EXHIBIT 10.4
CORPORATE GUARANTY
Date: 5/20 , 1994
-------------- --
General Electric Capital Corporation
00-0 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
To induce you to enter into, purchase or otherwise acquire, now or at
any time hereafter, any promissory notes, security agreements, chattel
mortgages, pledge agreements, conditional sale contracts, lease agreements,
and/or any other documents or instruments evidencing, or relating to, any lease,
loan, extension of credit or other financial accommodation (collectively
"Account Documents" and each an "Account Document") to Continental Plastic
Containers, Inc., a corporation organized and existing under the laws of the
State of Delaware ("Customer"), but without in any way binding you to do so, the
undersigned, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, does hereby guarantee to you, your successors and
assigns, the due regular and punctual payment of any sum or sums of money which
the Customer may owe to you now or at any time hereafter, whether evidenced by
an Account Document, on open account or otherwise, and whether it represents
principal, interest, rent, late charges, indemnities, an original balance, an
accelerated balance, liquidated damages, a balance reduced by partial payment, a
deficiency after sale or other disposition of any leased equipment, collateral
or security, or any other type of sum of any kind whatsoever that the Customer
may owe to you now or at any time hereafter, and does hereby further guarantee
to you, your successors and assigns, the due, regular and punctual performance
of any other duty or obligation of any kind or character whatsoever that the
Customer may owe to you now or at any time hereafter (all such payment and
performance obligations being collectively referred to as "Obligations").
Undersigned does hereby further guarantee to pay upon demand all losses, costs,
attorneys' fees and expenses which may be suffered by you by reason of
Customer's default or default of the undersigned.
This Guaranty is a guaranty of prompt payment and performance (and
not merely a guaranty of collection). Nothing herein shall require you to first
seek or exhaust any remedy against the Customer, its successors and assigns, or
any other person obligated with respect to the Obligations, or to first
foreclose,
exhaust or otherwise proceed against any leased equipment, collateral or
security which may be given in connection with the Obligations. It is agreed
that you may, upon any breach or default of the Customer, or at any time
thereafter, make demand upon the undersigned and receive payment and performance
of the Obligations, with or without notice or demand for payment or performance
by the Customer, its successors or assigns, or any other person. Suit may be
brought and maintained against the undersigned, at your election, without
joinder of the Customer or any other person as parties thereto. The obligations
of each signatory to this Guaranty shall be joint and several.
The undersigned agrees that its obligations under this Guaranty shall
be primary, absolute, continuing and unconditional, irrespective of and
unaffected by any of the following actions or circumstances (regardless of any
notice to or consent of the undersigned): (a) the genuineness, validity,
regularity and enforceability of the Account Documents or any other document;
(b) any extension, renewal, amendment, change, waiver or other modification of
the Account Documents or any other document; (c) the absence of, or delay in,
any action to enforce the Account Documents, this Guaranty or any other
document; (d) your failure or delay in obtaining any other guaranty of the
Obligations (including, without limitation, your failure to obtain the
signature of any other guarantor hereunder); (e) the release of, extension of
time for payment or performance by, or any other indulgence granted to the
Customer or any other person with respect to the Obligations by operation of law
or otherwise; (f) the existence, value, condition, loss, subordination or
release (with or without substitution) of, or failure to have title to or
perfect and maintain a security interest in, or the time, place and manner of
any sale or other disposition of any leased equipment, collateral or security
given in connection with the Obligations, or any other impairment (whether
intentional or negligent, by operation of law or otherwise) or the rights of the
undersigned; (g) the Customer's voluntary or involuntary bankruptcy, assignment
for the benefit of creditors, reorganization, or similar proceedings affecting
the Customer or any of its assets; or (h) any other action or circumstances
which might otherwise continue a legal or equitable discharge or defense of a
surety or guarantor.
This Guaranty may be terminated upon delivery to you (at your address
shown above) of a written termination notice from the undersigned. However, as
to all Obligations (whether matured, unmatured, absolute, contingent or
otherwise) incurred by the Customer prior to your receipt of such written
termination
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notice (and regardless of any subsequent amendment, extension or other
modification which may be made with respect to such Obligations), this Guaranty
shall nevertheless continue and remain undischarged until all such Obligations
are indefeasibly paid and performed in full.
The undersigned agrees that this Guaranty shall remain in full force
and effect or be reinstated (as the case may be) if at any time payment or
performance of any of the Obligations (or any part thereof) is rescinded,
reduced or must otherwise be restored or returned by you, all as though such
payment or performance had not been made. If, by reason of any bankruptcy,
insolvency or similar laws effecting the rights of creditors, you shall be
prohibited from exercising any of your rights or remedies against the Customer
or any other person or against any property, then, as between you and the
undersigned, such prohibition shall be of no force and effect, and you shall
have the right to make demand upon, and receive payment from the undersigned of
all amounts and other sums that would be due to you upon a default with respect
to the Obligations.
Notice of acceptance of this Guaranty and of any default by the
Customer or any other person is hereby waived. Presentment, protest demand, and
notice of protest, demand and dishonor of any of the Obligations, and the
exercise of possessory, collection or other remedies for the Obligations, are
hereby waived. The undersigned warrants that it has adequate means to obtain
from the Customer on a continuing basis financial data and other information
regarding the Customer and is not relying upon you to provide any such data or
other information. Without limiting the foregoing, notice of adverse change in
the Customer's financial condition or of any other fact which might materially
increase the risk of the undersigned is also waived. All settlements,
compromises, accounts stated and agreed balances made in good faith between the
Customer, its successors or assigns, and you shall be binding upon and shall not
affect the liability of the undersigned.
Payment of all amounts now or hereafter owed to the undersigned by
the Customer or any other obligor for any of the Obligations is hereby
subordinated in right of payment to the indefeasible payment in full to you of
all Obligations and is hereby assigned to you as a security therefor. The
undersigned hereby irrevocably and unconditionally waives and relinquishes all
statutory, contractual, common law, equitable and all other claims against the
Customer, any other obligor for any of the Obligations, any collateral therefor,
or any other assets of the
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Customer or any such other obligor, for subrogation, reimbursement,
exoneration, contribution, indemnification, setoff or other recourse in respect
of sums paid or payable to you by the undersigned hereunder, and the
undersigned hereby further irrevocably and unconditionally waives and
relinquishes any and all other benefits which it might otherwise directly or
indirectly receive or be entitled to receive by reason of any amounts paid by,
or collected or due from, it, the Customer or any other obligor for any of the
Obligations, or recovered from any of their respective assets.
THE UNDERSIGNED HEREBY UNCONDITIONALLY WAIVES ITS RIGHT TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS GUARANTY, THE OBLIGATIONS GUARANTEED HEREBY, ANY OF THE RELATED
DOCUMENTS, ANY DEALINGS BETWEEN US RELATING TO THE SUBJECT MATTER HEREOF OR
THEREOF, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN US. THE SCOPE
OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT
MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS).
THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR
IN WRITING, AND SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS GUARANTY, THE OBLIGATIONS GUARANTEED HEREBY, OR ANY
RELATED DOCUMENTS. IN THE EVENT OF LITIGATION, THIS GUARANTY MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
As used in this Guaranty, the word "person" shall include any
individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, or any government or any political
subdivision thereof.
This Guaranty is intended by the parties as a final expression of the
guaranty of the undersigned and is also intended as a complete and exclusive
statement of the terms thereof. No course of dealing, course of performance or
trade usage, nor any paid evidence of any kind, shall be used to supplement or
modify any of the terms hereof. Nor are there any conditions to the full
effectiveness of this Guaranty. This Guaranty and each of its provisions may
only be waived, modified, varied, released, terminated or surrendered, in whole
or in part, by a duly authorized written instrument signed by you. No failure
by you to exercise your rights hereunder shall give rise to any estoppel against
you, or excuse the undersigned from performing hereunder. Your waiver of any
right to demand performance hereunder shall
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not be a waiver of any subsequent or other right to demand performance
hereunder.
This Guaranty shall bind the undersigned's successors and assigns and
the benefits thereof shall extend to and include your successors and assigns.
In the event of default hereunder, you may at any time inspect undersigned's
records, or at your option, undersigned shall furnish you with a current
independent audit report.
If any provisions of this Guaranty are in conflict with any applicable
statute, rule or law, then such provisions shall be deemed null and void to the
extent that they may conflict therewith, but without invalidating any other
provisions hereof.
Each signatory on behalf of a corporate guarantor warrants that he had
authority to sign on behalf of such corporation and by so signing, to bind said
guarantor corporation hereunder.
IN WITNESS WHEREOF, this Guaranty is executed
the day and year above written.
PLASTIC CONTAINERS, INC.
By: /s/Xxx X. Xxxxxxxx
------------------
(Signature)
Title: Asst. Treasurer
-----------------------
(Officer's Title)
ATTEST:/s/Xxxxxxx Xxxxxx
-----------------------------
Secretary/Assistant Secretary
Xxxx Xxxxx hereby certifies that he is the Secretary of Plastic Containers,
Inc., that the persons who signed this Corporate Guaranty are duly elected
officers of Plastic Containers, Inc., and that their signatures are genuine.
/s/Xxxx Xxxxx
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Xxxx Xxxxx
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AMENDMENT NO. 1 TO CORPORATE GUARANTY
THIS AMENDMENT NO. 1 TO CORPORATE GUARANTY is made as of the 17th day of
December, 1996 (the "Amendment"), between GENERAL ELECTRIC CAPITAL CORPORATION
("Lessor") and PLASTIC CONTAINERS, INC. ("Guarantor").
Lessor and Continental Plastic Containers, Inc. ("Lessee") have heretofore
executed that certain Master Lease Agreement dated as of May 20, 1994, as
amended (the "Agreement"), pursuant to which Lessor agreed to lease to Lessee
and Lessee agreed to lease from Lessor the equipment described on Schedules
executed and delivered pursuant thereto. In connection with the Agreement,
Guarantor has heretofore executed that certain Corporate Guaranty dated May 20,
1994 (the "Guaranty"), in favor of Lessor. The Agreement is one of the "Account
Documents" as such term used in the Guaranty.
The parties have concurrently herewith amended the Agreement and desire to
amend the Guaranty, solely to the extent they relate to Schedules executed on or
after the date hereof and which are designated as Series A.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Effective as of the date hereof, the Guaranty, solely to the extent it
relates to Schedules designated as Series A, is hereby amended and modified by
adding the following additional paragraphs:
" The undersigned covenants and agrees that: (a) it will provide to
you: (1) copies of all Forms 10K and 10Q as and when filed by
Guarantor with the Securities and Exchange Commission. If at any time
the undersigned ceases to be a reporting entity under the Securities
Act of 1934, as amended, then the undersigned will deliver to you,
within ninety (90) days of the close of each fiscal year of the
undersigned, the balance sheet and profit and loss statement of the
undersigned, prepared in accordance with generally accepted accounting
principles consistently applied ('GAAP'), certified by a
recognized firm of certified public accountants; (2) within sixty
(60) days after the end of each fiscal quarter of the undersigned, an
officer's certificate, signed by the President, Vice President,
Controller, Treasurer or Assistant Treasurer, pursuant to which any
one such officer must certify that no Default or event which, with the
giving of notice or the lapse of time, or both, would become a Default
has then occurred hereunder, and that the exhibits attached to such
statement constitute detailed calculations showing compliance with
all financial covenants to which the undersigned is subject pursuant
hereto; and (3) from time to time upon request, such additional
financial information as reasonably may be required by you; and (b) it
will promptly execute and deliver to you such further documents,
instruments and assurances and take such further action as you from
time to time reasonably may request in order to carry out the intent
and purpose of this Guaranty and to establish and protect the rights
and remedies created or intended to be created in your favor
hereunder.
So long as this Guaranty continues and remains undischarged, the
undersigned shall comply: (a) with the provisions of Paragraphs 9
through 12 of Section 6 of that certain Amended and Restated Financing
Agreement dated as of October 30, 1995, as amended as of December 17,
1996 (the 'CIT Financing Agreement'), between the undersigned and The
CIT Group/Business Credit, Inc. ('CITBC'); (b) with the provisions of
Sections 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.18, 4.19, 4.20,
4.21, 4.22 and 4.26 of that certain Indenture dated as of December
17, 1996 (the "Indenture"), among Continental Plastic Containers,
Inc., Continental Caribbean Containers, Inc., United States Trust
Company of New York, as Trustee (the "Trustee"), and the undersigned
with respect to $125,000,000 10% Senior Secured Notes due 2006, Series
A, and 10% Senior Secured Notes due 2006, Series B; and (c) provide to
the Lessor copies of the
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Compliance Certificates described in Section 4.7 of the Indenture at
the same time that such Compliance Certificates are delivered to the
Trustee. Notwithstanding the provisions of the foregoing referenced
Sections, in all events, the undersigned shall maintain, as at the end
of each fiscal quarter on a rolling four (4) fiscal quarter basis
measured during each period specified below, a consolidated Fixed
Charge Coverage Ratio (as hereinafter defined) of the undersigned and
its subsidiaries of at least:
FISCAL PERIOD RATIO
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fiscal quarter ending June 30, 1997 0.85 to 1
fiscal quarter ending September 30, 1997 0.85 to 1
fiscal quarters ending December 31, 1997
through December 31, 1998 1.00 to 1
fiscal quarters ending March 31, 1999
through December 31, 2000 1.10 to 1
fiscal quarter ending March 31, 2001
and each fiscal quarter thereafter 1.20 to 1
As used herein, 'Fixed Charge Coverage' shall have the meaning given
such term in the CIT Financing Agreement as in effect on the date of
execution thereof (without amendment or modification, except to the
extent you expressly consent to such amendment or modification for
the purposes hereof). In addition, the undersigned shall provide to
you a copy of each notice provided by the undersigned to CITBC
pursuant to Paragraph 13 of Section 6 of the CIT Financing Agreement
that contains information not previously furnished to you.
The undersigned shall be deemed to be in default hereunder
('Default') if: (a) it shall fail to perform or observe any covenant,
condition or agreement to be performed or observed by it hereunder and
such failure shall continue unremedied for a period of thirty (30)
days after the earlier of the actual knowledge of the undersigned or
written notice thereof to the undersigned by
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you; or (b) it shall (1) be generally not paying its debts as they
become due, (2) take action for the purpose of invoking the protection
of any bankruptcy or insolvency law, or any such law is invoked
against or with respect to it or its property, and such petition filed
against it is not dismissed within sixty (60) days; or (c) there is an
anticipatory repudiation of its obligations pursuant to this Guaranty;
or (d) any certificate, statement, representation, warranty or audit
contained herein or heretofore or hereafter furnished with respect to
this Guaranty by or on behalf of the undersigned proving to have been
false in any material respect at the time as of which the facts
therein set forth were stated or certified, or having omitted any
substantial contingent or unliquidated liability or claim against it;
or (e) it shall be in default under any material obligation for
borrowed money, for the deferred purchase price of property or any
lease agreement, and the applicable grace period with respect thereto
shall have expired; or (f) the corporate existence of the undersigned
is terminated and its obligations in connection with this Guaranty are
not assumed by a successor in interest reasonably satisfactory to you;
or (g) Continental Can Company, Inc. sells, disposes of or assigns,
any or all of its interest in, or loses its management control of, the
undersigned.
Upon a Default hereunder, you may, at your option, declare this
Guaranty to be in default by written notice to the undersigned
(without election of remedies), and at any time thereafter, may do any
one or more of the following, all of which are hereby authorized by
the undersigned:
A. declare the Account Document to be in default and thereafter
xxx and recover from the undersigned all liquidated damages,
accelerated rentals and/or other sums
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otherwise recoverable from Customer under the Account Document; and/or
B. recover from the undersigned all damages then or thereafter
incurred by you as a result of such Default; and/or
C. seek specific performance of the obligations of the
undersigned hereunder.
In addition, the undersigned shall be liable for all reasonable
attorneys' fees and other costs and expenses incurred by reason of any
Default or the exercise of your remedies hereunder and/or under the
Account Document. No right or remedy referred to herein is intended
to be exclusive, but each shall be cumulative, and shall be in
addition to any other remedy referred to above or otherwise available
at law or in equity, and may be exercised concurrently or separately
from time to time.
THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT
REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE), INCLUDING
ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. The parties
agree that any action or proceeding arising out of or relating to this
Agreement may be commenced in the United States District Court for the
Southern District of New York.
All notices required to be given hereunder shall be deemed
adequately given if sent by certified mail or personally delivered or
sent by overnight courier, to the addressee at its address stated
herein, or in the Schedules executed pursuant to the Agreement or at
such other place as such addressee may have designated in writing.
Any provision of this Agreement which is prohibited or
unenforceable in any
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jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction."
2. Effective as of the date hereof, the Guaranty solely to the extent it
relates to Schedules designated Series A, is hereby amended and modified by
deleting in its entirety the fourth paragraph from page 1 of the Guaranty.
3. Except as expressly set forth herein, the terms and conditions of the
Guaranty remain unmodified and in full force and effect.
4. Guarantor confirms that the Guaranty remains in full force and effect
and applicable to the Agreement as amended herein and to all Schedules executed
on or after the date hereof and designated as Series A.
5. Guarantor further acknowledges and agrees that the Guaranty is for the
benefit of, and may be enforced by, General Electric Capital Corporation, the
Assignees (as such term is defined in the Agreement) (including, without
limitation, MDFC EQUIPMENT LEASING CORPORATION, MELLON US LEASING, A DIVISION OF
MELLON LEASING CORPORATION, MBC LEASING CORP., NYNEX CREDIT COMPANY, XXXX
XXXXXXX LEASING CORPORATION) and their successors and assigns.
6. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE. The parties agree that any action or proceeding arising out of or
relating to this Amendment may be commenced in the United States District Court
for the Southern District of New York.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to
Corporate Guaranty to be executed by their duly authorized representatives as of
the date first above written.
LESSOR: GUARANTOR:
GENERAL ELECTRIC CAPITAL PLASTIC CONTAINERS, INC.
CORPORATION
By: By:/s/Xxxx Xxxxx
----------------------------- -----------------------------
Name: Name: Xxxx Xxxxx
--------------------------- -----------------------------
Title: Title: Vice President
-------------------------- -----------------------------
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AMENDMENT NO. 2 TO CORPORATE GUARANTY
THIS AMENDMENT NO. 2 TO CORPORATE GUARANTY is made as of the 17th day of
December, 1996 (the "Amendment"), between GENERAL ELECTRIC CAPITAL CORPORATION
("Lessor") and PLASTIC CONTAINERS, INC. ("Guarantor").
Lessor and Continental Plastic Containers, Inc. ("Lessee") have heretofore
executed that certain Master Lease Agreement dated as of May 20, 1994, as
amended (the "Agreement"), pursuant to which Lessor agreed to lease to Lessee
and Lessee agreed to lease from Lessor the equipment described on Schedules
executed and delivered pursuant thereto. In connection with the Agreement,
Guarantor has heretofore executed that certain Corporate Guaranty dated May 20,
1994 (the "Guaranty"), in favor of Lessor. The Agreement is one of the "Account
Documents" as such term used in the Guaranty.
The parties have concurrently herewith amended the Agreement and desire to
amend the Guaranty, solely to the extent they relate to Schedules executed on or
after the date hereof and which are designated as Series A.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Effective as of the date hereof, the Guaranty is hereby amended and
modified by adding the following additional paragraph:
"To secure the performance as and when due of all obligations of the
undersigned to you, now existing or hereafter arising hereunder, the
undersigned hereby grants to you a 'silent' second priority security
interest in that certain Promissory Note of Continental Can Company,
Inc. payable to Plastic Containers, Inc. in the original principal
amount of Thirty Million Dollars ($30,000,000) due June 15, 2007,
bearing interest at the rate of 6.66 percent per annum, providing for
the payment of principal and interest upon maturity (the 'Continental
Can Note'), together with the proceeds (both cash and non-cash)
thereof (but without the undersigned having a
power of sale); and the undersigned shall execute and deliver to you
such documents and instruments as you reasonably may require to
perfect the security interest granted herein. You acknowledge that the
security interest granted to you with respect to the Continental Can
Note is subject and subordinate in all respects to the security
interest granted to United States Trust Company of New York, in its
capacity as trustee (the 'Trustee'), under that certain Indenture
dated as of December 17, 1996, among the Continental Plastic
Containers, Continental Caribbean Containers, the Trustee and the
undersigned. You agree that you shall not take any enforcement action
or exercise any remedies hereunder in respect of the Continental Can
Note unless you have received a notice from the Trustee that all of
the obligations of the Account Party and the other parties under the
Indenture and related documents have been satisfied in full."
2. Except as expressly set forth herein, the terms and conditions of the
Guaranty remain unmodified and in full force and effect.
3. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE. The parties agree that any action or proceeding arising out of or
relating to this Amendment may be commenced in the United States District Court
for the Southern District of New York.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to
Corporate Guaranty to be executed by their duly authorized representatives as
of the date first above written.
LESSOR: GUARANTOR:
GENERAL ELECTRIC CAPITAL PLASTIC CONTAINERS, INC.
CORPORATION
By: By:/s/Xxxx Xxxxx
----------------------------- -----------------------------
Name: Name: Xxxx Xxxxx
--------------------------- -----------------------------
Title: Title: Vice President
-------------------------- -----------------------------
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