EX-4.572 84 d444736dex4572.htm ACKNOWLEDGEMENT AGREEMENT IN RESPECT OF A FLOATING LIEN PLEDGE AGREEMENT Execution Version THE TAKING OF THIS DOCUMENT OR ANY CERTIFIED COPY OF IT OR ANY DOCUMENT WHICH CONSTITUTES SUBSTITUTE DOCUMENTATION FOR IT, OR ANY...
EXHIBIT 4.572
Execution Version
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 Acknowledgment Agreement (Convenio de Reconocimiento) is entered into on this 7th day of November, 2012 (the “Agreement”), by and among Grupo CSI de México, S. de X.X. de C.V., CSI en Saltillo, S. de X.X. de C.V., CSI en Ensenada, S. de X.X. de C.V., CSI Tecniservicio, S. de X.X. de C.V., Bienes Industriales del Norte, S.A. de C.V., Técnicos de Tapas Innovativas, S.A. de C.V., Evergreen Packaging México, S. de X.X. de C.V., Xxxxxxxx Metals Company de México, S. de X.X. de C.V., Grupo Corporativo Jaguar, S.A. de C.V., Servicios Industriales Jaguar, S.A. de C.V., Servicio Terrestre Jaguar, S.A. de C.V., Pactiv México, S. de X.X. de C.V. and Pactiv Foodservice México, S. de X.X. de C.V. (formerly known as Central de Bolsas, S. de X.X. de C.V.), as pledgors under the Pledge Agreements (as defined below), and The Bank of New York Mellon, acting solely in its capacity as Collateral Agent on behalf and for the benefit of the Secured Parties, as pledgee under the Pledge Agreements, in accordance with the following Recitals, Representations and Warranties and Clauses. Terms used in this Agreement and not otherwise defined herein shall have the meaning set forth in the Pledge Agreements.
Recitals
I. First Pledge Agreement. On January 29, 2010, Grupo CSI de México, S. de X.X. de C.V., CSI en Saltillo, S. de X.X. de C.V., CSI en Ensenada, S. de X.X. de C.V., CSI Tecniservicio, S. de X.X. de C.V., Bienes Industriales del Norte, S.A. de C.V., and Técnicos de Tapas Innovativas, S.A. de C.V., as pledgors, and the Pledgee entered into a floating lien pledge agreement (as amended, extended, restructured, renewed, novated, supplemented, restated, refunded, replaced or modified from time to time, the “First Pledge Agreement”). A copy of the First Pledge Agreement together with the acknowledgement agreements dated May 4, 2010, November 16, 2010, February 1, 2011, February 9, 2011 and September 8, 2011 relating to the First Pledge Agreement are attached hereto as Exhibit “A”.
II. Second Pledge Agreement. On May 4, 2010, Evergreen Packaging México, S. de X.X. de C.V., as pledgor, and The Bank of New York Mellon, as pledgee, entered into a floating lien pledge agreement (as amended, extended,
restructured, renewed, novated, supplemented, restated, refunded, replaced or modified from time to time, the “Second Pledge Agreement”). A copy of the Second Pledge Agreement together with the acknowledgement agreements dated November 16, 2010, February 1, 2011, February 9, 2011 and September 8, 2011 relating to the Second Pledge Agreement are attached hereto as Exhibit “B”.
III. Third Pledge Agreement. On September 1, 2010, Maxpack, S. de X.X. de C.V. (as of December 31, 2011, Maxpack, S. de X.X. de C.V. ceased to exist following the merger with and into Pactiv Foodservice México, S. de X.X. de C.V., (formerly known as Central de Bolsas, S. de X.X. de C.V.) with the latter as the surviving entity,) and Xxxxxxxx Metals Company de México, S. de X.X. de C.V., as pledgors, and The Bank of New York Mellon, as pledgee, entered into a floating lien pledge agreement (as amended, extended, restructured, renewed, novated, supplemented, restated, refunded, replaced or modified from time to time, the “Third Pledge Agreement”). A copy of the Third Pledge Agreement together with the acknowledgement agreements dated November 16, 2010, February 1, 2011, February 9, 2011 and September 8, 2011 relating to the Third Pledge Agreement are attached hereto as Exhibit “C”.
IV. Fourth Pledge Agreement. On April 19, 2011, Pactiv Foodservice México, S. de X.X. de C.V. (formerly known as Central de Bolsas, S. de X.X. de C.V.), Grupo Corporativo Jaguar, S.A. de C.V., Servicios Industriales Jaguar, S.A. de C.V., Servicio Terrestre Jaguar, S.A. de C.V., and Pactiv México, S. de X.X. de C.V., as pledgors, and The Bank of New York Mellon, as pledgee, entered into a floating lien pledge agreement (as amended, extended, restructured, renewed, novated, supplemented, restated, refunded, replaced or modified from time to time, the “Fourth Pledge Agreement”, and together with the First Pledge Agreement, the Second Pledge Agreement, and the Third Pledge Agreement, the “Pledge Agreements”). A copy of the Fourth Pledge Agreement together with the acknowledgement agreement dated September 8, 2011 relating to the Fourth Pledge Agreement are attached hereto as Exhibit “D”.
V. Incremental Assumption Agreement. On September 28, 2012, Xxxxxxxx Group Holdings Inc., Xxxxxxxx Consumer Products Holdings LLC (formerly Xxxxxxxx Consumer Products Holdings Inc.), Closure Systems International Holdings Inc., SIG Euro Holding AG & Co. KGaA, SIG Austria Holding GmbH, Closure Systems International B.V., Pactiv LLC (formerly Pactiv Corporation), Beverage Packaging Holdings (Luxembourg) III S.à x.x., Evergreen Packaging Inc. and Xxxxxxxx Consumer Products Inc. as borrowers, Xxxxxxxx Group Holdings Limited, the Guarantors from time to time party thereto (as defined therein), the lenders from time to time party thereto and the Administrative Agent (as defined therein) entered into the Amendment No. 7 and Incremental Term Loan Assumption Agreement (the “Incremental Assumption Agreement”) pursuant to which the Credit Agreement was amended and restated as set out in Annex A thereto (the “Third Amended and Restated Credit Agreement”).
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VI. September 2012 Secured Notes Indenture. On September 28, 2012, the Issuers (as defined therein), The Bank of New York Mellon, as trustee, principal paying agent, transfer agent, registrar and collateral agent and Wilmington Trust (London) Limited, as additional collateral agent, entered into an indenture (the “September 2012 Secured Notes Indenture”) pursuant to which certain secured notes were issued by the Issuers.
VII. Secured Notes Designation. The obligations in respect of the September 2012 Secured Notes Indenture and any Senior Secured Note Documents (as defined therein) were designated as “Additional Obligations” on September 28, 2012 under, and in accordance with, section 5.02(c) of the First Lien Intercreditor Agreement (the “Secured Notes Designation”).
Representations and Warranties
| I. | Each of the Pledgors hereby represents and warrants, with respect to itself, through its legal representative, that on the date hereof: |
| (a) | the individual executing this Agreement in the name and on behalf of each of the Pledgors has sufficient power and authority, as well as the necessary authority (corporate, organizational or otherwise) to validly execute and deliver this Agreement on their behalf and to validly bind each of the Pledgors under the terms herein, as evidenced in public deed numbers 37,628, dated October 30, 2012, 37,577, 37,575, 37576, 37,574, 37,570, 37,568, 37,569, 37,578, 37,580, 37,572, 37,573, and 37,571, all dated October 24, 2012, granted in the notarial record of Xxxx Xxxx Xxxxxxxxxxxxx Xxxxxxxxx, Notary Public number 218 for Mexico City, Federal District, and that such powers, authority and corporate or other authorizations have not been revoked, modified or limited in any manner. |
NOW, THEREFORE, based on the Recitals and Representations and Warranties contained herein, the parties hereto agree as follows:
Clauses
First.- Acknowledgment. Each Pledgor (a) confirms and agrees that the Pledge Agreements, as applicable, and the Security Interest created thereunder continue to be in full force and effect subject to the Legal Reservations (as such term is defined in the Third Amended and Restated Credit Agreement), and (b) acknowledges and agrees that (i) the Incremental Assumption Agreement constitutes a Loan Document, and (ii) the obligations of the Loan Parties under the Incremental Assumption Agreement, the Third Amended and Restated Credit Agreement and any obligations that are “Additional Obligations” as a result of the Secured Notes Designation, in each case, constitute Secured Obligations under the Pledge Agreements.
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Second.- No Novation. The parties hereby expressly agree that this Agreement shall not extinguish the obligations for the payment of money outstanding under any Loan Document or discharge or release the priority of any Loan Document or any other security therefor. Nothing herein shall be construed as a substitution or novation of the Secured Obligations, which shall remain in full force and effect. Nothing in or implied by this Agreement or in any other document contemplated hereby shall be construed as a release or other discharge of any Secured Obligation. Each Pledge Agreement shall remain in full force and effect notwithstanding the execution and delivery of this Agreement.
The parties agree that this Agreement shall be deemed a “Security Document” for the purposes of and as defined in the First Lien Intercreditor Agreement (and for no other purpose) and that, accordingly, all rights, duties, privileges, protections and benefits of the Collateral Agent set forth in the First Lien Intercreditor Agreement are hereby incorporated by reference.
Third.- Entire Agreement. The parties hereby expressly agree that this Agreement is and shall be deemed a part of each Pledge Agreement and, for such reason, all references made in or with respect to each Pledge Agreement, shall include this Agreement.
Fourth.- 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, and the parties hereby expressly and irrevocably waive their rights to any other jurisdiction to which they may be entitled to by reason of their present or any future domiciles, or for any other reason.
Fifth.- 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.
[Signature page continues]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the date first above written.
The Pledgors:
Grupo CSI de México, S. de X.X. de C.V.
CSI en Saltillo, S. de X.X. de C.V.
CSI en Ensenada, S. de X.X. de C.V.
CSI Tecniservicio, S. de X.X. de C.V.
Bienes Industriales del Norte, S.A. de C.V.
Técnicos de Tapas Innovativas, S.A. de C.V.
Evergreen Packaging México, S. de X.X. de X.X.
Xxxxxxxx Metals Company de México, S. de X.X. de C.V.
Pactiv Foodservice México, S. de X.X. de C.V.
Grupo Corporativo Jaguar, S.A. de C.V.
Servicios Industriales Jaguar, S.A. de C.V.
Servicio Terrestre Jaguar, S.A. de C.V.
Pactiv México, S. de X.X. de C.V.
| /s/ Xxxxxxx Xxxx Xxxxxxxxx |
| Name: Xxxxxxx Xxxx Xxxxxxxxx |
| Title: Attorney-in-Fact |
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.
| /s/ Xxxxx Xxxxxxxx Xxxxx Xxxxxxx |
| Name: Xxxxx Xxxxxxxx Xxxxx Xxxxxxx |
| Title: Attorney-in-Fact |
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Exhibit “A”
Acknowledgement Agreement
Copy of First Pledge Agreement and
Acknowledgement Agreements
[Attached hereto]
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Exhibit “B”
Acknowledgement Agreement
Copy of Second Pledge Agreement and
Acknowledgement Agreements
[Attached hereto]
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Exhibit “C”
Acknowledgement Agreement
Copy of Third Pledge Agreement and
Acknowledgement Agreements
[Attached hereto]
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Exhibit “D”
Acknowledgement Agreement
Copy of Fourth Pledge Agreement and
Acknowledgement Agreement
[Attached hereto]
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