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EXHIBIT 10.12
PECHINEY
GUARANTEE
RELATING TO CERTAIN
LIABILITIES OF
PECHINEY PLASTIC PACKAGING, INC
Draft 22.6.99
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THIS GUARANTEE is made as of July 1999 and is given by
PECHINEY, a French societe anonyme of 0, Xxxxx xx Xxxxxxxxxx Xxxxxxxx - 00000
Xxxxx Cedex 16 ("THE Guarantor") in favour of
AMERICAN NATIONAL CAN COMPANY, a Delaware Corporation who principal place of
business is 0000 Xxxx Xxxx Xxxx Xxxxxx - Xxxxxxx - Xxxxxxxx 00000-0000 U.S.A.
("ANC")
WHEREAS
A. Pursuant to a Contribution Agreement, dated as of May 31, 1999, by and
between Pechiney Plastic Packaging, Inc., a Delaware corporation
("PECHINEY PLASTICS"), and ANC (the "CONTRIBUTION AGREEMENT"), Pechiney
Plastics has agreed to indemnify ANC in respect of (i) any and all
payments relating to, or arising out of, the patent infringement
litigation instituted against ANC in the U.S. District Court for the
Northern District of Illinois in December 1993 by Viskase Corporation,
the declaratory judgment action brought by ANC against Viskase in May
1999 and various proceedings in the U.S. Patent Office relating to the
Viskase patents which are the subject of such actions("the VISKASE
OBLIGATIONS") , and (ii) the ASSUMED OPEB OBLIGATIONS (as defined in
Section 8.03 of the Contribution Agreement) (the Viskase Obligations
together with the Assumed OPEB Obligations being collectively referred
to herein as the "INDEMNIFICATION OBLIGATIONS").
B. Pechiney has agreed to guarantee the execution by Pechiney Plastics of
the Indemnification Obligations and has the requisite corporate
approval to enter in to this guarantee.
THE GUARANTOR hereby agrees as follows
1. The Guarantor guarantees to ANC that in the event of a failure by
Pechiney Plastics to perform the Indemnification Obligations and such
failure remains un-remedied for a period of 10 BUSINESS DAYS (defined
as days excluding Saturday, on which banks are open for business in
France and U.S.A.) the Guarantor subject to the terms of this guarantee
will make, perform or procure the performance of the Indemnification
Obligations.
2. The Guarantor shall not be discharged or released by any modification
of any of the terms conditions and provisions of the Contribution
Agreement unless such modifications were to increase the obligations of
the Guarantor hereunder. Any allowance of time by ANC under or in
respect of the Contribution Agreement shall not release, reduce or
affect the liability of the Guarantor.
3. Notwithstanding any other provision of this Guarantee the Guarantor has
the benefit of and may assert as a defence to a demand for payment and
performance of this Guarantee any defence available to Pechiney
Plastics to the enforcement of Pechiney Plastic's obligations under the
terms of the Contribution Agreement.
4. Any notice, payment, demand, or communication required or permitted to
be given by any provision of this Guarantee shall be given or made (and
shall be deemed to have
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been duly made or given upon receipt) by delivery in person, by carrier
service, by telecopy, by telegram, or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties
at the following addresses :
If to ANC :
American National Can Company
0000 X. Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax : (000) 000 0000
Attention : General Counsel
If to the Guarantor :
Pechiney
0, Xxxxx xx Xxxxxxxxxx Xxxxxxxx
00000 Xxxxx Xxxxx
Xxxxxx
Fax : 000.000.0000.0000
Attention : General Counsel
5. No failure on the part of ANC to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
6. The Guarantor agrees that it will upon demand pay to ANC the amount of
any and all reasonable expenses, including the reasonable fees and
expenses of its counsel and of any experts and agents, that ANC may
incur in connection with the exercise or enforcement of any of the
rights of ANC hereunder as a result of the failure by the Guarantor to
perform or observe any of the provisions hereof.
7. This Guarantee constitutes the entire agreement between the Guarantor
and ANC (and supersedes all prior written and oral agreements and
understandings) with respect to the subject matter hereof between the
Guarantor and ANC.
8. If any one or more provisions contained in this Guarantee shall, for
any reason, be held invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any
other provisions of this Guarantee, but this Guarantee shall be
construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
9. This Guarantee shall be governed by, and construed in accordance with,
the laws of the Republic of France and Pechiney hereby submits to the
exclusive jurisdiction of the courts of Paris.
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Executed by
For and on behalf of PECHINEY
