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Exhibit 4.10
U.S. SUBSIDIARIES GUARANTY
U.S. SUBSIDIARIES GUARANTY, dated as of July 17, 2006 (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 26
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 :
WHEREAS, BCO Holding Company, a Delaware Corporation ("
Holdings "), BWAY Corporation, a Delaware Corporation
(the " U.S. Borrower "), ICL Industrial Containers ULC,
a Nova Scotia unlimited liability company (the " Canadian
Borrower " and, together with the U.S. Borrower, the "
Borrowers " and each a " Borrower "), the lenders
party thereto from time to time (the " Lenders "), LaSalle
Bank, N.A., as Documentation Agent, Deutsche Bank Securities Inc.
and J.P. Morgan Securities Inc., as Joint Lead Arrangers, and
Deutsche Bank Trust Company Americas, as administrative agent
(together with any successor administrative agent, the "
Administrative Agent "), have entered into a Credit
Agreement, dated as of July 17, 2006 (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 respective accounts of, the Borrowers as
contemplated therein (the Lenders, the Collateral Agent, the
Issuing Lenders, the Administrative Agent and each other Agent are
herein called the " Lender Creditors ");
WHEREAS, each Borrower and/or one or more of their respective
Subsidiaries may at any time and from time to time enter into one
or more Interest Rate Protection Agreements with one or more
Lenders or any Affiliate thereof (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 permitted successors and
assigns party to each such Interest Rate Protection Agreement, if
any, collectively, the " Other Creditors " and, together
with the Lender Creditors, the " Secured Creditors ");
WHEREAS, each Guarantor is a direct or indirect Wholly-Owned
Domestic Subsidiary of the U.S. Borrower;
WHEREAS, it is a condition to the making of Loans to, and the
issuance of Letters of Credit for the respective accounts of, the
Borrowers under the Credit Agreement that each Guarantor shall have
executed and delivered this Guaranty; and
WHEREAS, each Guarantor will obtain benefits from the incurrence
of Loans to, and the issuance of Letters of Credit for the account
of, the Borrowers under the Credit Agreement and the entering into
by the Borrowers and/or one or more of their respective
Subsidiaries of Interest Rate Protection Agreements with the Other
Creditors and, accordingly, desires to execute this Guaranty in
order to satisfy the condition described in the preceding
paragraph;
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, irrevocably,
absolutely 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 (x) the
unpaid principal of (or, Face Amount of, as applicable), premium,
if any, and interest on the Notes issued by, and the Loans made to,
the Borrowers under the Credit Agreement, and all reimbursement
obligations and Unpaid Drawings with respect to Letters of Credit
and (y) all other obligations (including obligations which,
but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due), liabilities and indebtedness
owing by each Borrower to the Lender Creditors under the Credit
Agreement and each other Credit Document to which such Borrower is
a party (including, without limitation, indemnities, Fees and
interest thereon (including, in each case, any interest accruing
after the commencement of any bankruptcy, insolvency, receivership
or similar proceeding at the rate provided for in the Credit
Agreement, whether or not such interest is an allowed claim in any
such proceeding)), whether now existing or hereafter incurred
under, arising out of, or in connection with, the Credit Agreement
and each such other Credit Document and the due performance and
compliance by each Borrower with all of the terms, conditions and
agreements contained in all such Credit Documents (all such
principal (or, Face Amount, as applicable), premium, interest,
reimbursement obligations, Unpaid Drawings, liabilities,
indebtedness and obligations being herein collectively called the "
Credit Document Obligations "); and (ii) to each Other
Creditor the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations
(including obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due),
liabilities and indebtedness (including, in each case, any interest
accruing after the commencement of any bankruptcy, insolvency,
receivership or similar proceeding at the rate provided for in the
respective Interest Rate Protection Agreements, whether or not such
interest is an allowed claim in any such proceeding) owing by each
Borrower and/or one or more of its Subsidiaries under any Interest
Rate Protection Agreement, whether now in existence or hereafter
arising, and the due performance and compliance by such Borrower
and such Subsidiaries with all of the terms, conditions and
agreements contained in each Interest Rate Protection Agreement to
which it is a party (all such obligations, liabilities and
indebtedness being herein collectively called the " Other
Obligations " and, together with the Credit Document
Obligations, the " Guaranteed Obligations "). As used
herein, the term "Guaranteed Party" shall mean each Borrower and
each respective Subsidiary thereof party to any Interest Rate
Protection Agreement with an Other Creditor. Each Guarantor
understands, agrees and confirms that the Secured Creditors may
enforce this Guaranty up to the full amount of the Guaranteed
Obligations against such Guarantor without proceeding against any
other Guarantor, the Borrowers, any other Guaranteed Party, against
any security for the Guaranteed Obligations, or under any other
guaranty covering all or a portion of the Guaranteed
Obligations.
2. Additionally, each Guarantor, jointly and severally,
unconditionally, absolutely and irrevocably, guarantees the payment
of any and all Guaranteed Obligations whether or not due or payable
by either Borrower or any such other Guaranteed Party upon the
occurrence in respect of either Borrower or any such other
Guaranteed Party of any of the events
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specified in Section 10.05 of the Credit
Agreement, and unconditionally and irrevocably, jointly and
severally, promises to pay such Guaranteed Obligations to the
Secured Creditors, or order, on demand. This Guaranty shall
constitute a guaranty of payment, and not of collection.
3. The liability of each Guarantor hereunder is primary,
absolute, joint and several, and unconditional and is exclusive and
independent of any security for or other guaranty of the
indebtedness of either Borrower or any other Guaranteed Party,
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
either Borrower, any other Guaranteed Party or 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 (other than payment of the
Guaranteed Obligations in cash in accordance with the terms hereof
to the extent of such payment), (d) any dissolution,
termination or increase, decrease or change in personnel by either
Borrower or any other Guaranteed Party, (e) any payment made
to any Secured Creditor on the indebtedness which any Secured
Creditor repays either Borrower or any other Guaranteed Party
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,
(f) any action or inaction by the Secured Creditors as
contemplated in Section 6 hereof or (g) any invalidity,
irregularity or unenforceability of all or any part of the
Guaranteed Obligations or of any security therefor.
4. The obligations of each Guarantor hereunder are independent
of the obligations of any other Guarantor, any other guarantor,
either Borrower or any other Guaranteed Party, 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, either Borrower or any other
Guaranteed Party and whether or not any other Guarantor, any other
guarantor, either Borrower or any other Guaranteed Party 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 hereunder or the enforcement
thereof. Any payment by either Borrower or any other Guaranteed
Party or other circumstance which operates to toll any statute of
limitations as to either Borrower or any such other Guaranteed
Party shall operate to toll the statute of limitations as to each
Guarantor.
5. To the fullest extent permitted under applicable law, each
Guarantor hereby waives notice of acceptance of this Guaranty and
notice of any liability to which it may apply, and waives
promptness, diligence, presentment, demand of payment, protest,
notice of dishonor or nonpayment of any such liabilities, suit or
taking of other action by the Administrative Agent or any other
Secured Creditor against, and any other notice to, any party liable
thereon (including such Guarantor, any other Guarantor, any other
guarantor, either Borrower or any other Guaranteed Party).
6. Any Secured Creditor may at any time and from time to time
without the consent of, or notice to, any Guarantor (except as
shall be required by applicable statute and cannot be waived),
without incurring responsibility to such Guarantor, without
impairing or
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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, increase or extend the time of payment of, renew or alter,
any of the Guaranteed Obligations (including any increase or
decrease 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, surrender, impair, 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 there
against;
(c) exercise or refrain from exercising any rights against
either Borrower, any other Guaranteed Party, any other Credit
Party, any Subsidiary thereof or otherwise act or refrain from
acting;
(d) release or substitute any one or more endorsers, Guarantors,
other guarantors, either Borrower, any other Guaranteed Party, or
other obligors;
(e) 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 either
Borrower or any other Guaranteed Party to creditors of such
Borrower or such other Guaranteed Party other than the Secured
Creditors;
(f) except as otherwise expressly required by the Security
Documents, apply any sums by whomsoever paid or howsoever realized
to any liability or liabilities of either Borrower or any other
Guaranteed Party to the Secured Creditors regardless of what
liabilities of such Borrower or such other Guaranteed Party remain
unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, any of the Interest Rate Protection 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 Credit Documents or any of
such other instruments or agreements;
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(h) act or fail to act in any manner which may
deprive such Guarantor of its right to subrogation against either
Borrower or any other Guaranteed Party to recover full indemnity
for any payments made pursuant to this Guaranty; 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.
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. 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 either Borrower or any other Guaranteed Party or the
officers, directors, partners or agents acting or purporting to act
on its or their behalf, and any indebtedness made or created in
reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
8. Any indebtedness of either Borrower or any other Guaranteed
Party now or hereafter owing to any Guarantor is hereby
subordinated to the Guaranteed Obligations of such Borrower or such
other Guaranteed Party to the Secured Creditors, and such
Guaranteed Obligations of such Borrower or such other Guaranteed
Party to any Guarantor, if the Administrative Agent or the
Collateral Agent, after the occurrence and during the continuance
of an Event of Default, so requests, shall be collected, enforced
and received by such Guarantor as trustee for the Secured Creditors
and be paid over to the Secured Creditors on account of the
Guaranteed Obligations of such Borrower or such other Guaranteed
Parties to the Secured Creditors, but without affecting or
impairing in any manner the liability of such Guarantor under the
other provisions of this Guaranty. 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 paid in full in cash.
9. (a) Each Guarantor waives any right (except as shall be
required by applicable law and cannot be waived) to require the
Secured Creditors to: (i) proceed against either Borrower, any
other Guaranteed Party, any other Guarantor, any other guarantor of
the Guaranteed Obligations or any other party; (ii) proceed
against or exhaust any security held from either Borrower, any
other Guaranteed Party, any other Guarantor, any other guarantor of
the Guaranteed Obligations or any other party; or (iii) pursue
any other remedy in the Secured Creditors’ power whatsoever.
Each Guarantor waives any defense based on or arising out of
any
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defense of either Borrower, any other Guaranteed
Party, any other Guarantor, any other guarantor of the Guaranteed
Obligations or any other party other than payment in full in cash
of the Guaranteed Obligations, including, without limitation, any
defense based on or arising out of the disability of either
Borrower, any other Guaranteed Party, any other Guarantor, any
other guarantor of the Guaranteed Obligations or any other party,
or the unenforceability of the Guaranteed Obligations or any part
thereof from any cause, or the cessation from any cause of the
liability of either Borrower or any other Guaranteed Party other
than 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 either Borrower, any other Guaranteed
Party 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 paid in
full in cash. Each Guarantor waives, to the fullest extent
permitted under law, 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 either Borrower,
any other Guaranteed Party or any other party or any
security.
(b) Each Guarantor waives, to the fullest extent permitted under
law, all presentments, demands for performance, protests and
notices, including, without limitation, notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of
this Guaranty, and notices of the existence, creation or incurring
of new or additional indebtedness. Each Guarantor assumes all
responsibility for being and keeping itself informed of the
Borrower’s and each other Guaranteed Party’s financial
condition and assets, and of all other circumstances bearing upon
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
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