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GUARANTY AGREEMENT

Guarantee Agreement

GUARANTY AGREEMENT | Document Parties: DR PEPPER SNAPPLE GROUP, INC. You are currently viewing:
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DR PEPPER SNAPPLE GROUP, INC.

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Title: GUARANTY AGREEMENT
Governing Law: New York     Date: 5/12/2008

GUARANTY AGREEMENT, Parties: dr pepper snapple group  inc.
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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
   &nb

 
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