SUPPLEMENTAL INDENTURE
EXHIBIT 10.2.20
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of 5 November 2009,
among XXXXXXXX GROUP ISSUER (LUXEMBOURG) S.A., a private limited liability company (société
à responsabilité limitée) organised under the laws of Luxembourg, having its registered
office at 6C, Parc d’Activités Syrdall, L-5365 Munsbach, Grand Duchy of Luxembourg, under
pending registration with the Luxembourg Register of Commerce and Companies (the “New
Senior Note Guarantor”), BEVERAGE PACKAGING HOLDINGS (LUXEMBOURG) II S.A. (or its
successor), a Luxembourg public limited liability company (société anonyme), having its
registered office at 6, Parc d’Activités Syrdall, X-0000 Xxxxxxxx, Xxxxx-Xxxxx xx
Xxxxxxxxxx, registered with the Luxembourg register of commerce and companies under
the number B129.914 (the “Issuer”) and The Bank of New York, as trustee under the indenture
referred to below (the “Trustee”).
WHEREAS Section 4.11 of the Indenture provides that under certain circumstances the
Issuer is required to cause the New Senior Note Guarantor to execute and deliver to the
Trustee a supplemental indenture pursuant to which the New Senior Note Guarantor shall
unconditionally guarantee all the Issuer’s Obligations under the Securities and the
Indenture pursuant to a Senior Note Guarantee on the terms and conditions set forth herein;
and
WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee and the Issuer are
authorized to execute and deliver this Supplemental Indenture;
1. Defined Terms. As used in this Supplemental Indenture, terms defined in
the Indenture or in the preamble or recital hereto are used herein as therein defined,
except that the term “Holders” in this Supplemental Indenture shall refer to the term
“Holders” as defined in the Indenture and the Trustee acting on behalf of and for the
benefit of such Holders. The words “herein,” “hereof”
and “hereby” and other words of similar import used in this Supplemental Indenture
refer to this Supplemental Indenture as a whole and not to any particular section hereof.
3. Limitation on Guarantee. Notwithstanding any other provision of this
Supplemental Indenture, the Guarantee granted by the New Senior Note Guarantor shall be
limited so that the maximum amount payable by the New Senior Note Guarantor under its
guarantee obligation shall at no time exceed the Maximum Amount.
“Maximum Amount” shall mean, in respect of the New Senior Note Guarantor the aggregate
amount of any intercompany loans (or other financial support in any form) made available to
New Senior Note Guarantor (and/or any of its direct or indirect Subsidiaries) by the Issuer
with funds deriving directly or indirectly from any proceeds of the Securities (whether or
not outstanding at that time).
The obligations and liabilities of the New Subordinated Guarantor under this guarantee
shall not include any obligation which, if incurred, would constitute a misuse of corporate
assets as defined under Article 171-1 of the Luxembourg Company Act of 10 August
1915 or a breach of managers’ duties and/or mismanagement
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WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.
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XXXXXXXX GROUP ISSUER (LUXEMBOURG) S.A.., |
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By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | ||||
THE BANK OF NEW YORK, as Trustee, |
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By: | /s/ Xxxxxxx Xxx | |||
Name: | Xxxxxxx Xxx | |||
Title: | Senior Associate | |||
BEVERAGE PACKAGING HOLDINGS (LUXEMBOURG) II S.A., |
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By: | /s/ Xxxxx Xxxxxxx | |||
Name: | Xxxxx Xxxxxxx | |||
Title: | ||||
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