Exhibit 10.5.11
The taking of this document or any certified copy of it or any other 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 email communication which refers to this document in Austria or sending any email communication to which a PDF scan of this document is attached to an Austrian addressee or sending any email communication carrying an electronic or digital signature which refers to this 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 this document in Austria or sending any email communication to which a PDF scan of this document is attached to an Austrian addressee or sending any email communication carrying an electronic or digital signature which refers to this document to an Austrian addressee.
REAFFIRMATION AGREEMENT, dated as of October 14, 2011 (this “Agreement”), among (a) SIG Combibloc GmbH, SIG Combibloc GmbH & Co KG and SIG Austria Holding GmbH (collectively, the “Austrian Grantors”), (b) Credit Suisse AG, as administrative agent (in such capacity, the “Administrative Agent”) under the Credit Agreement (as defined below), (c) The Bank of New York Mellon, as trustee under the New 2011 Senior Secured Notes Indenture (as defined below) (in such capacity, the “New 2011 Trustee”), (d) The Bank of New York Mellon, as trustee under the 2011 Senior Secured Notes Indenture (as defined below) (in such capacity, the “2011 Trustee”), (e) The Bank of New York Mellon, as trustee under the 2010 Senior Secured Notes Indenture (as defined below) (in such capacity, the “2010 Trustee”), (f) The Bank of New York Mellon, as trustee under the 2009 Senior Secured Notes Indenture (as defined below) (in such capacity, the “2009 Trustee”) and (g) The Bank of New York Mellon and Wilmington Trust (London) Limited as collateral agents (together, the “Collateral Agents”) under the First Lien Intercreditor Agreement (as defined below).
A. The Administrative Agent, the 2009 Trustee, the Collateral Agents and the Austrian Grantors, among others, entered into the First Lien Intercreditor Agreement dated as of November 5, 2009, as amended by Amendment No. 1 and Joinder Agreement dated as of January 21, 2010 (the “First Lien Intercreditor Agreement”). Capitalized terms used but not defined herein have the meanings assigned to such terms in the First Lien Intercreditor Agreement and the Credit Agreement (as defined below), as applicable.
B. Pursuant to the Second Amended and Restated Credit Agreement dated as of August 9, 2011 (as amended from time to time on or prior to the date hereof), the “Credit Agreement”), among Holdings, the Borrowers, the Guarantors from time to time party thereto, the Lenders from time to time party thereto and the Administrative Agent, certain Borrowers, on September 8, 2011, borrowed the Tranche C Term Loans (as defined in Amendment No. 6 and Incremental Term Loan Assumption Agreement dated as of August 9, 2011 to the Credit Agreement (“Amendment No. 6”)).
C. Reynolds Group Issuer (Luxembourg) S.A., Reynolds Group Issuer LLC and Reynolds Group Issuer Inc. (collectively, the “Issuers”) (as successors to the issuers under the
2009 Senior Secured Notes Indenture), the Collateral Agents, the 2009 Trustee and The Bank of New York Mellon, London Branch, as paying agent, among others, entered into an indenture, dated as of November 5, 2009 (the “2009 Senior Secured Notes Indenture”), pursuant to which the Issuers issued debt securities (the “2009 Senior Secured Notes”).
D. The Issuers (as successors to the Escrow Issuers (as defined in the 2010 Senior Secured Notes Indenture)), the Collateral Agents, the 2010 Trustee and The Bank of New York Mellon, London Branch, as paying agent, among others, entered into an indenture, dated as of October 15, 2010 (the “2010 Senior Secured Notes Indenture”), pursuant to which the Issuers issued debt securities (the “2010 Senior Secured Notes”). On November 16, 2010, in connection with such issuance, the 2010 Trustee became a party to the First Lien Intercreditor Agreement pursuant to Section 5.02(c) thereof.
E. The Issuers, the Collateral Agents, the 2011 Trustee and The Bank of New York Mellon, London Branch, as paying agent, among others, entered into an indenture, dated as of February 1, 2011 (the “2011 Senior Secured Notes Indenture”), pursuant to which the Issuers issued debt securities (the “2011 Senior Secured Notes”). On February 1, 2011, in connection with such issuance, the 2011 Trustee became a party to the First Lien Intercreditor Agreement pursuant to Section 5.02(c) thereof.
F. The Issuers (as successors to the Escrow Issuers (as defined in the New 2011 Senior Secured Notes Indenture)), the Collateral Agents, the New 2011 Trustee and The Bank of New York Mellon, London Branch, as paying agent, among others, entered into an indenture, dated as of August 9, 2011 (the “New 2011 Senior Secured Notes Indenture”), pursuant to which the Issuers issued debt securities (the “New 2011 Senior Secured Notes”). On September 8, 2011, in connection with such issuance, the New 2011 Trustee became a party to the First Lien Intercreditor Agreement pursuant to Section 5.02(c) thereof.
G. Each Austrian Grantor is party to one or more of the Reaffirmed Security Documents (as defined below).
H. Each Austrian Grantors expects to realize, or has realized, direct and indirect benefits as a result of the funding of the Tranche C Term Loans, the issuance of the New 2011 Senior Secured Notes and the consummation of the transactions related thereto.
In consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
Reaffirmation
SECTION 1.01.Reaffirmation. (a) Each Austrian Grantor (i) agrees that, notwithstanding the borrowing of the Tranche C Term Loans and the issuance of the New 2011 Senior Secured Notes, each of the Security Documents (as each may have been amended, modified and/or confirmed on or prior to the date hereof) set forth onSchedule A hereto to
which it is a party (each, a “Reaffirmed Security Document”) continues to be in full force and effect, subject to the Legal Reservations, and is hereby ratified and reaffirmed, (ii) confirms its respective guarantees, pledges and grants of security interests in the Collateral to the extent provided in the Reaffirmed Security Documents and (iii) acknowledges that each such Reaffirmed Security Document to which it is a party and the First Lien Intercreditor Agreement continues in full force and effect subject to the Legal Reservations and extends, subject to the limitations contained therein, to (A) the Tranche C Term Loans, which are, as of August 9, 2011, considered “Credit Agreement Obligations” under the First Lien Intercreditor Agreement and (B) the “Secured Obligations” as defined in the New 2011 Senior Secured Notes Indenture, which have been designated as “Additional Obligations” under and pursuant to the First Lien Intercreditor Agreement (the “Secured Notes Designation”).
SECTION 1.02. Each Austrian Grantor hereby confirms and agrees that, with respect to any Reaffirmed Security Document to which it is a party, the obligations under the Tranche C Term Loans and “Secured Obligations” as defined in the New 2011 Senior Secured Notes constitute “Obligations” or “Secured Liabilities” or words of similar import as set forth across from and described under the applicable Reaffirmed Security Documents listed inSchedule A.
(a) Each Austrian Grantor hereby (i) ratifies and affirms Amendment No. 6 and the transactions contemplated thereby, (ii) agrees that, notwithstanding the effectiveness of Amendment No. 6, Article X of the Credit Agreement continues to be in full force and effect, (iii) confirms its guarantee of the Bank Obligations (with respect to itself) as provided in the Loan Documents as originally executed (including any limitations expressly set forth therein as may be amended and/or modified from time to time) and (iv) acknowledges that such guarantee (including any limitations thereto expressly set forth in the relevant Loan Document, including Schedule 10.03 of the Credit Agreementmutatis mutandisand in any Guarantor Joinder to the Credit Agreement) continues in full force and effect in respect of the Bank Obligations under the Credit Agreement and the other Loan Documents, including the Tranche C Term Loans.
(b) Each Austrian grantor hereby agrees that the Parallel Debt, if any, of such Austrian Grantor created under the First Lien Intercreditor Agreement or under any guarantor joinder in effect prior to the date hereof shall continue to be in full force and effect and shall accrue to the benefit of each Collateral Agent (for the benefit of the Secured Parties (as defined in the First Lien Intercreditor Agreement)) and shall continue to apply, as applicable, in relation to all Obligations following the funding of the Tranche C Term Loans, the issuance of the New 2011 Senior Secured Notes and the Secured Notes Designation.
ARTICLE II
Representations and Warranties
SECTION 2.01.Organization; Powers. Each Austrian Grantor hereby represents and warrants as of the date hereof that such Austrian Grantor (a) is duly organized, validly existing and in good standing (or to the extent applicable, the equivalent status in Austria) under
the laws of Austria and (b) has the power and authority to execute, deliver and perform its obligations under this Agreement.
SECTION 2.02.Authorization. Each Austrian Grantor hereby represents and warrants as of the date hereof that the entry by such Austrian Grantor into this Agreement has been duly authorized by all requisite corporate and/or partnership and, if required, stockholder, works council and partner action.
SECTION 2.03.Enforceability. Each Austrian Grantor hereby represents and warrants as of the date hereof that this Agreement has been duly executed and delivered by such Austrian Grantor and, subject to the Legal Reservations, this Agreement constitutes a legal, valid and binding obligation of such Austrian Grantor enforceable against such Austrian Grantor in accordance with its terms.
ARTICLE III
Miscellaneous
SECTION 3.01.Notices. All communications and notices hereunder shall be in writing and given as provided in Section 5.01 of the First Lien Intercreditor Agreement;providedthat all communications and notices to Wilmington Trust (London) Limited hereunder shall be given to it at the address set forth below, or to such other address as Wilmington Trust (London) Limited may hereafter specify.
Wilmington Trust (London) Limited
Third Floor
1 King’s Arms Yard
London EC2R 7AF
Facsimile: +44 (0)20 7397 3601
Attention: Elaine Lockhart
SECTION 3.02.Loan Document. This Agreement is a Loan Document executed pursuant to the Credit Agreement and shall be construed, administered and applied in accordance with the terms of the Credit Agreement as applicable.
SECTION 3.03.Effectiveness; Counterparts. This Agreement shall become effective on the date when copies hereof which, when taken together, bear the signatures of each Austrian Grantor, the Collateral Agents, the Administrative Agent, the New 2011 Trustee, the 2011 Trustee, the 2010 Trustee and the 2009 Trustee shall have been received by each of the Collateral Agents, the Administrative Agent, the New 2011 Trustee, the 2011 Trustee, the 2010 Trustee and the 2009 Trustee. This Agreement may not be amended nor may any provision hereof be waived except pursuant to a writing signed by each of the parties hereto. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by telecopier or other electronic imaging means of an executed counterpart of a signature page to this Agreement shall be effective as delivery of an original executed counterpart of this Agreement.
SECTION 3.04.No Novation. This Agreement shall not extinguish the obligations for the payment of money outstanding under any Credit Document or discharge or release the priority of any Credit Document or any other security therefor. Nothing herein shall be construed as a substitution or novation of the obligations outstanding under any Credit Document or instruments securing the same, which shall remain in full force and effect. Nothing in or implied by this Agreement or in any other document contemplated hereby shall be construed as a release or other discharge of Holdings, any Borrower, any Issuer or any other Grantor under any Credit Document from any of its obligations and liabilities thereunder. Each of the Credit Documents shall remain in full force and effect notwithstanding the execution and delivery of this Agreement.
SECTION 3.05.GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 3.06.Austrian Stamp Duty, Etc. The parties hereto agree that the provisions of Sections 9.19 (Place of Performance) and 9.20 (Austria Stamp Duty) of the Credit Agreement (and, if the Credit Agreement is no longer in existence, an equivalent clause in any Additional Agreement) and the provisions of Sections 5.15 (Place of Performance) and 5.16 (Austrian Stamp Duty) of the First Lien Intercreditor Agreement (and, if the First Lien Intercreditor Agreement is no longer in existence, an equivalent clause in any Intercreditor Arrangements) shall apply to this Agreement as if incorporated hereinmutatis mutandis.
SECTION 3.07.No Other Supplement; Confirmation. Except as expressly set forth herein, this Agreement shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Secured Parties under any Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in any Loan Document, all of which shall continue in full force and effect.
SECTION 3.08.Rights of the Collateral Agents. For the avoidance of doubt, notwithstanding anything contained herein, each of the protections, immunities, rights, indemnities and benefits conferred on the Collateral Agents under the Reaffirmed Security Documents 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
| | | | | |
| | SIG COMBIBLOC GMBH,
| |
| | by | /s/ Jennie Blizard | |
| | | Name: | Jennie Blizard | |
| | | Title: | Authorized Signatory | |
| |
| | | | | |
| | SIG COMBIBLOC GMBH & CO KG,
represented by its general partner SIG
Combibloc GmbH
| |
| | By: | /s/ Jennie Blizard | |
| | | Name: | Jennie Blizard | |
| | | Title: | Authorized Signatory | |
| |
| | | | | |
| | SIG AUSTRIA HOLDING GMBH,
| |
| | By: | /s/ Jennie Blizard | |
| | | Name: | Jennie Blizard | |
| | | Title: | Authorized Signatory | |
| |
| | | | | |
| | CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
(FORMERLY KNOWN AS CREDIT SUISSE, CAYMAN
ISLANDS BRANCH), AS ADMINISTRATIVE AGENT,
ELEVEN MADISON AVENUE
NEW YORK, NEW YORK 10010-3629
| |
| | by | /s/ Robert Hetu | |
| | | Name: | Robert Hetu | |
| | | Title: | Managing Director | |
| |
| | | |
| | by | /s/ Kevin Buddhdew | |
| | | Name: | Kevin Buddhdew | |
| | | Title: | Associate | |
| |
| | | | | |
| | THE BANK OF NEW YORK MELLON,
IN ITS CAPACITY AS COLLATERAL
AGENT
| |
| | by | /s/ Catherine F. Donohue | |
| | | Name: | Catherine F. Donohue | |
| | | Title: | Vice President | |
| |
| | | | | |
| | THE BANK OF NEW YORK MELLON, in its
capacity as New 2011 Trustee, 2011
Trustee, 2010 Trustee and 2009 Trustee,
| |
| | By: | /s/ Catherine F. Donohue | |
| | | Name: | Catherine F. Donohue | |
| | | Title: | Vice President | |
| |
| | | | | |
| | WILMINGTON TRUST (LONDON)
LIMITED, IN ITS CAPACITY AS
COLLATERAL AGENT
| |
| | by | /s/ Paul Barton | |
| | | Name: | Paul Barton | |
| | | Title: | Relationship Manager | |
| |
| | | | | |
| | SIG AUSTRIA HOLDING GMBH,
| |
| | By: | /s/ Jennie Blizard | |
| | | Name: | Jennie Blizard | |
| | | Title: | Authorized Signatory | |
| |
[SIGNATURE PAGE TO THE REAFFIRMATION AGREEMENT]
| | | | | |
| | CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
(FORMERLY KNOWN AS CREDIT SUISSE, CAYMAN
ISLANDS BRANCH), AS ADMINISTRATIVE AGENT,
ELEVEN MADISON AVENUE
NEW YORK, NEW YORK 10010-3629
| |
| | by | /s/ Robert Hetu | |
| | | Name: | Robert Hetu | |
| | | Title: | Managing Director | |
| |
| | | |
| | by | /s/ Kevin Buddhdew | |
| | | Name: | Kevin Buddhdew | |
| | | Title: | Associate | |
| |
[SIGNATURE PAGE TO THE REAFFIRMATION AGREEMENT]
| | | | | |
| | THE BANK OF NEW YORK MELLON,
IN ITS CAPACITY AS COLLATERAL
AGENT
| |
| | by | /s/ Catherine F. Donohue | |
| | | Name: | Catherine F. Donohue | |
| | | Title: | Vice President | |
| |
| | | | | |
| | THE BANK OF NEW YORK MELLON, in its
capacity as New 2011 Trustee, 2011
Trustee, 2010 Trustee and 2009 Trustee,
| |
| | By: | /s/ Catherine F. Donohue | |
| | | Name: | Catherine F. Donohue | |
| | | Title: | Vice President | |
| |
[SIGNATURE PAGE TO THE REAFFIRMATION AGREEMENT]
| | | | | |
| | WILMINGTON TRUST (LONDON)
LIMITED, IN ITS CAPACITY AS
COLLATERAL AGENT
| |
| | by | /s/ Paul Barton | |
| | | Name: | Paul Barton | |
| | | Title: | Relationship Manager | |
| |
[SIGNATURE PAGE TO THE REAFFIRMATION AGREEMENT]
SCHEDULE A
TO THE REAFFIRMATION AGREEMENT
List of the Reaffirmed Security Documents
Collateral Agent: Wilmington Trust (London) Limited
| | | | | |
| | | | | Local term covering |
| | | | | “Obligations” as defined |
| | | DOCUMENTS | | in the FLICA |
| | | |
| 1. | | Limited interest pledge agreement over the limited partnership interest in SIG Combibloc GmbH & Co KG granted by SIG Austria Holding GmbH in favor of Wilmington Trust (London) Limited. | | “Secured Obligations” |
| | | | | |
| 2. | | General interest pledge agreement over the general partnership interest in SIG Combibloc GmbH & Co KG granted by SIG Combibloc GmbH in favor of Wilmington Trust (London) Limited. | | |
| | | | | |
| 3. | | Account pledge agreement over the bank accounts located in Austria granted by SIG Austria Holding GmbH in favor of Wilmington Trust (London) Limited. | | |
| | | | | |
| 4. | | Account pledge agreement over the bank accounts located in Austria granted by SIG Combibloc GmbH in favor of Wilmington Trust (London) Limited. | | |
| | | | | |
| 5. | | Account pledge agreement over the bank accounts located in Austria granted by SIG Combibloc GmbH & Co KG in favor of Wilmington Trust (London) Limited. | | |
| | | | | |
| 6. | | Receivables pledge agreement over the receivables granted by SIG Austria Holding GmbH in favor of Wilmington Trust (London) Limited. | | |
| | | | | |
| 7. | | Receivables pledge agreement over the receivables granted by SIG Combibloc GmbH in favor of Wilmington Trust (London) Limited. | | |
| | | | | |
| 8. | | Receivables pledge agreement over the receivables granted by SIG Combibloc GmbH & Co KG in favor of Wilmington Trust (London) Limited. | | |
| | | | | |
| 9. | | Account pledge agreement over bank accounts located in Germany granted by SIG Combibloc GmbH & Co KG in favor of Wilmington Trust (London) Limited. | | |
| | | | | |
| 10. | | Account pledge agreement over bank accounts located in Germany granted by SIG Austria Holding GmbH in favor of Wilmington Trustx (London) Limited. | | “Obligations” |
| | | | | |
| | | | | Local term covering |
| | | | | “Obligations” as defined |
| | | DOCUMENTS | | in the FLICA |
| 11. | | Account pledge agreement over bank accounts located in Hungary granted by SIG Combibloc GmbH & Co. KG in favor of Wilmington Trust (London) Limited. | | “Obligations” |
2
List of the Reaffirmed Security Documents
Collateral Agent: The Bank of New York Mellon
| | | | | |
| | | | | Local term covering |
| | | | | “Obligations” as defined |
| | | DOCUMENTS | | in the FLICA |
| |
| 1. | | Pledge agreement relating to the shares in SIG Euro Holding GmbH & Co. KGaA granted by SIG Austria Holding GmbH in favor of The Bank of New York Mellon. | | “Obligations” |
| | | | | |
| 2. | | Quota pledge agreement relating to the quotas in SIG Combibloc do Brasil Ltda. granted by SIG Austria Holding GmbH in favor of The Bank of New York Mellon. | | “Secured Obligations” |
