PARTNERSHIP INTEREST PLEDGE AGREEMENT
EXHIBIT 4.183
PARTNERSHIP INTEREST PLEDGE AGREEMENT
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 Partnership Interest Pledge Agreement (Contrato de Prenda sobre Parte Social) is
entered into on this 4 day of May, 2010 (the “Agreement”), by and between Evergreen
Packaging International B.V., as pledgor (the “Pledgor”), and The Bank of New York Mellon,
acting solely in its capacity as Collateral Agent (as defined below) on behalf and for the benefit
of the Secured Parties (as defined below), as pledgee (in such capacity, together with its
successors and assigns in such capacity, the “Pledgee”), with the acknowledgment of
Evergreen Packaging México, S. de X.X. de C.V. (“Evergreen Mexico”), in accordance with the
following Recitals, Representations and Warranties and Clauses. Capitalized terms used in the
Recitals and Representations and Warranties which are not otherwise defined herein, shall have the
meaning ascribed to such terms in Clause First hereof.
Recitals
I. Credit Agreement. On November 5, 2009, Xxxxxxxx Group Holdings Inc., Xxxxxxxx
Consumer Products Holdings Inc., Closure Systems International Holdings Inc., SIG Euro Holding AG
& Co KGaA, SIG Austria Holding Gmbh and Closure Systems International B.V., as borrowers, Xxxxxxxx
Group Holdings Limited, the lenders from time to time party thereto, and Credit Suisse AG
(formerly known as Credit Suisse), as administrative agent (in such capacity, together with its
successors and assigns in such capacity, the “Administrative Agent”), entered into a
credit agreement (as amended by the Amendment No. 1 dated as of January 21, 2010 and by the
Amendment No. 2 and Incremental Term Loan Assumption Agreement dated as of May 4, 2010, and as
further amended, extended, restructured, renewed, novated, supplemented, restated, refunded,
replaced or modified from time to time, the “Credit Agreement”).
II. Senior Secured Note Indenture. On November 5, 2009, Xxxxxxxx Group Escrow LLC,
Xxxxxxxx Group DL Escrow Inc. and The Bank of New York Mellon, acting in its capacity as trustee,
principal paying agent, transfer agent and collateral agent, entered into the Senior Secured Note
Indenture (as amended, extended, restructured, renewed, refunded, novated, supplemented, restated,
replaced or modified from time to time, the “Senior Secured Note Indenture”).
Representations and Warranties
I. | The Pledgor hereby represents and warrants, through its legal representative, that on the date hereof: |
(a) | it is a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated and duly organized under the laws of The Netherlands, having its official seat in Amsterdam and its registered office address at Xxxxxxxxxxxxxxxxx 000, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx and registered in the commercial register of Amsterdam under number 24321403; | ||
(b) | it is the sole, legal and beneficial owner of 1 (one) partnership interest, representing the outstanding capital of Evergreen Mexico, which in the aggregate represents 99.66% of the total issued and outstanding capital of Evergreen Mexico, on a fully diluted basis (the “Pledged Partnership Interest”); | ||
(c) | the individual executing this Agreement in the name and on behalf of the Pledgor has sufficient power and authority, as well as the necessary authority (corporate, organizational or otherwise) to validly execute and deliver this Agreement on its behalf and to validly bind the Pledgor under the terms herein, and that such powers, authority and authorizations have not been revoked, modified or limited in any manner; and | ||
(d) | with reference to the facts and circumstances then existing and subject to the provisions of the Loan Documents and the Intercreditor Arrangements, the representations and warranties made by the Pledgor as Loan Party in Section 3.01 (Organization; Powers), 3.02 (Authorization), 3.03 (Enforceability), 3.06 (No Material Adverse Change), 3.07 (Title to Properties; Possession under Leases), 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 to the Pledgor and this Agreement. |
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II. | Evergreen Mexico hereby represents and warrants, through its legal representative, that on the date hereof: |
(a) | it is a sociedad de responsabilidad limitada de capital variable duly organized and validly existing under the laws of Mexico, as evidenced in public deed number 24,398, dated January 30, 2007, granted before Mr. Xxxx Xxxx Xxxxxxxxxxxxx Xxxxxxxxx, Notary Public number 218 for the Federal District, Mexico, recorded in the Public Registry of Commerce of Mexico City under commercial folio number 360731; | ||
(b) | the individual executing this Agreement in its name and on its behalf has sufficient power and authority, as well as the necessary authority (corporate, organizational or otherwise) to validly execute and deliver this Agreement on its behalf and to validly bind it under the terms herein, as evidenced in public deed number 31,735, dated April 27, 2010, granted before Mr. Xxxx Xxxx Xxxxxxxxxxxxx Xxxxxxxxx, Notary Public number 218 for the Federal District, Mexico; and that such powers, authority and authorizations have not been revoked, modified or limited in any manner; and | ||
(c) | with reference to the facts and circumstances then existing and subject to the provisions of the Loan Documents and the Intercreditor Arrangements, the representations and warranties made by Evergreen Mexico as Loan Party in Section 3.01 (Organization; Powers), 3.02 (Authorization), 3.03 (Enforceability), 3.06 (No Material Adverse Change), 3.07 (Title to Properties; Possession under Leases), 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 to Evergreen Mexico and this Agreement. |
NOW, THEREFORE, based on the Recital and Representations and Warranties contained herein, the
parties hereto agree as follows:
First. Certain Defined Terms.
(a) Unless defined in this Agreement or the context otherwise requires, a term defined in
the First Lien Intercreditor Agreement has the same meaning in this Agreement and in any
notice given under this Agreement. As used in this Agreement, the following terms shall
have the following meanings:
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“Additional Agreement” shall have the meaning assigned to the term “Additional
Agreement” under, and as defined in, the First Lien Intercreditor Agreement.
“Administrative Agent” has the meaning specified in Recital I hereof.
“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.
“Agreement” means this Partnership Interest Pledge Agreement, as the same may be
amended, extended, restructured, renewed, novated, supplemented, restated, refunded,
replaced or modified from time to time.
“Applicable Representative” shall have the meaning assigned to the term “Applicable
Representative” under, and as defined in, the First Lien Intercreditor Agreement.
“Business Day” shall mean a day (other than a Saturday or Sunday) on which banks are
open for business in Xxx Xxxx Xxxx, Xxx Xxxx, Xxxxxx Xxxxxx of America and Mexico.
“Collateral Agent” shall mean the Pledgee, in its capacity as collateral agent as
appointed under the First Lien Intercreditor Agreement, and its successors and permitted
assigns in such capacity.
“Credit Agreement” shall have the meaning assigned to such term in Recital I hereof.
“Distributions” has the meaning specified in paragraph (c) of Clause Fourth of this
Agreement.
“Event of Default” shall have the meaning assigned to the term “Event of Default”
under, and as defined in, the First Lien Intercreditor Agreement.
“Evergreen Mexico” has the meaning specified in the preamble to this Agreement.
“First Lien Intercreditor Agreement” shall mean the First Lien Intercreditor
Agreement dated as of November 5, 2009, among the Collateral Agent, The Bank of New York
Mellon, as trustee under the Senior Secured Note Indenture, Credit Suisse AG (formerly known
as Credit Suisse), as administrative agent
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under the Credit Agreement and the Loan Parties, as amended on January 21, 2010 and as
further amended, novated, supplemented, restated or modified from time to time. A copy of
the First Lien Intercreditor Agreement and of its amendment is attached hereto as
Exhibit “A”.
“Governmental Authority” means any national or federal government, any state,
regional, local or other political subdivision thereof with jurisdiction and any individual
or entity with jurisdiction exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government or quasi-governmental issues
(including any court).
“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.
“Law” means the General Law of Negotiable Instruments and Credit Transactions (Ley
General de Títulos y Operaciones de Crédito) of Mexico.
“Lien” shall have the meaning assigned to the term “Lien” under, and as defined in,
the First Lien Intercreditor Agreement.
“Loan Documents” shall have the meaning assigned to the term “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 have the meaning assigned to the term “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).
“Mexico” means the United Mexican States.
“Person” means any individual or entity, trust, joint venture, partnership,
corporation, Governmental Authority or any other entity of any nature whatsoever.
“Pledged Partnership Interest” has the meaning set forth in Representation I (b) of
this Agreement.
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“Pledgee” has the meaning specified in the preamble to this Agreement.
“Pledgor” has the meaning specified in the preamble to this Agreement.
“Principal Finance Documents” means the Credit Agreement, the Senior Secured Note
Indenture, the Intercreditor Arrangements and any Additional Agreement.
“Prohibition” has the meaning specified in paragraph (b) of Clause First of this
Agreement.
“Secured 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 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 have the meaning assigned to the term “Secured Parties”
under, and as defined in, the First Lien Intercreditor Agreement.
“Security Interest” has the meaning specified in paragraph (a) of Clause Second
of this Agreement.
“Senior Secured Note Indenture” has the meaning assigned to such term in Recital II
hereof.
“Termination Notice” has the meaning specified in Clause Eleventh of this Agreement.
(b) The definitions in this Clause First shall apply equally to both the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neutral forms. The words “hereof”, “herein” and “hereunder”
and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole
and not to any particular provision of this Agreement, unless otherwise expressly indicated, and
all references in this Agreement to Clauses, sections, and paragraphs shall be deemed to be
references to Clauses, sections paragraphs of this Agreement, unless the context shall otherwise
require. As used herein and any certificate or other document made or delivered pursuant hereto,
(i) the words “include”, “includes” and “including” shall
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be deemed to be followed by the phrase “without limitation”, unless such phrase, otherwise appears,
(ii) the word “incur” shall be construed to mean incur, create, issue, assume, become liable in
respect of or suffer to exist (and the words “incurred” and “incurrence” shall have correlative
meanings), (iii) the words “asset” and “property” shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and properties, including cash,
capital stock, securities, revenues, accounts, leasehold interests and contract rights, (iv)
references to agreements shall, unless otherwise specified, be deemed to refer to such agreements
as amended, extended, restructured, renewed, novated, supplemented, restated, refunded, replaced or
modified from time to time, and (v) references to any statute, law or regulation shall be deemed
to include any amendments thereto from time to time or any successor statute, law or regulation
thereof.
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 of the Dutch Civil Code or any other applicable financial assistance rules under
any relevant jurisdiction (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.
Second. Pledge; Grant of Security Interest.
(a) | The Pledgor hereby grants a first priority pledge and security interest (the “Security Interest”) to the Pledgee for the benefit of the Secured Parties, in and to its Pledged Partnership Interest as collateral security for the due and timely payment, performance and satisfaction when due (whether at stated maturity, by acceleration or otherwise) of any and all of the Secured Obligations. | |
(b) | For purposes of perfecting the Security Interest over the Pledged Partnership Interest pursuant to paragraph III of Article 334 of the Law, the Pledgor hereby delivers to the Pledgee (i) an executed original of this Agreement, and (ii) a copy of the entry made in the partners’ registry book of Evergreen Mexico, duly certified by an authorized officer or attorney-in-fact of Evergreen Mexico, evidencing that, on the date hereof, the Security Interest in and to the Pledged Partnership Interest has been duly recorded in the partners’ registry book of Evergreen Mexico. |
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(c) | Without prejudice to the rights of the Pledgee under the Loan Documents, the Pledgee hereby irrevocably waives the provisions of, and any rights it might have under, Articles 340, 342 and 343 of the Law. |
Third. Continuing Security Interest. The Security Interest shall be continuing and shall
(i) remain in full force and effect until all of the Secured Obligations have been paid pursuant to
the Loan Documents unless otherwise released pursuant to this Clause Third or Clause Eleventh; (ii)
be binding upon the Pledgor, and its successors and permitted assigns; and (iii) inure to the
benefit of and be enforceable by the Pledgee, acting on behalf of the Secured Parties, and their
respective successors and assigns; provided, however, that if the Pledgor disposes
of the Pledged Partnership Interest and that disposal is permitted by the terms of the Loan
Documents, the Pledged Partnership Interest shall, unless an Event of Default has occurred and is
continuing, be automatically released from the Security Interest created under this Agreement with
effect from the day of such disposal, and the Pledgee shall do all such acts which are reasonably
requested by the Pledgor in order to release the relevant Pledged Partnership Interest from the
Security Interest created under this Agreement.
Fourth. Voting and Management of the Pledged Partnership Interest.
(a) | Subject to paragraph (b) of this Clause Fourth, the Pledgor will have the right to exercise the voting rights and other rights and powers pertaining to the Pledged Partnership Interest and deal with the Pledged Partnership Interest in any manner permitted by the Loan Documents; provided, that the Pledgor shall not exercise, or refrain from exercising, at any time, such rights in a manner which would affect adversely the validity and enforceability of the security constituted hereby or cause an Event of Default. Subject to the terms of the Loan Documents, the Pledgee and the Secured Parties shall be free and clear of any liability arising from or in connection with the exercise or failure to exercise the voting rights relating to the Pledged Partnership Interest. | |
(b) | If an Event of Default has occurred and is continuing, all rights of the Pledgor to exercise the voting and other rights and powers that the Pledgor is entitled to exercise pursuant to the foregoing provisions of paragraph (a) of this Clause Fourth shall cease, and all such rights shall thereupon be exercised by the Pledgee, who shall have the sole and exclusive right and authority to exercise such voting and other rights and powers. | |
(c) | Unless an Event of Default has occurred and is continuing, the Pledgor shall be entitled, from time to time, to collect and receive for its own use all dividends, interest and other distributions paid in respect of the Pledged Partnership Interest as permitted by the Loan Documents (the “Distributions”); provided, |
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however, that until actually paid, all rights to such distributions shall remain subject to the Security Interest created by this Agreement. If an Event of Default has occurred and is continuing, all Distributions thereafter paid in respect of the Pledged Partnership Interest shall be applied by the Pledgee towards the payment of the Secured Obligations in accordance with the Loan Documents. | ||
(d) | All Distributions (other than the Distributions that are permitted to be paid to the Pledgor in accordance with paragraph (c) of this Clause Fourth), whenever paid or made, shall (i) be delivered to the Pledgee to hold as part of the Pledged Partnership Interest and shall, if received by the Pledgor, be received in deposit for the benefit of the Pledgee, be segregated from the other property or funds of the Pledgor, and be forthwith delivered to the Pledgee as part of the Pledged Partnership Interest in the same form as so received; and (ii) be considered for all legal purposes as granted in pledge in accordance with this Agreement, and shall be subject to the Security Interest and considered as an integral part of the Pledged Partnership Interest pursuant to this Agreement. | |
(e) | The rights of the Pledgee hereunder shall not be conditioned or contingent upon the exercise by the Pledgee of any right or remedy against the Pledgor or any other Person which may be or become liable in respect of all or any part of the Secured Obligations or against any collateral security therefor, guarantee therefor or right of offset with respect thereto. | |
(f) | Subject to the terms of the Loan Documents, the Pledgee, its nominee(s) or any receiver or delegate appointed pursuant to this Agreement, shall not be liable for any failure to demand, collect or realize upon all or any part of the rights corresponding to the Pledged Partnership Interest or for any delay in doing so, nor shall the Pledgee be under any obligation to sell or otherwise dispose of the Pledged Partnership Interest upon the request of the Pledgor or any other Person (except for the Secured Parties and in conformity with the Loan Documents), or to take any other action whatsoever with regard to the Pledged Partnership Interest or any part thereof. |
Fifth. Covenants of the Pledgor. So long as this Agreement is in effect, the Pledgor
covenants and agrees to (a) not create, incur, assume, or permit to exist any Lien in favor of, or
any claim of any Person with respect to, the Pledged Partnership Interest, whether now held or
hereafter subscribed, except for the Security Interest or as permitted under the Loan Documents;
(b) except to the extent permitted by the Loan Documents, not sell, transfer, assign, pledge,
deliver, transfer in trust, grant, usufruct or otherwise dispose of, or grant any option with
respect to, the Pledged Partnership Interest or any interest therein without the prior written
consent of the Pledgee; and (c) subject to the Agreed Security Principles, execute and deliver to
the Pledgee, for the
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benefit of the Secured Parties, such documents in favor of the Pledgee and/or the Secured Parties,
and do such things relating to the Security Interest as the Pledgee may reasonably request in order
to protect and maintain the Security Interest and to protect and preserve the Pledgor’s and or the
Pledgee’s title and interest in and to the Pledged Partnership Interest, and pay all reasonable
costs arising from or in connection therewith.
Sixth. Safekeeping of the Pledged Partnership Interest; Indemnity. The obligations of the
Pledgee with respect to the safekeeping and preservation of the Pledged Partnership Interest shall
be limited to the obligations imposed by the Law. Unless otherwise expressly provided for in the
Loan Documents, any actions carried out by the Pledgee for the safekeeping and preservation of the
Pledged Partnership Interest shall be at the sole expense and risk of the Pledgor.
Seventh. Events of Default. If an Event of Default has occurred and is continuing
(a) all rights of the Pledgor to exercise or refrain from exercising any voting and other rights
which it would otherwise be entitled to exercise pursuant to Clause Fourth hereof shall cease and
be exercised thereafter by the Pledgee, (b) the Pledgee shall have the right to keep any and all
Distributions in respect of the Pledged Partnership Interest received or thereafter paid in respect
of the Pledged Partnership Interest and apply them to the payment of the Secured Obligations; and
(c) the Pledgee shall have the right to foreclose upon the Pledged Partnership Interest pursuant to
the provisions of Clause Eighth of this Agreement, and to exercise its rights in any other manner
as set forth in the Law.
Eighth. Foreclosure. If an Event of Default has occurred and is continuing:
(a) | the Pledgee may foreclose upon the Security Interest and request the sale of the Pledged Partnership Interest, if any, pursuant to Article 341 of the Law, or exercise its rights in any other manner as set forth in the Law, in order to seek payment of the Secured Obligations; and | |
(b) | the Pledgor shall take or shall cause Evergreen Mexico to take any and all actions and/or initiate any and all proceedings that may be necessary or convenient, in the Pledgee’s sole discretion (acting reasonably), to facilitate the execution and transfer of the Pledged Partnership Interest. The Pledgor further agrees to do or cause to be done all such other acts as may be necessary or convenient to expedite such sale or sales of all or any portion of the Pledged Partnership Interest, and to execute and deliver such documents and take such other action as the Pledgee (acting reasonably) deems necessary or advisable so that such sale may be in compliance with applicable law. The Pledgee shall apply all amounts received under this Agreement in accordance with the First |
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Lien Intercreditor Agreement. In the event of foreclosure and sale of the Pledged Partnership Interest in accordance with this Clause Eighth, the Pledgor hereby expressly and irrevocably waives any rights of first offer, rights of first refusal, and any other preemptive rights of any kind to which it may be entitled under the by-laws of Evergreen Mexico and the Mexican General Law of Commercial Companies (Ley General de Sociedades Mercantiles). |
Ninth.- Capacity of Collateral Agent. The Pledgor hereby (i) expressly acknowledges that
the Pledgee has all necessary appointments, legal capacity and authority to act on behalf of the
Secured Parties for all matters arising from or relating to this Agreement; and (ii) expressly
waives its rights to carry out any action challenging the legal existence, appointments, legal or
other capacity and authority of the Pledgee to act on behalf of the Secured Parties. The rights,
duties, privileges, protections and benefits of the Pledgee as Collateral Agent set forth in the
First Lien Intercreditor Agreement are hereby incorporated herein by reference and made a part
hereof. The Pledgor agrees that all acts to be executed by the Pledgor under this Agreement shall
be in accordance with the terms and conditions of the Intercreditor Arrangements.
Tenth. Power of Attorney. The Pledgor, by way of security irrevocably appoints the Pledgee
and any receiver appointed by the Pledgee 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 in fact may consider to be required or desirable for:
(a) | carrying out any obligation imposed on the Pledgor by this Agreement or any other agreement binding on the Pledgor to which the Pledgee is a party (including the execution and delivery of any deeds, charges, assignments or other security and any transfers of the Pledged Partnership Interest); | ||
(b) | enabling the Pledgee to exercise, or delegate the exercise of, all or any of its rights over the Pledged Partnership Interest; and | ||
(c) | enabling any receiver appointed by Pledgee 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 Pledgee may only be entitled to exercise the powers conferred upon
it by the Pledgor under this Clause Tenth if:
(i) | an Event of Default has occurred and is continuing; and/or | ||
(ii) | the Pledgee has received notice from the Applicable Representative, the Loan Parties’ Agent and/or the Pledgor that the Pledgor has failed to comply with a further assurance or perfection obligation within 10 |
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(ten) 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 Pledgee shall not be obliged to exercise the powers conferred upon
it by the Pledgor under this Clause Tenth unless and until it shall have been (a) instructed
to do so by the Applicable Representative and (b) indemnified and/or secured and/or prefunded
to its satisfaction.
For purposes of this Clause, the Pledgor shall grant a notarized irrevocable special power of
attorney, substantially in form of Exhibit “B” hereto, pursuant to the terms of article
2,596 of the Federal Civil Code and its correlatives for the other States of Mexico and the Federal
District, in order to allow the Pledgee to perform any and all acts referred to in this Clause
Tenth, with the authorities referred to in the first, second and third paragraph of article 2,554
of the Federal Civil Code and its correlative Articles of the Civil Codes of the States of the
United Mexican States and the Federal District and that includes the authority to delegate such
special power of attorney.
Eleventh.- Release and Termination. The Security Interest constituted by this Agreement
shall be released and cancelled:
(a) | by the Pledgee (acting on the instruction of the Applicable Representative) at the request and cost of the Pledgor, upon the Secured Obligations being irrevocably paid or discharged in full and none of the Secured Parties being under further actual or contingent obligation to make advances or provide other financial accommodation to the Pledgor 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 Mexican law). |
As soon as is reasonably practicable and (i) in respect of paragraph (a) above, following a written
request from the Pledgor, or (ii) in respect of paragraph (b) above, following receipt of a written
instruction from the Applicable Representative, the Pledgee shall deliver to the Pledgor a
termination notice (the “Termination Notice”) substantially in the form attached hereto as
Exhibit “C”. Only upon delivery of the Termination Notice by the Pledgee to the Pledgor as
herein contemplated, this Agreement shall terminate and the Security Interest shall cease,
terminate and be released.
Twelfth.- Delegation. The Pledgee, and any receiver appointed by Pledgee, shall have full
power to delegate (either generally or specifically) the powers, authorities and
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discretions conferred on it by this Agreement (including the power of attorney referred to in
Clause Tenth hereto) 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 Pledgee or any receiver hereto.
Thirteenth.- No Liability. None of the Pledgee, its nominee(s) or any receiver or delegate
appointed pursuant to this Agreement shall be liable by reason of (a) taking any action permitted
under this Agreement, (b) any neglect or default in connection with the Security Interest, or (c)
taking possession or realization of all or any part of the Pledged Partnership Interest, except to
the extent provided in the Principal Finance Documents.
Fourteenth.- Indemnity. To the extent set out in Section 4.11 of the First Lien
Intercreditor Agreement, the Pledgor shall, notwithstanding any release or discharge of all or any
part of the Security Interest, indemnify the Pledgee, 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 Pledgor of the provisions of
this Agreement, the exercise or purported exercise of any of the rights and powers conferred on it
by this Agreement or otherwise relating to the Security Interest.
Fifteenth.- Assignments. Unless otherwise permitted under the Loan Documents, the rights
and obligations arising from this Agreement may not be assigned or transferred by the Pledgor to
any third party without the prior written consent of the Pledgee. The Pledgee may assign, in whole
or in part, its rights hereunder by written notice to the Pledgor, without requiring the consent of
the Pledgor to perform such assignment or transfer, in accordance with the Loan Documents.
Sixteenth.- Amendments. This Agreement may only be amended or modified with the prior
written consent of the Pledgor and the Pledgee.
Seventeenth.- Notices. Each notice or other communication to be given or made by a party in
connection with this Agreement shall be given or made in accordance with the provisions of the
First Lien Intercreditor Agreement, provided that with respect to any notice to be given or made
pursuant to or under a Mexican judicial procedure, the Pledgor designates the following address:
Evergreen Packaging International X.X.
Xxxxxx xx Xxxxxxxx 000, Xxxx 0
Col. Xxxxxxx xx xxx Xxxxx
00000, Xxxxxx, D.F.
Xxxxxx xx Xxxxxxxx 000, Xxxx 0
Col. Xxxxxxx xx xxx Xxxxx
00000, Xxxxxx, D.F.
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Tel: (x00-00) 0000-0000
Fax: (x00-00) 0000-0000
Fax: (x00-00) 0000-0000
with a copy (which shall not constitute notice) to:
Rank Group Limited
Suite 2502
Level 25, Citgroup Centre
0 Xxxx Xxxxxx
Xxxxxx 0000
Xxxxxxxxx
Attention: Xxxxx Xxxxxxx
Suite 2502
Level 25, Citgroup Centre
0 Xxxx Xxxxxx
Xxxxxx 0000
Xxxxxxxxx
Attention: Xxxxx Xxxxxxx
Eighteenth.- Exhibits and Captions. All documents attached hereto or to which reference is
made herein are hereby incorporated by reference into, and shall be deemed a part of, this
Agreement. The captions and headings contained in this Agreement are for convenience only and shall
not affect the interpretation of this Agreement.
Nineteenth.- Further Assurances. Subject to the Agreed Security Principles, the Pledgor, at
the Pledgee’s request, agrees to promptly execute or cause to be executed and deliver to the
Pledgee any and all documents, instruments and agreements, in connection with this Agreement,
deemed necessary by the Pledgee (acting on the instructions of the Applicable Representative) to
give effect to or carry out the terms or intent of this Agreement.
Twentieth.- Jurisdiction, Governing Law. For all matters relating to the interpretation and
fulfillment of this Agreement, the parties hereto expressly and irrevocably submit to the
applicable laws of Mexico, and to the jurisdiction of the competent courts sitting in Mexico,
Federal District, Mexico, with respect to any action or proceeding arising out of or relating
hereto, and the parties hereby expressly and irrevocably waive all rights to any other jurisdiction
to which they may be entitled to by reason of their present or future domiciles, or by any other
reason.
Twenty First.- Language. This Agreement is entered into in both the Spanish and English
languages; provided that, in the case of any judicial procedure before a Mexican court, the Spanish
version shall govern for all purposes.
Twenty Second.- Counterparts. This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which
14
when so executed shall be deemed to be an original and all of which taken together shall constitute
one and the same Agreement.
[Signature pages continue]
15
IN WITNESS WHEREOF, the parties hereto execute this Agreement, on this 4 day of May, 2010.
The Pledgor:
Evergreen Packaging International B.V.
By:
|
/s/ Xxxxxx Xxxxxx
|
By: | /s/ Pru Xxxxxx
|
|||||
Name: Xxxxxx Xxxxxx | Name: Pru Xxxxxx | |||||||
Title: Attorney | Title: Attorney |
The Pledgee:
The Bank of New York Mellon, acting solely in its capacity as Collateral Agent on behalf and for
the benefit of the Secured Parties.
By: | /s/ Xxxxxxxxx X. Xxxxxxx | |||
Name: | Xxxxxxxxx X. Xxxxxxx | |||
Title: | Vice President | |||
With the acknowledgment of:
Evergreen Packaging México, S. de X.X. de C.V.
By: | /s/ Xxxxxx Xxxxxx | |||
Name: | Xxxxxx Xxxxxx | |||
Title: | Attorney |
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Exhibit “A”
Partnership Interest Pledge Agreement
Copy of First Lien Intercreditor Agreement
and Amendment
Partnership Interest Pledge Agreement
Copy of First Lien Intercreditor Agreement
and Amendment
17
PODER ESPECIAL | SPECIAL POWER OF ATTORNEY | |
En la Xxxxxx xx , xx xx
xx 0000, xxxx
mi ,
Notario Público, compareció
en su carácter
de de
Evergreen Packaging
International B.V., (la
“Sociedad”) una sociedad
debidamente constituida y
existente de conformidad
con las leyes de
, con su
domicilio en
,
y expuso:
|
In the City of , on , 2010, before me Notary Public, appeared , in his capacity as of Evergreen Packaging International B.V. (the “Corporation”) a corporation organized and existing pursuant to the laws of , and having its principal offices in and declared: | |
Que en nombre y
representación de la Sociedad y de conformidad con los poderes que le confiere la Sociedad, por
medio del presente otorga
como garantía: |
That in the name and on behalf of the Corporation and in accordance with the powers conferred by the Corporation, hereby grants by way of security: | |
1. Un PODER ESPECIAL en
cuanto a su objeto pero
general en cuanto a las
facultades otorgadas, con
facultades de delegación,
a favor de The Bank of
New York Mellon (el
“Acreedor Prendario”),
actuando únicamente en su
carácter de Agente de
Garantías (Collateral
Agent), en representación
y para el beneficio de
las Partes Garantizadas
(Secured Parties) y
cualquier delegado
designado por el Acreedor
Prendario, para que, en
nombre y representación
de la Sociedad, puedan,
individualmente,
celebrar, firmar y
perfeccionar cualquier
documento y llevar a cabo
cualesquiera actuaciones
que el apoderado
considere necesarias o
deseables, en relación
con el Contrato de Prenda
sobre Parte Social
celebrado entre la
Sociedad, como deudor
prendario, y el Acreedor
Prendario, actuando
únicamente
|
1. A SPECIAL POWER-OF-ATTORNEY deemed as special in regards to its purpose but as general in regards to the powers granted, with authority to delegate such power, in favor of The Bank of New York Mellon (the “Pledgee”), acting solely in its capacity as Collateral Agent, on behalf and for the benefit of the Secured Parties and any receiver appointed by the Pledgee, so that in the name and on behalf of the Corporation they may, severally, execute, deliver and perfect all documents and do all things which the attorney in fact may consider to be required or desirable, in connection with the Partnership Interest Pledge Agreement (Contrato de Prenda sobre Parte Social) entered into, by and between the Corporation, as pledgor, and the Pledgee, acting solely in its capacity as Collateral Agent on behalf and for the |
18
en su carácter de Agente
de Garantías (Collateral
Agent), en representación
y para el beneficio de
las Partes Garantizadas
(Secured Parties), como
acreedor prendario, con
el reconocimiento de
Evergreen Packaging
México, S. de X.X. de
C.V., (según dicho
Contrato de Prenda sobre
Parte Social haya sido o
sea modificado,
suplementado o modificado
y reexpresado de tiempo
en tiempo, en lo
sucesivo, el “Contrato de Prenda”), para:
|
benefit of the Secured Parties, as pledgee, with the acknowledgment of Evergreen Packaging México, S. de X.X. de C.V. (as such Partnership Interest Pledge Agreement may be amended, supplemented, modified or amended and restated from time to time, hereinafter, the “Pledge Agreement”), for: | |
(a) llevar a cabo
cualquier acto para
cumplir con cualquier
obligación impuesta a la
Sociedad mediante el
Contrato de Prenda o
cualquier otro contrato
que obligue a la Sociedad
y del cual sea parte el
Acreedor Prendario
(incluyendo la
celebración y entrega de
cualesquier actos,
gravámenes, cesiones u
otra garantía y
cualesquier transmisiones
de la Parte Social
Pignorada (según dicho
término se define en el
Contrato de Prenda));
|
(a) carrying out any obligation imposed on the Corporation by the Pledge Agreement or any other agreement binding on the Corporation to which the Pledgee is a party (including the execution and delivery of any deeds, charges, assignments or other security and any transfers of the Pledged Partnership Interest (as such term is defined in the Pledge Agreement)); | |
(b) permitir al Acreedor
Prendario para que
ejerza, o delegue el
ejercicio de, todos y o
cualquiera de sus
derechos sobre la Parte
Social Pignorada; y
|
(b) enabling the Pledgee to exercise, or delegate the exercise of, all or any of its rights over the Pledged Partnership Interest; and | |
(c) permitir a cualquier
delegado designado por el
Acreedor Prendario para
que ejerza, o delegue el
ejercicio de, cualquier
de los derechos, poderes
y facultades conferidos
sobre los mismos por o
conforme al Contrato de
Prenda o por ley;
|
(c) enabling any receiver appointed by Pledgee to exercise, or delegate the exercise of, any of the rights, powers and authorities conferred on them by or pursuant to the Pledge Agreement or by law; | |
en el entendido en todo
momento que el Acreedor
Prendario únicamente
tendrá el derecho de
ejercer los poderes que
le han sido conferidos
por este poder
(incluyendo los
mencionados abajo) si: un
Caso de
|
provided always that the Pledgee may only be entitled to exercise the powers conferred upon it by this Power of Attorney (including those below) if: an Event of Default has occurred and is |
19
Incumplimiento ha
ocurrido y continúa; y/o
el Acreedor Prendario ha
recibido una notificación
del Representante
Aplicable, el Agente de
las Partes del Crédito
y/o de la Sociedad de que
la Sociedad ha incumplido
con cualquier obligación
(incluyendo obligaciones
de perfeccionamiento)
dentro de los 10 (diez)
Xxxx Hábiles de que se le
haya notificado de dicho
incumplimiento (con copia
de dicha notificación
entregada al Agente de
las Partes del Crédito),
en el entendido además
que el Acreedor Prendario
no xxxxxx xx xxxxxxxxxx
de ejercer los poderes
que le han sido
conferidos por la
Sociedad conforme al
presente poder
(incluyendo los
mencionados abajo), salvo
y hasta que se le haya
(i) instruido a
ejercerlos por el
Representante Aplicable,
e (ii) indemnizado y/o
garantizado y/o
pre-fondeado a su
satisfacción.
|
continuing; and/or the Pledgee has received notice from the Applicable Representative, the Loan Parties’ Agent and/or the Corporation that the Corporation has failed to comply with a further assurance or perfection obligation within ten Business Days of being notified of that failure (with a copy of that notice being sent to the Loan Party’s Agent), provided further that the Pledgee shall not be obliged to exercise the powers conferred upon it by the Corporation under this Power (including those below) unless and until it shall have been (a) instructed to do so by the Applicable Representative and (b) indemnified and/or secured and/or prefunded to its satisfaction. | |
Para poder llevar a cabo
los actos mencionados en
los incisos anteriores, y
sin perjuicio de la especialidad de los
facultades otorgadas, los
apoderados contarán con:
|
In order to carry out the acts referred to in the preceding sections, and notwithstanding the special nature of the powers granted, the attorneys-in-fact are hereby granted with: | |
(i) Poder para pleitos y
cobranzas, actos de
administración y actos de
dominio en los términos
del primer, segundo y
tercer párrafos del
artículo dos mil
quinientos cincuenta y
cuatro del Código Civil
Federal y sus
correlativos contenidos
en los Códigos Civiles de
los xxxxx estados de los
Estados Unidos Mexicanos
y el Distrito Federal; y
|
(i) A power of attorney for lawsuits and collections, acts of administration and acts of ownership in terms of the first, second and third paragraphs of Article two thousand five hundred and fifty four of the Federal Civil Code and its correlative Articles of the Civil Codes of the remaining States of the United Mexican States and the Federal District; and | |
(ii) poder especial para
suscribir y endosar
títulos de crédito en los
términos del artículo 9º
de xx Xxx General de
Títulos y Operaciones de
Crédito.
|
(ii) a special power of attorney to subscribe and endorse negotiable instruments in accordance with article 9 of the General Law of Negotiable Instruments and Credit Operations. |
20
El presente poder es
irrevocable en los
términos de artículo 2596
(dos mil quinientos
noventa y seis) del
Código Civil Federal y
sus artículos
correlativos en los
Códigos Civiles de los
xxxxx Estados de la
República, por haberse
otorgado como una
condición en un contrato
bilateral y como un medio
para el cumplimiento de
sus obligaciones conforme
al Contrato de Prenda.
|
The special power of attorney granted hereby is irrevocable pursuant to the terms of article 2,596 of the Federal Civil Code its correlative Articles of the Civil Codes of the States of the United Mexican States and the Federal District, it being a condition of a bilateral agreement and a mean to comply with its obligations under the Pledge Agreement. | |
Para efectos del párrafo
quinto del Artículo 2554
del Código Civil Federal, el mismo se transcribe a
continuación:
|
For purposes of paragraph fifth of Article 2554 of the Federal Civil Code, a transcription thereof follows: | |
“Artículo 2554. En todos
los poderes generales
para pleitos y cobranzas
bastará que se diga que
se otorga con todas las
facultades generales y
las especiales que
requieran cláusula
especial conforme a xx
xxx para que se entiendan
conferidos sin limitación
alguna.
|
“Article 2554. In all general powers of attorney for lawsuits and collections it shall be sufficient to say that they are granted with all the general powers and with the special powers requiring special clause in accordance with the law in order that they may be considered as granted without any limitation. | |
En los poderes generales
para administrar bienes,
bastará expresar que se
xxx con este carácter
para que el apoderado
tenga toda clase de
facultades
administrativas.
|
In general powers of attorney to administer property, it shall be sufficient to state that they are given with that character, in order that the attorneys-in-fact may have all kinds of administrative powers. | |
En los poderes generales,
para ejercer actos de
dominio, bastará que se
den con ese carácter para
que el apoderado tenga
todas las facultades xx
xxxxx, tanto en lo
relativo a los bienes,
como para hacer toda
clase de gestiones, a fin
de defenderlos.
|
In general powers of attorney to exercise acts of ownership, it shall be sufficient that they be given with that character, in order that the attorneys-in-fact may have all the powers of an owner, both with respect to the property, and to take all actions to defend it. | |
Cuando se quisieren
limitar, en los tres
casos
|
If in any of the aforesaid three cases it |
21
antes mencionados, las
facultades de los
apoderados, se
consignarán las
limitaciones, o los
poderes serán especiales.
|
should be desired to limit the authority of the attorneys-in-fact, the limitation shall be set out, or the powers of the attorneys-in-fact shall be special powers of attorney. | |
Los Notarios insertarán
este Artículo en los
testimonios de los
poderes que otorguen.”
|
Notaries shall insert this Article in the instruments of powers of attorney which they execute.” | |
Salvo que un término se
encuentre definido en
este poder o el contexto
lo requiera de otra
forma, un término
definido en el Contrato
de Prenda y/o el Convenio
entre Acreedores (como
dicho término se define
en el Contrato de Prenda)
tiene el mismo
significado en este
poder.
|
Unless defined in this power of attorney or the context otherwise requires, a term defined in the Pledge Agreement and/or the First Lien Intercreditor Agreement (as defined in the Pledge Agreement) has the same meaning in this Power of Attorney. |
__________________
|
__________________ | |
Nombre: [__________]
|
Name: [__________] | |
Cargo:
|
Title: |
(NOTE: The signature of the Notary Public must be certified by the relevant officer of; the
power of attorney must bear an apostille issued in accordance with The Hague Convention of 1961.)
22
Exhibit “C”
Partnership Interest Pledge Agreement
Form of Termination Notice
Partnership Interest Pledge Agreement
Form of Termination Notice
[Date]
Evergreen Packaging International B.V.
[_______________]
[_______________]
[_______________]
[_______________]
[_______________]
This Termination Notice is delivered pursuant to Clause Eleventh of the Partnership Interest
Pledge Agreement dated May 4, 2010 (the “Pledge Agreement”), entered into by and between
Evergreen Packaging International B.V., as pledgor, and The Bank of New York Mellon, on behalf and
for the benefit of the Secured Parties, as pledgee, with the acknowledgment of Evergreen Packaging
México, S. de X.X. de C.V. Capitalized terms used and not otherwise defined herein, shall have the
meaning ascribed to such terms in the Pledge Agreement.
By means of this Termination Notice the undersigned, acting as Pledgee under the Pledge
Agreement, hereby certifies that the Pledge Agreement is terminated and the Security Interest
created thereby is hereby released.
Sincerely,
The Bank of New York Mellon
By:______________________
Name: [_____________]
Title: Attorney-in-Fact
Name: [_____________]
Title: Attorney-in-Fact
23