EXHIBIT 99.4
BORROWERS/SUBSIDIARIES GUARANTY
GUARANTY, dated as of July 29, 1997 (as amended, modified or
supplemented from time to time, this "Guaranty"), made by each of the
undersigned guarantors (each, a "Guarantor" and, together with any other entity
that becomes a guarantor hereunder pursuant to Section 25 hereof, the
"Guarantors"). 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, Silgan Holdings Inc. ("Silgan"), Silgan Containers
Corporation ("Containers"), Silgan Plastics Corporation ("Plastics"), each other
Revolving Borrower (together with Silgan, Containers and Plastics, the
"Borrowers," and each individually, a "Borrower"), the lenders from time to time
party thereto (each a "Bank" and, collectively, the "Banks"), Bankers Trust
Company, as Administrative Agent (in such capacity and together with any
successor administrative agent, the "Administrative Agent"), Bank of America
National Trust & Savings Association, as Syndication Agent, Xxxxxxx Xxxxx Credit
Partners L.P. and Xxxxxx Xxxxxxx Senior Funding, Inc., as Co-Documentation
Agents, and Bank of America National Trust & Savings Association, Bankers Trust
Company, Xxxxxxx Sachs Credit Partners L.P. and Xxxxxx Xxxxxxx Senior Funding,
Inc., as Co-Arrangers (in such capacity, the "Co-Arrangers"), have entered into
a Credit Agreement, dated as of July 29, 1997 (as amended, modified or
supplemented from time to time, the "Credit Agreement"), providing for the
making of Loans to, and the issuance of Letters of Credit for the account of,
the Borrowers as contemplated therein (the Banks, the Administrative Agent, the
Collateral Agent and the Co-Arrangers are collectively referred to herein as the
"Bank Creditors");
WHEREAS, one or more of the Borrowers are, or may from time to
time in the future be, party to one or more Interest Rate Protection Agreements
with any Bank or an affiliate of a Bank (each such Bank or affiliate, even if
the respective Bank subsequently ceases to be a Bank under the Credit Agreement
for any reason, together with such Bank's or affiliate's successors and assigns,
are herein called the "Other Creditors", and together with the Bank Creditors,
the "Secured Creditors");
WHEREAS, each Guarantor (other than Silgan) is a Subsidiary of
Silgan;
WHEREAS, it is a condition precedent to the making of Loans to
each Borrower and the issuance of Letters of Credit for the account of each
Revolving Borrower under the Credit Agreement that each Guarantor shall have
executed and delivered this Guaranty; and
WHEREAS, each Guarantor will obtain benefits from the
incurrence of Loans and the issuance of Letters of Credit under the Credit
Agreement and the entering into of Interest Rate Protection Agreements and,
accordingly, desires to execute this Guaranty in order to satisfy the conditions
described in the preceding paragraph and to induce the Banks to make the Loans
and issue (and/or participate in) the Letters of Credit under the Credit
Agreement and to induce the Other Creditors to enter into the Interest Rate
Protection Agreements;
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to each Guarantor, the receipt and sufficiency of which are
hereby acknowledged, each Guarantor hereby makes the following representations
and warran-ties to the Secured Creditors and hereby covenants and agrees with
each Secured Creditor as follows:
1. Each Guarantor, jointly and severally, and absolutely
irrevocably and unconditionally, guarantees: (i) to the Bank 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 Notes issued by, and the
Loans made to, each Borrower under the Credit Agreement, and all reimbursement
obligations and Unpaid Drawings with respect to Letters of Credit issued under
the Credit Agreement and (y) all other obligations (including obligations which,
but for the automatic stay under Section 362(a) of the Bankruptcy Code, would
become due) and liabilities owing by each Borrower to the Bank Creditors under
the Credit Agreement (including, without limitation, indemnities, Fees and
interest thereon) and the other Credit Documents to which such Borrower is a
party, whether now existing or hereafter incurred under, arising out of or in
connection with the Credit Agreement and each such other Credit Document and the
due performance and compliance by each Borrower with all of the terms and
conditions of the Credit Agreement and each such other Credit Document (all such
principal, interest, liabilities and obligations under this clause (i) being
herein collectively called the "Credit Document Obligations"); and (ii) to each
Other Creditor 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 each Borrower to
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each such Other Creditor under any Interest Rate Protection Agreements, whether
now in existence or hereafter arising, and the due performance and compliance by
each Borrower with all terms, conditions and agreements contained therein (all
such obligations and liabilities under this clause (ii) being herein
collectively called the "Other Obligations", and together with the Credit
Document Obligations, are herein collectively called the "Guaranteed
Obligations"). Each Guarantor understands, agrees and confirms that the Secured
Creditors may enforce this Guaranty up to the full amount of the Guaranteed
Obligations against each Guarantor without proceeding against any other
Guarantor, any Borrower, against any security for the Guaranteed Obligations, or
under any other guaranty covering all or a portion of the Guaranteed
Obligations. All payments by each Guarantor under this Guaranty shall be made on
the same basis as payments are made by the Borrowers under Sections 4.03 and
4.04 of the Credit Agreement. For purposes of this Guaranty, the term
"Guarantor" as applied to any Borrower shall refer to such Borrower as a
guarantor of indebtedness incurred by the other Borrowers, as opposed to
indebtedness directly incurred by it. This Guaranty constitutes a guaranty of
payment, and not of collection.
2. Additionally, each Guarantor, jointly and severally, and
absolutely, unconditionally and irrevocably, guarantees the payment of any and
all Guaranteed Obligations of each Borrower thereof to the Secured Creditors
whether or not due or payable by such Borrower upon the occurrence in respect of
such Borrower of any of the events specified in Section 9.05 of the Credit
Agreement, and absolutely, unconditionally and irrevocably, and jointly and
severally, promises to pay such Guaranteed Obligations to the Secured Creditors,
or to their order, on demand, in lawful money of the United States.
3. The liability of each Guarantor hereunder is exclusive and
independent of any security for or other guaranty of the Guaranteed Obligations
of any Borrower whether executed by such Guarantor, any other Guarantor, any
other guarantor or by any other party, and the liability of each Guarantor
hereunder shall not be affected or impaired by (a) any direction as to
application of payment by any 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 of any Borrower, (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 any
Borrower or (e) any payment made to any Secured Creditor on the Guaranteed
Obligations which any Secured Creditor repays any Borrower pursuant to court
order in any bankruptcy, reorganization, arrangement, moratorium or other debtor
relief proceeding, and each Guarantor waives any right to the deferral or
modification of its obligations hereunder by reason of any such proceeding.
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4. The obligations of each Guarantor hereunder are independent
of the obligations of any other Guarantor, any other guarantor or any Borrower,
and a separate action or actions may be brought and prosecuted against each
Guarantor whether or not action is brought against any other Guarantor, any
other guarantor or any Borrower and whether or not any other Guarantor, any
other guarantor of any Borrower or any Borrower be joined in any such action or
actions. Any payment by a Borrower or other circumstance which operates to toll
any statute of limitations as to such Borrower shall operate to toll the statute
of limitations as to each Guarantor.
5. Any Secured Creditor may (except as shall be required by
applicable statute and cannot be waived) at any time and from time to time
without the consent of, or notice to, any Guarantor (in its capacity as
Guarantor), without incurring responsibility to such Guarantor, without
impairing or releasing the obligations of such 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, increase, accelerate or
alter, any of the Guaranteed Obligations, 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) sell, exchange, release, impair, 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;
(c) exercise or refrain from exercising any rights against any
Borrower, any other Credit Party or otherwise act or refrain from
acting;
(d) 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 any Borrower to
creditors of such Borrower other than the Secured Creditors;
(e) apply any sums by whomsoever paid or howsoever realized to
any liability or liabilities of any Borrower to the Secured Creditors
regardless of what liabilities of such Borrower remain unpaid;
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(f) consent to or waive any breach of, or any act, omission or
default under, any of the Interest Rate Protection Agreements, the
Credit Documents or any of the instruments or agreements referred to
therein, or otherwise amend, modify or supplement any of the Interest
Rate Protection Agreements, the Credit Documents or any of such other
instruments or agreements; and/or
(g) act or fail to act in any manner referred to in this
Guaranty which may deprive such Guarantor of its right to subrogation
against any Borrower to recover full indemnity for any payments made
pursuant to this Guaranty.
6. 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 of the Guaranteed
Obligations.
7. 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 any Secured Creditor in exercising any right, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single 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 any Secured Creditor would otherwise
have. No notice to or demand on any Guarantor in any case shall entitle such
Guarantor to any other further notice or demand in similar or other
circumstances or constitute a waiver of the rights of any Creditor to any other
or further action in any circumstances without notice or demand. It is not
necessary for any Secured Creditor to inquire into the capacity or powers of any
Guarantor or any Borrower or the officers, directors, partners or agents acting
or purporting to act on its behalf, in connection with the execution of the
Credit Documents, and any indebtedness made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder.
8. Any indebtedness of any Borrower now or hereafter held by
any Guarantor is hereby subordinated to the indebtedness of such Borrower to the
Secured Creditors; and such indebtedness of such Borrower to any Guarantor, if
the Administrative Agent or the Collateral Agent, after an Event of Default has
occurred and is continuing, so requests, shall be collected, enforced and
received by such Guarantor as trustee for the Secured Creditors and be paid over
to the Secured Creditors on account of the indebtedness of such Borrower to the
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Secured Creditors, but without affecting or impairing in any manner the
liability of such Guarantor under the other provisions of this Guaranty. Prior
to the transfer by any Guarantor of any note or negotiable instrument evidencing
any indebtedness of any Borrower to such 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, each
Guarantor hereby agrees with the Secured 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 Section 509 of the Bankruptcy Code or
otherwise) until all Guaranteed Obligations have been irrevocably paid in full
in cash.
9. (a) Each Guarantor waives any right (except as shall be required
by applicable statute or law and cannot be waived) to require the Secured
Creditors to: (i) proceed against any Borrower, any other Guarantor, any other
guarantor of any Borrower or any other party; (ii) proceed against or exhaust
any security held from any Borrower, any other Guarantor, any other guarantor of
any Borrower or any other party; or (iii) pursue any other remedy in the Secured
Creditors' power whatsoever. Each Guarantor waives (to the fullest extent
permitted by applicable law) any defense based on or arising out of any defense
of any Borrower, any other Guarantor, any other guarantor of any Borrower, any
Subsidiary thereof 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 any Borrower, any other Guarantor, any other
guarantor of the Guaranteed Obligations or any other party, or the
unenforceability of the Guaranteed Obligations or any part thereof for any
reason. The Secured Creditors may, at their election, foreclose on any security
held by the Administrative Agent, the Collateral Agent or the other Secured
Creditors by one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable, or exercise any other right
or remedy the Secured Creditors may have against any Borrower or any other
party, or any security, without affecting or impairing in any way the liability
of any Guarantor hereunder except to the extent the Guaranteed Obligations have
been paid in full. Each Guarantor waives any defense arising out of any such
election by the Secured Creditors, even though such election operates to impair
or extinguish any right of reimbursement or subrogation or other right or remedy
of such Guarantor against any Borrower or any other party or any security.
(b) Each Guarantor hereby waives (to the fullest extent
permitted by applicable law) promptness, diligence, presentment, demands for
payment or performance, protests and notices, including, without limitation,
notices of nonpayment or nonperformance, notices of protest, notices of
dishonor, notices of acceptance of this Guaranty, notices of any liability to
which it may apply, notices of the existence, creation or incurring of new or
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additional indebtedness, notices of suit or taking of other action by the
Administrative Agent or any other Secured Creditor against, and any other notice
to, any party liable thereon (including such Guarantor or any other guarantor or
any Borrower). Each Guarantor assumes all responsibility for being and keeping
itself informed of each 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 such Guarantor
assumes and incurs hereunder, and agrees that the Secured Creditors shall have
no duty to advise any Guarantor of information known to them regarding such
circumstances or risks.
(c) Each Guarantor hereby acknowledges, affirms and
understands that to the extent the Guaranteed Obligations are secured by Real
Property located in the State of California, each Guarantor shall be liable for
the full amount of the liability hereunder notwithstanding the foreclosure on
such Real Property by trustee sale or any other reason impairing such
Guarantor's or any Secured Creditor's right to proceed against any Borrower, any
other Guarantor or any other guarantor of the Guaranteed Obligations. In
accordance with Section 2856 of the California Civil Code, each Guarantor hereby
waives:
(i) all rights of subrogation, reimbursement, indemnification,
and contribution and any other rights and defenses that are or may
become available to such Guarantor by reason of Sections 2787 to 2855,
inclusive, 2899 and 3433 of the California Civil Code;
(ii) all rights and defenses that such Guarantor may have
because the Guaranteed Obligations are secured by Real Property located
in the State of California. This means, among other things: (A) the
Secured Creditors may collect from any Guarantor without first
foreclosing on any real or personal property collateral pledged by any
Borrower; and (B) if the Secured Creditors foreclose on any Real
Property collateral pledged by any Borrower, (1) the amount of the
Guaranteed Obligations may be reduced only by the price for which that
collateral is sold at the foreclosure sale, even if the collateral is
worth more than the sale price, and (2) the Secured Creditors may
collect from any Guarantor even if the Secured Creditors, by
foreclosing on the Real Property collateral, have destroyed any right
such Guarantor may have to collect from any Borrower. This is an
unconditional and irrevocable waiver of any rights and defenses each
Guarantor may have because the Guaranteed Obligations are secured by
Real Property. These rights and defenses include, but are not limited
to, any rights or defenses based upon Section 580a, 580b, 580d or 726
of the California Code of Civil Procedure; and
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(iii) all rights and defenses arising out of an election of
remedies by the Secured Creditors, even though that election of
remedies, such as a nonjudicial foreclosure with respect to security
for the Guaranteed Obligations, has destroyed any Guarantor's rights of
subrogation and reimbursement against any Borrower by the operation of
Section 580d of the California Code of Civil Procedure or otherwise.
Each Guarantor warrants and agrees that each of the waivers set forth above is
made with full knowledge of its significance and consequences and that if any of
such waivers is determined to be contrary to any applicable law or public
policy, such waivers shall be effective only to the maximum extent permitted by
law.
10. The Secured Creditors agree that this Guaranty may be enforced
only by the action of the Administrative Agent or the Collateral Agent, in each
case acting upon the instructions of the Required Secured Creditors (as defined
in the Security Agreement) and that no other Secured Creditor shall have any
right individually to seek to enforce or to enforce this Guaranty or to realize
upon the security to be granted by the Security Documents, it being understood
and agreed that such rights and remedies may be exercised by the Administrative
Agent or the Collateral Agent for the benefit of the Secured Creditors upon the
terms of this Guaranty and the Security Documents. The Secured Creditors further
agree that this Guaranty may not be enforced against any director, officer,
employee, member or stockholder of any Guarantor (except to the extent such
member or stockholder is also a Guarantor hereunder).
11. In order to induce the Banks to make Loans and issue or
participate in Letters of Credit pursuant to the Credit Agreement, and in order
to induce the Other Creditors to execute, deliver and perform the Interest Rate
Protection Agreements, each Guarantor represents, warrants and covenants (as to
itself and each of its Subsidiaries), in each case after giving effect to the
refinancing of the Existing Credit Agreement, that:
(a) Such 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, (ii) 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
(iii) is duly qualified as a foreign corporation and is in good
standing in each jurisdiction where the ownership, leasing or operation
of property or the conduct of its business requires such qualification,
except in the jurisdictions where the failure to be so qualified could
not reasonably be expected to, individually or in the aggregate, have a
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material adverse effect on the business, operations, property, assets
or condition (financial or otherwise) of Silgan and its Subsidiaries
taken as a whole.
(b) Such Guarantor has the corporate power and authority to
execute, deliver and carry out the terms and provisions of this
Guaranty and each other Credit Document to which it is a party and has
taken all necessary corporate action to authorize the execution,
delivery and performance by it of each such Credit Document. Such
Guarantor has duly executed and delivered this Guaranty and each other
Credit Document to which it is a party and each such Credit Document
constitutes the legal, valid and binding obligation of such Guarantor
enforceable in accordance with its terms, except to the extent that the
enforceability hereof or thereof may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting
creditors' rights generally and by equitable principles (regardless of
whether enforcement is sought in equity or at law).
(c) Neither the execution, delivery or performance by such
Guarantor of this Guaranty or any other Credit Document to which it is
a party, nor compliance by it with any of the terms and provisions
hereof or thereof (i) will contravene any applicable provision of any
law, statute, rule or regulation, or any order, writ, injunction or
decree of any court or governmental instrumentality, (ii) will conflict
or be inconsistent with 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 (except pursuant to the Security Documents) upon
any of the property or assets of such Guarantor or any of its
Subsidiaries pursuant to the terms of any indenture, mortgage, deed of
trust, credit agreement, loan agreement or any other agreement,
contract or instrument to which such Guarantor or any of its
Subsidiaries is a party or by which it or any of its property or assets
is bound or to which it may be subject or (iii) will violate any
provision of the certificate of incorporation or by-laws (or equivalent
organizational documents) of such Guarantor or any of its Subsidiaries.
(d) No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except as
have been obtained or made and except for any filings of financing
statements, mortgages and other documents required by the Security
Documents, all of which have been made), or exemption by, any
governmental or public body or authority, or any subdivision thereof,
is required to authorize, or is required in connection with, (i) the
execution, delivery and performance of this Guaranty or any other
Credit Document to which such Guarantor is a party or (ii) the
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legality, validity, binding effect or enforceability of this Guaranty
or any other Credit Document to which such Guarantor is a party.
(e) There are no actions, suits, investigations or proceedings
pending or, to the best knowledge of such Guarantor, threatened (i)
with respect to any Credit Document or (ii) that are reasonably likely
to materially and adversely affect the business, operations, property,
assets or condition (financial or otherwise) of Silgan and its
Subsidiaries taken as a whole.
12. Each Guarantor covenants and agrees that on and after the date
hereof and until the termination of the Total Commitment and all Interest Rate
Protection Agreements entitled to the benefits of the Guaranty and when no Note
or Letter of Credit remains outstanding and all Guaranteed Obligations have been
paid in full (other than indemnities described in Section 12.13 of the Credit
Agreement and analogous provisions in the Security Documents which are not then
due and payable), such Guarantor shall take, or will refrain from taking, as the
case may be, all actions that are necessary to be taken or not taken so that no
violation of any provision, covenant or agreement contained in Section 7 or 8 of
the Credit Agreement, and so that no Default or Event of Default, is caused by
the actions of such Guarantor or any of its Subsidiaries.
13. The Guarantors hereby jointly and severally agree to pay all
reasonable out-of-pocket costs and expenses of each Secured Creditor in
connection with the enforcement of this Guaranty and of the Administrative Agent
and each Co-Arranger in connection with any amendment, waiver or consent
relating hereto (including, without limitation, the reasonable fees and
disbursements of one counsel (including in-house counsel) employed by each of
the Secured Creditors).
14. This Guaranty shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the Secured Creditors
and their successors and assigns, provided that no Guarantor may assign any of
its rights or obligations hereunder, except in accordance with the terms of the
Credit Agreement.
15. Neither this Guaranty nor any provision hereof may be changed,
waived, discharged or terminated, except with the written consent of each
Guarantor directly affected thereby and the Administrative Agent (with the prior
written consent of the Required Secured Creditors); provided, that any change,
waiver, modification or variance affecting the rights and benefits of a single
Class (as defined below) of Secured Creditors (and not all Secured Creditors in
a like or similar manner) shall require the written consent of the Requisite
Creditors (as defined below) of such Class of Secured Creditors (it being
understood that the addition or release of any Guarantor hereunder shall not
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constitute a change, waiver, discharge or termination affecting any Guarantor
other than the Guarantor so added or released). For the purpose of this
Guaranty, the term "Class" shall mean each class of Secured Creditors, i.e.,
whether (x) the Bank Creditors as holders of the Credit Document Obligations or
(y) the Other Creditors as the holders of the Other Obligations. For the purpose
of this Guaranty, the term "Requisite Creditors" of any Class shall mean each of
(x) with respect to the Credit Document Obligations, the Required Banks and (y)
with respect to the Other Obligations, the holders of at least a majority of all
obligations outstanding from time to time under the Interest Rate Protection
Agreements entitled to the benefits of this Guaranty.
16. Each Guarantor acknowledges that an executed (or conformed)
copy of each of the Credit Documents and Interest Rate Protection Agreements
entitled to the benefits of the Guaranty has been made available to its
principal executive officers and such officers are familiar with the contents
thereof.
17. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Creditor Law) and not by way of limitation of any such rights, upon
the occurrence and during the continuance of an Event of Default (such term to
mean and include any "Event of Default" as defined in the Credit Agreement or
any payment default under any Interest Rate Protection Agreement continuing
after any applicable grace period), each Secured Creditor is hereby authorized
at any time or from time to time, without notice to any 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 such Secured Creditor to or for the
credit or the account of such Guarantor, against and on account of the
obligations and liabilities of such Guarantor to such Secured Creditor under
this Guaranty, irrespective of whether or not such Creditor shall have made any
demand hereunder and although said obligations, liabilities, deposits or claims,
or any of them, shall be contingent or unmatured. Notwithstanding anything to
the contrary contained in this Section 17, no Secured Creditor shall exercise
any such right of set-off without the prior consent of the Administrative Agent
or the Required Secured Creditors so long as the Guaranteed Obligations shall be
secured by any Real Property located in the State of California, it being
understood and agreed, however, that this sentence is for the sole benefit of
the Secured Creditors and may be amended, modified or waived in any respect by
the Required Secured Creditors without the requirement of prior notice to or
consent by any Credit Party and does not constitute a waiver of any rights
against any Credit Party or against any Collateral.
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18. 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 any Bank Creditor, as provided in the Credit Agreement, (ii)
in the case of any Guarantor, at c/o Silgan Holdings Inc., 0 Xxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: General Counsel, Telephone
No.: (000) 000-0000, Telecopier No.: (000) 000-0000 and (iii) in the case of any
Other Creditor, at such address as such Other Creditor shall have specified in
writing to the Guarantors; or in any case at such other address as any of the
Persons listed above may hereafter notify the others in writing.
19. If claim is ever made upon any Secured Creditor 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 any Borrower), then and in such event each
Guarantor agrees that any such judgment, decree, order, settlement or compromise
shall be binding upon such Guarantor, notwithstanding any revocation hereof or
other instrument evidencing any liability of any Borrower, and such Guarantor
shall be and remain liable to the aforesaid payees hereunder for the amount so
repaid or recovered to the same extent as if such amount had never originally
been received by any such payee.
20. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE SECURED
CREDITORS AND OF THE UNDERSIGNED 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 or any other Credit Document to which such
Guarantor is a party 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, each Guarantor hereby irrevocably
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. Each Guarantor hereby
further irrevocably waives any claim that any such courts lack jurisdiction over
such Guarantor, and agrees not to plead or claim, in any legal action or
proceeding with respect to this Guaranty or any other Credit Document to which
such Guarantor is a party brought in any of the aforesaid courts, that any such
court lacks jurisdiction over such Guarantor. Each 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
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certified mail, postage prepaid, to each Guarantor at its address set forth
above, such service to become effective 30 days after such mailing. Each
Guarantor hereby irrevocably waives any objection to such service of process and
further irrevocably waives and agrees not to plead or claim in any action or
proceeding commenced hereunder or under any other Credit Document to which such
Guarantor is a party that service of process was in any way invalid or
ineffective. Nothing herein shall affect the right of any of the Secured
Creditors to serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against each Guarantor in any other
jurisdiction.
(b) Each 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 or any other credit document 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.
21. In the event that all of the capital stock of one or more
Guarantors is sold or otherwise disposed of or liquidated in compliance with the
requirements of Section 8.02 of the Credit Agreement (or such sale or other
disposition or liquidation has been approved in writing by the Required Secured
Creditors), upon the consummation of such sale, disposition or liquidation such
Guarantor shall be released from this Guaranty and this Guaranty shall, as to
each such Guarantor or Guarantors, terminate, and have no further force or
effect (it being understood and agreed that the sale of one or more Persons that
own, directly or indirectly, all of the capital stock or other equity interests
of any Guarantor shall be deemed to be a sale of such Guarantor for the purposes
of this Section 21).
22. 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 executed by all
the parties hereto shall be lodged with each Guarantor and the Agent.
23. EACH GUARANTOR AND EACH OF THE SECURED CREDITORS HEREBY
IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY, THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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24. All payments made by any Guarantor hereunder will be made
without setoff, counterclaim or other defense.
25. It is understood and agreed that any Subsidiary of Silgan that
is required to execute a counterpart of this Guaranty after the date hereof
pursuant to the Credit Agreement shall automatically become a Guarantor
hereunder by executing a counterpart hereof and delivering the same to the
Administrative Agent.
26. At any time a payment in respect of the Guaranteed Obligations
is made under this Guaranty, the right of contribution of each Guarantor against
each other Guarantor shall be determined as provided in the immediately
following sentence, with the right of contribution of each Guarantor to be
revised and restated as of each date on which a payment (a "Relevant Payment")
is made on the Guaranteed Obligations under this Guaranty. At any time that a
Relevant Payment is made by a Guarantor that results in the aggregate payments
made by such Guarantor in respect of the Guaranteed Obligations to and including
the date of the Relevant Payment exceeding such Guarantor's Contribution
Percentage (as defined below) of the aggregate payments made by all Guarantors
in respect of the Guaranteed Obligations to and including the date of the
Relevant Payment (such excess, the "Aggregate Excess Amount"), each such
Guarantor shall have a right of contribution against each other Guarantor who
has made payments in respect of the Guaranteed Obligations to and including the
date of the Relevant Payment in an aggregate amount less than such other
Guarantor's Contribution Percentage of the aggregate payments made to and
including the date of the Relevant Payment by all Guarantors in respect of the
Guaranteed Obligations (the aggregate amount of such deficit, the "Aggregate
Deficit Amount") in an amount equal to (x) a fraction the numerator of which is
the Aggregate Excess Amount of such Guarantor and the denominator of which is
the Aggregate Excess Amount of all Guarantors multiplied by (y) the Aggregate
Deficit Amount of such other Guarantors. A Guarantor's right of contribution
pursuant to the preceding sentences shall arise at the time of each computation,
subject to adjustment to the time of any subsequent computation; provided, that
no Guarantor may take any action to enforce such right until the Guaranteed
Obligations have been paid in full and the Total Commitment and all Letters of
Credit and Interest Rate Protection Agreements have been terminated, it being
expressly recognized and agreed by all parties hereto that any Guarantor's right
of contribution arising pursuant to this Section 26 against any other Guarantor
shall be expressly junior and subordinate to such other Guarantor's obligations
and liabilities in respect of the Guaranteed Obligations and any other
obligations owing under this Guaranty. As used in this Section 26: (i) each
Guarantor's "Contribution Percentage" shall mean the percentage obtained by
dividing (x) the Adjusted Net Worth (as defined below) of such Guarantor by (y)
the aggregate Adjusted Net Worth of all Guarantors; (ii) the "Adjusted Net
Worth" of each Guarantor shall mean the greater of (x) the Net Worth (as defined
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below) of such Guarantor and (y) zero; and (iii) the "Net Worth" of each
Guarantor shall mean the amount by which the fair salable value of such
Guarantor's assets on the date of any Relevant Payment exceeds its existing
debts and other liabilities (including contingent liabilities, but without
giving effect to any Guaranteed Obligations arising under this Guaranty) on such
date. All parties hereto recognize and agree that, except for any right of
contribution arising pursuant to this Section 26, each Guarantor who makes any
payment in respect of the Guaranteed Obligations shall have no right of
contribution or subrogation against any other Guarantor in respect of such
payment. Each of the Guarantors recognizes and acknowledges that the rights to
contribution arising hereunder shall constitute an asset in favor of the party
entitled to such contribution. In this connection, each Guarantor has the right
to waive its contribution right against any Guarantor to the extent that after
giving effect to such waiver such Guarantor would remain solvent, in the
reasonable determination of the Required Banks.
27. Each Secured Creditor and each Guarantor hereby confirms that
it is its intention that this Guaranty not constitute a fraudulent transfer or
conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent
Conveyance Act or any similar Federal or state law. To effectuate the foregoing
intention, each Secured Creditor and each Guarantor hereby irrevocably agrees
that the Guaranteed Obligations guaranteed by each Guarantor under this Guaranty
shall be limited to such amount as will, after giving effect to such maximum
amount and all of such Guarantor's other (contingent or otherwise) liabilities
that are relevant under such laws, and after giving effect to any rights to
contribution pursuant to any agreement providing for an equitable contribution
among the Guarantors (including pursuant to Section 26 hereof), result in the
Guaranteed Obligations of such Guarantor in respect of such maximum amount not
constituting a fraudulent transfer or conveyance.
* * *
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to
be executed and delivered as of the date first above written.
SILGAN HOLDINGS INC.,
as a Guarantor
By /s/ Xxxxxx Xxxxxx, Xx.
-------------------------------
Title: Executive Vice President,
Chief Financial Officer and Treasurer
SILGAN CONTAINERS CORPORATION,
as a Guarantor
By /s/ Xxxxxx Xxxxxx, Xx.
-------------------------------
Title: Vice President
SILGAN PLASTICS CORPORATION,
as a Guarantor
By /s/ Xxxxxx Xxxxxx, Xx.
-------------------------------
Title: Vice President
CALIFORNIA-WASHINGTON CAN
CORPORATION, as a Guarantor
By /s/ Xxxxxx Xxxxxx, Xx.
-------------------------------
Title: Vice President
SCCW CAN CORPORATION, as a Guarantor
By /s/ Xxxxxx Xxxxxx, Xx.
-------------------------------
Title: Vice President
BANKERS TRUST COMPANY,
as Administrative Agent for the Banks
By /s/ Xxxxx Xxxxxxx
-------------------------------
Title: Vice President
