AMENDMENT AGREEMENT NO. 6 dated 7 NOVEMBER, 2012 for CSI HUNGARY GYÁRTÓ ÉS KERESKEDELMI KORLÁTOLT FELELŐSSÉGŰ TÁRSASÁG as Chargor and WILMINGTON TRUST (LONDON) LIMITED as Chargee RELATING TO A FLOATING CHARGE AGREEMENT DATED 29 JANUARY 2010 AS AMENDED...
EXHIBIT 4.564
Final version
AMENDMENT AGREEMENT NO. 6
dated 7 NOVEMBER, 2012
for
CSI HUNGARY GYÁRTÓ ÉS KERESKEDELMI KORLÁTOLT FELELŐSSÉGŰ TÁRSASÁG
as Chargor
and
WILMINGTON TRUST (LONDON) LIMITED
as Chargee
RELATING TO A
FLOATING CHARGE AGREEMENT
DATED 29 JANUARY 2010 AS AMENDED ON 4 MAY 2010,
16 NOVEMBER 2010, 1 FEBRUARY 2011,
9 FEBRUARY 2011 AND 8 SEPTEMBER 2011
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.
Final version
THIS AMENDMENT AGREEMENT (the “Agreement”) is made on 7 November 2012
BETWEEN:
| (1) | CSI Hungary Gyártó és Kereskedelmi Korlátolt Felelősségű Társaság, a limited liability company incorporated under the laws of Hungary, having its registered office as at the date of this Agreement at Xxxxxxx út 72-100., 8000 Székesfehérvár, Hungary, registered with the Fejér County Court acting as court of registration under registration number Cg. 00-00-000000, as chargor under this Agreement (hereinafter referred to as the “Chargor”); |
and
| (2) | Wilmington Trust (London) Limited, having its Registered office at Third Floor, 1 King’s Arms Yard, London, EC2R 7AF, the United Kingdom, acting as chargee under this Agreement, in its capacity as collateral agent acting on behalf and for the benefit of the Secured Parties (as defined below), as appointed under the First Lien Intercreditor Agreement (as defined below) and authorised to represent their joint and several rights in connection with this Agreement (hereinafter, with its successors, permitted transferees and permitted assigns in such capacity, referred to as the “Collateral Agent” or the “Chargee”); |
| (1) and (2) are together hereinafter referred to as the “Parties” and “Party” means any of them, as the context may require. |
RECITALS:
| (A) | The Parties hereby declare that the Floating Charge Agreement (as defined below) was originally concluded on 29 January 2010 between the Chargee and the Chargor, pursuant to both (i) the Credit Agreement and (ii) the 2009 Indenture (each as defined in the Floating Charge Agreement), and the Floating Charge Agreement was amended pursuant to, among others, (x) the 0000 Xxxxxxxxx, (y) the February 2011 Indenture and (z) the August 2011 Indenture (each as defined in the Floating Charge Agreement). |
| (B) | In connection with the Credit Agreement, the 2009 Indenture, the 2010 Indenture, the February 0000 Xxxxxxxxx and the August 2011 Indenture, certain parties have entered into a first lien intercreditor agreement dated 5 November 2009 between, among others, The Bank of New York Mellon as trustee under the 2009 Indenture, Credit Suisse AG as representative under the Credit Agreement and each grantor party thereto, as subsequently amended by Amendment No. 1 and Joinder Agreement dated 21 January 2010, which added the Collateral Agent as a collateral agent under the First Lien Intercreditor Agreement (the “First Lien Intercreditor Agreement”). |
| (C) | Pursuant to an amendment no. 7 and incremental term loan assumption agreement dated 28 September 2012, and entered into between, among others, 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, Pactiv LLC (formerly Pactiv Corporation), Closure Systems International B.V., Beverage Packaging Holdings (Luxembourg) III S.à x.x., Evergreen Packaging Inc., Xxxxxxxx Consumer Products Inc., the lenders from time to time party thereto and Credit Suisse AG as administrative agent, the Credit Agreement has been amended and restated in the form of Schedule A attached thereto. |
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| (D) | Pursuant to an indenture (the “September 2012 Secured Notes Indenture”) dated 28 September 2012 and entered into among Xxxxxxxx Group Issuer Inc., Xxxxxxxx Group Issuer LLC and Xxxxxxxx Group Issuer (Luxembourg) S.A. as issuers (and, together, the “September 2012 Issuers”), The Bank of New York Mellon, as trustee, principal paying agent, transfer agent, registrar and collateral agent, The Bank of New York Mellon, London Branch, as paying agent and Wilmington Trust (London) Limited as additional collateral agent, certain secured notes were issued by the September 2012 Issuers on 28 September 2012. |
| (E) | The obligations in respect of the September 2012 Secured Notes Indenture and any Senior Secured Note Documents (as defined therein) have been designated as “Additional Obligations” under, and in accordance with, section 5.02(c) of the First Lien Intercreditor Agreement. |
| (F) | As of 31 December 2011 Closure Systems International Holdings (Hungary) Vagyonkezelő Korlátolt Felelősségű Társaság (“CSI Holding”) merged into the Chargor with the Chargor as legal successor (the “Merger”). As a result of the Merger, the Chargor has become the general legal successor of CSI Holding. |
| (G) | CSI Holding as chargor and the Chargee as chargee entered into a floating charge agreement concluded in the form of a notarial deed dated 29 January 2010, as amended on 4 May 2010, 16 November 2010, 1 February 2011, 9 February 2011 and 8 September 2011 (notarial deed no. 11015/Ü/94/2010, MOKK no. 122482) (the “CSI Holding Floating Charge Agreement”). |
| (H) | As a consequence of the above, the Parties agreed to amend the Floating Charge Agreement and enter into this Agreement. |
IT IS AGREED as follows:
| 1. | DEFINITIONS AND INTERPRETATION |
| 1.1 | Definitions |
In this Agreement:
“Floating Charge Agreement” means the floating charge agreement concluded in the form of a notarial deed dated 29 January 2010, as amended on 4 May 2010, 16 November 2010, 1 February 2011, 9 February 2011 and 8 September 2011 between the Chargor and the Chargee.
| 1.2 | Incorporation of defined terms |
| (a) | Unless a contrary indication appears, a term defined in the First Lien Intercreditor Agreement and in the Floating Charge Agreement has the same meaning in this Agreement and in any notice given under this Agreement. |
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| (b) | The principles of construction set out in the Floating Charge Agreement shall have effect as if set out in this Agreement. |
| 1.3 | Clauses |
In this Agreement any reference to a “Clause” or a “Schedule” is, unless the context otherwise requires, a reference to a Clause or a Schedule to this Agreement.
| 2. | AMENDMENTS TO THE FLOATING CHARGE AGREEMENT |
With effect from the date of this Agreement:
| (a) | The definition of “Credit Agreement” in clause 1.1 (Definitions) of the Floating Charge Agreement shall be replaced with the following wording: |
““Credit Agreement” means the Credit Agreement dated as of 5 November 2009, among Closure Systems International B.V., Xxxxxxxx Group Holdings Inc., Xxxxxxxx Consumer Products Holdings Inc., SIG Euro Holding AG & Co. KGaA, Closure Systems International Holdings Inc. and SIG Austria Holding GmbH 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, as amended, extended, restructured, renewed, novated, supplemented, restated, refunded, replaced or modified from time to time (including, without limitation by amendment no. 7 and incremental term loan assumption agreement dated 28 September 2012 entered into between, among others, 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., Xxxxxxxx Consumer Products Inc., the lenders from time to time party thereto and Credit Suisse AG as administrative agent, attached as Part I of Schedule 1 (Credit Agreement) to this Agreement.”
| (b) | The definition of “Loan Documents” in clause 1.1 (Definitions) of the Floating Charge Agreement shall be replaced with the following wording: |
““Loan Documents” means the “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 (including also the documents attached to Schedule 1 to this Agreement).”
| (c) | The definitions of “May 2010 Incremental Assumption and Amendment Agreement”, “September 2010 Incremental Assumption and Amendment Agreement”, “February 2011 Incremental Assumption and Amendment Agreement” and “August 2011 Incremental Assumption and Amendment Agreement” shall be deleted in clause 1.1 (Definitions) of the Floating Charge Agreement. |
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| (d) | Where reference is made in the Floating Charge Agreement to Schedule 3, it shall be replaced with, and interpreted as being reference to, Schedule 1 of the Floating Charge Agreement. |
| (e) | The following new definitions shall be inserted in clause 1.1 (Definitions) of the Floating Charge Agreement in alphabetical order: |
““September 2012 Issuers” means the “Issuers” under, and as defined in, the September 2012 Secured Notes Indenture, including their successors in interest.”
““September 2012 Secured Notes Indenture” means the indenture dated 28 September 2012, among the September 2012 Issuers and The Bank of New York Mellon, as trustee, principal paying agent, transfer agent, registrar and collateral agent, The Bank of New York Mellon, London Branch, as paying agent and Wilmington Trust (London) Limited, as additional collateral agent, as amended, extended, restructured, renewed, refunded, novated, supplemented, restated, replaced or modified from time to time, attached as Part X of Schedule 1 (September 2012 Secured Notes Indenture) to this Agreement.”
| (f) | Clause 2.1 (i) of the Floating Charge Agreement shall be replaced in its entirety with the following wording: |
| “(i) | USD 9,605,000,000 (that is nine billion six hundred and five million U.S. $) and EUR 830,000,000 (that is eight hundred and thirty million euro) (the “Secured Principal”); plus |
| (g) | Part I of Schedule 1 (Credit Agreement) of the Floating Charge Agreement shall be replaced with Schedule A (Part I of Schedule 1 (Credit Agreement)) of this Agreement. |
| (h) | The content of Part IV of Schedule 1 (Incremental Assumption and Amendment Agreement) of the Floating Charge Agreement shall be deleted. Under the title “Part IV” a statement should be inserted that the content of such Part IV have been “intentionally left blank”. |
| (i) | The content of Part VII of Schedule 1 (February 2011 Incremental Assumption and Amendment Agreement) of the Floating Charge Agreement shall be deleted. Under the title “Part VII” a statement should be inserted that the content of such Part VII have been “intentionally left blank”. |
| (j) | The content of Part IX of Schedule 1 (August 2011 Incremental Assumption and Amendment Agreement) of the Floating Charge Agreement shall be deleted. Under the title “Part IX” a statement should be inserted that the content of such Part IX have been “intentionally left blank”. |
| (k) | Schedule 1 of the Floating Charge Agreement shall be supplemented with Schedule B (Part X of Schedule 1 (September 2012 Secured Notes Indenture)) of this Agreement. |
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| 3. | CONTINUITY AND FURTHER ASSURANCE |
| 3.1 | Continuing obligations |
The provisions of the Floating Charge Agreement shall, save as amended by this Agreement, continue in full force and effect. The Parties agree that any filing to be made with any authority under this Agreement will serve for the sole purpose of administering the amendment to the Floating Charge Agreement, and shall not serve for the purpose of any re-registration of the Floating Charge. In addition, this Agreement and any filing to be made under this Agreement shall not in any way affect the ranking and the establishment date of the Floating Charge.
| 3.2 | Termination of the CSI Holding Floating Charge Agreement |
The Parties hereby declare and acknowledge that the floating charge created under the CSI Holding Floating Charge Agreement has been terminated as of the effective date of the Merger being 31 December 2011. The Parties hereby terminate the CSI Holding Floating Charge Agreement with effect from the date of this Agreement. The Chargee hereby consents to the release and deregistration of the floating charge created under the CSI Holding Floating Charge Agreement from the Registry of Charges. For the avoidance of doubt the floating charge created under the Floating Charge Agreement remains to encumber any and all assets of the Chargor from time to time.
| 3.3 | Registration of the amendments |
The Parties hereby request the public notary:
| (a) | to register the changes in the registered data of the Floating Charge in the Registry of Charges (i.e. the change in the maximum aggregate framework security amount of the Obligations); and |
| (b) | in order to reflect the ceasing of the floating charge created over the assets of CSI Holding under the CSI Holding Floating Charge Agreement, to deregister such floating charge from the Registry of Charges. |
| 3.4 | Further assurance |
The Chargor shall, at the reasonable request of the Chargee and at its own expense, do all such acts and things necessary to give effect to the amendments effected or to be effected pursuant to this Agreement.
| 4. | INCORPORATION OF TERMS |
The provisions of clause 7 (Remedies and waivers), clause 8 (Severability), clause 12 (Notices) and clause 14 (Jurisdiction) of the Floating Charge Agreement shall be incorporated into this Agreement as if set out in full in this Agreement and as if references in those clauses to “this Agreement” are references to this Agreement.
| 5. | GOVERNING LAW |
This Agreement is governed by Hungarian law.
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| 6. | RIGHTS OF THE COLLATERAL AGENT |
Notwithstanding anything contained herein, 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 accordingly each of the protections, immunities, rights, indemnities and benefits conferred on the Collateral Agents under the Floating Charge Agreement and the First Lien Intercreditor Agreement shall continue in full force and effect and shall apply to this Agreement as if set out in full herein.
[Certification of the Public Notary and the related powers of attorney inserted]
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SCHEDULE A
“SCHEDULE 1
Part I
CREDIT AGREEMENT”
(To Be Inserted)
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SCHEDULE B
“SCHEDULE 1
Part X
SEPTEMBER 2012 SECURED NOTES INDENTURE”
(To Be Inserted)
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SIGNATURES
CSI Hungary Gyártó és Kereskedelmi Korlátolt Felelősségű Társaság—as Chargor
By:
Wilmington Trust (London) Limited—as Chargee
By:
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