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EXHIBIT 10.40
GUARANTY
THIS GUARANTY (this "GUARANTY") is made as of the 22nd day of July, 1999,
by and among PECHINEY NORTH AMERICA, INC., a Delaware corporation, and AMERICAN
NATIONAL CAN COMPANY, a Delaware corporation (collectively, the "INITIAL
GUARANTORS" and along with any additional Subsidiaries which become parties to
this Guaranty by executing an Addendum hereto in the form attached as Annex I,
the "GUARANTORS") in favor of the Agent, for the ratable benefit of the holders
of the Facility Obligations from time to time (each a "HOLDER OF OBLIGATIONS",
including (i) each Lender in respect of its Advances, (ii) the Agent and the
Lenders in respect of all other present and future obligations and liabilities
of the Borrower or any of the Guarantors of every type and description arising
under or in connection with the Facility Agreements or any other Facility Loan
Document, (iii) each Indemnitee in respect of the obligations and liabilities of
the Borrower or any of its Subsidiaries to such Person hereunder or under the
other Facility Loan Documents, and (iv) their respective successors, transferees
and assigns).
WITNESSETH:
WHEREAS, AMERICAN NATIONAL CAN GROUP, INC., a Delaware corporation (the
"BORROWER"), Windmill Funding Corporation ("WINDMILL"), and ABN AMRO BANK N.V.,
in its individual capacity as a Lender and in its capacity as agent (the
"AGENT") for itself and the other Lenders have entered into (i) a certain 5-Year
Finance Facility Agreement dated as of July 22, 1999 (as the same may be
amended, modified, supplemented and/or restated, and as in effect from time to
time, the "5-YEAR FACILITY AGREEMENT") and (ii) a certain 364-Day Finance
Facility Agreement dated as of July 22, 1999 (as the same may be amended,
restated, supplemented or otherwise modified, and as in effect from time to
time, the "364-DAY FACILITY Agreement", and, together with the 5-Year Facility
Agreement, the "FACILITY AGREEMENTS"), providing, subject to the terms and
conditions thereof, for extensions of credit and other financial accommodations
to be made by the Lenders to the Borrower;
WHEREAS, it is a condition precedent to the initial extensions of credit by
the Lenders under each of the Facility Agreements that each of the Guarantors
(constituting all of the Material Domestic Subsidiaries of the Borrower as of
the date hereof) execute and deliver this Guaranty, whereby each of the
Guarantors shall guarantee the payment when due, of all "Facility Obligations"
(as defined in the Facility Agreements), principal, interest, and other amounts
that shall be at any time payable by the Borrower under the Facility Agreements
and the other Facility Loan Documents; and
WHEREAS, in consideration of the direct and indirect financial and other
support that the Borrower has provided, and such direct and indirect financial
and other support as the Borrower may in the future provide, to the Guarantors,
and in order to induce the Lenders and the Agent to enter into the Facility
Agreements, each of the Guarantors is willing to guarantee the obligations of
the
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Borrower under the Facility Agreements and the obligations of the Borrower or
any of its Subsidiaries under any of the other Facility Loan Documents;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. Terms defined in the Facility Agreements and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein. For purposes of this Guaranty, "5-YEAR CLO LENDERS" shall mean all
of the Lenders under the 5-Year Facility Agreement, and "364-DAY CLO LENDERS"
shall mean all of the Lenders under the 364-Day Facility Agreement. "LENDERS"
shall mean, collectively, all of the 5-Year CLO Lenders and all of the 364-Day
CLO Lenders. In addition, the following terms shall have the following meanings:
"CREDIT AGREEMENT DOCUMENTS" means the Credit Agreements and the other
documents, instruments and agreements executed in connection therewith, as
the same may from time to time be amended, modified, supplemented and/or
restated in accordance with the terms thereof.
"CREDIT AGREEMENTS" means the 5-Year Revolving Credit Agreement and
the 364-Day Credit Agreement.
"TRANSACTION DOCUMENTS" means the Facility Loan Documents, the Credit
Agreements and the Credit Agreement Documents, in each case as the same may
from time to time be amended, modified, supplemented and/or restated in
accordance with the terms thereof.
SECTION 2. Representations, Warranties and Covenants. Each of the
Guarantors represents and warrants (which representations and warranties shall
be deemed to have been renewed at the time of the making, conversion or
continuation of any Advance) that:
(a) It is a corporation, limited liability company, partnership or
other commercial entity duly incorporated or formed, validly existing and in
good standing under the laws of its jurisdiction of incorporation or formation
and has all requisite authority to conduct its business as a foreign Person in
each jurisdiction in which its business is conducted, except where the failure
to have such requisite authority would not have a "Material Adverse Effect" (as
defined in the Credit Agreements).
(b) It has the power and authority and legal right to execute and
deliver this Guaranty and to perform its obligations hereunder. The execution
and delivery by it of this Guaranty and the performance by it of its obligations
hereunder have been duly authorized by proper
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proceedings, and this Guaranty constitutes a legal, valid and binding obligation
of such Guarantor, enforceable against such Guarantor in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally.
(c) Neither the execution and delivery by it of this Guaranty, nor the
consummation by it of the transactions herein contemplated, nor compliance by it
with the terms and provisions hereof, will violate any law, rule, regulation,
order, writ, judgment, injunction, decree or award binding on it or its
certificate or articles of incorporation or by-laws, limited liability company
or partnership agreement (as applicable) or the provisions of any indenture,
instrument or material agreement to which it is a party or is subject, or by
which it, or its property, is bound, or conflict with or constitute a default
thereunder, or result in the creation or imposition of any Lien in, of or on its
property pursuant to the terms of any such indenture, instrument or material
agreement. No order, consent, approval, license, authorization, or validation
of, or filing, recording or registration with, or exemption by, any
"Governmental Authority" (as defined in the Credit Agreements), is required to
authorize, or is required in connection with the execution, delivery and
performance by it of, or the legality, validity, binding effect or
enforceability against it of, this Guaranty.
In addition to the foregoing, each of the Guarantors covenants that,
so long as any Lender has any Commitment outstanding under either of the
Facility Agreements or any amount payable under the Facility Agreements or any
other Facility Obligations shall remain unpaid, it will, and, if necessary, will
enable the Borrower to, fully comply with those covenants and agreements of the
Borrower applicable to such Guarantor set forth in each of the Transaction
Documents.
SECTION 3. The Guaranty. Each of the Guarantors hereby unconditionally
guarantees, jointly with the other Guarantors and severally, the full and
punctual payment when due (whether at stated maturity, upon acceleration or
otherwise) of the Facility Obligations, including, without limitation, (i) the
principal of and interest on each Advance made to the Borrower (including,
without limitation the Matured Value of each CP Advance) pursuant to the
Facility Agreements, and (ii) all other amounts payable by the Borrower or any
of its Subsidiaries under the Facility Agreements and the other Facility Loan
Documents (all of the foregoing being referred to collectively as the
"GUARANTEED Obligations"). Upon failure by the Borrower or any of its
affiliates, as applicable, to pay punctually any such amount, each of the
Guarantors agrees that it shall forthwith on demand pay such amount at the place
and in the manner specified in the Facility Agreements or the relevant Facility
Loan Document, as the case may be. Each of the Guarantors hereby agrees that
this Guaranty is an absolute, irrevocable and unconditional guaranty of payment
and is not a guaranty of collection.
SECTION 4. Guaranty Unconditional. The obligations of each of the
Guarantors hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
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(i) any extension, renewal, settlement, indulgence, compromise, waiver or
release of or with respect to the Guaranteed Obligations or any part
thereof or any agreement relating thereto, or with respect to any
obligation of any other guarantor of any of the Guaranteed Obligations,
whether (in any such case) by operation of law or otherwise, or any failure
or omission to enforce any right, power or remedy with respect to the
Guaranteed Obligations or any part thereof or any agreement relating
thereto, or with respect to any obligation of any other guarantor of any of
the Guaranteed Obligations;
(ii) any modification or amendment of or supplement to either of the
Facility Agreements or any other Facility Loan Document, including, without
limitation, any such amendment which may increase the amount of the
Facility Obligations guaranteed hereby;
(iii) any release, surrender, compromise, settlement, waiver, subordination
or modification, with or without consideration, of any collateral securing
the Guaranteed Obligations or any part thereof, any other guaranties with
respect to the Guaranteed Obligations or any part thereof, or any other
obligation of any person or entity with respect to the Guaranteed
Obligations or any part thereof, or any nonperfection or invalidity of any
direct or indirect security for the Guaranteed Obligations;
(iv) any change in the corporate, partnership or other existence, structure
or ownership of the Borrower or any other guarantor of any of the
Guaranteed Obligations, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting the Borrower or any other guarantor of
the Guaranteed Obligations, or any of their respective assets or any
resulting release or discharge of any obligation of the Borrower or any
other guarantor of any of the Guaranteed Obligations;
(v) the existence of any claim, setoff or other rights which the Guarantors
may have at any time against the Borrower, any other guarantor of any of
the Guaranteed Obligations, the Agent, any Holder of Obligations or any
other Person, whether in connection herewith or in connection with any
unrelated transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory counterclaim;
(vi) the enforceability or validity of the Guaranteed Obligations or any
part thereof or the genuineness, enforceability or validity of any
agreement relating thereto or with respect to any collateral securing the
Guaranteed Obligations or any part thereof, or any other invalidity or
unenforceability relating to or against the Borrower or any other guarantor
of any of the Guaranteed Obligations, for any reason related to either of
the Facility Agreements, any other Facility Loan Document, or any provision
of applicable law or regulation purporting to prohibit the payment by the
Borrower or any other guarantor of the Guaranteed Obligations, of any of
the Guaranteed Obligations;
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(vii) the failure of the Agent to take any steps to perfect and maintain
any security interest in, or to preserve any rights to, any security or
collateral for the Guaranteed Obligations, if any;
(viii) the election by, or on behalf of, any one or more of the Holders of
Obligations, in any proceeding instituted under Chapter 11 of Title 11 of
the United States Code (11 U.S.C. 101 et seq.) (the "BANKRUPTCY Code"), of
the application of Section 1111(b)(2) of the Bankruptcy Code;
(ix) any borrowing or grant of a security interest by the Borrower, as
debtor-in-possession, under Section 364 of the Bankruptcy Code;
(x) the disallowance, under Section 502 of the Bankruptcy Code, of all or
any portion of the claims of any of the Holders of Obligations or the Agent
for repayment of all or any part of the Guaranteed Obligations;
(xi) the failure of any other Guarantor to sign or become party to this
Guaranty or any amendment, change, or reaffirmation hereof; or
(xii) any other act or omission to act or delay of any kind by the
Borrower, any other guarantor of the Guaranteed Obligations, the Agent, any
Holder of Obligations or any other Person or any other circumstance
whatsoever which might, but for the provisions of this Section 4,
constitute a legal or equitable discharge of any Guarantor's obligations
hereunder.
SECTION 5. Discharge Only Upon Payment In Full: Reinstatement In Certain
Circumstances. Each of the Guarantors' obligations hereunder shall remain in
full force and effect until all Guaranteed Obligations shall have been paid in
full in cash and the Commitments shall have terminated or expired. If at any
time any payment of the principal of or interest on any Advance or any other
amount payable by the Borrower or any other party under the Facility Agreements
or any other Facility Loan Document is rescinded or must be otherwise restored
or returned upon the insolvency, bankruptcy or reorganization of the Borrower or
otherwise, each of the Guarantors' obligations hereunder with respect to such
payment shall be reinstated as though such payment had been due but not made at
such time.
SECTION 6. General Waivers. Each of the Guarantors irrevocably waives
acceptance hereof, presentment, demand or action on delinquency, protest, the
benefit of any statutes of limitations and, to the fullest extent permitted by
law, any notice not provided for herein, as well as any requirement that at any
time any action be taken by any Person against the Borrower, any other guarantor
of the Guaranteed Obligations, or any other Person. Without in any way limiting
the foregoing, each of the Guarantors waives the benefits of Chapter 34 of the
Texas Business and Commerce Code.
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SECTION 7. Subordination of Subrogation. Until the Guaranteed Obligations
have been indefeasibly paid in full in cash, the Guarantors (i) shall have no
right of subrogation with respect to such Guaranteed Obligations and (ii) waive
any right to enforce any remedy which the Holders of Obligations or the Agent
now have or may hereafter have against the Borrower, any endorser or any
guarantor of all or any part of the Guaranteed Obligations or any other Person,
and the Guarantors waive any benefit of, and any right to participate in, any
security or collateral given to the Holders of Obligations and the Agent to
secure the payment or performance of all or any part of the Guaranteed
Obligations or any other liability of the Borrower to the Holders of
Obligations. Should any Guarantor have the right, notwithstanding the foregoing,
to exercise its subrogation rights, each Guarantor hereby expressly and
irrevocably (A) subordinates any and all rights at law or in equity to
subrogation, reimbursement, exoneration, contribution, indemnification or set
off that the Guarantor may have to the indefeasible payment in full in cash of
the Guaranteed Obligations and (B) waives any and all defenses available to a
surety, guarantor or accommodation co-obligor until the Guaranteed Obligations
are indefeasibly paid in full in cash. Each Guarantor acknowledges and agrees
that this subordination is intended to benefit the Agent and the Holders of
Obligations and shall not limit or otherwise affect such Guarantor's liability
hereunder or the enforceability of this Guaranty, and that the Agent, the
Holders of Obligations and their respective successors and assigns are intended
third party beneficiaries of the waivers and agreements set forth in this
Section 7.
SECTION 8. Contribution with Respect to Guaranteed Obligations.
(a) To the extent that any Guarantor shall make a payment under this
Guaranty (a "GUARANTOR PAYMENT") which, taking into account all other Guarantor
Payments then previously or concurrently made by any other Guarantor, exceeds
the amount which otherwise would have been paid by or attributable to such
Guarantor if each Guarantor had paid the aggregate Guaranteed Obligations
satisfied by such Guarantor Payment in the same proportion as such Guarantor's
"Allocable Amount" (as defined below) (as determined immediately prior to such
Guarantor Payment) bore to the aggregate Allocable Amounts of each of the
Guarantors as determined immediately prior to the making of such Guarantor
Payment, then, following indefeasible payment in full in cash of the Guaranteed
Obligations and termination of the Facility Agreements, such Guarantor shall be
entitled to receive contribution and indemnification payments from, and be
reimbursed by, each other Guarantor for the amount of such excess, pro rata
based upon their respective Allocable Amounts in effect immediately prior to
such Guarantor Payment.
(b) As of any date of determination, the "ALLOCABLE AMOUNT" of any
Guarantor shall be equal to the maximum amount of the claim which could then be
recovered from such Guarantor under this Guaranty without rendering such claim
voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or
under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.
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(c) This Section 8 is intended only to define the relative rights of
the Guarantors, and nothing set forth in this Section 8 is intended to or shall
impair the obligations of the Guarantors, jointly and severally, to pay any
amounts as and when the same shall become due and payable in accordance with the
terms of this Guaranty.
(d) The parties hereto acknowledge that the rights of contribution and
indemnification hereunder shall constitute assets of the Guarantor to which such
contribution and indemnification is owing.
(e) The rights of the indemnifying Guarantors against other Guarantors
under this Section 8 shall be exercisable upon the full and indefeasible payment
of the Guaranteed Obligations in cash and the termination of the Facility
Agreements.
SECTION 9. Stay of Acceleration. If acceleration of the time for payment of
any amount payable by the Borrower under the Facility Agreements or any other
Facility Loan Document is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to
acceleration under the terms of the Facility Agreements or any other Facility
Loan Document shall nonetheless be payable by each of the Guarantors hereunder
forthwith on demand by the Agent.
SECTION 10. Notices. All notices, requests and other communications to any
party hereunder shall be given in the manner prescribed in Section 11 of the
Facility Agreements with respect to the Agent at its notice address therein and
with respect to any Guarantor at the address set forth below or such other
address or telecopy number as such party may hereafter specify for such purpose
by notice to the Agent in accordance with the provisions of such Section 11.
Notice Address for Guarantors:
c/o American National Can Group, Inc.
0000 Xxxx Xxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Vice President - Treasurer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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with a copy to:
Attention: General Counsel
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Address: 0000 Xxxx Xxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000
SECTION 11. No Waivers. No failure or delay by the Agent or any Holder of
Obligations in exercising any right, power or privilege hereunder shall operate
as a waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies provided in this Guaranty, the Facility
Agreements and the other Facility Loan Documents shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 12. Successors and Assigns. This Guaranty is for the benefit of the
Agent and the Holders of Obligations and their respective successors and
permitted assigns, provided, that no Guarantor shall have any right to assign
its rights or obligations hereunder without the consent of all of the Lenders,
and any such assignment in violation of this Section 12 shall be null and void;
and in the event of an assignment of any amounts payable under the Facility
Agreements or the other Facility Loan Documents in accordance with the
respective terms thereof, the rights hereunder, to the extent applicable to the
indebtedness so assigned, may be transferred with such indebtedness. This
Guaranty shall be binding upon each of the Guarantors and their respective
successors and assigns.
SECTION 13. Changes in Writing. Other than in connection with the addition
of additional Subsidiaries of the Borrower which become parties hereto by
executing an Addendum hereto in the form attached as Annex I, neither this
Guaranty nor any provision hereof may be changed, waived, discharged or
terminated orally, but only in writing signed by each of the Guarantors and the
Agent.
SECTION 14. GOVERNING LAW. ANY DISPUTE BETWEEN ANY GUARANTOR AND THE AGENT
OR ANY LENDER, OR ANY OTHER HOLDER OF OBLIGATIONS ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH, THIS GUARANTY OR ANY OF THE OTHER FACILITY LOAN DOCUMENTS, AND
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS
SECTION 105/5-1 ET SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS.
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SECTION 15. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH OF
THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH, THIS GUARANTY OR ANY OF THE OTHER FACILITY LOAN DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE
PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES
HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. EACH OF THE GUARANTORS AGREES THAT THE AGENT, ANY
LENDER OR ANY HOLDER OF OBLIGATIONS SHALL HAVE THE RIGHT TO PROCEED AGAINST SUCH
GUARANTOR OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO
(1) OBTAIN PERSONAL JURISDICTION OVER SUCH GUARANTOR OR (2) ENFORCE A JUDGMENT
OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. EACH OF THE GUARANTORS
AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING
BROUGHT BY SUCH PERSON TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF
SUCH PERSON. EACH OF THE GUARANTORS WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS SUBSECTION (B).
(C) SERVICE OF PROCESS. EACH OF THE GUARANTORS WAIVES PERSONAL SERVICE OF
ANY PROCESS UPON IT AND IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY
WRITS, PROCESS OR SUMMONSES IN ANY SUIT, ACTION OR PROCEEDING BY THE MAILING
THEREOF BY THE AGENT OR THE HOLDERS OF OBLIGATIONS BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO THE GUARANTORS IN CARE OF THE BORROWER AT THE ADDRESS
PROVIDED FOR NOTICES TO THE BORROWER UNDER THE FACILITY AGREEMENTS. NOTHING
HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF THE AGENT OR THE
HOLDERS OF OBLIGATIONS TO SERVE ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW. EACH OF THE GUARANTORS IRREVOCABLY
WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO
THIS
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GUARANTY OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
GUARANTY OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS GUARANTY WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(E) WAIVER OF BOND. EACH OF THE GUARANTORS WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS
OR PROCEEDING TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER,
PRELIMINARY OR PERMANENT INJUNCTION, THIS GUARANTY OR ANY OTHER FACILITY LOAN
DOCUMENT.
(F) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTY
HERETO THAT IT HAS DISCUSSED THIS GUARANTY AND, SPECIFICALLY, THE PROVISIONS OF
THIS SECTION 15, WITH ITS COUNSEL.
SECTION 16. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Guaranty. In the event an
ambiguity or question of intent or interpretation arises, this Guaranty shall be
construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Guaranty.
SECTION 17. Taxes, Expenses of Enforcement, etc. (A) (i) Any and all
payments by any of the Guarantors hereunder (whether in respect of principal,
interest, fees or otherwise) shall be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, interest, penalties or any liabilities with respect
thereto including those arising after the date hereof as a result of the
adoption of or any change in any law, treaty, rule, regulation, guideline or
determination of a Governmental Authority or any change in the
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interpretation or application thereof by a Governmental Authority but excluding,
in the case of each Lender and the Agent, such taxes (including income taxes,
franchise taxes and branch profit taxes) as are imposed on or measured by such
Lender's or the Agent's, as the case may be, net income by the United States of
America or any Governmental Authority of the jurisdiction under the laws of
which such Lender or the Agent, as the case may be, is organized (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings, and
liabilities which the Agent or a Lender determines to be applicable to this
Guaranty, the other Facility Loan Documents, the Commitment or the Advances
being hereinafter referred to as "TAXES"). If any Guarantor shall be required by
law to deduct or withhold any Taxes from or in respect of any sum payable
hereunder or under any of the other Facility Loan Documents to any Holder of
Obligations, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions or withholdings (including deductions
applicable to additional sums payable under this Section 17(A)) such Lender or
Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions or withholdings been made, (ii) the applicable
Guarantor shall make such deductions or withholdings, and (iii) the applicable
Guarantor shall pay the full amount deducted or withheld to the relevant
taxation authority or other authority in accordance with applicable law. If a
withholding tax of the United States of America or any other Governmental
Authority shall be or become applicable (y) after the date of this Guaranty, to
such payments by the applicable Guarantor made to the Lending Installation or
any other office that a Lender may claim as its Lending Installation, or (z)
after such Lender's selection and designation of any other Lending Installation,
to such payments made to such other Lending Installation, such Lender shall use
reasonable efforts to make, fund and maintain the affected Advances through
another Lending Installation of such Lender in another jurisdiction so as to
reduce the applicable Guarantor's liability hereunder, if the making, funding or
maintenance of such Advances through such other Lending Installation of such
Lender does not, in the judgment of such Lender, otherwise adversely affect such
Advances, or obligations under the Revolving Loan Commitments of such Lender.
(ii) In addition, each of the Guarantors agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges, or similar levies which arise from any payment made hereunder, or from
the execution, delivery or registration of, or otherwise with respect to, this
Guaranty, the other Facility Loan Documents, the Commitments or the Advances
(hereinafter referred to as "OTHER TAXES").
(iii) Each of the Guarantors indemnifies each Lender and the Agent for the
full amount of Taxes and Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed by any Governmental Authority on amounts payable under
this Section 17(A)) paid by such Lender or the Agent (as the case may be) and
any liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within thirty (30) days
after the date such Lender or the Agent (as the case may be) makes written
demand therefor. If the Taxes or Other Taxes with respect to which any Guarantor
has made either a direct payment to the taxation or other authority
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or an indemnification payment hereunder are subsequently refunded to any Lender,
such Lender will return to the applicable Guarantor an amount equal to the
lesser of the indemnification payment or the refunded amount. A certificate as
to any additional amount payable to any Lender or the Agent under this Section
17(A) submitted to the applicable Guarantor and the Agent (if a Lender is so
submitting) by such Lender or the Agent shall show in reasonable detail the
amount payable and the calculations used to determine such amount and shall,
absent manifest error, be deemed presumptively correct. With respect to such
deduction or withholding for or on account of any Taxes and to confirm that all
such Taxes have been paid to the appropriate Governmental Authorities, the
applicable Guarantor or Guarantors shall promptly (and in any event not later
than thirty (30) days after receipt) furnish to each Lender and the Agent such
certificates, receipts and other documents as may be required (in the reasonable
judgment of such Lender or the Agent) to establish any tax credit to which such
Lender or the Agent may be entitled.
(iv) Within thirty (30) days after the date of any payment of Taxes or
Other Taxes by any Guarantor, the applicable Guarantor shall furnish to the
Agent the original or a certified copy of a receipt evidencing payment thereof.
(v) Without prejudice to the survival of any other agreement of the
Guarantors hereunder, the agreements and obligations of the Guarantors contained
in this Section 17(A) shall survive the payment in full of all Guaranteed
Obligations and the termination of this Guaranty.
(vi) Each Lender (including any Replacement Lender or Purchaser) that is
not created or organized under the laws of the United States of America or a
political subdivision thereof (each a "NON-U.S. LENDER") shall deliver to the
Borrower and the Agent on or before the Closing Date, or, if later, the date on
which such Lender becomes a Lender pursuant to Section 12(a) of the applicable
Facility Agreement (and from time to time thereafter upon the request of the
Borrower or the Agent, but only for so long as such Non-U.S. Lender is legally
entitled to do so), either (1)(x) two (2) duly completed copies of either (A)
IRS Form W-8BEN (or, if delivered on or before December 31, 1999, IRS Form
1001), or (B) IRS Form W-8ECI (or, if delivered on or before December 31, 1999,
IRS Form 4224), or in either case an applicable successor form, and (y) for
periods prior to January 1, 2000, a duly completed copy of IRS Form W-8 or W-9
or applicable successor form; or (2) in the case of a Non-U.S. Lender that is
not legally entitled to deliver either form listed in clause (vi)(1)(x), (x) a
certificate of a duly authorized officer of such Non-U.S. Lender to the effect
that such Non-U.S. Lender is not (A) a "bank" within the meaning of Section
881(c)(3)(A) of the Code, (B) a "10 percent shareholder" of any Guarantor within
the meaning of Section 881(c)(3)(B) of the Code, or (C) a controlled foreign
corporation receiving interest from a related person within the meaning of
Section 881(c)(3)(C) of the Code (such certificate, an "EXEMPTION CERTIFICATE")
and (y) two (2) duly completed copies of IRS Form W-8BEN or applicable successor
form. Each such Lender further agrees to deliver to the Borrower and the Agent
from time to time a true and accurate certificate executed in duplicate by a
duly authorized officer of such Lender in a form satisfactory to the Borrower
and the Agent, before or promptly upon the occurrence of any event requiring a
change
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in the most recent certificate previously delivered by it to the Borrower and
the Agent pursuant to this Section 17(A)(vi). Further, each Lender which
delivers a form or certificate pursuant to this clause (vi) covenants and agrees
to deliver to the Borrower and the Agent within fifteen (15) days prior to the
expiration of such form, for so long as this Guaranty is still in effect,
another such certificate and/or two (2) accurate and complete original
newly-signed copies of the applicable form (or any successor form or forms
required under the Code or the applicable regulations promulgated thereunder).
Each Lender shall promptly furnish to the Borrower and the Agent such
additional documents as may be reasonably required by any Guarantor or the Agent
to establish any exemption from or reduction of any Taxes or Other Taxes
required to be deducted or withheld and which may be obtained without undue
expense to such Lender. Notwithstanding any other provision of this Section
17(A), no Guarantor shall be obligated to gross up any payments to any Lender
pursuant to Section 17(A)(i), or to indemnify any Lender pursuant to Section
17(A)(iii), in respect of United States federal withholding taxes to the extent
imposed as a result of (x) the failure of such Lender to deliver to the Borrower
the form or forms and/or an Exemption Certificate, as applicable to such Lender,
pursuant to Section 17(A)(vi), (y) such form or forms and/or Exemption
Certificate not establishing a complete exemption from U.S. federal withholding
tax or the information or certifications made therein by the Lender being untrue
or inaccurate on the date delivered in any material respect, or (z) the Lender
designating a successor Lending Installation at which it maintains its Advances
which has the effect of causing such Lender to become obligated for tax payments
in excess of those in effect immediately prior to such designation; provided,
however, that the applicable Guarantor shall be obligated to gross up any
payments to any such Lender pursuant to Section 17(A)(i), and to indemnify any
such Lender pursuant to Section 17(A)(iii), in respect of United States federal
withholding taxes if (x) any such failure to deliver a form or forms or an
Exemption Certificate or the failure of such form or forms or exemption
certificate to establish a complete exemption from U.S. federal withholding tax
or inaccuracy or untruth contained therein resulted from a change in any
applicable statute, treaty, regulation or other applicable law or any
interpretation of any of the foregoing occurring after the date hereof, which
change rendered such Lender no longer legally entitled to deliver such form or
forms or Exemption Certificate or otherwise ineligible for a complete exemption
from U.S. federal withholding tax, or rendered the information or the
certifications made in such form or forms or Exemption Certificate untrue or
inaccurate in any material respect, (y) the redesignation of the Lender's
Lending Installation was made at the request of the Borrower or (z) the
obligation to gross up payments to any such Lender pursuant to Section 17(A)(i),
or to indemnify any such Lender pursuant to Section 17(A)(iii), is with respect
to a Purchaser that becomes a Purchaser as a result of an assignment made at the
request of the Borrower.
(vii) Upon the request, and at the expense of the Borrower, each Lender to
which any Guarantor is required to pay any additional amount pursuant to this
Section 17(A), shall reasonably afford the applicable Guarantor the opportunity
to contest, and shall reasonably cooperate with the applicable Guarantor in
contesting, the imposition of any Tax giving rise to such payment; provided,
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that (i) such Lender shall not be required to afford the applicable Guarantor
the opportunity to so contest unless the applicable Guarantor shall have
confirmed in writing to such Lender its obligation to pay such amounts pursuant
to this Guaranty; and (ii) the Borrower shall reimburse such Lender for its
reasonable attorneys' and accountants' fees and disbursements incurred in so
cooperating with the applicable Guarantor in contesting the imposition of such
Tax; provided, however, that notwithstanding the foregoing, no Lender shall be
required to afford any Guarantor the opportunity to contest, or cooperate with
the applicable Guarantor in contesting, the imposition of any Taxes, if such
Lender in good faith determines that to do so would have an adverse effect on
it.
(B) Expenses of Enforcement, Etc. After the occurrence of an Event of
Default under the 5-Year Facility Agreement, the 5-Year CLO Lenders shall have
the right at any time, and, after the occurrence of an Event of Default under
the 364-Day Facility Agreement, the 364-Day CLO Lenders shall have the right at
any time to direct the Agent to commence enforcement proceedings with respect to
the Guaranteed Obligations. The Guarantors agree to reimburse the Agent and the
Holders of Obligations for any reasonable costs, internal charges and
out-of-pocket expenses (including reasonable attorneys' fees and time charges of
attorneys for the Agent and the Holders of Obligations, which attorneys may be
employees of the Agent or the Holders of Obligations) paid or incurred by the
Agent or any Holders of Obligation in connection with the collection and
enforcement of amounts due under the Facility Loan Documents, including without
limitation this Guaranty. The Agent agrees to distribute payments received from
any of the Guarantors hereunder to the Holders of Obligations on a pro rata
basis for application in accordance with the terms of the respective Facility
Agreements.
SECTION 18. Setoff. At any time after all or any part of the Guaranteed
Obligations have become due and payable (by acceleration or otherwise), each
Holder of Obligations and the Agent may, without notice to any Guarantor and
regardless of the acceptance of any security or collateral for the payment
hereof, appropriate and apply toward the payment of all or any part of the
Guaranteed Obligations then due (i) any indebtedness due or to become due from
such Holder of Obligations or the Agent to any Guarantor, and (ii) any moneys,
credits or other property belonging to any Guarantor, at any time held by or
coming into the possession of such Holder of Obligations or the Agent or any of
their respective affiliates.
SECTION 19. Financial Information. Each Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of the
Borrower and its Subsidiaries and any and all endorsers and/or other Guarantors
of all or any part of the Guaranteed Obligations, and of all other circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations, or any part
thereof, that diligent inquiry would reveal, and each Guarantor hereby agrees
that none of the Holders of Obligations or the Agent shall have any duty to
advise such Guarantor of information known to any of them regarding such
condition or any such circumstances. In the event any Holder of Obligations or
the Agent, in its sole discretion, undertakes at any time or from time to time
to provide any such information to a Guarantor, such Holder of Obligations or
such Agent shall be
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under no obligation (i) to undertake any investigation not a part of its regular
business routine, (ii) to disclose any information which such Holder of
Obligations or such Agent, pursuant to accepted or reasonable commercial finance
or banking practices, wishes to maintain confidential or (iii) to make any other
or future disclosures of such information or any other information to such
Guarantor.
SECTION 20. Severability. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SECTION 21. Merger. This Guaranty represents the final agreement of each of
the Guarantors with respect to the matters contained herein and may not be
contradicted by evidence of prior or contemporaneous agreements, or subsequent
oral agreements, between the Guarantor and any Holder of Obligations or the
Agent.
SECTION 22. Headings. Section headings in this Guaranty are for convenience
of reference only and shall not govern the interpretation of any provision of
this Guaranty.
[Remainder of this page intentionally blank]
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IN WITNESS WHEREOF, each of the Guarantors has caused this Guaranty to be
duly executed by its authorized officer as of the day and year first above
written.
PECHINEY NORTH AMERICA, INC.
By: Xxxxxx X. Xxxx
Its: Treasurer
AMERICAN NATIONAL CAN COMPANY
By: Xxxxxx X. Xxxx
Its: Vice President and Treasurer
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ANNEX I TO GUARANTY
Reference is hereby made to the Guaranty (the "GUARANTY") made as of the
22nd day of July, 1999 by Pechiney North America, Inc., a Delaware corporation,
and American National Can Borrower, a Delaware corporation (collectively, the
"INITIAL GUARANTORS" and along with any other Subsidiaries of the Borrower which
have become parties thereto and together with the undersigned, the "GUARANTORS")
in favor of the Agent, for the ratable benefit of the Holders of Obligations,
under the Facility Agreements. Capitalized terms used herein and not defined
herein shall have the meanings given to them in the Guaranty. By its execution
below, the undersigned [NAME OF NEW GUARANTOR], a [corporation] [partnership]
[limited liability company], agrees to become, and does hereby become, a
Guarantor under the Guaranty and agrees to be bound by such Guaranty as if
originally a party thereto. By its execution below, the undersigned represents
and warrants as to itself that all of the representations and warranties
contained in Section 2 of the Guaranty are true and correct in all respects as
of the date hereof.
IN WITNESS WHEREOF, [NAME OF NEW GUARANTOR], a [corporation] [partnership]
[limited liability company] has executed and delivered this Annex I counterpart
to the Guaranty as of this __________ day of _________, ____.
[NAME OF NEW GUARANTOR]
By:___________________________________________
Title:________________________________________
