SUBSIDIARY GUARANTY
Exhibit
99.3
THIS
SUBSIDIARY GUARANTY, dated as of October 13, 2005 (as amended, restated,
supplemented or otherwise modified from time to time, this “Guaranty”),
is
made by each of the undersigned (each, a “Guarantor”
and,
together with any other entity that becomes a party hereto pursuant to
Section
25
hereof,
collectively, the “Guarantors”).
Except as otherwise defined herein, 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,
Ball Corporation, an Indiana corporation (“Company”),
Ball
European Holdings, S.ar.l., a corporation organized under the laws of Luxembourg
(“European
Holdco”),
Ball
Packaging Products Canada Corp., a company organized under the laws of the
Province of Nova Scotia (“Canadian
Borrower”),
each
Other Subsidiary Borrower (as defined therein), the financial institutions
from
time to time party thereto, including Deutsche Bank AG New York Branch, in
their
capacities as lenders thereunder (collectively, the “Lenders,”
and
each individually, a “Lender”),
The
Bank of Nova Scotia, as Canadian administrative agent (“Canadian
Administrative Agent”)
and
Deutsche Bank AG New York Branch, as administrative agent (in such capacity,
“Administrative
Agent”)
for
the Lenders, have entered into a Credit Agreement, dated as of October 13,
2005,
providing for the making of Loans and the issuance of, and participation in,
Letters of Credit as contemplated therein (as used herein, the term
“Credit
Agreement”
means
the Credit Agreement described above in this paragraph, as the same may be
amended, modified, extended, renewed, replaced, restated or supplemented from
time to time, and including any agreement extending the maturity of, or
restructuring all or any portion of the Indebtedness under such agreement or
any
successor agreements) (the Lenders, Administrative Agent, Canadian
Administrative Agent and Collateral Agent are herein called the “Bank
Creditors”);
WHEREAS,
Borrowers and/or one or more of their Subsidiaries may from time to time be
party to, one or more Interest Rate Agreements designed to protect Borrowers
or
any of their Subsidiaries against fluctuations in interest rates in respect
of
the Obligations as permitted by Section
8.2(e)
of the
Credit Agreement, and Other Hedging Agreements, as permitted by Section 8.2(h)
of the Credit Agreement, (each such agreement or arrangement with an Other
Creditor (as hereinafter defined), an “Interest
Rate Protection or Other Hedging Agreement”),
with
a Lender or an Affiliate of a Lender (each such Lender or Affiliate, even if
the
respective Lender subsequently ceases to be a Lender under the Credit Agreement
for any reason, together with such Lender’s or Affiliate’s successors and
permitted assigns, collectively, the “Other
Creditors,”
and
together with the Bank Creditors, are herein called the “Creditors”);
WHEREAS,
each Guarantor is a Domestic Subsidiary of Company;
WHEREAS,
it is a condition to the making of Loans under the Credit Agreement that each
Guarantor shall have executed and delivered this Guaranty; and
CHI:1588902.5
WHEREAS,
each Guarantor will obtain benefits from the incurrence of Loans by Borrowers
under the Credit Agreement and the entering into of Interest Rate Protection
or
Other Hedging Agreements and, accordingly, desires to execute this Guaranty
in
order to satisfy the conditions described in the preceding paragraph and to
induce the Lenders to make Loans to Borrowers and Other Creditors to enter
into
Interest Rate Protection or Other Hedging Agreements with Borrowers and/or
their
Subsidiaries;
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 warranties to the
Creditors and hereby covenants and agrees with each Creditor as
follows:
1. Each
Guarantor, jointly and severally, irrevocably and unconditionally guarantees,
as
primary obligor and not as surety: (i) to the Bank Creditors the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of (A) 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 and (B) all other
obligations (including, without limitation, all Obligations and all 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 Loan Documents to which any Borrower is a party,
whether now existing or hereafter incurred under, arising out of or in
connection with the Credit Agreement or any such other Loan Document and the
due
performance and compliance with the terms of the Loan Documents by each Borrower
(all such principal, interest, liabilities and obligations under this clause
(i), except to the extent consisting of obligations or liabilities with respect
to Interest Rate Protection or Other Hedging Agreements, being herein
collectively called the “Loan
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 now
existing or hereafter incurred under, arising out of or in connection with
any
Interest Rate Protection or Other Hedging Agreement, whether such Interest
Rate
Protection or Other Hedging Agreement is now in existence or hereafter arising,
and the due performance and compliance by each Borrower with all of the 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 Loan Document Obligations are herein collectively called
the
“Guaranteed
Obligations”),
provided
that the
maximum amount payable by each Guarantor hereunder shall at no time exceed
the
Maximum Amount (as hereinafter defined) of such Guarantor. As used herein,
“Maximum
Amount”
of any
Guarantor means the lesser of the amount of the Guaranteed Obligations and
the
highest amount of aggregate liability under this Guaranty which is valid and
enforceable as determined in any action or proceeding involving any state,
federal or foreign bankruptcy, insolvency, fraudulent conveyance, fraudulent
transfer or other law affecting the rights of creditors generally. Subject
to
the proviso in the second preceding sentence, each Guarantor understands, agrees
and confirms that the Creditors may enforce this Guaranty up to the full amount
of the Guaranteed Obligations against each Guarantor without proceeding against
any other Guarantor or any
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Borrower,
or against any security or collateral 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,
and subject to the same limitations, as payments by each Borrower are made
under
the Credit Agreement, including Sections
4.6
and
4.7
thereof.
2. Additionally,
each Guarantor, jointly and severally, unconditionally and irrevocably,
guarantees the payment of any and all Guaranteed Obligations of each Borrower
to
the Creditors whether or not due or payable by such Borrower upon the occurrence
of any of the events specified in Sections
10.1(e)
or
(f)
of the
Credit Agreement with respect to such Borrower, and unconditionally, jointly
and
severally, promises to pay such Guaranteed Obligations of such Borrower to
the
Creditors, or order, on demand, in lawful money of the United States or the
applicable Alternative Currency, as the case may be.
3. The
liability of each Guarantor hereunder is exclusive and independent of any
security or collateral 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 (i) any direction as to application of
payment by any Borrower or by any other party, (ii) 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, (iii) any payment on
or
in reduction of any such other guaranty or undertaking, (iv) any dissolution,
termination or increase, decrease or change in personnel by any Borrower or
(v)
any payment made to any Creditor on the Guaranteed Obligations which any
Creditor repays any Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding in
any
jurisdiction.
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. Each Guarantor
waives, to the fullest extent permitted by law, the benefit of any statute
of
limitations affecting its liability hereunder or the enforcement thereof. Any
payment by any Borrower or other circumstance which operates to toll any statute
of limitations as to any Borrower shall operate to toll the statute of
limitations as to each Guarantor.
5. Each
Guarantor hereby waives (to the fullest extent permitted by applicable law)
notice of acceptance of this Guaranty and notice of any liability to which
it
may apply, promptness, diligence, presentment, demand of payment, protest,
notice of dishonor or nonpayment of any such liabilities, suit or taking of
other action by the Agent or any other Creditor against, and any other notice
to, any party liable thereon (including such Guarantor or any other guarantor
or
any Borrower).
6. Any
Creditor may (to the fullest extent permitted by applicable law) at any time
and
from time to time in accordance with the applicable provisions of the Credit
Agreement without the consent of, or notice to, Guarantor, without incurring
responsibility to such
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CHI:1588902.5
Guarantor
and 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 (including any increase or decrease in the rate of interest
thereon), any security or collateral therefor, or any liability incurred
directly or indirectly in respect thereof (other than any agreement between
any
Creditor and one or more Guarantors specifically modifying or amending the
terms
of this Guaranty), and the guaranty herein made shall apply to the Guaranteed
Obligations as so changed, extended, renewed or altered;
(b) sell,
exchange, release, surrender, realize upon or otherwise deal with in any manner
and in any order any property by whomsoever at any time pledged or mortgaged
to
secure, or howsoever securing, the Guaranteed Obligations or any liabilities
(including any of those hereunder) incurred directly or indirectly in respect
thereof or hereof, and/or any offset there against;
(c) exercise
or refrain from exercising any rights against any Borrower or others 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
its creditors other than the Creditors;
(e) apply
any
sums by whomsoever paid or howsoever realized to any liability or liabilities
of
any Borrower to the Creditors, regardless of what liability or liabilities
of
any Borrower remain unpaid;
(f) consent
to or waive any breach of, or any act, omission or default under, any of the
Interest Rate Protection or Other Hedging Agreements, the Loan Documents or
any
of the instruments or agreements referred to therein, or otherwise amend, modify
or supplement any of the Interest Rate Protection or Other Hedging Agreements,
the Loan Documents (other than this Guaranty) or any of such other instruments
or agreements in accordance with their respective terms; 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.
7. No
invalidity, irregularity or unenforceability of all or any part of the
Guaranteed Obligations or of any security therefor shall affect, impair or
be a
defense to this Guaranty, and this Guaranty shall be primary, absolute and
unconditional notwithstanding the occurrence of any event or the existence
of
any other circumstances which might constitute a legal or equitable discharge
of
a surety or guarantor except payment in full of the Guaranteed
Obligations.
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8. This
Guaranty is a continuing one and all liabilities to which it applies or may
apply under the terms hereof shall be conclusively presumed to have been created
in reliance hereon. No failure or delay on the part of any 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 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 Creditor to inquire into the capacity or
powers of any Borrower or any of its Subsidiaries or the officers, directors,
partners or agents acting or purporting to act on its behalf, and any
indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
9. Any
indebtedness of any Borrower now or hereafter held by any Guarantor is hereby
subordinated to the indebtedness of any Borrower to the Creditors; and such
indebtedness of any Borrower to any Guarantor, if Administrative Agent, after
an
Event of Default has occurred and is continuing, so requests, shall be
collected, enforced and received by such Guarantor for the benefit of the
Creditors and be paid over to Administrative Agent on behalf of the Creditors
on
account of the Guaranteed Obligations of the Borrowers to the Creditors, but
without affecting or impairing in any manner the liability of such Guarantor
under the other provisions of this Guaranty. Without limiting the generality
of
the foregoing, each Guarantor hereby agrees with the Creditors that it will
not
exercise any right of subrogation which it may at any time otherwise have as
a
result of this Guaranty (whether contractual, under Section 509 of the
Bankruptcy Code or otherwise) until all Guaranteed Obligations have been
irrevocably paid in full in cash and all Commitments have been terminated (other
than indemnity and other contingent obligations which expressly survive
termination and for which no claim has been asserted).
10. (a)
Each
Guarantor waives (to the fullest extent permitted by applicable law) any right
to require the 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 or collateral 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 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 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 any Borrower or any other party, or the unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the cessation
from
any cause of the liability of any Borrower other than payment in full of the
Guaranteed Obligations. The Creditors may, at their election and in accordance
with Section 11 hereof, foreclose on any security
or collateral held by Administrative Agent, Collateral Agent or the other
Creditors by one or more judicial or nonjudicial sales, (to the extent such
sale
is in accordance with the terms of the Loan Documents and is permitted by
applicable law), or
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exercise
any other right or remedy the 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 irrevocably paid in full in cash and all Commitments
have
been terminated (other than indemnity and other contingent obligations which
expressly survive the termination of the Credit Agreement with respect to which
no claim has been asserted). Each Guarantor waives any defense arising out
of
any such election by the Creditors, even though such election operates to impair
or extinguish any right of reimbursement or subrogation or other right or remedy
of such Guarantor against any Borrower or any other party or any
security.
(b) Each
Guarantor waives all presentments, demands for performance, protests and
notices, including, without limitation, notices of nonperformance, notices
of
protest, notices of dishonor, notices of acceptance of this Guaranty, and
notices of the existence, creation or incurring of new or additional
indebtedness. 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 Creditors shall have no duty
to advise any Guarantor of information known to them regarding such
circumstances or risks.
11. The
Creditors agree that this Guaranty may be enforced only by the action of
Administrative Agent acting upon the instructions of the Required Lenders (or,
after the date on which all Loan Document Obligations have been irrevocably
paid
in full in cash and all obligations under the Credit Agreement have been
terminated (other than indemnity and other contingent obligations which survive
the termination and for which no claim has been asserted), the holders of at
least a majority of the outstanding Other Obligations) and that no other
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 Administrative Agent or the holders of at least a majority of
the
outstanding Other Obligations, as the case may be, for the benefit of the
Creditors upon the terms of this Guaranty and the Security Documents. The
Creditors further agree that this Guaranty may not be enforced against any
director, officer, employee, or stockholder of any Guarantor (except to the
extent such stockholder is also a Guarantor hereunder).
12. In
order
to induce the Lenders to make the Loans and issue (or participate in) Letters
of
Credit as provided in the Credit Agreement, and in order to induce the Other
Creditors to execute, deliver and perform the Interest Rate Protection or Other
Hedging Agreements, each Guarantor represents, warrants and covenants
that:
(a) Such
Guarantor (i) is a duly organized and validly existing organization in good
standing under the laws of the jurisdiction of its organization (to the extent
such concept exists in such jurisdiction), (ii) has the corporate or other
organizational power and authority to own its property and assets and to
transact the business in which it is engaged and (iii) is duly qualified and
is
authorized to do business and is in good standing (to the extent such concept
exists in such jurisdiction) in each other jurisdiction
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where
the
conduct of its business requires such qualification, except for failures to
be
so qualified, authorized or in good standing which, in the aggregate, would
not
reasonably be expected to have a Material Adverse Effect.
(b) Such
Guarantor has the corporate power and authority to execute and deliver this
Guaranty and to perform its obligations hereunder and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Guaranty. Such Guarantor has duly executed and delivered this Guaranty and
this
Guaranty constitutes the legal, valid and binding obligation of such Guarantor
enforceable in accordance with its terms, except to the extent that the
enforceability hereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws generally affecting creditors’ rights
and by equitable principles (regardless of whether enforcement is sought in
equity or at law).
(c) The
execution and delivery by such Guarantor of this Guaranty and the performance
of
such Guarantor's obligations hereunder do not (i) contravene any applicable
provision of any Requirement of Law applicable to such Guarantor, (ii) conflict
with or result in any breach 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 pursuant to the terms of any Contractual Obligation to which
such Guarantor is a party or by which it or any of its assets or property is
bound, except for such contraventions, conflicts, breaches or defaults that
would not be reasonably likely to have a Material Adverse Effect, (iii) violate
any provision of any Organizational Document of such Guarantor or (iv) require
any approval of stockholders or any material approval or consent of any Person
(other than a Governmental Authority) except filings, consents, or notices
which
have been made, obtained or given and except as set forth on Schedule 6.3 of
the
Credit Agreement.
(d) Except
as
set forth on Schedule 6.4 of the Credit Agreement and except for filings
necessary to create or perfect security interests in the Collateral, no material
order, consent, approval, license, authorization or validation of, or filing,
recording or registration with (except as have been obtained or made on or
prior
to the Initial Borrowing Date), or exemption by, any Governmental Authority
is
required to authorize, or is required in connection with, (i) the execution
and
delivery of this Guaranty or the performance of the obligations hereunder or
(ii) the legality, validity, binding effect or enforceability of this
Guaranty.
(e) There
are
no actions, suits or proceedings pending or, to the best knowledge of such
Guarantor, threatened (i) against such Guarantor challenging the validity of
any
material provision of this Guaranty or (ii) that would reasonably be expected
to
have a Material Adverse Effect.
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13. 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 or Other
Hedging Agreements and when no Loan, Note or Letter of Credit remains
outstanding (other than Letters of Credit, together with all fees that have
accrued and will accrue thereon through the stated termination date of such
Letters of Credit, which have been supported in a manner satisfactory to the
issuer of the Letter of Credit in its sole and absolute discretion) and all
Guaranteed Obligations have been irrevocably paid in full in cash (other than
indemnities described in Section 12.4 of the Credit Agreement and analogous
provisions in the Security Documents which are not then due and payable and
which survive the termination of the Credit Agreement and for which no claim
has
been made), 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 Articles
VII
or
VIII
of the
Credit Agreement relating to such Guarantor or any of its Subsidiaries, and
so
that no Event of Default, is caused by the actions of such Guarantor or any
of
its Subsidiaries.
14. The
Guarantors hereby jointly and severally agree to pay all reasonable
out-of-pocket costs and expenses of each Creditor in connection with the
enforcement of this Guaranty and any amendment, waiver or consent relating
hereto (including, without limitation, the reasonable fees and disbursements
of
counsel (including in-house counsel) employed by any of the
Creditors).
15. This
Guaranty shall be binding upon each Guarantor and its successors and assigns
and
shall inure to the benefit of the Creditors and their successors and permitted
assigns.
16. 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 either (i) the Required Lenders (or to the extent required by
Section
12.1
of the
Credit Agreement, with the written consent of each Lender) at all times prior
to
the time on which all Loan Document Obligations have been irrevocably paid
in
full in cash or (ii) the holders of at least a majority of the outstanding
Other
Obligations at all times after the time on which all Loan Document Obligations
have been irrevocably paid in full in cash; provided,
however,
that
any change, waiver, modification or variance affecting the rights and benefits
of a single Class (as defined below) of Creditors (and not all Creditors in
a
like or similar manner) shall require the written consent of the Requisite
Creditors (as defined below) of such Class of Creditors; and provided, further,
that (i) any addition of a Guarantor hereunder shall not constitute a change,
waiver, discharge, termination, amendment or other modification hereto for
the
purposes of this Section 16, and the addition of any such Guarantor shall be
effective upon the delivery of a Supplement (as defined below) to Administrative
Agent by the applicable Guarantor and (ii) any release of a Guarantor hereunder
permitted by Section
12.19
of the
Credit Agreement shall not constitute a change, waiver, discharge, termination,
amendment of other modification hereto for the purposes of this Section 16
and
the release of a Guarantor shall be effective upon delivery of such Guarantor
of
a release executed by Administrative Agent (which release Administrative Agent
is authorized to execute and deliver to the extent provided in Section
12.19
of the
Credit Agreement). For the purpose of this Guaranty the term “Class”
shall
mean each class of Creditors, i.e.,
whether
(A) the Bank Creditors as holders of the Loan
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Document
Obligations or (B) 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 (i) with respect to the Loan Document Obligations,
the
Required Lenders and (ii) 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 or Other Hedging Agreements.
17. Each
Guarantor acknowledges that an executed (or conformed) copy of each of the
Loan
Documents and Interest Rate Protection or Other Hedging Agreements in existence
as of the date hereof has been made available to its principal executive
officers.
18. 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 or, after the time on which all Loan Document
Obligations have been irrevocably paid in full in cash, any payment default
under any Interest Rate Protection or Other Hedging Agreement continuing after
any applicable grace or cure period, each 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 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 Creditor under this Guaranty, irrespective of whether
or
not such Creditor shall have made any demand hereunder. Each Creditor agrees
to
use reasonable efforts to notify Company and Administrative Agent after any
such
setoff and application made by such Creditor.
19. Any
notice or other communication given hereunder shall be in writing and shall
be
personally delivered or sent by registered or certified mail, postage prepaid,
return receipt requested, or by a reputable overnight or courier delivery
service, or by prepaid telex or telecopier, 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, c/o Ball Corporation, 10 Longs Peak Drive, XX Xxx 0000,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Xxxxx Xxxxxxxx, telephone: (000)
000-0000, telecopy: (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
Guarantor; or in any case at such other address as any of the Persons listed
above may hereafter notify the others in writing and, in each case, shall be
deemed given as set forth in Section 12.3 of the Credit Agreement.
20. If
claim
is ever made upon any 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 the Borrowers), 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
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CHI:1588902.5
for
the
amount so repaid or recovered to the same extent as if such amount had never
originally been received by any such payee.
21. (a) ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY HERETO ARISING OUT OF OR RELATING
HERETO, OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT
OF COMPETENT JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX XX XXX XXXX. BY
EXECUTING AND DELIVERING THIS GUARANTY, EACH PARTY HERETO, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (1) ACCEPTS GENERALLY AND
UNCONDITIONALLY THE NON-EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (2)
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (3) AGREES THAT SERVICE OF ALL
PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED
OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO IT AT ITS ADDRESS PROVIDED IN
ACCORDANCE WITH SECTION 19; (4) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (3)
ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE PARTY
IN
ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE
AND
BINDING SERVICE IN EVERY RESPECT, SUCH SERVICE TO BECOME EFFECTIVE THIRTY (30)
DAYS AFTER SUCH MAKING; AND (5) AGREES THE CREDITORS RETAIN THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST
ANY
PARTY HERETO IN THE COURTS OF ANY OTHER JURISDICTION.
(b) EACH
OF THE PARTIES TO THIS GUARANTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY
HAVE
TO TRIAL BY JURY IN ANY COURT OR JURISDICTION, INCLUDING WITHOUT LIMITATION,
THOSE REFERRED TO IN CLAUSE (a) ABOVE, IN RESPECT TO ANY MATTER ARISING OUT
OF
OR DIRECTLY RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
(c) THIS
GUARANTY SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE
OF
NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF SAID STATE INCLUDING SECTIONS 5-1401 AND 5-1402
OF THE NEW YORK GENERAL OBLIGATIONS LAW BUT EXCLUDING ALL OTHER CHOICE OF LAW
AND CONFLICTS OF LAW RULES.
22. In
the
event that all of the capital stock of one or more Guarantors is sold,
transferred or otherwise disposed of or liquidated in compliance with the
requirements of clause (v) of Section
8.3
or
Section
8.4
of the
Credit Agreement (or such sale or other disposition or liquidation has been
approved in writing by the Required Lenders (or all Lenders if required by
Section
12.1
of the
Credit Agreement)) and the proceeds of such sale, disposition or liquidation
are
applied in accordance with the provisions of the Credit Agreement, to the extent
applicable, such Guarantor shall be released from this Guaranty and this
Guaranty shall, as to each such
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CHI:1588902.5
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 partnership interests of any Guarantor
shall be deemed to be a sale of such Guarantor for the purposes of this
Section
22).
23. This
Guaranty and any amendments or supplements hereto 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 the
Borrowers and the Agent.
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 Company that is required to become
a party to this Guaranty after the Closing Date pursuant to Section
7.12
of the
Credit Agreement shall automatically become a Guarantor hereunder upon the
execution and delivery by such Subsidiary of an instrument substantially in
the
form of Exhibit
A
hereto
(a "Supplement")
and
the delivery of same to the Agent, with the same force and effect as if
originally named as a party herein. The execution and delivery of any instrument
adding an additional party to this Guaranty shall not require the consent of
any
party hereunder or of any Secured Creditor. The rights and obligations of each
party hereunder shall remain in full force and effect notwithstanding the
addition of any new party hereto.
26. On
the
Termination Date, this Guaranty shall automatically terminate (provided that
all
indemnities set forth herein shall survive such termination) and Collateral
Agent, at the request and expense of the relevant Guarantor, will execute and
deliver to such Guarantor a proper instrument or instruments acknowledging
the
satisfaction and termination of this Guaranty. As used in this Guaranty,
“Termination Date” shall mean the date upon which the Total Commitment and all
Interest Rate Protection or Other Hedging Agreements have been terminated,
no
Note under the Credit Agreement is outstanding (and all Loans have been repaid
in full), all Letters of Credit have been terminated and all Obligations then
outstanding (other than any indemnities described herein and in Section
12.4
of the
Credit Agreement with respect to which no claim has been asserted) have been
paid in full in cash.
[signature
page follows]
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11
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CHI:1588902.5
IN
WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed and
delivered as of the date first above written.
BALL
AEROSPACE & TECHNOLOGIES CORP.
BALL
METAL BEVERAGE CONTAINER CORP.
BALL
METAL FOOD CONTAINER CORP.
BALL
PACKAGING CORP.
BALL
PLASTIC CONTAINER CORP.
BALL
TECHNOLOGIES HOLDINGS CORP.
BALL
ASIA
SERVICES LIMITED
BALL
GLASS CONTAINER CORPORATION
BALL
HOLDINGS CORP.
BG
HOLDINGS I, INC.
BG
HOLDINGS II, INC.
BALL
TECHNOLOGY SERVICES CORPORATION
EFRATOM
HOLDING, INC.
LATAS
DE
ALUMINIO BALL, INC.
BALL
METAL PACKAGING SALES CORP.
BALL
DELAWARE HOLDINGS, LLC
BALL
METAL FOOD CONTAINER, LLC
METAL
PACKAGING INTERNATIONAL, INC.
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By:
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Name:
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Title:
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BALL
PAN-EUROPEAN HOLDINGS, INC.
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By:
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Name:
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Title:
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Accepted
and Agreed to:
DEUTSCHE
BANK AG NEW YORK BRANCH,
as
Administrative Agent
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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