GUARANTY AGREEMENT
GUARANTY, dated as of May 7,
2008 (this “ Guaranty ”), by each of the
Subsidiaries of the Borrower executing a signature page hereto
(each, a “ Subsidiary Guarantor ”), in favor of
the Administrative Agent (as defined below), each Lender, and each
other holder of a Obligation (as each such term is defined in the
Credit Agreement referred to below) (each, a “ Guaranteed
Party ” and, collectively, the “ Guaranteed
Parties ”).
W I T
N E S S E T H:
WHEREAS, pursuant to the Credit
Agreement dated as of March 10, 2008 among Dr Pepper Snapple
Group, Inc. (the “ Borrower ”), the Lenders and
Issuing Banks party thereto, JPMorgan Chase Bank N.A., as
administrative agent (the “ Administrative Agent
”), Bank of America, N.A., as syndication agent, Goldman
Sachs Credit Partners L.P., Morgan Stanley Senior Funding, Inc.,
and UBS Securities LLC as documentation agents, and the other
parties thereto (together with all appendices, exhibits, and
schedules thereto and as the same may be amended, restated,
supplemented or otherwise modified from time to time, the “
Credit Agreement ”); the Lenders have severally agreed
to make extensions of credit to the Borrower upon the terms and
subject to the conditions set forth therein. Capitalized terms
defined in the Credit Agreement and used (but not otherwise
defined) herein are used herein as so defined.
WHEREAS, each Subsidiary Guarantor is
a direct or indirect Subsidiary of the Borrower; and
WHEREAS, each Subsidiary Guarantor
will receive substantial direct and indirect benefits from the
making of the Loans and the granting of the other financial
accommodations to the Borrower under the Credit Agreement;
NOW, THEREFORE, in consideration of
the premises set forth above, the terms and conditions contained
herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
Guaranty
(a) Each Subsidiary Guarantor
hereby absolutely, unconditionally and irrevocably guarantees,
jointly with the other guarantors and severally, as primary obligor
and not merely as surety, the full and punctual payment when due
and in the currency due, whether at stated maturity or earlier, by
reason of acceleration, mandatory prepayment or otherwise in
accordance herewith or any other Loan Document, of all the
Obligations, whether or not from time to time reduced or
extinguished or hereafter increased or incurred, whether or not
recovery may be or hereafter may become barred by any statute of
limitations, whether or not enforceable as against the Borrower,
whether now or hereafter existing, and whether due or to become
due, including principal, interest (including interest at the
contract rate applicable upon default accrued or accruing after the
commencement of any proceeding under Title 11 of the United States
Code (the “ Bankruptcy Code ”), or any
applicable provisions of comparable state or foreign law, whether
or not such interest is an allowed claim in such proceeding), fees
and costs of collection. This Guaranty constitutes a guaranty of
payment and not of collection.
(b) Each Subsidiary Guarantor
further agrees that, if any payment made by the Borrower or any
other Person and applied to the Obligations is at any time
annulled, avoided, set aside, rescinded, invalidated, declared to
be fraudulent or preferential or otherwise required to be refunded
or repaid, then, to the extent of such payment or repayment, the
Subsidiary Guarantor’s liability hereunder shall be and
remain in full force and effect, as fully as if such payment had
never been made. If, prior to any of the foregoing, this Guaranty
shall have been cancelled or surrendered, this Guaranty shall be
reinstated in full force and effect, and such prior cancellation or
surrender shall not diminish, release, discharge, impair or
otherwise affect the obligations of the Subsidiary Guarantor in
respect of the amount of such payment; provided, however, that any
such reinstated Guaranty shall be released immediately upon the
Obligations being indefeasibly paid in full.
ARTICLE II
Limitation of Guaranty
Any term or provision of this
Guaranty or any other Loan Document to the contrary
notwithstanding, the maximum aggregate amount of the Obligations
for which any Subsidiary Guarantor shall be liable shall not exceed
the maximum amount for which such Subsidiary Guarantor can be
liable without rendering this Guaranty or any other Loan Document,
as it relates to such Subsidiary Guarantor, subject to avoidance
under applicable law relating to fraudulent conveyance or
fraudulent transfer (including Section 548 of the Bankruptcy
Code or any applicable provisions of comparable state law)
(collectively, “ Fraudulent Transfer Laws ”), in
each case after giving effect (a) to all other liabilities of
such Subsidiary Guarantor, contingent or otherwise, that are
relevant under such Fraudulent Transfer Laws (specifically
excluding, however, any liabilities of such Subsidiary Guarantor in
respect of intercompany Indebtedness to the Borrower to the extent
that such Indebtedness would be discharged in an amount equal to
the amount paid by such Subsidiary Guarantor hereunder) and
(b) to the value as assets of such Subsidiary Guarantor (as
determined under the applicable provisions of such Fraudulent
Transfer Laws) of any rights to subrogation, contribution,
reimbursement, indemnity or similar rights held by such Subsidiary
Guarantor pursuant to (i) applicable federal, state, local and
foreign laws, rules and regulations, orders, judgments, decrees and
other determinations of any Governmental Authority or arbitrator
and common law, (ii) Article III (Contribution) of this
Guaranty or (iii) any other obligation, agreement, undertaking
or similar provisions of any security or any agreement,
undertaking, contract, lease, indenture, mortgage, deed of trust or
other instrument (excluding a Loan Document) providing for an
equitable allocation among such Subsidiary Guarantor and other
Subsidiaries or Affiliates of the Borrower of obligations arising
under this Guaranty or other guaranties of the Obligations by such
parties.
ARTICLE III
Contribution
To the extent that any Subsidiary
Guarantor shall be required hereunder to pay a portion of the
Obligations exceeding the greater of (a) the amount of the
economic benefit actually received by such Subsidiary Guarantor
from the Loans and the other financial accommodations provided to
the Borrower under the Loan Documents and (b) the amount such
Subsidiary Guarantor would otherwise have paid if such Subsidiary
Guarantor had paid the
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aggregate amount of the Obligations (excluding the amount thereof
repaid by the Borrower) in the same proportion as such Subsidiary
Guarantor’s net worth at the date enforcement is sought
hereunder bears to the aggregate net worth of all the other
Guarantors at the date enforcement is sought hereunder, then such
Subsidiary Guarantor shall be reimbursed by such other Guarantors
for the amount of such excess, pro rata, based on the respective
net worths of such other Guarantors at the date enforcement
hereunder is sought.
ARTICLE IV
Authorization; Other Agreements
The Guaranteed Parties are hereby
authorized, without notice to, or demand upon, any Subsidiary
Guarantor, which notice and demand requirements, to the fullest
extent permitted by applicable law, each are expressly waived
hereby, and without discharging or otherwise affecting the
obligations of any Subsidiary Guarantor hereunder (which
obligations shall remain absolute and unconditional notwithstanding
any such action or omission to act), from time to time, to do each
of the following:
(a) supplement, renew, extend,
accelerate or otherwise change the time for payment of, or other
terms relating to, the Obligations, or any part of them, or
otherwise modify, amend or change the terms of any promissory note
or other agreement, document or instrument (including the other
Loan Documents) now or hereafter executed by the Borrower and
delivered to the Guaranteed Parties or any of them, including any
increase or decrease of principal or the rate of interest thereon,
in each case to the extent permitted by the Loan Documents;
(b) waive or otherwise consent
to noncompliance with any provision of any instrument evidencing
the Obligations, or any part thereof, or any other instrument or
agreement in respect of the Obligations (including the other Loan
Documents) now or hereafter executed by the Borrower and delivered
to the Guaranteed Parties or any of them, in each case to the
extent permitted by the Loan Documents;
(c) accept partial payments on
the Obligations;
(d) receive, take and hold
security or collateral for the payment of the Obligations or any
part of them from any Person with the consent of such Person and
exchange, enforce, waive, substitute, liquidate, terminate,
abandon, fail to perfect, subordinate, transfer, otherwise alter
and release any such security or collateral;
(e) settle, release, compromise,
collect or otherwise liquidate the Obligations or accept,
substitute, release, exchange or otherwise alter, affect or impair
any security or collateral for the Obligations or any part of them
or any other guaranty therefor, in any manner;
(f) add, release or substitute
any one or more other guarantors, makers or endorsers of the
Obligations or any part of them with the consent of such guarantor,
maker or endorser and otherwise deal with the Borrower or any other
guarantor, maker or endorser;
(g) apply to the Obligations any
payment or recovery (x) from the Borrower, from any other
guarantor, maker or endorser of the Obligations or any part of them
or (y) from the Subsidiary Guarantors in such order as
provided herein, in each case whether such Obligations are secured
or unsecured or guaranteed or not guaranteed by others;
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(h) apply to the Obligations any
payment or recovery from the Subsidiary Guarantors of the
Obligations or any sum realized from security furnished by the
Subsidiary Guarantors upon their indebtedness or obligations to the
Guaranteed Parties or any of them, in each case whether or not such
indebtedness or obligations relate to the Obligations; and
(i) refund at any time any
payment received by any Guaranteed Party in respect of any
Obligations with the consent of the Person receiving such refund,
and payment to such Guaranteed Party of the amount so refunded
shall be fully guaranteed hereby even though prior thereto this
Guaranty shall have been cancelled or surrendered, and such prior
cancellation or surrender shall not diminish, release, discharge,
impair or otherwise affect the obligations of the Subsidiary
Guarantors hereunder in respect of the amount so refunded;
even if
any right of reimbursement or subrogation or other right or remedy
of the Subsidiary Guarantors are extinguished, affected or impaired
by any of the foregoing (including any election of remedies by
reason of any judicial, non judicial or other proceeding in respect
of the Obligations that impairs any subrogation, reimbursement or
other right of the Subsidiary Guarantors).
ARTICLE V
Guaranty Absolute and Unconditional
The Subsidiary Guarantor hereby
waives, to the fullest extent permitted by applicable law, any
defense of a surety or guarantor or any other obligor on any
obligations arising in connection with or in respect of any of the
following and hereby agrees that its obligations under this
Guaranty are absolute and unconditional and shall not be discharged
or otherwise affected as a result of any of the following (in each
case to the fullest extent permitted by applicable law):
(a) the invalidity or
unenforceability of any of the Borrower’s obligations under
the Credit Agreement or any other Loan Document or any other
agreement or instrument relating thereto, or any other guaranty of
the Obligations or any part of them;
(b) the absence of any attempt
to collect the Obligations or any part of them from the Borrower or
other action to enforce the same;
(c) any Guaranteed Party’s
election, in any proceeding instituted under chapter 11 of the
Bankruptcy Code, of the application of Section 1111(b)(2) of
the Bankruptcy Code or any applicable provisions of comparable
state or foreign law;
(d) any borrowing or grant of a
Lien by the Borrower, as debtor in possession, or extension of
credit, under Section 364 of the Bankruptcy Code or any
applicable provisions of comparable state or foreign law;
(e) the disallowance, under
Section 502 of the Bankruptcy Code, of all or any portion of
any Guaranteed Party’s claim (or claims) for repayment of the
Obligations;
(f) any use of cash collateral
under Section 363 of the Bankruptcy Code;
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(g) any agreement or stipulation
as to the provision of adequate protection in any bankruptcy
proceeding;
(h) any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt, liquidation or
dissolution proceeding commenced by or against the Borrower, any
Subsidiary Guarantor or any of the Borrower’s other
Subsidiaries, including any discharge of, or bar or stay against
collecting, any Obligations (or any part of them or interest
thereon) in or as a result of any such proceeding;
(i) failure by any Guaranteed
Party to file or enforce a claim against the Borrower or its estate
in any bankruptcy or insolvency case or proceeding;
(j) any action taken by any
Guaranteed Party if such action is authorized hereby; or
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