EXHIBIT 4.576
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.
DATED 7 NOVEMBER 2012
J. & W. BALDWIN (HOLDINGS) LIMITED
AND
THE BANK OF NEW YORK MELLON
AS COLLATERAL AGENT
DEED OF CONFIRMATION AND AMENDMENT
THIS DEED is made the 7th day of November 2012
BETWEEN:
| (1) | J. & W. BALDWIN (HOLDINGS) LIMITED,a company incorporated in England and Wales with company number 00800719 (the “Chargor”); and |
| (2) | THE BANK OF NEW YORK MELLONin its capacity as collateral agent as appointed under the First Lien Intercreditor Agreement for the Secured Parties (the “Collateral Agent”) |
WHEREAS:
| (A) | The Chargor has entered into the debenture dated 16 November 2010 in favour of the Collateral Agent (the “Debenture”) pursuant to (i) a credit agreement dated as of 5 November 2009 (as subsequently amended and restated on 9 August 2011) between, among others, Reynolds Group Holdings Inc., Reynolds Consumer Products Holdings LLC (formerly Reynolds Consumer Products Holdings Inc.), Closure Systems International Holdings Inc., SIG Euro Holding AG & Co KGaA, SIG Austria Holding GmbH, Reynolds Group Holdings Limited, Closure Systems International B.V., Pactiv LLC (formerly Pactiv Corporation), the other borrowers party thereto, the guarantors from time to time party thereto, the lenders from time to time party thereto, and Credit Suisse AG, as administrative agent (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), (ii) an indenture dated 5 November 2009 between Reynolds Group Escrow LLC, Reynolds Group DL Escrow Inc. and The Bank of New York Mellon, as trustee, principal paying agent, transfer agent, registrar and collateral agent, as modified, amended or supplemented from time to time (the “2009 Senior Secured Notes Indenture”), (iii) an indenture dated 15 October 2010 and entered into between, among others, RGHL US Escrow I Inc., RGHL US Escrow I LLC and RGHL Escrow Issuer (Luxembourg) I S.A. and 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 as modified, amended or supplemented from time to time (the “2010 Senior Secured Notes Indenture”), (iv) an indenture dated 1 February 2011 and entered into between, among others, Reynolds Group Issuer LLC, Reynolds Group Issuer Inc., Reynolds Group Issuer (Luxembourg) S.A. and 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 as modified, amended or supplemented from time to time (the “February 2011 Senior Secured Notes Indenture”) and (v) an indenture dated 9 August 2011 and entered into between, among others, RGHL US Escrow II Inc., RGHL US Escrow II LLC and 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 as modified, amended or supplemented from time to time (the “August 2011 Senior Secured Notes Indenture”). |
| (B) | In connection with the Credit Agreement, the 2009 Senior Secured Notes Indenture, the 2010 Senior Secured Notes Indenture, the February 2011 Senior Secured Notes Indenture and the August 2011 Senior Secured Notes Indenture, certain parties to those documents have entered into a first lien intercreditor agreement dated 5 November 2009 |
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| (as subsequently amended pursuant to Amendment No. 1 and Joinder Agreement dated as of January 21, 2010) between, among others, The Bank of New York Mellon as collateral agent and representative under the indenture, Credit Suisse AG as representative under the credit agreement, Wilmington Trust (London) Limited as an additional collateral agent and each grantor that are parties thereto (the “First Lien Intercreditor Agreement”). |
| (C) | The parties to the Credit Agreement have entered into an amendment no.7 and incremental term loan assumption agreement dated 28 September 2012 to amend and restate the terms of the Credit Agreement (including Annex A attached thereto, “Amendment No. 7”). |
| (D) | Pursuant to an indenture (the “September 2012 Senior Secured Notes Indenture”) dated 28 September 2012 and entered into between, among others, the Issuers (as defined therein) (the “Issuers”) and 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, certain secured notes (the “September 2012 Senior Secured Notes”) were issued by the Issuers. |
| (E) | The obligations in respect of the September 2012 Senior Secured Notes and any Senior Secured Note Documents (as defined in the September 2012 Senior Secured Notes Indenture) were designated as “Additional Obligations” on 28 September 2012 under, and in accordance with, section 5.02(c) of the First Lien Intercreditor Agreement and the September 2012 Senior Secured Notes Indenture and the Senior Secured Note Documents (as defined in the September 2012 Senior Secured Notes Indenture) are therefore “Additional Agreements” under the First Lien Intercreditor Agreement (the “Secured Notes Designation”). |
| (F) | As a consequence of the execution of the September 2012 Senior Secured Notes Indenture it is necessary for the Chargor to make certain amendments to the Debenture, and enter into this Deed. |
NOW THE PARTIES HEREBY AGREE:
| 1. | In this Deed (including its recitals), unless otherwise defined herein terms defined in the First Lien Intercreditor Agreement shall have the same meaning when used in this Deed. |
| 2. | With effect from the date of this Deed, the Debenture shall be amended as follows: |
| (a) | In Clause 1.1 (Definitions) the existing definition of “Agreed Security Principles” shall be deleted in its entirety and replaced with the following: |
““Agreed Security Principles” has the meaning given to such term in the Credit Agreement, the 2009 Senior Secured Notes Indenture, the 2010 Senior Secured Notes Indenture, the February 2011 Senior Secured Notes Indenture, the August 2011 Senior Secured Notes Indenture and the September 2012 Senior Secured Notes Indenture and, to the extent of any inconsistency, the meaning in the Credit Agreement prevails.”
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| (b) | In Clause 1.1 (Definitions) the existing definition of “Credit Agreement” shall be deleted in its entirety and replaced with the following: |
““Credit Agreement” means the third amended and restated credit agreement dated 28 September 2012 among Reynolds Group Holdings Inc., Reynolds Consumer Products Holdings LLC (formerly Reynolds Consumer Products Holdings Inc.), SIG Euro Holding AG & Co. KGaA, Closure Systems International Holdings Inc., Closure Systems International B.V., Pactiv LLC (formerly Pactiv Corporation), SIG Austria Holding GmbH, Beverage Packaging Holdings (Luxembourg) III S.à r.l., Evergreen Packaging Inc. and Reynolds Consumer Products Inc. as borrowers, Reynolds Group Holdings Limited, the guarantors from time to time party thereto, the lenders from time to time party thereto and Credit Suisse AG as administrative agent, as further amended, extended, restructured, renewed, novated, supplemented, restated, refunded, replaced or modified from time to time.”
| (c) | In Clause 1.1 (Definitions) the existing definition of “First Lien Intercreditor Agreement” shall be deleted in its entirety and replaced with the following: |
““First Lien Intercreditor Agreement” means the First Lien Intercreditor Agreement dated 5 November 2009 between, among others, the Collateral Agent, The Bank of New York Mellon, as trustee under the 2009 Senior Secured Notes Indenture, the 2010 Senior Secured Notes Indenture, the February 2011 Senior Secured Notes Indenture, the August 2011 Senior Secured Notes Indenture and the September 2012 Senior Secured Notes Indenture, Credit Suisse AG, as administrative agent under the Credit Agreement, and the Loan Parties, as further amended, novated, supplemented, restated or modified from time to time.”
| (d) | In Clause 1.1 (Definitions) the existing definition of “Principal Finance Documents” shall be deleted in its entirety and replaced with the following: |
““Principal Finance Documents” means the Credit Agreement, the 2009 Senior Secured Notes Indenture, the 2010 Senior Secured Notes Indenture, the February 2011 Senior Secured Notes Indenture, the August 2011 Senior Secured Notes Indenture, the September 2012 Senior Secured Notes Indenture, the Intercreditor Arrangements and any Additional Agreement.”
| (e) | In Clause 1.1 (Definitions) the following new definition of “September 2012 Issuers” shall be inserted in alphabetical order: |
““September 2012 Issuers” means the “Issuers” under, and as defined in, the September 2012 Senior Secured Notes Indenture, including their successors in interest.”
| (f) | In Clause 1.1 (Definitions) the following new definition of “September 2012 Senior Secured Notes Indenture” shall be inserted in alphabetical order: |
““September 2012 Senior 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 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.”
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| (g) | Sub-clauses 5.3.2 and 5.3.3 of Clause 5.3 (Further Advances) shall be deleted in their entirety and replaced with the following: |
“5.3.2 (a) Subject to the terms of the Loan Documents, each 2009 Issuer may issue Additional Notes (as defined in the 2009 Senior Secured Notes Indenture) and the obligations in respect of such Additional Notes will be deemed to be incorporated into this Debenture as if set out in this Debenture.
(b) Subject to the terms of the Loan Documents, each 2010 Issuer may issue Additional Senior Secured Notes (as defined in the 2010 Senior Secured Notes Indenture) and the obligations in respect of such Additional Senior Secured Notes will be deemed to be incorporated into this Debenture as if set out in this Debenture.
(c) Subject to the terms of the Loan Documents, each February 2011 Issuer may issue Additional Senior Secured Notes (as defined in the February 2011 Senior Secured Notes Indenture) and the obligations in respect of such Additional Senior Secured Notes will be deemed to be incorporated into this Debenture as if set out in this Debenture.
(d) Subject to the terms of the Loan Documents, each August 2011 Issuer may issue Additional Senior Secured Notes (as defined in the August 2011 Senior Secured Notes Indenture) and the obligations in respect of such Additional Senior Secured Notes will be deemed to be incorporated into this Debenture as if set out in this Debenture.
(e) Subject to the terms of the Loan Documents, each September 2012 Issuer may issue Additional Senior Secured Notes (as defined in the September 2012 Senior Secured Notes Indenture) and the obligations in respect of such Additional Senior Secured Notes will be deemed to be incorporated into this Debenture as if set out in this Debenture.”
| 3. | The Chargor confirms that, with effect from the date of this Deed, the Debenture shall continue in full force and effect as amended by this Deed and extends to the obligations in respect of the Credit Agreement as amended by Amendment No. 7 and to the obligations in respect of the Additional Agreements (as defined in the First Lien Intercreditor Agreement) as a result of the Secured Notes Designation. |
| 4. | This Deed is supplemental to and shall be construed as one with the Debenture and all documents or instruments which are expressed to supplement the Debenture shall be construed accordingly. |
| 5. | This Deed may be executed in two or more counterparts each of which shall be deemed an original but which together shall constitute one and the same instrument. |
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| 6. | This Deed and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law. |
| 7. | The courts of England have exclusive jurisdiction to settle any dispute (a “Dispute”) arising out of, or connected with this Deed (including a dispute regarding the existence, validity or termination of this Deed or the consequences of its nullity) or any non-contractual obligations arising out of or in connection with this Deed. |
| 8. | The parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes between them and, accordingly, that they will not argue to the contrary. |
| 9. | Clauses 7 to 9 (inclusive) of this Deed are for the benefit of the Collateral Agent only. As a result and notwithstanding Clause 7, it does not prevent the Collateral Agent from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Collateral Agent may take concurrent proceedings in any number of jurisdictions. |
| 10. | For the avoidance of doubt, notwithstanding anything contained herein, each of the protections, immunities, rights, indemnities and benefits conferred on the Collateral Agent under the Debenture and the First Lien Intercreditor Agreement shall continue in full force and effect and shall apply to this Deed as if set out in full herein. |
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IN WITNESS whereof this Deed has been duly executed as a deed by the Chargor and signed by the Collateral Agent on the day and year first before written.
| The Chargor | ||||||
| Signed as a deed by Chiara Brophy | ) /s/ Chiara Brophy | |||||
| ) | ||||||
| as attorney for | ) | |||||
| J. & W. Baldwin (Holdings) Limited | ) | |||||
| in the presence of: | ) | |||||
| Signature of witness | /s/ Melinda Jane Harrison | |||
| Name of witness | Melinda Jane Harrison | |||
| Address of witness | 22 Prospect St., Box Hill, Victoria 3128 | |||
| Occupation of witness | An Australian Legal Practitioner | |||
The Collateral Agent
| Signed by | ) | |||||
| THE BANK OF NEW YORK MELLON | ) |
| By: | /s/ Orla Forrester | |
| Name: Orla Forrester | ||
| Address: | The Bank of New York Mellon | |
| 101 Barclay Street, Floor 4E, New York, NY 10286, USA | ||
| Fax: +1 212 815 5366 | ||
| Attention: | International Corporate Trust | |
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