THIRD SUPPLEMENTAL INDENTURE dated as of December 30, 2002 to the Indenture dated March 8, 2000, as amended
EXHITIT 2.22
IFCO SYSTEMS N.V.,
as Issuer,
THE GUARANTORS named herein
and
THE BANK OF NEW YORK, as Trustee
dated as of December 30, 2002
to the
Indenture
dated March 8, 2000, as amended
EUR 200,000,000
10.625% SENIOR SUBORDINATED NOTES DUE 2010
THIRD SUPPLEMENTAL INDENTURE (this “Third Supplemental Indenture”), dated as of December 30, 2002, to the Indenture dated March 8, 2000, as amended by the First Supplemental Indenture, dated June 17, 2000, and as further amended by the Second Supplemental Indenture, dated September 8, 2000 (the “Indenture”), among IFCO SYSTEMS MANAGEMENT GMBH (the “New Guarantor”), IFCO SYSTEMS N.V., a Netherlands public company (the “Company”), each of the GUARANTORS under the Indenture referred to below (collectively, the “Existing Guarantors” and together with the New Guarantor, the “Guarantors”), and THE BANK OF NEW YORK, a New York banking corporation, as Trustee (the “Trustee”).
W I T N E S S E T H :
WHEREAS, the Company, the Existing Guarantors and the Trustee have heretofore entered into the Indenture to provide for the issuance of the Company’s EUR 200,000,000 10.625% Senior Notes due 2010 (the “Notes”);
WHEREAS Section 4.20 of the Indenture provides that under certain circumstances the Company is required to cause the New Guarantor to execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantor shall unconditionally guarantee all of the Company’s obligations under the Notes pursuant to a Guarantee on the terms and conditions set forth in the Indenture;
WHEREAS, Section 8.02 of the Indenture permits the Company, the Guarantors and the Trustee to amend the Indenture with the consent of the Holders of not less than a majority in principal amount of all outstanding Notes;
WHEREAS, the Company and the Guarantors desire to amend certain provisions of the Indenture, as set forth in Article One hereof;
WHEREAS, pursuant to the request of the Company and the Guarantors, the Trustee has agreed to the amendment of certain provisions of the Indenture as set forth in Article One hereof and, with the Company and the Guarantors, has agreed to enter into a supplemental indenture to reflect such amendments to the Indenture;
WHEREAS, the consent of the Holders of a majority in principal amount of all outstanding Notes, not including Notes held by affiliates of the Company and the Guarantors, to the amendments effected by this Third Supplemental Indenture has been obtained by the Company and the Guarantors;
WHEREAS, the Trustee has received: (i) an Opinion of Counsel pursuant to Section 8.06 of the Indenture stating that the execution of this Third Supplemental Indenture is authorized or permitted by the Indenture and that such amendment, supplement or waiver constitutes the legal, valid and binding obligation of the Company, and any Guarantors, enforceable in accordance with its terms; (ii) a copy of a Board Resolution of the Company and each of the Guarantors authorizing this Third Supplemental Indenture; and (iii) evidence reasonably satisfactory to the Trustee of the consent of the Holders of a majority in principal amount of all outstanding Notes, not including Notes held by affiliates of the Company and the Guarantors, to the amendments effected by this Third Supplemental Indenture; and
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WHEREAS, all things necessary to make this Third Supplemental Indenture a valid agreement of the Company and the Guarantors, in accordance with its terms, have been done.
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:
The Company and the Guarantors covenant and agree with the Trustee, for the equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
AMENDMENTS TO THE INDENTURE; AGREEMENT TO GUARANTEE
Section 1.1 Amendments Effective upon the Effective Date.
Effective upon the Effective Date (as such term is defined in that certain Restructuring Agreement, dated September 18, 2002, among the Company, Schoeller Logistic Technologies Holding GmbH, Schoeller Logistic Systems GmbH, and each of the Noteholders signatory thereto), (i) Sections 4.02; 4.03; 4.04; 4.05; 4.06; 4.09; 4.10; 4.11; 4.12; 4.13; 4.14; 4.15; 4.16; 4.18; 4.19; 4.20; 4.21; 5.01(3); 5.02; 6.01(c): 6.01(d); 6.01(e); and 9.04(b) of the Indenture are hereby amended by deleting all such sections, and all references thereto, in their entirety, and (ii) the deleted sections are hereby replaced with “Intentionally omitted.”
Section 1.2 Agreement to Guarantee.
The New Guarantor hereby agrees, jointly and severally with the Existing Guarantors, to Guarantee the Company’s Obligations under the Notes on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture. From and after the date hereof, the New Guarantor shall be a Guarantor for all purposes under the Indenture and the Notes.
ARTICLE TWO
MISCELLANEOUS
Section 2.1 Definitions.
Except as otherwise provided or defined herein, capitalized terms used in this Third Supplemental Indenture and not defined shall have the meanings assigned to them in the Indenture.
Section 2.2 Confirmation of the 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 Third Supplemental Indenture shall form a part of the Indenture for all purposes, and every Noteholder heretofore or hereafter authenticated and delivered shall be bound hereby.
Section 2.3 Effective Date; Termination.
This Third Supplemental Indenture will take effect immediately upon its execution by the Company, the Existing Guarantors, the New Guarantor and the Trustee. The amendments
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contained in Section 1.1 of this Third Supplemental Indenture will become operative on the Effective Date.
Section 2.4 Concerning the Trustee.
The recitals contained herein shall be taken as the statements of the Company and the Guarantors, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Third Supplemental Indenture.
Section 2.5 Governing Law.
THIS THIRD SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS THIRD SUPPLEMENTAL INDENTURE.
Section 2.6 Counterparts.
This Third Supplemental Indenture may be executed in any number of counterparts each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 2.7 Headings.
The headings of this Third Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed as of the date and year first above written.
| THE COMPANY:
IFCO SYSTEMS N.V. | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Chief Executive Officer | ||
| By: |
/s/ XXXXXXX X. NIMTSCH | |
| Xxxxxxx X. Nimtsch Senior Executive Vice President and Chief Financial Officer |
| GUARANTORS:
IFCO SYSTEMS GMBH | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Attorney-in-Fact | ||
| By: |
/s/ XXXXXXX X. NIMTSCH | |
| Xxxxxxx X. Nimtsch Attorney-in-Fact |
| IFCO SYSTEMS SKANDINAVIEN A/S | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx | ||
| By: |
/s/ XXXXXXX X. NIMTSCH | |
| Xxxxxxx X. Nimtsch Attorney-in-Fact |
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[THIRD SUPPLEMENTAL INDENTURE SIGNATURE PAGE]
| GISO VERWALTUNGSGESELLSCHAFT MBH & CO. BEHÄLTERLEASING KG | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Attorney-in-Fact | ||
| By: |
/s/ XXXXXXX X. NIMTSCH | |
| Xxxxxxx X. Nimtsch Attorney-in-Fact |
| IFCO SYSTEMS NORTH AMERICA, INC. (F/K/A PALEX, INC.) | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Vice President | ||
| IFCO SYSTEMS CHICAGO, INC. (F/K/A IFCO ICS-CHICAGO, INC., F/K/A ACME BARREL COMPANY, INC.) | ||
| By: |
/s/ XXXXX XXXXXXXXXX | |
| Xxxxx Xxxxxxxxxx President | ||
| IFCO SYSTEMS CALIFORNIA, INC. (F/K/A BAY AREA PALLET COMPANY) | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Vice President | ||
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[THIRD SUPPLEMENTAL INDENTURE SIGNATURE PAGE]
| BLACK RIVER FOREST PRODUCTS, INC. | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Vice President | ||
| IFCO SYSTEMS CHARLOTTE, INC. (F/K/A IFCO ICS-NORTH CAROLINA, INC., F/K/A CHARLOTTE STEEL DRUM CORPORATION) | ||
| By: |
/s/ XXXXX XXXXXXXXXX | |
| Xxxxx Xxxxxxxxxx President | ||
| IFCO SYSTEMS MINNESOTA, INC. (F/K/A IFCO ICS-MINNESOTA, INC., F/K/A CONSOLIDATED CONTAINER CORPORATION) | ||
| By: |
/s/ XXXXX XXXXXXXXXX | |
| Xxxxx Xxxxxxxxxx President | ||
| IFCO SYSTEMS MINNEAPOLIS, INC. (F/K/A CONTAINER RESOURCES CORPORATION) | ||
| By: |
/s/ XXXXX XXXXXXXXXX | |
| Xxxxx Xxxxxxxxxx President | ||
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[THIRD SUPPLEMENTAL INDENTURE SIGNATURE PAGE]
| IFCO SYSTEMS WASHINGTON, INC. (F/K/A IFCO ICS-WASHINGTON, INC., F/K/A CONTAINER SERVICES COMPANY NW, INC., F/K/A CONTAINER SERVICES COMPANY NW ACQUISITION, INC.) | ||
| By: |
/s/ XXXXX XXXXXXXXXX | |
| Xxxxx Xxxxxxxxxx President | ||
| MONTEBELLO IFCO SYSTEMS, INC. (F/K/A IFCO ICS-CALIFORNIA, INC., F/K/A CONTAINER SERVICES COMPANY SW, INC., F/K/A CONTAINER SERVICES COMPANY SW ACQUISITION, INC.) | ||
| By: |
/s/ XXXXX XXXXXXXXXX | |
| Xxxxx Xxxxxxxxxx President | ||
| IFCO SYSTEMS WATERLOO, WI, INC. (F/K/A XXXXXXX PALLET CO., INC.) | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Vice President | ||
| IFCO SYSTEMS ZELLWOOD, INC. (F/K/A IFCO ICS-FLORIDA, INC., F/K/A DRUM SERVICE CO. OF FLORIDA) | ||
| By: |
/s/ XXXXX XXXXXXXXXX | |
| Xxxxx Xxxxxxxxxx President | ||
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[THIRD SUPPLEMENTAL INDENTURE SIGNATURE PAGE]
| ERC SYSTEMS, INC. (F/K/A ENVIRONMENTAL RECYCLERS OF COLORADO, INC.) | ||
| By: |
/s/ XXXXX XXXXXXXXXX | |
| Xxxxx Xxxxxxxxxx President | ||
| IFCO SYSTEMS MAINE, INC. (F/K/A XXXXXXXX LUMBER COMPANY) | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Vice President | ||
| IFCO SYSTEMS VIRGINIA, INC. (F/K/A INTERSTATE PALLET CO., INC.) | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Vice President | ||
| IFCO SYSTEMS WISCONSIN, INC. (F/K/A NEW LONDON PALLET, INC.) | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Vice President | ||
| IFCO SYSTEMS HOLDING COMPANY, INC. (F/K/A IFCO INDUSTRIAL CONTAINERS SYSTEMS HOLDING COMPANY, F/K/A PALEX CONTAINER SYSTEMS, INC.) | ||
| By: |
/s/ XXXXX XXXXXXXXXX | |
| Xxxxx Xxxxxxxxxx President | ||
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[THIRD SUPPLEMENTAL INDENTURE SIGNATURE PAGE]
| PALEX-TEXAS, INC. | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Vice President | ||
| PALEX-TEXAS, L.P. By: Palex-Texas, Inc., its General Partner |
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Vice President |
| PALEX TEXAS HOLDINGS, INC. | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Secretary | ||
| IFCO SYSTEMS PENNSYLVANIA, INC. (F/K/A PALLET OUTLET COMPANY, INC.) | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Vice President | ||
| IFCO SYSTEMS FLORIDA, INC. (F/K/A RIDGE PALLETS, INC.) | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Vice President | ||
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[THIRD SUPPLEMENTAL INDENTURE SIGNATURE PAGE]
| IFCO SYSTEMS NORTH CAROLINA, INC. (F/K/A SHEFFIELD LUMBER AND PALLET COMPANY, INC.) | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Vice President | ||
| IFCO SYSTEMS INDIANA, INC. (F/K/A SHIPSHEWANA PALLET CO., INC.) | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Vice President | ||
| IFCO SYSTEMS CANADA, INC. (F/K/A SMG CORPORATION) | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Vice President | ||
| IFCO SYSTEMS WESTERN REGION, INC. (F/K/A SONOMA PACIFIC COMPANY) | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Vice President | ||
| IFCO SYSTEMS XXXXXX, INC. (F/K/A SOUTHERN PALLET, INC.) | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Vice President | ||
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[THIRD SUPPLEMENTAL INDENTURE SIGNATURE PAGE]
| VALLEY CRATING AND PACKAGING, INC. | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Vice President | ||
| IFCO SYSTEMS CONTAINER LLC (F/K/A IFCO ICS-LLC, F/K/A WESTERN CONTAINER LIMITED LIABILITY COMPANY) By: IFCO Systems Chicago, Inc., its Member |
| By: |
/s/ XXXXX XXXXXXXXXX | |
| Xxxxx Xxxxxxxxxx President |
| By: ERC Systems, Inc., its Member |
| By: |
/s/ XXXXX XXXXXXXXXX | |
| Xxxxx Xxxxxxxxxx President |
| IFCO-U.S., L.L.C. By: Schoeller U.S., Inc., its Member |
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Vice President |
| By: IFCO Systems North America, Inc., its Member |
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Vice President |
| AZ PALLET, INC. | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Vice President | ||
| BROMLEY ACQUISITION COMPANY, INC. |
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[THIRD SUPPLEMENTAL INDENTURE SIGNATURE PAGE]
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Vice President |
| IFCO SYSTEMS LOUISIANA, INC. (F/K/A TEXAS PALLET ACQUISITION, INC.) | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Vice President | ||
| IFCO SYSTEMS MICHIGAN, INC. (F/K/A IFCO ICS-MICHIGAN, INC., F/K/A XXXXXX XXXXXX DRUM & BARREL CO.) | ||
| By: |
/s/ XXXXX XXXXXXXXXX | |
| Xxxxx Xxxxxxxxxx President | ||
| IFCO SYSTEMS MANAGEMENT GMBH | ||
| By: |
/s/ XXXX XXXXXX | |
| Xxxx Xxxxxx Managing Director | ||
| By: |
/s/ XXXXXXX X. NIMTSCH | |
| Xxxxxxx X. Nimtsch Managing Director |
| TRUSTEE:
THE BANK OF NEW YORK, as Trustee | ||
| By: |
/s/ XXXXXXXX XXXXX | |
| Name: Xxxxxxxx Xxxxx Title: Assistant Vice President | ||
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