exv10w3w78







	 	 	 	 	 



Exhibit 10.3.78




SUPPLEMENTAL INDENTURE





     SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of 2 March 2011, among
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, L-5365 Munsbach, Grand-Duchy of Luxembourg, registered with the
Luxembourg register of commerce and companies under the number B129.914 (the “Issuer”), the
affiliates of the Issuer listed in Schedule 1 hereto (the “New Subordinated
Guarantors”) and The Bank of New York Mellon (formerly The Bank of New York), 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 Guarantors to execute and deliver to the
Trustee a supplemental indenture pursuant to which each of the New Subordinated Guarantors
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, each of the New Subordinated
Guarantors, 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. Each of the New Subordinated Guarantors 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 “Subordinated Guarantee”).



     3. Limitation on Guarantee.



     (a) None of the New Subordinated Guarantors shall be liable to pay any amount to the
extent that any liability or obligation under the Subordinated Guarantee would result in a
violation of, or give rise to directors’ personal liability (with respect to each 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 any New Subordinated Guarantor under the
Subordinated 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 Subordinated Guarantee shall further not be enforced to the extent that any
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 jurisdiction (in particular BGH II ZR 178/99 Bremer “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 any New Subordinated Guarantor.



 









 





     (c) The Trustee shall be obliged to retransfer proceeds from any enforcement of the
Subordinated Guarantee to the extent any 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
Guarantors 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 Guarantors. 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.



[signature page follows]






 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the date first above written.



	 	 	 	 	 
	 	PACTIV HAMBURG HOLDINGS GMBH

 	 
	 	By:  	/s/ Karen Mower
 	 
	 	 	Name:  	Karen Mower 	 
	 	 	Title:  	Authorised Signatory 	 
	 
	 	PACTIV DEUTSCHLAND HOLDINGGESELLSCHAFT MBH

 	 
	 	By:  	/s/ Karen Mower
 	 
	 	 	Name:  	Karen Mower 	 
	 	 	Title:  	Authorised Signatory 	 
	 
	 	OMNI-PAC EKCO GMBH VERPACKUNGSMITTEL

 	 
	 	By:  	/s/ Karen Mower
 	 
	 	 	Name:  	Karen Mower 	 
	 	 	Title:  	Authorised Signatory 	 
	 
	 	OMNI-PAC GMBH VERPACKUNGSMITTEL

 	 
	 	By:  	/s/ Karen Mower
 	 
	 	 	Name:  	Karen Mower 	 
	 	 	Title:  	Authorised Signatory 	 
	 
	 	BEVERAGE PACKAGING HOLDINGS (LUXEMBOURG) II S.A.

 	 
	 	By:  	/s/ Helen Golding
 	 
	 	 	Name:  	Helen Golding 	 
	 	 	Title:  	Authorised Signatory 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON, as Trustee

 	 
	 	By:  	/s/ Paul Cattermole
 	 
	 	 	Name:  	Paul Cattermole 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



Schedule 1





	1.	 	Pactiv Hamburg Holdings GmbH, with its registered seat in Hamburg, registered with the commercial
register of the Local Court of Hamburg under HRB 106481.
	 
	2.	 	Pactiv Deutschland Holdinggesellschaft mbH, with its registered seat in Hamburg, registered with
the commercial register of the Local Court of Hamburg under HRB 71774.
	 
	3.	 	Omni-Pac Ekco GmbH Verpackungsmittel, with its registered seat in Hamburg, registered with the
commercial register of the Local Court of Hamburg under HRB 102663.
	 
	4.	 	Omni-Pac GmbH Verpackungsmittel, with its registered seat in Elsfleth, registered with the
commercial register of the Local Court of Oldenburg under HRB 201738.