THIRD AMENDMENT TO THE QUOTA PLEDGE AGREEMENT Among The Bank of New York Mellon as Collateral Agent for the benefit of the Secured Parties under the First Lien Intercreditor Agreement Closure Systems International B.V. and Closure Systems...
EXHIBIT 4.385
THIRD AMENDMENT TO THE QUOTA PLEDGE AGREEMENT
Among
The Bank of New York Mellon
as Collateral Agent for the benefit of the Secured Parties under the First Lien Intercreditor
Agreement
Agreement
Closure Systems International B.V.
and
Closure Systems International Holdings Inc.
as Grantors
and
Closure Systems International (Brazil) Sistemas de Vedação Ltda.
as the Company
Dated as of
March 2, 2011
March 2, 2011
THIRD AMENDMENT TO THE QUOTA PLEDGE AGREEMENT
This Third Amendment to the Quota Pledge Agreement (the “Amendment”) is made as of March 2,
2011 by and among:
(a) Closure Systems International B.V., a company, duly organized and existing in
accordance with the laws of the Netherlands, with its registered office at Xxxxxxxxxxxxxxxxx 000,
0000XX Xxxxxxxxx, Xxxxxxxxxxx, herein duly represented in accordance with its Charter Documents
(together with its successors and permitted assignees, “CSI B.V.”);
(b) Closure Systems International Holdings Inc., a company duly incorporated and
existing under the laws of the State of Delaware, United States of America (“USA”), with its
registered office in the State of Delaware at National Registered Agents, Inc, 000 Xxxxxxxxx Xxxxx,
Xxxxx 000, Xxxxx, XX 00000 and principal place of business at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, XX,
00000, XXX, herein duly represented in accordance with its Charter Documents (together with its
successors and permitted assignees, “CSI Holdings” and together with CSI B.V., the
“Grantors”);
(c) The Bank of New York Mellon, a financial institution duly organized and existing
under the laws of the State of New York, with its registered office at One Wall Street, New York,
New York, enrolled with the Brazilian Taxpayers Roll of the Ministry of Finance (CNPJ/MF) under nº
09.214.177/0001-65, acting exclusively in the capacity as collateral agent of and for the benefit
of the Secured Parties under the First Lien Intercreditor Agreement (together with its successors
and permitted assignees in such capacity, the “Collateral Agent”); and
(d) Closure Systems International (Brazil) Sistemas de Vedação Ltda., a limited
liability company duly organized and existing in accordance with the laws of Brazil, with its
registered office in the City of Barueri, State of São Paulo, at Alameda Araguaia, nº 1.819-1.889,
Sítio Tamboré, enrolled with the Brazilian Taxpayers Roll of the Ministry of Finance (CNPJ/MF)
under nº 09.074.885/0001-48 (the “Company”).
WHEREAS, on January 29, 2010, the parties hereto entered into the Quota Pledge Agreement (the
“Pledge Agreement”).
WHEREAS, the Pledge Agreement was amended by the Amendment to the Quota Pledge Agreement dated
May 4, 2010, in respect of an Amendment No. 2 and Incremental Term Loan Assumption Agreement dated
May 4, 2010, and further amended by the Second Amendment to the Quota Pledge Agreement dated
November 16, 2010, in respect of an Amendment No. 3 and Incremental Term Loan Assumption Agreement
dated September 30, 2010 and a Senior Secured Notes Indenture dated October 15, 2010.
WHEREAS, the following document was entered into on the dates, and by and among the parties,
described below (“Credit Agreement Amendment and Restatement”):
Amendment No. 4 and Incremental Term Loan Assumption Agreement dated February 9, 2011, entered
into by and among, including others, Xxxxxxxx Group Holdings Inc., 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 Corporation, Xxxxxxxx Group
Holdings Limited, the Guarantors from time to time party thereto, the Lenders from time to time
party thereto and Credit Suisse AG (formerly known as Credit Suisse), as administrative agent for
the Lenders, related to and amending and restating the Credit Agreement dated as of November 5,
2009, as amended by an Amendment No. 1 dated as of January 21, 2010, and as further amended by an
Amendment No. 2 dated May 4, 2010 and an Amendment No. 3 dated September 30, 2010.
WHEREAS, pursuant to an indenture (the “February 2011 Secured Notes Indenture”) dated
February 1, 2011, and entered into between the February 2011 Issuers (as defined below), 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 (the “February 2011 Secured
Notes”) were issued by the February 2011 Issuers.
WHEREAS, the obligations in respect of the February 2011 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 (the
“Secured Notes Designation”).
WHEREAS, the parties recognize and agree that the security interest created under the Pledge
Agreement shall extend to secure, in addition to the obligations currently secured thereby, the
obligations created under the Credit Agreement Amendment and Restatement and the Additional
Documents (as defined under the First Lien Intercreditor Agreement) in respect of the Secured Notes
Designation (“Additional Covered Obligations”).
NOW, THEREFORE, in consideration of the foregoing premises and mutual covenants contained
herein, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used and not otherwise defined in this Amendment
are used herein and in any notice given under this Amendment with the same meanings ascribed to
such terms in the Pledge Agreement and in the First Lien Intercreditor Agreement, as applicable.
All terms defined in this Amendment shall have the defined meanings contained herein when used in
any certificate or other document made or delivered pursuant hereto unless otherwise defined
therein.
2. Amendment. The parties hereto agree to amend the Pledge Agreement as follows, such
amendments to be in force and effect as of the date hereof:
| (a) | The following new definitions will be inserted at the appropriate place in alphabetical order with the following wording: |
“February 2011 Issuers” means Xxxxxxxx Group Issuer Inc., Xxxxxxxx Group
Issuer LLC and Xxxxxxxx Group Issuer (Luxembourg) S.A.
“February 2011 Secured Notes Indenture” means the indenture dated February
1, 2011, and entered into between the February 2011 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.
“February 2011 Secured Notes Indenture Secured Parties” shall mean such
entities as fall within the definition of “Additional Secured Parties” under the
First Lien Intercreditor Agreement as a result of the designation of the obligations
in respect of the February 2011 Secured Notes Indenture and the Senior Secured Note
Documents (as defined therein) being “Additional Obligations” under the First Lien
Intercreditor Agreement.
(b) In order to evidence the extension of the security interest created under the Pledge
Agreement to the Additional Covered Obligations, the Parties agree to amend the description of the
Secured Obligations contained in Schedule A-I of the Pledge Agreement to read as follows:
Description of the Secured Obligations under the Loan Documents
A) All obligations owed to the Secured Parties now existing or hereafter arising, direct or
indirect, absolute or contingent, due or to become due, under the Loan Documents, including (and
without limitation):
| (i) | a senior secured U.S. term loan facility in an aggregate principal amount not in excess of US$2,325,000,000 with an interest rate equivalent to the Applicable Margin plus (a) (i) the greater of 1.00% per annum and (ii) (x) the LIBO Rate in effect for such Interest Period and (y) Statutory Reserves or (b) the Alternate Base Rate as applicable; which shall be repaid in full on February 9, 2018 (subject to prepayment and acceleration provisions); | ||
| (ii) | a European term loan facility in an aggregate principal amount of approximately €250,000,000 with an interest rate equivalent to the Applicable Margin plus (a) (i) the greater of 1.50% per annum and (ii) (x) the EURIBO Rate in effect for such Interest Period plus (y) Mandatory Cost or (b) in the case of loans denominated in Euro, the Foreign Base Rate as applicable; which shall be repaid in full on February 9, 2018 (subject to prepayment and acceleration provisions); | ||
| (iii) | a senior secured U.S. revolving loan facility in an aggregate principal amount of approximately US$120,000,000, which principal amounts include sub-limits for letter of credit facilities with an interest rate equivalent to the Applicable Margin plus (a) (i) the greater of 2.00% per annum and (ii) (x) the LIBO Rate in effect for such Interest Period and (y) Statutory Reserves or (b) the Alternate Base Rate as applicable; which shall be repaid in full on November 5, 2014 (subject to prepayment and acceleration provisions); | ||
| (iv) | a European revolving loan facility in an aggregate principal amount of approximately €80,000,000, which principal amounts include sub-limits for letter of credit facilities with an interest rate equivalent to the Applicable Margin plus |
| (a) (i) the greater of 2.00% per annum and (ii) (x) the EURIBO Rate in effect for such Interest Period plus (y) Mandatory Cost or (b) in the case of loans denominated in Euro, the Foreign Base Rate as applicable; which shall be repaid in full on November 5, 2014 (subject to prepayment and acceleration provisions); and | |||
| (v) | incremental loan facilities in a principal amount up to US$750,000,000 with an interest rate equivalent to the rates set forth in clauses (i) through (iv) above, as applicable to the relevant incremental loan facility; which shall be repaid in full as set forth in clauses (i) through (iv) above, as applicable to the incremental loan facility or such other as set out in the relevant Incremental Assumption Agreement, which date shall be earlier than the dates set forth above as applicable to the incremental loan facility (subject to prepayment and acceleration provisions). |
B) all other obligations, advances, debts and liabilities owed to the Credit Agreement’s Secured
Parties, including indemnities, fees and interest incurred under, arising out of or in connection
with the Credit Agreement.
Definitions
For the purpose of this item “I” of this Schedule A all capitalized terms used and not
otherwise defined in this Agreement shall have the meaning ascribed to such terms in the Credit
Agreement.
(c) In order to evidence the extension of the security interest created under the Pledge
Agreement to the Additional Covered Obligations, the Parties also agree to insert Schedule A-IV
describing the obligations in respect of the February 2011 Secured Notes:
IV — Description of the Obligations Under the Senior Secured Note Documents
(Relating to the February 2011 Secured Notes Indenture)
All obligations owed to the February 2011 Secured Notes Indenture Secured Parties now existing or
hereafter arising, direct or indirect, absolute or contingent, due or to become due, under the
Senior Secured Note Documents (as such term is defined in the February 2011 Secured Notes
Indenture), including (and without limitation):
| (i) | the due and punctual payment of: |
| (a) | (A) US$1,000,000,000 aggregate principal amount on the notes due 2021 and interest, which shall be paid on February 15 and August 15, at the rate of 6.875% per annum (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the |
| notes, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise; and | |||
| (b) | all other monetary obligations of any February 2011 Issuer to any of the February 2011 Secured Notes Indenture Secured Parties under the Senior Secured Note Documents (as such term is defined in the February 2011 Secured Notes Indenture), including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding). |
| (ii) | the due and punctual performance of all other obligations of the February 2011 Issuers under or pursuant to the Senior Secured Note Documents (as such term is defined in the February 2011 Secured Notes Indenture); and | ||
| (iii) | the due and punctual payment and performance of all the obligations of each other obligor under or pursuant to the Senior Secured Note Documents (as such term is defined in the February 2011 Secured Notes Indenture). |
(d) For the avoidance of doubt, the parties agree that, as a result of this amendment: (i) the
obligations created under the Credit Agreement Amendment and Restatement and the February 2011
Secured Notes Indenture and the Senior Secured Note Documents (as defined therein) shall be
considered “Secured Obligations” for the purposes of the Pledge Agreement; and (ii) any February
2011 Secured Notes Indenture Secured Parties (including any holder of the February 2011 Secured
Notes) shall be considered “Secured Parties” for the purposes of the Pledge Agreement.
2. Registration of this Amendment. The Grantor, at its expense, shall within 20
(twenty) days from the execution date of this Amendment, (i) cause the signature of the parties who
have signed this Amendment outside Brazil to be notarized by a public notary and consularized at
the local Brazil consulate, (ii) cause this Amendment to be translated into Portuguese by a sworn
translator (tradutor público juramentado), and (iii) have this Amendment, together with its sworn
translation (tradução juramentada) into Portuguese, annotated at the margin of the registration of
the Pledge Agreement with the competent Registry of Deeds and Documents (Cartório de Registro de
Títulos e Documentos) in Brazil pursuant to Article 128 of Law No. 6,015 of December 31, 1973. The
Grantor shall, promptly after such registration deliver to the Collateral Agent evidence of such
registration in form and substance satisfactory to the Collateral Agent. All expenses incurred in
connection with such registrations shall be borne by the Grantor.
Notwithstanding the foregoing, the Collateral Agent, at its sole discretion, may decide to
undertake any of the registrations, translations, filings and other formalities described herein if
Grantor fails to do so, whereupon the Grantor shall reimburse the Collateral Agent promptly of any
and all costs and expenses incurred by it related to such registrations, translations, filings and
other formalities in accordance with the provisions of the Principal Finance Documents.
3. Effectiveness of the Pledge Agreement. All the provisions of the Pledge Agreement
not expressly amended as a result of this Amendment shall remain in full force and effect.
4. Security Document. The Parties agree that this Amendment 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.
5. Governing Law; Jurisdiction. This Amendment shall be governed by and construed and
interpreted in accordance with the laws of Brazil. The parties irrevocably submit to the
jurisdiction of the courts sitting in the City of São Paulo, State of São Paulo, Brazil, any action
or proceeding to resolve any dispute or controversy related to or arising from this Amendment and
the parties irrevocably agree that all claims in respect of such action or proceeding may be heard
and determined in such courts, with the express waiver of the jurisdiction of any other court,
however privileged it may be.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed in the presence of
the undersigned witnesses.
Closure Systems International B.V.
/s/ Xxxxxxxxx Xxxxxxxxx Xxxxxxx
|
||
Title: attorney-in-fact |
Closure Systems International Holdings Inc.
/s/ Xxxxxxxxx Xxxxxxxxx Xxxxxxx
|
||
Capacity: attorney-in-fact |
Closure Systems International (Brazil) Sistemas de Vedação Ltda.
/s/ Xxxxxxxxx Xxxxxxxxx Xxxxxxx
|
||
Title: Manager |
The Bank of New York Mellon as Collateral Agent acting as agent of and for the benefit of
the Secured Parties
/s/ Xxxxxx Xxxxxxxxx Xxxxxxx
|
||
Title: attorney-in-fact |
||
WITNESSES: |
||
/s/ Xxxxxx Xxxxxxx
|
/s/ Karina Xxxxxxx xx Xxxxxxxx | |
Name: Xxxxxx Xxxxxxx
|
Name: Karina Xxxxxxx xx Xxxxxxxx | |
ID: 80,14280 SSP-SP
|
ID: RG 25.758.558-8 | |
| CPF: 000.000.000-00 |
