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EXHIBIT 10.8
U.S. HOLDCO GUARANTY
U.S. HOLDCO GUARANTY, dated as of February 5, 1997 (as amended,
modified or supplemented from time to time, this "Guaranty"), made by CONSUMERS
U.S., INC., a Delaware Corporation (the "Guarantor"). Except as otherwise
defined herein, capitalized terms used herein and defined in the Credit
Agreement (as defined below) shall be used herein as therein defined.
W I T N E S S E T H :
WHEREAS, Anchor Glass Acquisition Corporation (the
"Borrower"), various lenders party thereto from time to time (the "Lenders"),
Bankers Trust Company, as an Issuing Bank (an "Issuing Bank"), BT Commercial
Corporation, as Co-Syndication Agent and Agent (a "Co-Syndication Agent" and the
"Agent"), and PNC Bank, National Association, as Co-Syndication Agent and an
Issuing Bank (a "Co-Syndication Agent" and an "Issuing Bank") have entered into
a Credit Agreement, dated as of February 5, 1997, providing for the making of
Revolving Loans to the Borrower and the issuance of the Letters of Credits for
the account of the Borrower and as contemplated therein (as used herein, the
term "Credit Agreement" means the Credit Agreement described above in this
paragraph, as the same may be amended, modified, extended or supplemented from
time to time), providing for the making of Revolving Loans to the Borrower and
the issuance of, and participation in, Letters of Credit for the account of the
Borrower, all as contemplated therein (the Lenders, the Issuing Banks, the
Co-Syndication Agents and the Agent being called herein the "Lender Creditors");
WHEREAS, the Borrower may at any time and from time to time enter into
one or more Interest Rate Agreements or Commodity Hedge Agreements with one or
more Lenders or any affiliate thereof (each such Lender or affiliate, even if
the respective Lender subsequently ceases to be a Lender under the Credit
Agreement for any reason, together with such Lender's or affiliate's successors
and assigns, if any, collectively, the "Other Creditors," and together with the
Lender Creditors, the "Creditors");
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WHEREAS, it is a condition to the making of the Revolving Loans and
the issuance of Letters of Credit under the Credit Agreement that the Guarantor
shall have executed and delivered this Guaranty; and
WHEREAS, the Guarantor desires to execute this Guaranty in order to
satisfy the conditions described in the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to the Guarantor, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby makes the following representations and
warranties to the Creditors and hereby covenants and agrees with the Creditors
as follows:
1. The Guarantor irrevocably and unconditionally guarantees: (i) to
the Lender Creditors the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of (x) the principal of and interest on
the Revolving Notes issued by, and the Revolving Loans made to, the Borrower
under the Credit Agreement (including all interest accruing subsequent to any
bankruptcy, insolvency or other similar proceeding, whether or not such interest
is an allowed claim against the Borrower in any such proceeding) and (y) all
indemnity and expense obligations and liabilities owing by the Borrower to the
Creditors under the Credit Agreement (including, but not limited to, amounts
owing pursuant to Sections 2.9, 4.5, 4.6, 4.7, 4.8 and 11.8 of the Credit
Agreement) in each case whether now existing or hereafter incurred under,
arising out of or in connection with the Credit Agreement, the Revolving Notes
and the due performance and compliance by the Borrower with all of the terms,
conditions and agreements contained in such Credit Documents (all such
principal, interest, liabilities and obligations under this clause (i), except
to the extent consisting of obligations or liabilities with respect to the
Interest Rate Agreements and Commodity Hedge Agreements, being herein
collectively called the "Credit Document Obligations); and (ii) to the Other
Creditors the full and prompt payment when due (whether at the stated maturity,
by acceleration or otherwise) of all obligations (including obligations which,
but for the automatic stay under Section 362(a) of the Bankruptcy Code, would
become due) and liabilities owing by the Borrower to one or more Other Creditors
under any Interest Rate Agreements or Commodity Hedge Agreements, whether now in
existence or hereafter arising, and the due performance and compliance by the
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Borrower with all terms, conditions and agreements contained therein (all such
obligations and liabilities together with the Credit Document Obligations being
herein collectively called the "Guaranteed Obligations"). The Guarantor
understands, agrees and confirms that the Creditors may enforce this Guaranty up
to the full amount of the Guaranteed Obligations against the Guarantor without
proceeding against the Borrower, against any security for the Guaranteed
Obligations, or under any other guaranty covering all or a portion of the
Guaranteed Obligations.
2. Additionally, the Guarantor, unconditionally and irrevocably,
guarantees the payment of any and all Guaranteed Obligations to the Creditors
whether or not due or payable by the Borrower upon the occurrence in respect of
the Borrower of any of the events specified in Section 9.1(e) of the Credit
Agreement, and unconditionally and irrevocably promises to pay such Guaranteed
Obligations to the Creditors, or order, on demand, in lawful money of the United
States. This Guaranty shall constitute a guaranty of payment, and not of
collection.
3. The liability of the Guarantor hereunder is exclusive and
independent of any security for or other guaranty of the Guaranteed Obligations
of the Borrower whether executed by the Guarantor, any other guarantor of the
Guaranteed Obligations or by any other party, and the liability of the Guarantor
hereunder shall not be affected or impaired by any circumstance or occurrence
whatsoever, including, without limitation: (a) any direction as to application
of payment by the Borrower or by any other party, (b) any other continuing or
other guaranty, undertaking or maximum liability of a guarantor or of any other
party as to the Guaranteed Obligations, (c) any payment on or in reduction of
any such other guaranty or undertaking, (d) any dissolution, termination or
increase, decrease or change in personnel by the Borrower, (e) any payment made
to the Creditors on the indebtedness which the Creditors repays the Borrower
pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and the Guarantor waives any right
to the deferral or modification of its obligations hereunder by reason of any
such proceeding, (f) any action or inaction by the Creditors as contemplated in
Section 6 hereof, or (g) any invalidity, irregularity or unenforceability of all
or part of the Guaranteed Obligations or of any security therefor.
4. The obligations of the Guarantor hereunder are independent of the
obligations of any other guarantor of the
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Guaranteed Obligations or the Borrower, and a separate action or actions may be
brought and prosecuted against the Guarantor whether or not action is brought
against any such other guarantor or the Borrower and whether or not any such
other guarantor or Borrower be joined in any such action or actions. The
Guarantor expressly acknowledges and agrees that any payment by the Borrower or
other circumstance which operates to toll any statute of limitations as to the
Borrower shall operate to toll the statute of limitations as to the Guarantor.
5. The Guarantor hereby waives notice of acceptance of this Guaranty
and notice of any liability to which it may apply, and waives promptness,
diligence, present- ment, demand of payment, protest, notice of dishonor or
nonpayment of any such liabilities, suit or taking of other action by the
Creditors against, and any other notice to, any party liable thereon (including
any other guarantor of the Guaranteed Obligations or the Borrower).
6. The Creditors may at any time and from time to time without the
consent of, or notice to, the Guarantor, without incurring responsibility to the
Guarantor, without impairing or releasing the obligations of the Guarantor
hereunder, upon or without any terms or conditions and in whole or in part:
(a) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew or alter, any of the
Guaranteed Obligations (including any increase or decrease in the rate
of interest thereon), any security therefor, or any liability incurred
directly or indirectly in respect thereof, and the guaranty herein made
shall apply to the Guaranteed Obligations as so changed, extended,
renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any
of those hereunder) incurred directly or indirectly in respect thereof
or hereof, and/or any offset thereagainst;
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(c) exercise or refrain from exercising any rights against
the Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers,
guarantors, the Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or
hereof, and may subordinate the payment of all or any part thereof to
the payment of any liability (whether due or not) of the Borrower to
creditors of the Borrower other than the Creditors;
(f) apply any sums by whomsoever paid or howsoever realized
to any liability or liabilities of the Borrower to the Creditors
regardless of what liabilities of the Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission
or default under, any of the Credit Documents or any of the
instruments or agreements referred to therein, or otherwise amend,
modify or supplement any of the Credit Documents or any of such other
instruments or agreements; and/or
(h) act or fail to act in any manner which may deprive the
Guarantor of its right to subrogation against the Borrower to recover
full indemnity for any payments made pursuant to this Guaranty.
7. No invalidity, irregularity or unenforceability of all or
any part of the Guaranteed Obligations or of any security therefor shall affect,
impair or be a defense to this Guaranty, and this Guaranty shall be primary,
absolute and unconditional notwithstanding the occurrence of any event or the
existence of any other circumstances which might constitute a legal or equitable
discharge of a surety or guarantor except payment in full in cash of the
Guaranteed Obligations.
8. This Guaranty is a continuing one and all liabilities to
which it applies or may apply under the terms hereof shall be conclusively
presumed to have been created in reliance hereon. No failure or delay on the
part of the Creditors in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single
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or partial exercise of any right, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein expressly specified are cumulative and
not exclusive of any rights or remedies which the Creditors would otherwise
have. No notice to or demand on the Guarantor in any case shall entitle the
Guarantor to any other further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Creditors to any other
or further action in any circumstances without notice or demand. It is not
necessary for the Creditors to inquire into the capacity or powers of the
Borrower or the officers, directors, partners or agents acting or purporting to
act on its behalf, and any indebtedness made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder.
9. Any indebtedness or other liabilities of the Borrower now or
hereafter held by or owing to the Guarantor (whether secured or unsecured) is
hereby subordinated to the indebtedness and other liabilities of the Borrower to
the Creditors, and such indebtedness and other liabilities of the Borrower to
the Guarantor, if the Creditors, after an Event of Default has occurred, so
requests, shall be collected, enforced and received by the Guarantor as trustee
for the Creditors and be paid over to the Creditors on account of the
indebtedness and other liabilities of the Borrower to the Creditors, but without
affecting or impairing in any manner the liability of the Guarantor under the
other provisions of this Guaranty. Prior to the transfer by the Guarantor of any
note or negotiable instrument evidencing any indebtedness or other liabilities
of the Borrower to the Guarantor, such Guarantor shall xxxx such note or
negotiable instrument with a legend that the same is subject to this
subordination. Without limiting the generality of the foregoing, the Guarantor
hereby agrees with the Creditors that it will not exercise any right of
subrogation which it may at any time otherwise have as a result of this Guaranty
(whether contractual, under applicable law or otherwise) until all Guaranteed
Obligations have been irrevocably paid in full in cash.
10. (a) The Guarantor waives any right (except as shall be required by
applicable statute and cannot be waived) to require the Creditors to: (i)
proceed against the Borrower, any other guarantor of the Guaranteed Obligations
or any other party; (ii) proceed against or exhaust any security held from the
Borrower, any other guarantor of the Guaranteed Obligations or any other party;
or (iii) pursue
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any other remedy in the Guarantor's power whatsoever. The Guarantor waives any
defense based on or arising out of any defense of the Borrower, any other
guarantor of the Guaranteed Obligations or any other party other than payment in
full of the Guaranteed Obligations, including, without limitation, any defense
based on or arising out of the disability of the Borrower, any other guarantor
of the Guaranteed Obligations or any other party, or the unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the cessation from
any cause of the liability of the Borrower other than payment in full of the
Guaranteed Obligations. The Creditors may, at their election, foreclose on any
security held by the Creditors by one or more judicial or nonjudicial sales,
whether or not every aspect of any such sale is commercially reasonable (to the
extent such sale is permitted by applicable law), or exercise any other right or
remedy the Creditors may have against the Borrower or any other party, or any
security, without affecting or impairing in any way the liability of the
Guarantor hereunder except to the extent the Guaranteed Obligations have been
paid in full. The Guarantor waives any defense arising out of any such election
by the Creditors, even though such election operates to impair or extinguish any
right of reimbursement or subrogation or other right or remedy of the Guarantor
against the Borrower or any other party or any security.
(b) The Guarantor waives all presentments, demands for performance,
protests and notices, including, without limitation, notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Guaranty,
and notices of the existence, creation or incurring of new or additional
indebtedness. The Guarantor assumes all responsibility for being and keeping
itself informed of the Borrower's financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which the Guarantor
assumes and incurs hereunder, and agrees that the Creditors shall have no duty
to advise the Guarantor of information known to it regarding such circumstances
or risks.
11. In order to induce the Creditors to enter into the Credit
Agreement and to make the Revolving Loans and issue Letters of Credit pursuant
to the Credit Agreement as provided therein, the Guarantor makes the following
representations, warranties and agreements to and for the benefit of the
Creditors, all of which shall survive the execution and delivery of this
Guaranty and the Revolving Notes and the
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making of the Revolving Loans, with the occurrence of the Closing Date and the
incurrence of each Revolving Loan and the issuance of each Letter of Credit on
or after the Closing Date being deemed to constitute a representation and
warranty that the matters specified in this Section 11 are true and correct on
and as of the Closing Date and on the date of each such Credit Event.
(a) Corporate Status. Each of the Guarantor and each of its
Subsidiaries (i) is a duly organized and validly existing corporation
in good standing under the laws of the jurisdiction of its organization
and has the corporate power and authority to own its property and
assets and to transact the business in which it is engaged and
presently proposes to engage and (ii) has duly qualified and is
authorized to do business and is in good standing in all jurisdictions
where it is required to be so qualified and where the failure to be so
qualified would be reasonably likely to have a material adverse effect
on the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Guarantor or of the
Guarantor and its Subsidiaries taken as a whole (a "Material Adverse
Effect").
(b) Corporate Power and Authority. The Guarantor has the
corporate power and authority to execute, deliver and carry out the
terms and provisions of this Guaranty and has taken all necessary
corporate action to authorize the execution, delivery and performance
by it of this Guaranty. The Guarantor has duly executed and delivered
this Guaranty, and this Guaranty constitutes the legal, valid and
binding obligation of the Guarantor, enforceable in accordance with its
terms, except that such enforceability hereof may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws of general application relating to or affecting the rights
and remedies of creditors and (ii) federal securities or other laws or
regulations or public policy insofar as they may restrict the
enforceability of rights to indemnification.
(c) No Violation. Neither the execution, delivery or
performance by the Guarantor of this Guaranty, nor compliance by it
with the terms and provisions hereof, nor the consummation of the
transactions contemplated herein (i) will contravene any applicable
provision of any law, statute, rule, regulation, order, writ,
injunc-
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tion or decree of any court or governmental instrumentality, (ii) will
conflict with, violate or result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under,
or result in the creation or imposition of (or the obligation to
create or impose) any Lien upon any of the property or assets of the
Guarantor or any of its Subsidiaries pursuant to the terms of any
indenture, mortgage, deed of trust, agreement or other instrument to
which the Guarantor or any of its Subsidiaries is a party or by which
it or any of its property or assets are bound or to which it may be
subject or (iii) will violate any provision of the articles of
incorporation or by-laws of the Guarantor, except, in the case of
clauses (i) and (ii) any immaterial contravention, conflict,
inconsistency, breach or default which are not reasonably likely to
adversely affect any Lender or to have a Material Adverse Effect.
(d) Investment Company Act. Neither the Guarantor nor any of
its Subsidiaries is an "investment company" or a company "controlled"
by an "invest- ment company," within the meaning of the Investment
Company Act of 1940, as amended.
(e) Public Utility Holding Company Act. Neither the
Guarantor nor any of its Subsidiaries is a "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company"
within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
(f) True and Complete Disclosure. All factual information
(taken as a whole) heretofore or contemporaneously furnished by or on
behalf of the Guarantor and any of its Subsidiaries in writing to the
Agent or any Lender does not, and all other such factual information
(taken as a whole) hereafter furnished by or on behalf of the
Guarantor and any of its Subsidiaries in writing to the Agent or any
Lender will not, as of the date as of which such information is dated
or certified, contain any untrue statement of a material fact or omit
to state any material fact necessary to make such information (taken
as a whole) not misleading as of such time, in each case in light of
the circumstances under which such information was provided.
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(g) Financial Condition. On and as of the Closing Date on a
pro forma basis after giving effect to the Transaction and all
Indebtedness incurred, and to be incurred by the Guarantor in
connection with this Guaranty, (x) the sum of the assets, at a fair
valuation, of the Guarantor will exceed its debts, (y) the Guarantor
will not have incurred nor intend to, or believe that it will, incur
debts beyond its ability to pay such debts as such debts mature and
(z) the Guarantor does not have unreasonably small capital with which
to conduct its businesses. For purposes of this Section 11(i), "debt"
means any reasonably expected liability on a claim, and "claim" means
(i) right to payment whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or
unsecured; or (ii) right to an equitable remedy for breach of
performance if such breach gives rise to a payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured or
unsecured.
(h) Assets. The Guarantor does not own any assets (including
Real Property) other than capital stock of the Borrower (the "Pledged
Stock").
(i) Indebtedness and Operating Leases. The Guarantor has no
Indebtedness (other than any Indebtedness incurred in connection with
(i) this Guaranty and (ii) any guaranty executed by the Guarantor
under the Senior Note Documents) (all references to "the Borrower" in
the definition of Indebtedness shall mean and be a reference to "the
Guarantor" herein) and no Operating Leases.
(j) Special Purpose Corporation. The Guarantor is a special
purpose corporation established for the sole purposes of (i) holding
the Pledged Stock, (ii) guaranteeing the obligations of the Borrower
under (a) the Credit Agreement and the other Credit Documents and (b)
the Senior Credit Agreement and the other Senior Note Documents (the
"Senior Note Obligations") and (iii) pledging the Pledged Stock to
secure its guarantee of the Senior Note Obligations (the "Senior Note
Pledge").
12. The Guarantor hereby covenants and agrees that on and
after the Closing Date and until all Letters of Credit have terminated and the
Revolving Notes, the Revolving Loans
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and the Letter of Credit Obligations,
together with interest, Fees and all other Guaranteed Obligations, are paid in
full, the Guarantor:
(a) will not, and will not permit any of its Subsidiaries
(other than the Borrower) to, wind up, liquidate or dissolve its
affairs, or enter into any transaction of merger or consolidation, sell
or otherwise dispose of all or any part of its property or assets, or
purchase, lease or otherwise acquire (in one transaction or a series of
related transactions) all or any part of the property or assets of any
Person or agree to do any of the foregoing at any future time;
(b) will not, and will not permit any of its Subsidiaries
(other than the Borrower) to, create, incur, assume or suffer to exist
any Lien upon or with respect to (i) the Pledged Stock (other than the
Senior Note Pledge and the Guarantor's guarantee of the Borrower's
obligations under the Senior Note Documents) and (ii) any of its
property or assets of any kind (real or personal, tangible or
intangible), whether now owned or hereafter acquired, or sell any such
property or assets or assign any right to receive income, or file or
permit the filing of any financing statement under the UCC or any other
similar notice of Lien under any similar recording or notice statute;
and
(c) will not, and will not permit any of its Subsidiaries
(other than the Borrower) to, contract, create, incur, assume or suffer
to exist any Indebtedness (other than any Indebtedness incurred in
connection with (i) this Guaranty and (ii) any guaranty executed by the
Guarantor under the Senior Note Documents) or enter into any Capital
Leases or Operating Leases.
13. Any of the following specified events shall be an "Event of
Default":
(a) Representations, etc. Any representation, warranty or
statement made by the Guarantor herein or in any certificate delivered
pursuant hereto shall prove to be untrue in any material respect on
the date as of which made or deemed made; or
(b) Covenants. The other Guarantor shall (i) default in the
due performance or observance
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by it of any term, covenant or agreement contained in paragraph 12 or
(ii) default in the due performance or observance by it of any other
term, covenant or agreement contained herein and such default shall
continue unremedied for a period of 15 days after written notice to
the Guarantor by the Creditors; or
(c) Bankruptcy, etc. The Guarantor or any of its
Subsidiaries shall commence a voluntary case concerning itself under
Title 11 of the United States entitled "Bankruptcy," as now or
hereafter in effect, or any successor thereto (the "Bankruptcy Code");
or an involuntary case is commenced against the Guarantor or any of
its Subsidiaries, and the petition is not controverted within 30 days,
or is not dismissed within 60 days, after commencement of the case; or
a custodian (as defined in the Bankruptcy Code) is appointed for, or
takes charge of, all or substantially all of the property of the
Guarantor or any of its Subsidiaries, or the Guarantor or any of its
Subsidiaries commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether
now or hereafter in effect relating to the Guarantor or any of its
Subsidiaries; or there is commenced against the Guarantor or any of
its Subsidiaries any such proceeding which remains undismissed for a
period of 60 days; or the Guarantor or any of its Subsidiaries is
adjudicated insolvent or bankrupt; or any order of relief or other
order approving any such case or proceeding is entered against the
Guarantor or any of its Subsidiaries; or the Guarantor or any of its
Subsidiaries suffers any appointment of any custodian or the like for
it or any substantial part of its property to continue undischarged or
unstayed for a period of 60 days; or the Guarantor or any of its
Subsidiaries makes a general assignment for the benefit of creditors;
or any corporate action is taken by the Guarantor or any of its
Subsidiaries for the purpose of effecting any of the foregoing.
14. The Guarantor hereby agrees to pay all out-of-pocket costs and
expenses of the Creditors in connection with the preparation of this Guaranty
and any amendment, waiver or
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consent relating hereto and of the Creditors in connection with any enforcement
of this Guaranty (including in each case, without limitation, the fees and
disbursements of counsel and consultants employed by the Creditors). The
Guarantor further agrees to indemnify the Creditors, and each of its officers,
directors, employees, representatives, affiliates and agents from and hold each
of them harmless against any and all liabilities, obligations (including removal
or remedial actions), losses, damages, penalties, claims, actions, judgments,
suits, costs, expenses and disbursements (including reasonable attorneys' and
consultants' fees and disbursements) incurred by, imposed on or assessed against
any of them as a result of, or arising out of, or in any way related to, or by
reason of, any investigation, litigation or other proceeding (whether or not the
Creditors is a party thereto and whether or not brought by or on behalf of, or
against, the Creditors) related to the entering into and/or performance of this
Guaranty or any other Document or the use of any Letter of Credit or the
proceeds of the Revolving Loans or the consummation of any transactions
contemplated herein or the exercise of any of the Creditors' rights or remedies
provided herein or in the other Credit Documents, including in each case,
without limitation, the reasonable fees and disbursements of counsel and other
consultants incurred in connection with any such investigation, litigation or
other proceeding (but excluding any losses, liabilities, claims, damages or
expenses to the extent incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified). To the extent that the undertaking
to indemnify, pay or hold harmless the Creditors set forth in the preceding
sentence may be unenforceable because it is violative of any law or public
policy, the Guarantor shall make the maximum contribution to the payment and
satisfaction of each of the indemnified liabilities which is permissible under
applicable law.
15. This Guaranty shall be binding upon the Guarantor and its
successors and assigns and shall inure to the benefit of the Creditors and its
successors and assigns, provided that the Guarantor may not assign its rights or
obligations under this Guaranty without the prior written consent of the
Required Lenders (as described in the Credit Agreement).
16. Neither this Guaranty nor any provision hereof may be changed,
waived, discharged or terminated except with the written consent of the
Guarantor and the Required Lenders.
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17. The Guarantor acknowledges that an executed (or conformed) copy of
each of the Credit Documents has been made available to its principal executive
officers and such officers are familiar with the contents thereof.
18. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Secured Creditor Law) and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of Default,
the Creditors is hereby authorized at any time or from time to time, without
notice to the Guarantor or to any other Person, any such notice being expressly
waived, to set off and to appropriate and apply any and all deposits (general or
special) and any other indebtedness at any time held or owing by the Creditors
to or for the credit or the account of the Guarantor, against and on account of
the obligations and liabilities of the Guarantor to the Creditors under this
Guaranty, irrespective of whether or not the Creditors shall have made any
demand hereunder and although said obligations, liabilities, deposits or claims,
or any of them, shall be contingent or unmatured.
19. All notices, requests, demands or other communications pursuant
hereto shall be deemed to have been duly given or made when delivered to the
Person to which such notice, request, demand or other communication is required
or permitted to be given or made under this Guaranty, addressed to such party at
(i) in the case of the Creditors, as provided in the Credit Agreement and (ii)
in the case of the Guarantor, at its address set forth opposite its signature
below; or in any case at such other address as any of the Persons listed above
may hereafter notify the others in writing.
20. If claim is ever made upon the Creditors for repayment or recovery
of any amount or amounts received in payment or on account of any of the
Guaranteed Obligations and any of the aforesaid payees repays all or part of
said amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its property
or (ii) any settlement or compromise of any such claim effected by such payee
with any such claimant (including the Borrower), then and in the event the
Guarantor agrees that any such judgment, decree, order, settlement or compromise
shall be binding upon the Guarantor, notwithstanding any revocation hereof or
other instrument evidencing any liability of the Borrower, and the Guarantor
shall be and remain liable to the aforesaid payees hereunder
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for the amount so repaid or recovered to the same extent as if such amount had
never originally been received by any such payee.
21. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE CREDITORS
AND OF THE GUARANTOR HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS GUARANTY MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND,
BY EXECUTION AND DELIVERY OF THIS GUARANTY, THE GUARANTOR HEREBY IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE GUARANTOR HEREBY
FURTHER IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CT CORPORATION SYSTEM,
WITH OFFICES ON THE DATE HEREOF AT 0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000 AS
ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON
ITS BEHALF, IN THE RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL
PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION
OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE
TO BE AVAILABLE TO ACT AS SUCH THE GUARANTOR AGREES TO DESIGNATE A NEW DESIGNEE,
APPOINTEE AND AGENT IN NEW YORK CITY ON THE TERMS AND FOR THE PURPOSES OF THIS
PROVISION SATISFACTORY TO THE CREDITORS UNDER THIS GUARANTY. THE GUARANTOR
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE GUARANTOR AT
ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
THE CREDITORS UNDER THIS AGREEMENT, THE CREDITORS TO SERVICE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST THE GUARANTOR IN ANY OTHER JURISDICTION.
(b) THE GUARANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS GUARANTY BROUGHT IN THE
COURTS REFERRED TO IN CLAUSE (A) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT SUCH ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) THE GUARANTOR AND THE CREDITORS HEREBY IRREVOCABLY WAIVE ALL
RIGHTS TO A TRIAL BY JURY IN ANY
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ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
22. It is the desire and intent of the Guarantor and the Creditors
that this Guaranty shall be enforced against the Guarantor to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. If, however, and to the extent that, the
obligations of the Guarantor under this Guaranty shall be adjudicated to be
invalid or unenforceable for any reason (including, without limitation, because
of any applicable state or federal law relating to fraudulent conveyances or
transfers), then the amount of the Guaranteed Obligations of the Guarantor shall
be deemed to be reduced and the Guarantor shall pay the maximum amount of the
Guaranteed Obligations which would be permissible under applicable law.
23. This Guaranty may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. A set of counterparts shall be lodged
with the Guarantor and the Creditors.
24. All payments made by the Guarantor hereunder will be made without
setoff, counterclaim or other defense and on the same basis as payments are made
by the Borrower under Sections 2.6 and 3.5 of the Credit Agreement.
* * *
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
ADDRESSES
c/o Consumers Packaging Inc. CONSUMERS U.S., INC.,
000 Xxx Xxxx Xxxx as Guarantor
Xxxxx 000
Xxxxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx By /s/ Xxxx X. Xxxxxxxx
_______________________________
_______________________________ Name: Xxxx X. Xxxxxxxx
Tel: (000) 000-0000 Title: Chairman and Chief
Fax: (000) 000-0000 Executive Officer
Attn: Xxxx X. Xxxxxxxx
Acknowledged and Agreed to:
BT COMMERCIAL CORPORATION,
as Agent
By /s/ Xxxx Xxxxxxxx-Keskinyan
_______________________________________________
Name: Xxxx Xxxxxxxx-Keskinyan
Title: Senior Vice President
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