SUPPLEMENTAL INDENTURE
Exhibit 10.2.21
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of 5 November 2009,
among CLOSURE SYSTEMS INTERNATIONAL B.V., a private limited liability company (besloten
vennootschap met beperkte aansprakelijkheid) duly incorporated under the laws of The
Netherlands and registered with the chamber of commerce under number 34291082 and having
its registered address at Xxxxxxxxxxxxxxxxx 000, 0000XX Xxxxxxxxx, Xxx Xxxxxxxxxxx (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 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 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.
2. Agreement to Guarantee. The New Senior Note Guarantor hereby agrees,
jointly and severally with all existing Senior Note Guarantors (if any), to unconditionally
guarantee the Issuer’s Obligations under the Securities and the Indenture on the terms and
subject to the conditions set forth in Article X and Article XI of the Indenture and to be
bound by all other applicable provisions of the Indenture and the Securities and to perform
all of the obligations and agreements of a Senior Note Guarantor under the Indenture.
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.
4. Notices. All notices or other communications to the New Senior Note
Guarantor shall be given as provided in Section 13.02 of the Indenture.
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.
7. Trustee Makes No Representation. The Trustee shall not be responsible in
any manner whatsoever for or in respect of the recitals contained herein, all of which
recitals are made solely by the Issuer and the New Senior Note Guarantor. Furthermore, the
Trustee makes no representation as to the validity or sufficiency of this Supplemental
Indenture.
8. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
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9. Effect of Headings. The Section headings herein are for convenience only
and shall not effect the construction thereof.
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CLOSURE SYSTEMS INTERNATIONAL B.V., |
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By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | ||||
THE BANK OF NEW YORK MELLON, 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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