance with the laws of the Netherlands, with its registered office at Xxxxxxxxxxxxxxxxx 000,
0000XX Xxxxxxxxx, Xxxxxxxxxxx, herein duly represented in accordance with its Charter Documents
(together with its successors and permitted assignees, “CSI B.V.”);
(b) Closure Systems International Holdings Inc., a company duly incorporated and
existing under the laws of the State of Delaware, United States of America (“USA”) , with its head
office at National Registered Agents, Inc, 000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxx XX 00000 and
principal place of business at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, XX, 00000, XXX, herein duly
represented in accordance with its Charter Documents (together with its successors and permitted
assignees, “CSI Holdings” and together with CSI B.V., the “Grantors”);
(c) The Bank of New York Mellon, a financial institution duly organized and existing
under the laws of the State of New York, with its registered office at, One Wall Street, New York,
New York, acting exclusively in the capacity as collateral agent of and for the benefit of the
Secured Parties under the First Lien Intercreditor Agreement (together with its successors and
permitted assignees in such capacity, “Collateral Agent”); and
(d) Closure Systems International (Brazil) Sistemas de Vedação Ltda., a limited
liability company duly organized and existing in accordance with the laws of Brazil, with its
registered office in the City of Barueri, State of São Paulo, at Alameda Araguaia, nº 1.819-1.889,
Sítio Tamboré, enrolled with the Brazilian Taxpayers Roll of the Ministry of Finance (CNPJ/MF)
under nº 09.074.885/0001-48 (the “Company”).
WHEREAS, CSI B.V. is the legal owner of 24,833,565 (twenty four million, eight hundred and
thirty three thousand, five hundred and sixty five) quotas representing R$24,833,565.00 (twenty
four million, eight hundred and thirty three thousand, five hundred and sixty five reais) and being
100% (one hundred per cent) of the capital stock, less one quota, of the Company;
WHEREAS, CSI Holdings is the legal owner of one (1) quota representing R$1.00 (one real) and
being 0.000004% (zero point zero zero zero zero zero four per cent) of the capital stock of the
Company; and
WHEREAS, it is a requirement under the Credit Agreement (as defined below) that the parties
enter into this Agreement.
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NOW, THEREFORE, in consideration of the foregoing premises and mutual covenants contained
herein, the parties hereto agree as follows:
1. Defined Terms.
(a) Capitalized terms used and not otherwise defined in this Agreement are used herein and in
any notice given under this Agreement with the same meanings ascribed to such terms in the First
Lien Intercreditor Agreement. All terms defined in this Agreement shall have the defined meanings
contained herein when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(b) All references to the Collateral Agent in this Agreement shall be construed as references
to the Collateral Agent acting as representative of the Secured Parties.
“Agreed Security Principles” has the meaning it is given in the Credit Agreement and the
Senior Secured Note Indenture and to the extent of any inconsistency the meaning it is given in the
Credit Agreement shall prevail.
“Credit Agreement” means the Credit Agreement dated as of November 5, 2009, among Xxxxxxxx
Group Holdings Inc., Xxxxxxxx Consumer Products Holdings Inc., SIG Euro Holding AG & Co KGaA,
Closure Systems International Holdings Inc., Closure Systems International B.V. and SIG Austria
Holding GmbH as borrowers, Xxxxxxxx Group Holdings Limited, the lenders from time to time party
thereto and Credit Suisse AG (formerly Credit Suisse), as administrative agent, as amended,
extended, restructured, renewed, novated, supplemented, restated, refunded, replaced or modified
from time to time.
“Enforcement Event” means an “Event of Default” under, and as defined in, the First Lien
Intercreditor Agreement.
“First Lien Intercreditor Agreement” means the First Lien Intercreditor Agreement dated as
of 5 November, 2009, among the Collateral Agent, The Bank of New York Mellon, as trustee under the
Senior Secured Note Indenture, Credit Suisse AG (formerly Credit Suisse), as administrative agent
under the Credit Agreement, and the Loan Parties, as amended, novated, supplemented, restated or
modified from time to time.
“Intercreditor Arrangements” means the First Lien Intercreditor Agreement and any other
document that is designated by the Loan Parties ´ Agent and the Collateral Agent as an intercreditor
agreement, in each case as amended, novated, supplemented, restated, replaced or modified from time
to time.
“Issuers” shall mean the “Issuers” under, and as defined in, the Senior Secured Note
Indenture, including their successors in interest.
“Lien” shall have the meaning it is given in the First Lien Intercreditor Agreement.
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“Loan Documents” shall mean the “Credit Documents” under, and as defined in, the First Lien
Intercreditor Agreement and any other document designated by the Loan Parties’ Agent and the
Collateral Agent as a Loan Document.
“Loan Parties” shall mean the “Grantors” under, and as defined in, the First Lien
Intercreditor Agreement.
“Loan Parties’ Agent” shall mean Xxxxxxxx Group Holdings Limited (formerly known as Rank
Group Holdings Limited).
“Person” means any natural person, corporation, limited liability company, partnership,
joint venture, association, trust or unincorporated organization, governmental authority or any
other legal entity, whether acting in an individual, fiduciary or other capacity.
“Principal Finance Documents” means the Credit Agreement, the Senior Secured Note
Indenture, the Intercreditor Arrangements and any Additional Agreement.
“Secured Obligations” means 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 Loan Party and each grantor of a security interest to the Secured Parties (or any of them)
under each or any of the Loan Documents, together with all costs, charges and expenses incurred by
any Secured Party in connection with the protection, preservation or enforcement of its respective
rights under the Loan Documents or any other document evidencing or securing any such liabilities.
“Secured Parties” shall mean the “Secured Parties” under, and as defined in, the First Lien
Intercreditor Agreement.
“Senior Secured Note Indenture” means the indenture dated as of November 5, 2009, among the
Issuers, the Note Guarantors (as defined therein) and The Bank of New York Mellon, as trustee,
principal paying agent, transfer agent and registrar, as amended, extended, restructured, renewed,
refunded, novated, supplemented, restated, replaced or modified from time to time.
2. Pledge; Grant of Security Interest.
(a) In order to secure the full and prompt payment and performance when due (whether at the
stated maturity, by acceleration or otherwise) of all the Secured Obligations, which, for purposes
of Article 1,424 of Brazilian Federal Law number 10,406 of January 10, 2002 (“Brazilian Civil
Code”), are described in Schedule A hereto (and which the Grantors hereby acknowledge
and recognize for all legal purposes), and all of the obligations of the Grantors hereunder,
Grantors hereby pledge to the Collateral Agent, for the benefit of the Secured Parties, hereby
represented by the Collateral Agent, pursuant to the provisions of Articles 1,431 et seq. of the
Brazilian Civil Code, the following, whether now existing or hereafter acquired:
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(i) 24,833,565 (twenty four million, eight hundred and thirty three thousand, five hundred and
sixty five) quotas, owned by the CSI B.V., as indicated in Schedule B hereto (as amended
from time to time), representing on the date hereof the equivalent to R$24,833,565.00 (twenty four
million, eight hundred and thirty three thousand, five hundred and sixty five reais) and being 100%
(one hundred percent) of the capital stock of the Company less one quota (“CSI B.V.
Quotas”);
(ii) 1 (one) quota held by CSI Holdings, as indicated in Schedule B hereto (as amended
from time to time), representing on the date hereof the equivalent to R$1.00 (one real) and the
percentage of approximately 0.000004% (zero point zero zero zero zero zero four percent) of the
capital stock of the Company (“CSI Holdings Quota”, and together with the CSI B.V. Quotas,
the “Quotas”);
(iii) all additional quotas or shares representing the capital stock of the Company which may
from time to time be subscribed, purchased or acquired by any of the Grantors in any manner
(including, but not limited to, any additional quotas acquired by consolidation, merger, exchange
of stock, stock split, corporate reorganization or otherwise), whether or not in addition to, in
substitution of, as a conversion of or in exchange for any quotas of the Company held by the
Grantors, together with all options, warrants or rights of any nature whatsoever that may be issued
or granted by the Company to the Grantors in respect of its interest in the Company, so as to
pledge 100% of the quotas issued by the Company held by Grantors (“Additional Quotas” and,
together with the Quotas, the “Pledged Quotas”); and
(iv) all profits, income, cash, rights, distributions, interests on capital and all other
amounts received, receivable or otherwise distributed to it upon any collection or exchange of any
of the Pledged Quotas, and any property into which any of the Pledged Quotas is converted
(including any deposits, securities or negotiable instruments, provided that if no Enforcement
Event has occurred and is continuing, Grantors may freely distribute, use and dispose of any
dividends, profits or interest on own capital (juros sobre capital próprio) generated by the
Pledged Quotas).
(b) Each of the Grantors shall keep the Pledged Quotas it holds as a depositary (fiel
depositário), representing and accepting all the charges and liabilities in accordance with the
terms hereof and with the applicable legislation, including those of Article 627 et. seq. of the
Brazilian Civil Code, for the safeguarding and maintenance of the Pledged Quotas, for as long as
this Agreement is in full force and effect.
3. Registration of the Pledge of the Pledged Quotas.
(a) The Grantors, at their expense, shall within 20 (twenty) days from the execution date
hereof (i) cause the signature of the parties who have signed this Agreement outside Brazil to be
notarized by a public notary and consularized at the nearest Brazilian consulate, (ii) cause this
Agreement to be translated into Portuguese by a sworn translator (tradutor público juramentado),
(iii) establish a first priority security interest over the Pledged
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Quotas by effectively registering this Agreement or such amendment, as applicable, together
with its sworn translation (tradução juramentada), with the relevant Registry of Deeds and
Documents (Cartório de Registro de Títulos e Documentos) in Brazil, pursuant to Article 130 of
Federal Law nº 6,015/73 (Public Registry Act, as amended), and (iv) amend the articles of
association of the Company in order to evidence the Lien created over the Pledged Quotas by
amending the paragraph of section 6 thereof so that it reads substantially as follows: “the
totality of the quotas held by Closure Systems International Holdings Inc. and by Closure
Systems International B.V. are pledged in favor of The Bank of New York Mellon, acting in favor of
the beneficiaries, pursuant to the terms and conditions of the Quota Pledge Agreement entered into
by and among Closure Systems International B.V., Closure Systems International Holdings Inc.,
Closure Systems International (Brazil) Sistemas de Vedação Ltda. and The Bank of New York Mellon on
January 29, 2010", and present such amendment for filing with the Commercial Registry of São Paulo
(Junta Comercial do Estado de São Paulo — JUCESP). The Grantors shall promptly furnish to the
Collateral Agent evidence of the registrations mentioned in items “iii” and “iv” of this Section
3(a), in form and substance satisfactory to the Collateral Agent.
(b) The Grantors shall promptly within 20 (twenty) days after any issuance, receipt or
acquisition of any Additional Quotas (i) notify the Collateral Agent, of the issuance or
acquisition of Additional Quotas, and (ii) obtain all registrations and approvals which are
required under Brazilian law to perfect the Lien created by this Agreement and any Amendments
hereof, as defined in Section 5(a), by taking, with respect to such Amendment, the actions provided
for in Section 3(a) above (or any other action required to be taken pursuant to the then applicable
laws, including the annotation of the Amendment at the margin of the registration mentioned in
sub-item (iii) of Section 3(a) above pursuant to Article 128 of Law No. 6,015, of December 31,
1973). The Grantors shall promptly furnish to the Collateral Agent evidence of the registrations
mentioned in items “i” and “ii” of this Section 3(b), in form and substance satisfactory to the
Collateral Agent. All expenses incurred in connection with such registrations (whether described in
this item (b) or in (a) above) shall be borne by the Grantors.
(c) If the Quotas become, for any reason, represented by shares of the capital stock of the
Company, the Grantors shall, together with the applicable formalities described in Section 3(a)
above, (i) cause this Agreement to be filed at the Company’s head office; (ii) cause the Company to
register the first lien pledge created under this Agreement in the Share Register Book of the
Company, in accordance with Article 39 of Law No. 6,404 of December 15, 1976, as follows: “[•]
shares issued by the Company, whether currently outstanding or to be issued in the future, owned by
[•] and [•] shares issued by the Company, whether currently outstanding or to be issued in the
future, owned by [•] have been pledged to The Bank of New York Mellon as a first priority lien,
under the terms of the Quota Pledge Agreement dated [•], filed at the Company’s head office.”; and
(iii) cause two (2) directors of the Company to duly sign such registration. The Grantors shall,
promptly deliver to the Collateral Agent (or to whom they may designate) evidence of such
registration.
Notwithstanding the foregoing, the Collateral Agent, at its sole discretion, may decide to
undertake any of the registrations, translations, filings and other formalities described herein if
Grantors fail to do so, whereupon the Grantors shall reimburse the Collateral Agent promptly of
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any and all costs and expenses incurred by it related to such registrations, translations, filings
and other formalities in accordance with the provisions of the Principal Finance Documents.
4. Representations and Warranties. The Grantors represent and warrant to the Secured
Parties as of the date hereof, and as of the date of any amendment hereof (with the same effect as
though made on and as of such date, except to the extent such representations and warranties
expressly relate to an earlier date) and subject to the provisions of the Principal Finance
Documents, that:
(a) the representations and warranties made by the Grantors as Loan Parties in Section 3.01
(Organization; Powers), 3.02 (Authorization), 3.03 (Enforceability), 3.06 (No Material Adverse
Change), 3.08 (Subsidiaries), 3.09 (Litigation, Compliance with Laws), 3.10 (Agreements), 3.19
(Security Documents) and 3.22 (Solvency) of the Credit Agreement, are true and accurate as regards
the Grantors and this Agreement (or any amendment, as the case may be);
(b) Schedule B hereto sets forth the number of quotas of the Company owned by the
Grantors, as well as the corresponding amount in Reais of such quotas;
(c) the powers of attorney granted by the Grantors pursuant to Section 9(b) of this Agreement
have been duly and validly executed and delivered and give the Collateral Agent the rights and
authority they purport to give.
5. Grantor’s Obligation. Each Grantor covenants and agrees that:
(a) if such Grantor shall acquire (by purchase or otherwise) any Additional Quotas at any time
after the date hereof, such Grantor shall promptly (i) execute, and cause the Company to execute,
an amendment to this Agreement and deliver such amendment to the Collateral Agent (each, after due
execution by the Collateral Agent acting as agent of and for the benefit of the Secured Parties, an
“Amendment”) in order to extend the Lien created hereunder to such Additional Quotas, and
(ii) provide the required filings and register for the pledge of such Additional Quotas in
accordance with the provisions of Section 3 hereof or take such other actions as may
otherwise be required by applicable law to extend such Lien;
(b) such Grantor shall not (unless permitted by the terms of the Principal Finance Documents),
(i) create, incur or permit to exist any Lien or option in favor of, or any claim of any Person
with respect to any of the Pledged Quotas, or any interest therein, or (ii) sell, assign, transfer,
exchange, or otherwise dispose of the Pledged Quotas;
(c) such Grantor shall, upon receipt of a notification of the Collateral Agent stating that an
Enforcement Event has occurred and is continuing, comply (notwithstanding any notice or other
communication to the contrary from any other Person) with all written instructions received from
the Collateral Agent in connection with this Agreement;
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(d) if an Enforcement Event has occurred and is continuing, such Grantor shall, promptly upon
request, provide the Collateral Agent all information and evidence it may request concerning the
Pledged Quotas to enable the Collateral Agent (directly or through any of its respective permitted
successors or assignees) to enforce the provisions of this Agreement;
(e) if an Enforcement Event has occurred and is continuing, such Grantor shall not enter into
any agreement that could reasonably be expected to restrict or inhibit the Secured Parties’ rights
or ability to sell or otherwise dispose of the Pledged Quotas or any part thereof; and
(f) at all times until the termination of this Agreement pursuant to Section 15
hereof, such Grantor shall, subject to the Agreed Security Principles, cause any third party which
may, from time to time, subscribe quotas of the Company, to pledge such quotas in accordance with
the terms and conditions of this Agreement so as to cause 100% (one hundred per cent) of the
capital stock of the Company to remain pledged to Secured Parties.
6. Additional Obligation. Subject to the Agreed Security Principles, the Grantors
shall, from time to time, enter into any additional documents and instruments that are necessary to
enable the Collateral Agent to protect the rights created hereby, in connection with the Pledged
Quotas or with any part of them or to the exercise by the Collateral Agent of any right, power or
authority granted herein. Furthermore, subject to the Agreed Security Principles, the Grantors
shall protect the security interest of the Secured Parties in connection with the Pledged Quotas
against claims and demands of any kind.
7. Voting Rights after an Enforcement Event. If an Enforcement Event has occurred and
is continuing, the Grantors shall not exercise any voting, consent and other rights in respect of
the Pledged Quotas unless in accordance with the written instructions of the Collateral Agent (it
being understood that, unless an Enforcement Event has occurred and is continuing, the Grantors
shall be entitled to exercise any and all voting and other consensual rights and powers inuring to
an owner of the Pledged Quotas or any part thereof for any purpose consistent with the terms of
this Agreement and the other Principal Finance Documents).
8. Registration of Votes. The Grantors shall cause the Company not to register or
implement any vote of the Grantors that would violate or be inconsistent with any of the terms of
this Agreement, or which would adversely affect the security interests created by this Agreement or
the interests of the Secured Parties.
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9. Remedies.
(a) Without prejudice to the foregoing provisions, if an Enforcement Event has occurred or is
continuing (notwithstanding any notice or other communication to the contrary from any other
Person), the Collateral Agent, or any of its respective agents, successors or assignees is hereby
authorized and entitled to dispose of, collect, receive, appropriate and/or realize upon the
Pledged Quotas (or any part thereof) and may forthwith sell, assign, give an option or options to
purchase or otherwise dispose of and deliver the Pledged Quotas or any part thereof at such price,
in such order and upon such terms and conditions as it may deem appropriate, subject to applicable
law, irrespective of any prior or subsequent notice to the Grantors or to the Company, in
accordance with the provisions set forth in Article 1,433 Item IV of the Brazilian Civil Code. Any
notice by the Collateral Agent that an Enforcement Event has occurred and is continuing or has
ceased or has been waived shall be conclusive as against the Grantors and the Company and all other
third parties (notwithstanding any notice or other communication to the contrary from any other
Person).
(b) In accordance with Articles 684 and 1,433 Item IV of the Brazilian Civil Code each of the
Grantors by way of security irrevocably appoints the Collateral Agent and any receiver severally to
be its attorney-in-fact and in its name, on its behalf and as its act and deed to execute, deliver
and perfect all documents and do all things which the attorney may consider to be required or
desirable for: (i) carrying out any obligation imposed on the Grantors by this Agreement or any
other agreement binding on the Grantors to which the Collateral Agent is a party
(including the execution and delivery of any deeds, charges, assignments or other security and any
transfers of the Pledged Quotas); (ii) enabling the Collateral Agent to exercise, or delegate the
exercise of, all or any of its rights over the Pledged Quotas; and (iii) enabling any receiver to
exercise, or delegate the exercise of, any of the rights, powers and authorities conferred on them
by or pursuant to this Agreement or by law, provided always that the Collateral Agent may only be
entitled to exercise the powers conferred upon it by the Grantors under this Section 9(b) and
pursuant to any powers of attorney granted to give effect to this Section 9(b) if: (i) an
Enforcement Event has occurred and is continuing; and/or (ii) the Collateral Agent has received
notice from the Applicable Representative, the Secured Parties and/or the Grantors that the
Grantors have failed to comply with a further assurance or perfection obligation within 10 Business
Days of being notified of that failure (with a copy of that notice being sent to the Loan Parties ´
Agent), provided further that the Collateral Agent shall not be obliged to exercise the powers
conferred upon it by the Grantors under this Section 9(b) and pursuant to any powers of attorney
granted to give effect to this Section 9(b) unless and until it shall have been (x) instructed to
do so by the Applicable Representative and (y) indemnified and/or secured and/or prefunded to its
satisfaction.
10. Application of Proceeds. Any funds received by the Collateral Agent or any of the
Secured Parties through the exercise of remedies pursuant to Section 9(a) hereof shall be
applied in accordance with the terms of the Intercreditor Arrangements.
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11. Amendments, etc. with Respect to the Secured Obligations. Subject to Section 15,
the Grantors shall remain obligated hereunder, and the Pledged Quotas shall remain subject to the
security interests granted hereby, at all times until termination of this Agreement, without
limitation and without any reservation of rights against the Grantor or the Company, and without
notice to or further assent by the Grantor or the Company, notwithstanding:
(a) the termination of any demand for payment of any of the Secured Obligations by any of the
Secured Parties in accordance with the terms of any other Loan Documents;
(b) any renewal, extension, amendment, modification, refinancing, acceleration, compromise,
waiver, surrender, or release, in whole or in part, or partial invalidity or unenforceability, of
any Loan Documents;
(c) any change in the time, manner, place, amount or currency of payment of the Secured
Obligations;
(d) any action (or failure to take any action) by the Secured Parties under or in respect of
any Loan Documents in the exercise of any remedy, power or privilege contained therein or at law,
equity or otherwise, or waiver of any remedy, power, privilege or extension of the time for
performance of any obligation under any Loan Documents; and
(e) the sale, exchange, waiver, surrender or release of any guaranty, right to setoff or other
collateral security at any time held by the Collateral Agent in its name or for the benefit of the
Secured Parties for the payment of the Secured Obligations.
11.1 Upon request of the Collateral Agent (acting on the instructions of the Applicable
Representative) or if any Additional Agreement is executed, the Grantors and the Company shall, at
their expense, (i) amend Schedule A, in form and substance satisfactory to the Collateral Agent,
so that the description of the Secured Obligations can be adjusted to reflect any changes in the
terms and conditions thereof or the terms and conditions of any Additional Agreement; (ii)
effectively register such amendment, within 20 (twenty) days of the execution date thereof, as
required by Section 3 hereof and (iii) promptly after such registration, deliver to the Collateral
Agent evidence of such registration in form and substance satisfactory to the Collateral Agent
acting on the instructions of the Applicable Representative.
12. Profit Allocations and Events of Default. So long as no Enforcement Event has
occurred and is continuing all dividends or other distributions, principal or interest payable in
respect of the Pledged Quotas shall be paid to the Grantors.
13. Certain Waivers by the Grantors. No Secured Party shall have any obligation to
protect, secure, perfect or insure any Lien at any time held as security for the Secured
Obligations or any property subject thereto except as required by applicable law with respect to
any Pledged Quotas.
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14. Pursuit of Rights and Remedies against the Grantors. When pursuing its rights and
remedies hereunder against the Grantors, the Collateral Agent (directly or through any of its
respective agents, successors or assignees) may, but shall be under no obligation (except as
required by applicable law) to, pursue such rights and remedies as it may have against any third
party or against any collateral security for or guaranty of the Secured Obligations or any right of
offset with respect thereto, and any failure by the Collateral Agent (directly or through any of
its respective agents, successors or assignees) to pursue such other rights or remedies or to
collect any payments from such third party or to realize upon any such collateral security or
guaranty or to exercise any such right to setoff, or any release of such third party or of any such
collateral security or guaranty or right of offset, shall not relieve the Grantors of any liability
hereunder, and shall not impair or affect the rights and remedies, whether express, implied or
resulting from applicable law, of the Secured Parties.
15. Termination and Release. The security interests constituted by this Agreement
shall be released and cancelled, and this Agreement terminated: (a) by the Collateral Agent (acting
on the instructions of the Applicable Representative) at the request and cost of the Grantors, upon
the Secured Obligations being irrevocably paid or discharged in full and none of the Secured
Parties (directly or through any of their respective agents, successors or assignees) being under
any further actual or contingent obligation to make advances or provide other financial
accommodation to the Grantors or any other person under any of the Loan Documents; or (b) in
accordance with, and to the extent required by, the Intercreditor Arrangements (to the extent it is
possible to give effect to such arrangements under Brazilian law). Upon any Grantor’s request and
at such Grantor’s expense, the Collateral Agent (on written instruction from the Applicable
Representative) shall promptly execute and deliver to the Grantor all documents necessary to
evidence such termination and release in accordance with this Section 15.
16. Cumulative Remedies. The rights, powers and remedies of the Collateral Agent and
the Secured Parties under this Agreement are cumulative and shall be in addition to all rights,
powers and remedies available to the Collateral Agent and the Secured Parties pursuant to any other
Loan Documents and at law, in equity or by statute and may be exercised successively or
concurrently without impairing the rights of the Collateral Agent, and the Secured Parties
hereunder.
17. Waivers and Amendments. This Agreement and its provisions shall only be modified,
amended, supplemented or waived with the written consent of the Grantors and the Collateral Agent.
18. Severability. If any provision of this Agreement shall be held to be invalid,
illegal or unenforceable under applicable law, such provision shall be ineffective only to the
extent of such invalidity, illegality or unenforceability, and shall not affect any other
provisions hereof or the validity, legality or enforceability of such provision in any other
jurisdiction. The security interest created hereby shall, to the extent permitted by applicable law
and subject to any Liens permitted by the Loan Documents, constitute a continuing first priority
Lien on and perfected
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first priority security interest in the Pledged Quotas, in each case enforceable against the
Grantors in accordance with its terms.
19. Delegation. The Collateral Agent and any receiver shall have full power to
delegate (either generally or specifically) the powers, authorities and discretions conferred on it
by this Agreement (including the power of attorney) on such terms and conditions as it shall see
fit which delegation shall not preclude either the subsequent exercise, any subsequent delegation
or any revocation of such power, authority or discretion by the Collateral Agent or the receiver
itself. Under the terms of Clause 21 below, in case of delegation, the delegates will be directly
liable for their acts and omissions and the Collateral Agent will be held harmless by such delegate
for any losses, claims, expenses and liabilities in connection thereto.
20. Indemnity. To the extent set out in Section 4.11 of the First Lien Intercreditor
Agreement, the Grantors shall, notwithstanding any release or discharge of all or any part of the
security interest created hereby, indemnify the Collateral Agent, its agents, its attorneys, any
delegate and any receiver against any action, proceeding, claims, losses, liabilities, expenses,
demands, taxes and costs which it may sustain as a consequence of any breach by the Grantors of the
provisions of this Agreement, the exercise or purported exercise of any of the rights and powers
conferred on them by this Agreement or otherwise relating to the Pledged Quotas.
21. No Liability. None of the Collateral Agent, its nominee(s) or any receiver or
delegate appointed pursuant to this Agreement shall be liable by reason of (a) taking any action
permitted by this Agreement or (b) any neglect or default in connection with the Pledged Quotas or
(c) the taking possession or realisation of all or any part of the Pledged Quotas, except to the
extent provided in the Principal Finance Documents. In case of a delegation of powers, authorities
and discretions under the terms of Clause 19 above, the Collateral Agent is hereby expressly
exempted of any liability arising out of the delegates’ acts or omissions, with respect to which
the delegates shall be held directly liable.
22. No Impairment of Other Security Interests. The security provided for in this
Agreement shall be in addition to and shall be independent from every other security that the
Secured Parties (collectively or individually) may at any time hold for any of the Secured
Obligations.
23. Complete Agreement; Successors and Assignees. This Agreement is intended by the
parties as the final expression of their agreement regarding the subject matter hereof and as a
complete and exclusive statement of the terms and conditions of such agreement. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assignees.
24. Governing Law; Jurisdiction. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of Brazil. The Grantors irrevocably submit to the
jurisdiction of the courts sitting in the City of São Paulo, State of São Paulo, Brazil, any action
or proceeding to resolve any dispute or controversy related to or arising from this Agreement and
the Grantors irrevocably agree that all claims in respect of such action or proceeding may be
12
heard and determined in such courts, with the waiver of the jurisdiction of any other court,
however privileged it may be.
25. No Duty on Collateral Agent’s Part. The powers conferred on the Collateral Agent
hereunder are solely to protect the interests of the Secured Parties in the Pledged Quotas and
shall not impose any duty upon the Collateral Agent to exercise or on the Secured Parties to cause
the Collateral Agent to exercise any such powers.
26. Notices. All notices and other communications provided under this Agreement shall
be served in accordance with the provisions of the First Lien Intercreditor Agreement.
27. Specific Performance. For the purposes hereof, the Collateral Agent, acting as
representative of the Secured Parties, may seek the specific performance of the Secured
Obligations, as provided in the Brazilian Civil Procedure Code.
28. Intercreditor Arrangement’s Provision. This Agreement is subject to the terms of
the Intercreditor Arrangements. In the event of a conflict between the terms of this Agreement and
the Intercreditor Arrangements, the terms of the Intercreditor Arrangements will prevail.
29. Unlawful Financial Assistance. No obligations shall be included in the definition
of Secured Obligations to the extent that, if included, the security interest granted pursuant to
this Agreement or any part thereof would be void as a result of a violation of the prohibition on
financial assistance as contained in Articles 2:98c and 2:207c Dutch Civil Code (the
“Prohibition”) and all provisions hereof will be construed accordingly. For the avoidance
of doubt, this Agreement will continue to secure those obligations which, if included in the
definition of “Secured Obligations”, would not constitute a violation of the Prohibition.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed in four (4)
counterparts of equal form and content for one sole purpose in the presence of the undersigned
witnesses.
Closure Systems International B.V.
By: Xxxxxxxxx Xxxxxxxxx Xxxxxxx Title: attorney-in-fact |
/s/ Xxxxxxxxx Xxxxxxxxx Miranda
|
Closure Systems International Holdings Inc
By: Xxxxxxxxx Xxxxxxxxx Xxxxxxx Title: attorney-in-fact |
/s/ Xxxxxxxxx Xxxxxxxxx Miranda
|
13
Closure Systems International (Brazil) Ltda.
By: Xxxxxxxxx Xxxxxxxxx Xxxxxxx Title: officer |
/s/ Xxxxxxxxx Xxxxxxxxx Miranda
|
The Bank of New York Mellon as Collateral Agent acting as agent of and for the benefit of
the Secured Parties
By: Xxxxxx Xxxxxxxxx Xxxxxxx Title: attorney-in-fact |
/s/ Xxxxxx Xxxxxxxxx Xxxxxxx
|
WITNESSES: |
||||||
/s/ Xxxxx Celna Xxxxxxx xx Xxxx
|
/s/ ILLEGIBLE
|
|||||
Name: Xxxxx Celna Xxxxxxx xx Xxxx
|
Name: /s/ ILLEGIBLE | |||||
ID:
|
ID: |
14
SCHEDULE A
I — Description of the Secured Obligations under the Loan Documents
A) All obligations owed to the Secured Parties now existing or hereafter arising, direct or
indirect, absolute or contingent, due or to become due, under the Loan Documents, including (and
without limitation):
| (i) | a senior secured U.S. term loan facility in an aggregate principal amount not in excess of US$1,035,000,000 with an interest rate equivalent to the Applicable Margin plus (a) (i) the greater of 2.00% per annum and (ii) (x) the LIBO Rate in effect for such Interest Period and (y) Statutory Reserves or (b) the Alternate Base Rate; which shall be repaid in full on November 5, 2015 (subject to prepayment and acceleration provisions); | ||
| (ii) | an European term loan facility in an aggregate principal amount of approximately €250,000,000 with an interest rate equivalent to the Applicable Margin plus (a) (i) the greater of 2.00% per annum and (ii) (x) the EURIBO Rate in effect for such Interest Period plus (y) Mandatory Cost or (b) in the case of loans denominated in Euro, the Foreign Base Rate; which shall be repaid in full on November 5, 2015 (subject to prepayment and acceleration provisions); | ||
| (iii) | a senior secured U.S. revolving loan facility in an aggregate principal amount of approximately US$120,000,000, which principal amounts include sub-limits for letter of credit facilities with an interest rate equivalent to the Applicable Margin plus (a) (i) the greater of 2.00% per annum and (ii) (x) the LIBO Rate in effect for such Interest Period and (y) Statutory Reserves or (b) the Alternate Base Rate; which shall be repaid in full on November 5, 2014 (subject to prepayment and acceleration provisions); | ||
| (iv) | and European revolving loan facility in an aggregate principal amount of approximately €80,000,000, which principal amounts include sub-limits for letter of credit facilities with an interest rate equivalent to the Applicable Margin plus (a) (i) the greater of 2.00% per annum and (ii) (x) the EURIBO Rate in effect for such Interest Period plus (y) Mandatory Cost or (b) in the case of loans denominated in Euro, the Foreign Base Rate; which shall be repaid in full on November 5, 2014 (subject to prepayment and acceleration provisions); and | ||
| (v) | incremental loan facilities in a principal amount up to US$400,000,000 with an interest rate equivalent to the rates set forth in clauses (i) through (iv) above, as applicable to the incremental loan facility; which shall be repaid in full as set forth in clauses (i) through (iv) above, as applicable to the incremental loan facility or such other as set out in the relevant Incremental Assumption Agreement, which date shall be earlier than the dates set forth above as applicable to the incremental loan facility (subject to prepayment and acceleration provisions). |
B) all other obligations, advances, debts and liabilities owed to the Credit Agreement’s Secured
Parties, including indemnities, fees and interest incurred under, arising out of or in connection
with the Credit Agreement.
Definitions
For the purpose of this item “I” of this Schedule A all capitalized terms used and not
otherwise defined in this Agreement shall have the meaning ascribed to such terms in the Credit
Agreement.
II — Description of the Obligations Under the Note Documents
All obligations owed to the Indenture Secured Parties now existing or hereafter arising, direct or
indirect, absolute or contingent, due or to become due, under the Note Documents (as such term is
defined in the Senior Secured Note Indenture), including (and without limitation):
| (i) | the due and punctual payment of: |
| (a) | (A) US$1,125,000,000 aggregate principal amount on the notes due 2016 and interest at the rate of 7.75% per annum (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the notes, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise; and (B) €450,000,000 aggregate principal amount of notes due 2016 and interest at the rate of 7.75% per annum (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise; and | ||
| (b) | all other monetary obligations of any Issuer to any of the Secured Parties under the Senior SecuredNote Documents, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding. |
| (ii) | the due and punctual performance of all other obligations of the Issuers under or pursuant to the Senior Secured Note Documents; and | ||
| (iii) | the due and punctual payment and performance of all the obligations of each other obligor under or pursuant to the Senior Secured Note Documents. |
SCHEDULE B
DESCRIPTION OF PLEDGED QUOTAS
| Corresponding | % of Total capital | |||||||||||
| Name of the Company whose | Amount of | stock of the | ||||||||||
| Quotas are pledged in favor of | the capital stock | Company (subject to | ||||||||||
| The Bank of New York Mellon | Number of Quotas | of the Company | rounding adjustments) | |||||||||
Closure Systems
International
B.V. |
24,833,565 | R$24,833,565.00 | 99.999996 | % | ||||||||
Closure Systems
International
HoldingsInc. |
1 | R$1.00 | 0.000004 | % | ||||||||
