SUPPLEMENTAL INDENTURE
Exhibit 10.3.18
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of 5 November 2009,
among CLOSURE SYSTEMS INTERNATIONAL HOLDINGS (GERMANY) GMBH, a limited liability company
(Gesellschaft mit beschränkter Haftung) organised under the laws of Germany with registered
number HR B 41388 and having its registered address at Xxxxxxx Xxxxxxx 000, 00000 Xxxxx,
Xxxxxxx (the “New Subordinated 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 Mellon, as
trustee under the indenture referred to below (the “Trustee”).
W I T N E S S E T H :
WHEREAS the Issuer has heretofore executed and delivered to the Trustee an indenture
(as amended, supplemented or otherwise modified, the “Indenture”) dated as of June 29,
2007, providing for the issuance of the Issuer’s 91/2% Senior Subordinated Notes due 2017
(the “Securities”), initially in the aggregate principal amount of €420,000,000;
WHEREAS Section 4.11 of the Indenture provides that under certain circumstances the
Issuer is required to cause the New Subordinated Guarantor to execute and deliver to the
Trustee a supplemental indenture pursuant to which the New Subordinated Guarantor shall
unconditionally guarantee all the Issuer’s Obligations under the Securities and the
Indenture pursuant to a Subordinated 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;
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the New Subordinated Guarantor,
the Issuer and the Trustee mutually covenant and agree for the equal and ratable benefit of
the holders of the Securities as follows:
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.
2. Agreement to Guarantee. The New Subordinated Guarantor hereby agrees,
jointly and severally with all existing Subordinated 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 Subordinated Guarantor
under the Indenture (the “Guarantee”).
3. Limitation on Guarantee.
(a) The New Subordinated Guarantor shall not be liable to pay any amount to the extent
that any liability or obligation under the Guarantee would result in a violation of, or
give rise to directors’ personal liability (with respect to the New Subordinated Guarantor
or its shareholders) under, mandatory German capital maintenance rules
(Kapitalerhaltunsgvorschriften) pursuant to German company law, in particular Sections 30
et seq. and 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 Subordinated Guarantor under the 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.
(b) The Guarantee shall further not be enforced to the extent that the New
Subordinated 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 Subordinated Guarantee or its enforcement
results in the illiquidity (Zahlungsunfähigkeit) of the New Subordinated Guarantor.
2
(c) The Trustee shall be obliged to retransfer proceeds from any enforcement of the
Guarantee to the extent the New Subordinated Guarantor demonstrates in reasonable detail
that the enforcement was excluded pursuant to paragraphs (a) or (b) above.
4. Notices. All notices or other communications to the New Subordinated
Guarantor shall be given as provided in Section 13.02 of the Indenture.
5. 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.
6. 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.
7. Trustee Makes No Representation. The Trustee shall not be responsible in
any manner whatsoever for or in respect of the recitals contained herein, all of which
recitals are made solely by the Issuer and the New Subordinated Guarantor. Furthermore,
the Trustee makes no representation as to the validity or sufficiency of this Supplemental
Indenture.
8. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
9. Effect of Headings. The Section headings herein are for convenience only
and shall not effect the construction thereof.
3
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be
duly executed as of the date first above written.
| CLOSURE SYSTEMS INTERNATIONAL HOLDINGS (GERMANY) GMBH, |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | ||||
| THE BANK OF NEW YORK MELLON, as Trustee, |
||||
| By: | /s/ Xxx Xxxxxx | |||
| Name: | Xxx Xxxxxx | |||
| Title: | Senior Associate | |||
| BEVERAGE PACKAGING HOLDINGS (LUXEMBOURG) II S.A., |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | ||||
4
