GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty Agreement"), dated as of April
[24], 2002, is made by EACH OF THE UNDERSIGNED AND EACH OTHER PERSON WHO SHALL
BECOME A PARTY HERETO BY EXECUTION OF A GUARANTY JOINDER AGREEMENT (each a
"Guarantor" and collectively the "Guarantors") to BANK OF AMERICA, N.A., a
national banking association organized and existing under the laws of the United
States, as administrative agent (in such capacity, the "Administrative Agent")
for each of the lenders (the "Lenders" and collectively with the Administrative
Agent, the "Secured Parties") now or hereafter party to the Credit Agreement (as
defined below). All capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to such terms in the Credit Agreement.
W I T N E S S E T H:
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WHEREAS, the Secured Parties have agreed to provide to Alltrista
Corporation, a Delaware corporation (the "Borrower") certain credit facilities,
including a term loan facility and revolving credit facility with a letter of
credit and swing line sublimit pursuant to the terms of that certain Credit
Agreement dated as of April [24], 2002, among the Borrower, the Administrative
Agent, Canadian Imperial Bank of Commerce, as Syndication Agent and National
City Bank of Indiana, as Documentation Agent and the Lenders (as from time to
time amended, revised, modified, supplemented, amended and restated or replaced,
renewed, refunded or refinanced, the "Credit Agreement"); and
WHEREAS, each Guarantor is, directly or indirectly, a Domestic
Subsidiary of the Borrower and will materially benefit from the Loans made and
to be made, and the Letters of Credit issued and to be issued, under the Credit
Agreement; and
WHEREAS, each Guarantor is required to enter into this Guaranty
Agreement pursuant to the terms of the Credit Agreement; and
WHEREAS, a material part of the consideration given in connection with
and as an inducement to the execution and delivery of the Credit Agreement by
the Secured Parties was the obligation of the Borrower to cause each Guarantor
to enter into this Guaranty Agreement, and the Secured Parties are unwilling to
extend and maintain the credit facilities provided under the Loan Documents
unless the Guarantors enter into this Guaranty Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree as follows:
1. GUARANTY. Each Guarantor hereby jointly and severally,
unconditionally, absolutely, continually and irrevocably guarantees to the
Administrative Agent for the benefit of the Secured Parties the payment and
performance in full of the Borrower's Liabilities (as defined below). For all
purposes of this Guaranty Agreement, "Borrower's Liabilities" means: (a) the
Borrower's prompt payment in full, when due or declared due and at all such
times, of all
Obligations and all other amounts pursuant to the terms of the Credit Agreement,
the Notes, and all other Loan Documents heretofore, now or at any time or times
hereafter owing, arising, due or payable from the Borrower to any one or more of
the Secured Parties, including principal, interest, premiums and fees
(including, but not limited to, loan fees and Attorney Costs); (b) the
Borrower's prompt, full and faithful performance, observance and discharge of
each and every agreement, undertaking, covenant and provision to be performed,
observed or discharged by the Borrower under the Credit Agreement and all other
Loan Documents; and (c) the Borrower's prompt payment in full, when due or
declared due and at all such times, of obligations and liabilities now or
hereafter arising under Related Swap Contracts. The Guarantors' obligations to
the Secured Parties under this Guaranty Agreement are hereinafter collectively
referred to as the "Guarantors' Obligations" and, with respect to each Guarantor
individually, the "Guarantor's Obligations". Notwithstanding anything to the
contrary contained in this Guaranty Agreement, the liability of each Guarantor
individually with respect to its Guarantor's Obligations shall be limited to an
aggregate amount equal to the largest amount that would not render its
obligations hereunder subject to avoidance under Section 548 of the United
States Bankruptcy Code or any comparable provisions of any applicable state law.
Each Guarantor agrees that it is jointly and severally, directly and
primarily liable (subject to the limitation in the immediately preceding
sentence) for the Borrower's Liabilities.
The Guarantors' Obligations are secured by various Security Instruments
referred to in the Credit Agreement, including without limitation the Pledge
Agreement (including the Pledge Joinder Agreements and the Pledge Agreement
Supplements), the Security Agreement (including the Security Joinder
Agreements), the IP Security Agreement (including the IP Security Joinder
Agreements), and all other agreements (including control agreements),
instruments and other documents, whether now existing or hereafter in effect,
pursuant to which the Borrower or any Subsidiary or other Person shall grant or
convey to the Administrative Agent or the Lenders a Lien in, or any other Person
shall acknowledge any such Lien in, property as security for all or any portion
of the Obligations or any other obligation under any Loan Document, as any of
them may be amended, modified, supplemented, amended and restated or replaced
from time to time.
2. PAYMENT. If the Borrower shall default in payment or performance of
any of the Borrower's Liabilities, whether principal, interest, premium, fee
(including, but not limited to, loan fees and Attorney Costs), or otherwise,
when and as the same shall become due, and after expiration of any applicable
grace period, whether according to the terms of the Credit Agreement, by
acceleration, or otherwise, or upon the occurrence and during the continuance of
any Event of Default under the Credit Agreement, then any or all of the
Guarantors will, upon demand thereof by the Administrative Agent, fully pay to
the Administrative Agent, for the benefit of the Secured Parties, subject to any
restriction on each Guarantor's Obligations set forth in Section 1 hereof, an
amount equal to all the Borrower's Liabilities then due and owing.
3. ABSOLUTE RIGHTS AND OBLIGATIONS. This is a guaranty of payment and
not of collection. The Guarantors' Obligations under this Guaranty Agreement
shall be joint and several, absolute and unconditional irrespective of, and each
Guarantor hereby expressly waives, to the extent permitted by law, any defense
to its obligations under this Guaranty Agreement and all Security Instruments to
which it is a party by reason of:
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(a) any lack of legality, validity or enforceability of the
Credit Agreement, of any of the Notes, of any other Loan Document, or
of any other agreement or instrument creating, providing security for,
or otherwise relating to any of the Guarantors' Obligations, any of the
Borrower's Liabilities, or any other guaranty of any of the Borrower's
Liabilities (the Loan Documents and all such other agreements and
instruments being collectively referred to as the "Related
Agreements");
(b) any action taken under any of the Related Agreements, any
exercise of any right or power therein conferred, any failure or
omission to enforce any right conferred thereby, or any waiver of any
covenant or condition therein provided;
(c) any acceleration of the maturity of any of the Borrower's
Liabilities, of the Guarantor's Obligations of any other Guarantor, or
of any other obligations or liabilities of any Person under any of the
Related Agreements;
(d) any release, exchange, non-perfection, lapse in
perfection, disposal, deterioration in value, or impairment of any
security for any of the Borrower's Liabilities, for any of the
Guarantor's Obligations of any Guarantor, or for any other obligations
or liabilities of any Person under any of the Related Agreements;
(e) any dissolution of the Borrower or any Guarantor or any
other party to a Related Agreement, or the combination or consolidation
of the Borrower or any Guarantor or any other party to a Related
Agreement into or with another entity or any transfer or disposition of
any assets of the Borrower or any Guarantor or any other party to a
Related Agreement;
(f) any extension (including without limitation extensions of
time for payment), renewal, amendment, restructuring or restatement of,
any acceptance of late or partial payments under, or any change in the
amount of any borrowings or any credit facilities available under, the
Credit Agreement, any of the Notes or any other Loan Document or any
other Related Agreement, in whole or in part;
(g) the existence, addition, modification, termination,
reduction or impairment of value, or release of any other guaranty (or
security therefor) of the Borrower's Liabilities (including without
limitation the Guarantor's Obligations of any other Guarantor and
obligations arising under any other Facility Guaranty now or hereafter
in effect);
(h) any waiver of, forbearance or indulgence under, or other
consent to any change in or departure from any term or provision
contained in the Credit Agreement, any other Loan Document or any other
Related Agreement, including without limitation any term pertaining to
the payment or performance of any of the Borrower's Liabilities, any of
the Guarantor's Obligations of any other Guarantor, or any of the
obligations or liabilities of any party to any other Related Agreement;
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(i) any other circumstance whatsoever (with or without notice
to or knowledge of any Guarantor) which may or might in any manner or
to any extent vary the risks of such Guarantor, or might otherwise
constitute a legal or equitable defense available to, or discharge of,
a surety or a guarantor, including without limitation any right to
require or claim that resort be had to the Borrower or any other Loan
Party or to any collateral in respect of the Borrower's Liabilities or
Guarantors' Obligations.
It is the express purpose and intent of the parties hereto that this Guaranty
Agreement and the Guarantors' Obligations hereunder shall be absolute and
unconditional under any and all circumstances and shall not be discharged except
by payment as herein provided.
4. CURRENCY AND FUNDS OF PAYMENT. All Guarantors' Obligations will be
paid in lawful currency of the United States of America and in immediately
available funds, regardless of any law, regulation or decree now or hereafter in
effect that might in any manner affect the Borrower's Liabilities, or the rights
of any Secured Party with respect thereto as against the Borrower, or cause or
permit to be invoked any alteration in the time, amount or manner of payment by
the Borrower of any or all of the Borrower's Liabilities.
5. EVENTS OF DEFAULT. Without limiting the provisions of Section 2
hereof, in the event that there shall occur and be continuing an Event of
Default, then notwithstanding any collateral or other security or credit support
for the Borrower's Liabilities, at the Administrative Agent's election and upon
written notice thereof, the Guarantors' Obligations shall immediately be and
become due and payable.
6. SUBORDINATION. Until this Guaranty Agreement is terminated in
accordance with Section 22 hereof, each Guarantor hereby unconditionally
subordinates all present and future debts, liabilities or obligations now or
hereafter owing to such Guarantor (i) of the Borrower, to the payment in full of
the Borrower's Liabilities, (ii) of every other Guarantor (an "obligated
guarantor"), to the payment in full of the Guarantors' Obligations of such
obligated guarantor, and (iii) of each other Person now or hereafter
constituting a Loan Party, to the payment in full of the obligations of such
Loan Party owing to any Secured Party and arising under the Loan Documents. All
amounts due under such subordinated debts, liabilities, or obligations shall,
upon the occurrence and during the continuance of an Event of Default, be
collected and, upon request by the Administrative Agent, paid over forthwith to
the Administrative Agent for the benefit of the Secured Parties on account of
the Borrower's Liabilities, the Guarantors' Obligations, or such other
obligations, as applicable, and, after such request and pending such payment,
shall be held by such Guarantor as agent and bailee of the Secured Parties
separate and apart from all other funds, property and accounts of such
Guarantor.
7. SUITS. Each Guarantor from time to time shall pay to the
Administrative Agent for the benefit of the Secured Parties, on demand, at the
Administrative Agent's place of business set forth in the Credit Agreement or
such other address as the Administrative Agent shall give notice of to such
Guarantor, the Guarantors' Obligations as they become or are declared due, and
in the event such payment is not made forthwith, the Administrative Agent may
proceed to suit against any one or more or all of the Guarantors. At the
Administrative Agent's election, one or more and successive or concurrent suits
may be brought hereon by the
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Administrative Agent against any one or more or all of the Guarantors, whether
or not suit has been commenced against the Borrower, any other Guarantor, or any
other Person and whether or not the Secured Parties have taken or failed to take
any other action to collect all or any portion of the Borrower's Liabilities or
have taken or failed to take any actions against any collateral securing payment
or performance of all or any portion of the Borrower's Liabilities, and
irrespective of any event, occurrence, or condition described in Section 3
hereof.
8. SET-OFF AND WAIVER. Each Guarantor waives any right to assert
against any Secured Party as a defense, counterclaim, set-off, recoupment or
cross claim in respect of its Guarantor's Obligations, any defense (legal or
equitable) or other claim which such Guarantor may now or at any time hereafter
have against the Borrower or any or all of the Secured Parties without waiving
any additional defenses, set-offs, counterclaims or other claims otherwise
available to such Guarantor. Each Guarantor agrees that each Secured Party shall
have a lien for all the Guarantor's Obligations upon all deposits or deposit
accounts, of any kind, or any interest in any deposits or deposit accounts, now
or hereafter pledged, mortgaged, transferred or assigned to such Secured Party
or otherwise in the possession or control of such Secured Party for any purpose
(other than solely for safekeeping) for the account or benefit of such
Guarantor, including any balance of any deposit account or of any credit of such
Guarantor with the Secured Party, whether now existing or hereafter established,
and hereby authorizes each Secured Party from and after the occurrence of an
Event of Default at any time or times with or without prior notice to apply such
balances or any part thereof to such of the Guarantor's Obligations to the
Secured Parties then due and in such amounts as provided for in the Credit
Agreement or otherwise as they may elect. For the purposes of this Section 8,
all remittances and property shall be deemed to be in the possession of a
Secured Party as soon as the same may be put in transit to it by mail or carrier
or by other bailee.
9. WAIVER OF NOTICE; SUBROGATION.
(a) Each Guarantor hereby waives to the extent permitted by
law notice of the following events or occurrences: (i) acceptance of
this Guaranty Agreement; (ii) the Lenders' heretofore, now or from time
to time hereafter making Loans and issuing Letters of Credit and
otherwise loaning monies or giving or extending credit to or for the
benefit of the Borrower, whether pursuant to the Credit Agreement or
the Notes or any other Loan Document or Related Agreement or any
amendments, modifications, or supplements thereto, or replacements or
extensions thereof; (iii) presentment, demand, default, non-payment,
partial payment and protest; and (iv) any other event, condition, or
occurrence described in Section 3 hereof. Each Guarantor agrees that
each Secured Party may heretofore, now or at any time hereafter do any
or all of the foregoing in such manner, upon such terms and at such
times as each Secured Party, in its sole and absolute discretion, deems
advisable, without in any way or respect impairing, affecting, reducing
or releasing such Guarantor from its Guarantor's Obligations, and each
Guarantor hereby consents to each and all of the foregoing events or
occurrences.
(b) Each Guarantor hereby agrees that payment or performance
by such Guarantor of its Guarantor's Obligations under this Guaranty
Agreement may be enforced by the Administrative Agent on behalf of the
Secured Parties upon demand by
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the Administrative Agent to such Guarantor without the Administrative
Agent being required, such Guarantor expressly waiving to the extent
permitted by law any right it may have to require the Administrative
Agent, to (i) prosecute collection or seek to enforce or resort to any
remedies against the Borrower or any other Guarantor or any other
guarantor of the Borrower's Liabilities, or (ii) seek to enforce or
resort to any remedies with respect to any security interests, Liens
or encumbrances granted to the Administrative Agent or any Lender or
other party to a Related Agreement by the Borrower, any other
Guarantor or any other Person on account of the Borrower's Liabilities
or any guaranty thereof, IT BEING EXPRESSLY UNDERSTOOD, ACKNOWLEDGED
AND AGREED TO BY SUCH GUARANTOR THAT DEMAND UNDER THIS GUARANTY
AGREEMENT MAY BE MADE BY THE ADMINISTRATIVE AGENT, AND THE PROVISIONS
HEREOF ENFORCED BY THE ADMINISTRATIVE AGENT, EFFECTIVE AS OF THE FIRST
DATE ANY EVENT OF DEFAULT OCCURS AND IS CONTINUING UNDER THE CREDIT
AGREEMENT.
(c) Each Guarantor further agrees with respect to this
Guaranty Agreement that it shall have no right of subrogation,
reimbursement, contribution or indemnity, nor any right of recourse to
security for the Borrower's Liabilities unless and until 93 days
immediately following the Facility Termination Date (as defined below)
shall have elapsed without the filing or commencement, by or against
any Loan Party, of any state or federal action, suit, petition or
proceeding seeking any reorganization, liquidation or other relief or
arrangement in respect of creditors of, or the appointment of a
receiver, liquidator, trustee or conservator in respect to, such Loan
Party or its assets. This waiver is expressly intended to prevent the
existence of any claim in respect to such subrogation, reimbursement,
contribution or indemnity by any Guarantor against the estate of any
other Loan Party within the meaning of Section 101 of the Bankruptcy
Code, in the event of a subsequent case involving any other Loan Party.
If an amount shall be paid to any Guarantor on account of such rights
at any time prior to termination of this Guaranty Agreement in
accordance with the provisions of Section 22 hereof, such amount shall
be held in trust for the benefit of the Secured Parties and shall
forthwith be paid to the Administrative Agent, for the benefit of the
Secured Parties, to be credited and applied upon the Guarantors'
Obligations, whether matured or unmatured, in accordance with the terms
of the Credit Agreement or otherwise as the Secured Parties may elect.
The agreements in this subsection shall survive repayment of all of the
Guarantors' Obligations, the termination or expiration of this Guaranty
Agreement in any manner, including but not limited to termination in
accordance with Section 22 hereof, and occurrence of the Facility
Termination Date. For purposes of this Guaranty Agreement, "Facility
Termination Date" means the date as of which all of the following shall
have occurred: (a) the Borrower shall have permanently terminated the
credit facilities under the Loan Documents by final payment in full of
all Outstanding Amounts, together with all accrued and unpaid interest
and fees thereon, other than (i) the undrawn portion of Letters of
Credit and (ii) all letter of credit fees relating thereto accruing
after such date (which fees shall be payable solely for the account of
the Issuing Bank and shall be computed (based on interest rates then in
effect) on such undrawn amounts to the respective expiry dates of the
Letters of Credit), in each case as have been fully Cash
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Collateralized or as to which other arrangements with respect thereto
satisfactory to the Administrative Agent and the L/C Issuer shall have
been made; (b) all Related Swap Contracts shall have been terminated,
expired or Cash Collateralized; (c) all Commitments shall have
terminated or expired; and (d) the Borrower shall have fully, finally
and irrevocably paid and satisfied in full all other Obligations
(except for Obligations consisting of continuing indemnities and other
contingent Obligations of the Borrower or any Loan Party that may be
owing to any Agent-Related Person or any Lender pursuant to the Loan
Documents and expressly survive termination of this Guaranty
Agreement).
10. EFFECTIVENESS; ENFORCEABILITY. This Guaranty Agreement shall be
effective as of the date first above written and shall continue in full force
and effect until termination in accordance with Section 22 hereof. Any claim or
claims that the Secured Parties may at any time hereafter have against a
Guarantor under this Guaranty Agreement may be asserted by the Administrative
Agent on behalf of the Secured Parties by written notice directed to such
Guarantor in accordance with Section 24 hereof.
11. REPRESENTATIONS AND WARRANTIES. Each Guarantor warrants and
represents to the Administrative Agent, for the benefit of the Secured Parties,
that (a) it is duly authorized to execute and deliver this Guaranty Agreement
(or the Guaranty Joinder Agreement to which it is a party, as applicable), and
to perform its obligations under this Guaranty Agreement; (b) this Guaranty
Agreement (or the Guaranty Joinder Agreement to which it is a party, as
applicable) has been duly executed and delivered on behalf of such Guarantor by
its duly authorized representatives; that this Guaranty Agreement (and any
Guaranty Joinder Agreement to which such Guarantor is a party) is legal, valid,
binding and enforceable against such Guarantor in accordance with its terms
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles; and (c) such
Guarantor's execution, delivery and performance of this Guaranty Agreement (and
any Guaranty Joinder Agreement to which such Guarantor is a party) do not
violate or constitute a breach of (i) any of its Organizational Documents, (ii)
any material Contractual Obligation to which such Guarantor is a party, or (iii)
any law, order, regulation, decree or award of any governmental authority or
arbitral body to which it or its properties or operations is subject the
violation or breach of which could reasonably be expected to have a Material
Adverse Effect.
12. EXPENSES. Each Guarantor agrees to be jointly and severally liable
for the payment of all reasonable fees and expenses, including Attorney Costs,
incurred by any Secured Party in connection with the enforcement of this
Guaranty Agreement, whether or not suit be brought.
13. REINSTATEMENT. Each Guarantor agrees that this Guaranty Agreement
shall continue to be effective or be reinstated, as the case may be, at any time
payment received by any Secured Party in respect of any Borrower's Liabilities
is rescinded or must be restored for any reason, or is repaid by any Secured
Party in whole or in part in good faith and commercially reasonable settlement
of any pending or threatened avoidance claim.
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14. ATTORNEY-IN-FACT. To the extent permitted by law, each Guarantor
hereby appoints the Administrative Agent, for the benefit of the Secured
Parties, as such Guarantor's attorney-in-fact for the purposes of carrying out
the provisions of this Guaranty Agreement and taking any action and executing
any instrument which the Administrative Agent may deem necessary or advisable to
accomplish the purposes hereof, which appointment is coupled with an interest
and is irrevocable; provided, that the Administrative Agent shall have and may
exercise rights under this power of attorney only upon the occurrence and during
the continuance of an Event of Default.
15. RELIANCE. Each Guarantor represents and warrants to the
Administrative Agent, for the benefit of the Secured Parties, that: (a) such
Guarantor has adequate means to obtain on a continuing basis (i) from the
Borrower, information concerning the Borrower and the Borrower's financial
condition and affairs and (ii) from other reliable sources, such other
information as it deems material in deciding to provide this Guaranty Agreement
(and any Guaranty Joinder Agreement) ("Other Information"), and has full and
complete access to the Borrower's books and records and to such Other
Information; (b) such Guarantor is not relying on any Secured Party or its or
their employees, directors, agents or other representatives or Affiliates, to
provide any such information, now or in the future; (c) such Guarantor has been
furnished with and reviewed the terms of the Credit Agreement and such other
Loan Documents as it has requested, is executing this Guaranty Agreement (or the
Guaranty Joinder Agreement to which it is a party, as applicable) freely and
deliberately, and understands the obligations and financial risk undertaken by
providing this Guaranty Agreement (and any Guaranty Joinder Agreement); (d) such
Guarantor has relied solely on the Guarantor's own independent investigation,
appraisal and analysis of the Borrower, the Borrower's financial condition and
affairs, the "Other Information", and such other matters as it deems material in
deciding to provide this Guaranty Agreement (and any Guaranty Joinder Agreement)
and is fully aware of the same; and (e) such Guarantor has not depended or
relied on any Secured Party or its or their employees, directors, agents or
other representatives or Affiliates, for any information whatsoever concerning
the Borrower or the Borrower's financial condition and affairs or any other
matters material to such Guarantor's decision to provide this Guaranty Agreement
(and any Guaranty Joinder Agreement), or for any counseling, guidance, or
special consideration or any promise therefor with respect to such decision.
Each Guarantor agrees that no Secured Party has any duty or responsibility
whatsoever, now or in the future, to provide to such Guarantor any information
concerning the Borrower or the Borrower's financial condition and affairs, or
any Other Information, other than as expressly provided herein, and that, if
such Guarantor receives any such information from any Secured Party or its or
their employees, directors, agents or other representatives or Affiliates, such
Guarantor will independently verify the information and will not rely on any
Secured Party or its or their employees, directors, agents or other
representatives or Affiliates, with respect to such information.
16. RULES OF INTERPRETATION. The rules of interpretation contained in
Sections 1.02 and 1.05 of the Credit Agreement shall be applicable to this
Guaranty Agreement and each Guaranty Joinder Agreement and are hereby
incorporated by reference. All representations and warranties contained herein
shall survive the delivery of documents and any extension of credit referred to
herein or guaranteed hereby.
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17. ENTIRE AGREEMENT. This Guaranty Agreement and each Guaranty Joinder
Agreement, together with the Credit Agreement and other Loan Documents,
constitutes and expresses the entire understanding between the parties hereto
with respect to the subject matter hereof, and supersedes all prior
negotiations, agreements, understandings, inducements, commitments or
conditions, express or implied, oral or written, except as herein contained. The
express terms hereof control and supersede any course of performance or usage of
the trade inconsistent with any of the terms hereof. Except as provided in
Section 22, neither this Guaranty Agreement nor any Guaranty Joinder Agreement
nor any portion or provision hereof or thereof may be changed, altered,
modified, supplemented, discharged, canceled, terminated, or amended orally or
in any manner other than as provided in the Credit Agreement.
18. BINDING AGREEMENT; ASSIGNMENT. This Guaranty Agreement, each
Guaranty Joinder Agreement and the terms, covenants and conditions hereof and
thereof, shall be binding upon and inure to the benefit of the parties hereto
and thereto, and to their respective heirs, legal representatives, successors
and assigns; provided, however, that no Guarantor shall be permitted to assign
any of its rights, powers, duties or obligations under this Guaranty Agreement,
any Guaranty Joinder Agreement or any other interest herein or therein without
the prior written consent of the Administrative Agent. Without limiting the
generality of the foregoing sentence of this Section 18, any Lender may assign
to one or more Persons, or grant to one or more Persons participations in or to,
all or any part of its rights and obligations under the Credit Agreement (to the
extent permitted by the Credit Agreement); and to the extent of any such
assignment or participation such other Person shall, to the fullest extent
permitted by law, thereupon become vested with all the benefits in respect
thereof granted to such Lender herein or otherwise, subject however, to the
provisions of the Credit Agreement, including Article IX thereof (concerning the
Administrative Agent) and Section 10.07 thereof concerning assignments and
participations. All references herein to the Administrative Agent shall include
any successor thereof.
19. RELATED SWAP CONTRACTS. All obligations of the Borrower under
Related Swap Contracts to which any Lender or its Affiliates are a party shall
be deemed to be Borrower's Liabilities, and each Lender or Affiliate of a Lender
party to any such Swap Contract shall be deemed to be a Secured Party hereunder
with respect to such Borrower's Liabilities; provided, however, that such
obligations shall cease to be Borrower's Liabilities at such time as such Person
(or Affiliate of such Person) shall cease to be a "Lender" under the Credit
Agreement.
No Person who obtains the benefit of this Guaranty Agreement by virtue
of the provisions of this Section shall have any right to notice of any action
or to consent to, direct or object to any action hereunder or under any other
Loan Document or otherwise in respect of the Guarantors' Obligations (including
the release or modification of any Guarantors' Obligations or security therefor)
other than in its capacity as a Lender and only to the extent expressly provided
in the Loan Documents.
20. SEVERABILITY. The provisions of this Guaranty Agreement are
independent of and separable from each other. If any provision hereof shall for
any reason be held invalid or unenforceable, such invalidity or unenforceability
shall not affect the validity or enforceability of
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any other provision hereof, but this Guaranty Agreement shall be construed as if
such invalid or unenforceable provision had never been contained herein.
21. COUNTERPARTS. This Guaranty Agreement may be executed in any number
of counterparts each of which when so executed and delivered shall be deemed an
original, and all of which together shall constitute one and the same
instrument, and it shall not be necessary in making proof of this Guaranty
Agreement to produce or account for more than one such counterpart executed by
the Guarantor against whom enforcement is sought. Without limiting the foregoing
provisions of this Section 21, the provisions of Section 10.02(b) of the Credit
Agreement shall be applicable to this Guaranty Agreement.
22. TERMINATION. Subject to reinstatement pursuant to Section 13
hereof, this Guaranty Agreement and each Guaranty Joinder Agreement, and all of
the Guarantors' Obligations hereunder (excluding those obligations and
liabilities that expressly survive such termination) shall terminate on the
Facility Termination Date.
23. REMEDIES CUMULATIVE; LATE PAYMENTS. All remedies hereunder are
cumulative and are not exclusive of any other rights and remedies of the
Administrative Agent or any other Secured Party provided by law or under the
Credit Agreement, the other Loan Documents or other applicable agreements or
instruments. The making of the Loans and other Credit Extensions pursuant to the
Credit Agreement shall be conclusively presumed to have been made or extended,
respectively, in reliance upon each Guarantor's guaranty of the Borrower's
Liabilities pursuant to the terms hereof. Any amounts not paid when due under
this Guaranty Agreement shall bear interest at the Default Rate.
24. NOTICES. Any notice required or permitted hereunder or under any
Guaranty Joinder Agreement shall be given, (a) with respect to each Guarantor,
at the address for such Guarantor set forth below its signature on this Guaranty
Agreement or the Guaranty Joinder Agreement of such Guarantor, as applicable and
(b) with respect to the Administrative Agent or any other Secured Party, at the
Administrative Agent's address indicated in Schedule 10.02 of the Credit
Agreement. All such addresses may be modified, and all such notices shall be
given and shall be effective, as provided in Section 10.02 of the Credit
Agreement for the giving and effectiveness of notices and modifications of
addresses thereunder.
25. JOINDER. Each Person who shall at any time execute and deliver to
the Administrative Agent a Guaranty Joinder Agreement substantially in the form
attached as Exhibit A hereto shall thereupon irrevocably, absolutely and
unconditionally become a party hereto and obligated hereunder as a Guarantor,
and all references herein and in the other Loan Documents to the Guarantors or
to the parties to this Guaranty Agreement shall be deemed to include such Person
as a Guarantor hereunder.
26. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL.
10
(A) THIS GUARANTY AGREEMENT AND EACH GUARANTY JOINDER
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO
BE FULLY PERFORMED, IN SUCH STATE.
(B) EACH GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS GUARANTY AGREEMENT OR ANY GUARANTY JOINDER AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN MAY BE INSTITUTED IN ANY
STATE OR FEDERAL COURT SITTING IN THE COUNTY OF NEW YORK, STATE OF NEW
YORK, UNITED STATES OF AMERICA AND, BY THE EXECUTION AND DELIVERY OF
THIS GUARANTY AGREEMENT OR A GUARANTY JOINDER AGREEMENT, SUCH GUARANTOR
EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS
PROPERTY BY, ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND
EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY
TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING.
(C) EACH GUARANTOR AGREES THAT SERVICE OF PROCESS MAY BE MADE
BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER
LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED
OR CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS FOR NOTICES TO SUCH
GUARANTOR IN EFFECT PURSUANT TO SECTION 24 HEREOF, OR BY ANY OTHER
METHOD OF SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN
THE STATE OF NEW YORK.
(D) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF SHALL
PRECLUDE THE ADMINISTRATIVE AGENT FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY AGREEMENT OR ANY
GUARANTY JOINDER AGREEMENT OR ANY OTHER LOAN DOCUMENT IN THE COURTS OF
ANY JURISDICTION WHERE ANY GUARANTOR OR ANY OF SUCH GUARANTOR'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY
THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH GUARANTOR HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY
WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO
THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER
COURT OR COURTS WHICH NOW OR HEREAFTER MAY BE AVAILABLE UNDER
APPLICABLE LAW.
11
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS GUARANTY AGREEMENT OR ANY
GUARANTY JOINDER AGREEMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN
CONNECTION THEREWITH, EACH GUARANTOR AND THE ADMINISTRATIVE AGENT ON
BEHALF OF THE SECURED PARTIES HEREBY AGREE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT ANY SUCH PERSON MAY
HAVE TO TRIAL BY JURY IN ANY SUCH ACTION, SUIT OR PROCEEDING.
(F) EACH GUARANTOR HEREBY EXPRESSLY WAIVES ANY OBJECTION IT
MAY HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT
TO THE TERMS HEREOF IS AN INCONVENIENT FORUM.
[Signature pages follow.]
12
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Guaranty Agreement as of the day and year first written above.
GUARANTORS:
HEARTHMARK, INC., an Indiana corporation
By: /s/ Desiree DeStefano
----------------------------------------
Name: Desiree DeStefano
Title: Vice President
ALLTRISTA PLASTICS CORPORATION, an
Indiana corporation
By: /s/ Desiree DeStefano
----------------------------------------
Name: Desiree DeStefano
Title: Vice President
ALLTRISTA ZINC PRODUCTS, L.P., an Indiana
limited partnership
By: Alltrista Newco Corporation,
a Indiana corporation, its general partner
By: /s/ Desiree DeStefano
------------------------------------
Name: Desiree DeStefano
Title: Vice President
QUOIN CORPORATION, a Delaware corporation
By: /s/ Ian G. H. Asken
-----------------------------------
Name: Ian G. H. Asken
Title: Treasurer
Signature Page 1 of 4
ALLTRISTA NEWCO CORPORATION, an
Indiana corporation
By: /s/ Desiree DeStefano
----------------------------------------
Name: Desiree DeStefano
Title: Vice President
PENN VIDEO, INC., an Indiana corporation
By: /s/ Desiree DeStefano
----------------------------------------
Name: Desiree DeStefano
Title: Vice President
LAFAYETTE STEEL & ALUMINUM CORPORATION, an
Illinois corporation
By: /s/ Desiree DeStefano
----------------------------------------
Name: Desiree DeStefano
Title: Vice President
CASPERS TIN PLATE COMPANY, An
Illinois corporation
By: /s/ Desiree DeStefano
----------------------------------------
Name: Desiree DeStefano
Title: Vice President
Signature Page 2 of 4
UNIMARK PLASTICS, INC., a Pennsylvania
corporation
By: /s/ Desiree DeStefano
----------------------------------------
Name: Desiree DeStefano
Title: Vice President
LUMENX CORPORATION, an Ohio corporation
By: /s/ Desiree DeStefano
----------------------------------------
Name: Desiree DeStefano
Title: Vice President
ALLTRISTA UNIMARK, INC., an Indiana corporation
By: /s/ Desiree DeStefano
----------------------------------------
Name: Desiree DeStefano
Title: Vice President
TRIENDA CORPORATION (F/K/A TRIENDA NEWCO, INC.),
a Indiana corporation
By: /s/ Desiree DeStefano
----------------------------------------
Name: Desiree DeStefano
Title: Vice President
ALLTRISTA ACQUISITION I, INC., a Delaware
corporation
By: /s/ Desiree DeStefano
----------------------------------------
Name: Desiree DeStefano
Title: Vice President
Signature Page 3 and 4
ALLTRISTA ACQUISITION II, INC., a Delaware
corporation
By: /s/ Desiree DeStefano
----------------------------------------
Name: Desiree DeStefano
Title: Vice President
ALLTRISTA ACQUISITION III, INC., a Delaware
corporation
By: /s/ Desiree DeStefano
----------------------------------------
Name: Desiree DeStefano
Title: Vice President
ADDRESS FOR NOTICES FOR ALL GUARANTORS:
555 Theodore Fremd Ave.
Ste. B-302
Rye, NY 10580
Telefacsimile: (___) ___-____
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative
Agent for the Lenders
By: /s/ Igor Suica
---------------------------------------
Name: Igor Suica
Title: Vice President
Signature Page 4 of 4