EXECUTION COPY
US BORROWERS/SUBSIDIARIES GUARANTY
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XXXXXXXX, dated as of June 28, 2002 (as amended, modified or
supplemented from time to time, this "Guaranty"), made by each of the
undersigned guarantors (each, a "Guarantor" and, together with any other entity
that becomes a guarantor hereunder pursuant to Section 25 hereof, the
"Guarantors"). Except as otherwise defined herein, capitalized terms used herein
and defined in the Credit Agreement (as defined below) shall be used herein as
therein defined.
W I T N E S S E T H :
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WHEREAS, Silgan Holdings Inc. ("Silgan"), Silgan Containers
Corporation ("Containers"), Silgan Plastics Corporation ("Plastics"), Silgan
Containers Manufacturing Corporation ("Manufacturing"), Silgan Can Company
("CanCo"), each other Borrower from time to time party thereto, the lenders from
time to time party thereto (the "Lenders", and each, a "Lender"), Deutsche Bank
Trust Company Americas, as Administrative Agent (in such capacity, and together
with any successor administrative agent, the "Administrative Agent"), Bank of
America, N.A. and Citicorp USA, Inc., as Co-Syndication Agents (in such
capacity, the "Co-Syndication Agents"), Xxxxxx Xxxxxxx Senior Funding, Inc. and
Fleet National Bank, as Co-Documentation Agents (in such capacity, the
"Co-Documentation Agents"), Deutsche Bank Securities Inc. and Banc of America
Securities LLC, as Joint Lead Arrangers (in such capacity, the "Joint Lead
Arrangers"), and Deutsche Bank Securities Inc., Banc of America Securities LLC
and Xxxxxxx Xxxxx Xxxxxx Inc., as Joint Book Managers (in such capacity, the
"Joint Book Managers"), have entered into a Credit Agreement, dated as of June
28, 2002 (as amended, modified or supplemented from time to time, the "Credit
Agreement"), providing for the making of Loans to, and the issuance of Letters
of Credit for the account of, the Borrowers as contemplated therein (the
Lenders, the Administrative Agent, the Collateral Agent, the Issuing Lenders,
the Co-Syndication Agents, the Co-Documentation Agents, the Joint Lead Arrangers
and the Joint Book Managers are collectively referred to herein as the "Lender
Creditors");
WHEREAS, (i) Silgan has heretofore entered into two Interest Rate
Protection Agreements with The Bank of New York (together with its affiliates,
collectively "BNY") (as such Interest Rate Protection Agreements are in effect
on the date hereof and without giving effect to any extension, renewal or
replacement thereof, the "Existing BNY Interest Rate Protection Agreements"),
and (ii) one or more of the Borrowers or Subsidiaries thereof are, or may from
time to time be, party to one or more other Interest Rate Protection Agreements
or Other Hedging Agreements with any 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 assigns and BNY solely in respect of the
Existing BNY Interest Rate Protection Agreements, are herein called the "Other
Creditors" and, together with the Lender Creditors, are herein called the
"Secured Creditors");
WHEREAS, each Guarantor (other than Silgan) is a Subsidiary of Silgan;
WHEREAS, it is a condition precedent to the making of Loans to each
Borrower and the issuance of, and participation in, Letters of Credit for the
account of each Revolving Borrower under the Credit Agreement that each
Guarantor shall have executed and delivered to the Administrative Agent this
Guaranty; and
WHEREAS, each Guarantor will obtain benefits from the incurrence of
Loans and the issuance of, and participation in, Letters of Credit under the
Credit Agreement and the entering into by one or more of the Borrowers or
Subsidiaries thereof of Interest Rate Protection Agreements and 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 the Loans and issue (and/or participate in) the Letters of
Credit under the Credit Agreement and to induce the Other Creditors to enter
into the Interest Rate Protection Agreements and Other Hedging Agreements;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Guarantor, the receipt and sufficiency of which are hereby
acknowledged, each Guarantor hereby makes the following representations and
warranties to the Secured Creditors and hereby covenants and agrees with each
Secured Creditor as follows:
1. Each Guarantor, jointly and severally, and absolutely, irrevocably
and unconditionally, guarantees: (i) to the Lender Creditors, the full and
prompt payment when due (whether at the stated maturity, by acceleration or
otherwise) of all obligations, liabilities and indebtedness (including, without
limitation, all principal, premium, interest (including, without limitation, all
interest that accrues after the commencement of any case, proceeding or other
action relating to the bankruptcy, insolvency, reorganization or similar
proceeding of any Borrower or any Subsidiary thereof at the rate provided for in
the respective documentation, whether or not a claim for post-petition interest
is allowed in any such proceeding), reimbursement obligations under Letters of
Credit, fees, costs and indemnities) of each Borrower to the Lender Creditors,
whether now existing or hereafter incurred under, arising out of, or in
connection with, the Credit Agreement and the other Credit Documents and the due
performance and compliance by each Borrower with all of the terms, conditions
and agreements contained in the Credit Agreement and in the other Credit
Documents (all such obligations, liabilities and indebtedness under this clause
(i), except to the extent consisting of obligations, liabilities or indebtedness
with respect to Interest Rate Protection Agreements and Other Hedging Agreements
entitled to the benefits of this Guaranty, being herein collectively called the
"Credit Document Obligations"); and (ii) to the Other Creditors, the full and
prompt payment when due (whether at the stated maturity, by acceleration or
otherwise) of all obligations, liabilities and indebtedness (including, without
limitation, all interest that accrues after the commencement of any case,
proceeding or other action relating to the bankruptcy, insolvency,
reorganization or similar proceeding of any Borrower or Subsidiary thereof at
the rate provided for in the respective documentation, whether or not a claim
for post-petition interest is allowed in any such proceeding) owing by each
Borrower and Subsidiary thereof to the Other Creditors under, or with respect
to, each Interest Rate Protection Agreement and Other Hedging Agreement entitled
to the benefits of this Guaranty, whether such Interest Rate Protection
Agreement or Other Hedging Agreement is now in existence or hereafter arising,
and the due performance and compliance by each Borrower and each Subsidiary
thereof with all of the terms, conditions and agreements contained therein (all
such obligations, liabilities and indebtedness described in this
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clause (ii) being herein collectively called the "Other Obligations" and,
together with the Credit Document Obligations, are herein collectively called
the "Guaranteed Obligations"). Each Guarantor understands, agrees and confirms
that the Secured Creditors may enforce this Guaranty up to the full amount of
the Guaranteed Obligations against each Guarantor without proceeding against any
other Guarantor, any Borrower, any Subsidiary thereof, against any security for
the Guaranteed Obligations, or under any other guaranty covering all or a
portion of the Guaranteed Obligations. All payments by each Guarantor under this
Guaranty shall be made in the currency or currencies in which the respective
Guaranteed Obligations are required to be paid and on the same basis as payments
are made by the respective Borrowers under Sections 4.03 and 4.04 of the Credit
Agreement. For purposes of this Guaranty, the term "Guarantor" as applied to any
Borrower party thereto shall refer to such Borrower as a guarantor of
indebtedness incurred by the other Borrowers, as opposed to indebtedness
directly incurred by it. This Guaranty constitutes a guaranty of payment, and
not of collection.
2. Additionally, each Guarantor, jointly and severally, and
absolutely, unconditionally and irrevocably, guarantees the payment of any and
all Guaranteed Obligations to the Secured Creditors whether or not due or
payable by such Borrower or any Subsidiary thereof upon the occurrence in
respect of such Borrower or such Subsidiary of any of the events specified in
Section 9.05 of the Credit Agreement, and absolutely, unconditionally and
irrevocably, and jointly and severally, promises to pay such Guaranteed
Obligations to the Secured Creditors, or to their order, on demand, in the
currency or currencies in which the respective Guaranteed Obligations are
required to be paid.
3. The liability of each Guarantor hereunder is primary, absolute,
irrevocable, joint and several and unconditional and is exclusive and
independent of any security for or other guaranty of the Guaranteed Obligations
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 any circumstance or occurrence whatsoever, including
without limitation: (a) any direction as to application of payment by any
Borrower, any Subsidiary thereof or by any other party, (b) any other continuing
or other guaranty, undertaking or maximum liability of a guarantor or of any
other party as to the Guaranteed Obligations, (c) any payment on or in reduction
of any such other guaranty or undertaking, (d) any dissolution, termination or
increase, decrease or change in personnel by any Borrower or any Subsidiary
thereof, (e) any payment made to any Secured Creditor on the Guaranteed
Obligations which any Secured Creditor repays any Borrower, any Subsidiary
thereof or any other Person pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding, and
each Guarantor waives any right to the deferral or modification of its
obligations hereunder by reason of any such proceeding or (f) any action or
inaction by the Secured Creditors as contemplated by Section 5 hereof.
4. The obligations of each Guarantor hereunder are independent of the
obligations of any other Guarantor, any other guarantor, any Borrower or any
Subsidiary thereof, 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, any Borrower or any Subsidiary thereof and
whether or not any other Guarantor, any other guarantor, any Borrower or any
Subsidiary thereof be joined in any such action or actions. Each Guarantor
waives, to the fullest extent permitted by law, the benefits of any statute of
limitations affecting its liability
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hereunder or the enforcement thereof. Any payment by any Borrower or any
Subsidiary thereof or any other circumstance which operates to toll any statute
of limitations as to such Borrower or such Subsidiary shall operate to toll the
statute of limitations as to each Guarantor.
5. Any Secured Creditor may (except as shall be required by applicable
statute and cannot be waived) at any time and from time to time without the
consent of, or notice to, any Guarantor (in its capacity as Guarantor), without
incurring responsibility to such Guarantor, without impairing or releasing the
obligations of such Guarantor hereunder, upon or without any terms or conditions
and in whole or in part:
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew, increase, accelerate or alter, any of
the Guaranteed Obligations (including any increases or decreases in the
rate of interest thereon or the principal amount thereof), any security
therefor, or any liability incurred directly or indirectly in respect
thereof, and the guaranty herein made shall apply to the Guaranteed
Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, impair, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any of
those hereunder) incurred directly or indirectly in respect thereof or
hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against any
Borrower, any other Credit Party or any Subsidiary thereof 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 or any Subsidiary thereof to
creditors of such Borrower or such Subsidiary other than the Secured
Creditors;
(e) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of any Borrower or any Subsidiary thereof to the
Secured Creditors regardless of what liabilities of such Borrower or such
Subsidiary remain unpaid;
(f) consent to or waive any breach of any act, omission or default
under any of the Interest Rate Protection Agreements, the Other Hedging
Agreements, the Credit Documents or any of the instruments or agreements
referred to therein, or otherwise amend, modify or supplement any of the
Interest Rate Protection Agreements, the Other Hedging Agreements, the
Credit Documents or any of such other instruments or agreements;
(g) act or fail to act in any manner which may deprive such Guarantor
of its right to subrogation against any Borrower or any Subsidiaries
thereof to recover full indemnity for any payments made pursuant to this
Guaranty;
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(h) release or substitute any one or more endorsers, Guarantors, other
guarantors, any Borrower, any Subsidiary thereof or other obligors; and/or
(i) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of
such Guarantor from its liabilities under this Guaranty.
6. No invalidity, irregularity or unenforceability of all or any part
of the Guaranteed Obligations or of any security therefor shall affect, impair
or be a defense to this Guaranty, and this Guaranty shall be primary
irrevocable, joint and several, 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 in cash of the Guaranteed Obligations.
7. This Guaranty is a continuing one and all liabilities to which it
applies or may apply under the terms hereof shall be conclusively presumed to
have been created in reliance hereon. No failure or delay on the part of any
Secured Creditor in exercising any right, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein expressly specified are cumulative and not exclusive of any
rights or remedies which any Secured Creditor would otherwise have under any
other Credit Document, any Interest Rate Protection Agreement, any Other Hedging
Agreement, applicable law or otherwise. 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
Secured Creditor to any other or further action in any circumstances without
notice or demand. It is not necessary for any Secured Creditor to inquire into
the capacity or powers of any Guarantor, any Borrower or any Subsidiary thereof
or the officers, directors, partners, members or agents acting or purporting to
act on its or their behalf, in connection with the execution of the Credit
Documents, the Interest Rate Protection Agreements or the Other Hedging
Agreements, and any indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed hereunder.
8. Any indebtedness, obligations or other liabilities of any Borrower
or any Subsidiary thereof now or hereafter held by any Guarantor is hereby
subordinated to the indebtedness, obligations or other liabilities of such
Borrower or Subsidiary to the Secured Creditors, and (x) if a Default or an
Event of Default under Section 9.05 of the Credit Agreement exists, no Borrower
or Subsidiary thereof (or any Person acting on behalf of any Borrower or any
Subsidiary thereof) may make any payment of any kind or character in respect of
such indebtedness, obligations or other liabilities and to the extent that any
Guarantor (or any Person acting on behalf of any Guarantor) shall receive any
such payment, such Guarantor shall hold such amounts in trust for the benefit of
the of the Secured Creditors and shall immediately pay such amounts over to the
Administrative Agent on behalf of the Secured Creditors on account of the
Guaranteed Obligations, or (y) if the Administrative Agent or the Collateral
Agent, after the occurrence and during the continuance of any other Event of
Default, so requests, all such indebtedness, obligations or other liabilities of
such Borrower or Subsidiary shall be collected, enforced and received by such
Guarantor as trustee for the Secured Creditors and be paid over to
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the Secured Creditors on account of the indebtedness, obligations or other
liabilities of such Borrower or Subsidiary to the Secured Creditors, but (in
each case) without affecting or impairing in any manner the liability of such
Guarantor under the other provisions of this Guaranty. Prior to the transfer by
any Guarantor of any note or negotiable instrument evidencing any indebtedness
of any Borrower or any Subsidiary thereof to such Guarantor, such Guarantor
shall mark such note or negotiable instrument with a legend that the same is
subject to this subordination. Without limiting the generality of the foregoing,
each Guarantor hereby agrees with the Secured Creditors that it will not
exercise any right of subrogation which it may at any time otherwise have as a
result of this Guaranty (whether contractual, under Section 509 of the
Bankruptcy Code or otherwise) until all Guaranteed Obligations have been
irrevocably and indefeasibly paid in full in cash.
9. (a) Each Guarantor waives all rights (except as shall be required
by applicable statute or law and cannot be waived) to require the Secured
Creditors to: (i) proceed against any Borrower, any Subsidiary thereof, any
other Guarantor, any other guarantor or any other party; (ii) proceed against or
exhaust any security held from any Borrower, any Subsidiary thereof, any other
Guarantor, any other guarantor or any other party; or (iii) pursue any other
remedy in the Secured Creditors' power whatsoever. Each Guarantor waives (to the
fullest extent permitted by applicable law) any defense based on or arising out
of any defense of any Borrower, any other Guarantor, any other guarantor, any
Subsidiary of any Borrower or any other party other than the indefeasible
payment in full in cash of the Guaranteed Obligations, including, without
limitation, any defense based on or arising out of the disability of any
Borrower, any other Subsidiary of any Borrower, any other Guarantor, any other
guarantor or any other party, or the unenforceability of the Guaranteed
Obligations or any part thereof for any reason or the cessation from any cause
of the liability of any Borrower or any Subsidiary thereof other than the
indefeasible payment in full in cash of the Guaranteed Obligations. The Secured
Creditors may, at their election, foreclose on any security held by the
Administrative Agent, the Collateral Agent or the other Secured Creditors by one
or more judicial or nonjudicial sales, whether or not every aspect of any such
sale is commercially reasonable, or exercise any other right or remedy the
Secured Creditors may have against any Borrower, any Subsidiary thereof 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 indefeasibly paid in full in cash. Each Guarantor waives
any defense arising out of any such election by the Secured Creditors, even
though such election operates to impair or extinguish any right of reimbursement
or subrogation or other right or remedy of such Guarantor against any Borrower,
any Subsidiary thereof or any other party or any security.
(b) Each Guarantor hereby waives (to the fullest extent permitted by
applicable law) promptness, diligence, presentment, demands for payment or
performance, protests and notices, including, without limitation, notices of
nonpayment or nonperformance, notices of protest, notices of dishonor, notices
of acceptance of this Guaranty, notices of any liability to which it may apply,
notices of the existence, creation or incurring of new or additional
indebtedness, notices of suit or taking of other action by the Administrative
Agent, the Collateral Agent or any other Secured Creditor against, and any other
notice to, any party liable thereon (including such Guarantor, any other
guarantor, any Borrower or any Subsidiary thereof). Each Guarantor assumes all
responsibility for being and keeping itself informed of each Borrower's and each
Subsidiary's financial condition and assets, and of all other circumstances
bearing upon
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the risk of nonpayment of the Guaranteed Obligations and the nature, scope and
extent of the risks which such Guarantor assumes and incurs hereunder, and
agrees that the Secured Creditors shall have no duty to advise any Guarantor of
information known to them regarding such circumstances or risks.
(c) Each Guarantor hereby acknowledges, affirms and understands that
to the extent the Guaranteed Obligations are secured by Real Property located in
the State of California, each Guarantor shall be liable for the full amount of
the liability hereunder notwithstanding the foreclosure on such Real Property by
trustee sale or any other reason impairing such Guarantor's or any Secured
Creditor's right to proceed against any Borrower, any other Guarantor, any other
Subsidiary of any Borrower or any other guarantor of the Guaranteed Obligations.
In accordance with Section 2856 of the California Civil Code, each Guarantor
hereby waives:
(i) all rights of subrogation, reimbursement, indemnification, and
contribution and any other rights and defenses that are or may become
available to such Guarantor by reason of Sections 2787 to 2855, inclusive,
2899 and 3433 of the California Civil Code;
(ii) all rights and defenses that such Guarantor may have because the
Guaranteed Obligations are secured by Real Property located in the State of
California. This means, among other things: (A) the Secured Creditors may
collect from any Guarantor without first foreclosing on any real or
personal property collateral pledged by any Borrower or any Subsidiary
thereof; and (B) if the Secured Creditors foreclose on any Real Property
collateral pledged by any Borrower or any Subsidiary thereof, (1) the
amount of the Guaranteed Obligations may be reduced only by the price for
which that collateral is sold at the foreclosure sale, even if the
collateral is worth more than the sale price, and (2) the Secured Creditors
may collect from any Guarantor even if the Secured Creditors, by
foreclosing on the Real Property collateral, have destroyed any right such
Guarantor may have to collect from any Borrower or any Subsidiary thereof.
This is an unconditional and irrevocable waiver of any rights and defenses
each Guarantor may have because the Guaranteed Obligations are secured by
Real Property. These rights and defenses include, but are not limited to,
any rights or defenses based upon Section 580a, 580b, 580d or 726 of the
California Code of Civil Procedure; and
(iii) all rights and defenses arising out of an election of remedies
by the Secured Creditors, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for the Guaranteed
Obligations, has destroyed any Guarantor's rights of subrogation and
reimbursement against any Borrower or any Subsidiary thereof by the
operation of Section 580d of the California Code of Civil Procedure or
otherwise.
Each Guarantor warrants and agrees that each of the waivers set forth above is
made with full knowledge of its significance and consequences and that if any of
such waivers is determined to be contrary to any applicable law or public
policy, such waivers shall be effective only to the maximum extent permitted by
law.
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10. The Secured Creditors agree that this Guaranty may be enforced
only by the action of the Administrative Agent or the Collateral Agent, in each
case acting upon the instructions of the Required Secured Creditors (as defined
in the US Security Agreement) and that no other Secured Creditor shall have any
right individually to seek to enforce or to enforce this Guaranty or to realize
upon the security to be granted by the Security Documents, it being understood
and agreed that such rights and remedies may be exercised by the Administrative
Agent or the Collateral Agent for the benefit of the Secured Creditors upon the
terms of this Guaranty and the Security Documents. The Secured Creditors further
agree that this Guaranty may not be enforced against any director, officer,
employee, member, partner or stockholder of any Guarantor (except to the extent
such member, partner or stockholder is also a Guarantor hereunder).
11. In order to induce the Lenders to make Loans and issue or
participate in Letters of Credit pursuant to the Credit Agreement, and in order
to induce the Other Creditors to execute, deliver and perform the Interest Rate
Protection Agreements and Other Hedging Agreements, each Guarantor represents,
warrants and covenants (as to itself and each of its Subsidiaries), in each case
after giving effect to the transactions to occur on the Initial Borrowing Date,
that:
(a) Such Guarantor and each of its Subsidiaries (i) is a duly
organized and validly existing corporation, partnership or limited
liability company, as the case may be, in good standing under the laws of
the jurisdiction of its organization, (ii) has the corporate, partnership
or limited liability company power and authority, as the case may be, to
own its property and assets and to transact the business in which it is
engaged and presently proposes to engage and (iii) is duly qualified as a
foreign corporation, partnership or limited liability company, as the case
may be, and is in good standing in each jurisdiction where the ownership,
leasing or operation of property or the conduct of its business requires
such qualification, except in the jurisdictions where the failure to be so
qualified could not reasonably be expected to, either individually or in
the aggregate, have a Material Adverse Effect.
(b) Such Guarantor has the corporate, partnership or limited liability
company, as the case may be, power and authority to execute, deliver and
carry out the terms and provisions of this Guaranty and each other Credit
Document to which it is a party and has taken all necessary corporate,
partnership or limited liability company action, as the case may be, to
authorize the execution, delivery and performance by it of each such Credit
Document. Such Guarantor has duly executed and delivered this Guaranty and
each other Credit Document to which it is a party and each such Credit
Document constitutes the legal, valid and binding obligation of such
Guarantor enforceable in accordance with its terms, except to the extent
that the enforceability hereof or thereof may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting
creditors' rights generally and by equitable principles (regardless of
whether enforcement is sought in equity or at law).
(c) Neither the execution, delivery or performance by such Guarantor
of this Guaranty or any other Credit Document to which it is a party, nor
compliance by it with any of the terms and provisions hereof or thereof (i)
will contravene any applicable
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provision of any law, statute, rule or regulation, or any order, writ,
injunction or decree of any court or governmental instrumentality, (ii)
will conflict or be inconsistent with or result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default
under, or result in the creation or imposition of (or the obligation to
create or impose) any Lien (except pursuant to the Security Documents) upon
any of the property or assets of such Guarantor or any of its Subsidiaries
pursuant to the terms of any indenture, mortgage, deed of trust, credit
agreement, loan agreement or any other material agreement, contract or
instrument to which such Guarantor or any of its Subsidiaries is a party or
by which it or any of its property or assets is bound or to which it may be
subject or (iii) will violate any provision of the certificate of
incorporation or by-laws (or equivalent organizational documents) of such
Guarantor or any of its Subsidiaries.
(d) No order, consent, approval, license, authorization or validation
of, or filing, recording or registration with (except as have been obtained
or made and except for any filings of financing statements, mortgages and
other documents required by the Security Documents, all of which have been
made), or exemption by, any governmental or public body or authority, or
any subdivision thereof, is required to authorize, or is required in
connection with, (i) the execution, delivery and performance of this
Guaranty or any other Credit Document to which such Guarantor is a party or
(ii) the legality, validity, binding effect or enforceability of this
Guaranty or any other Credit Document to which such Guarantor is a party.
(e) There are no actions, suits, investigations or proceedings pending
or, to the best knowledge of such Guarantor, threatened (i) with respect to
this Guaranty or any other Credit Document to which such Guarantor is a
party or (ii) that are reasonably likely, either individually or in the
aggregate, to have a Material Adverse Effect.
12. Each Guarantor covenants and agrees that on and after the date
hereof and until the termination of the Total Commitment and all Interest Rate
Protection Agreements and Other Hedging Agreements entitled to the benefits of
the Guaranty and when no Loan, Note or Letter of Credit remains outstanding and
all Guaranteed Obligations have been indefeasibly paid in full in cash (other
than indemnities described in Section 12.13 of the Credit Agreement and
analogous provisions in the Security Documents which are not then due and
payable), such Guarantor shall, and shall cause each of its Subsidiaries to
take, or refrain from taking, as the case may be, all actions that are necessary
to be taken or not taken so that neither such Guarantor nor any of its
Subsidiaries are in violation of any provision, covenant or agreement contained
in Section 7 or 8 of the Credit Agreement, and so that no Default or Event of
Default is caused by the actions of such Guarantor or any of its Subsidiaries.
13. The Guarantors hereby jointly and severally agree to pay all
reasonable out-of-pocket costs and expenses of each Secured Creditor in
connection with the enforcement of this Guaranty and of the Administrative Agent
and each other Agent in connection with any amendment, waiver or consent
relating hereto (including, without limitation, the reasonable fees and
disbursements of counsel (including, without duplication, in-house counsel) and
consultants employed or retained by the Administrative Agent and, after the
occurrence of an Event of Default, one additional counsel employed or retained
by the other Secured Creditors as a group).
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14. This Guaranty shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the Secured Creditors
and their successors and assigns, provided that no Guarantor may assign any of
its rights or obligations hereunder, except in accordance with the terms of the
Credit Agreement.
15. Neither this Guaranty nor any provision hereof may be changed,
waived, discharged or terminated except as provided in the US Security
Agreement.
16. Each Guarantor acknowledges that an executed (or conformed) copy
of each of the Credit Documents and Interest Rate Protection Agreements and
Other Hedging Agreements entitled to the benefits of the Guaranty has been made
available to its principal executive officers and such officers are familiar
with the contents thereof.
17. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Creditor Law) and not by way of limitation of any such rights, upon
the occurrence and during the continuance of an Event of Default (such term to
mean and include any "Event of Default" as defined in the Credit Agreement or
any payment default under any Interest Rate Protection Agreement or Other
Hedging Agreement continuing after any applicable grace period), each Secured
Creditor is hereby authorized at any time or from time to time, without notice
to any Guarantor or to any other Person, any such notice being expressly waived,
to set off and to appropriate and apply any and all deposits (general or
special) and any other indebtedness at any time held or owing by such Secured
Creditor to or for the credit or the account of such Guarantor, against and on
account of the indebtedness, obligations and liabilities of such Guarantor to
such Secured Creditor under this Guaranty, irrespective of whether or not such
Secured Creditor shall have made any demand hereunder and although said
indebtedness, obligations, liabilities, deposits or claims, or any of them,
shall be contingent or unmatured. Notwithstanding anything to the contrary
contained in this Section 17, no Secured Creditor shall exercise any such right
of set-off without the prior consent of the Administrative Agent or the Required
Secured Creditors so long as the Guaranteed Obligations shall be secured by any
Real Property located in the State of California; it being understood and
agreed, however, that this sentence is for the sole benefit of the Secured
Creditors and may be amended, modified or waived in any respect by the Required
Secured Creditors without the requirement of prior notice to or consent by any
Credit Party and does not constitute a waiver of any rights against any Credit
Party or against any Collateral.
18. All notices, requests, demands or other communications pursuant
hereto shall be deemed to have been duly given or made when delivered to the
Person to which such notice, request, demand or other communication is required
or permitted to be given or made under this Guaranty, addressed to such party at
(i) in the case of any Lender Creditor, as provided in the Credit Agreement,
(ii) in the case of any Guarantor, at c/o Silgan Holdings Inc., 0 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: General Counsel,
Telephone No.: (000) 000-0000, Telecopier No.: (000) 000-0000, and (iii) in the
ease of any Other Creditor, at such address as such Other Creditor shall have
specified in writing to Silgan; or in any case at such other address as any of
the Persons listed above may hereafter notify the others in writing.
10
19. If claim is ever made upon any Secured Creditor for repayment or
recovery of any amount or amounts received in payment or on account of any of
the Guaranteed Obligations and any of the aforesaid payees repays all or part of
said amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its property
or (ii) any settlement or compromise of any such claim effected by such payee
with any such claimant (including any Borrower or any Subsidiary thereof), 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 or any Subsidiary thereof, and such Guarantor shall be and remain
liable to the aforesaid payees hereunder for the amount so repaid or recovered
to the same extent as if such amount had never originally been received by any
such payee.
20. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE SECURED
CREDITORS AND OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. Any legal action or proceeding
with respect to this Guaranty or any other Credit Document to which such
Guarantor is a party may be brought in the courts of the State of New York or of
the United States of America for the Southern District of New York, in each case
which are located in the County of New York, and, by execution and delivery of
this Guaranty, each Guarantor hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. Each Guarantor hereby further irrevocably waives any claim
that any such courts lack personal jurisdiction over such Guarantor, and agrees
not to plead or claim, in any legal action or proceeding with respect to this
Guaranty or any other Credit Document to which such Guarantor is a party brought
in any of the aforesaid courts, that any such court lacks personal jurisdiction
over such Guarantor. Each Guarantor further irrevocably ___ consents to the
service of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to each Guarantor at its address set forth above, such service
to become effective 30 days after such mailing. Each Guarantor hereby
irrevocably waives any objection to such service of process and further
irrevocably waives and agrees not to plead or claim in any action or proceeding
commenced hereunder or under any other Credit Document to which such Guarantor
is a party that service of process was in any way invalid or ineffective.
Nothing herein shall affect the right of any of the Secured Creditors to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against each Guarantor in any other jurisdiction.
(b) Each Guarantor hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Guaranty or any other
Credit Document brought in the courts referred to in clause (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that such action or proceeding brought in any such court has been brought in an
inconvenient forum.
21. In the event that all of the capital stock of one or more
Guarantors is sold or otherwise disposed of or liquidated in compliance with the
requirements of Section 8.02 of the Credit Agreement (or such sale or other
disposition or liquidation has been approved in writing
11
by the Required Secured Creditors), upon the consummation of such sale,
disposition or liquidation such Guarantor shall be released from this Guaranty
and this Guaranty shall, as to each such Guarantor or Guarantors, terminate, and
have no further force or effect (it being understood and agreed that the sale of
one or more Persons that own, directly or indirectly, all of the capital stock
or other equity interests of any Guarantor shall be deemed to be a sale of such
Guarantor for the purposes of this Section 21).
22. This Guaranty may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. A set of counterparts executed by all
the parties hereto shall be lodged with each Guarantor and the Administrative
Agent.
23. EACH GUARANTOR AND EACH OF THE SECURED CREDITORS (BY THEIR
ACCEPTANCE OF THE BENEFITS HEREOF) HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS GUARANTY, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
24. All payments made by any Guarantor hereunder will be made without
setoff, counterclaim or other defense.
25. It is understood and agreed that any Subsidiary of Silgan that is
required to execute a counterpart of this Guaranty after the date hereof
pursuant to the Credit Agreement shall automatically become a Guarantor
hereunder by executing a counterpart hereof and delivering the same to the
Administrative Agent.
26. At any time a payment in respect of the Guaranteed Obligations is
made under this Guaranty, the right of contribution of each Guarantor against
each other Guarantor shall be determined as provided in the immediately
following sentence, with the right of contribution of each Guarantor to be
revised and restated as of each date on which a payment (a "Relevant Payment")
is made on the Guaranteed Obligations under this Guaranty. At any time that a
Relevant Payment is made by a Guarantor that results in the aggregate payments
made by such Guarantor in respect of the Guaranteed Obligations to and including
the date of the Relevant Payment exceeding such Guarantor's Contribution
Percentage (as defined below) of the aggregate payments made by all Guarantors
in respect of the Guaranteed Obligations to and including the date of the
Relevant Payment (such excess, the "Aggregate Excess Amount"), each such
Guarantor shall have a right of contribution against each other Guarantor who
has made payments in respect of the Guaranteed Obligations to and including the
date of the Relevant Payment in an aggregate amount less than such other
Guarantor's Contribution Percentage of the aggregate payments made to and
including the date of the Relevant Payment by all Guarantors in respect of the
Guaranteed Obligations (the aggregate amount of such deficit, the "Aggregate
Deficit Amount") in an amount equal to (x) a fraction the numerator of which is
the Aggregate Excess Amount of such Guarantor and the denominator of which is
the Aggregate Excess Amount of all Guarantors multiplied by (y) the Aggregate
Deficit Amount of such other Guarantors. A Guarantor's right of contribution
pursuant to the preceding sentences shall arise
12
at the time of each computation, subject to adjustment to the time of any
subsequent computation; provided, that no Guarantor may take any action to
enforce such right until the Guaranteed Obligations have been indefeasibly paid
in full in cash and the Total Commitment and all Letters of Credit and Interest
Rate Protection Agreements and Other Hedging Agreements have been terminated, it
being expressly recognized and agreed by all parties hereto that any Guarantor's
right of contribution arising pursuant to this Section 26 against any other
Guarantor shall be expressly junior and subordinate to such other Guarantor's
indebtedness, obligations and liabilities in respect of the Guaranteed
Obligations and any other obligations owing under this Guaranty. As used in this
Section 26: (i) each Guarantor's "Contribution Percentage" shall mean the
percentage obtained by dividing (x) the Adjusted Net Worth (as defined below) of
such Guarantor by (y) the aggregate Adjusted Net Worth of all Guarantors; (ii)
the "Adjusted Net Worth" of each Guarantor shall mean the greater of (x) the Net
Worth (as defined below) of such Guarantor and (y) zero; and (iii) the "Net
Worth" of each Guarantor shall mean the amount by which the fair salable value
of such Guarantor's assets on the date of any Relevant Payment exceeds its
existing debts and other liabilities (including contingent liabilities, but
without giving effect to any Guaranteed Obligations arising under this Guaranty
and, to the maximum extent permitted by applicable law, any liabilities of such
Guarantor in respect of any Permitted Subordinated Indebtedness or any other
indebtedness that is subordinated to the Guaranteed Obligations or any
obligations arising under this Guaranty) on such date. All parties hereto
recognize and agree that, except for any right of contribution arising pursuant
to this Section 26, each Guarantor that makes any payment in respect of the
Guaranteed Obligations shall have no right of contribution or subrogation
against any other Guarantor in respect of such payment. Each of the Guarantors
recognizes and acknowledges that the rights to contribution arising hereunder
shall constitute an asset in favor of the party entitled to such contribution.
In this connection, each Guarantor has the right to waive its contribution right
against any Guarantor to the extent that after giving effect to such waiver such
Guarantor would remain solvent, in the reasonable determination of the Required
Lenders.
27. Each Secured Creditor (by its acceptance of the benefits hereof)
and each Guarantor hereby confirms that it is its intention that this Guaranty
not constitute a fraudulent transfer or conveyance for purposes of the
Bankruptcy Code, the Uniform Fraudulent Transfer Act or any similar federal or
state law. To effectuate the foregoing intention, each Secured Creditor and each
Guarantor hereby irrevocably agrees that the Guaranteed Obligations guaranteed
by each Guarantor under this Guaranty shall be limited to such amount as will,
after giving effect to such maximum amount and all of such Guarantor's other
(contingent or otherwise) liabilities that are relevant under such laws (but
excluding, to the maximum extent permitted by applicable law, any liabilities of
a Guarantor arising under any Permitted Subordinated Indebtedness or any other
indebtedness that is subordinated to the Guaranteed Obligations or any
obligations under this Guaranty), and after giving effect to any rights to
contribution pursuant to any agreement providing for an equitable contribution
among the Guarantors (including pursuant to Section 26 hereof), result in the
Guaranteed Obligations of such Guarantor in respect of such maximum amount not
constituting a fraudulent transfer or conveyance.
28. (a) The Guarantors' obligations hereunder to make payments in the
respective currency or currencies in which the respective Guaranteed Obligations
are required to be paid (such currency being herein called the "Obligation
Currency") shall not be discharged or
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satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency, except to the
extent that such tender or recovery results in the effective receipt by the
Administrative Agent, the Collateral Agent or the respective Secured Creditor of
the full amount of the Obligation Currency expressed to be payable to the
Administrative Agent, the Collateral Agent or such other Secured Creditor under
this Guaranty, the other Credit Documents or the Interest Rate Protection
Agreements or Other Hedging Agreements, as applicable. If for the purpose of
obtaining or enforcing judgment against any Guarantor in any court or in any
jurisdiction, it becomes necessary to convert into or from any currency other
than the Obligation Currency (such other currency being hereinafter referred to
as the "Judgment Currency") an amount due in the Obligation Currency, the
conversion shall be made at the Relevant Currency Equivalent thereof or, in the
case of a conversion into currencies other than Dollars or a Primary Alternate
Currency, the rate of exchange (quoted by the Administrative Agent) or if the
Administrative Agent does not quote a rate of exchange on such currency, by a
known dealer in such currency designated by the Administrative Agent)
determined, in each case, as of the day on which the judgment is given (such
Business Day being hereinafter referred to as the "Judgment Currency Conversion
Date").
(b) If there is a change in the rate of exchange prevailing between
the Judgment Currency Conversion Date and the date of actual payment of the
amount due, the Guarantors jointly and severally covenant and agree to pay, or
cause to be paid, such additional amounts, if any (but in any event not a lesser
amount), as may be necessary to ensure that the amount paid in the Judgment
Currency, when converted at the rate of exchange prevailing on the date of
payment, will produce the amount of the Obligation Currency which could have
been purchased with the amount of Judgment Currency stipulated in the judgment
or judicial award at the rate or exchange prevailing on the Judgment Currency
Conversion Date.
(c) For purposes of determining the Relevant Currency Equivalent or
any other rate of exchange for this Section 28, such amounts shall include any
premium and costs payable in connection with the purchase of the Obligation
Currency.
*****
14
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
SILGAN HOLDINGS INC.,
as an Guarantor
By: /s/ Xxxxx X. Xxxxx, III
---------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Senior Vice President, General Counsel
and Secretary
SILGAN CONTAINERS CORPORATION,
as an Guarantor
By: /s/ Xxxxx X. Xxxxx, III
---------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Vice President, General Counsel
and Secretary
SILGAN PLASTICS CORPORATION,
as an Guarantor
By: /s/ Xxxxx X. Xxxxx, III
---------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Vice President, General Counsel
and Secretary
SILGAN CONTAINERS MANUFACTURING
CORPORATION,
as an Guarantor
By: /s/ Xxxxx X. Xxxxx, III
---------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Vice President, General Counsel
and Secretary
SILGAN LLC, as an Guarantor
By: SILGAN CONTAINERS MANUFACTURING
COMPANY, as Manager
By: /s/ Xxxxx X. Xxxxx, III
---------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Vice President, General Counsel
and Secretary
SILGAN CORPORATION, as an Guarantor
By: /s/ Xxxxx X. Xxxxx, III
---------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Vice President, General Counsel
and Secretary
RXI PLASTICS, INC., as an Guarantor
By: /s/ Xxxxx X. Xxxxx, III
---------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Vice President, General Counsel
and Secretary
SILGAN VACUUM CLOSURE HOLDING
COMPANY, as an Guarantor
By: /s/ Xxxxx X. Xxxxx, III
---------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Vice President, General Counsel
and Secretary
16
Accepted and agreed:
DEUTSCHE BANK TRUST
COMPANY AMERICAS,
as Administrative Agent
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxx
Title: Director
17
