SUPPLEMENTAL INDENTURE
Exhibit 10.3.60
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of 4 May 2010, among
Evergreen Packaging International B.V., a private limited liability company (besloten
vennootschap met beperkte aansprakelijkheid) incorporated under the laws of The Netherlands
with registered number 24321403 and having its registered address at Xxxxxxxxxxxxxxxxx 000,
0000 XX Xxxxxxxxx, xxx Xxxxxxxxxxx (the “New Subordinated 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 Mellon, 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 Subordinated Guarantor to execute and deliver to the
Trustee a supplemental indenture pursuant to which the New Subordinated Guarantor shall
unconditionally guarantee all the Issuer’s Obligations under the Securities and the
Indenture pursuant to a Subordinated 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 Subordinated Guarantor shall not
be granted if it 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 or any other
applicable financial assistance rules under any relevant jurisdiction and all provisions
hereof will be construed accordingly.
5. Ratification of Indenture; Supplemental Indentures Part of Indenture.
Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed
and all the terms, conditions and provisions thereof shall remain in full force and effect.
This Supplemental Indenture shall form a part of the Indenture for all purposes, and every
holder of Securities heretofore or hereafter authenticated and delivered shall be bound
hereby.
6. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
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EVERGREEN PACKAGING INTERNATIONAL B.V., |
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By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Attorney | |||
THE BANK OF NEW YORK MELLON, as Trustee, |
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By: | /s/ Xxxx Xxxxxxxxxx | |||
Name: | Xxxx Xxxxxxxxxx | |||
Title: | Vice President | |||
BEVERAGE PACKAGING HOLDINGS (LUXEMBOURG) II S.A., |
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By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Authorised Signatory | |||
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