SUPPLEMENTAL INDENTURE
EXHIBIT 10.2.14
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of 20 December 2007,
among SIG Combibloc Zerspanungstechnik GmbH, a limited liability company (Gesellschaft mit
beschränkter Haftung) organised under the laws of the Federal Republic of Germany having
its business address at Xxxxxxxxxxxxxxxxx 0-00, 00000 Xxxxxx, Xxxxxxx, which is registered
in the commercial register (Handelsregister) of the local court (Amtsgericht) of Aachen
under HRB 3814 (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.
(a) 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.
(b) The New Senior Note Guarantor shall not be liable to pay any amount to the extent
that any liability or obligation under the Senior Note Guarantee would result in a
violation of, or give rise to directors’ personal liability (with respect to the New Senior
Note Guarantor or its shareholders) under, mandatory German capital maintenance rules
(Kapitalerhaltunsgvorschriften) pursuant to German company law, in particular Sections 30
et seq. (and, if enacted, the new Section 64) of the German Act on Limited Liability
Companies (Gesetz über Gesellschaften mit beschränkter Haftung) and/or Sections 57, 71 and
71a of the German Stock Corporation Act (Aktiengesetz) (the “German Capital Maintenance
Rules”). To the extent that any liability or obligation of the New Senior Note Guarantor
under the Senior Note Guarantee violates or contradicts German Capital Maintenance Rules or
gives rise to directors’ personal liability, such liability or obligation shall be deemed
replaced by a liability or obligation of a similar nature compliant with German Capital
Maintenance Rules, which provides the best possible result (within the limits of German
Capital Maintenance Rules) in favour of the Holders and the Trustee and their respective
successors and assigns.
(c) The Senior Note Guarantee shall further not be enforced to the extent that the New
Senior Note Guarantor demonstrates in reasonable detail that such enforcement would lead to
a breach of the duty of care owing by its shareholders to it (Gebot der Rücksichtnahme auf
die Eigenbelange der Gesellschaft) and/or of the prohibition of insolvency-causing
intervention (Verbot des existenzvernichtenden Eingriffs), as developed by the recent
jurisdiction (in particular BGH II ZR 178/99 Xxxxxx “Vulkan”, BGH ZR 196/00 and BGH II ZR
300/00 “KBV” and BGH II ZR 3/04 “Trihotel”) of the Federal Supreme Court
(Bundesgerichtshof), caused for example, as far as this would be within the scope of the
cited court rulings, if the entering into the Senior Note Guarantee or its enforcement
results in the illiquidity (Zahlungsunfähigkeit) of the New Senior Note Guarantor.
2
(d) The Trustee shall be obliged to retransfer proceeds from any enforcement of the
Senior Note Guarantee to the extent the New Senior Note Guarantor demonstrates in
reasonable detail that the enforcement was excluded pursuant to paragraphs (b) or (c)
above.
4. 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.
5. 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.
3
SIG COMBIBLOC ZERSPANUNGSTECHNIK GmbH, |
||||
By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | ||||
By: | /s/ Xxxxx Xxxx | |||
Name: | Xxxxx Xxxx | |||
Title: | ||||
THE BANK OF NEW YORK, as Trustee, |
||||
By: | /s/ Xxxx Xxxxx | |||
Name: | Xxxx Xxxxx | |||
Title: | Assistant Vice President | |||
BEVERAGE PACKAGING HOLDINGS (LUXEMBOURG) II S.A., |
||||
By: | /s/ Xxxxx Xxxx | |||
Name: | Xxxxx Xxxx | |||
Title: |
4