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EXHIBIT 10.38
EXECUTION COPY
GUARANTY
THIS GUARANTY (this "GUARANTY") is made as of the 22nd day of July, 1999,
by and among PECHINEY NORTH AMERICA, INC., a Delaware corporation, and AMERICAN
NATIONAL CAN COMPANY, a Delaware corporation (collectively, the "INITIAL
GUARANTORS" and along with any additional Material Domestic Subsidiaries and
Subsidiary Borrowers which are Domestic Incorporated Subsidiaries, in each case,
which become parties to this Guaranty by executing an Addendum hereto in the
form attached as Annex I, the "GUARANTORS") in favor of the Administrative
Agent, for the ratable benefit of the Holders of Obligations, under (and as
defined in) the Credit Agreements referred to below;
WITNESSETH:
WHEREAS, AMERICAN NATIONAL CAN GROUP, INC., a Delaware corporation (the
"COMPANY"), one or more Subsidiaries of the Company (whether now existing or
hereafter formed, collectively referred to herein as the "SUBSIDIARY
BORROWERS"), the institutions from time to time parties hereto as Lenders, and
THE FIRST NATIONAL BANK OF CHICAGO, in its capacity as contractual
representative (the "ADMINISTRATIVE AGENT") for itself and the other Lenders,
THE CHASE MANHATTAN BANK, as Syndication Agent (the "SYNDICATION AGENT"), and
ABN AMRO BANK N.V., as Co-Documentation Agent (the "CO-DOCUMENTATION AGENT") and
Arranger (the "ARRANGER"), and ROYAL BANK OF CANADA , as Co-Documentation Agent
(the "CO-DOCUMENTATION Agent") and Arranger (the "ARRANGER"), BANQUE NATIONALE
DE PARIS, as Arranger (the "ARRANGER"), CHASE SECURITIES INC., as Lead Arranger
(the "LEAD ARRANGER") and Joint Book Manager (the "JOINT BOOK MANAGER"), and
BANC ONE CAPITAL MARKETS, INC., as Lead Arranger (the "LEAD ARRANGER") and Joint
Book Manager (the "JOINT BOOK MANAGER") have entered into (i) a certain 5-Year
Revolving Credit Agreement dated as of July 22, 1999 (as the same may be
amended, modified, supplemented and/or restated, and as in effect from time to
time, the "5-YEAR CREDIT AGREEMENT") and (ii) a certain 364-Day Credit Agreement
dated as of July 22, 1999 (as the same may be amended, restated, supplemented or
otherwise modified, and as in effect from time to time, the "364-DAY CREDIT
AGREEMENT", and, together with the 5-Year Credit Agreement, the "CREDIT
AGREEMENTS"), providing, subject to the terms and conditions thereof, for
extensions of credit and other financial accommodations to be made by the
Lenders to the Company and the Subsidiary Borrowers;
WHEREAS, it is a condition precedent to the initial extensions of credit by
the Lenders under each of the Credit Agreements that each of the Guarantors
(constituting all of the Material Domestic Subsidiaries of the Company and all
of the Subsidiary Borrowers that are Domestic Incorporated Subsidiaries) execute
and deliver this Guaranty, whereby each of the Guarantors shall guarantee the
payment when due of all "Obligations" (as defined in the Credit Agreements),
principal, interest, letter of credit reimbursement obligations and other
amounts that shall be at any time payable by the Company or any Subsidiary
Borrower under the Credit Agreements and the other Loan Documents; and
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WHEREAS, in consideration of the direct and indirect financial and other
support that the Company and the Subsidiary Borrowers has provided, and such
direct and indirect financial and other support as the Company and the
Subsidiary Borrowers may in the future provide, to the Guarantors, and in order
to induce the Lenders and the Agents to enter into the Credit Agreements, each
of the Guarantors is willing to guarantee the obligations of the Company and the
Subsidiary Borrowers under the Credit Agreements and the obligations of the
Company or any of its Subsidiaries under any of the other Loan Documents;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION l. Definitions. Terms defined in the Credit Agreements and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein. For purposes of this Guaranty, "LONG-TERM LENDERS" shall mean all
of the Lenders under the 5-Year Credit Agreement, and "SHORT-TERM LENDERS" shall
mean all of the Lenders under the 364-Day Credit Agreement. "Lenders" shall
mean, collectively, all of the Long-Term Lenders and all of the Short-Term
Lenders.
SECTION 2. Representations, Warranties and Covenants. Each of the
Guarantors represents and warrants (which representations and warranties shall
be deemed to have been renewed at the time of the making, conversion or
continuation of any Loan or issuance of any Letter of Credit) that:
(a) It is a corporation, limited liability company, partnership or
other commercial entity duly incorporated or formed, validly existing and in
good standing under the laws of its jurisdiction of incorporation or formation
and has all requisite authority to conduct its business as a foreign Person in
each jurisdiction in which its business is conducted, except where the failure
to have such requisite authority would not have a Material Adverse Effect.
(b) It has the power and authority and legal right to execute and
deliver this Guaranty and to perform its obligations hereunder. The execution
and delivery by it of this Guaranty and the performance by it of its obligations
hereunder have been duly authorized by proper proceedings, and this Guaranty
constitutes a legal, valid and binding obligation of such Guarantor, enforceable
against such Guarantor in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
(c) Neither the execution and delivery by it of this Guaranty, nor the
consummation by it of the transactions herein contemplated, nor compliance by it
with the terms and provisions hereof, will violate any law, rule, regulation,
order, writ, judgment, injunction, decree or award binding on it or its
certificate or articles of incorporation or by-laws, limited liability company
or partnership agreement (as applicable) or the provisions of any indenture,
instrument or material agreement to which it is a party or is subject, or by
which it, or its property, is bound, or conflict with or constitute a default
thereunder, or result in the creation or imposition of any Lien in, of or on its
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property pursuant to the terms of any such indenture, instrument or material
agreement. No order, consent, approval, license, authorization, or validation
of, or filing, recording or registration with, or exemption by, any Governmental
Authority, is required to authorize, or is required in connection with the
execution, delivery and performance by it of, or the legality, validity, binding
effect or enforceability against it of, this Guaranty.
In addition to the foregoing, each of the Guarantors covenants that,
so long as any Lender has any Revolving Loan Commitment outstanding under either
of the Credit Agreements or any amount payable under the Credit Agreements or
any other Obligations shall remain unpaid, it will, and, if necessary, will
enable the Company to, fully comply with those covenants and agreements of the
Company applicable to such Guarantor set forth in each of the Credit Agreements.
SECTION 3. The Guaranty. Each of the Guarantors hereby unconditionally
guarantees, jointly with the other Guarantors and severally, the full and
punctual payment when due (whether at stated maturity, upon acceleration or
otherwise) of the Obligations, including, without limitation, (i) the principal
of and interest on each Advance made to the Company and the Subsidiary Borrowers
pursuant to the Credit Agreements, (ii) any Reimbursement Obligations of the
Company and the Subsidiary Borrowers, and (iii) all other amounts payable by the
Company and the Subsidiary Borrowers or any of their respective Subsidiaries
under the Credit Agreements and the other Loan Documents (all of the foregoing
being referred to collectively as the "GUARANTEED OBLIGATIONS"). Upon failure by
the Company or any Subsidiary Borrower or any of their respective Affiliates, as
applicable, to pay punctually any such amount, each of the Guarantors agrees
that it shall forthwith on demand pay such amount at the place and in the manner
specified in the Credit Agreements or the relevant Loan Document, as the case
may be. Each of the Guarantors hereby agrees that this Guaranty is an absolute,
irrevocable and unconditional guaranty of payment and is not a guaranty of
collection.
SECTION 4. Guaranty Unconditional. The obligations of each of the
Guarantors hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, indulgence, compromise, waiver
or release of or with respect to the Guaranteed Obligations or any part
thereof or any agreement relating thereto, or with respect to any
obligation of any other guarantor of any of the Guaranteed Obligations,
whether (in any such case) by operation of law or otherwise, or any failure
or omission to enforce any right, power or remedy with respect to the
Guaranteed Obligations or any part thereof or any agreement relating
thereto, or with respect to any obligation of any other guarantor of any of
the Guaranteed Obligations;
(ii) any modification or amendment of or supplement to either of the
Credit Agreements or any other Loan Document, including, without
limitation, any such amendment which may increase the amount of the
Obligations guaranteed hereby;
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(iii) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any
collateral securing the Guaranteed Obligations or any part thereof, any
other guaranties with respect to the Guaranteed Obligations or any part
thereof, or any other obligation of any person or entity with respect to
the Guaranteed Obligations or any part thereof, or any nonperfection or
invalidity of any direct or indirect security for the Guaranteed
Obligations;
(iv) any change in the corporate, partnership or other existence,
structure or ownership of the Company or any other guarantor of any of the
Guaranteed Obligations, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting the Company or any other guarantor of
the Guaranteed Obligations, or any of their respective assets or any
resulting release or discharge of any obligation of the Company or any
other guarantor of any of the Guaranteed Obligations;
(v) the existence of any claim, setoff or other rights which the
Guarantors may have at any time against the Company, any other guarantor of
any of the Guaranteed Obligations, any Agent, any Holder of Obligations or
any other Person, whether in connection herewith or in connection with any
unrelated transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory counterclaim;
(vi) the enforceability or validity of the Guaranteed Obligations or
any part thereof or the genuineness, enforceability or validity of any
agreement relating thereto or with respect to any collateral securing the
Guaranteed Obligations or any part thereof, or any other invalidity or
unenforceability relating to or against the Company or any Subsidiary
Borrower or any other guarantor of any of the Guaranteed Obligations, for
any reason related to either of the Credit Agreements, any other Loan
Document, or any provision of applicable law or regulation purporting to
prohibit the payment by the Company or any Subsidiary Borrower or any other
guarantor of the Guaranteed Obligations, of any of the Guaranteed
Obligations;
(vii) the failure of any Agent to take any steps to perfect and
maintain any security interest in, or to preserve any rights to, any
security or collateral for the Guaranteed Obligations, if any;
(viii) the election by, or on behalf of, any one or more of the
Holders of Obligations, in any proceeding instituted under Chapter 11 of
Title 11 of the United States Code (11 U.S.C. 101 et seq.) (the "Bankruptcy
Code"), of the application of Section 1111(b)(2) of the Bankruptcy Code;
(ix) any borrowing or grant of a security interest by the Company or
any Subsidiary Borrower, as debtor-in-possession, under Section 364 of the
Bankruptcy Code;
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(x) the disallowance, under Section 502 of the Bankruptcy Code, of all
or any portion of the claims of any of the Holders of Obligations or any
Agent for repayment of all or any part of the Guaranteed Obligations;
(xi) the failure of any other Guarantor to sign or become party to
this Guaranty or any amendment, change, or reaffirmation hereof; or
(xii) any other act or omission to act or delay of any kind by the
Company or any Subsidiary Borrower, any other guarantor of the Guaranteed
Obligations, any Agent, any Holder of Obligations or any other Person or
any other circumstance whatsoever which might, but for the provisions of
this Section 4, constitute a legal or equitable discharge of any
Guarantor's obligations hereunder.
SECTION 5. Discharge Only Upon Payment In Full: Reinstatement In Certain
Circumstances. Each of the Guarantors' obligations hereunder shall remain in
full force and effect until all Guaranteed Obligations shall have been paid in
full in cash and the Revolving Loan Commitments and all Letters of Credit issued
under the Credit Agreements shall have terminated or expired. If at any time any
payment of the principal of or interest on any Advance, any Reimbursement
Obligation or any other amount payable by the Company or any Subsidiary Borrower
or any other party under the Credit Agreements or any other Loan Document is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Company or any Subsidiary Borrower or
otherwise, each of the Guarantors' obligations hereunder with respect to such
payment shall be reinstated as though such payment had been due but not made at
such time.
SECTION 6. General Waivers. Each of the Guarantors irrevocably waives
acceptance hereof, presentment, demand or action on delinquency, protest, the
benefit of any statutes of limitations and, to the fullest extent permitted by
law, any notice not provided for herein, as well as any requirement that at any
time any action be taken by any Person against the Company or any Subsidiary
Borrower, any other guarantor of the Guaranteed Obligations, or any other
Person. Without in any way limiting the foregoing, each of the Guarantors waives
the benefits of Chapter 34 of the Texas Business and Commerce Code.
SECTION 7. Subordination of Subrogation. Until the Guaranteed Obligations
have been indefeasibly paid in full in cash, the Guarantors (i) shall have no
right of subrogation with respect to such Guaranteed Obligations and (ii) waive
any right to enforce any remedy which the Holders of Obligations, Issuing Banks
or any Agent now have or may hereafter have against the Company or any
Subsidiary Borrower, any endorser or any guarantor of all or any part of the
Guaranteed Obligations or any other Person, and the Guarantors waive any benefit
of, and any right to participate in, any security or collateral given to the
Holders of Obligations, the Issuing Banks and the Agents to secure the payment
or performance of all or any part of the Guaranteed Obligations or any other
liability of the Company or any Subsidiary Borrower to the Holders of
Obligations or Issuing Banks. Should any Guarantor have the right,
notwithstanding the foregoing, to exercise its subrogation
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rights, each Guarantor hereby expressly and irrevocably (A) subordinates any and
all rights at law or in equity to subrogation, reimbursement, exoneration,
contribution, indemnification or set off that the Guarantor may have to the
indefeasible payment in full in cash of the Guaranteed Obligations and (B)
waives any and all defenses available to a surety, guarantor or accommodation
co-obligor until the Guaranteed Obligations are indefeasibly paid in full in
cash. Each Guarantor acknowledges and agrees that this subordination is intended
to benefit the Agents and the Holders of Obligations and shall not limit or
otherwise affect such Guarantor's liability hereunder or the enforceability of
this Guaranty, and that the Agents, the Holders of Obligations and their
respective successors and assigns are intended third party beneficiaries of the
waivers and agreements set forth in this Section 7.
SECTION 8. Contribution with Respect to Guaranteed Obligations.
(a) To the extent that any Guarantor shall make a payment under this
Guaranty (a "Guarantor Payment") which, taking into account all other Guarantor
Payments then previously or concurrently made by any other Guarantor, exceeds
the amount which otherwise would have been paid by or attributable to such
Guarantor if each Guarantor had paid the aggregate Guaranteed Obligations
satisfied by such Guarantor Payment in the same proportion as such Guarantor's
"Allocable Amount" (as defined below) (as determined immediately prior to such
Guarantor Payment) bore to the aggregate Allocable Amounts of each of the
Guarantors as determined immediately prior to the making of such Guarantor
Payment, then, following indefeasible payment in full in cash of the Guaranteed
Obligations and termination of the Credit Agreements, such Guarantor shall be
entitled to receive contribution and indemnification payments from, and be
reimbursed by, each other Guarantor for the amount of such excess, pro rata
based upon their respective Allocable Amounts in effect immediately prior to
such Guarantor Payment.
(b) As of any date of determination, the "Allocable Amount" of any
Guarantor shall be equal to the maximum amount of the claim which could then be
recovered from such Guarantor under this Guaranty without rendering such claim
voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or
under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.
(c) This Section 8 is intended only to define the relative rights of
the Guarantors, and nothing set forth in this Section 8 is intended to or shall
impair the obligations of the Guarantors, jointly and severally, to pay any
amounts as and when the same shall become due and payable in accordance with the
terms of this Guaranty.
(d) The parties hereto acknowledge that the rights of contribution and
indemnification hereunder shall constitute assets of the Guarantor to which such
contribution and indemnification is owing.
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(e) The rights of the indemnifying Guarantors against other Guarantors
under this Section 8 shall be exercisable upon the full and indefeasible payment
of the Guaranteed Obligations in cash and the termination of the Credit
Agreements.
SECTION 9. Stay of Acceleration. If acceleration of the time for payment of
any amount payable by the Company or any Subsidiary Borrower under the Credit
Agreements or any other Loan Document is stayed upon the insolvency, bankruptcy
or reorganization of the Company or any Subsidiary Borrower, all such amounts
otherwise subject to acceleration under the terms of the Credit Agreements or
any other Loan Document shall nonetheless be payable by each of the Guarantors
hereunder forthwith on demand by the Administrative Agent.
SECTION 10. Notices. All notices, requests and other communications to any
party hereunder shall be given in the manner prescribed in Article XV of the
Credit Agreements with respect to the Administrative Agent at its notice address
therein and with respect to any Guarantor at the address set forth below or such
other address or telecopy number as such party may hereafter specify for such
purpose by notice to the Administrative Agent in accordance with the provisions
of such Article XV.
Notice Address for Guarantors:
c/o American National Can Group, Inc.
0000 Xxxx Xxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Vice President - Treasurer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Attention: General Counsel
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Address: 0000 Xxxx Xxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000
SECTION 11. No Waivers. No failure or delay by any Agent or any Holder of
Obligations in exercising any right, power or privilege hereunder shall operate
as a waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies provided in this Guaranty, the Credit
Agreements and the other Loan Documents shall be cumulative and not exclusive of
any rights or remedies provided by law.
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SECTION 12. Successors and Assigns. This Guaranty is for the benefit of the
Agents and the Holders of Obligations and their respective successors and
permitted assigns, provided, that no Guarantor shall have any right to assign
its rights or obligations hereunder without the consent of all of the Lenders,
and any such assignment in violation of this Section 12 shall be null and void;
and in the event of an assignment of any amounts payable under the Credit
Agreements or the other Loan Documents in accordance with the respective terms
thereof, the rights hereunder, to the extent applicable to the indebtedness so
assigned, may be transferred with such indebtedness. This Guaranty shall be
binding upon each of the Guarantors and their respective successors and assigns.
SECTION 13. Changes in Writing. Other than in connection with the addition
of additional Material Domestic Subsidiaries and additional Subsidiary Borrowers
which are Domestic Incorporated Subsidiaries, in each case, which become parties
hereto by executing an Addendum hereto in the form attached as Annex I, neither
this Guaranty nor any provision hereof may be changed, waived, discharged or
terminated orally, but only in writing signed by each of the Guarantors and the
Administrative Agent with the consent of the Required Lenders under the 5-Year
Credit Agreement (or all of the Long-Term Lenders if required pursuant to the
terms of Section 10.3 of the 5-Year Credit Agreement) or with the consent of the
Required Lenders under the 364-Day Credit Agreement (or all of the Short-Term
Lenders if required pursuant to the terms of Section 10.3 of the 364-Day Credit
Agreement).
SECTION 14. GOVERNING LAW. ANY DISPUTE BETWEEN ANY GUARANTOR AND ANY AGENT
OR ANY LENDER, OR ANY OTHER HOLDER OF OBLIGATIONS ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH, THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER
ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE
WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1
ET SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF
THE STATE OF ILLINOIS.
SECTION 15. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH OF
THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH, THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS WHETHER
ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED EXCLUSIVELY
BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE PARTIES HERETO
ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES HERETO WAIVES IN ALL
DISPUTES BROUGHT PURSUANT TO THIS
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SUBSECTION (A) ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT
CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. EACH OF THE GUARANTORS AGREES THAT ANY AGENT, ANY
LENDER OR ANY HOLDER OF OBLIGATIONS SHALL HAVE THE RIGHT TO PROCEED AGAINST SUCH
GUARANTOR OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO
(1) OBTAIN PERSONAL JURISDICTION OVER SUCH GUARANTOR OR (2) ENFORCE A JUDGMENT
OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. EACH OF THE GUARANTORS
AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING
BROUGHT BY SUCH PERSON TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF
SUCH PERSON. EACH OF THE GUARANTORS WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS SUBSECTION (B).
(C) SERVICE OF PROCESS. EACH OF THE GUARANTORS WAIVES PERSONAL SERVICE OF
ANY PROCESS UPON IT AND IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY
WRITS, PROCESS OR SUMMONSES IN ANY SUIT, ACTION OR PROCEEDING BY THE MAILING
THEREOF BY ANY AGENT OR THE HOLDERS OF OBLIGATIONS BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO THE GUARANTORS IN CARE OF THE COMPANY AT THE ADDRESS
PROVIDED FOR NOTICES TO THE COMPANY UNDER THE CREDIT AGREEMENTS. NOTHING HEREIN
SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF ANY AGENT OR THE HOLDERS OF
OBLIGATIONS TO SERVE ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW. EACH OF THE GUARANTORS IRREVOCABLY WAIVES ANY
OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS
GUARANTY OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
GUARANTY OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY
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OF THIS GUARANTY WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(E) WAIVER OF BOND. EACH OF THE GUARANTORS WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS
OR PROCEEDING TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER,
PRELIMINARY OR PERMANENT INJUNCTION, THIS GUARANTY OR ANY OTHER LOAN DOCUMENT.
(F) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTY
HERETO THAT IT HAS DISCUSSED THIS GUARANTY AND, SPECIFICALLY, THE PROVISIONS OF
THIS SECTION 15, WITH ITS COUNSEL.
SECTION 16. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Guaranty. In the event an
ambiguity or question of intent or interpretation arises, this Guaranty shall be
construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Guaranty.
SECTION 17. Taxes, Expenses of Enforcement, etc. (A) (i) Any and all
payments by any of the Guarantors hereunder (whether in respect of principal,
interest, fees or otherwise) shall be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings or any interest, penalties and liabilities with respect
thereto including those arising after the date hereof as a result of the
adoption of or any change in any law, treaty, rule, regulation, guideline or
determination of a Governmental Authority or any change in the interpretation or
application thereof by a Governmental Authority but excluding, in the case of
each Lender and the Administrative Agent, such taxes (including income taxes,
franchise taxes and branch profit taxes) as are imposed on or measured by such
Lender's or the Administrative Agent's, as the case may be, net income by the
United States of America or any Governmental Authority of the jurisdiction under
the laws of which such Lender or the Administrative Agent, as the case may be,
is organized (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings, and liabilities which the Administrative Agent or a Lender
determines to be applicable to this Guaranty, the other Loan Documents, the
Revolving Loan Commitments, the Loans or the Letters of Credit being hereinafter
referred to as "TAXES"). If any Guarantor shall be required by law to deduct or
withhold any Taxes from or in respect of any sum payable hereunder to any Holder
of Obligations, (i) the sum payable shall be increased as may be necessary so
that after making all required deductions or withholdings (including deductions
applicable to additional sums payable under this Section 17(A)) such Lender or
Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions or withholdings been made, (ii) the applicable
Guarantor shall make such deductions or withholdings, and (iii) the applicable
Guarantor shall pay the full amount deducted or withheld to the relevant
taxation authority or other authority in accordance with
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applicable law. If a withholding tax of the United States of America or any
other Governmental Authority shall be or become applicable (y) after the date of
this Guaranty, to such payments by the applicable Guarantor made to the Lending
Installation or any other office that a Lender may claim as its Lending
Installation, or (z) after such Lender's selection and designation of any other
Lending Installation, to such payments made to such other Lending Installation,
such Lender shall use reasonable efforts to make, fund and maintain the affected
Loans through another Lending Installation of such Lender in another
jurisdiction so as to reduce the applicable Guarantor's liability hereunder, if
the making, funding or maintenance of such Loans through such other Lending
Installation of such Lender does not, in the judgment of such Lender, otherwise
adversely affect such Loans, or obligations under the Revolving Loan Commitments
of such Lender.
(ii) In addition, each of the Guarantors agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges, or similar levies which arise from any payment made hereunder, or
from the execution, delivery or registration of, or otherwise with respect
to, this Guaranty, the other Loan Documents, the Revolving Loan
Commitments, the Loans or the Letters of Credit (hereinafter referred to as
"OTHER TAXES").
(iii) Each of the Guarantors indemnifies each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed by any
Governmental Authority on amounts payable under this Section 17(A)) paid by
such Lender or the Administrative Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be made within
thirty (30) days after the date such Lender or the Administrative Agent (as
the case may be) makes written demand therefor. If the Taxes or Other Taxes
with respect to which any Guarantor has made either a direct payment to the
taxation or other authority or an indemnification payment hereunder are
subsequently refunded to any Lender, such Lender will return to the
applicable Guarantor an amount equal to the lesser of the indemnification
payment or the refunded amount. A certificate as to any additional amount
payable to any Lender or the Administrative Agent under this Section 17(A)
submitted to the applicable Guarantor and the Administrative Agent (if a
Lender is so submitting) by such Lender or the Administrative Agent shall
show in reasonable detail the amount payable and the calculations used to
determine such amount and shall, absent manifest error, be deemed
presumptively correct. With respect to such deduction or withholding for or
on account of any Taxes and to confirm that all such Taxes have been paid
to the appropriate Governmental Authorities, the applicable Guarantor or
Guarantors shall promptly (and in any event not later than thirty (30) days
after receipt) furnish to each Lender and the Administrative Agent such
certificates, receipts and other documents as may be required (in the
reasonable judgment of such Lender or the Administrative Agent) to
establish any tax credit to which such Lender or the Administrative Agent
may be entitled.
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(iv) Within thirty (30) days after the date of any payment of Taxes or
Other Taxes by any Guarantor, the applicable Guarantor shall furnish to the
Administrative Agent the original or a certified copy of a receipt
evidencing payment thereof.
(v) Without prejudice to the survival of any other agreement of the
Guarantors hereunder, the agreements and obligations of the Guarantors
contained in this Section 17(A) shall survive the payment in full of all
Guaranteed Obligations and the termination of this Guaranty.
(vi) Each Lender (including any Replacement Lender or Purchaser) that
is not created or organized under the laws of the United States of America
or a political subdivision thereof (each a "NON-U.S. LENDER") shall deliver
to the Company and the Administrative Agent on or before the Closing Date,
or, if later, the date on which such Lender becomes a Lender pursuant to
Section 14.3 of the applicable Credit Agreement (and from time to time
thereafter upon the request of the Company or the Administrative Agent, but
only for so long as such Non-U.S. Lender is legally entitled to do so),
either (1)(x) two (2) duly completed copies of either (A) IRS Form W-8BEN
(or, if delivered on or before December 31, 1999, IRS Form 1001), or (B)
IRS Form W-8ECI (or, if delivered on or before December 31, 1999, IRS Form
4224), or in either case an applicable successor form, and (y) for periods
prior to January 1, 2000, a duly completed copy of IRS Form W-8 or W-9 or
applicable successor form; or (2) in the case of a Non-U.S. Lender that is
not legally entitled to deliver either form listed in clause (vi)(1)(x),
(x) a certificate of a duly authorized officer of such Non-U.S. Lender to
the effect that such Non-U.S. Lender is not (A) a "bank" within the meaning
of Section 881(c)(3)(A) of the Code, (B) a "10 percent shareholder" of any
Guarantor within the meaning of Section 881(c)(3)(B) of the Code, or (C) a
controlled foreign corporation receiving interest from a related person
within the meaning of Section 881(c)(3)(C) of the Code (such certificate,
an "EXEMPTION CERTIFICATE") and (y) two (2) duly completed copies of IRS
Form W-8BEN or applicable successor form. Each such Lender further agrees
to deliver to the Company and the Administrative Agent from time to time a
true and accurate certificate executed in duplicate by a duly authorized
officer of such Lender in a form satisfactory to the Company and the
Administrative Agent, before or promptly upon the occurrence of any event
requiring a change in the most recent certificate previously delivered by
it to the Company and the Administrative Agent pursuant to this Section
17(A). Further, each Lender which delivers a form or certificate pursuant
to this clause (vi) covenants and agrees to deliver to the Company and the
Administrative Agent within fifteen (15) days prior to the expiration of
such form, for so long as this Guaranty is still in effect, another such
certificate and/or two (2) accurate and complete original newly-signed
copies of the applicable form (or any successor form or forms required
under the Code or the applicable regulations promulgated thereunder).
Each Lender shall promptly furnish to the Company and the
Administrative Agent such additional documents as may be reasonably
required by any Guarantor or the Administrative Agent to establish any
exemption from or reduction of any Taxes or Other
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Taxes required to be deducted or withheld and which may be obtained without
undue expense to such Lender. Notwithstanding any other provision of this
Section 17(A), no Guarantor shall be obligated to gross up any payments to
any Lender pursuant to Section 17(A)(i), or to indemnify any Lender
pursuant to Section 17(A)(iii), in respect of United States federal
withholding taxes to the extent imposed as a result of (x) the failure of
such Lender to deliver to the Company the form or forms and/or an Exemption
Certificate, as applicable to such Lender, pursuant to Section 17(A)(vi),
(y) such form or forms and/or Exemption Certificate not establishing a
complete exemption from U.S. federal withholding tax or the information or
certifications made therein by the Lender being untrue or inaccurate on the
date delivered in any material respect, or (z) the Lender designating a
successor Lending Installation at which it maintains its Loans which has
the effect of causing such Lender to become obligated for tax payments in
excess of those in effect immediately prior to such designation; provided,
however, that the applicable Guarantor shall be obligated to gross up any
payments to any such Lender pursuant to Section 17(A)(i), and to indemnify
any such Lender pursuant to Section 17(A)(iii), in respect of United States
federal withholding taxes if (x) any such failure to deliver a form or
forms or an Exemption Certificate or the failure of such form or forms or
exemption certificate to establish a complete exemption from U.S. federal
withholding tax or inaccuracy or untruth contained therein resulted from a
change in any applicable statute, treaty, regulation or other applicable
law or any interpretation of any of the foregoing occurring after the date
hereof, which change rendered such Lender no longer legally entitled to
deliver such form or forms or Exemption Certificate or otherwise ineligible
for a complete exemption from U.S. federal withholding tax, or rendered the
information or the certifications made in such form or forms or Exemption
Certificate untrue or inaccurate in any material respect, (y) the
redesignation of the Lender's Lending Installation was made at the request
of the Company or (z) the obligation to gross up payments to any such
Lender pursuant to Section 17(A)(i), or to indemnify any such Lender
pursuant to Section 17(A)(iii), is with respect to a Purchaser that becomes
a Purchaser as a result of an assignment made at the request of the
Company.
(vii) Upon the request, and at the expense of the Company, each Lender
to which any Guarantor is required to pay any additional amount pursuant to
this Section 17(A), shall reasonably afford the applicable Guarantor the
opportunity to contest, and shall reasonably cooperate with the applicable
Guarantor in contesting, the imposition of any Tax giving rise to such
payment; provided, that (i) such Lender shall not be required to afford the
applicable Guarantor the opportunity to so contest unless the applicable
Guarantor shall have confirmed in writing to such Lender its obligation to
pay such amounts pursuant to this Guaranty; and (ii) the Company shall
reimburse such Lender for its reasonable attorneys' and accountants' fees
and disbursements incurred in so cooperating with the applicable Guarantor
in contesting the imposition of such Tax; provided, however, that
notwithstanding the foregoing, no Lender shall be required to afford any
Guarantor the opportunity to contest, or cooperate with the applicable
Guarantor in contesting, the imposition of any Taxes, if such Lender in
good faith determines that to do so would have an adverse effect on it.
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(B) Expenses of Enforcement, Etc. After the occurrence of a Default under
the 5-Year Credit Agreement, the Long-Term Lenders shall have the right at any
time, and, after the occurrence of a Default under the 364-Day Credit Agreement,
the Short-Term Lenders shall have the right at any time to direct the
Administrative Agent to commence enforcement proceedings with respect to the
Guaranteed Obligations. The Guarantors agree to reimburse the Agents and the
Holders of Obligations for any reasonable costs, internal charges and
out-of-pocket expenses (including reasonable attorneys' fees and time charges of
attorneys for the Agents and the Holders of Obligations, which attorneys may be
employees of the Agents or the Holders of Obligations) paid or incurred by any
Agent or any Holders of Obligation in connection with the collection and
enforcement of amounts due under the Loan Documents, including without
limitation this Guaranty. The Administrative Agent agrees to distribute payments
received from any of the Guarantors hereunder to the Holders of Obligations on a
pro rata basis for application in accordance with the terms of the respective
Credit Agreements.
SECTION 18. Setoff. At any time after all or any part of the Guaranteed
Obligations have become due and payable (by acceleration or otherwise), each
Holder of Obligations and the Agents may, without notice to any Guarantor and
regardless of the acceptance of any security or collateral for the payment
hereof, appropriate and apply toward the payment of all or any part of the
Guaranteed Obligations then due (i) any indebtedness due or to become due from
such Holder of Obligations or the Agents to any Guarantor, and (ii) any moneys,
credits or other property belonging to any Guarantor, at any time held by or
coming into the possession of such Holder of Obligations or the Agents or any of
their respective affiliates.
SECTION 19. Financial Information. Each Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of the
Company and the Subsidiary Borrowers and any and all endorsers and/or other
Guarantors of all or any part of the Guaranteed Obligations, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations,
or any part thereof, that diligent inquiry would reveal, and each Guarantor
hereby agrees that none of the Holders of Obligations or the Agents shall have
any duty to advise such Guarantor of information known to any of them regarding
such condition or any such circumstances. In the event any Holder of Obligations
or any Agent, in its sole discretion, undertakes at any time or from time to
time to provide any such information to a Guarantor, such Holder of Obligations
or such Agent shall be under no obligation (i) to undertake any investigation
not a part of its regular business routine, (ii) to disclose any information
which such Holder of Obligations or such Agent, pursuant to accepted or
reasonable commercial finance or banking practices, wishes to maintain
confidential or (iii) to make any other or future disclosures of such
information or any other information to such Guarantor.
SECTION 20. Severability. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
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SECTION 21. Merger. This Guaranty represents the final agreement of each of
the Guarantors with respect to the matters contained herein and may not be
contradicted by evidence of prior or contemporaneous agreements, or subsequent
oral agreements, between the Guarantor and any Holder of Obligations or any
Agent.
SECTION 22. Headings. Section headings in this Guaranty are for convenience
of reference only and shall not govern the interpretation of any provision of
this Guaranty.
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IN WITNESS WHEREOF, each of the Guarantors has caused this Guaranty to be
duly executed by its authorized officer as of the day and year first above
written.
PECHINEY NORTH AMERICA, INC.
By: Xxxxxx X. Xxxx
Its: Treasurer
AMERICAN NATIONAL CAN COMPANY
By: Xxxxxx X. Xxxx
Its: Vice President and Treasurer
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ANNEX I TO GUARANTY
Reference is hereby made to the Guaranty (the "Guaranty") made as of the
22nd day of July, 1999 by PECHINEY North America, Inc., a Delaware corporation,
and American National Can Company, a Delaware corporation (collectively, the
"Initial Guarantors" and along with any other Material Domestic Subsidiaries and
Subsidiary Borrowers which are Domestic Incorporated Subsidiaries, in each case,
which have become parties thereto and together with the undersigned,
the"Guarantors") in favor of the Administrative Agent, for the ratable benefit
of the Holders of Obligations, under the Credit Agreements. Capitalized terms
used herein and not defined herein shall have the meanings given to them in the
Guaranty. By its execution below, the undersigned [NAME OF NEW GUARANTOR], a
[corporation] [partnership] [limited liability company], agrees to become, and
does hereby become, a Guarantor under the Guaranty and agrees to be bound by
such Guaranty as if originally a party thereto. By its execution below, the
undersigned represents and warrants as to itself that all of the representations
and warranties contained in Section 2 of the Guaranty are true and correct in
all respects as of the date hereof.
IN WITNESS WHEREOF, [NAME OF NEW GUARANTOR], a [corporation] [partnership]
[limited liability company] has executed and delivered this Annex I counterpart
to the Guaranty as of this __________ day of _________, ____.
[NAME OF NEW GUARANTOR]
By:____________________________________
Title:_________________________________
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