-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, WAnoLWf3TlA3hK1jA9/bWhvovmo9hZLeXt8SPAW5eO+Dlm1hykrExZmTzyKYD5c+ VMx5mzPi8MAkOXFU39Cw2g== 0000896058-94-000027.txt : 19940331 0000896058-94-000027.hdr.sgml : 19940331 ACCESSION NUMBER: 0000896058-94-000027 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 12 CONFORMED PERIOD OF REPORT: 19940325 ITEM INFORMATION: 1 FILED AS OF DATE: 19940328 SROS: PSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: SILGAN HOLDINGS INC CENTRAL INDEX KEY: 0000849869 STANDARD INDUSTRIAL CLASSIFICATION: 3440 IRS NUMBER: 061269834 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 34 SEC FILE NUMBER: 033-28409 FILM NUMBER: 94518129 BUSINESS ADDRESS: STREET 1: 4 LANDMARK SQ CITY: STAMFORD STATE: CT ZIP: 06901 BUSINESS PHONE: 2039757110 8-K 1 8-K SILGAN HOLDINGS INC. SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ____________ FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): March 25, 1994 SILGAN HOLDINGS INC. ------------------------------------------------------ (Exact name of registrant as specified in its charter) Delaware 33-28409 06-1269834 - --------------- ------------------------ ------------------ (State or other (Commission File Number) (IRS Employer jurisdiction of Identification No.) incorporation) 4 Landmark Square, Stamford, Connecticut 06901 - ----------------------------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (203) 975-7110 Item 7: Financial Statements and Exhibits The Registrant hereby files herewith the following exhibits in anticipation of the filing of the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1993: (c) Exhibits 1. Restated Certificate of Incorporation of Silgan Holdings Inc., dated December 20, 1993. 2. Amended and Restated Organization Agreement, dated as of December 21, 1993, among R. Philip Silver, D. Greg Horrigan, The Morgan Stanley Leveraged Equity Fund II, L.P., Bankers Trust New York Corporation, First Plaza Group Trust and Silgan Holdings Inc. 3. Stockholders Agreement, dated as of December 21, 1993, among R. Philip Silver, D. Greg Horrigan, The Morgan Stanley Leveraged Equity Fund II, L.P., Bankers Trust New York Corporation, First Plaza Group Trust and Silgan Holdings Inc. 4. Amended and Restated Management Services Agreement, dated as of December 21, 1993, between S&H, Inc. and Silgan Holdings Inc. 5. Amended and Restated Management Services Agreement, dated as of December 21, 1993, between S&H, Inc. and Silgan Corporation. 6. Amended and Restated Management Services Agreement, dated as of December 21, 1993, between S&H, Inc. and Silgan Containers Corporation. 7. Amended and Restated Management Services Agreement, dated as of December 21, 1993, between S&H, Inc. and Silgan Plastics Corporation. 8. Stock Purchase Agreement, dated as of December 21, 1993, between Silgan Holdings Inc. and First Plaza Group Trust. 9. Credit Agreement, dated as of December 21, 1993, among Silgan Corporation, Silgan Containers Corporation, Silgan Plastics Corporation, the lenders from time to time party thereto, Bank of America National Trust and Savings Association, as co-agent, and Bankers Trust Company, as agent. 10. Amended and Restated Holdings Guaranty, dated as of December 21, 1993, made by Silgan Holdings Inc. 11. Amended and Restated Borrowers Guaranty, dated as of December 21, 1993, made by Silgan Corporation, Silgan Containers Corporation, Silgan Plastics Corporation and California-Washington Corporation. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. SILGAN HOLDINGS INC. By: /s/ Harold J. Rodriguez, Jr. ------------------------------ Harold J. Rodriguez, Jr. Vice President, Controller and Assistant Treasurer Date: March 25, 1994 INDEX TO EXHIBITS Exhibit No. Exhibit ----------- ------- 1. Restated Certificate of Incorporation of Silgan Holdings Inc., dated December 20, 1993. 2. Amended and Restated Organization Agreement, dated as of December 21, 1993, among R. Philip Silver, D. Greg Horrigan, The Morgan Stanley Leveraged Equity Fund II, L.P., Bankers Trust New York Corporation, First Plaza Group Trust and Silgan Holdings Inc. 3. Stockholders Agreement, dated as of December 21, 1993, among R. Philip Silver, D. Greg Horrigan, The Morgan Stanley Leveraged Equity Fund II, L.P., Bankers Trust New York Corporation, First Plaza Group Trust and Silgan Holdings Inc. 4. Amended and Restated Management Services Agreement, dated as of December 21, 1993, between S&H, Inc. and Silgan Holdings Inc. 5. Amended and Restated Management Services Agreement, dated as of December 21, 1993, between S&H, Inc. and Silgan Corporation. 6. Amended and Restated Management Services Agreement, dated as of December 21, 1993, between S&H, Inc. and Silgan Containers Corporation. 7. Amended and Restated Management Services Agreement, dated as of December 21, 1993, between S&H, Inc. and Silgan Plastics Corporation. 8. Stock Purchase Agreement, dated as of December 21, 1993, between Silgan Holdings Inc. and First Plaza Group Trust. 9. Credit Agreement, dated as of December 21, 1993, among Silgan Corporation, Silgan Containers Corporation, Silgan Plastics Corporation, the lenders from time to time party thereto, Bank of America National Trust and Savings Association, as co- agent, and Bankers Trust Company, as agent. 10. Amended and Restated Holdings Guaranty, dated as of December 21, 1993, made by Silgan Holdings Inc. 11. Amended and Restated Borrowers Guaranty, dated as of December 21, 1993, made by Silgan Corporation, Silgan Containers Corporation, Silgan Plastics Corporation and California- Washington Corporation. EX-1 2 EXHIBIT 1 TO SILGAN HOLDINGS INC. 8-K Exhibit 1 RESTATED CERTIFICATE OF INCORPORATION OF SILGAN HOLDINGS INC. PURSUANT TO SECTIONS 242 AND 245 OF THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE SILGAN HOLDINGS INC., a Delaware corporation, the original Certificate of Incorporation of which was filed with the Secretary of State of the State of Delaware on April 6, 1989, HEREBY CERTIFIES that this Restated Certificate of Incorporation, restating, integrating and amending its Certificate of Incorporation, was duly proposed by its Board of Directors and adopted by its stockholders in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware, and that the capital of the Corporation is not being reduced under or by reason of any amendment in this Restated Certificate of Incorporation. FIRST: The name of this corporation (the "Corporation") is: SILGAN HOLDINGS INC. SECOND: The address of the registered office of the Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of the State of Delaware (the "GCL"). FOURTH: The name and mailing address of the Sole Incorporator of the Corporation is as follows: Ronald R. Adee, Esq. Willkie Farr & Gallagher One Citicorp Center 153 East 53rd Street New York, New York 10022 FIFTH: Prior to the occurrence of a Change of Control (as defined in Article TENTH), the number of directors of the Corporation shall be six, and from and after a Change of Control, the number of directors of the Corporation shall be increased to eight, as provided in Article SEVENTH. At each annual meeting of stockholders, three Class A Directors (as defined in Article SEVENTH) of the Corporation shall be elected by the vote of the holders of a majority of the outstanding shares of the Class A Stock (as defined in Article SEVENTH), and three Class B Directors (as defined in Article SEVENTH) shall be elected by the vote of the holders of a majority of the outstanding shares of the Class B Stock (as defined in Article SEVENTH). A. When and after a Change of Control occurs, the number of Class B Directors shall be increased to five, and the holders of a majority of the outstanding shares of Class B Stock shall be entitled to nominate and elect a total of five Class B Directors. B. In the event that a vacancy among the Class A Directors or the Class B Directors shall occur at any time prior to the election of directors at the next scheduled annual meeting of stockholders, the vacancy shall be filled, in the case of the Class A Directors, by either (i) the vote of the holders of a majority of the outstanding shares of Class A Stock, at a special meeting of stockholders, or (ii) by written consent of the holders of a majority of the outstanding shares of Class A Stock, and, in the case of the Class B Directors, by either (i) the vote of the holders of a majority of the outstanding shares of Class B Stock at a special meeting of stockholders, or (ii) by written consent of the holders of a majority of the outstanding shares of Class B Stock. C. (i) Prior to a Change of Control (but not thereafter), at all meetings of the Board of Directors, two Class A Directors and two Class B Directors shall be required to constitute a quorum ("Quorum") for the transaction of business. Prior to a Change of Control (but not thereafter), the approval of the majority of the entire Board of Directors, voting together as a single class, such majority to include at least one Class A Director and one Class B Director ("Required Majority"), at a meeting at which there is a Quorum, shall be required to approve the actions set forth in Article SIXTH hereof and, except as set forth in Article EIGHTH hereof, all other matters submitted to the Board of Directors; provided, however, that prior to a Change of Control (but not thereafter), the Class A Directors shall have the sole right to appoint any Class A Director to any committee of the Board of Directors, the Class B Directors shall have the sole right to appoint any Class B Director to any committee of the Board of Directors, and the approval of a majority of the members of any such committee, voting together as a single class, shall be required to approve all matters submitted to such committee. (ii) When and after a Change of Control occurs, at all meetings of the Board of Directors, a majority of the entire Board of Directors (regardless of class) shall be sufficient to constitute a quorum for the transaction of business and, except as set forth in Article EIGHTH hereof, the act of a majority of the directors (regardless of class) present at any meeting at which there is a quorum present shall be sufficient to constitute the act of the Board of Directors. D. There shall be an Audit Committee consisting of two or more of the directors of the Corporation, which shall include at least one Class A Director and one Class B Director who shall perform such functions as shall be established by the Board of Directors; provided, however, that prior to a Change of Control (but not thereafter) if a majority of the Class B Directors so determine at any time, such committee shall consist of one Class A Director and two Class B Directors. From and after a Change of Control, such committee shall consist of such number of directors of such classes as shall be determined by a majority of the Board of Directors. E. There shall be an Investment Opportunity Committee, which shall have sole authority to consider and approve of any investment opportunity that is submitted to the Board of Directors by a holder of Class A Stock who, under the terms of any agreement then in effect among one or more of the stockholders and the Corporation, is required to first offer such opportunity to the Corporation. Prior to a Change of Control (but not thereafter), such committee shall consist of one Class A Director and two Class B Directors. From and after a Change of Control, such committee shall consist of such number of directors of such classes as shall be determined by a majority of the Board of Directors. F. (i) In the event that, prior to a Change of Control, and while the Initial Investors (as defined below) are parties to an Organization Agreement among themselves, Bankers Trust New York Corporation, First Plaza and the Corporation, the Board of Directors shall be unable to reach agreement upon any particular matter submitted to it (an "Open Matter"), The Morgan Stanley Leveraged Equity Fund II, L.P., a Delaware limited partnership ("MS Equity"), R. Philip Silver ("Silver") and D. Greg Horrigan ("Horrigan"), and their respective Affiliates (collectively, the "Initial Investors"), acting through either Silver or Horrigan and through a designee of MS Equity, have agreed to hold one or more informal meetings promptly in an effort to discuss and resolve such Open Matter. The Initial Investors have agreed to seek to cause any conclusions arrived at during such meetings to be implemented, where necessary, by action of the Required Majority of the Board of Directors. (ii) If the procedure specified in paragraph (i) has not led to a satisfactory resolution regarding an Open Matter within 30 days of any Initial Investor seeking such an informal meeting with respect to such Open Matter, then, upon a finding by any two directors (regardless of class) that failure to resolve the Open Matter threatens the continued existence of, or will result in irreparable injury to, the Corporation, the Open Matter shall be submitted for determination in the following manner; provided, however, that (a) of the items set forth in subparagraphs one through twenty of Article SIXTH, only item number five may be so submitted and (b) any Open Matter not involving an item set forth in subparagraphs one through twenty of Article SIXTH may be submitted to arbitration only if the Initial Investors have agreed that such item shall be so submitted. The directors in favor of the Open Matter as a group and the directors opposed to the Open Matter as a group shall, within ten days of such request, each appoint an independent person as arbitrator to resolve the Open Matter. The arbitrators so chosen promptly shall agree upon and appoint an independent person as an additional arbitrator. The arbitrators promptly shall determine whether the Open Matter meets the standard set forth in this paragraph as to matters which are to be submitted to arbitration by the Initial Investors, and, if so, promptly shall seek to resolve the Open Matter. The decision of the arbitrators shall be final and binding upon the Corporation and the stockholders. The Board of Directors or, if the Board of Directors shall not have done so within five days of the arbitrators' decision, the stockholders, shall take any and all action necessary to implement such decision. If, pursuant to the preceding sentence, the resolution of an Open Matter is submitted to the stockholders for authorization, the Initial Investor which is in favor of such resolution shall be entitled to vote all of the shares of Class A Stock and Class B Stock held by any other Initial Investors in favor of such resolution, and the action of a majority of the holders of outstanding Class A Stock and Class B Stock, voting as a single class, shall be sufficient to approve such resolution. (iii) If the arbitrators chosen by the directors are unable to agree upon and appoint an additional arbitrator, the Open Matter shall be resolved by three arbitrators appointed by the American Arbitration Association (the "AAA") in accordance with the then prevailing Commercial Arbitration Rules thereof (the "Rules"). The AAA shall be required to endeavor to appoint experts in a discipline relevant to the Open Matter and, if the same issue or an issue similar to the Open Matter has been submitted to arbitration by the Initial Investors before, to appoint one or more of the same arbitrators to determine the Open Matter and each such same (or similar) issue, but the failure to do any of the foregoing shall not be a basis for avoiding, setting aside or altering the arbitral award. (iv) Any arbitration referred to in subparagraph F(iii) of Article FIFTH shall be conducted under the Rules in the City of Wilmington, Delaware unless the Initial Investors mutually agree to have the arbitration held elsewhere, and the award made therein shall be entered in the applicable State Courts of Delaware or, as the case may be, the United States District Court for Delaware. SIXTH: The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, provided that the Corporation may retain such qualified persons (as determined by the Board of Directors) to provide the Corporation with general management, supervision and administrative services relating to the operations of the Corporation. Approval of the following actions shall not be delegated to any officer, employee or agent of the Corporation: 1. Amendment of the Certificate of Incorporation or By-Laws of the Corporation or any of its subsidiaries. 2. Issuance, sale, purchase or redemption of any capital stock, warrants, options or other securities of the Corporation or any of its subsidiaries (other than, in the case of any issuance or sale, to the Corporation or any direct or indirect wholly owned subsidiary of the Corporation) except as may be otherwise provided in this Restated Certificate of Incorporation. 3. Sale of assets other than inventory to or from the Corporation or any of its subsidiaries in excess of $2 million (i) in one or a series of related transactions (regardless of the period of time in which such transaction or series of related transactions take place) or (ii) in any number of transactions within a six-month period. 4. Merger, consolidation, dissolution or liquidation of the Corporation or any of its subsidiaries. 5. Filing of any petition by or on behalf of the Corporation seeking relief under the federal bankruptcy act or similar relief under any law or statute of the United States or any state thereof. 6. Setting aside, declaration or making of any payment or distribution by way of dividend or otherwise to the Corporation's stockholders (or setting dividend policy). 7. Incurrence (other than in the ordinary course of business) of new indebtedness (including capitalized leases, but excluding indebtedness incurred pursuant to debt instruments of the Corporation in existence on the Closing Date (as defined in Article TENTH) and excluding indebtedness incurred under the Bank Financing pursuant to commitments approved by the Board of Directors) or any fixed or contingent liabilities in excess of $2 million. 8. Creation or incurrence of a lien or encumbrance on the property of the Corporation or any of its subsidiaries, except for liens relating to the Bank Financing (as defined in Article TENTH) or other minor liens, including liens for taxes or those arising by operation of law, permitted to exist under the terms of the Bank Financing. 9. Guarantees in excess of $1 million of payment by or performance of obligations of third parties other than in the ordinary course of business. 10. The Corporation's institution of, termination or settlement of litigation not in the ordinary course of the Corporation's business (in each case where such litigation represents a case or controversy in excess of $2 million). 11. Surrendering or abandoning any property, tangible or intangible, or any rights having a book value in excess of $1 million. 12. Except as set forth in subsection 16 below with respect to leases which are not capitalized, any commitment of the Corporation (other than in the ordinary course of its business) which creates a liability or commitment in excess of $2 million. 13. Capital expenditures in excess of the amounts permitted under the Bank Financing. 14. Donations of money or property in excess of $100,000 in a single year. 15. Any investment of the Corporation or any of its subsidiaries in another corporation, partnership or joint venture in excess of $2 million (in one or a series or related transactions or in any number of transactions within six months). 16. Entering into any lease (other than a capitalized lease which shall be subject to the limitation set forth in subsection 12 above) of any assets of the Corporation located in any one place having a book value in excess of $4 million, or in excess of $1 million if the lease has a term of more than five years. 17. Entering into agreements or material transactions between the Corporation and a director or officer of any of the following companies or their Affiliates (as defined in Article TENTH): the Corporation and MS Equity. 18. Replacement of independent accountants for the Corporation or any of its subsidiaries. 19. Modification of significant accounting methods, practices, procedures and policies. 20. Removal of officers. SEVENTH: The total number of shares of capital stock which the Corporation shall have authority to issue is 3,167,500 shares, consisting of 500,000 shares of Class A common stock, par value $.01 per share (the "Class A Stock"), 667,500 shares of Class B common stock, par value $.01 per share (the "Class B Stock"), 1,000,000 shares of Class C common stock, par value $.01 per share (the "Class C Stock") (the Class A Stock, Class B Stock and Class C Stock being sometimes referred to herein collectively as the "Common Stock"), and 1,000,000 shares of preferred stock, par value $.01 per share (the "Preferred Stock"). A. Except as set forth below, the rights, privileges and powers, including the voting powers, of the Class A Stock and the Class B Stock shall be identical, with each share of each class being entitled to one vote on all matters to come before the stockholders of the Corporation. (i) Until the occurrence of a Change of Control, but not thereafter, the affirmative vote of the holders of not less than a majority of the outstanding shares of Class A Stock and Class B Stock, voting as separate classes, shall be required for the approval of any matter to come before the stockholders of the Corporation, except as follows: (a) The holders of a majority of the outstanding shares of Class A Stock, voting as a separate class, shall have the sole right to vote for and elect three directors (such directors being referred to herein as "Class A Directors") and to remove any Class A Director with or without cause. (b) The holders of a majority of the outstanding shares of Class B Stock, voting as a separate class, shall have the sole right to vote for and elect (i) prior to a Change of Control, three directors other than the Class A Directors (the directors elected by the holders of Class B Stock being referred to herein as "Class B Directors"), and (ii) from and after a Change of Control, five Class B Directors, and to remove any Class B Director with or without cause. (c) The vote of the holders of not less than a majority of the outstanding shares of Class B Stock shall be required (x) to determine whether a product is similar to such products as are manufactured or sold or proposed to be manufactured or sold in North America by the Corporation or its subsidiaries or is otherwise directly competitive with products produced by the Corporation and its subsidiaries and (y) to authorize any action necessary to be taken by the stockholders to implement the decision of an arbitrator as provided in paragraph F of Article FIFTH. (ii) From and after a Change of Control, the affirmative vote of the holders of not less than a majority of the outstanding shares of Class A Stock and Class B Stock, voting together as a single class, shall be required for the approval of any matter to come before the stockholders of the Corporation, except that the provisions of subparagraphs A(i)(a) and A(i)(b) of this Article SEVENTH shall continue to apply from and after a Change of Control and except as otherwise provided in Article ELEVENTH. B. The holders of Class C Stock will not have any voting rights except as provided by applicable law and except that such holders shall be entitled to vote as a separate class on certain amendments to this Restated Certificate of Incorporation as provided in Article ELEVENTH. C. The Board of Directors of the Corporation may cause dividends to be paid to the holders of shares of Common Stock out of funds legally available for the payment of dividends by declaring an amount per share as a dividend. When and as dividends are declared, other than dividends declared with respect to the Preferred Stock, whether payable in cash, in property or in shares of stock of the Corporation, other than shares of Class A Stock, Class B Stock or Class C Stock, the holders of Class A Stock, the holders of Class B Stock and the holders of Class C Stock shall be entitled to share equally, share for share, in such dividends. No dividends shall be declared or paid in shares of Class A Stock, Class B Stock or Class C Stock or options, warrants, or rights to acquire such stock or securities convertible into or exchangeable for shares of such stock, except dividends payable ratably in shares of, or securities convertible into or exchangeable for, Class A Stock to holders of that class of stock, and in shares of, or securities convertible into or exchangeable for, Class B Stock to holders of that class of stock, and in shares of, or securities convertible into or exchangeable for, Class C Stock to holders of that class of stock. If, in connection with any (i) reorganization, reclassification or change of shares of Common Stock of the Corporation (other than a change in par value, or from par value to no par value as a result of a subdivision or combination), or (ii) consolidation of the Corporation with one or more other corporations or a merger of the Corporation with another corporation (other than a consolidation or merger in which the Corporation is the continuing corporation and which does not result in any reclassification or change of outstanding shares of Common Stock), or (iii) sale, lease or other disposition to another corporation (other than a wholly owned subsidiary of the Corporation) of all or substantially all the assets of the Corporation (any such transaction set forth in clause (i), (ii) or (iii) is hereinafter referred to as a "Reorganization Transaction"), the holders of any class of Common Stock receive shares of any class of common stock of the resulting or surviving corporation, effective provision shall be made in the certificate of incorporation of the resulting or surviving corporation or otherwise for the protection of the rights afforded by this paragraph C. D. (i) Any Regulated Stockholder (as defined below) shall be required to convert all of the shares of Class A Stock or Class B Stock held by such stockholder into the same number of shares of Class C Stock in accordance with the provisions of paragraph D(ii) below. The term "Regulated Stockholder" shall mean (a) any stockholder that is subject to the provisions of Regulation Y of the Board of Governors of the Federal Reserve System (12 C.F.R. Part 225) or any successor to such regulation ("Regulation Y") that holds shares of Common Stock originally issued to such stockholder or acquired by such stockholder pursuant to a right of first refusal granted to the stockholder under the terms of an agreement among one or more of the stockholders and the Corporation, (b) any Affiliate of any such Regulated Stockholder that is a transferee of any shares of Common Stock, so long as such Affiliate shall hold, and only with respect to, such shares of Common Stock and (c) any Person (x) to which such Regulated Stockholder or any of its Affiliates has transferred such shares, so long as such transferee shall hold, and only with respect to, any shares of Common Stock transferred by such stockholder or Affiliate and (y) which is, or any Affiliate of which is, subject to the provisions of Regulation Y. (ii) In the event the Corporation effects a Public Offering (as defined below), upon compliance with the provisions of paragraph D(iii) below, any Regulated Stockholder shall be entitled to convert, at any time and from time to time, any and all shares of Class C Stock held by such stockholder into the same number of shares of Class B Stock (or, to the extent such Class C Stock was issued upon the conversion of Class A Stock, into the same number of shares of Class A Stock); provided, however, that no holder of any shares of Class C Stock shall be entitled to convert any such shares into shares of Class A Stock or Class B Stock if, as a result of such conversion, (i) such holder and its Affiliates, directly or indirectly, would own, control or have the power to vote a greater number of shares of Common Stock or other securities of any kind issued by the Corporation than such holder and its Affiliates shall be permitted to own, control or have the power to vote under any law, regulation, rule or other requirement of any governmental authority at the time applicable to such holder or its Affiliates, or (ii) the rights, activities or business of the Corporation would become limited in any respect as a result of the application of Regulation Y. (iii) (a) Each conversion of shares of Common Stock of the Corporation into shares of another class of Common Stock shall be effected by the surrender of the certificate or certificates evidencing the shares of the class of stock to be converted (the "Converting Shares") at the principal office of the Corporation (or such other office or agency of the Corporation as the Corporation may designate by notice in writing to the holders of Common Stock), at any time during its usual business hours, together with written notice by the holder of such Converting Shares, (1) stating that the holder desires to convert the Converting Shares evidenced by such certificate or certificates into an equal number of shares of the class into which such shares may be converted (the "Converted Shares"), and (2) giving the name or names (with addresses) and denominations in which the certificate or certificates evidencing the Converted Shares shall be issued, and instructions for the delivery thereof. The Corporation shall promptly notify each Regulated Stockholder of record of its receipt of such notice. Upon receipt of the notice described in the first sentence of this paragraph D(iii)(a), together with the certificate or certificates evidencing the Converting Shares, the Corporation shall be obligated to, and shall, issue and deliver in accordance with such instructions the certificate or certificates evidencing the Converted Shares issuable upon such conversion and a certificate (which shall contain such legends, if any, as were set forth on the surrendered certificate or certificates) representing any shares which were represented by the certificate or certificates surrendered to the Corporation in connection with such conversion but which were not Converting Shares and, therefore, were not converted. Such conversion, to the extent permitted by law, shall be deemed to have been effected as of the close of business on the date on which such certificate or certificates shall have been surrendered and such written notice shall have been received by the Corporation, and at such time the rights of the holder of such Conversion Shares as such holder shall cease, and the person or persons in whose name or names any certificates evidencing the Converted Shares are to be issued upon such conversion shall be deemed to have become the holder or holders of record of the Converted Shares. The Corporation shall be entitled to rely conclusively as to the truth of the statements made in such written notice, and the Corporation shall not be liable to any person with respect to any action taken or omitted to be taken by it in connection with such conversion in reliance on the statements made in such written notice. (b) Notwithstanding any provision of paragraph D(iii)(a) to the contrary, the Corporation shall not be required to record the conversion of, and no holder of shares shall be entitled to convert, shares of Class C Stock into shares of Class A Stock or Class B Stock, as the case may be, unless such conversion is permitted under applicable law and this Restated Certificate of Incorporation; provided, however, that the Corporation shall be entitled to rely without independent verification upon the representation of any holder, that the conversion of shares by such holder is permitted under applicable law, and in no event shall the Corporation be liable to any such holder or any third party arising from any such conversion whether or not permitted by applicable law. (c) Upon the issuance of the Converted Shares in accordance with this paragraph D, such shares shall be deemed to be duly authorized, validly issued, fully paid and non-assessable. (d) The Corporation shall not directly, or indirectly redeem, purchase or otherwise acquire any shares of Class A or B Stock or take any other action affecting the voting rights of such shares, if such action will increase the percentage of outstanding voting securities known by the Corporation to be owned or controlled by any Regulated Stockholder unless the Corporation gives written notice (the "First Notice") of such action to each such Regulated Stockholder. The Corporation will defer making any conversion, redemption, purchase or other acquisition or taking any such other action for a period of 30 days (the "Deferral Period") after giving the First Notice in order to allow each such Regulated Stockholder to determine whether it wishes to convert or take any other action with respect to the Common Stock it owns, controls or has the power to vote, and if any such Regulated Stockholder then elects to convert any shares of Common Stock, it shall notify the Corporation in writing within 20 days of the issuance of the First Notice, in which case the Corporation (x) shall defer taking the pending action until the end of the Deferral Period, (y) shall promptly notify each other Regulated Stockholder holding shares of which it has knowledge of each proposed conversion and the proposed transactions, and (z) effect the conversion requested by all Regulated Stockholders in response to the notices issued pursuant to this paragraph D(iii)(d) at the end of the Deferral Period or as soon thereafter as is reasonably practicable. (e) The issue of certificates evidencing shares of any class of Common Stock upon conversion of shares of any other class of Common Stock pursuant to this Article SEVENTH shall be made without charge to the holders of such shares for any issue tax in respect thereof or other cost incurred by the Corporation in connection with such conversion; provided, however, the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any certificate in a name other than that of the holder of the Common Stock converted. (iv) If the Corporation shall in any manner subdivide (by stock split, stock dividend or otherwise) or combine (by reverse stock split or otherwise) the outstanding shares of any class of Common Stock, the outstanding shares of the other classes of Common Stock shall be proportionately subdivided or combined, as the case may be, and effective provision shall be made for the protection of all conversion rights, if any, hereunder. In case of any Reorganization Transaction, each holder of a share of Common Stock, irrespective of class, shall have the right at any time thereafter, so long as the conversion right hereunder with respect to such shares of Common Stock would exist had such event not occurred, to convert such share into the kind and amount of shares of stock and other securities and property receivable upon such Reorganization Transaction by a holder of the number of shares of the class of Common Stock into which such shares of Common Stock might have been converted immediately prior to such Reorganization Transaction. If, in connection with such Reorganization Transaction, the holders of Class C Stock receive shares of any class of non- voting common stock of the resulting or surviving corporation, effective provision shall be made in the certificate of incorporation of the resulting or surviving corporation or otherwise for the protection of the conversion rights of the shares of Class C Stock that shall be applicable, as nearly as reasonably may be, to any such other shares of stock and other securities and property deliverable upon conversion of shares of Class C Stock into which such Class C Stock might have been converted immediately prior to such event. In connection with a Reorganization Transaction, effective provision shall be made in the agreement relating to such Reorganization Transaction for the receipt by holders of Class C Stock of the equivalent amount per share and form of consideration as the holders of Class B Stock are entitled to receive pursuant to such Reorganization Transaction; provided, however, notwithstanding the foregoing, to the extent holders of Class B Stock receive voting equity securities of the resulting or surviving corporation in a Reorganization Transaction, holders of Class C Stock shall be entitled to receive only non-voting equity securities of the resulting or surviving corporation with the protections afforded by this subparagraph D(iv). (v) In the event the Corporation effects a Public Offering (as defined below), the following shall occur on the first day shares are sold to the public: (a) The distinction between Class A Stock and Class B Stock and all special rights and limitations and quorum and required vote provisions applicable to such classification shall terminate. Following a Public Offering, the rights, privileges and powers, including the voting powers, of the Class A Stock and Class B Stock shall be identical, with each share of each such class being entitled to one vote on all matters to come before the stockholders of the Corporation, and all quorum and required vote provisions applicable to the Class A Stock and Class B Stock voting as a single class shall be as provided by applicable Delaware law as then in effect. (b) The distinction between the Class A Directors and Class B Directors and all rights and voting and quorum requirements applicable thereto shall be abolished and the quorum and required vote provisions applicable to action by the Board of Directors shall be as provided by applicable Delaware law as then in effect. The holders of a majority of the outstanding shares of the Class A Stock and Class B Stock voting as a single class shall elect all of the directors of the Corporation. (c) "Public Offering" shall mean the sale of shares of Common Stock to the public, pursuant to an effective registration statement, registered under the Securities Act of 1933, as amended. E. Shares of Preferred Stock of the Corporation may be issued from time to time in one or more classes or series, each of which class or series shall have such distinctive designation or title as shall be fixed by the Board of Directors of the Corporation prior to the issuance of any shares thereof. Each such class or series of Preferred Stock shall have such voting powers, full or limited, or no voting powers, and such preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof, as shall be stated in such resolution providing for the issue of such class or series of Preferred Stock as may be adopted from time to time by the Board of Directors prior to the issuance of any shares thereof pursuant to the authority hereby expressly vested in it, all in accordance with the laws of the State of Delaware. EIGHTH: A. Prior to a Change of Control, the Executive Officers shall be the Chairman of the Board of Directors who shall preside at all meetings of the stockholders and of the Board of Directors and the President. All officers of the Corporation shall serve until voluntary resignation or retirement, or removal by the Board of Directors in accordance with the provisions set forth herein. Any number of offices may be held by the same person, unless otherwise prohibited by law, this Restated Certificate of Incorporation or the By-Laws. The officers of the Corporation need not be stockholders of the Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers be directors of the Corporation. B. Prior to a Change of Control, the officers of the Corporation shall be nominated and elected to their positions by the Class A Directors and may be removed by the Required Majority (as defined in Article FIFTH) of the Board of Directors present at a meeting at which a quorum shall be present throughout. Prior to a Change of Control, any vacancy occurring in any office of the Corporation shall be filled by vote of the Class A Directors. C. From and after a Change of Control, all of the officers of the Corporation shall be nominated and elected to their positions by the Class B Directors and may be removed by the Class B Directors and any vacancy occurring in any office of the Corporation shall be filled by vote of the Class B Directors. D. All officers of the Corporation shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors; and all officers of the Corporation shall hold office until their successors are chosen and qualified, or until their earlier resignation or removal. The salaries of all officers of the Corporation shall be fixed by the Board of Directors. NINTH: In furtherance and not in limitation of the powers conferred by statute, the By-Laws of the Corporation may be altered, amended or repealed in whole or in part, or new By-Laws may be adopted by approval of the Required Majority present at a meeting of the Board of Directors at which a Quorum is present and acting throughout, until a Change of Control occurs, and thereafter by a majority of the Board of Directors voting at a meeting at which a quorum is present and acting throughout. TENTH: As used in this Restated Certificate of Incorporation, the following terms shall have the meanings indicated below: 1. "Affiliate" shall mean with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person. For the purpose of this definition, the term "control" (including with correlative meanings, the terms "controlling", "controlled by" and "under common control with"), as used with respect to any person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise. 2. "Bank Financing" shall mean the Amended and Restated Credit Agreement, dated as of August 31, 1987, amended and restated as of March 1, 1989 and amended and restated as of July 13, 1990 and further amended and restated as of June 18, 1992 (the "Credit Agreement"), among Silgan Corporation, Silgan Containers Corporation, Silgan Plastics Corporation, the financial institutions parties thereto and Bankers Trust Company, as agent, as in effect from time to time, and any refinancings, renewals, amendments or extensions thereof or additional borrowings thereunder. 3. "Closing Date" shall mean the date and time at which the merger of Silgan Acquisition Inc., a wholly owned subsidiary of the Corporation, with and into Silgan Corporation was effective in accordance with the GCL. 4. "Change of Control" shall mean the occurrence of any of the following events: (i) Silver and Horrigan shall collectively own, directly or indirectly, less than one-half of the aggregate number of outstanding shares of Class A Stock owned by them directly or indirectly on the Closing Date on a common stock equivalent basis and as adjusted for stock splits, recapitalizations and the like, or (ii) the acceleration of the Bank Financing or the Senior Discount Debentures, by the trustee under the indenture relating thereto, as a result of the occurrence of an event of default under the terms of the Bank Financing or the Senior Discount Debentures, as the case may be, relating to a payment default or financial covenant default. 5. "Senior Discount Debentures" shall mean the 13-1/4% Senior Discount Debentures due 2002 of the Corporation, and any refinancings or amendments thereof. ELEVENTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Restated Certificate of Incorporation in the manner now or hereafter prescribed by law, provided that (i) the resolution approving such amendment, alteration, change or repeal be adopted by the Board of Directors by approval of the Required Majority present at a meeting at which the quorum is present and acting throughout, until a Change of Control occurs, and thereafter by a majority of the members of the Board of Directors voting together as a single class present at a meeting at which a quorum is present and acting throughout and (ii) the proposed amendment, alteration, change or repeal be approved by a majority of the outstanding shares of Class A Stock and Class B Stock, each voting as a separate class, until a Change of Control occurs and thereafter by a majority of the outstanding shares of Class A Stock and Class B Stock, voting together as a single class; provided, however, that from and after a Change of Control, any amendment, alteration, change or repeal of subparagraph A(i)(a) of Article SEVENTH or of this sentence shall also be approved by a majority of the outstanding shares of Class A Stock, voting as a separate class, and any amendment, alteration, change or repeal of subparagraph A(i)(b) and paragraph D of Article SEVENTH or paragraph C of Article EIGHTH or of this sentence shall also be approved by a majority of the outstanding shares of Class B Stock, voting as a separate class. With respect to any amendment, alteration, change or repeal of paragraph B, C or D of Article SEVENTH or of this sentence which would adversely affect the rights of the holders of the Class C Stock, such amendment shall require, in addition to the approval of the holders of the Class A Stock and the Class B Stock as provided in the first sentence of this Article ELEVENTH, approval by a majority of the outstanding shares of Class C Stock, voting as a separate class. TWELFTH: A. The Corporation shall indemnify to the full extent authorized or permitted by law (as now or hereafter in effect) any person made, or threatened to be made, a defendant or witness to any action, suit or proceeding (whether civil or criminal or otherwise) by reason of the fact that he, his testator or intestate, is or was a director or officer of the Corporation or by reason of the fact that such director or officer, at the request of the Corporation, is or was serving any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, in any capacity. Nothing contained herein shall effect any rights to indemnification to which employees other than directors and officers may be entitled to by law. No amendment or repeal of this paragraph A of Article TWELFTH shall apply to or have any effect on any right to indemnification provided hereunder with respect to any acts or omissions occurring prior to such amendment or repeal. B. No director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty by such a director as a director. Notwithstanding the foregoing sentence, a director shall be liable to the extent provided by applicable law (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the GCL, or (iv) for any transaction from which such director derived an improper personal benefit. No amendment to or repeal of this paragraph B of Article TWELFTH shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. C. In furtherance and not in limitation of the powers conferred by statute: (i) the Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of law; and (ii) the Corporation may create a trust fund, grant a security interest and/or use other means (including, without limitation, letters of credit, surety bonds and/or other similar arrangements), as well as enter into contracts providing indemnification to the full extent authorized or permitted by law and including as part thereof provisions with respect to any or all of the foregoing to ensure the payment of such amounts as may become necessary to effect indemnification as provided therein, or elsewhere. THIRTEENTH: Meetings of stockholders may be held within or without the State of Delaware, as the By-Laws of the Corporation may provide. The books of the Corporation may be kept (subject to any provision contained in the GCL) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the By-Laws of the Corporation. IN WITNESS WHEREOF, SILGAN HOLDINGS INC. has caused this Restated Certificate of Incorporation to be executed in its corporate name by its President and attested by its Assistant Secretary on the ___ day of December, 1993. SILGAN HOLDINGS INC. /s/ R. Philip Silver -------------------------------- R. Philip Silver President Attest: By: /s/ Sharon E. Budds ----------------------------- Sharon E. Budds Assistant Secretary EX-2 3 EXHIBIT 2 SILGAN HOLDINGS INC. 8-K Exhibit 2 AMENDED AND RESTATED ORGANIZATION AGREEMENT DATED AS OF DECEMBER 21, 1993 AMONG R. PHILIP SILVER D. GREG HORRIGAN THE MORGAN STANLEY LEVERAGED EQUITY FUND II, L.P. BANKERS TRUST NEW YORK CORPORATION FIRST PLAZA GROUP TRUST and SILGAN HOLDINGS INC. TABLE OF CONTENTS Page ARTICLE I PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.1 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARTICLE II DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 2 2.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ARTICLE III REPRESENTATIONS AND WARRANTIES; LEGEND . . . . . . . . . 9 3.1 Representations and Warranties of the Stockholders . . . . . . 9 3.2 Representations and Warranties of Holdings . . . . . . . . . 12 3.3 Legend on Certificates . . . . . . . . . . . . . . . . . . . 13 ARTICLE IV MANAGEMENT PROVISIONS . . . . . . . . . . . . . . . . . 14 4.1 Management Services Contract . . . . . . . . . . . . . . . . 14 4.2 Day-to-Day Operations . . . . . . . . . . . . . . . . . . . . 15 4.3 Arbitration of Deadlocks . . . . . . . . . . . . . . . . . . 15 4.4 Investment Opportunities . . . . . . . . . . . . . . . . . . 18 4.5 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . 19 ARTICLE V RESTRICTIONS ON TRANSFER . . . . . . . . . . . . . . . . . . 20 5.1 Limitations of Transfer . . . . . . . . . . . . . . . . . . . 20 5.2 Transfers to Affiliates . . . . . . . . . . . . . . . . . . . 22 5.3 Effect of Void Transfers . . . . . . . . . . . . . . . . . . 22 5.4 Right of First Refusal . . . . . . . . . . . . . . . . . . . 23 5.5 Right to Sell Stock Upon Death or Disability; Purchase Price; Terms of Purchase . . . . . . . . . . . . . . . . . . . . . . 40 5.6 Right to Purchase Stock; Purchase Price; Terms of Purchase . 43 ARTICLE VI CALL OPTION OF HOLDINGS . . . . . . . . . . . . . . . . 45 6.1 First Plaza's Obligation to Sell . . . . . . . . . . . . . . 45 6.2 Exercise of Call . . . . . . . . . . . . . . . . . . . . . . 45 6.3 Adjustment of Shares and Call Purchase Price . . . . . . . . 46 ARTICLE VII LIQUIDITY . . . . . . . . . . . . . . . . . . . . . . . 46 7.1 Right to Demand an Initial Public Offering of the Common Stock 46 7.2 Expenses of Registration . . . . . . . . . . . . . . . . . . 50 7.3 Indemnification Relating to Registration . . . . . . . . . . 51 7.4 Contribution Relating to Registration . . . . . . . . . . . . 55 ARTICLE VIII TERMINATION . . . . . . . . . . . . . . . . . . . . . . 57 8.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . 57 8.2 Extension . . . . . . . . . . . . . . . . . . . . . . . . . . 57 ARTICLE IX INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . 58 9.1 Indemnification . . . . . . . . . . . . . . . . . . . . . . . 58 ARTICLE X REPORTS AND ACCESS TO INFORMATION . . . . . . . . . . . . . . 62 10.1 Books and Records . . . . . . . . . . . . . . . . . . . . . . 62 10.2 Financial Statements . . . . . . . . . . . . . . . . . . . . 62 10.3 Access to Information . . . . . . . . . . . . . . . . . . . . 63 10.4 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . 63 ARTICLE XI CERTAIN OTHER AGREEMENTS . . . . . . . . . . . . . . . 63 11.1 Certain Agreement Relating to Approval of Post-IPO Charter, By-Laws and Management Services Contract . . . . . . . . . . 63 11.2 Restriction on Voting by MS Equity . . . . . . . . . . . . . 64 11.3 Certain Agreement Relating to Nomination of and Voting for One Class B Director . . . . . . . . . . . . . . . . . . . . . . 64 11.4 Voting Agreement for Certain Purchasers of Class A Stock . . 64 11.5 Voting Agreement for Certain Purchasers of Class B Stock . . 65 ARTICLE XII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . 65 12.1 Certain Agreement Relating to Conversion Rights . . . . . . . 65 12.2 Appointment of Agent . . . . . . . . . . . . . . . . . . . . 66 12.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 12.4 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 69 12.5 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 12.6 Curative Actions; Severability . . . . . . . . . . . . . . . 69 12.7 Action of a Stockholder . . . . . . . . . . . . . . . . . . . 71 12.8 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 71 12.9 Construction . . . . . . . . . . . . . . . . . . . . . . . . 71 12.10 Counterparts . . . . . . . . . . . . . . . . . . . . . 71 12.11 Successors and Assigns . . . . . . . . . . . . . . . . 72 12.12 Cumulative Rights . . . . . . . . . . . . . . . . . . . 72 12.13 Further Assurances . . . . . . . . . . . . . . . . . . 72 12.14 Specific Performance . . . . . . . . . . . . . . . . . 72 12.15 Compliance with Applicable Laws . . . . . . . . . . . . 73 12.16 Accuracy of Information . . . . . . . . . . . . . . . . 73 12.17 Disclosure . . . . . . . . . . . . . . . . . . . . . . 73 12.18 Survival of Certain Terms . . . . . . . . . . . . . . . 73 12.19 No Third Party Beneficiaries . . . . . . . . . . . . . 73 12.20 Effectiveness; Entire Agreement . . . . . . . . . . . . 73 12.21 ERISA Limitation . . . . . . . . . . . . . . . . . . . 74 EXHIBITS Exhibit A Form of Post-IPO Charter Exhibit B Form of Post-IPO By-Laws Exhibit C Form of Post-IPO Management Services Contract ORGANIZATION AGREEMENT This Amended and Restated Organization Agreement made and entered into as of the 21st day of December, 1993, by and among R. PHILIP SILVER ("Silver"), D. GREG HORRIGAN ("Horrigan"), THE MORGAN STANLEY LEVERAGED EQUITY FUND II, L.P., a Delaware limited partnership ("MS Equity"), BANKERS TRUST NEW YORK CORPORATION, a New York corporation ("BTNY"), FIRST PLAZA GROUP TRUST, a group trust established under the laws of the State of New York ("First Plaza"), and SILGAN HOLDINGS INC., a Delaware corporation ("Holdings"). Capitalized terms used in this Agreement shall have the meanings ascribed to them in Article II hereof or in any other Section. ARTICLE I PURPOSE 1.1 Purpose. The purpose of this Agreement is to amend and restate the Organization Agreement dated June 30, 1989, by and among Silver, Horrigan, MS Equity, BTNY and Holdings (the "Existing Organization Agreement"), in order to set forth the various agreements and understandings among the Stockholders and Holdings concerning (a) the organization of Holdings; (b) the investment by First Plaza in Holdings; and (c) the terms governing the relationship among the Stockholders and between the Stockholders and Holdings for the term of this Agreement. ARTICLE II DEFINITIONS 2.1 Definitions. "Affiliate" and "Associate" shall have the respective meanings ascribed to such terms in Rule 12b-2 of the General Rules and Regulations as in effect on the date of this Agreement under the Exchange Act (as hereinafter defined) and, with respect to First Plaza, such terms shall include any successor or underlying trust; provided, however, that with respect to MS Equity such terms shall not include any person which is not an Investment Entity. "Bank Financing" shall mean the Credit Agreement, dated as of December 21, 1993, among Silgan, Containers, Plastics, the financial institutions parties thereto, Bank of America National Trust and Savings Association, as Co-Agent, and Bankers Trust Company, as Agent, as in effect from time to time, and any refinancings, renewals, amendments or extensions thereof or additional borrowings thereunder. "Board of Directors" shall mean the board of directors of Holdings. "By-Laws" shall mean the By-Laws of Holdings as in effect on the date hereof. "Certificate of Incorporation" shall mean the Restated Certificate of Incorporation of Holdings, as amended, substantially in the form of Exhibit E to the Stock Purchase Agreement, as filed with the Secretary of State of the State of Delaware and as in effect on the Closing Date. "Class A Stock" shall mean the Class A common stock, par value $.01 per share, of Holdings. "Class B Stock" shall mean the Class B common stock, par value $.01 per share, of Holdings. "Class C Stock" shall mean the Class C common stock, par value $.01 per share, of Holdings. "Closing Date" shall mean the date and time at which the Del Monte Acquisition is effective. "Common Stock" shall mean the Class A Stock, the Class B Stock and the Class C Stock. "Containers" shall mean Silgan Containers Corporation, a Delaware corporation which is an indirect wholly owned subsidiary of Holdings. "Del Monte Acquisition" shall mean the purchase by Containers of certain assets and the assumption by Containers of certain liabilities of Del Monte Corporation pursuant to the terms of a Purchase Agreement dated as of September 3, 1993 between Containers and Del Monte Corporation, as amended by the Amendment to Purchase Agreement dated as of December 10, 1993. "Estate" shall mean any and all assets left by a decedent and any executor, administrator or legal representative charged with the administration of such assets. "Exchange Act" shall mean the Securities Exchange Act of 1934 as in effect on the date of this Agreement. "Fair Market Value" shall mean the product of (i) the percentage of Holdings' outstanding common stock (assuming that there is only one class of Holdings' common stock as provided in (iii) below), owned at the date of determination by the Stockholder whose stock is the subject of the Transfer, multiplied by (ii) the number of shares of Holdings' common stock assumed to be outstanding as a result of the recapitalization referred to in clause (iii) below, multiplied by (iii) the price per share at which the common stock of Holdings (assuming that there is only one class of common stock and a recapitalization on a basis that is determined by the investment banking firms involved in determining Fair Market Value to be appropriate for an optimal trading market in Holdings' common stock) would trade on a national securities exchange, on NASDAQ or otherwise, assuming full liquidity and the absence of any significant concentration of ownership of Holdings' common stock in any holder or group of holders in the opinion of such investment banking firms. In reaching such determination, such firm or firms shall set the fair market value of Holdings' common equity, after taking into account the amount of financial leverage in its capital structure and shall consider whatever factors it or they deem relevant, including the price to earnings ratio, the debt to equity ratio, the market value to book value ratio and the market value to cash flow ratio of the common stock of publicly traded companies in the same industry that are deemed reasonably comparable for this purpose. "Family Transferees" shall mean the spouse, children or grandchildren of, or any trust for the benefit of the spouse, children or grandchildren of, Silver or Horrigan. "Group" shall mean, collectively, Silver and Horrigan and their respective Affiliates and related Family Transferees and Estates (Silver and his Affiliates, Silver's Family Transferees and Silver's Estate deemed to be collectively one member of the Group; and Horrigan and his Affiliates, Horrigan's Family Transferees and Horrigan's Estate deemed to be collectively one member of the Group). "Initial Investors" shall mean, collectively, MS Equity, Silver and Horrigan and their respective Affiliates. "Initial Stockholders" shall mean, collectively, MS Equity, Silver, Horrigan and BTNY. "Investment Entity" shall mean any Person who (i) is primarily engaged in the business of investing in securities of other companies and not taking an active role in the management or operations of such companies and (ii) does not permit the participation or involvement in any way in the business or affairs of Holdings of a Person who is engaged in a business not described in clause (i); provided, however, that a Person shall not fail to be an Investment Entity solely because employees of such Person are directors or officers of a company described in clause (i). "Investment Entity Sale" shall mean the sale or transfer of shares of Common Stock to an Investment Entity. "Investors" shall mean Silver, Horrigan, BTNY, MS Equity, First Plaza and their respective Affiliates. "IPO" shall mean the consummation of the first public offering of Common Stock pursuant to a registration statement which has been declared effective under the Securities Act. "Morgan Stanley" shall mean Morgan Stanley & Co. Incorporated, financial advisor to Holdings. "Permanent Disability" shall mean the inability of Silver or Horrigan by reason of illness or injury to perform substantially all of his duties in any office in Holdings or its Affiliates during any continuous period of three hundred sixty-five (365) days. "Permitted Transfer" shall mean any transfer of shares of Common Stock permitted pursuant to Article V hereof. "Permitted Transferee" shall mean any Person to whom shares of Common Stock are transferred in a Permitted Transfer. "Person" shall mean an individual, a corporation, a partnership, a joint venture, a trust or unincorporated organization, a joint stock company or other similar organization or any other legal entity. "Plastics" shall mean Silgan Plastics Corporation, a Delaware corporation which is an indirect wholly owned subsidiary of Holdings. "Prime Rate" shall mean the rate of interest which Bankers Trust Company announces from time to time as its prime lending rate. "Pro Rata Amount" with respect to any holder of Class A Stock, Class B Stock or Class C Stock shall mean a fraction, the numerator of which shall be the total number of shares of Class A Stock, Class B Stock and/or Class C Stock owned by such holder (treating all such stock as a single class), and the denominator of which shall be the total number of shares of Class A Stock, Class B Stock and Class C Stock outstanding (treating all such shares as a single class). "Registration Expenses" shall mean in connection with any registration and related offering of securities under Article VII of this Agreement (i) all registration and filing fees, (ii) all fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel) in connection with blue sky qualifications, (iii) all printing expenses, (iv) all internal expenses of Holdings and its subsidiaries, (v) all fees and expenses incurred in connection with the listing of such securities on an exchange, (vi) the fees and disbursements of counsel for Holdings and customary fees and expenses for independent certified public accountants retained by Holdings (including the expenses of any comfort letters or costs associated with the delivery by independent certified public accountants of a comfort letter), (vii) the reasonable fees and expenses of one counsel for the Stockholders selling shares of Common Stock in the Secondary Tranche (as defined in Section 7.1(h)), and (viii) any other fees and expenses of any such registration and related offering of securities which are not Selling Expenses. "S&H Inc." shall mean S&H Inc., a Connecticut corporation. "Securities Act" shall mean the Securities Act of 1933 as in effect on the date of this Agreement. "Selling Expenses" shall mean in connection with any registration and related offering of securities under Article VII of this Agreement all underwriting discount, selling commissions and stock transfer taxes applicable to any such securities and all fees and disbursements of counsel for any of the Stockholders selling shares of Common Stock in the Secondary Tranche (other than the fees and disbursements of one counsel designated by such selling Stockholders). "Silgan" shall mean Silgan Corporation, a Delaware corporation which is a wholly owned subsidiary of Holdings. "Stock Purchase Agreement" shall mean the agreement, dated as of the date hereof, between Holdings and First Plaza, concerning the purchase by First Plaza of 250,000 shares of Class B Stock. "Stockholders" shall mean the Investors or any of their Permitted Transferees. "Stockholder" shall mean any of them or any of their Permitted Transferees. "Third Party Sale" shall mean the sale or transfer by any Stockholder of such Stockholder's shares of Common Stock other than to an Affiliate of such Person, or such Person's Estate or to a Trust all the beneficiaries of which are Family Transferees, or an Estate or Trust of such Person or to a Family Transferee. "Transfer" shall mean sell, assign, transfer, exchange, mortgage, pledge or grant a security interest in, or otherwise dispose of or encumber an interest in, Holdings or shares of its capital stock. "Trust" shall mean any trust created by will or inter vivos transfer. ARTICLE III REPRESENTATIONS AND WARRANTIES; LEGEND 3.1 Representations and Warranties of the Stockholders. (a) Each of Silver and Horrigan represents and warrants to each of the other Stockholders and Holdings that he is the record and beneficial owner of 208,750 shares of Class A Stock; that he has the full power and authority to enter into this Agreement; that this Agreement has been duly authorized, executed and delivered by him; that the consummation of the transactions contemplated hereunder will not result in a breach or violation of, or a default under, any material agreement by which he or any of his properties is bound or any statute, rule, regulation, order or other law to which he is subject, nor require the obtaining of any consent or approval, permit or license from or filing with, any governmental authority or other Person by him in connection with the execution, delivery and performance by him of this Agreement, except for violations which would not, or consents or filings which, if not obtained or made, would not, in the aggregate, affect materially and adversely the business or financial condition of Silver or Horrigan and their respective Affiliates, taken as a whole; and that this Agreement constitutes (assuming its due authorization and execution by the other Stockholders and Holdings) his legal, valid and binding obligation. (b) MS Equity represents and warrants to each of the other Stockholders and Holdings that it is the record and beneficial owner of 417,500 shares of Class B Stock; that it is a limited partnership duly organized and validly existing under the laws of its jurisdiction of organization; that it has the power and authority under its agreement of limited partnership to enter into and perform this Agreement; that the execution of this Agreement by it has been duly authorized by all required partnership action; that the consummation of the transactions contemplated hereunder will not result in a breach or violation of, or a default under, its agreement of limited partnership or under any agreement of partnership of the general partner, or any material agreement by which it or any of its properties or any of its general partner's properties is bound or any statute, rule, regulation, order or other law to which it is subject, nor require the obtaining of any consent, approval, permit or license from or filing with, any governmental authority or other Person by MS Equity in connection with the execution, delivery and performance by it of this Agreement, except for violations which would not, or consents or filings which, if not obtained or made, would not, in the aggregate, affect materially and adversely the business, financial condition or results of operation of MS Equity; and that this Agreement constitutes (assuming its due authorization and execution by the other Stockholders and Holdings) its legal, valid and binding obligation. MS Equity further represents and warrants to Holdings that it is an "accredited investor" as such term is defined in Rule 501 under the Securities Act. (c) BTNY represents and warrants to the other Stockholders and Holdings that it is the record and beneficial owner of 50,000 shares of Class C Stock; that it is duly incorporated and validly existing as a corporation under the laws of the state of its jurisdiction of incorporation, and is in good standing therein; that it has the power and authority under its certificate of incorporation to enter into and perform this Agreement; that the execution of this Agreement by it has been duly authorized by all required corporate actions; that the consummation of the transactions contemplated hereunder will not result in a breach or violation of, or a default under, its certificate of incorporation, its by-laws, or any material agreement by which it or any of its properties is bound or any statute, rule, regulation, order or other law to which it is subject, nor require the obtaining of any consent, approval, permit or license from or filing with, any governmental authority or other Person by BTNY in connection with the execution, delivery and performance by it of this Agreement except for violations which would not, or consents or filings which, if not obtained or made, would not, in the aggregate, affect materially and adversely the business, financial condition or results of operation of BTNY and its Affiliates, taken as a whole; and that this Agreement constitutes (assuming its due authorization and execution by the other Stockholders and Holdings) its legal, valid and binding obligation. (d) First Plaza represents and warrants to each of the other Stockholders and Holdings that it is a trust duly organized and validly existing under the laws of its jurisdiction of organization; that it has the power and authority under its trust agreement to enter into and perform this Agreement; that the execution of this Agreement by it has been duly authorized; that the consummation of the transactions contemplated hereunder will not result in a breach or violation of, or a default under, its trust agreement or any material agreement by which it or any of its properties is bound or any statute, rule, regulation, order or other law to which it is subject, nor require the obtaining of any consent, approval, permit or license from or filing with, any governmental authority or other Person by First Plaza in connection with the execution, delivery and performance by it of this Agreement, except for violations which would not, or consents or filings which, if not obtained or made, would not, in the aggregate, affect materially and adversely its ability to consummate the transactions contemplated by, or fulfill its obligations under, this Agreement; and that this Agreement constitutes (assuming its due authorization and execution by the other Stockholders and Holdings) its legal, valid and binding obligation. 3.2 Representations and Warranties of Holdings. Holdings represents and warrants to the Stockholders that it is duly incorporated and validly existing as a corporation under the laws of the state of its jurisdiction of incorporation, and is in good standing therein; that it has the power and authority under its Certificate of Incorporation to enter into and perform this Agreement; that the execution of this Agreement by it has been duly authorized by all required corporate actions; that the consummation of the transactions contemplated hereunder will not result in a breach or violation of, or a default under, its Certificate of Incorporation, its By-Laws, or any material agreement by which it or any of its properties is bound or any statute, rule, regulation, order or other law to which it is subject, nor require the obtaining of any consent, approval, permit or license from or filing with, any governmental authority or other Person by Holdings in connection with the execution, delivery and performance by it of this Agreement, except for violations which would not, or consents or filings which, if not obtained or made, would not, in the aggregate, affect materially and adversely the business, financial condition or results of operation of Holdings and its Affiliates, taken as a whole; and that this Agreement constitutes (assuming its due authorization and execution by the Stockholders) its legal, valid and binding obligation. 3.3 Legend on Certificates. (a) The certificate (or certificates) representing the shares of Class B Stock to be purchased by First Plaza pursuant to the Stock Purchase Agreement shall bear the following legend on the face thereof: The shares represented by this certificate may not be sold, assigned, transferred, exchanged, mortgaged, pledged or otherwise disposed of or encumbered without compliance with the provisions of, and are otherwise restricted by the provisions of, that certain Amended and Restated Organization Agreement among R. Philip Silver, D. Greg Horrigan, The Morgan Stanley Leveraged Equity Fund II, L.P., Bankers Trust New York Corporation, First Plaza Group Trust and Silgan Holdings Inc. (the "Company") dated as of December 21, 1993 (the "Organization Agreement") and that certain Stockholders Agreement dated as of December 21, 1993 among the same parties as the parties to the Organization Agreement (the "Stockholders Agreement"). Notice is given that the Company's Restated Certificate of Incorporation and the Organization Agreement and Stockholders Agreement contain provisions with respect to the management of the Company, the composition and authority of its Board of Directors and the transferability of the shares represented by this certificate. Copies of the Organization Agreement and Stockholders Agreement are on file and available for inspection at the principal offices of the Company. Except as may otherwise be provided in the Organization Agreement and Stockholders Agreement, no transfer, sale, assignment, pledge, hypothecation or other disposition of the shares represented by this certificate may be made except (a) pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "Act"), and all applicable state securities laws or (b) if the Company has been furnished with an opinion of counsel for the holder, which opinion and counsel shall be satisfactory to the Company, to the effect that no registration under the Act is required for such transfer, sale, assignment, pledge, hypothecation or other disposition because of the availability of an exemption from registration under the Act and the rules and regulations in effect thereunder and all applicable state securities laws. (b) The Initial Stockholders agree to exchange the certificates delivered to them at the time of original issuance of their shares of Common Stock (or any certificates subsequently issued to any Initial Stockholder) for certificates bearing the legend set forth in Section 3.3(a) above. ARTICLE IV MANAGEMENT PROVISIONS 4.1 Management Services Contract. As of the Closing Date, the Management Services Agreement, dated June 30, 1989, between Holdings and S&H Inc., as amended by Amendment No. 1 thereto, dated July 13, 1990, and Amendment No. 2 thereto, dated as of June 29, 1992 (the "Management Contract"), shall be amended and restated by an agreement substantially in the form of Exhibit D to the Stock Purchase Agreement (the Management Contract as so amended and restated being referred to as the "Amended Management Contract"). 4.2 Day-to-Day Operations. The parties to this Agreement shall take all necessary steps and actions (including, in the case of the Stockholders, voting their shares of Common Stock) in order to accomplish, comply with and maintain the following provisions: (i) the day-to-day operations of Holdings shall be managed by its Executive Officers and its other officers, in accordance with the duties and responsibilities ascribed to those officers in the Certificate of Incorporation and the By-Laws and (ii) such officers shall perform their duties in a manner consistent with the Amended Management Contract and, as to those matters not delegated under the Amended Management Contract, with directions which may be given from time to time by the Board of Directors. 4.3 Arbitration of Deadlocks. (a) In the event that, from time to time, the Board of Directors shall be unable to reach agreement upon any particular matter submitted to it (an "Open Matter"), the Initial Investors, acting through either Silver or Horrigan and through a designee of MS Equity, shall hold one or more informal meetings promptly in an effort to discuss and resolve such Open Matter. The Initial Investors will seek to cause any conclusions arrived at during such meetings to be implemented, where necessary, by action of the Required Majority (as defined in the Certificate of Incorporation) of the Board of Directors. (b) If the procedure specified in paragraph (a) has not led to a satisfactory resolution regarding an Open Matter within 30 days of any Initial Investor seeking such an informal meeting with respect to such Open Matter, then, upon a finding by any two directors that failure to resolve the Open Matter threatens the continued existence of, or will result in irreparable injury to, Holdings, the Open Matter shall be submitted for determination in the following manner; provided, however, that (i) of the items set forth in subparagraphs one through twenty of Article SIXTH of Holdings' Certificate of Incorporation, only item number five may be so submitted and (ii) any Open Matter not involving an item set forth in subparagraphs one through twenty of Article SIXTH of Holdings' Certificate of Incorporation may be submitted to arbitration only if the Initial Investors agree that such item shall be so submitted. The directors in favor of the Open Matter as a group and the directors opposed to the Open Matter as a group shall, within ten days of such request, each appoint an independent person as arbitrator to resolve the Open Matter. The arbitrators so chosen promptly shall agree upon and appoint an independent person as an additional arbitrator. The arbitrators promptly shall determine whether the Open Matter meets the standard set forth in this paragraph as to matters which are to be submitted to arbitration by the Initial Investors, and, if so, promptly shall seek to resolve the Open Matter. The decision of the arbitrators shall be final and binding upon Holdings and the Stockholders. The Board of Directors or, if the Board of Directors shall not have done so within five days of the arbitrators' decision, the Stockholders shall take any and all action necessary to implement such decision. If, pursuant to the preceding sentence, the resolution of an Open Matter is submitted to the Stockholders for authorization, the Initial Investor which is in favor of such resolution shall be entitled to vote all of the shares of Class A Stock and Class B Stock held by any other Initial Investors in favor of such resolution, and the action of a majority of the holders of outstanding Class A Stock and Class B Stock, voting as a single class, shall be sufficient to approve such resolution. (c) If the arbitrators chosen by the Board of Directors are unable to agree upon and appoint an additional arbitrator, the Open Matter shall be resolved by three arbitrators appointed by the American Arbitration Association (the "AAA") in accordance with the then prevailing Commercial Arbitration Rules thereof (the "Rules"). The AAA shall be required to endeavor to appoint experts in a discipline relevant to the Open Matter and, if the same issue or an issue similar to the Open Matter has been submitted to arbitration by the Initial Investors before, to appoint one or more of the same arbitrators to determine the Open Matter and each such same (or similar) issue, but the failure to do any of the foregoing shall not be a basis for avoiding, setting aside or altering the arbitral award. (d) Any arbitration referred to in this Agreement shall be conducted under the Rules in the City of Wilmington, Delaware unless the parties mutually agree to have the arbitration held elsewhere, and the award made therein shall be entered in the applicable State Courts of Delaware or, as the case may be, the United States District Court for Delaware. Solely for the purposes of applying for an order confirming, modifying, correcting or vacating the award, the parties hereby consent and submit themselves to the personal jurisdiction of State Courts of Delaware or, as the case may be, the United States District Court for Delaware. Each party agrees that the arbitration provisions in the Certificate of Incorporation shall be binding upon the heirs or successors and the assigns and any trustee, receiver or executor of such party. Each party hereto shall bear the expense of its own representatives and any other expenses of the arbitration proceeding shall be borne by the parties as may be determined by the Rules or as may be assessed by the arbitrators. Except to the extent required by law, no party, arbitrator, representative, counsel or witness shall disclose or confirm to any person not present at the arbitration hearings, any information about the hearings, including the names of the parties and arbitrators, the nature and amount of the claims, the financial condition of any party, the expected date of hearing or the award made. 4.4 Investment Opportunities. Nothing in this Agreement shall be construed so as to prohibit any Stockholder from owning or investing in any business of any nature and description, independently or with others, and no Stockholder need disclose its intention to make any such investment to the other, nor advise Holdings of the opportunity presented by any such prospective investment; provided, however, that if the Group or either of its members is presented with any such opportunity which concerns the manufacture or sale of metal or plastic containers in North America (or such other products, if any, which the Stockholders determine, by majority vote of the outstanding shares of Class B Stock, are similar to such products as are manufactured or sold or proposed to be manufactured or sold in North America by Containers or Plastics or are otherwise directly competitive with products produced by Holdings and its subsidiaries), such member or members must first offer such opportunity to Holdings by submitting such opportunity to the Investment Opportunity Committee (as defined in the Certificate of Incorporation) of Holdings' Board of Directors for action. If such committee fails to approve the making of such investment by Holdings within 5 business days after receipt of the notice pursuant to which such submission to Investment Committee is made, the Group or either of its members shall then be free to take any action with respect to such investment as it, in its sole discretion, shall decide. 4.5 Confidentiality. The Stockholders and Holdings agree that for the term of this Agreement and for a period of ten years after the termination hereof, (a) each shall use its best efforts to cause its respective directors and officers to keep confidential all intellectual property and other proprietary information of Holdings and its subsidiaries, including all information concerning pricing and terms of sale of products, and (b) each shall hold and shall cause its consultants and advisors to hold in strict confidence, unless compelled to disclose by judicial or administrative process or, in the opinion of its counsel, by other requirements of law, all documents and information concerning any other party hereto furnished it by such other party or its representatives in connection with the transactions contemplated by this Agreement, except to the extent that any other information referred to in clause (a) or (b) above can be shown to have been (i) previously known by the party to which it is furnished, (ii) in the public domain through no fault of such party, or (iii) later lawfully acquired from other sources by the party to which it was furnished. ARTICLE V RESTRICTIONS ON TRANSFER 5.1 Limitations of Transfer. (a) Except as specifically permitted in this Article and in Articles VI and VII hereof and except in the case of Silver or Horrigan with respect to Transfers to a Family Transferee of Silver or Horrigan, respectively, no Stockholder shall, without the prior written consent of MS Equity, Silver and Horrigan, transfer any shares of Common Stock; provided, however, that First Plaza may transfer any shares of Common Stock held by it to one more successor trusts, and any such successor trust may transfer shares of Common Stock held by it to one or more successor trusts. Any Permitted Transfer shall not relieve a Stockholder from its obligations under this Agreement and shall not be effected unless and until the transferee agrees in writing prior to the Transfer to be bound by the terms of this Agreement, including all representations and warranties contained in Article III hereof with the appropriate changes reflecting the organization of such transferee, as and to the same extent that the transferor Stockholder was bound by this Agreement immediately prior to such Transfer. (b) Any Stockholder that effects a Permitted Transfer of the shares of Common Stock it holds understands and agrees with Holdings that: (i) it may do so only in compliance with the Securities Act, as then in effect; (ii) no Transfer of any of the shares of Common Stock shall be permitted without a written opinion of counsel of recognized standing in securities laws (including in-house counsel) to the effect that the proposed Transfer of the shares of Common Stock would not be in violation of the Securities Act or any applicable state securities laws, which opinion shall be, at such Stockholder's expense, submitted to Holdings and shall be satisfactory in form and substance to Holdings and (iii) it will give notice of any such Permitted Transfer to each of the Investors. In addition, the Stockholders agree not to transfer any of the shares of Common Stock except for transfers made in compliance with the terms of this Agreement, the terms of Holdings' Certificate of Incorporation as in effect from time to time and all applicable federal and state securities laws. (c) Any purported Transfer which does not comply with this Section 5.1 shall be deemed void and of no effect and shall be governed by the provisions of Section 5.3 hereof. 5.2 Transfers to Affiliates. Each of MS Equity, BTNY, First Plaza, Silver, Horrigan and their Permitted Transferees shall be entitled from time to time, without the consent of any other Stockholders, to Transfer any or all of the shares of capital stock of Holdings owned by it to an Affiliate of such of MS Equity, BTNY, First Plaza, Silver, Horrigan and their Permitted Transferees; provided, however, that such transferee shall, prior to the Transfer, agree in writing to, and thereafter shall, re-transfer ownership of any shares of capital stock of Holdings owned by such transferee back to the transferor Stockholder prior to the time such transferee ceases to be an Affiliate of such Stockholder, if the transferor Stockholder is at the time of such re-transfer an Affiliate of an Initial Stockholder or, if not, to whichever of the Initial Stockholders was the original transferor of the shares in question. In the event that the transferee ceases to be an Affiliate of the transferor Stockholder without a transfer to the transferor Stockholder or the Initial Stockholder which was the original transferor, as the case may be, having taken place, the ownership of such shares by such transferee shall be governed by the provisions of Section 5.3 hereof. 5.3 Effect of Void Transfers. In the event a Transfer of any shares of Common Stock has taken place or, with regard to Section 5.2 hereof, remains in place in violation of the provisions of this Article, such Transfer shall be void and of no effect, and no dividend of any kind whatsoever nor any distribution pursuant to liquidation or otherwise shall be paid by Holdings to the transferee in respect of such shares (all such dividends and distributions being deemed waived), and the voting rights of such shares on any matter whatsoever shall remain vested in the transferor, during the period commencing with such party's initial failure of compliance and ending when compliance shall have occurred. 5.4 Right of First Refusal. (a) Other than Transfers permitted by Sections 5.1 and 5.2 hereof, at any time prior to June 30, 1994, MS Equity may sell or transfer any shares of Common Stock owned by it only as follows: MS Equity must give notice (the "MS Offer Notice") to the Group setting forth the number of shares of Common Stock (the "MS Offered Shares") proposed to be sold, the terms and conditions of such sale or transfer, and the price or method for determining such price. Except as set forth in the last sentence of this Section 5.4(a), the Group shall have the right to purchase some or all of the MS Offered Shares at such price and on such terms and conditions set forth in the MS Offer Notice. Within fifty-five (55) days of receipt of the MS Offer Notice, the Group shall notify MS Equity whether it will exercise its right to purchase the MS Offered Shares. Failure of the Group to so notify MS Equity shall be deemed a determination by the Group not to purchase the MS Offered Shares. If the Group exercises its respective right to purchase the MS Offered Shares, the Group must consummate the purchase within ninety (90) days after the date of the notice of such exercise at a price equal to or greater than the price and upon the same terms and conditions set forth in the MS Offer Notice. No shares of Common Stock may be purchased pursuant to this Section 5.4(a) unless all the shares of Common Stock set forth in the MS Offer Notice are purchased or unless MS Equity consents to the purchase of less than all the MS Offered Shares. (b) Other than Transfers permitted by Sections 5.1 and 5.2 hereof, at any time prior to June 30, 1994, each member of the Group may sell or transfer any shares of Common Stock owned by such member only as follows: such member of the Group (the "Group Offeror") must give notice (the "Group Offer Notice") to the other member of the Group and MS Equity setting forth the number of shares of Common Stock (the "Group Offered Shares") proposed to be sold, the terms and conditions of such sale or transfer, and the price or method for determining such price. Except as set forth in the last sentence of this Section 5.4(b), the other member of the Group shall have the right to purchase some or all of the Group Offered Shares at such price and on such conditions set forth in the Group Offer Notice. Within fifty-five (55) days of the receipt of the Group Offer Notice, the other member of the Group shall notify the Group Offeror and MS Equity whether it will exercise its right to purchase the Group Offered Shares. Failure of the other member of the Group to so notify all such parties shall be deemed a determination by such other member of the Group not to purchase the Group Offered Shares. If such other member of the Group elects to purchase none, or less than all, of the Group Offered Shares, MS Equity shall have the right to purchase all the Group Offered Shares not purchased by the other member of the Group. Within sixty (60) days of receipt of the Group Offer Notice, MS Equity shall notify the Group whether they will exercise their right to purchase such remaining Group Offered Shares. Failure of MS Equity to so notify all such parties shall be deemed a determination by MS Equity not to purchase the Group Offered Shares. If either the other member of the Group or MS Equity exercises its respective right to purchase the Group Offered Shares, such party must consummate the purchase within ninety (90) days after the date of the notice of such exercise at a price equal to or greater than the price and upon the same terms and conditions set forth in the Group Offer Notice. No shares of Common Stock may be purchased pursuant to this Section 5.4(b) unless all the shares of Common Stock set forth in the Group Offer Notice are purchased or unless the Group Offeror consents to the purchase of less than all the Group Offered Shares. (c) Other than Transfers permitted by Sections 5.1 and 5.2 hereof, at any time prior to June 30, 1994, BTNY may sell or transfer any of its shares of Common Stock only as follows: BTNY must give notice (the "BTNY Offer Notice") to MS Equity and the Group (the "Section 5.4(c) Offerees") setting forth the number of shares of Common Stock (the "BTNY Offered Shares") proposed to be sold, the terms and conditions of such sale or transfer, and the price or method for determining such price. Except as set forth in the sixth sentence of this Section 5.4(c), each Section 5.4(c) Offeree shall have the right to purchase that percentage of the BTNY Offered Shares determined by dividing the total number of shares of Common Stock owned by such Section 5.4(c) Offeree by the total number of shares of Common Stock owned by both Section 5.4(c) Offerees; provided that in the event a Section 5.4(c) Offeree elects to purchase less than its full proportionate share, then the other Section 5.4(c) Offeree shall have the right to purchase all of such remaining BTNY Offered Shares. Within fifty-five (55) days of the receipt of the BTNY Offer Notice, each Section 5.4(c) Offeree shall notify BTNY and the other Section 5.4(c) Offeree whether it will exercise its right to purchase its proportionate share and the maximum number of BTNY Offered Shares such Section 5.4(c) Offeree would elect to purchase. Failure of a Section 5.4(c) Offeree to so notify all such parties shall be deemed a determination by such Section 5.4(c) Offeree not to purchase the BTNY Offered Shares. If either of the Section 5.4(c) Offerees exercises its respective right to purchase the BTNY Offered Shares, such party must consummate the purchase within ninety (90) days after the date of the notice of exercise of such right at a price equal to or greater than the price and upon the same terms and conditions set forth in the BTNY Offer Notice. No shares of Common Stock may be purchased pursuant to this Section 5.4(c) unless all the shares of Common Stock set forth in the BTNY Offer Notice are purchased or unless BTNY consents to the purchase of less than all the BTNY Offered Shares. (d) Other than Transfers permitted by Sections 5.1 and 5.2 hereof, at any time prior to June 30, 1994, First Plaza may sell or transfer any of its shares of Common Stock only as follows: First Plaza must give notice (the "First Plaza Offer Notice") to MS Equity and the Group (the "Section 5.4(d) Offerees") setting forth the number of shares of Common Stock (the "First Plaza Offered Shares") proposed to be sold, the terms and conditions of such sale or transfer, and the price or method for determining such price. Except as set forth in the sixth sentence of this Section 5.4(d), each Section 5.4(d) Offeree shall have the right to purchase that percentage of the First Plaza Offered Shares determined by dividing the total number of shares of Common Stock owned by such Section 5.4(d) Offeree by the total number of shares of Common Stock owned by both Section 5.4(d) Offerees; provided that in the event a Section 5.4(d) Offeree elects to purchase less than its full proportionate share, then the other Section 5.4(d) Offeree shall have the right to purchase all of such remaining First Plaza Offered Shares. Within fifty-five (55) days of the receipt of the First Plaza Offer Notice, each Section 5.4(d) Offeree shall notify First Plaza and the other Section 5.4(d) Offeree whether it will exercise its right to purchase its proportionate share and the maximum number of First Plaza Offered Shares such Section 5.4(d) Offeree would elect to purchase. Failure of a Section 5.4(d) Offeree to so notify all such parties shall be deemed a determination by such Section 5.4(d) Offeree not to purchase the First Plaza Offered Shares. If either of the Section 5.4(d) Offerees exercises its respective right to purchase the First Plaza Offered Shares, such party must consummate the purchase within ninety (90) days after the date of the notice of exercise of such right at a price equal to or greater than the price and upon the same terms and conditions set forth in the First Plaza Offer Notice. No shares of Common Stock may be purchased pursuant to this Section 5.4(d) unless all the shares of Common Stock set forth in the First Plaza Offer Notice are purchased or unless First Plaza consents to the purchase of less than all of the First Plaza Offered Shares. (e) In addition to transfers permitted by Sections 5.1 and 5.2 hereof, at any time on or after June 30, 1994, MS Equity may effect any Investment Entity Sale (or, if an Event of Default has occurred and is continuing under Paragraph 5(a) of the Amended Management Contract, any Third Party Sale) if MS Equity first offers such MS Offered Shares to Holdings, the Group and BTNY (the "Section 5.4(e) Offerees") for purchase in compliance with this Section 5.4(e). Subject to the last paragraph of this Section 5.4(e), MS Equity may not sell or transfer (including without limitation in a transaction of the type set forth in Section 5.1 hereof) shares of Common Stock held by MS Equity to a transferee other than the Section 5.4(e) Offerees unless MS Equity shall have made available to BTNY and First Plaza the opportunity to participate in such sale or transfer, by selling before or simultaneously with the closing of any such sale by MS Equity, a percentage of BTNY's shares of Common Stock and a percentage of First Plaza's shares of Common Stock, each of which is equal to the percentage of MS Equity's shares of Common Stock to be sold or offered, at the same price per share and on the same terms and conditions as those of the Investment Entity Sale or the Third Party Sale, as the case may be (such rights of BTNY and First Plaza are referred to herein as the "Pro Rata Rights"). MS Equity shall promptly provide an MS Offer Notice to the Section 5.4(e) Offerees and to First Plaza setting forth the terms of the proposed Investment Entity Sale or Third Party Sale, including the identity of the proposed purchaser, the number of shares of Common Stock being sold, the terms and conditions of the Investment Entity Sale or Third Party Sale, and the price or method of determining such price. The MS Offer Notice shall notify BTNY and First Plaza of each of their Pro Rata Rights, if applicable. Within fifteen (15) days of the receipt of the MS Offer Notice, Holdings shall notify MS Equity and the other Section 5.4(e) Offerees whether it will exercise its right to purchase up to all the MS Offered Shares. Failure of Holdings to so notify all such parties shall be deemed a determination by Holdings not to purchase the MS Offered Shares. If Holdings determines to purchase less than all the MS Offered Shares, and if the Group desires to purchase any or all of such remaining MS Offered Shares, the Group shall notify MS Equity and the other Section 5.4(e) Offerees within twenty-five (25) days of the receipt of the MS Offer Notice of the number of MS Offered Shares, if any, that the Group will exercise its right to purchase. Failure of the Group to so notify all such parties shall be deemed a determination by the Group not to purchase the MS Offered Shares. If Holdings and the Group determine to purchase in the aggregate less than all the MS Offered Shares, and if BTNY desires to purchase all of such remaining MS Offered Shares, BTNY shall notify MS Equity and the other Section 5.4(e) Offerees within thirty (30) days of receipt of the MS Offer Notice that BTNY will exercise its right to purchase such remaining MS Offered Shares. Failure of BTNY to so notify all such parties shall be deemed a determination by BTNY not to purchase the MS Offered Shares. No shares of Common Stock may be purchased by any of the Section 5.4(e) Offerees, or a combination thereof, pursuant to this Section 5.4(e) unless all the shares of Common Stock set forth in the MS Offer Notice are purchased or unless MS Equity consents to the purchase of less than all the MS Offered Shares. If any of the Section 5.4(e) Offerees exercises its respective right to purchase the MS Offered Shares, such party must consummate the purchase within ninety (90) days after the date of the notice of such exercise at a price equal to or greater than the price and upon the same terms and conditions set forth in the MS Offer Notice. If none of the Section 5.4(e) Offerees, or a combination thereof, determines to purchase in the aggregate all the MS Offered Shares, and if MS Equity has not consented to the purchase of less than all the MS Offered Shares, MS Equity shall, subject to the Pro Rata Rights, be free to sell the MS Offered Shares to the purchaser designated in the MS Offer Notice, provided that (i) such sale is consummated within ninety (90) days after the expiration of the thirty (30) day period referred to above at a price equal to or greater than the price and upon the same terms and conditions as set forth in the MS Offer Notice and (ii) the transferee agrees to be bound by all of the terms and provisions of this Agreement. In addition to the rights and obligations set forth above, if MS Equity proposes to make an Investment Entity Sale or Third Party Sale pursuant to this Section 5.4(e), MS Equity may give notice (the "Pro Rata Notice") to BTNY and First Plaza (each a "Pro Rata Rights-Holder") setting forth the price range within which MS Equity intends to sell its shares of Common Stock. The Pro Rata Notice shall also set forth that such notice is being delivered pursuant to this paragraph and that the failure of a Pro Rata Rights-Holder to provide the Response Notice (as defined below) shall be deemed a determination by such Pro Rata Rights-Holder not to exercise its Pro Rata Rights with respect to the proposed sale which is the subject of such Pro Rata Notice. The maximum price set forth in the Pro Rata Notice shall not exceed by more than 25% the minimum price set forth in the Pro Rata Notice. Within fifteen (15) days after the receipt of the Pro Rata Notice, each Pro Rata Rights-Holder shall notify MS Equity (the "Response Notice") whether, subject to such Pro Rata Rights-Holder's right of first refusal, if any, as provided herein, such Pro Rata Rights-Holder intends to exercise its Pro Rata Rights, the price at which such Pro Rata Rights-Holder would be willing to exercise its Pro Rata Rights and the number of shares of Common Stock that such Pro Rata Rights-Holder wishes to include in the proposed Investment Sale or Third Party Sale. Subject to a Pro Rata Rights-Holder's right of first refusal, if any, as provided herein, the Response Notice shall be deemed an irrevocable commitment of such Pro Rata Rights-Holder to exercise its Pro Rata Rights to sell the number of shares of Common Stock specified therein for at least the price specified therein (the "Designated Price"); provided, however, that if MS Offered Shares are sold at a price which exceeds the Designated Price, such Pro Rata Rights-Holder shall have the right to sell the number of shares of Common Stock specified in the Response Notice at such higher price. Failure of a Pro Rata Rights-Holder to notify MS Equity shall be deemed a determination by such Pro Rata Rights- Holder not to exercise its Pro Rata Rights with respect to the Investment Entity Sale or Third Party Sale which is the subject of the Pro Rata Notice. (f) In addition to Transfers permitted by Sections 5.1 and 5.2 hereof, at any time on or after June 30, 1994, each member of the Group may effect any Third Party Sale if such Group Offeror first offers such Group Offered Shares to the other member of the Group, Holdings, MS Equity and BTNY (the "Section 5.4(f) Offerees") for purchase in compliance with this Section 5.4(f). The Group Offeror shall promptly provide a Group Offer Notice to the Section 5.4(f) Offerees with a copy to First Plaza setting forth the terms of the proposed Third Party Sale, including the identity of the proposed purchaser, the number of shares of Common Stock being sold, the terms and conditions of such sale, and the price or method for determining such price. Within fifteen (15) days of the receipt of the Group Offer Notice, the other member of the Group shall notify the Group Offeror and the other Section 5.4(f) Offerees whether it will exercise its right to purchase up to all the Group Offered Shares. Failure of the other member of the Group to so notify all such parties shall be deemed a determination by such other member of the Group not to purchase the Group Offered Shares. If the other member of the Group determines to purchase less than all the Group Offered Shares, and Holdings desires to purchase any or all of such remaining Group Offered Shares, then Holdings shall, within twenty (20) days of receipt of the Group Offer Notice, notify the Group Offeror and the other Section 5.4(f) Offerees of the number of Group Offered Shares, if any, that Holdings will exercise its right to purchase. Failure of Holdings to so notify all such parties shall be deemed a determination by Holdings not to purchase the Group Offered Shares. If the other member of the Group and Holdings determine to purchase in the aggregate less than all the Group Offered Shares, and if MS Equity desires to purchase any or all of such remaining Group Offered Shares, MS Equity shall notify the Group Offeror and the other Section 5.4(f) Offerees within twenty-five (25) days of the receipt of the Group Offer Notice of the number of Group Offered Shares, if any, that MS Equity will exercise its right to purchase. Failure of MS Equity to so notify all such parties shall be deemed a determination by MS Equity not to purchase the Group Offered Shares. If the other member of the Group, Holdings and MS Equity determine to purchase in the aggregate less than all the Group Offered Shares, and if BTNY desires to purchase all of such remaining Group Offered Shares, BTNY shall notify the Group Offeror and the other Section 5.4(f) Offerees within thirty (30) days of receipt of the Group Offer Notice that BTNY will exercise its right to purchase such remaining Group Offered Shares. Failure of BTNY to so notify all such parties shall be deemed a determination by BTNY not to purchase the Group Offered Shares. No shares of Common Stock may be purchased by any of the Section 5.4(f) Offerees, or a combination thereof, pursuant to this Section 5.4(f) unless all the shares of Common Stock set forth in the Group Offer Notice are purchased or unless the Group Offeror consents to the purchase of less than all the Group Offered Shares. If any of the Section 5.4(f) Offerees exercises its respective right to purchase the Group Offered Shares, such party must consummate the purchase within ninety (90) days after the date of the notice of such exercise at a price equal to or greater than the price and upon the same terms and conditions set forth in the Group Offer Notice. If none of the Section 5.4(f) Offerees, or a combination thereof, determines to purchase in the aggregate all the Group Offered Shares, the Group Offeror shall be free to sell the Group Offered Shares to the purchaser designated in the Group Offer Notice, provided that (i) such sale is consummated within ninety (90) days after the expiration of the thirty (30) day period referred to above at a price equal to or greater than the price and upon the same terms and conditions as set forth in the Group Offer Notice and (ii) the transferee agrees in writing to be bound by all of the terms and provisions of this Agreement. (g) In addition to Transfers permitted by Sections 5.1 and 5.2 hereof, at any time on or after June 30, 1994, BTNY may effect any Third Party Sale if BTNY first offers such BTNY Offered Shares to Holdings, MS Equity and the Group (MS Equity and the Group being referred to herein as the "Section 5.4(g) Offerees"). BTNY shall promptly provide a BTNY Offer Notice to Holdings and the Section 5.4(g) Offerees with a copy to First Plaza setting forth the terms of the proposed Third Party Sale, including the identity of the proposed purchaser, the number of shares of Common Stock being sold, the terms and conditions of such sale, and the price or method for determining such price. Within fifteen (15) days of the receipt of the BTNY Offer Notice, Holdings shall notify BTNY and the Section 5.4(g) Offerees whether it will exercise its right to purchase up to all the BTNY Offered Shares. Failure of Holdings to so notify all such parties shall be deemed a determination by Holdings not to purchase the BTNY Offered Shares. If Holdings determines to purchase less than all the BTNY Offered Shares, then each Section 5.4(g) Offeree shall have the right to purchase up to that percentage of the BTNY Offered Shares determined by dividing the total number of shares of Common Stock owned by such Section 5.4(g) Offeree by the total number of shares of Common Stock owned by both Section 5.4(g) Offerees; provided that in the event a Section 5.4(g) Offeree elects to purchase less than its full proportionate share, then the other Section 5.4(g) Offeree shall have the right to purchase such remaining BTNY Offered Shares. Within twenty (20) days of the receipt of the BTNY Offer Notice, each Section 5.4(g) Offeree shall notify BTNY, Holdings and the other Section 5.4(g) Offeree whether it will exercise its right to purchase its proportionate share and the maximum number of BTNY Offered Shares such Section 5.4(g) Offeree would elect to purchase. Failure of a Section 5.4(g) Offeree to so notify all such parties shall be deemed a determination by such Section 5.4(g) Offeree not to purchase BTNY Shares. No shares of Common Stock may be purchased by Holdings or the Section 5.4(g) Offerees, or a combination thereof, pursuant to this Section 5.4(g) unless all the shares of Common Stock set forth in the BTNY Offer Notice are purchased or unless BTNY consents to the purchase of less than all the BTNY Offered Shares. If any of Holdings or the Section 5.4(g) Offerees exercises its respective right to purchase the BTNY Offered Shares, such party must consummate the purchase within ninety (90) days after the date of the notice of such exercise at a price equal to or greater than the price and upon the same terms and conditions set forth in the BTNY Offer Notice. If none of Holdings or the Section 5.4(g) Offerees, or a combination thereof, determines to purchase in the aggregate all the BTNY Offered Shares, BTNY shall be free to sell the BTNY Offered Shares to the purchaser designated in the BTNY Offer Notice, provided that (i) such sale is consummated within ninety (90) days after the expiration of the twenty (20) day period referred to above at a price equal to or greater than the price and upon the same terms and conditions as set forth in the BTNY Offer Notice and (ii) the transferee agrees in writing to be bound by all of the terms and provisions of this Agreement. (h) The purchase price for any shares of Common Stock purchased by a Stockholder or Holdings pursuant to this Section 5.4 shall be paid by the purchaser at the closing of such sale in immediately available funds against delivery by the seller of the shares of Common Stock being sold, free and clear of all liens, charges and encumbrances, in the form of the certificate or certificates representing such shares of Common Stock, accompanied by appropriate stock powers, duly executed or endorsed in blank, with the appropriate transfer tax stamps affixed. (i) In the event either member of the Group, MS Equity, BTNY or First Plaza fails to comply with the provisions of this Section 5.4 in respect of any sale, such sale shall be void and of no effect, and the shares of Common Stock so sold shall be governed by the terms of Section 5.3 hereof for the period commencing with the initial failure of compliance with this Section 5.4 and ending when all parties having such rights of first refusal shall have been given a full opportunity to exercise its rights under and in accordance with the terms of this Agreement, or when such parties having a right of first refusal shall have waived their respective rights of first refusal in writing. (j) At any time on or after June 30, 1994, either MS Equity or the Group shall have the right to require a Recapitalization Transaction (as hereinafter defined) to be consummated, such right to be the subject of at least sixty (60) days' prior written notice (the "Recapitalization Notice") by whichever of MS Equity or the Group desires to exercise such right (the "Initiating Party") to the other party (the "Receipt Party"), BTNY and First Plaza specifying the terms of such Recapitalization Transaction. Upon receipt of the Recapitalization Notice, the Receipt Party, BTNY and First Plaza shall promptly take all reasonable steps necessary to assist in the consummation of the Recapitalization Transaction including the voting of its shares of Common Stock in favor thereof. "Recapitalization Transaction" shall mean any transaction involving Holdings, including a merger, consolidation, exchange of securities or liquidation, pursuant to which MS Equity and the Group or their respective Permitted Transferees retain their proportionate ownership of shares of Common Stock in Holdings or of the shares of a Resultant Entity; provided that: (i) the value of any securities of the Resultant Entity which the Receipt Party acquires or retains does not exceed 67% of the difference between (x) the value of such securities and cash, if any, received by the Receipt Party and (y) all federal, state and local taxes payable by the Receipt Party as a result of the Recapitalization Transaction; (ii) if MS Equity or its Permitted Transferee is the Initiating Party and MS Equity or its Permitted Transferee will not own all of the voting equity securities in the Resultant Entity not owned by the Group (the "MS Equity Securities"), (A) the Group shall have the right to purchase all or a portion of the MS Equity Securities in the same manner and under the same procedure as provided in Section 5.4(e) with respect to the Group and (B) to the extent the Group determines to purchase less than all of the MS Equity Securities and such partial purchase is agreed to by MS Equity as in the case of partial purchases under Section 5.4(e), the successor in interest to MS Equity or its Permitted Transferees shall be an Investment Entity (the "Successor Entity"); (iii) if the Group or its Permitted Transferees is the Initiating Party and the Group or its Permitted Transferees will not own all of the voting equity securities in the Resultant Entity not owned by MS Equity (the "Group Securities"), MS Equity shall have the right to purchase all of the Group Securities in the same manner and under the same procedure as provided in Section 5.4(f); and (iv) the majority in principal amount of the indebtedness incurred in connection with such Recapitalization Transaction shall be held at closing, and for at least one year after closing, by a Person or Persons who are not Affiliates of the Group, MS Equity or their respective Permitted Transferees or the Successor Entity, except insofar as such indebtedness is held by an Affiliate of MS Equity performing normal functions as an underwriter or in connection with normal market making procedures in the aftermath of an underwriting. "Resultant Entity" shall mean the corporation, partnership, joint venture, trust or unincorporated organization, joint stock company or other similar organization or other entity that is the surviving or continuing entity after a Recapitalization Transaction. 5.5 Right to Sell Stock Upon Death or Disability; Purchase Price; Terms of Purchase. (a) If prior to June 30, 1994, the active provision of services by either Silver or Horrigan (collectively, the "Managers", and individually, a "Manager") to Holdings or any of its subsidiaries shall be terminated by reason of such Manager's (x) death or (y) Permanent Disability, each of such Manager and his Affiliates, Family Transferees, Estate and any of his Trusts (collectively, the "Manager Seller") shall have the right to sell all the shares of Class A Stock held by the Manager Seller to Holdings; provided that the Manager Seller shall first offer to sell all such shares to the member of the Group not affiliated with the Manager Seller at the price and upon the terms and conditions set forth in this Section 5.5. The Manager Seller shall give written notice (the "Manager Seller Notice") to the other member of the Group and Holdings within six months after the date that the Manager's provision of services ended. Within fifty-five (55) days of the receipt of the Manager Seller Notice, the other member of the Group shall notify the Manager Seller and Holdings of the number of shares of Class A Stock, if any, that it will exercise its right to purchase. Failure of such other member of the Group to so notify all such parties shall be deemed a determination by such other member of the Group not to purchase such shares. If the other member of the Group determines to purchase less than all the Manager Seller's shares of Class A Stock, the Manager Seller shall have the right to sell to Holdings, and, subject to the provisions of this Section 5.5, Holdings shall be obligated to purchase, all such remaining shares at the price and upon the terms and conditions set forth in this Section 5.5. (b) Unless otherwise specified, all shares of Class A Stock purchased by the other member of the Group or Holdings pursuant to Section 5.5(a) hereof shall be purchased at Fair Market Value. The aggregate purchase price shall be paid in cash or, at the option of the purchaser, by a promissory note of such purchaser (a "Note"), against delivery by the Manager Seller of the shares of Class A Stock being sold, free and clear of all liens, charges and encumbrances, in the form of the certificate or certificates representing such shares, accompanied by appropriate stock powers, duly executed or endorsed in blank, with the appropriate transfer tax stamps affixed. Such Note shall bear simple interest at a rate of not less than the Prime Rate plus 5% per annum and shall be payable semiannually. Such Note shall mature on a date selected by the purchaser, which date (the "Maturity Date"), if permitted under the terms of the Holdings Agreements (as defined below), shall be no later than the earlier of (i) five (5) years from the date hereof and (ii) the date of an IPO, and which Maturity Date, in any event, shall be no later than July 1, 2002, subject to acceleration or prepayment at the option of the purchaser; provided, however, in the case of Holdings, that such acceleration or prepayment shall be permitted only if it would be permitted under the terms of the Holdings Agreements. For purposes of this Agreement, the term "Holdings Agreements" shall mean the Indenture dated June 29, 1992, relating to Holdings' 13-1/4% Discount Debentures due 2002 (the "Debentures"), or any credit agreement or agreements replacing, or representing a refinancing of the Debentures, and the Amended and Restated Holdings Guaranty, dated as of June 30, 1989, and amended and restated as of June 18, 1992, and further amended and restated as of December 21, 1993, entered into in connection with the Bank Financing (as the same may be amended, modified, supplemented or replaced from time to time, the "Guaranty"). (c) Holdings shall not be obligated to purchase any shares of Class A Stock pursuant to this Agreement, regardless of whether it has delivered a notice of its election to purchase any such shares, (i) if the purchase thereof would result in a violation of any law, statute, order, writ, injunction, decree, judgment, rule, regulation, policy or guideline promulgated, or judgment entered, by any federal, state, local or foreign court or governmental authority applicable to Holdings or any of its subsidiaries or any of its or their property, or (ii) to the extent that, after giving effect thereto, Holdings would be in default (or with notice or lapse of time or both would be in default) under the terms of the Holdings Agreements. (d) The closing of any purchase of shares of Class A Stock by the other member of the Group or Holdings pursuant to Section 5.5(a) shall take place at the principal office of Holdings within twenty (20) business days after the giving of notice by the purchaser in accordance with this Agreement. 5.6 Right to Purchase Stock; Purchase Price; Terms of Purchase. (a) If prior to June 30, 1994, the active provision of services of either of the Managers to Holdings or any of its subsidiaries shall be terminated by reason of such Manager's (x) death or (y) permanent Disability; or (z) if either of the Managers at any time is convicted of a felony directly related to the business conduct of Silgan, the member of the Group not affiliated with such Manager shall have the right to purchase all of the shares of Common Stock (of any class) then held by such Manager Seller at the price and upon the terms and conditions set forth in this Section 5.6. If the other member of the Group determines to purchase less than all the Manager Seller's shares of Common Stock, Holdings shall have the right to purchase all such remaining shares of Common Stock at the price and upon the terms and conditions set forth in this Section 5.6. Within fifty-five (55) days of the date that the Manager's provision of services ended, the other member of the Group shall notify the Manager Seller and Holdings of the number of shares of Common Stock, if any, that it will exercise its right to purchase. Failure of the other member of the Group to so notify all such parties shall be deemed a determination by such other member of the Group not to purchase such shares of Common Stock. If the other member of the Group determines to purchase less than all the shares of Common Stock held by the Manager Seller, Holdings shall, within sixty (60) days of the date that such Manager's provision of services ended, notify the Manager Seller and the other member of the Group whether it will exercise its right to purchase all of such remaining shares of Common Stock. Failure of Holdings to so notify all such parties shall be deemed a determination by Holdings not to purchase such shares of Common Stock. No shares of Common Stock may be purchased by the other member of the Group or Holdings, or a combination thereof, pursuant to this Section 5.6 unless all the Manager Seller's shares of Common Stock are purchased or unless the Manager Seller consents to the purchase of less than all such Manager Seller's shares of Common Stock. (b) All shares of Common Stock purchased by the other member of the Group or Holdings pursuant to this Section 5.6 shall be purchased at Fair Market Value in the case of termination pursuant to clauses (x) and (y) of subsection (a) of this Section 5.6, and Adjusted Book Value in the case of any event described in clause (z) of subsection (a) of this Section 5.6, and on terms in accordance with the provisions of Section 5.5(b) hereof; provided, however, that the aggregate purchase price for all shares of Common Stock purchased by Holdings pursuant to Section 5.6(a) shall be paid in cash. "Adjusted Book Value" per Share shall mean (a) the sum of (i) an amount equal to the total number of shares of Common Stock outstanding on the Closing Date multiplied by $35 plus (ii) the aggregate exercise prices of all outstanding stock options and other rights to acquire shares of Common Stock, if any, and the aggregate conversion prices of all securities convertible into shares of Common Stock, if any, divided by (b) the sum of (i) the number of shares of Common Stock then outstanding plus (ii) the number of shares of Common Stock, if any, issuable upon the exercise of all outstanding stock options and other rights to acquire shares of Common Stock, if any, and the conversion of all securities convertible into shares of Common Stock, if any, plus (c) interest accrued to the date of exercise on such amount since the Closing Date at a rate of twelve percent (12%) per annum. ARTICLE VI CALL OPTION OF HOLDINGS 6.1 First Plaza's Obligation to Sell. At any time prior to the fifth (5th) anniversary of the Closing Date, Holdings shall have the right and option from time to time to purchase from First Plaza, and First Plaza shall have the obligation to sell to Holdings, all (but not less than all) of the 250,000 shares of Class B Stock being purchased by First Plaza pursuant to the Stock Purchase Agreement (hereinafter referred to as the "Call"), for a price per share (as such price may be adjusted pursuant to Section 6.3) equal to the Call Purchase Price and otherwise pursuant to the terms and conditions of this Article VI. For purposes of this Agreement, the "Call Purchase Price" shall be a price per share equal to the greater of (i) $120 per share and (ii) the purchase price necessary to yield on an annual basis a compound return on investment of forty percent (40%). 6.2 Exercise of Call. Holdings may exercise the Call by delivering an irrevocable written and dated notice of exercise (the "Notice of Exercise") to First Plaza indicating Holdings' intention to exercise the Call. Within thirty (30) days of the date of such Notice of Exercise, Holdings shall pay the Call Purchase Price to First Plaza, and upon receipt of such payment First Plaza shall deliver one or more stock certificates representing the total number of shares subject to the Call, together with one or more duly executed stock powers attached thereto, all in proper form for transfer. The Call Purchase Price shall be payable entirely in cash by wire transfer of immediately available funds. 6.3 Adjustment of Shares and Call Purchase Price. In the event of any stock dividend, stock split, combination of shares, subdivision or other recapitalization of the capital stock of Holdings, the number of shares subject to the Call and the Call Purchase Price payable hereunder shall be proportionately adjusted to take into account each of any such events. ARTICLE VII LIQUIDITY 7.1 Right to Demand an Initial Public Offering of the Common Stock. (a) At any time after June 15, 1996, the holders of a majority of the issued and outstanding shares of Class A Stock and Class B Stock (considered together as a class and being referred to herein as the "Required Majority") may by written notice to Holdings (an "IPO Notice") require Holdings to pursue an IPO on the terms and conditions herein provided. (b) The IPO Notice shall set forth (i) the total number of shares of Common Stock which such holders propose be included in the IPO, (ii) the number of shares of Common Stock proposed to be included in the Primary Tranche (as such term is defined below); (iii) the number of shares of Common Stock, if any, which such holders desire to offer for sale in the Secondary Tranche (as such term is defined below) and (v) the name of the investment banking firm designated by such holders to act as managing underwriter for the IPO, which investment banking firm shall be Morgan Stanley (or an Affiliate of Morgan Stanley) or another firm designated by MS Equity reasonably acceptable to Holdings. The Required Majority shall deliver copies of the IPO Notice to the other Stockholders promptly upon delivery of the IPO Notice to Holdings. (c) The IPO Notice shall be accompanied by a letter (the "Underwriter's Letter") from a major underwriter of national reputation (which may be Morgan Stanley or an Affiliate of Morgan Stanley) expressing its belief that an IPO could be successfully effected at such time at a price per share not less than the Minimum Price (as defined below). (d) Upon receipt of the IPO Notice and the Underwriter's Letter, Holdings shall promptly (i) commence preparation of a registration statement and (ii) take the actions described in Section 2.7 of the Stockholders Agreement, dated as of the date hereof, among Silver, Horrigan, MS Equity, BTNY, First Plaza and Holdings. Holdings and the Stockholders agree to use their best efforts to effect the IPO on terms and conditions consistent with the terms of this Section 7.1 as soon as practicable. (e) Any Stockholder may, within fifteen (15) days following the receipt by it from the Required Majority of the IPO Notice (the "Request Notice Period") give a written notice to Holdings specifying the number of shares of Common Stock which such Stockholder wishes to include in the Secondary Tranche. Any Stockholder who fails to request inclusion of his or its Common Stock within the Request Notice Period shall not be permitted to have any of his or its shares of Common Stock included in the Secondary Tranche. The parties agree that during a fifteen (15) day period after delivery of the IPO Notice, Holdings shall have the right to offer to the other holders of Common Stock the inclusion of their shares of Common Stock in the Secondary Tranche. (f) If the managing underwriter determines that, in order to not adversely affect the marketing of the offering, the number of shares of Common Stock to be included in the Secondary Tranche should be limited, the managing underwriter may reduce the number of such shares to be included in such Secondary Tranche. Such reduction shall be allocated among all stockholders participating in the Secondary Tranche based upon each such stockholder's Proportionate Percentage. For purposes of the foregoing, "Proportionate Percentage" shall mean that percentage figure which expresses the ratio which (x) the number of shares of Common Stock held by such stockholder immediately prior to the IPO bears to (y) the aggregate number of shares of Common Stock which are held by all stockholders participating in the Secondary Tranche immediately prior to the IPO. Holdings shall advise all Stockholders participating in such underwriting as to any such limitation and the number of shares that may be included in the offering. If any Stockholder disapproves of the terms of any such underwriting, such Stockholder may elect to withdraw from participation in the IPO by written notice to Holdings and the managing underwriter. (g) Notwithstanding the foregoing, (i) the holders of a majority of the issued and outstanding shares of Class A Stock may by written notice to Holdings and the Stockholders require Holdings to suspend pursuing the IPO if, at any time, such holders are advised by the managing underwriter that the price to public per share of Common Stock in the IPO is likely to be less than the Minimum Price; provided, however, that after the passage of sixty (60) days from the date of receipt of such notice by Holdings, the Required Majority shall again have the right to require Holdings to pursue an IPO in accordance with the terms of this Section 7.1; and (ii) without the consent of the holders of a majority of the issued and outstanding shares of Class A Stock, Holdings shall not (x) effect an IPO where the aggregate price to public exceeds the Maximum Amount (as defined below); or (y) permit the inclusion in the Secondary Tranche of more than 25% of the number of shares to be sold in the Primary Tranche. (h) For purposes of this Section 7.1 and this Agreement the following terms shall have the meanings provided: "Primary Tranche" means the portion of the IPO which shall consist of shares of Common Stock to be sold by Holdings. "Secondary Tranche" means the portion of the IPO which shall consist of shares of Common Stock to be sold by the Stockholders and other stockholders of Holdings. "Maximum Amount" means in connection with the offering of Common Stock pursuant to the IPO an aggregate price to public of (i) $100 million plus (ii) the amount, if any, payable in respect of any Note (as such term is defined in Section 5.5(b) hereof) outstanding on the date of any IPO Notice or issued after such date and payable on or before the date of the IPO. "Minimum Price" means forty-five dollars ($45) per share, as such price may be adjusted to take into account any stock dividend, stock split, combination of shares, subdivision or other recapitalization of the capital stock of Holdings after the date hereof. 7.2 Expenses of Registration. If any shares of Common Stock of the Stockholders are included in any Secondary Tranche, all Registration Expenses incurred in connection therewith shall be borne by Holdings. All Selling Expenses relating to shares of Common Stock registered on behalf of the Stockholders shall be borne by such Stockholders pro rata based upon the total number of shares included in the registration or, if such Selling Expenses are specifically allocable to shares sold by specific Stockholders, by such Stockholders to the extent related to the sale of such shares. 7.3 Indemnification Relating to Registration. (a) Holdings will indemnify each Stockholder whose shares of Common Stock have been registered pursuant to this Article VII, its officers, directors, general partners or agents and each underwriter, if any, and each person who controls any such Stockholder or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and any named fiduciary acting for First Plaza and the advisors acting for the named fiduciary in connection with this Agreement and the respective directors, officers, trustees and employees of the foregoing persons, against any and all losses, claims, damages, liabilities or expenses (including any of the foregoing incurred in settlement or investigation of any litigation, commenced or threatened or in connection with enforcement of rights under this Article VII) ("Damages"), arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement or prospectus (including a preliminary prospectus), or any amendment or supplement thereto, incident to any such registration, qualification or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, or any violation by Holdings of the Securities Act or any rule or regulation promulgated under the Securities Act applicable to Holdings in connection with any such registration; provided, however, that Holdings will not be liable in any such case to the extent that any Damages arise out of or are based on any untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to Holdings by such Stockholder or underwriter for use therein. Holdings will reimburse each indemnitee under this Section 7.3(a) for any legal and other expenses reasonably incurred, as such expenses are incurred, in connection with investigating, preparing or defending any such Damages. (b) Each Stockholder will severally and not jointly, if shares of Common Stock held by such Stockholder are included in the securities as to which such registration is being effected pursuant to this Article VII, indemnify Holdings, each of its directors and officers, each other Stockholder, each underwriter, if any, of Holdings' securities covered by such a registration statement, each Person who controls Holdings, any other Stockholder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and each other such Stockholder and any named fiduciary acting for First Plaza and the advisors acting for the named fiduciary in connection with this Agreement and the respective directors, officers, trustees and employees of the foregoing persons against any and all Damages arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement or prospectus, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and will reimburse Holdings, such Stockholders, underwriters, control persons and any named fiduciary acting for First Plaza and the advisors acting for the named fiduciary in connection with this Agreement and the respective directors, officers, trustees and employees of the foregoing persons for any legal or any other expenses reasonably incurred, as such expenses are incurred, in connection with investigating or defending any such Damages, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement or prospectus in reliance upon and in conformity with written information furnished to Holdings by such Stockholder specifically for use therein. Notwithstanding the foregoing, the liability of each Stockholder under this subsection (b) of Section 7.3 shall be limited to an amount equal to the net proceeds received by such Stockholder from the sale of shares of Common Stock pursuant to Section 7.1 hereof. (c) Each party entitled to indemnification under this Section 7.3 (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and the Indemnifying Party shall assume the defense of any such claim or any litigation resulting therefrom and the payment of all related fees and expenses; provided, however, that counsel for the Indemnifying Party who shall conduct the defense of such claim or litigation shall be approved by the Indemnified Party (which approval shall not be unreasonably withheld). In any such proceeding, an Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be borne by such Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them; provided, however, that the Indemnifying Party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnified Parties, and that all such fees and expenses shall be reimbursed as they are incurred. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of an unconditional release from all liability in respect of such claim or litigation. Each Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be reasonably required in connection with the defense of such claim and the litigation resulting therefrom. 7.4 Contribution Relating to Registration. (a) If the indemnification provided for in Section 7.3 hereof is unavailable to the Indemnified Parties in respect of any Damages, then each such Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Damages. As between Holdings on the one hand and each Stockholder with respect to which registration has been effected pursuant to this Article VII on the other, such contribution shall be in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and the Indemnified Party on the other in connection with the statement or omission which resulted in such Damages, as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue statement (or alleged untrue statement) of a material fact or the omission (or alleged omission) to state a material fact relates to information supplied by the Indemnifying Party or the Indemnified Party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. Holdings and each Stockholder agree that it would not be just and equitable if contribution pursuant to this Section 7.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. The amount paid or payable by an Indemnified Party as a result of the Damages referred to above in this Section 7.4 shall be deemed to include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. (b) Notwithstanding anything to the contrary contained herein, the obligation of each Stockholder to contribute pursuant to this Section 7.4 is several and not joint and no selling Stockholder shall be required to contribute any amount in excess of the amount by which the net proceeds received by such Stockholder from the sale of shares of Common Stock in a public offering exceeds the amount of any damages which such selling Stockholder has otherwise been required to pay by reason of such untrue statement (or alleged untrue statement) or omission (or alleged omission). The selling Stockholders' obligations to contribute pursuant to this Section 7.4 are several in the proportion that the proceeds of the offering received by such selling Stockholder bears to the total proceeds of the offering received by all the selling Stockholders unless it is determined that, based upon the relative fault of the several Selling Stockholders, it would be equitable to otherwise allocate such obligations. (c) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. ARTICLE VIII TERMINATION 8.1 Termination. This Agreement shall terminate upon the earlier of: (a) the termination of the Purchase Agreement dated as of September 3, 1993 between Containers and Del Monte Corporation, as amended by the Amendment to Purchase Agreement dated as of December 10, 1993, in accordance with the terms of Article XVI thereof; (b) upon mutual agreement of all the Investors (excluding any Investors which are no longer Stockholders); (c) such time as (i) it becomes unlawful for an Initial Investor, Holdings or First Plaza to comply with the terms of this Agreement, or (ii) it shall become unlawful or impossible for Holdings to conduct, or an Initial Stockholder to be affiliated with Holdings in the conduct of, its business substantially in the manner contemplated by this Agreement and the Amended Management Contract; (d) the completion of an IPO; and (e) June 30, 1999. 8.2 Extension. Within two months prior to expiration of this Agreement pursuant to Section 8.1(e), the parties hereto may, by written agreement, extend the duration hereof for an additional period which shall terminate upon the earlier of any of the events set forth in Section 8.1(b), (c), (d) or ten years from the expiration date then in effect, in which case this Agreement, as extended, shall be binding on the parties hereto. ARTICLE IX INDEMNIFICATION 9.1 Indemnification. (a) Each of MS Equity, Silver, Horrigan, BTNY and First Plaza (for purposes of this subparagraph (a), a "Section A Indemnifying Person" and, for purposes of subparagraph (d) below, an "Indemnifying Person") hereby agrees and covenants, in addition to any other liability it may have to an Indemnified Person (defined below), at law or in equity, to hold harmless and indemnify each Indemnified Person from and against any actual loss, expense or liability whatsoever, joint or several (including but not limited to, any and all expenses reasonably incurred in investigating, preparing or defending any litigation or proceeding, commenced or threatened, or any other claim whatsoever), as and when incurred arising out of or based upon a breach of this Agreement, including the representations and warranties set forth herein, by such Section A Indemnifying Person. (b) Holdings (for purposes of this subparagraph, the "Section B Indemnifying Person" and, for purposes of subparagraph (d) below, an "Indemnifying Person") hereby agrees and covenants, in addition to any other liability it may have to an Indemnified Person, at law or in equity, to hold harmless and indemnify each Indemnified Person from and against any actual loss, expense or liability whatsoever, joint or several (including but not limited to, any and all expenses reasonably incurred in investigating, preparing or defending any litigation or proceeding, commenced or threatened, or any other claim whatsoever), as and when incurred by the Indemnified Person, arising out of, based upon or in connection with any matter related to (i) the conduct and operation of the business of Holdings, (ii) any action or failure to act by Holdings, or (iii) any matter as to which such Indemnified Person is entitled to indemnity pursuant to subparagraph (a) above; provided, however, that no Indemnified Person shall be entitled to indemnity under this paragraph for any matter as to which such Indemnified Person is or would be a Section A Indemnifying Person. Nothing contained in this paragraph shall limit or otherwise affect the rights or obligations of any party hereto pursuant to paragraph (a) above. (c) "Indemnified Person" for purposes of this Section shall mean each of MS Equity, Silver, Horrigan, BTNY, First Plaza and Holdings and any Affiliates and Associates (which, for purposes of this Section, shall be deemed to include any director, officer, partner or controlling Person) of any Person or entity which would itself be an Indemnified Person, including Morgan Stanley. (d) If a claim is made against any Indemnified Person as to which such Indemnified Person may seek indemnity against any Indemnifying Person under this Article IX, such Indemnified Person shall notify each Indemnifying Person promptly after any written assertion of such claim threatening to institute an action or proceeding with respect thereto and shall notify each Indemnifying Person promptly of any action commenced against such Indemnified Person within a reasonable time after such Indemnified Person shall have been served with a summons or other first legal process giving information as to the nature and basis of the claim. Failure so to notify the Indemnifying Person shall not, however, relieve any Indemnifying Person from any liability which it may have on account of the indemnity under this Article IX unless the Indemnifying Person shall sustain the burden of proving that it has been prejudiced in any material respect by such failure. Each Indemnifying Person shall be entitled to participate at its own expense in the defense of any such litigation or proceeding and, if it so elects, to assume the defense thereof, and in the latter event such defense shall be conducted by counsel chosen by the Indemnifying Person and reasonably satisfactory to the Indemnified Person, and the Indemnified Person shall bear the fees and expenses of any additional counsel retained by it and incurred by such Indemnified Person after notice from the Indemnifying Person to such Indemnified Person of its election to assume the defense thereof; but if the Indemnifying Person shall not elect to assume the defense of any such litigation or proceeding, the Indemnifying Person will reimburse such Indemnified Person for the reasonable fees and expenses of counsel retained by such Indemnified Person, which counsel shall be reasonably satisfactory to the Indemnifying Person. Notwithstanding the foregoing, if the defendants in any such litigation or proceeding (i) include one or more of the Indemnified Persons, but not the Indemnifying Person, or (ii) include both the Indemnifying Person and one or more Indemnified Persons and either (a) the Indemnified Person or Persons and the Indemnifying Person mutually agree, or (b) representation of both the Indemnifying Person and the Indemnified Person or Persons by the same counsel is inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them, then the Indemnifying Person shall not have the right to assume the defense of such litigation or proceeding with respect to the Indemnified Person or Persons and will reimburse the Indemnified Person or Persons for the reasonable fees and expenses of counsel retained by it or them and reasonably satisfactory to the Indemnifying Person. It is understood that the Indemnifying Person shall not, in connection with any litigation or proceeding or related litigation or proceedings in the same jurisdiction, be liable under this Agreement for the fees and expenses of more than one separate firm for all such Indemnified Persons. No Indemnifying Person shall be liable for any settlement of any litigation or proceeding effected without the written consent of such Indemnifying Person, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees, subject to the provisions of this Article IX, to indemnify the Indemnified Person from and against any loss, damage, liability or expense by reason of such settlement or judgment. ARTICLE X REPORTS AND ACCESS TO INFORMATION 10.1 Books and Records. Holdings shall at all times keep at its principal office true and correct books and accounts pertaining to all operations reflecting, in accordance with generally accepted accounting principles, all receipts and expenditures of Holdings and all other data necessary and proper to keep the Investors informed of the financial state of Holdings. Upon request, the Investors shall be furnished with copies of any financial records of Holdings, in addition to those financial statements of Holdings which will be furnished pursuant to Section 10.2 hereof. 10.2 Financial Statements. As soon as practicable after the end of each of its fiscal years, Holdings shall cause to be prepared and furnished to the Stockholders, an audited consolidated balance sheet and profit and loss statement of Holdings and its subsidiaries, and an audited statement of changes in financial position as at the end of and for such fiscal year, prepared in accordance with generally accepted accounting principles consistently maintained by Holdings and certified by Holdings' independent public accountants. Holdings shall also prepare and furnish to the Stockholders, as soon as practicable following the end of the first, second and third quarterly accounting periods, an unaudited consolidated balance sheet and profit and loss statement of Holdings and its subsidiaries, and an unaudited statement of changes in financial position as at the end of and for such quarterly accounting period, prepared in accordance with generally accepted accounting principles consistently maintained by Holdings. 10.3 Access to Information. Employees and agents of each of the Investors shall have access to the plants and properties of Holdings and its subsidiaries for the purpose of inspecting such plants and properties and the operations thereon from time to time during the regular business hours of such facilities. The books and records of Holdings and each of its subsidiaries shall be available for inspection and review by employees and agents of each of the Investors from time to time during Holdings' and its subsidiaries' regular working hours. The costs and expenses incurred in connection with any such inspections or reviews shall be borne by the party making such inspection or review. 10.4 Fiscal Year. The fiscal year of Holdings shall be the calendar year. ARTICLE XI CERTAIN OTHER AGREEMENTS 11.1 Certain Agreement Relating to Approval of Post-IPO Charter, By- Laws and Management Services Contract. Each of the Stockholders hereby agrees to take all action (including voting its shares of Common Stock) to approve the adoption of a Restated Certificate of Incorporation, as amended, substantially in the form of Exhibit A hereto (with Article SEVENTH thereof appropriately completed) (the "Post-IPO Charter"), an Amended and Restated By-Laws, substantially in the form of Exhibit B hereto (the "Post-IPO By- Laws"), and an Amended and Restated Management Services Agreement, substantially in the form of Exhibit C hereto (the "Post-IPO Management Services Contract"), in each case to become effective at the time an IPO is completed. 11.2 Restriction on Voting by MS Equity. MS Equity hereby agrees that it will not vote its shares of Class B Stock in favor of any changes in the Certificate of Incorporation or By-laws of Holdings which would adversely affect the rights of First Plaza, unless First Plaza has consented in writing to such change. 11.3 Certain Agreement Relating to Nomination of and Voting for One Class B Director. So long as First Plaza shall hold not less than 18.73% of the issued and outstanding shares of Class B Stock, First Plaza shall have the right to nominate one of the Class B Directors (as defined in Article SEVENTH of the Certificate of Incorporation) to be elected at each annual meeting of stockholders in accordance with the provisions of Article SEVENTH of the Certificate of Incorporation, and the holders of Class B Stock parties to this Agreement agree to vote their shares of Class B Stock in favor of such nominee. 11.4 Voting Agreement for Certain Purchasers of Class A Stock. In the event that First Plaza, MS Equity or BTNY shall purchase any shares of Class A Stock, such purchaser hereby agrees that it shall vote such shares in accordance with the directions of the holders of a majority of the shares of Class A Stock held by the Group until such time as a Change of Control (as defined in Article Tenth of the Certificate of Incorporation) has occurred. For purposes of this Section 11.4, the term "holders of a majority of the shares of Class A Stock held by the Group" shall mean the holders of a majority of the aggregate of 417,500 shares of Class A Stock held by Messrs. Silver and Horrigan at the Closing Date (the "Original Holding") which at the time of any such determination have been continuously and are held by the Group. No shares of Class A Stock which are acquired by any member of the Group (other than shares of the Original Holding) shall be counted for purposes of making such determination. 11.5 Voting Agreement for Certain Purchasers of Class B Stock. In the event that Silver or Horrigan shall purchase any shares of Class B Stock, such purchaser hereby agrees that it shall vote such shares in accordance with the directions of MS Equity, unless MS Equity and First Plaza (together with their respective Affiliates) shall hold directly or indirectly less than one-half of the aggregate number of shares of Class B Stock held by MS Equity and First Plaza immediately following the closing under the Stock Purchase Agreement. ARTICLE XII MISCELLANEOUS 12.1 Certain Agreement Relating to Conversion Rights. (a) Each of the Stockholders hereby agrees to take all action (including voting its shares of Common Stock) necessary to approve any increase in the number of authorized shares of Class A Stock, Class B Stock and Class C Stock in order to enable any Regulated Stockholder (as defined in the Certificate of Incorporation) to convert, concurrently with the purchase thereof, any and all of its shares of Class A Stock or Class B Stock into shares of Class C Stock to the extent provided in the Certificate of incorporation and to convert any and all of its shares of Class C Stock into shares of Class A Stock or Class B Stock to the extent provided in the Certificate of Incorporation. (b) Each of the Stockholders hereby agrees to take all action (including voting its shares of Common Stock to amend the Certificate of Incorporation or otherwise) (i) to permit the conversion of any shares of Class C Stock held by BTNY into shares of Class B Stock in connection with the sale by BTNY of any of its shares of Class C Stock pursuant to Section 5.4(a) or (e) hereof and (ii) to give BTNY the right to convert its Class C Stock to Class B Stock in the event of the termination of this Agreement pursuant to any of clauses (b), (c) or (e) of Section 8.1 hereof. 12.2 Appointment of Agent. Each of the Group, MS Equity, BTNY and First Plaza appoints that Person or those Persons which may from time to time be identified by notice to the parties as its duly authorized agent and attorney-in-fact to perform any act, give any notice, execute any agreement, give any approval or consent or exercise any discretion contemplated herein to be performed, executed, agreed, or exercised by such Stockholder, and any other Stockholder may rely upon any instrument signed by such agent and attorney. Each such Stockholder may change any of such agents and attorneys at any time by the giving of notice to such effect to the parties hereto in the manner provided in Section 12.3 hereof. 12.3 Notices. Any notice or request specifically provided for or permitted to be given under this Agreement must be in writing, but may be served by depositing same in the mail, addressed to the party to be notified, postage prepaid, and registered or certified, with a return receipt requested. Notice given by registered mail or certified mail shall be deemed delivered and effective on the date of delivery as shown on the return receipt. Notice may be served in any other manner, including telex, telecopy, telegram, but shall be deemed delivered and effective as of the time of actual delivery thereof to the addressee. For purposes of notice the addresses of the Investors and of Holdings shall be as follows: If to Silver: c/o Silgan Holdings Inc. 4 Landmark Square, Suite 301 Stamford, CT 06901 Attention: R. Philip Silver Telecopy No.: (203) 975-7902 If to Horrigan: c/o Silgan Holdings Inc. 4 Landmark Square, Suite 301 Stamford, CT 06901 Attention: D. Greg Horrigan Telecopy No.: (203) 975-7902 If to Holdings: Silgan Holdings Inc. 4 Landmark Square, Suite 301 Stamford, CT 06901 Attention: R. Philip Silver Telecopy No.: (203) 975-7902 If to MS Equity: The Morgan Stanley Leveraged Equity Fund II, L.P. Morgan Stanley Leveraged Equity Fund II, Inc., General Partner 1251 Avenue of the Americas New York, NY 10020 Attention: Robert H. Niehaus Telecopy No.: (212) 703-6503 With a copy to: Davis Polk & Wardwell 450 Lexington Avenue New York, New York 10017 Attention: John R. Ettinger, Esq. Telecopy No.: (212) 450-4800 If to BTNY: Bankers Trust New York Corporation 130 Liberty Street New York, NY 10006 Attention: Joseph T. Wood Telecopy No.: (212) 250-7651 With a copy to: White & Case 1155 Avenue of the Americas New York, NY 10036 Attention: Eric L. Berg, Esq. Telecopy No.: (212) 354-8113 If to First Plaza: General Motors Investment Management Corporation 767 Fifth Avenue New York, NY 10153 Attention: James K. Kelliher Telecopy No.: (212) 418-3651 with a copy to: Kirkland & Ellis 55 East 52nd Street New York, NY 10055 Attention: Frederick Tanne, Esq. Telecopy No.: (212) 838-4223 If a notice is sent to any of the above, a copy shall be sent to: Winthrop, Stimson, Putnam & Roberts Financial Centre 695 East Main Street P. O. Box 6760 Stamford, CT 06904-6760 Attention: Frode Jensen, III, Esq. Telecopy No.: (203) 965-8226 Each party may change its address and that of its representative for notice by the giving of notice thereof in the manner hereinabove provided. 12.4 Amendment. This Agreement shall not be amended, modified or revoked except by written instrument executed together or in counterparts by the parties hereto. 12.5 Waiver. The failure of a party to insist upon strict performance of any provision hereof shall not constitute a waiver of, or estoppel against asserting, the right to require such performance in the future, nor shall a waiver or estoppel with respect to a later breach of a similar nature or otherwise. 12.6 Curative Actions; Severability. (a) In the event that any of the covenants, terms or conditions of this Agreement are held illegal by any court or administrative body of competent jurisdiction and in the further event that any director or stockholder action, including, but not limited to, the execution of any documents or instruments, such as an amendment of the Certificate of Incorporation, will make such covenants, terms or conditions valid and enforceable, each of the parties hereby agrees that it shall take such action as may reasonably be required to make any such covenant, term or condition valid and enforceable. In the event that any of the parties hereto refuses to take such action, the remaining Stockholders who are parties hereto are hereby jointly and severally appointed as the attorney-in-fact for the other Stockholders for the purpose of taking any action that is authorized by the terms of this paragraph, including, but not limited to: (i) the voting of the other Stockholder's shares of capital stock; (ii) the removal of the Stockholder or its appointee(s) in breach of this Section as directors and/or officers; and (iii) the nomination and election of one or more directors and/or officers for the purpose of initiating and completing such action as may be required to implement any agreement of the parties set forth in this Agreement or to make any illegal or unenforceable covenant, term or condition of this Agreement valid and enforceable. (b) If any provision of this Agreement is held invalid, such invalidity shall not affect the other provisions hereof which can be given effect without the invalid provision, and to this end the provisions of this Agreement are intended to be and shall be deemed severable; provided, however, that if the provision or provisions so held to be invalid, in the reasonable judgment of the parties hereto, is or are so fundamental to the intent of the parties hereto and the operation of this Agreement that the enforcement of the other provisions hereof, in the absence of such invalid provision or provisions, would damage irreparably the intent of the parties in entering into this Agreement, the parties hereto shall agree (i) to terminate this Agreement pursuant to Section 8.1 hereof, or (ii) to amend or otherwise modify this Agreement so as to carry out the intent and purposes hereof and the transactions contemplated hereby. 12.7 Action of a Stockholder. Subject to any other agreement which a transferor or transferee may make in the event of a Transfer permitted by the terms of this Agreement and notice of which agreement is given to Holdings, at any time that a Stockholder as defined herein includes more than one Person, any action of a Stockholder hereunder shall be authorized by the approval of a majority in interest of such parties. 12.8 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without regard to its provisions concerning conflicts of law. 12.9 Construction. The headings in this Agreement are inserted for convenience and identification only and are not intended to describe, interpret, define or limit the scope, extent, or intent of this Agreement or any provision hereof. Whenever the context requires, the gender of all words used in this Agreement shall include the masculine, feminine, and neuter, and the number of all words shall include the singular and the plural. 12.10 Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all of the parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same instrument. 12.11 Successors and Assigns. Except as provided to the contrary hereinabove, this Agreement shall apply to, and shall be binding upon the Stockholders and Holdings, their respective successors and assigns, and all Persons claiming by, through, or under any of the aforesaid Persons. 12.12 Cumulative Rights. The rights and remedies provided by this Agreement are cumulative, and the use of any right or remedy by any party shall not preclude or waive its right to use any or all other remedies. 12.13 Further Assurances. Each party agrees (i) to vote its Shares of Holdings; and (ii) to execute (and acknowledge, if requested) and deliver such additional documents and instruments and (iii) to perform such additional acts as may be necessary or appropriate, in order to effectuate, carry out, and perform all of the terms, provisions, conditions and purposes of this Agreement and all the transactions contemplated by this Agreement. 12.14 Specific Performance. Each of the parties acknowledge that the other parties would not have an adequate remedy at law for money damage in the event that any of the covenants or agreements of any other party set forth in Articles IV, V and IX in this Agreement were not performed in accordance with its terms and therefore agrees that the affected party shall be entitled to injunctive and other equitable relief in addition to any other remedy to which it may be entitled, at law or in equity. 12.15 Compliance with Applicable Laws. Each party shall comply with all laws and regulations applicable to the subject matter of this Agreement. 12.16 Accuracy of Information. Each Stockholder shall furnish to any other Stockholder all information regarding such Stockholder required by law for inclusion in documents to be prepared or filed in connection with their respective stockholdings in Holdings, and all such information will be true and correct in all material respects and will not omit to state any material fact necessary to be stated therein in order that such information not be misleading. 12.17 Disclosure. No Stockholder shall make disclosure or any public announcement of this Agreement or the subject matter hereof, unless (a) consented to by MS Equity and the Group, or (b) required by law, regulation or judicial process. 12.18 Survival of Certain Terms. The provisions of Sections 4.5, 7.3, 7.4 and 12.1(b) and Article IX of this Agreement shall survive any termination of this Agreement. 12.19 No Third Party Beneficiaries. Nothing in this Agreement (including the Exhibits hereto) is intended to confer upon any Person not a party hereto or an Affiliate or an Associate of a party hereto any rights or remedies hereunder. 12.20 Effectiveness; Entire Agreement. The Existing Organization Agreement shall continue to be effective for the period of time from June 30, 1989, the date of its effectiveness, until the consummation of the closing of the purchase of shares of Class B Stock by First Plaza pursuant to the Stock Purchase Agreement; provided, however, that the provisions of Article VII of the Existing Organization Agreement shall survive such termination of the Existing Organization Agreement and further provided that if this Agreement shall terminate pursuant to Section 8.1(a) hereof, the Existing Organization Agreement shall be reinstated and in full force and effect as of the time of effectiveness hereof and this Agreement shall be deemed null and void ab initio. This Agreement shall become effective upon the consummation of such closing. This Agreement and the Exhibits and Schedules hereto, which incorporate all prior understandings relating to the subject matter hereof, sets forth the entire agreement of the Stockholders and Holdings from and after the consummation of such closing with respect to the matters set forth herein. 12.21 ERISA Limitation. Notwithstanding any other provision of this Agreement, First Plaza and its Affiliates shall not be required to sell any shares of Common Stock to any Person if doing so would constitute a non- exempt prohibited transaction under Title I of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"); provided that the foregoing clause shall apply to a sale to Holdings only if Holdings shall be a Party in Interest (as defined in Section 3(14) of ERISA, or any successor provision) with respect to First Plaza as a result of another Party in Interest's ownership of the stock of Holdings. First Plaza shall use its reasonable best efforts to obtain an exemption under ERISA to permit any sale of Common Stock held by it referred to in the previous sentence that would otherwise constitute such a non-exempt prohibited transaction. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day first above written. /s/ R. Philip Silver --------------------------------- Name: R. Philip Silver /s/ D. Greg Horrigan --------------------------------- Name: D. Greg Horrigan THE MORGAN STANLEY LEVERAGED EQUITY FUND II, L.P. By: Morgan Stanley Leveraged Equity Fund II, Inc. (General Partner) By: /s/ Robert H. Niehaus ------------------------------ Name: Robert H. Niehaus Title: Director BANKERS TRUST NEW YORK CORPORATION By: /s/ Joseph T. Wood ------------------------------ Name: Joseph T. Wood Title: Senior Vice President FIRST PLAZA GROUP TRUST By: Mellon Bank, N.A., Trustee (as directed by General Motors Investment Management Corporation) By: /s/ Judith A. Manion ------------------------------ Name: Judith A. Manion Title: Paralegal SILGAN HOLDINGS INC. By: /s/ R. Philip Silver ------------------------------ Name: R. Philip Silver Title: President EX-3 4 EXHIBIT 3 SILGAN HOLDINGS INC. 8-K Exhibit 3 _________________________________________________ STOCKHOLDERS AGREEMENT DATED AS OF DECEMBER 21, 1993 AMONG R. PHILIP SILVER D. GREG HORRIGAN THE MORGAN STANLEY LEVERAGED EQUITY FUND II, L.P. BANKERS TRUST NEW YORK CORPORATION FIRST PLAZA GROUP TRUST AND SILGAN HOLDINGS INC. _________________________________________________ TABLE OF CONTENTS Page ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ARTICLE II REGISTRATION RIGHTS . . . . . . . . . . . . . . . . . . . 7 2.1 Right of Certain Investors to Demand Registration . . . . . . . 7 2.2 Obligation of the Company to Register Common Stock Pursuant to Demand Registration . . . . . . . . . . . . . . . . . . . . . . 8 2.3 Piggyback Registration Rights . . . . . . . . . . . . . . . . 10 2.4 Underwriter's Cut-back . . . . . . . . . . . . . . . . . . . 12 2.5 Waiting Period for Demand Registrations . . . . . . . . . . . 13 2.6 Expenses of Registration . . . . . . . . . . . . . . . . . . 13 2.7 Registration Procedures . . . . . . . . . . . . . . . . . . . 14 2.8 Indemnification . . . . . . . . . . . . . . . . . . . . . . . 21 2.9 Contribution . . . . . . . . . . . . . . . . . . . . . . . . 25 2.10 Exchange Act Registration . . . . . . . . . . . . . . . . . . 27 2.11 Transfer or Assignment of Registration Rights . . . . . . . . 29 ARTICLE III CERTAIN RESTRICTIONS ON TRANSFER OF SHARES . . . . . . . . . . . . 30 3.1 Limitations on Transfer . . . . . . . . . . . . . . . . . . . 30 3.2 Transfers to Affiliates . . . . . . . . . . . . . . . . . . . 32 3.3 MSLEF Distribution; Pledges . . . . . . . . . . . . . . . . . 32 3.4 Rights of First Refusal . . . . . . . . . . . . . . . . . . . 33 3.5 Effect of Void Transfers . . . . . . . . . . . . . . . . . . 38 3.6 ERISA Limitation . . . . . . . . . . . . . . . . . . . . . . 38 ARTICLE IV VOTING . . . . . . . . . . . . . . . . . . . . . . . . . 39 4.1 Election of Certain Directors . . . . . . . . . . . . . . . . 39 4.2 Mergers and Sales . . . . . . . . . . . . . . . . . . . . . . 41 4.3 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . 42 ARTICLE V MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . 43 5.1 Due Authorization . . . . . . . . . . . . . . . . . . . . . . 43 5.2 Agreement Binding; Transfers . . . . . . . . . . . . . . . . 43 5.3 Surviving Corporation . . . . . . . . . . . . . . . . . . . . 44 5.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 5.5 Equitable Relief for Breach of Agreement . . . . . . . . . . 47 5.6 Entire Agreement; Amendments . . . . . . . . . . . . . . . . 48 5.7 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 5.8 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . 48 5.9 Unenforceable Provisions . . . . . . . . . . . . . . . . . . 48 5.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 48 5.11 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 49 5.12 Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . 49 STOCKHOLDERS AGREEMENT This Stockholders Agreement made and entered into as of the 21st day of December, 1993, by and among R. PHILIP SILVER ("Silver"), D. GREG HORRIGAN ("Horrigan"), THE MORGAN STANLEY LEVERAGED EQUITY FUND II, L.P., a Delaware limited partnership ("MS Equity"), BANKERS TRUST NEW YORK CORPORATION, a New York corporation ("BTNY"), FIRST PLAZA GROUP TRUST, a group trust established under the laws of the State of New York ("First Plaza"), and SILGAN HOLDINGS INC., a Delaware corporation (the "Company"). Capitalized terms used in this Agreement shall have the meanings ascribed to them in Article I hereof or in any other Section. W I T N E S S E T H: WHEREAS, simultaneously herewith, the Company and the Investors are entering into an Amended and Restated Organization Agreement (the "Organization Agreement") concerning the terms governing the relationship among the Investors and between the Investors and the Company for the term thereof; and WHEREAS, the Company and the Investors, believing it to be in their respective best interests, desire to provide further for certain registration and other rights and obligations of the Company and the Investors, and certain additional prospective rights and obligations of the Company and the Investors, all to take effect upon the occurrence of the Initial Public Offering. NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, agree as follows. ARTICLE I DEFINITIONS As used in this Agreement, the following terms shall have the meanings set forth below: "Affiliate" shall have the meaning ascribed to such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act as in effect on the date of this Agreement and, with respect to First Plaza, such terms shall include any successor or underlying trust. "Class A Stock" shall mean the Class A common stock, par value $.01 per share, of the Company. "Class B Stock" shall mean the Class B common stock, par value $.01 per share, of the Company. "Class C Stock" shall mean the Class C common stock, par value $.01 per share, of the Company. "Closing Date" shall mean the closing date for the purchase by Silgan Containers Corporation of certain assets of Del Monte Corporation, pursuant to the terms of the Purchase Agreement relating thereto. "Commission" shall mean the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act. "Common Stock" shall mean shares of the Company's common stock, including any shares of common stock resulting from the conversion of the Company's Class A Stock, Class B Stock and Class C Stock. "Estate" shall mean any and all assets left by a decedent and any executor, administrator or legal representative charged with the administration of such assets. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, or any successor federal statute and the rules and regulations of the Commission thereunder, all as the same shall be amended from time to time. "Family Transferees" shall mean the spouse, children or grandchildren of, or any trust for the benefit of the spouse, children or grandchildren of, Silver or Horrigan. "Group" shall mean, collectively, Silver and Horrigan and their respective Affiliates and related Family Transferees and Estates (Silver and his Affiliates, Family Transferees and Estate deemed to be collectively one member of the Group and Horrigan and his Affiliates, Family Transferees and Estate deemed to be collectively one member of the Group). "Initial Public Offering" shall mean the consummation of the first Public Offering. "Investment Entity" shall mean any Person who is primarily engaged in the business of investing in securities of other companies and not taking an active role in the management or operations of such companies and shall include MS Equity, First Plaza (and any successor or underlying trust of First Plaza) and BTNY. "Investment Entity Sale" shall mean the sale or Transfer of shares of Common Stock to an Investment Entity. "Liquidating Distribution" shall mean a Transfer of shares of Common Stock held by MS Equity to its partners pursuant to a liquidating distribution of such shares. "Investors" shall mean Silver, Horrigan, BTNY, MS Equity and First Plaza. "MSLEF Distribution" means a distribution by MS Equity of all or substantially all of the shares of Common Stock then owned by MS Equity to the partners of MS Equity. "Person" shall mean an individual, a corporation, a partnership, a joint venture, a trust or unincorporated organization, a joint stock company or other similar organization or any other legal entity. "Public Offering" shall mean any underwritten public offering of shares of Common Stock pursuant to an effective registration statement under the Securities Act. "Permitted Private Transfer" shall have the meaning provided in Section 3.1(b) hereof. "Register" and the terms "register," "registered" and "registration" refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of the effectiveness of such registration statement by the Commission. "Registrable Securities" shall mean the Common Stock subject to registration under Sections 2.1 and 2.3 hereof. "Registration Expenses" shall mean (i) all registration and filing fees, (ii) fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel) in connection with blue sky qualifications of the Registrable Securities, (iii) printing expenses, (iv) internal expenses of the Company and its subsidiaries, (v) the fees and expenses incurred in connection with the listing of the Registrable Securities on an exchange, (vi) the fees and disbursements of counsel for the Company and customary fees and expenses for independent certified public accountants retained by the Company (including the expenses of any comfort letters or costs associated with the delivery by independent certified public accountants of a comfort letter pursuant to Section 2.7(a)(vi) hereof), (vii) reasonable fees and expenses of one counsel for the Selling Stockholders and (viii) any other fees and expenses of any registration and related offering of securities under this Agreement which are not Selling Expenses. "Restricted Transferor" shall have the meaning provided in Section 3.1 hereof. "Restricted Voting Transferee" shall have the meaning provided in Section 4.3 hereof. "Rule 144 Open Market Transaction" shall mean any sale of shares of Common Stock in a transaction under Rule 144 of the Securities Act (or any successor rule) if such sale is in compliance with the requirements of such Rule. "Securities Act" shall mean the Securities Act of 1933, as amended, or any successor federal statute and the rules and regulations of the Commission thereunder, all as the same shall be amended from time to time. "Selling Expenses" shall mean all underwriting discount, selling commissions and stock transfer taxes applicable to the securities registered by the Investors and all fees and disbursements of counsel for any Investor (other than fees and disbursements of one counsel designated by the Selling Stockholders). "Selling Stockholder" means an Investor that elects to sell shares of Common Stock pursuant to Section 2.1 or 2.3 or an assignee or transferee of any such Investor pursuant to Section 2.11 that elects to sell shares of Common Stock pursuant to Section 2.1 or 2.3. "Stock Purchase Agreement" shall mean the agreement, dated as of the date hereof, between the Company and First Plaza, concerning the purchase by First Plaza of 250,000 shares of Class B Stock. "Stockholder" shall mean each of the Investors and any other Person who at the time holds shares of Common Stock. "Third Party Sale" shall mean the sale or Transfer by MS Equity or either member of the Group of such Stockholder's shares of Common Stock other than to an Affiliate of such Person, or such Person's Estate or to a Trust all the beneficiaries of which are Family Transferees, or an Estate or Trust of such Person or to a Family Transferee. "Transfer" shall mean to sell, assign, transfer, exchange, mortgage, pledge or grant a security interest in, or otherwise dispose of or encumber an interest in, shares of Common Stock or, as a noun, any such sale, assignment, transfer, exchange, mortgage, pledge, grant, disposition or encumbrance. ARTICLE II REGISTRATION RIGHTS 2.1 Right of Certain Investors to Demand Registration. (a) For a period of eight (8) years after the Initial Public Offering, each of MS Equity and First Plaza shall have the right to demand two separate registrations (each a "Demand Registration") of its shares of Common Stock (equalling a total of four separate Demand Registrations), subject to the provisions of Section 2.4; provided, however, that this demand right will terminate as to MS Equity or First Plaza, as the case may be, at such time as MS Equity or First Plaza, as the case may be, together with its Affiliates, owns less than five percent (5%) of the issued and outstanding shares of Common Stock at any time. Any request for a Demand Registration shall be in writing and will specify the aggregate number of shares of Common Stock to be sold and the book-running managing underwriter for the proposed public sale, which will be Morgan Stanley & Co. Incorporated, one of its Affiliates or an underwriter reasonably acceptable to the Company. (b) If the Company causes a shelf registration to become effective, MS Equity and First Plaza each shall have the right to sell its shares of Common Stock pursuant to such shelf registration; provided, however, that if the Company shall furnish to each of MS Equity and First Plaza that elects to exercise such right a certificate signed by an officer of the Company stating that the Board of Directors of the Company has determined (which determination shall be made in good faith in the sole discretion of the Board of Directors) that the shelf registration statement should not remain effective as to the shares of Common Stock of the Investors because the offering of Common Stock contemplated by the registration would be significantly disadvantageous to the Company, then the Company may, prior to any sale thereunder, direct that such registration with respect to such shares be withdrawn for such period of time as the basis for the Board of Directors' judgment continues to exist and provided, further, that at no time shall the terms of this Section 2.1 require the Company to effect any such shelf registration. 2.2 Obligation of the Company to Register Common Stock Pursuant to Demand Registration. (a) The Company shall, as soon as practicable following the receipt of a written request for a Demand Registration, use its best efforts to effect such registration and to facilitate the sale and distribution of all or such portion of such shares of Common Stock as are permitted to be registered pursuant to the terms of this Agreement. Subject to the provisions of this Agreement, the Company shall use its best efforts to file a registration statement covering the shares of Common Stock so requested to be registered as soon as practicable after receipt of a request for a Demand Registration and thereupon to cause such registration statement to be declared effective. (b) The Selling Stockholder that requests a Demand Registration shall enter into an underwriting agreement with the underwriters in the form customarily used by the managing underwriter (including, without limitation, a reasonable lock-up period, not to exceed one hundred twenty (120) days), with such changes thereto as the parties thereto shall agree. If such Selling Stockholder disapproves of the terms of any such underwriting, it may elect to withdraw all (but not less than all) of its shares of Common Stock from the proposed offering and will give written notice to the Company and the managing underwriter terminating its Demand Registration. In such event, the Company will have no obligation to proceed with the proposed offering. (c) If the Company shall furnish to the Selling Stockholder requesting a Demand Registration a certificate signed by an officer of the Company stating that the Board of Directors of the Company has determined (which determination shall be made in good faith in the sole discretion of the Board of Directors) that the filing of the registration statement should be deferred because the offering contemplated by the Demand Registration would be significantly disadvantageous to the Company, then the Company may direct that such registration be delayed for as long as the basis for the Board of Directors' judgment continues to exist; provided, however, that in such event, the Selling Stockholder shall be entitled to withdraw from the offering and the Company will pay all Registration Expenses in connection with such proposed registration and, provided, further, that (i) the Company may not delay such registration for a period of more than three (3) months from the date a notice for a Demand Registration is first received by the Company, and (ii) the Company may not defer its obligation in this manner more than once in respect of any particular request for a Demand Registration under Section 2.1. (d) Any registration which shall not have become effective or remained effective in accordance with the provisions of Section 2.7(a)(ii) hereof, or any registration from which a Selling Stockholder has withdrawn pursuant to Section 2.2(b), 2.2(c) or 2.4, shall not be deemed to be a Demand Registration for any purpose hereunder. 2.3 Piggyback Registration Rights. (a) If, at any time or from time to time for a period of eight (8) years after the Initial Public Offering, the Company shall determine to register any of its Common Stock (either for its own account or the account of a security holder or holders), or shall be required to register Common Stock pursuant to a Demand Registration or otherwise, other than (i) a registration relating solely to stock option or employee benefit plans, or (ii) a registration relating solely to a transaction or transactions covered by Rule 145 under the Securities Act, the Company will promptly give each Investor written notice thereof, and such notice will offer each Investor the opportunity to register such number of shares of Common Stock as each such Investor may request (a "Piggyback Registration"). The Company shall use its best efforts to cause the managing underwriter of the proposed offering to include in such registration (and any related qualification under blue sky or other state securities laws), and in any underwriting involved therein (including with respect to any over-allotment shares), all of the Registrable Securities specified in a written request or requests made by any Investor within fifteen (15) days after receipt of such written notice from the Company. (b) If the registration of which the Company gives notice is for a Public Offering involving an underwriting, the Company shall so advise the Investors as part of the written notice given pursuant to Section 2.3(a). In such event, the right of any Investor to registration pursuant to Section 2.3(a) shall be conditioned upon such Investor's participation in such underwriting and the inclusion of the Common Stock owned by the Investor in the underwriting to the extent provided under this Section 2.3. All Selling Stockholders proposing to distribute their Common Stock through such underwriting shall (together with the Company and any other holders of securities of the Company distributing their securities through such underwriting) enter into an underwriting agreement with the underwriters in the form customarily used by the managing underwriter (including, without limitation, a reasonable lock-up period, not to exceed one hundred twenty (120) days), with such changes thereto as the parties thereto shall agree. 2.4 Underwriter's Cut-back. (a) Notwithstanding any provision of Section 2.1 or 2.3, if the managing underwriter states in writing to the Company that marketing factors require that the number of shares of Common Stock requested to be included in a registration be limited, the managing underwriter may reduce the number of shares to be included in such registration. In the event of any such reduction, the shares of Common Stock proposed to be sold by the Selling Stockholders will be treated as a class (the "Selling Stockholders' Shares"). In the case of a Demand Registration, the reduction will be allocated first to shares of Common Stock that are not Selling Stockholders' Shares and then to the Selling Stockholders' Shares and in the case of a Piggyback Registration triggered by an event other than a Demand Registration, the reduction will be allocated first to the Selling Stockholders' Shares and the shares of any other stockholders of the Company to be included in the registration, taken as a class, and then to the other shares to be sold in the proposed offering. (b) In the event any reduction of the Selling Stockholders' Shares and the shares of any other stockholders is required pursuant to this Section 2.4, such reduction will be allocated pro rata (according to the number of Registrable Securities proposed to be sold by each Selling Stockholder and the number of shares of any other stockholders proposed to be included in connection with the proposed registration) among all Selling Stockholders and the other selling stockholders, taken as a class. (c) The Company shall advise all Selling Stockholders as to any such reduction and the number of shares that may be included in the registration and underwriting. If any Selling Stockholder disapproves of the terms of any such underwriting, such Selling Stockholder may elect to withdraw therefrom by written notice to the Company and the managing underwriter. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. (d) In the case of a Demand Registration, if as a result of the provisions of this Section 2.4 the Selling Stockholder that requested the Demand Registration sells less than 66 2/3% of the shares requested to be registered by him in the notice delivered pursuant to Section 2.1(a), such offering shall not be deemed to be a Demand Registration for any purpose hereunder. 2.5 Waiting Period for Demand Registrations. After the closing of a sale of shares (a "Sale Closing") pursuant to a Demand Registration, no subsequent Demand Registration shall be permitted until the expiration of one (1) year after the date of the Sale Closing. Nothing in this Section 2.5 will limit the ability of Investors to request registrations pursuant to Sections 2.1(b) and 2.3. 2.6 Expenses of Registration. All Registration Expenses incurred in connection with all registrations pursuant to Sections 2.1 and 2.3 hereof shall be borne by the Company. All Selling Expenses relating to Registrable Securities registered on behalf of the Selling Stockholders shall be borne by the Selling Stockholders pro rata based upon the total number of Registrable Securities included in the registration or, if such Selling Expenses are specifically allocable to Registrable Securities held by specific Selling Stockholders, by such Selling Stockholders to the extent related to the sale of such Registrable Securities. 2.7 Registration Procedures. (a) If and whenever the Company is required to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 2.1 and 2.3 hereof, the Company shall as expeditiously as is reasonable: (i) prepare and file with the Commission on any appropriate form a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become effective; (ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities and other securities covered by such registration statement for a period of 180 days or until the Selling Stockholder or Selling Stockholders have completed the distribution described in such registration statement, whichever occurs first; (iii) furnish to each Selling Stockholder such number of conformed copies of such registration statement and of each such amendment and supplement thereto (at least one of which shall include all exhibits), such number of copies of the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus), in conformity with the requirements of the Securities Act, such documents incorporated by reference in such registration statement or prospectus, and such other documents, as such seller may reasonably request in order to facilitate the sale or disposition of such Registrable Securities; (iv) after the filing of a registration statement, notify each Selling Stockholder of any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered; (v) use its best efforts to register or qualify all Registrable Securities and other securities covered by such registration statement under such other securities or "blue sky" laws of such jurisdictions as the underwriter shall reasonably request, and do any and all other acts and things as may be reasonably necessary to consummate the disposition in such jurisdictions of its Registrable Securities covered by such registration statement, except that the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein it is not so qualified, or to subject itself to taxation in respect of doing business in any such jurisdiction, or to consent to general service of process in any such jurisdiction unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act; (vi) furnish to each Selling Stockholder and to each underwriter a signed counterpart, addressed to such Selling Stockholder or underwriter, of (1) an opinion of counsel for the Company, dated the date of the closing under the underwriting agreement, and (2) "cold comfort" letters signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement dated the date of effectiveness of the registration statement and the date of the closing under the underwriting agreement, covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letters, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities and, in the case of the accountants' letters, covering such other financial matters as such sellers or underwriters may reasonably request; (vii) immediately notify each Selling Stockholder of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing or if it is necessary, in the opinion of counsel to the Company, to amend or supplement such prospectus to comply with law, and at the request of any such seller prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing and shall otherwise comply in all material respects with law and so that such prospectus, as amended or supplemented, will comply with law; (viii) otherwise use its best efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months, beginning with the first month of the first fiscal quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act; (ix) use its best efforts to list such securities on each securities exchange or over-the-counter market on which shares of Common Stock are then listed, if such securities are not already so listed and if such listing is then permitted under the rules of such exchange; and, if shares of Common Stock are not then listed on a securities exchange or over-the-counter market, to use its best efforts to cause such securities to be listed on such securities exchange or over-the-counter market as the managing underwriter shall reasonably request; (x) use its best efforts to provide a transfer agent and registrar for such Registrable Securities not later than the effective date of such registration statement; (xi) issue to any underwriter to which any holder of Registrable Securities may sell such Registrable Securities in connection with any such registration (and to any direct or indirect transferee of any such underwriter) certificates evidencing shares of Common Stock without restrictive legends; and (xii) take such other actions as are reasonably required consistent with the terms hereof in order to expedite or facilitate the disposition of the Registrable Securities. (b) If requested by the managing underwriter for any underwritten offering of Registrable Securities on behalf of a Selling Stockholder or Selling Stockholders, the Company will enter into an underwriting agreement with the underwriters of such offering, such agreement to contain such representations and warranties by the Company and each such Selling Stockholder and such other terms and conditions as are contained in underwriting agreements customarily used by such managing underwriter (including, without limitation, a reasonable lock-up period, not to exceed one hundred twenty (120) days and provisions relating to indemnification and contribution in lieu thereof) with such changes as the parties thereto shall agree. (c) The Selling Stockholder or Selling Stockholders shall furnish to the Company such information regarding such Selling Stockholder or Selling Stockholders, the Registrable Securities held by them and the distribution proposed by such Selling Stockholder or Selling Stockholders as the Company may from time to time reasonably request as required in connection with any registration, qualification or compliance referred to in this Agreement. (d) The Selling Stockholder or Selling Stockholders shall, upon request by the Company and the managing underwriter, execute and deliver custodian agreements and powers of attorney in form and substance reasonably satisfactory to the Company and such Selling Stockholder or Selling Stockholders and as shall be reasonably necessary to consummate the offering. (e) In connection with any registration pursuant to this Agreement, the Company will make available for inspection by any Selling Stockholder, any underwriter participating in the proposed disposition and any attorney, accountant or other professional retained by any such Selling Stockholder or underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration. Records which the Company determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction. Each Selling Stockholder agrees that information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company unless and until such information is made generally available to the public. Each Selling Stockholder of such Registrable Securities further agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential. In the event First Plaza Transfers shares pursuant to Section 3.4(a) to a Person that is not an Investment Entity, and the Board of Directors of the Company reasonably determines that such Person could use the information provided hereunder to the disadvantage of the Company, then the rights under this paragraph (e) will be unavailable to such Person and its Inspectors. 2.8 Indemnification. (a) The Company will indemnify each Selling Stockholder, its officers, directors, general partners or agents, and each underwriter, if any, and each person who controls any Selling Stockholder or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and any named fiduciary acting for First Plaza and the advisors acting for the named fiduciary in connection with this Agreement and the respective directors, officers, trustees and employees of the foregoing persons, against any and all losses, claims, damages, liabilities or expenses (including any of the foregoing incurred in settlement or investigation of any litigation, commenced or threatened or in connection with enforcement of rights under this Agreement) ("Damages"), arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement or prospectus (including a preliminary prospectus), or any amendment or supplement thereto, incident to any such registration, qualification or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, or any violation by the Company of the Securities Act or any rule or regulation promulgated under the Securities Act applicable to the Company in connection with any such registration; provided, however, that the Company will not be liable in any such case to the extent that any Damages arise out of or are based on any untrue statement or omission, or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder or underwriter for use therein. The Company will reimburse each indemnitee under this Section 2.8(a) for any legal and other expenses reasonably incurred, as such expenses are incurred, in connection with investigating, preparing or defending any such Damages. (b) Each Selling Stockholder will severally and not jointly, if Registrable Securities held by such Selling Stockholder are included in the securities as to which such registration is being effected, indemnify the Company, each of its directors and officers, each of the other Selling Stockholders, each underwriter, if any, of the Company's securities covered by such a registration statement, each Person who controls the Company, any other Selling Stockholder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and each other such Selling Stockholder and any named fiduciary acting for First Plaza and the advisors acting for the named fiduciary in connection with this Agreement and the respective directors, officers, trustees and employees of the foregoing persons against any and all Damages arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement or prospectus, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and will reimburse the Company, such Selling Stockholders, underwriters, control persons and any named fiduciary acting for First Plaza and the advisors acting for the named fiduciary in connection with this Agreement and the respective directors, officers, trustees and employees of the foregoing persons for any legal or any other expenses reasonably incurred, as such expenses are incurred, in connection with investigating or defending any such Damages, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement or prospectus in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder specifically for use therein. Notwithstanding the foregoing, the liability of each Selling Stockholder under this Section 2.8 shall be limited to an amount equal to the net proceeds received by such Selling Stockholder from the sale of Registrable Securities hereunder. (c) Each party entitled to indemnification under this Section 2.8 (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and the Indemnifying Party shall assume the defense of any such claim or any litigation resulting therefrom and the payment of all related fees and expenses; provided, however, that counsel for the Indemnifying Party who shall conduct the defense of such claim or litigation shall be approved by the Indemnified Party (which approval shall not be unreasonably withheld). In any such proceedings, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be borne by such Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them; provided, however, that the Indemnifying Party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnified Parties, and that all such fees and expenses shall be reimbursed as they are incurred. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of an unconditional release from all liability in respect of such claim or litigation. Each Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be reasonably required in connection with the defense of such claim and the litigation resulting therefrom. 2.9 Contribution. (a) If the indemnification provided for in Section 2.8 hereof is unavailable to the Indemnified Parties in respect of any Damages, then each such Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Damages. As between the Company on the one hand and each Selling Stockholder on the other, such contribution shall be in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and the Indemnified Party on the other in connection with the statement or omission which resulted in such Damages, as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue statement (or alleged untrue statement) of a material fact or the omission (or alleged omission) to state a material fact relates to information supplied by the Indemnifying Party or the Indemnified Party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Investor agree that it would not be just and equitable if contribution pursuant to this Section 2.9 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. The amount paid or payable by an Indemnified Party as a result of the Damages referred to above in this Section 2.9 shall be deemed to include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. (b) Notwithstanding anything to the contrary contained herein, the obligation of each Selling Stockholder to contribute pursuant to this Section 2.9 is several and not joint and no Selling Stockholder shall be required to contribute any amount in excess of the amount by which the net proceeds received by the Selling Stockholder in the offering exceeds the amount of any damages which such Selling Stockholder has otherwise been required to pay by reason of such untrue statement (or alleged untrue statement) or omission (or alleged omission). The Selling Stockholders' obligations to contribute pursuant to this Section 2.9 are several in the proportion that the proceeds of the offering received by such Selling Stockholder bears to the total proceeds of the offering received by all the Selling Stockholders unless it is determined that, based upon the relative fault of the several Selling Stockholders, it would be equitable to otherwise allocate such obligations. (c) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. 2.10 Exchange Act Registration. The Company covenants and agrees that until such time as there shall be no Common Stock outstanding: (a) it will, if required by law, maintain an effective registration statement (containing such information and documents as the Commission shall specify) with respect to the Common Stock under Section 12(g) of the Exchange Act and will file in a timely manner such information, documents and reports as the Commission may require or prescribe for companies whose stock has been registered pursuant to said Section 12(g); (b) it will, if a registration statement with respect to the Common Stock under Section 12(b) or Section 12(g) of the Exchange Act is effective, make whatever filings with the Commission or otherwise make generally available to the public such financial and other information as may be necessary in order to enable the Investors to sell shares of Common Stock pursuant to the provisions of Rule 144 promulgated under the Securities Act, or any successor rule or regulation thereto or any statute hereafter adopted to replace or to establish the exemption that is now covered by said Rule 144 ("Rule 144"); (c) it will, if no longer required to file reports pursuant to Section 12(g) of the Exchange Act, upon the request of any Investor, make publicly available the information specified in subparagraph (c)(2) of Rule 144, and will take such further action as any Investor may reasonably request, all to the extent required from time to time to enable such Investor to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (x) Rule 144 or (y) any similar rule or regulation hereafter adopted by the Commission; and (d) upon the request of any Investor, it will deliver to such Investor a written statement as to whether it has complied with the requirements of this Section 2.10. The Company represents and warrants that such registration statement or any information, documents or report filed with the Commission in connection therewith or any information so made public shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements contained therein not misleading. The Company agrees to indemnify and hold harmless (or to the extent the same is not enforceable, make contribution to) the Selling Stockholders, their partners, advisory committee members, officers, directors and employees acting for any Selling Stockholder in connection with any offering or sale by such Investor of Registrable Securities or any person, firm or corporation controlling (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) such Selling Stockholder, and any named fiduciary acting for First Plaza and the advisors acting for the named fiduciary in connection with this Agreement and the respective directors, officers, trustees and employees of the foregoing persons, from and against any and all Damages arising out of or resulting from any breach of the foregoing representation or warranty, all on terms and conditions comparable to those set forth in Sections 2.8 and 2.9; provided, however, that the Company shall be given written notice and an opportunity to assume the defense thereof on terms and conditions comparable to those set forth in Sections 2.8 and 2.9. 2.11 Transfer or Assignment of Registration Rights. (a) The rights granted to the Investors under this Article II are not transferable or assignable to any Person other than an Affiliate thereof or, in the case of Silver and Horrigan, to a member of the Group, and provided that any such Affiliate of MS Equity, BTNY or First Plaza shall be an Investment Entity. (b) Notwithstanding the foregoing, the rights granted to any Investor under this Article II may be transferred or assigned by such Investor or its Affiliate, subject to the terms and conditions of this Agreement, to a third party which in the case of MS Equity and BTNY shall be an Investment Entity; provided, in the case of transfers by First Plaza or MS Equity or their Affiliates of their rights, if any, under Section 2.1 hereof, that such transfer is made in connection with the Transfer by First Plaza of at least fifty percent (50%) of the shares of Common Stock acquired by First Plaza pursuant to the Stock Purchase Agreement or by MS Equity in connection with the Transfer of all of its shares of Common Stock. ARTICLE III CERTAIN RESTRICTIONS ON TRANSFER OF SHARES 3.1 Limitations on Transfer. (a) Until June 30, 1999, except as otherwise specifically provided in this Article III, none of MS Equity, Silver or Horrigan (each, a "Restricted Transferor", and collectively, the "Restricted Transferors") or First Plaza shall, without the prior written consent of the Restricted Transferors, Transfer any shares of Common Stock unless such Transfer is (i) made in connection with a Public Offering or a Rule 144 Open Market Transaction, (ii) a Permitted Private Transfer or (iii) in the case of MS Equity, a MSLEF Distribution. The transfer restrictions in this Article III will terminate on June 30, 1999; provided that any such restrictions applicable to First Plaza shall terminate on the fifth anniversary of the Closing Date. (b) For purposes of this Agreement, "Permitted Private Transfer means (i) a Transfer to an Affiliate pursuant to the terms of Section 3.2 or (ii) a Transfer pursuant to the procedures, terms and conditions of Section 3.4. (c) No Permitted Private Transfer shall be effected unless and until notice thereof shall be given by the Restricted Transferor or First Plaza, as the case may be, to the Company and the transferee shall agree in writing prior to the Transfer to be bound by the provisions of this Agreement as and to the extent that the Restricted Transferor was bound, except as specifically provided by this Agreement. (d) Each of First Plaza and the Restricted Transferors understand and agree with the Company that it may effect a Permitted Private Transfer or a MSLEF Distribution: (i) only in compliance with the Securities Act, as then in effect; (ii) no Transfer of any of the shares of Common Stock shall be permitted without a written opinion of counsel of recognized standing in securities laws (including in-house counsel) to the effect that the proposed Transfer of the shares of Common Stock would not be in violation of the Securities Act or any applicable state securities laws, which opinion shall be, at such Restricted Transferor's expense, submitted to the Company and shall be satisfactory in form and substance to the Company and (iii) it will give notice of any such Permitted Transfer or MSLEF Distribution to each of the Restricted Transferors. In addition, the Restricted Transferors and First Plaza agree not to transfer any of the shares of Common Stock except for transfers made in compliance with the terms of this Agreement, the terms of the Company's Certificate of Incorporation as in effect from time to time and all applicable federal and state securities laws. 3.2 Transfers to Affiliates. Each of the Restricted Transferors and First Plaza shall be entitled from time to time, without the consent of the Company or any other Stockholders, to Transfer any or all of the shares of capital stock of the Company owned by it to an Affiliate of such Restricted Transferor or First Plaza, as the case may be; provided, however, that in the case of a Transfer by First Plaza or MS Equity to an Affiliate, such Affiliate must be an Investment Entity, and provided, further, that such transferee shall, prior to the Transfer, agree in writing to, and thereafter shall, re-transfer ownership of any shares of capital stock of the Company owned by such transferee back to the Restricted Transferor or First Plaza prior to the time such transferee ceases to be an Affiliate of such Restricted Transferor. In the event that the transferee ceases to be an Affiliate of the Restricted Transferor or First Plaza, as the case may be, without a transfer to the Restricted Transferor or First Plaza, as the case may be, having taken place, the ownership of such shares by such transferee shall be governed by the provisions of Section 3.5 hereof. 3.3 MSLEF Distribution; Pledges. (a) Without prior notice to, or the consent of, the Company or any other Stockholder, MS Equity may distribute the shares of Common Stock held by it to the partners of MS Equity pursuant to a MSLEF Distribution. (b) Notwithstanding anything else in this Agreement, MS Equity may pledge its shares of Common Stock to a lender or lenders reasonably acceptable to the Company to secure a loan or loans to MS Equity. In the event of any proposed foreclosure of such pledge, such shares will be subject to the right of first refusal of the Group as provided in Section 3.4(b). 3.4 Rights of First Refusal. (a) Until the fifth (5th) anniversary of the Closing Date, First Plaza may Transfer any shares of Common Stock held by it to any third party (other than any shares which First Plaza wishes to Transfer pursuant to Sections 3.2 or 3.3 hereof) only as follows. First Plaza or such Affiliate must give notice (the "First Plaza Offer Notice") to each of the Group and MS Equity (the "First Plaza Offerees") setting forth the number of shares of Common Stock (the "First Plaza Offered Shares") proposed to be sold, the terms and conditions of such sale, and the price or method for determining such price. Subject to the last sentence of this Section 3.4, each First Plaza Offeree shall have the right to purchase one-half (1/2) of the First Plaza Offered Shares; provided that, in the event a First Plaza Offeree elects to purchase less than its full proportionate share, then the other First Plaza Offeree shall have the right to purchase all of such remaining First Plaza Offered Shares. Within fifty-five (55) days of the receipt of the First Plaza Offer Notice, each First Plaza Offeree shall notify First Plaza and the other First Plaza Offeree whether it will exercise its right to purchase its proportionate share and the maximum number of First Plaza Offered Shares such First Plaza Offeree would elect to purchase. Failure of a First Plaza Offeree to so notify all such parties shall be deemed a determination by such First Plaza Offeree not to purchase the First Plaza Offered Shares. If either of the First Plaza Offerees exercises its respective right to purchase the First Plaza Offered Shares, such party must consummate the purchase within ninety (90) days after the date of the notice of exercise of such right at a price equal to or greater than the price and upon the same terms and conditions set forth in the First Plaza Offer Notice. No shares of Common Stock may be purchased by MS Equity or the Group pursuant to this Section 3.4(a) unless all the shares of Common Stock set forth in the First Plaza Offer Notice are purchased or unless First Plaza consents to the purchase of less than all the First Plaza Offered Shares. (b) Until June 30, 1999, MS Equity may effect any Investment Entity Sale (or any Third Party Sale if an Event of Default has occurred and is continuing under Paragraph 5(a) of the Amended and Restated Management Services Agreement between the Company and S&H Inc., dated as of December 21, 1993, as the same may be amended from to time) if MS Equity first offers such shares proposed to be sold (the "MS Offered Shares") to the Group for purchase in compliance with this Section 3.4(b). MS Equity shall promptly provide notice (the "MS Offer Notice") to the Group setting forth the terms of the proposed Investment Entity Sale or Third Party Sale, including the identity of the proposed purchaser, the number of shares of Common Stock being sold, the terms and conditions of the Investment Entity Sale or Third Party Sale, and the price or method of determining such price. Within fifteen (15) days of the receipt of the MS Offer Notice, the Group shall notify MS Equity whether it will exercise its right to purchase the MS Offered Shares. Failure of the Group to so notify MS Equity shall be deemed a determination by the Group not to purchase the MS Offered Shares. No shares of Common Stock may be purchased by the Group pursuant to this Section 3.4(b) unless all the shares of Common Stock set forth in the MS Offer Notice are purchased or unless MS Equity consents to the purchase of less than all the MS Offered Shares. If the Group exercises its right to purchase the MS Offered Shares, the Group must consummate the purchase within ninety (90) days after the date of the notice of such exercise at a price equal to or greater than the price and upon the same terms and conditions set forth in the MS Offer Notice. If the Group determines to purchase in the aggregate less than all the MS Offered Shares, and if MS Equity has not consented to the purchase of less than all the MS Offered Shares, MS Equity shall be free to sell all of the MS Offered Shares to the purchaser designated in the MS Offer Notice, provided that such sale is consummated within ninety (90) days after the expiration of the fifteen (15) day period referred to above at a price equal to or greater than the price and upon the same terms and conditions as set forth in the MS Offer Notice. (c) Until the fifth anniversary of the Closing Date, each member of the Group may effect any Third Party Sale if such member of the Group (the "Group Offeror") first offers such shares proposed to be sold (the "Group Offered Shares") to the other member of the Group and MS Equity (the "Section 3.4(c) Offerees") for purchase in compliance with this Section 3.4(c). The Group Offeror shall promptly provide a notice (the "Group Offer Notice") to the Section 3.4(c) Offerees setting forth the terms of the proposed Third Party Sale, including the identity of the proposed purchaser, the number of shares of Common Stock being sold, the terms and conditions of such sale, and the price or method for determining such price. Within fifteen (15) days of the receipt of the Group Offer Notice, the other member of the Group shall notify the Group Offeror and the other Section 3.4(c) Offeree whether it will exercise its right to purchase up to all the Group Offered Shares. Failure of the other member of the Group to so notify all such parties shall be deemed a determination by such other member of the Group not to purchase the Group Offered Shares. If the other member of the Group determines to purchase in the aggregate less than all the Group Offered Shares, and if MS Equity desires to purchase any or all of such remaining Group Offered Shares, MS Equity shall notify the Group Offeror and the other Section 3.4(c) Offeree within twenty (20) days of the receipt of the Group Offer Notice of the number of Group Offered Shares, if any, that MS Equity will exercise its right to purchase. Failure of MS Equity to so notify all such parties shall be deemed a determination by MS Equity not to purchase the Group Offered Shares. No shares of Common Stock may be purchased by any of the Section 3.4(c) Offerees, or a combination thereof, pursuant to this Section 3.4(c) unless all the shares of Common Stock set forth in the Group Offer Notice are purchased or unless the Group Offeror consents to the purchase of less than all the Group Offered Shares. If any of the Section 3.4(c) Offerees exercises its respective right to purchase the Group Offered Shares, such party must consummate the purchase within ninety (90) days after the date of the notice of such exercise at a price equal to or greater than the price and upon the same terms and conditions set forth in the Group Offer Notice. If none of the Section 3.4(c) Offerees, or a combination thereof, determines to purchase in the aggregate all the Group Offered Shares, the Group Offeror shall be free to sell the Group Offered Shares to the purchaser designated in the Group Offer Notice, provided that (i) such sale is consummated within ninety (90) days after the expiration of the twenty (20) day period referred to above at a price equal to or greater than the price and upon the same terms and conditions as set forth in the Group Offer Notice. (d) Unless the parties to the Transfer shall agree otherwise, the purchase price for any shares of Common Stock purchased by MS Equity or either member of the Group pursuant to this Section 3.4 shall be paid by the purchaser at the closing of such sale in immediately available funds against delivery by the seller of the shares of Common Stock being sold, free and clear of all liens, charges and encumbrances, in the form of the certificate or certificates representing such shares of Common Stock, accompanied by appropriate stock powers, duly executed or endorsed in blank, with the appropriate transfer tax stamps affixed. (e) In the event that MS Equity and the Group shall fail to purchase any shares of Common Stock identified in any First Plaza Offer Notice, MS Offer Notice or Group Offer Notice and any such shares shall be sold to any third party in compliance with the terms and conditions of this Section 3.4, the restrictions on transfer set forth in this Article III (other than Section 3.1(d) hereof) will terminate with respect to such shares and the holder or holders thereof. (f) MS Equity may assign its rights of first refusal under this Section 3.4 to any Affiliate that is an Investment Entity (or to Morgan Stanley & Co. Incorporated in the case of purchases from First Plaza). In the event that any such Affiliate wishes to purchase shares of Common Stock offered for sale pursuant to this Section 3.4, such Affiliate will agree in writing prior to such purchase to be bound by the provisions of this Agreement as and to the extent MS Equity is bound. 3.5 Effect of Void Transfers. In the event a Transfer of any shares of Common Stock takes place in violation of the provisions of this Article III, such Transfer shall be void and of no effect, and no dividend of any kind whatsoever nor any distribution pursuant to liquidation or otherwise shall be paid by the Company to the transferee in respect of such shares (all such dividends and distributions being deemed waived), and the voting rights of such shares on any matter whatsoever shall remain vested in the transferor, during the period commencing with such party's initial failure of compliance and ending when compliance shall have occurred. 3.6 ERISA Limitation. Notwithstanding any other provision of this Agreement, First Plaza and its Affiliates shall not be required to sell any shares of Common Stock to any Person if doing so would constitute a non- exempt prohibited transaction under Title I of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"). First Plaza shall use its reasonable best efforts to obtain an exemption under ERISA to permit any sale of Common Stock held by it referred to in the previous sentence that would otherwise constitute such a non-exempt prohibited transaction. ARTICLE IV VOTING 4.1 Election of Certain Directors. Until the fifth (5th) anniversary of the Closing Date: (a) for so long as MS Equity and its Affiliates (excluding the limited partners of MS Equity who may acquire shares of Common Stock from MS Equity in a MSLEF Distribution) shall hold at least one-half of the number of shares of Common Stock held by MS Equity at the Closing Date (as adjusted, if necessary, to take into account any stock dividend, stock split, combination of shares, subdivision or recapitalization of the capital stock of the Company), the parties hereto and their Restricted Voting Transferees shall use their best efforts (including to vote any shares of Common Stock owned or controlled by such Investor or otherwise) to cause the nomination and election of two (2) members of the Board of Directors of the Company to be chosen by MS Equity; provided, however, that each such nominee shall be (i) either an employee of Morgan Stanley & Co. Incorporated whose primary responsibility is managing investments for MS Equity (or a successor or related partnership) or (ii) a person reasonably acceptable to the Group not engaged in (as a director, officer, employee, agent or consultant or as a holder of more than five percent of the equity securities of) a business competitive with that of the Company, and (b) for so long as the Group shall hold at least one-half of the number of shares of Common Stock held by it in the aggregate at the Closing Date (as adjusted, if necessary, to take into account any stock dividend, stock split, combination of shares, subdivision or recapitalization of the capital stock of the Company), the parties hereto and their Restricted Voting Transferees shall use their best efforts (including to vote any shares of Common Stock owned or controlled by such Investor or otherwise) to cause the nomination and election of two (2) individuals nominated by the holders of a majority of the shares of Common Stock held by the Group as members of the Board of Directors of the Company; provided, however, that at least one (1) of such nominees shall be Silver or Horrigan and the other person, if not Silver or Horrigan, shall be a person reasonably acceptable to MS Equity, so long as MS Equity and its Affiliates (other than any Affiliate which is not an Investment Entity and excluding the limited partners of MS Equity who may acquire shares of Common Stock from MS Equity in a MSLEF Distribution) shall hold at least one-half of the number of shares of Common Stock held by MS Equity at the Closing Date (as adjusted, if necessary, to take into account any stock dividend, stock split, combination of shares, subdivision or recapitalization of the capital stock of the Company), and (c) subject to the foregoing, for so long as the Group shall hold at least one-half of the number of shares of Common Stock held by it in the aggregate at the Closing Date (as adjusted, if necessary to take into account any stock dividend, stock split, combination of shares, subdivision or recapitalization of the capital stock of the Company), First Plaza and its Restricted Voting Transferees shall vote all shares of Common Stock held by them in favor of any other directors standing for election to the Company's Board of Directors for whom the holders of a majority of the shares of Common Stock held by the Group shall direct First Plaza to vote. 4.2 Mergers and Sales. (a) Until the fifth (5th) anniversary of the Closing Date, MS Equity and its Restricted Voting Transferees shall vote all shares of Common Stock held by them against any unsolicited merger, or sale of the Company's business or its assets, if such transaction is opposed by the holders of a majority of the shares of Common Stock held by the Group, unless as of the applicable record date for such vote, the Group holds less than ninety percent (90%) of the number of shares of Common Stock held by it in the aggregate at the Closing Date (as adjusted, if necessary, to take into account any stock dividend, stock split, combination of shares, subdivision or recapitalization of the capital stock of the Company). (b) Until the fifth (5th) anniversary of the Closing Date, First Plaza and its Restricted Voting Transferees shall vote all shares of Common Stock held by them against any unsolicited merger, or sale of the Company's business or its assets, if such transaction is opposed by the holders of a majority of the shares of Common Stock held by the Group; provided, however, that First Plaza and its Restricted Voting Transferees shall not be required to vote their shares of Common Stock in accordance with the foregoing if: (i) in connection with such merger or sale, (x) First Plaza and its Restricted Voting Transferees propose to sell or otherwise transfer all of their shares of Common Stock to a third party for aggregate cash consideration of less than $10 million and (y) the Group and/or MS Equity has not exercised their right of first refusal pursuant to Section 3.4(a) hereof in respect of such sale or transfer by First Plaza or such right of first refusal in respect of the shares of Common Stock held by First Plaza shall have terminated; or (ii) as of the applicable record date for such vote, the Group holds less than ninety percent (90%) of the number of shares of Common Stock held by it in the aggregate at the Closing Date (as adjusted, if necessary, to take into account any stock dividend, stock split, combination of shares, subdivision or recapitalization of the capital stock of the Company). 4.3 Defined Terms. For purposes of this Article IV, the following terms shall have the following meanings: "holders of a majority of the shares of Common Stock held by the Group" shall mean the holders of a majority of the aggregate of 417,500 shares of Class A Stock held by Messrs. Silver and Horrigan at the Closing Date (the "Original Holding") which at the time of any such determination have been continuously and are held by the Group. No shares of Common Stock which are acquired by any member of the Group (other than shares of the Original Holding) shall be counted for purposes of making such determination; and "Restricted Voting Transferee" shall mean any holder of shares of Common Stock held by any of the Investors at the time of the IPO which have been sold or transferred to any third party otherwise than pursuant to a Public Offering, a Rule 144 Open Market Transaction or a MSLEF Distribution. ARTICLE V MISCELLANEOUS PROVISIONS 5.1 Due Authorization. Each of the parties to this Agreement represents that this Agreement has been duly authorized, executed and delivered by such party and constitutes the legal, valid and binding obligation of such party enforceable against it in accordance with its terms. 5.2 Agreement Binding; Transfers. (a) Except to the extent expressly provided herein, the parties hereto agree that this Agreement shall be binding upon and inure to the benefit of their respective heirs, executors, legal representatives, successors and assigns, including, without limitation, any transferee of shares of Common Stock of the parties hereto (other than transferees pursuant to a Public Offering, a Rule 144 Open Market Transaction) or a MSLEF Distribution. (b) The parties hereto and their transferees acknowledge the legend which pursuant to Section 3.3 of the Organization Agreement has been placed on the certificates for the shares of Common Stock held by the parties hereto and agree that, until the fifth anniversary of the Closing Date, they will not transfer shares of Common Stock to any Person other than pursuant to a Public Offering, a Rule 144 Open Market Transaction or a MSLEF Distribution unless notice thereof shall be given by the transferor to the Company and the transferee shall agree to be bound by the provisions of this Agreement applicable to such transferee. (c) The Company agrees that it will upon the request of any Investor in connection with any Transfer of shares of Common Stock in connection with any Public Offering, Rule 144 Open Market Transaction or MSLEF Distribution, and to the extent otherwise appropriate, remove any legends setting forth any restrictions under this Agreement on the certificate or certificates evidencing such shares and confirm to any such transferee in writing the absence of any such restrictions hereunder. 5.3 Surviving Corporation. In addition to any other restrictions on mergers, consolidations and reorganizations contained in the charter, by- laws or agreements of the Company, the Company covenants and agrees that it shall not, directly or indirectly, enter into any merger, consolidation or reorganization in which the Company shall not be the surviving corporation unless the surviving corporation shall, prior to the consummation of such merger, consolidation or reorganization, agree in a writing satisfactory in form, scope and substance to the holders of a majority of the Common Stock to assume the obligations of the Company under this Agreement, and for that purpose references hereunder to "Common Stock" shall be deemed to include the securities which such holders would be entitled to receive in exchange for Common Stock pursuant to any such merger, consolidation or reorganization. 5.4 Notices. Any and all notices, offers or other communications provided for herein shall be given in writing and shall be delivered personally or by prepaid registered or certified mail or by prepaid nationally recognized overnight courier service, or by facsimile transmission or telex, all at the following addresses and facsimile numbers: If to Silver: c/o Silgan Holdings Inc. 4 Landmark Square, Suite 301 Stamford, CT 06901 Attention: R. Philip Silver Telecopy No.: (203) 975-7902 If to Horrigan: c/o Silgan Holdings Inc. 4 Landmark Square, Suite 301 Stamford, CT 06901 Attention: D. Greg Horrigan Telecopy No.: (203) 975-7902 If to Holdings: Silgan Holdings Inc. 4 Landmark Square, Suite 301 Stamford, CT 06901 Attention: R. Philip Silver Telecopy No.: (203) 975-7902 If to MS Equity: The Morgan Stanley Leveraged Equity Fund II, L. P. Morgan Stanley Leveraged Equity Fund II, Inc., General Partner 1251 Avenue of the Americas New York, NY 10020 Attention: Robert H. Niehaus Telecopy No.: (212) 703-6503 with a copy to: Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 Attention: John R. Ettinger, Esq. Telecopy No.: (212) 450-4800 If to BTNY: Bankers Trust New York Corporation 130 Liberty Street New York, NY 10006 Attention: Joseph T. Wood Telecopy No.: (212) 250-7651 with a copy to: White & Case 1155 Avenue of the Americas New York, NY 10036 Attention: Eric L. Berg, Esq. Telecopy No.: (212) 354-8113 If to First Plaza: General Motors Investment Management Corporation 767 Fifth Avenue New York, NY 10153 Attention: James K. Kelliher Telecopy No.: (212) 418-3651 with a copy to: Kirkland & Ellis 55 East 52nd Street New York, NY 10055 Attention: Frederick Tanne, Esq. Telecopy No.: (212) 838-4223 If a notice is sent to any of the above, a copy shall be sent to: Winthrop, Stimson, Putnam & Roberts Financial Centre 695 East Main Street P.O. Box 6760 Stamford, CT 06904-6760 Attention: Frode Jensen, III, Esq. Telecopy No.: (203) 965-8226 Notice shall be deemed given, for all purposes, (i) if given by mail as hereinabove provided or such overnight courier service, upon two (2) business days after deposit in the United States mail or with such overnight courier service, or (ii) when personally delivered to the person or persons named above, or sent by facsimile transmission or telex; provided, however, that any notice of change of address shall be effective only upon receipt. 5.5 Equitable Relief for Breach of Agreement. Without limiting the remedies available to any of the parties hereto, each of the parties hereto stipulates and agrees that damages at law will be an insufficient remedy in the event that any party violates the terms of this Agreement, and each of the parties hereto further agrees that each of the other parties hereto may apply for and have injunctive or other equitable relief in any court of competent jurisdiction to restrain the breach or threatened breach of, or otherwise specifically to enforce, the terms of this Agreement. 5.6 Entire Agreement; Amendments. This Agreement contains the entire understanding of the parties hereto with respect to the subject matter hereof. This Agreement may not be amended, modified or revoked in whole or in part except by written instrument executed together or in counterparts by the parties hereto. 5.7 Waiver. No waivers of any breach or other term or condition of this Agreement extended by any party hereto to any other party shall be construed as a waiver of any rights or remedies with respect to any subsequent breach or with respect to any other term or condition. 5.8 Headings. The headings and subheadings in this Agreement are inserted for convenience of reference only and are not to be considered in construction of the provisions hereof. 5.9 Unenforceable Provisions. The provisions of this Agreement shall be applied and interpreted in a manner consistent with each other so as to carry out the purposes and intent of the parties hereto, but if for any reason any provision hereof is determined to be unenforceable or invalid, such provision or such part thereof as may be unenforceable or invalid shall be deemed automatically amended to the extent necessary to make such provision or such part thereof valid and enforceable, and the remaining provisions shall remain in full force and effect. 5.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed an original, but all of which, taken together, shall constitute one and the same agreement. 5.11 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any principles of conflicts of law. 5.12 Effectiveness. This Agreement shall become effective on the later of the Closing Date and the date that this Agreement has been duly executed and delivered by all of the parties hereto. Notwithstanding the foregoing, the parties acknowledge that the operative provisions of this Agreement do not take effect until after the occurrence of the Initial Public Offering. IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date first written above. /s/ R. Philip Silver --------------------------------- Name: R. Philip Silver /s/ D. Greg Horrigan --------------------------------- Name: D. Greg Horrigan THE MORGAN STANLEY LEVERAGED EQUITY FUND II, L.P. By: Morgan Stanley Leveraged Equity Fund II, Inc. (General Partner) By: /s/ Robert H. Niehaus ------------------------------ Name: Robert H. Niehaus Title: Director BANKERS TRUST NEW YORK CORPORATION By: /s/ Joseph T. Wood ------------------------------ Name: Joseph T. Wood Title: Senior Vice President FIRST PLAZA GROUP TRUST By: Mellon Bank, N.A., Trustee (as directed by General Motors Investment Management Corporation) By: /s/ Judith A. Manion ------------------------------ Name: Judith A. Manion Title: Paralegal SILGAN HOLDINGS INC. By: /s/ R. Philip Silver ------------------------------- Name: R. Philip Silver Title: President [TEXT] EX-4 5 EXHIBIT 4 SILGAN HOLDINGS INC. 8-K Exhibit 4 AMENDED AND RESTATED MANAGEMENT SERVICES AGREEMENT This Amended and Restated Management Services Agreement (the "Agreement") is made as of this 21st day of December, 1993 by and between S&H INC., a Connecticut corporation ("S&H"), and SILGAN HOLDINGS INC., a Delaware corporation ("Holdings"). W I T N E S S E T H: WHEREAS, S&H and Holdings have entered into the Management Services Agreement dated June 30, 1989, as amended by Amendment No. 1 thereto dated July 13, 1990 and Amendment No. 2 thereto dated as of June 29, 1992 (as amended by Amendment No. 1 and Amendment No. 2, the "Management Services Agreement"), pursuant to which S&H provides general management, supervision, administrative and other services to Holdings in accordance with the terms of the Management Services Agreement; WHEREAS, simultaneously herewith, R. Philip Silver ("Silver"), D. Greg Horrigan ("Horrigan"), The Morgan Stanley Leveraged Equity Fund II, L.P. ("MS Equity"), Bankers Trust New York Corporation, First Plaza Group Trust and Holdings are entering into an Amended and Restated Organization Agreement (the "Organization Agreement") providing for, among other things, the terms governing the relationship among the parties for the term thereof and the amendment and restatement of the Management Services Agreement; and WHEREAS, S&H and Holdings desire to amend and restate hereby such Management Services Agreement. NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein, S&H and Holdings agree as follows: 1. Management Services. (a) S&H and Holdings hereby agree that, during the period beginning on the Closing Date (as defined in the Organization Agreement) and continuing throughout the term hereof, S&H and its Affiliates shall provide to Holdings general management, supervision and administrative services, including, without limitation, the preparation of the annual and long-term business plans of Holdings, and perform such other duties and provide such other services as Holdings shall be permitted to request of S&H pursuant to the Restated Certificate of Incorporation or By-Laws of Holdings or pursuant to applicable law, which power and authority Holdings hereby grants to S&H ("General Management Services"). (The General Management Services are hereinafter collectively referred to as the "Services" and individually as a "Service"). (b) Any Service hereunder shall be provided to Holdings only by S&H or its Affiliates or such consultants, subcontractors or agents as may be selected from time to time by S&H. It is understood and agreed that S&H shall retain the services of Morgan Stanley & Co. Incorporated as financial advisor to Holdings. 2. Fees; Payment. (a) In consideration for General Management Services provided by S&H to Holdings hereunder, Holdings shall pay to S&H aggregate fees or compensation therefor (not including any related out-of-pocket expenses), (i) on a monthly basis, five thousand dollars ($5,000) plus an amount equal to 2.475% of EBDIT (as defined in Paragraph 2(j) hereof) for such calendar month of Holdings until EBDIT for the calendar year to date has reached the Scheduled Amount for such calendar year (as defined in Paragraph 2(e) hereof) and 1.65% of EBDIT for such calendar month of Holdings to the extent that EBDIT for the calendar year to date exceeds the Scheduled Amount but is not greater than the Maximum Amount (as defined in Paragraph 2(e) hereof) (the "Monthly Management Fee"); and (ii) on a quarterly basis, an amount equal to 2.475% of EBDIT for such calendar quarter of Holdings until EBDIT for the calendar year to date has reached the Scheduled Amount, and 1.65% of EBDIT for such calendar quarter of Holdings to the extent that EBDIT for the calendar year to date exceeds the Scheduled Amount but is not greater than the Maximum Amount (the "Quarterly Management Fee"). (b) Such Quarterly Management Fee shall continue to accrue, but shall not be paid, to S&H by Holdings in the event that, and from the date on which, Silgan Corporation, a wholly owned subsidiary of Holdings ("Silgan"), shall have received written notice ("Notice") from the Agent (as defined below) that an Event of Default (as such term is defined in the Credit Agreement, dated as of December 21, 1993, among Silgan, Silgan Containers Corporation ("Containers"), Silgan Plastics Corporation ("Plastics"), the financial institutions parties thereto, Bankers Trust Company, as Agent (the "Agent"), and Bank of America National Trust and Savings Association, as Co- Agent, as amended, supplemented or modified from time to time (the "Credit Agreement")) exists under any of Sections 9.01, 9.03 (but only to the extent resulting from the violation of one or more of Sections 8.08, 8.09, 8.10, and 8.11 of the Credit Agreement), 9.04(i)(x), 9.04(ii) or 9.05 of the Credit Agreement (each of the foregoing Events of Default, a "Financial Covenant Event of Default") until, and shall be paid by Holdings to S&H on, the earliest to occur of (x) the first date after receipt of such Notice upon which no Financial Covenant Event of Default to which the Notice related or otherwise known to S&H or Holdings, shall be in existence (and so long as no such Financial Covenant Event of Default would be in existence after giving effect to the payment of such unpaid portion of the Quarterly Management Fee), (y) the first date occurring 180 days or more after receipt by Silgan of a notice stating that no Event of Default exists under Section 9.01 of the Credit Agreement, or (z) the date that Silgan, Containers, Plastics and California-Washington Can Corporation, a wholly owned subsidiary of Containers, shall have paid all outstanding Obligations (as such term is defined under the Credit Agreement). In the event that a Notice is delivered by the Agent, Holdings shall pay to S&H that portion of any unpaid Quarterly Management Fee that has accrued with respect to that portion of such calendar quarter prior to the occurrence of any Financial Covenant Event of Default to which such Notice relates. (c) Nothing contained in Paragraph 2(b) shall prevent the Agent from giving successive Notices of the type described in Paragraph 2(b) (in which case the rules set forth in Paragraph 2(b) shall apply to, and the time periods set forth therein shall begin to run on, the date of such subsequent Notice); provided that only one Notice relating to a single Financial Covenant Event of Default and all other Financial Covenant Events of Default in existence at the date of the giving of any such Notice may be given. Notwithstanding anything to the contrary stated herein, if at any time after the giving of Notice by the Agent to Silgan, S&H shall certify to Holdings that all Financial Covenant Events of Default to which such Notice relates have been cured or waived, and that S&H knows of no other Financial Covenant Event of Default then in existence, then Holdings shall, unless it knows of the existence of a Financial Covenant Event of Default which has not yet been cured or waived, pay to S&H any accrued and unpaid Quarterly Management Fee or portion thereof in the manner set forth in Paragraph 2(h) hereof. S&H shall not be required to deliver any such certification to Holdings upon the occurrence of the dates or events set forth in clauses (y) or (z) of Paragraph 2(b), and promptly after the occurrence of such date or event, Holdings will pay to S&H any accrued and unpaid Quarterly Management Fee or portion thereof. (d) In addition to the management fees payable pursuant to Paragraph 2(a) hereof, Holdings shall pay to S&H on the closing date of the IPO (as defined in the Organization Agreement) an amount, if any (the "Additional Amount"), equal to the sum of the present values, calculated for each year or portion thereof, of (i) the amount of the annual management fee for such year or portion thereof that otherwise would have been payable to S&H for each such year or portion thereof for the period beginning as of the time of the IPO and ending on June 30, 1999 (the "Remaining Term") pursuant to Paragraph 2(a) hereof but for the occurrence of the IPO, minus (ii) the amount payable to S&H for the Remaining Term at the rate of $2.0 million per year. S&H may elect to have up to two-thirds (but no more than two-thirds) of the Additional Amount paid to S&H in cash with the balance of the Additional Amount being paid in fully-vested shares of common stock of Holdings, valued for the purposes of such payment at the public offering price per share in the IPO. The amounts described in clause (i) of this Paragraph 2(d) will be calculated based upon S&H's good faith projections of Holdings' EBDIT for each such year (or portion thereof) during the Remaining Term (the "Estimated Fees"), which projections shall be made on a basis consistent with S&H's past projections. The difference between the amount of Estimated Fees for any particular year and $2 million shall be discounted to present value at the time of the IPO using a discount rate of eight percent (8%) per annum, compounded annually. (e) For any given year during the term of this Agreement, the Scheduled Amount and the Maximum Amount for such year will be the amounts set forth in Schedule I hereto. (f) In addition to the fees referred to in Paragraphs 2(a) and 2(d), Holdings shall also reimburse S&H in an amount equal to all out-of- pocket expenses paid by S&H in providing the Services hereunder including fees and expenses paid to consultants, subcontractors and other third parties, in connection with such services. Such expenses shall be paid by Holdings to S&H on a monthly basis. (g) (i) Not later than fifteen (15) days after the end of each calendar month during the term hereof with respect to the Monthly Management Fee and (ii) not later than thirty (30) days after the end of each full calendar quarter during the term hereof with respect to the Quarterly Management Fee, S&H shall furnish Holdings with a bill for an amount equal to the Monthly Management Fee and the Quarterly Management Fee, respectively, then owing with respect to periods ended on or before the end of such calendar month or such calendar quarter. (h) Each bill furnished to Holdings hereunder shall be paid in full within thirty (30) days of the receipt of such bill, except that any accrued and unpaid Quarterly Management Fee or portion thereof shall be paid on the earliest date on which such payment is permitted to be made pursuant to Paragraphs 2(a), 2(b) and 2(c) hereof. All payments of such bills shall be sent to: S&H Inc. 4 Landmark Square Suite 301 Stamford, CT 06901 Attention: R. Philip Silver or to such other address as S&H may specify from time to time by written notice to Holdings. (i) All fees and expenses paid to S&H by Silgan, Containers and Plastics, pursuant to their respective Amended and Restated Management Services Agreements with S&H, each dated as of the date hereof (collectively, the "Subsidiary Agreements"), shall be credited to the fees and expenses referred to in Paragraphs 2(a), 2(d) and 2(f) hereof. (j) For purposes of this Section 2, EBDIT shall mean, for any period, the consolidated net income of Holdings and its subsidiaries, before interest expense and provision for income taxes and without giving effect to any extraordinary non-cash gains or extraordinary non-cash losses and any adjustments resulting from changes in the value of employee stock options and/or stock appreciation rights, and adjusted by adding thereto (i) the amount of any fees and expenses paid pursuant to this Agreement or the Subsidiary Agreements, (ii) the amount of all charges and expenses incurred in connection with the Refinancing (as defined in Amendment No. 5 to Holdings' Registration Statement on Form S-1, dated June 23, 1992, relating to Holdings' Senior Discount Debentures due 2002 (Commission File No. 33- 47632))(which charges and expenses have been charged against the consolidated net income of Holdings or its subsidiaries), and (iii) the amount of all amortization of intangibles, covenants not to compete, goodwill and debt financing costs and all depreciation (which amortization and depreciation have been charged against the consolidated net income of Holdings and its subsidiaries, before interest expense), computed in accordance with generally accepted accounting principles. 3. Direct Expenses. It is understood that the consideration to be paid by Holdings to S&H for Services hereunder shall not be in lieu of, and that Holdings shall be directly liable for, direct expenses incurred by Holdings, or by S&H on Holdings' behalf (other than the out-of-pocket expenses billed to Holdings by S&H pursuant to Paragraph 2(f) hereof), for services rendered to Holdings by third parties, including, but not limited to, legal and accounting fees and insurance premiums. Holdings shall pay any compensation (including employee benefit costs and any related out-of-pocket expenses) to officers and other employees of Holdings who provide substantially full-time services to Holdings, other than Silver and Horrigan who shall receive no salaries, notwithstanding that said officers and other employees may simultaneously be officers or employees of S&H or one of its subsidiaries or Affiliates. 4. Term. (a) The term of this Agreement shall commence on the date hereof and shall continue until the earliest of: (i) the completion of an IPO; (ii) June 30, 1999; (iii) at the option of Holdings, the occurrence of an Event of Default pursuant to Paragraph 5(a) hereof; (iv) at MS Equity's option, the occurrence of any Event of Default other than an Event of Default pursuant to Paragraph 5(a) hereof; or (v) a Change of Control (as defined in the Restated Certificate of Incorporation of Holdings in effect from time to time) shall take place. The Monthly Management Fee and the Quarterly Management Fee will cease to accrue on the date this Agreement is terminated pursuant to this Paragraph 4(a). (b) If any default specified in Paragraphs 5(b)-(f) hereof occurs or exists with respect to Holdings as a result of an Event of Force Majeure (as such term is defined in Paragraph 7 hereof) this Agreement shall continue in full force and effect except that S&H shall be entitled only to the Monthly Management Fee. 5. Events of Default. Any one of the following defaults shall constitute an Event of Default (other than by reason of an Event of Force Majeure in the case of each of Paragraphs 5(a)-(f)): (a) The failure or refusal of S&H to comply with or perform its obligations under this Agreement if such failure or refusal continues unremedied for more than sixty (60) days after written notice of the existence of such failure or refusal shall have been given to the failing or refusing party by any of the parties; (b) S&H or Holdings is declared insolvent or bankrupt by any court of competent jurisdiction, or a voluntary petition in bankruptcy is filed in any court of competent jurisdiction by either of them; (c) An involuntary petition in bankruptcy is filed in any court of competent jurisdiction against S&H or Holdings and within forty-five (45) days thereafter shall not have been dismissed or stayed (and, in the event of any such stay, such stay shall not have been set aside and the petition dismissed within forty-five (45) days after the stay shall have been granted); (d) A trustee or receiver is appointed for S&H or Holdings and remains undischarged for more than forty-five (45) days after being appointed; (e) A proceeding seeking a reorganization, arrangement, liquidation or dissolution of S&H or Holdings is instituted in a court of competent jurisdiction and remains undismissed for more than forty-five (45) days after being instituted; (f) S&H or Holdings voluntarily seeks any such reorganization or arrangement or makes an assignment for the benefit of creditors; or (g) Death or permanent disability of both Horrigan and Silver. For the purposes of this Agreement, "permanent disability" shall mean the inability of Horrigan or Silver, as the case may be, by reason of illness or injury to perform substantially all of his duties as Chairman of the Board or as President of Holdings (or in performing his duties in any other office in Holdings or any of its respective Affiliates to which he may be duly appointed) during any continuous period of one hundred eighty (180) days. 6. Limitation of Liability; Indemnification. (a) S&H and its Affiliates shall not be liable to Holdings, to any director, officer, stockholder, consultant or subcontractor of Holdings, or to any person or entity controlling Holdings or any such stockholder, consultant or subcontractor of Holdings, for any cost, damage, expense or loss, including without limitation any special, indirect, consequential or punitive damages, of Holdings or any such officer, director, stockholder, consultant, subcontractor or controlling person or entity, allegedly arising out of (i) S&H's and/or its Affiliates' failure to perform any services for Holdings hereunder or the misperformance of any such service, or (ii) Holdings' or such officer's, director's, stockholder's, consultant's, subcontractor's or controlling person's or entity's reliance on any advice or data S&H and its Affiliates may provide to Holdings pursuant to this Agreement. (b) Holdings shall indemnify S&H and each of its Affiliates, officers, directors, employees, consultants and subcontractors, and any Person or entity controlling S&H and each of its Affiliates or any such consultant or subcontractor and shall hold S&H and each of its Affiliates and each such officer, director, employee, consultant, subcontractor and controlling person or entity, harmless against any damage, loss, cost or expense (including court costs and reasonable attorneys' fees which S&H and its Affiliates or any such officer, director, employee, consultant, subcontractor or controlling Person or entity, may sustain or incur by reason of any claim, demand, suit or recovery by any Person or entity arising in connection with this Agreement or out of S&H's or its Affiliates', or any consultant's or subcontractor's, performance of S&H's obligations under this Agreement); provided, however, that no officer of S&H may benefit from the foregoing indemnity in the event of his serious criminal conduct or in the event that the Required Majority (as defined in the Restated Certificate of Incorporation of Holdings) of the Board of Directors of Holdings so decides, with MS Equity agreeing to cause the Class B Directors (as defined in the Restated Certificate of Incorporation) to vote in accordance with the Class A Directors (as defined in the Restated Certificate of Incorporation) on such matter. (c) Nothing contained in this Section shall limit or affect Holdings' rights to submit any matter to arbitration as set forth herein. (d) The manner of any indemnification under this Agreement shall be in accordance with Section 9.1 of the Organization Agreement. (e) No salaried officer or employee of S&H shall have any liability to MS Equity or any Affiliate or Associate thereof arising in connection with this Agreement nor will such entities make any claim seeking damages arising out of such individual's performance as an officer or employee of Holdings, except for performance which could constitute serious criminal conduct or, in the case of an officer or employee of Holdings, as otherwise approved by the Required Majority of the Board of Directors of Holdings, with MS Equity agreeing to cause the Class B Directors to vote in accordance with the Class A Directors on such matter. 7. Force Majeure. The term "Event of Force Majeure" as used herein shall mean any failure of a party to perform any of its obligations hereunder if such failure is due to circumstances beyond its control, including but not limited to, any requisition by any government authority, act of war, strike, boycott, lockout, picketing, riot, sabotage, civil commotion, insurrection, epidemic, disease, act of God, fire, flood, accident, explosion, earthquake, storm, failure of public utilities or common carriers, mechanical failure, embargo, or prohibition imposed by any governmental body or agency having authority over the party, which would have constituted an Event of Default but for the fact that such events constituted an Event of Force Majeure. The party affected by an Event of Force Majeure shall give prompt notice thereof to the other parties hereto and each party shall use its best efforts to minimize the duration and consequences of, and to eliminate, any such Event of Force Majeure. At such time as an Event of Force Majeure no longer exists, the respective obligations of the parties hereto shall be reinstated and this Agreement shall continue in full force and effect. 8. Insurance. S&H agrees that for the term of this Agreement it shall cause Holdings to obtain and maintain insurance for such risks and in such amounts similar to companies of comparable size which are engaged in similar business activities, provided that if Holdings maintains a level of insurance which complies with the applicable terms of the Credit Agreement, S&H shall be deemed to be in compliance with the provisions of this paragraph. 9. Definitions. Terms not defined herein which are defined in the Organization Agreement shall have the meanings ascribed to them therein. 10. Notices. All notices and other communications required by or specifically provided for in this Agreement shall be in writing and shall be deemed to have been given (a) when delivered in person, (b) when sent by telex or telecopier with answerback received, or (c) seventy-two (72) hours after having been deposited in the U.S. mails, certified mail with return receipt requested and postage prepaid, and in any case addressed to the party for which it is intended at that party's address as set forth below, or at such other address as the addressee shall have designated by notice hereunder to the other party. If to S&H: S&H Inc. 4 Landmark Square Suite 301 Stamford, CT 06901 Attention: R. Philip Silver If to Holdings: Silgan Holdings Inc. 4 Landmark Square Suite 301 Stamford, CT 06901 Attention: R. Philip Silver If a notice is sent to any of the above, a copy shall be sent to each of the following: Winthrop, Stimson, Putnam & Roberts Financial Centre 695 East Main Street P.O. Box 6760 Stamford, CT 06904-6760 Attention: Frode Jensen, III, Esq. The Morgan Stanley Leveraged Equity Fund II, L.P. Morgan Stanley Leveraged Equity Fund II, Inc., General Partner 1251 Avenue of the Americas New York, NY 10020 Attention: Robert H. Niehaus Davis Polk & Wardwell 450 Lexington Avenue New York, New York 10017 Attention: John R. Ettinger, Esq. Any notice or request sent by telecopier or similar facsimile telecommunication shall be confirmed promptly by the sending of a copy of such notice or request to the addressee thereof by prepaid certified mail, return receipt requested. 11. Amendment; Assignment; Binding Effect. This Agreement may be amended or modified only by a written instrument signed by the parties hereto. No party shall assign or transfer this Agreement, in whole or in part, or any of such party's rights or obligations hereunder, to any other person or entity without the prior written consent of the other parties, except that S&H may transfer or assign all of its rights and obligations hereunder to any entity directly or indirectly succeeding to S&H by merger, consolidation or reorganization. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted assigns. 12. Waiver; Severability. The failure of a party to insist in any instance upon the strict and punctual performance of any provision of this Agreement shall not constitute a continuing waiver of such provision. No party shall be deemed to have waived any right, power, or privilege under this Agreement or any provisions hereof unless such waiver shall have been in writing and duly executed by the party to be charged with such waiver, and such waiver shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights of the waiving party or the obligations of any other party in any other respect or at any other time. If any provision of this Agreement shall be waived, or be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unaffected thereby and shall remain binding and in full force and effect. 13. Relationship of the Parties. In all matters relating to this Agreement, each party hereto shall be solely responsible for the acts of its employees, and employees of one party shall not be considered employees of the other party. Except as otherwise provided herein, no party shall have any right, or authority to create any obligation, express or implied, on behalf of any other party. 14. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to its conflict of laws rules and laws. 15. Entire Agreement. This Agreement, the Organization Agreement and the agreements and documents executed and delivered with respect thereto, constitute the entire Agreement between the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements and understandings, either oral or written, with respect thereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first above written. S&H INC. By: /s/ R. Philip Silver --------------------------------- Title: Chairman and Chief Executive Officer SILGAN HOLDINGS INC. By: /s/ R. Philip Silver -------------------------------- Title: President Accepted and Agreed to: THE MORGAN STANLEY LEVERAGED EQUITY FUND II, L.P. By: MORGAN STANLEY LEVERAGED EQUITY FUND II, INC. (General Partner) By: /s/ Robert H. Niehaus ------------------------------- Name: Robert H. Niehaus Title: Director SCHEDULE I (000's omitted) Scheduled Amount Maximum Amount ---------------- -------------- 1993 $ 65,500 1993 N/A 1994 71,500 1994 $ 90,197 1995 77,500 1995 95,758 1996 83,500 1996 98,101 1997 89,500 1997 100,504 1998 95,500 1998 102,964 1999 101,500 1999 105,488 EX-5 6 EXHIBIT 5 SILGAN HOLDINGS INC. 8-K Exhibit 5 AMENDED AND RESTATED MANAGEMENT SERVICES AGREEMENT This Amended and Restated Management Services Agreement (the "Agreement") is made as of this 21st day of December, 1993 by and between S&H INC., a Connecticut corporation ("S&H"), and SILGAN CORPORATION, a Delaware corporation ("Silgan"). W I T N E S S E T H: WHEREAS, S&H and Silgan have entered into the Management Services Agreement dated June 30, 1989, as amended by Amendment No. 1 thereto dated July 13, 1990 and Amendment No. 2 thereto dated as of June 29, 1992 (as amended by Amendment No. 1 and Amendment No. 2, the "Original Management Services Agreement"), pursuant to which S&H provides general management, supervision, administrative and other services to Silgan in accordance with the terms of the Original Management Services Agreement; WHEREAS, R. Philip Silver ("Silver"), D. Greg Horrigan ("Horrigan"), The Morgan Stanley Leveraged Equity Fund II, L.P. ("MS Equity"), Bankers Trust New York Corporation, First Plaza Group Trust and Silgan Holdings Inc. ("Holdings") are entering into an Amended and Restated Organization Agreement dated as of the date hereof (the "Organization Agreement") providing for, among other things, the terms governing the relationship among the parties for the term thereof and the amendment and restatement of the management services agreement between S&H and Holdings dated June 30, 1989, as amended by Amendment No. 1 thereto dated July 13, 1990 and Amendment No. 2 thereto dated as of June 29, 1992; WHEREAS, S&H also is a party to a management services agreement dated June 30, 1989, as amended by Amendment No. 1 thereto dated July 13, 1990 and Amendment No. 2 thereto dated as of June 29, 1992 with each of Silgan Containers Corporation, a wholly owned subsidiary of Silgan ("Containers"), and Silgan Plastics Corporation, a wholly owned subsidiary of Silgan ("Plastics"); WHEREAS, S&H and each of Holdings, Containers and Plastics are entering into an amended and restated management services agreement dated as of the date hereof (collectively, as so amended and restated, the "Affiliate Management Services Agreements"); and WHEREAS, S&H and Silgan desire to amend and restate hereby the Original Management Services Agreement in order to make certain changes in light of the terms of the Affiliate Management Services Agreements. NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein, S&H and Silgan agree as follows: 1. Management Services. (a) S&H and Silgan hereby agree that, during the period beginning on the Closing Date (as defined in the Organization Agreement) and continuing throughout the term hereof, S&H and its Affiliates shall provide to Silgan general management, supervision and administrative services, including, without limitation, the preparation of the annual and long-term business plans, and perform such other duties and provide such other services as Silgan shall be permitted to request of S&H pursuant to the Restated Certificate of Incorporation or By-Laws of Holdings or pursuant to applicable law, which power and authority Silgan hereby grants to S&H ("General Management Services"). (The General Management Services are hereinafter collectively referred to as the "Services" and individually as a "Service"). (b) Any Service hereunder shall be provided to Silgan only by S&H or its Affiliates or such consultants, subcontractors or agents as may be selected from time to time by S&H. It is understood and agreed that S&H shall retain the services of Morgan Stanley & Co. Incorporated as financial advisor to Silgan. 2. Fees; Payment. (a) In consideration for General Management Services provided by S&H to Silgan hereunder, Silgan shall pay to S&H aggregate fees or compensation therefor (not including any related out-of-pocket expenses), (i) on a monthly basis, five thousand dollars ($5,000) plus an amount equal to 2.475% of EBDIT (as defined in Paragraph 2(j) hereof) for such calendar month until EBDIT for the calendar year to date has reached the Scheduled Amount for such calendar year (as defined in Paragraph 2(e) hereof) and 1.65% of EBDIT for such calendar month to the extent that EBDIT for the calendar year to date exceeds the Scheduled Amount but is not greater than the Maximum Amount (as defined in Paragraph 2(e) hereof), (the "Monthly Management Fee"); and (ii) on a quarterly basis an amount equal to 2.475% of EBDIT for such calendar quarter until EBDIT for the calendar year to date has reached the Scheduled Amount, and l.65% of EBDIT for such calendar quarter to the extent that EBDIT for the calendar year to date exceeds the Scheduled Amount but is not greater than the Maximum Amount (the "Quarterly Management Fee"). (b) Such Quarterly Management Fee shall continue to accrue, but shall not be paid, to S&H by Silgan in the event that, and from the date on which, Silgan shall have received written notice ("Notice") from the Agent (as defined below) that an Event of Default (as such term is defined in the Credit Agreement, dated as of December 21, 1993, among Silgan, Containers, Plastics, the financial institutions parties thereto, Bankers Trust Company, as Agent (the "Agent"), and Bank of America National Trust and Savings Association, as Co-Agent, as amended, supplemented or modified from time to time (the "Credit Agreement")) exists under any of Sections 9.01, 9.03 (but only to the extent resulting from the violation of one or more of Sections 8.08, 8.09, 8.10, and 8.11 of the Credit Agreement), 9.04(i)(x), 9.04(ii) or 9.05 of the Credit Agreement (each of the foregoing Events of Default, a "Financial Covenant Event of Default") until, and shall be paid by Silgan to S&H on, the earliest to occur of (x) the first date after receipt of such Notice upon which no Financial Covenant Event of Default to which the Notice related or otherwise known to S&H or Silgan, shall be in existence (and so long as no such Financial Covenant Event of Default would be in existence after giving effect to the payment of such unpaid portion of the Quarterly Management Fee), (y) the first date occurring 180 days or more after receipt by Silgan of a notice stating that no Event of Default exists under Section 9.01 of the Credit Agreement, or (z) the date that Silgan, Containers, Plastics and California-Washington Can Corporation, a wholly owned subsidiary of Containers, shall have paid all outstanding Obligations (as such term is defined under the Credit Agreement). In the event that a Notice is delivered by the Agent, Silgan shall pay to S&H that portion of any unpaid Quarterly Management Fee that has accrued with respect to that portion of such calendar quarter prior to the occurrence of any Financial Covenant Event of Default to which such Notice relates. (c) Nothing contained in Paragraph 2(b) shall prevent the Agent from giving successive Notices of the type described in Paragraph 2(b) (in which case the rules set forth in Paragraph 2(b) shall apply to, and the time periods set forth therein shall begin to run on, the date of such subsequent Notice), provided that only one Notice relating to a single Financial Covenant Event of Default and all other Financial Covenant Events of Default in existence at the date of the giving of any such Notice may be given. Notwithstanding anything to the contrary stated herein, if at any time after the giving of Notice by the Agent to Silgan, S&H shall certify to Silgan that all Financial Covenant Events of Default to which such Notice relates have been cured or waived, and that S&H knows of no other Financial Covenant Event of Default then in existence, then Silgan shall, unless it knows of the existence of a Financial Covenant Event of Default which has not yet been cured or waived, pay to S&H any accrued and unpaid Quarterly Management Fee or portion thereof in the manner set forth in Paragraph 2(h) hereof. S&H shall not be required to deliver any such certification to Silgan upon the occurrence of the dates or events set forth in clauses (y) or (z) of Paragraph 2(b), and promptly after the occurrence of such date or event, Silgan will pay to S&H any accrued and unpaid Quarterly Management Fee or portion thereof. (d) In addition to the management fees payable pursuant to Paragraph 2(a) hereof, Silgan shall pay to S&H on the closing date of the IPO (as defined in the Organization Agreement) an amount, if any (the "Additional Amount"), equal to the sum of the present values, calculated for each year or portion thereof, of (i) the amount of the annual management fee for such year or portion thereof that otherwise would have been payable to S&H for each such year or portion thereof for the period beginning as of the time of the IPO and ending on June 30, 1999 (the "Remaining Term") pursuant to Paragraph 2(a) hereof but for the occurrence of the IPO, minus (ii) the amount payable to S&H for the Remaining Term at the rate of $2.0 million per year. S&H may elect to have up to two-thirds (but no more than two-thirds) of the Additional Amount paid to S&H in cash with the balance of the Additional Amount being paid in fully-vested shares of common stock of Holdings, valued for the purposes of such payment at the public offering price per share in the IPO. The amounts described in clause (i) of this Paragraph 2(d) will be calculated based upon S&H's good faith projections of Holdings' EBDIT for each such year (or portion thereof) during the Remaining Term (the "Estimated Fees"), which projections shall be made on a basis consistent with S&H's past projections. The difference between the amount of Estimated Fees for any particular year and $2 million shall be discounted to present value at the time of the IPO using a discount rate of eight percent (8%) per annum, compounded annually. (e) For any given year during the term of this Agreement, the Scheduled Amount and the Maximum Amount for such year will be the amounts set forth in Schedule I hereto. (f) In addition to the fees referred to in Paragraphs 2(a) and 2(d), Silgan shall also reimburse S&H in an amount equal to all out-of- pocket expenses paid by S&H in providing the Services hereunder, including fees and expenses paid to consultants, subcontractors and other third parties, in connection with such Services. Such expenses shall be paid by Silgan to S&H on a monthly basis. (g) (i) Not later than fifteen (15) days after the end of each calendar month during the term hereof with respect to the Monthly Management Fee and (ii) not later than thirty (30) days after the end of each full calendar quarter during the term hereof with respect to the Quarterly Management Fee, S&H shall furnish Silgan with a bill for an amount equal to the Monthly Management Fee and the Quarterly Management Fee, respectively, then owing with respect to periods ended on or before the end of such calendar month or such calendar quarter. (h) Each bill furnished to Silgan hereunder shall be paid in full within thirty (30) days of the receipt of such bill, except that any accrued and unpaid Quarterly Management Fee or portion thereof shall be paid on the earliest date on which such payment is permitted to be made pursuant to Paragraphs 2(a), 2(b) and 2(c) hereof. All payments of such bills shall be sent to: S&H Inc. 4 Landmark Square Suite 301 Stamford, CT 06901 Attention: R. Philip Silver or to such other address as S&H may specify from time to time by written notice to Silgan. (i) All fees and expenses paid to S&H by Holdings, Containers and Plastics, pursuant to their respective Affiliate Management Services Agreements with S&H, shall be credited to the fees and expenses referred to in Paragraphs 2(a), 2(d) and 2(f) hereof. (j) For purposes of this Section 2, EBDIT shall mean, for any period, the consolidated net income of Holdings and its subsidiaries, before interest expense and provision for income taxes and without giving effect to any extraordinary non-cash gains or extraordinary non-cash losses and any adjustments resulting from changes in the value of employee stock options and/or stock appreciation rights, and adjusted by adding thereto (i) the amount of any fees and expenses paid pursuant to this Agreement or the Affiliate Management Services Agreements, (ii) the amount of all charges and expenses incurred in connection with the Refinancing (as defined in Amendment No. 5 to Holdings' Registration Statement on Form S-1, dated June 23, 1992, relating to Holdings' Senior Discount Debentures due 2002 (Commission File No. 33-47632)) (which charges and expenses have been charged against the consolidated net income of Holdings or its subsidiaries), and (iii) the amount of all amortization of intangibles, covenants not to compete, goodwill and debt financing costs and all depreciation (which amortization and depreciation have been charged against the consolidated net income of Holdings and its subsidiaries, before interest expense), computed in accordance with generally accepted accounting principles. 3. Direct Expenses. It is understood that the consideration to be paid by Silgan to S&H for Services hereunder shall not be in lieu of, and that Silgan shall be directly liable for, direct expenses incurred by Silgan, or by S&H on Silgan's behalf (other than the out-of-pocket expenses billed to Silgan by S&H pursuant to Paragraph 2(f) hereof), for services rendered to Silgan by third parties, including, but not limited to, legal and accounting fees and insurance premiums. Silgan shall pay any compensation (including employee benefit costs and any related out-of-pocket expenses) to officers and other employees of Silgan who provide substantially full-time services to Silgan other than Silver and Horrigan who shall receive no salaries, notwithstanding that said officers and other employees may simultaneously be officers or employees of S&H or one of its subsidiaries or Affiliates. 4. Term. (a) The term of this Agreement shall commence on the date hereof and shall continue until the earliest of: (i) the completion of an IPO; (ii) June 30, 1999; (iii) at the option of Silgan, the occurrence of an Event of Default pursuant to Paragraph 5(a) hereof; (iv) at MS Equity's option, the occurrence of any Event of Default other than an Event of Default pursuant to Paragraph 5(a) hereof; or (v) a Change of Control (as defined in the Restated Certificate of Incorporation of Holdings in effect from time to time) shall take place. The Monthly Management Fee and the Quarterly Management Fee will cease to accrue on the date this Agreement is terminated pursuant to this Paragraph 4(a). (b) If any default specified in Paragraphs 5(b)-(f) hereof occurs or exists with respect to Holdings as a result of an Event of Force Majeure (as such term is defined in Paragraph 7 hereof), this Agreement shall continue in full force and effect except that S&H shall be entitled only to the Monthly Management Fee. 5. Events of Default. Any one of the following defaults shall constitute an Event of Default (other than by reason of an Event of Force Majeure in the case of each of Paragraphs 5(a)-(f)): (a) The failure or refusal of S&H to comply with or perform its obligations under this Agreement if such failure or refusal continues unremedied for more than sixty (60) days after written notice of the existence of such failure or refusal shall have been given to the failing or refusing party by any of the parties; (b) S&H or Holdings is declared insolvent or bankrupt by any court of competent jurisdiction, or a voluntary petition in bankruptcy is filed in any court of competent jurisdiction by either of them; (c) An involuntary petition in bankruptcy is filed in any court of competent jurisdiction against S&H or Holdings and within forty-five (45) days thereafter shall not have been dismissed or stayed (and, in the event of any such stay, such stay shall not have been set aside and the petition dismissed within forty-five (45) days after the stay shall have been granted); (d) A trustee or receiver is appointed for S&H or Holdings and remains undischarged for more than forty-five (45) days after being appointed; (e) A proceeding seeking a reorganization, arrangement, liquidation or dissolution of S&H or Holdings is instituted in a court of competent jurisdiction and remains undismissed for more than forty-five (45) days after being instituted; (f) S&H or Holdings voluntarily seeks any such reorganization or arrangement or makes an assignment for the benefit of creditors; or (g) Death or permanent disability of both Horrigan and Silver. For the purposes of this Agreement, "permanent disability" shall mean the inability of Horrigan or Silver, as the case may be, by reason of illness or injury to perform substantially all of his duties as Chairman of the Board or as President of Holdings (or in performing his duties in any other office in Holdings or any of its respective Affiliates to which he may be duly appointed) during any continuous period of one hundred eighty (180) days. 6. Limitation of Liability; Indemnification. (a) S&H and its Affiliates shall not be liable to Silgan, to any director, officer, stockholder, consultant or subcontractor of Silgan, or to any person or entity controlling Silgan or any such stockholder, consultant or subcontractor of Silgan, for any cost, damage, expense or loss, including without limitation any special, indirect, consequential or punitive damages, of Silgan or any such officer, director, stockholder, consultant, subcontractor or controlling person or entity, allegedly arising out of (i) S&H's and/or its Affiliates' failure to perform any services for Silgan hereunder or the misperformance of any such service, or (ii) Silgan's or such officer's, director's, stockholder's, consultant's, subcontractor's or controlling person's or entity's reliance on any advice or data S&H and its Affiliates may provide to Silgan pursuant to this Agreement. (b) Silgan shall indemnify S&H and each of its Affiliates, officers, directors, employees, consultants and subcontractors, and any Person or entity controlling S&H and each of its Affiliates or any such consultant or subcontractor and shall hold S&H and each of its Affiliates and each such officer, director, employee, consultant, subcontractor and controlling Person or entity, harmless against any damage, loss, cost or expense (including court costs and reasonable attorneys' fees which S&H and its Affiliates or any such officer, director, employee, consultant, subcontractor or controlling Person or entity, may sustain or incur by reason of any claim, demand, suit or recovery by any Person or entity arising in connection with this Agreement or out of S&H's or its Affiliates', or any consultant's or subcontractor's, performance of S&H's obligations under this Agreement), provided, however, that no officer of S&H may benefit from the foregoing indemnity in the event of his serious criminal conduct or in the event that the Required Majority (as defined in the Restated Certificate of Incorporation of Holdings) of the Board of Directors of Holdings so decides, with MS Equity agreeing to cause the Class B Directors (as defined in the Restated Certificate of Incorporation of Holdings) to vote in accordance with the Class A Directors (as defined in the Restated Certificate of Incorporation of Holdings) on such matter. (c) Nothing contained in this Section shall limit or affect Silgan's rights to submit any matter to arbitration. (d) The manner of any indemnification under this Agreement shall be in accordance with Section 9.1 of the Organization Agreement. (e) No salaried officer or employee of S&H shall have any liability to MS Equity or any Affiliate or Associate thereof arising in connection with this Agreement nor will such entities make any claim seeking damages arising out of such individual's performance as an officer or employee of Holdings, except for performance which could constitute serious criminal conduct or, in the case of an officer or employee of Holdings, as otherwise approved by the Required Majority of the Board of Directors of Holdings, with MS Equity agreeing to cause the Class B Directors to vote in accordance with the Class A Directors on such matter. 7. Force Majeure. The term "Event of Force Majeure" as used herein shall mean any failure of a party to perform any of its obligations hereunder if such failure is due to circumstances beyond its control, including but not limited to, any requisition by any government authority, act of war, strike, boycott, lockout, picketing, riot, sabotage, civil commotion, insurrection, epidemic, disease, act of God, fire, flood, accident, explosion, earthquake, storm, failure of public utilities or common carriers, mechanical failure, embargo, or prohibition imposed by any governmental body or agency having authority over the party, which would have constituted an Event of Default but for the fact that such events constituted an Event of Force Majeure. The party affected by an Event of Force Majeure shall give prompt notice thereof to the other parties hereto and each party shall use its best efforts to minimize the duration and consequences of, and to eliminate, any such Event of Force Majeure. At such time as an Event of Force Majeure no longer exists, the respective obligations of the parties hereto shall be reinstated and this Agreement shall continue in full force and effect. 8. Insurance. S&H agrees that for the term of this Agreement it shall cause Silgan to obtain and maintain insurance for such risks and in such amounts similar to companies of comparable size which are engaged in similar business activities, provided, that if Silgan maintains a level of insurance which complies with the applicable terms of the Credit Agreement, S&H shall be deemed to be in compliance with the provisions of this paragraph. 9. Definitions. Terms not defined herein which are defined in the Organization Agreement shall have the meanings ascribed to them therein. 10. Notices. All notices and other communications required by or specifically provided for in this Agreement shall be in writing and shall be deemed to have been given (a) when delivered in person, (b) when sent by telex or telecopier with answerback received, or (c) seventy-two (72) hours after having been deposited in the U.S. mails, certified mail with return receipt requested and postage prepaid, and in any case addressed to the party for which it is intended at that party's address as set forth below, or at such other address as the addressee shall have designated by notice hereunder to the other party. If to S&H: S&H Inc. 4 Landmark Square Suite 301 Stamford, CT 06901 Attention: R. Philip Silver If to Silgan: Silgan Corporation 4 Landmark Square Suite 301 Stamford, CT 06901 Attention: R. Philip Silver If a notice is sent to any of the above, a copy shall be sent to each of the following: Winthrop, Stimson, Putnam & Roberts Financial Centre 695 East Main Street P.O. Box 6760 Stamford, CT 06904-6760 Attention: Frode Jensen, III, Esq. The Morgan Stanley Leveraged Equity Fund II, L.P. Morgan Stanley Leveraged Equity Fund II, Inc., General Partner 1251 Avenue of the Americas New York, NY 10020 Attention: Robert H. Niehaus Davis Polk & Wardwell 450 Lexington Avenue New York, New York 10017 Attention: John R. Ettinger, Esq. Any notice or request sent by telecopier or similar facsimile telecommunication shall be confirmed promptly by the sending of a copy of such notice or request to the addressee thereof by prepaid certified mail, return receipt requested. 11. Amendment; Assignment; Binding Effect. This Agreement may be amended or modified only by a written instrument signed by the parties hereto. No party shall assign or transfer this Agreement, in whole or in part, or any of such party's rights or obligations hereunder, to any other person or entity without the prior written consent of the other parties, except that S&H may transfer or assign all of its rights and obligations hereunder to any entity directly or indirectly succeeding to S&H by merger, consolidation or reorganization. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted assigns. 12. Waiver; Severability. The failure of a party to insist in any instance upon the strict and punctual performance of any provision of this Agreement shall not constitute a continuing waiver of such provision. No party shall be deemed to have waived any right, power, or privilege under this Agreement or any provisions hereof unless such waiver shall have been in writing and duly executed by the party to be charged with such waiver, and such waiver shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights of the waiving party or the obligations of any other party in any other respect or at any other time. If any provision of this Agreement shall be waived, or be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unaffected thereby and shall remain binding and in full force and effect. 13. Relationship of the Parties. In all matters relating to this Agreement, each party hereto shall be solely responsible for the acts of its employees, and employees of one party shall not be considered employees of the other party. Except as otherwise provided herein, no party shall have any right, or authority to create any obligation, express or implied, on behalf of any other party. 14. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to its conflict of laws rules and laws. 15. Entire Agreement; Termination of Original Management Services Agreement. This Agreement, the Organization Agreement and the agreements and documents executed and delivered with respect thereto constitute the entire Agreement between the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements and understandings, either oral or written, with respect thereto. Upon the execution and delivery of this Agreement, the Original Management Services Agreement shall be terminated and shall be of no effect whatsoever. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. S&H INC. By: /s/ D. Greg Horrigan --------------------------------- Title: President SILGAN CORPORATION By: /s/ Harley Rankin, Jr. --------------------------------- Title: Executive Vice President and Chief Financial Officer Accepted and Agreed to: THE MORGAN STANLEY LEVERAGED EQUITY FUND II, L.P. By: MORGAN STANLEY LEVERAGED EQUITY FUND II, INC. (General Partner) By: /s/ Robert H. Niehaus --------------------------- Name: Robert H. Niehaus Title: Director SCHEDULE I (000's Omitted) Scheduled Amount Maximum Amount ----------------- --------------- 1993 $ 65,500 1993 N/A 1994 71,500 1994 $ 90,197 1995 77,500 1995 95,758 1996 83,500 1996 98,101 1997 89,500 1997 100,504 1998 95,500 1998 102,964 1999 101,500 1999 105,488 EX-6 7 EXHIBIT 6 SILGAN HOLDINGS INC. 8-K Exhibit 6 AMENDED AND RESTATED MANAGEMENT SERVICES AGREEMENT This Amended and Restated Management Services Agreement (the "Agreement") is made as of this 21st day of December, 1993 by and between S&H INC., a Connecticut corporation ("S&H"), and SILGAN CONTAINERS CORPORATION, a Delaware corporation ("Containers"). W I T N E S S E T H: WHEREAS, S&H and Containers have entered into the Management Services Agreement dated June 30, 1989, as amended by Amendment No. 1 thereto dated July 13, 1990 and Amendment No. 2 thereto dated as of June 29, 1992 (as amended by Amendment No. 1 and Amendment No. 2, the "Original Management Services Agreement"), pursuant to which S&H provides general management, supervision, administrative and other services to Containers in accordance with the terms of the Original Management Services Agreement; WHEREAS, R. Philip Silver ("Silver"), D. Greg Horrigan ("Horrigan"), The Morgan Stanley Leveraged Equity Fund II, L.P. ("MS Equity"), Bankers Trust New York Corporation, First Plaza Group Trust and Silgan Holdings Inc. ("Holdings") are entering into an Amended and Restated Organization Agreement dated as of the date hereof (the "Organization Agreement") providing for, among other things, the terms governing the relationship among the parties for the term thereof and the amendment and restatement of the management services agreement between S&H and Holdings dated June 30, 1989, as amended by Amendment No. 1 thereto dated July 13, 1990 and Amendment No. 2 thereto dated as of June 29, 1992; WHEREAS, S&H also is a party to a management services agreement dated June 30, 1989, as amended by Amendment No. 1 thereto dated July 13, 1990 and Amendment No. 2 thereto dated as of June 29, 1992 with each of Silgan Corporation, the parent holding company of Containers ("Silgan"), and Silgan Plastics Corporation, a wholly owned subsidiary of Silgan ("Plastics"); WHEREAS, S&H and each of Holdings, Silgan and Plastics are entering into an amended and restated management services agreement dated as of the date hereof (collectively, as so amended and restated, the "Affiliate Management Services Agreements"); and WHEREAS, S&H and Containers desire to amend and restate hereby the Original Management Services Agreement in order to make certain changes in light of the terms of the Affiliate Management Services Agreements. NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein, S&H and Containers agree as follows: 1. Management Services. (a) S&H and Containers hereby agree that, during the period beginning on the Closing Date (as defined in the Organization Agreement) and continuing throughout the term hereof, S&H and its Affiliates shall provide to Containers general management, supervision and administrative services, including, without limitation, the preparation of the annual and long-term business plans, and perform such other duties and provide such other services as Containers shall be permitted to request of S&H pursuant to the Restated Certificate of Incorporation or By-Laws of Holdings or pursuant to applicable law, which power and authority Containers hereby grants to S&H ("General Management Services"). (The General Management Services are hereinafter collectively referred to as the "Services" and individually as a "Service"). (b) Any Service hereunder shall be provided to Containers only by S&H or its Affiliates or such consultants, subcontractors or agents as may be selected from time to time by S&H. It is understood and agreed that S&H shall retain the services of Morgan Stanley & Co. Incorporated as financial advisor to Containers. 2. Fees; Payment. (a) In consideration for General Management Services provided by S&H to Containers hereunder, Containers shall pay to S&H aggregate fees or compensation therefor (not including any related out-of-pocket expenses), (i) on a monthly basis, Containers' Proportionate Percentage (as defined below) of five thousand dollars ($5,000) plus an amount equal to 2.475% of EBDIT (as defined in Paragraph 2(j) hereof) for such calendar month until EBDIT for the calendar year to date has reached the Scheduled Amount for such calendar year (as defined in Paragraph 2(e) hereof) and 1.65% of EBDIT for such calendar month to the extent that EBDIT for the calendar year to date exceeds the Scheduled Amount but is not greater than the Maximum Amount (as defined in Paragraph 2(e) hereof) (the "Monthly Management Fee"); and (ii) on a quarterly basis, an amount equal to Containers' Proportionate Percentage of 2.475% of EBDIT for such calendar quarter until EBDIT for the calendar year to date has reached the Scheduled Amount, and 1.65% of EBDIT for such calendar quarter to the extent that EBDIT for the calendar year to date exceeds the Scheduled Amount but is not greater than the Maximum Amount (the "Quarterly Management Fee"). For purposes of this Paragraph 2, "Proportionate Percentage" means such percentage of EBDIT for a given period that is attributable to the results of Containers for such period. (b) Such Quarterly Management Fee shall continue to accrue, but shall not be paid, to S&H by Containers in the event that, and from the date on which, Containers or Silgan shall have received written notice ("Notice") from the Agent (as defined below) that an Event of Default (as such term is defined in the Credit Agreement, dated as of December 21, 1993, among Silgan, Containers, Plastics, the financial institutions parties thereto, Bankers Trust Company, as Agent (the "Agent"), and Bank of America National Trust and Savings Association, as Co-Agent, as amended, supplemented or modified from time to time (the "Credit Agreement")) exists under any of Sections 9.01, 9.03 (but only to the extent resulting from the violation of one or more of Sections 8.08, 8.09, 8.10, and 8.11 of the Credit Agreement), 9.04(i)(x), 9.04(ii) or 9.05 of the Credit Agreement (each of the foregoing Events of Default, a "Financial Covenant Event of Default") until, and shall be paid by Containers to S&H on, the earliest to occur of (x) the first date after receipt of such Notice upon which no Financial Covenant Event of Default to which the Notice related or otherwise known to S&H or Silgan, shall be in existence (and so long as no such Financial Covenant Event of Default would be in existence after giving effect to the payment of such unpaid portion of the Quarterly Management Fee), (y) the first date occurring 180 days or more after receipt by Silgan of a notice stating that no Event of Default exists under Section 9.01 of the Credit Agreement, or (z) the date that Silgan, Containers, Plastics and California-Washington Can Corporation, a wholly owned subsidiary of Containers, shall have paid all outstanding Obligations (as such term is defined under the Credit Agreement). In the event that a Notice is delivered by the Agent, Containers shall pay to S&H that portion of any unpaid Quarterly Management Fee that has accrued with respect to that portion of such calendar quarter prior to the occurrence of any Financial Covenant Event of Default to which such Notice relates. (c) Nothing contained in Paragraph 2(b) shall prevent the Agent from giving successive Notices of the type described in Paragraph 2(b) (in which case the rules set forth in Paragraph 2(b) shall apply to, and the time periods set forth therein shall begin to run on, the date of such subsequent Notice); provided that only one Notice relating to a single Financial Covenant Event of Default and all other Financial Covenant Events of Default in existence at the date of the giving of any such Notice may be given. Notwithstanding anything to the contrary stated herein, if at any time after the giving of Notice by the Agent to Silgan, S&H shall certify to Silgan that all Financial Covenant Events of Default to which such Notice relates have been cured or waived, and that S&H knows of no other Financial Covenant Event of Default then in existence, then Containers shall, unless it knows of the existence of a Financial Covenant Event of Default which has not yet been cured or waived, pay to S&H any accrued and unpaid Quarterly Management Fee or portion thereof in the manner set forth in Paragraph 2(h) hereof. S&H shall not be required to deliver any such certification to Silgan upon the occurrence of the dates or events set forth in clauses (y) or (z) of Paragraph 2(b), and promptly after the occurrence of such date or event, Containers will pay to S&H any accrued and unpaid Quarterly Management Fee or portion thereof. (d) In addition to the management fees payable pursuant to Paragraph 2(a) hereof, Containers shall pay to S&H on the closing date of the IPO (as defined in the Organization Agreement) an amount, if any (the "Additional Amount"), equal to the sum of the present values, calculated for each year or portion thereof, of (i) the amount of the annual management fee for such year or portion thereof that otherwise would have been payable to S&H for each such year or portion thereof for the period beginning as of the time of the IPO and ending on June 30, 1999 (the "Remaining Term") pursuant to Paragraph 2(a) hereof but for the occurrence of the IPO, minus (ii) Containers' Average Proportionate Percentage (as defined below) of the amount payable to S&H for the Remaining Term at the rate of $2.0 million per year. S&H may elect to have up to two-thirds (but no more than two-thirds) of the Additional Amount paid to S&H in cash with the balance of the Additional Amount being paid in fully-vested shares of common stock of Holdings, valued for the purposes of such payment at the public offering price per share in the IPO. The amounts described in clause (i) of this Paragraph 2(d) will be calculated based upon S&H's good faith projections of both Holdings' EBDIT and Containers' Proportionate Percentage for each such year (or portion thereof) during the Remaining Term (the "Estimated Containers Fees"), which projections shall be made on a basis consistent with S&H's past projections. The difference between the amount of the Estimated Containers Fees for any particular year and $2 million shall be discounted to present value at the time of the IPO using a discount rate of eight percent (8%) per annum, compounded annually. For purposes of this Paragraph 2(d), "Average Proportionate Percentage" shall mean a weighted average of the percentage of EBDIT for each year or portion thereof during the Remaining Term that would be attributable to the results of Containers for each such year or portion thereof, as calculated based upon S&H's good faith projections which shall be made on a basis consistent with S&H's past projections. (e) For any given year during the term of this Agreement, the Scheduled Amount and the Maximum Amount for such year will be the amounts set forth in Schedule I hereto. (f) In addition to the fees referred to in Paragraphs 2(a) and 2(d), Containers shall also reimburse S&H in an amount equal to all out- of-pocket expenses paid by S&H in providing the Services hereunder, including fees and expenses paid to consultants, subcontractors and other third parties, in connection with such Services. Such expenses shall be paid by Containers to S&H on a monthly basis. (g) (i) Not later than fifteen (15) days after the end of each calendar month during the term hereof with respect to the Monthly Management Fee and (ii) not later than thirty (30) days after the end of each full calendar quarter during the term hereof with respect to the Quarterly Management Fee, S&H shall furnish Containers with a bill for an amount equal to the Monthly Management Fee and the Quarterly Management Fee, respectively, then owing with respect to periods ended on or before the end of such calendar month or such calendar quarter. (h) Each bill furnished to Containers hereunder shall be paid in full within thirty (30) days of the receipt of such bill, except that any accrued and unpaid Quarterly Management Fee or portion thereof shall be paid on the earliest date on which such payment is permitted to be made pursuant to Paragraphs 2(a), 2(b) and 2(c) hereof. All payments of such bills shall be sent to: S&H Inc. 4 Landmark Square Suite 301 Stamford, CT 06901 Attention: R. Philip Silver or to such other address as S&H may specify from time to time by written notice to Containers. (i) All fees and expenses paid to S&H by Holdings and Silgan, pursuant to their respective Affiliate Management Services Agreements with S&H, shall be credited to the fees and expenses referred to in Paragraphs 2(a), 2(d) and 2(f) hereof. (j) For purposes of this Section 2, EBDIT shall mean, for any period, the consolidated net income of Holdings and its subsidiaries, before interest expense and provision for income taxes and without giving effect to any extraordinary non-cash gains or extraordinary non-cash losses and any adjustments resulting from changes in the value of employee stock options and/or stock appreciation rights, and adjusted by adding thereto (i) the amount of any fees and expenses paid pursuant to this Agreement or the Affiliate Management Services Agreements, (ii) the amount of all charges and expenses incurred in connection with the Refinancing (as defined in Amendment No. 5 to Holdings' Registration Statement on Form S-1, dated June 23, 1992, relating to Holdings' Senior Discount Debentures due 2002 (Commission File No. 33-47632)) (which charges and expenses have been charged against the consolidated net income of Holdings or its subsidiaries), and (iii) the amount of all amortization of intangibles, covenants not to compete, goodwill and debt financing costs and all depreciation (which amortization and depreciation have been charged against the consolidated net income of Holdings and its subsidiaries, before interest expense), computed in accordance with generally accepted accounting principles. 3. Direct Expenses. It is understood that the consideration to be paid by Containers to S&H for Services hereunder shall not be in lieu of, and that Containers shall be directly liable for, direct expenses incurred by Containers, or by S&H on Containers' behalf (other than the out-of-pocket expenses billed to Containers by S&H pursuant to Paragraph 2(f) hereof), for services rendered to Containers by third parties, including, but not limited to, legal and accounting fees and insurance premiums. Containers shall pay any compensation (including employee benefit costs and any related out-of-pocket expenses) to officers and other employees of Containers who provide substantially full-time services to Containers, other than Silver and Horrigan who shall receive no salaries, notwithstanding that said officers and other employees may simultaneously be officers or employees of S&H or one of its subsidiaries or Affiliates. 4. Term. (a) The term of this Agreement shall commence on the date hereof and shall continue until the earliest of: (i) the completion of an IPO; (ii) June 30, 1999; (iii) at the option of Containers, the occurrence of an Event of Default pursuant to Paragraph 5(a) hereof; (iv) at MS Equity's option, the occurrence of any Event of Default other than an Event of Default pursuant to Paragraph 5(a) hereof; or (v) a Change of Control (as defined in the Restated Certificate of Incorporation of Holdings in effect from time to time) shall take place. The Monthly Management Fee and the Quarterly Management Fee will cease to accrue on the date this Agreement is terminated pursuant to this Paragraph 4(a). (b) If any default specified in Paragraphs 5(b)-(f) hereof occurs or exists with respect to Holdings as a result of an Event of Force Majeure (as such term is defined in Paragraph 7 hereof), this Agreement shall continue in full force and effect except that S&H shall be entitled only to the Monthly Management Fee. 5. Events of Default. Any one of the following defaults shall constitute an Event of Default (other than by reason of an Event of Force Majeure in the case of each of Paragraphs 5(a)-(f)): (a) The failure or refusal of S&H to comply with or perform its obligations under this Agreement if such failure or refusal continues unremedied for more than sixty (60) days after written notice of the existence of such failure or refusal shall have been given to the failing or refusing party by any of the parties; (b) S&H or Holdings is declared insolvent or bankrupt by any court of competent jurisdiction, or a voluntary petition in bankruptcy is filed in any court of competent jurisdiction by either of them; (c) An involuntary petition in bankruptcy is filed in any court of competent jurisdiction against S&H or Holdings and within forty-five (45) days thereafter shall not have been dismissed or stayed (and, in the event of any such stay, such stay shall not have been set aside and the petition dismissed within forty-five (45) days after the stay shall have been granted); (d) A trustee or receiver is appointed for S&H or Holdings and remains undischarged for more than forty-five (45) days after being appointed; (e) A proceeding seeking a reorganization, arrangement, liquidation or dissolution of S&H or Holdings is instituted in a court of competent jurisdiction and remains undismissed for more than forty-five (45) days after being instituted; (f) S&H or Holdings voluntarily seeks any such reorganization or arrangement or makes an assignment for the benefit of creditors; or (g) Death or permanent disability of both Horrigan and Silver. For the purposes of this Agreement, "permanent disability" shall mean the inability of Horrigan or Silver, as the case may be, by reason of illness or injury to perform substantially all of his duties as Chairman of the Board or as President of Holdings (or in performing his duties in any other office in Holdings or any of its respective Affiliates to which he may be duly appointed) during any continuous period of one hundred eighty (180) days. 6. Limitation of Liability; Indemnification. (a) S&H and its Affiliates shall not be liable to Containers, to any director, officer, stockholder, consultant or subcontractor of Containers, or to any person or entity controlling Containers or any such stockholder, consultant or subcontractor of Containers, for any cost, damage, expense or loss, including without limitation any special, indirect, consequential or punitive damages, of Containers or any such officer, director, stockholder, consultant, subcontractor or controlling person or entity, allegedly arising out of (i) S&H's and/or its Affiliates' failure to perform any services for Containers hereunder or the misperformance of any such service, or (ii) Containers' or such officer's, director's, stockholder's, consultant's, subcontractor's or controlling person's or entity's reliance on any advice or data S&H and its Affiliates may provide to Containers pursuant to this Agreement. (b) Containers shall indemnify S&H and each of its Affiliates, officers, directors, employees, consultants and subcontractors, and any Person or entity controlling S&H and each of its Affiliates or any such consultant or subcontractor and shall hold S&H and each of its Affiliates and each such officer, director, employee, consultant, subcontractor and controlling Person or entity, harmless against any damage, loss, cost or expense (including court costs and reasonable attorneys' fees which S&H and its Affiliates or any such officer, director, employee, consultant, subcontractor or controlling Person or entity, may sustain or incur by reason of any claim, demand, suit or recovery by any Person or entity arising in connection with this Agreement or out of S&H's or its Affiliates', or any consultant's or subcontractor's, performance of S&H's obligations under this Agreement), provided, however, that no officer of S&H may benefit from the foregoing indemnity in the event of his serious criminal conduct or in the event that the Required Majority (as defined in the Restated Certificate of Incorporation of Holdings) of the Board of Directors of Holdings so decides, with MS Equity agreeing to cause the Class B Directors (as defined in the Restated Certificate of Incorporation of Holdings) to vote in accordance with the Class A Directors (as defined in the Restated Certificate of Incorporation of Holdings) on such matter. (c) Nothing contained in this Section shall limit or affect Containers' rights to submit any matter to arbitration. (d) The manner of any indemnification under this Agreement shall be in accordance with Section 9.1 of the Organization Agreement. (e) No salaried officer or employee of S&H shall have any liability to MS Equity or any Affiliate or Associate thereof arising in connection with this Agreement nor will such entities make any claim seeking damages arising out of such individual's performance as an officer or employee of Holdings, except for performance which could constitute serious criminal conduct or, in the case of an officer or employee of Holdings, as otherwise approved by the Required Majority of the Board of Directors of Holdings, with MS Equity agreeing to cause the Class B Directors to vote in accordance with the Class A Directors on such matter. 7. Force Majeure. The term "Event of Force Majeure" as used herein shall mean any failure of a party to perform any of its obligations hereunder if such failure is due to circumstances beyond its control, including but not limited to, any requisition by any government authority, act of war, strike, boycott, lockout, picketing, riot, sabotage, civil commotion, insurrection, epidemic, disease, act of God, fire, flood, accident, explosion, earthquake, storm, failure of public utilities or common carriers, mechanical failure, embargo, or prohibition imposed by any governmental body or agency having authority over the party, which would have constituted an Event of Default but for the fact that such events constituted an Event of Force Majeure. The party affected by an Event of Force Majeure shall give prompt notice thereof to the other parties hereto and each party shall use its best efforts to minimize the duration and consequences of, and to eliminate, any such Event of Force Majeure. At such time as an Event of Force Majeure no longer exists, the respective obligations of the parties hereto shall be reinstated and this Agreement shall continue in full force and effect. 8. Insurance. S&H agrees that for the term of this Agreement it shall cause Containers to obtain and maintain insurance for such risks and in such amounts similar to companies of comparable size which are engaged in similar business activities, provided that if Containers or Silgan maintains a level of insurance which complies with the applicable terms of the Credit Agreement, S&H shall be deemed to be in compliance with the provisions of this paragraph. 9. Definitions. Terms not defined herein which are defined in the Organization Agreement shall have the meanings ascribed to them therein. 10. Notices. All notices and other communications required by or specifically provided for in this Agreement shall be in writing and shall be deemed to have been given (a) when delivered in person, (b) when sent by telex or telecopier with answerback received, or (c) seventy-two (72) hours after having been deposited in the U.S. mails, certified mail with return receipt requested and postage prepaid, and in any case addressed to the party for which it is intended at that party's address as set forth below, or at such other address as the addressee shall have designated by notice hereunder to the other party. If to S&H: S&H Inc. 4 Landmark Square Suite 301 Stamford, CT 06901 Attention: R. Philip Silver If to Containers: Silgan Containers Corporation 21800 Oxnard Street Suite 600 Woodland Hills, CA 91367 Attention: James D. Beam If a notice is sent to any of the above, a copy shall be sent to each of the following: Winthrop, Stimson, Putnam & Roberts Financial Centre 695 East Main Street P.O. Box 6760 Stamford, CT 06904-6760 Attention: Frode Jensen, III, Esq. The Morgan Stanley Leveraged Equity Fund II, L.P. Morgan Stanley Leveraged Equity Fund II, Inc., General Partner 1251 Avenue of the Americas New York, NY 10020 Attention: Robert H. Niehaus Davis Polk & Wardwell 450 Lexington Avenue New York, New York 10017 Attention: John R. Ettinger, Esq. Any notice or request sent by telecopier or similar facsimile telecommunication shall be confirmed promptly by the sending of a copy of such notice or request to the addressee thereof by prepaid certified mail, return receipt requested. 11. Amendment; Assignment; Binding Effect. This Agreement may be amended or modified only by a written instrument signed by the parties hereto. No party shall assign or transfer this Agreement, in whole or in part, or any of such party's rights or obligations hereunder, to any other person or entity without the prior written consent of the other parties, except that S&H may transfer or assign all of its rights and obligations hereunder to any entity directly or indirectly succeeding to S&H by merger, consolidation or reorganization. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted assigns. 12. Waiver; Severability. The failure of a party to insist in any instance upon the strict and punctual performance of any provision of this Agreement shall not constitute a continuing waiver of such provision. No party shall be deemed to have waived any right, power, or privilege under this Agreement or any provisions hereof unless such waiver shall have been in writing and duly executed by the party to be charged with such waiver, and such waiver shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights of the waiving party or the obligations of any other party in any other respect or at any other time. If any provision of this Agreement shall be waived, or be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unaffected thereby and shall remain binding and in full force and effect. 13. Relationship of the Parties. In all matters relating to this Agreement, each party hereto shall be solely responsible for the acts of its employees, and employees of one party shall not be considered employees of the other party. Except as otherwise provided herein, no party shall have any right, or authority to create any obligation, express or implied, on behalf of any other party. 14. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to its conflict of laws rules and laws. 15. Entire Agreement; Termination of Original Management Services Agreement. This Agreement, the Organization Agreement and the agreements and documents executed and delivered with respect thereto, constitute the entire Agreement between the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements and understandings, either oral or written, with respect thereto. Upon the execution and delivery of this Agreement, the Original Management Services Agreement shall be terminated and shall be of no effect whatsoever. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. S&H INC. By: /s/ D. Greg Horrigan ----------------------------- Title: President SILGAN CONTAINERS CORPORATION By: /s/ Harley Rankin, Jr. ---------------------------- Title: Vice President Accepted and Agreed to: THE MORGAN STANLEY LEVERAGED EQUITY FUND II, L.P. By: MORGAN STANLEY LEVERAGED EQUITY FUND II, INC. (General Partner) By: /s/ Robert H. Niehaus -------------------------- Name: Robert H. Niehaus Title: Director SCHEDULE I (000's omitted) Scheduled Amount Maximum Amount ----------------- -------------- 1993 $ 65,500 1993 N/A 1994 71,500 1994 $ 90,197 1995 77,500 1995 95,758 1996 83,500 1996 98,101 1997 89,500 1997 100,504 1998 95,500 1998 102,964 1999 101,500 1999 105,488 EX-7 8 EXHIBIT 7 SILGAN HOLDINGS INC. 8-K Exhibit 7 AMENDED AND RESTATED MANAGEMENT SERVICES AGREEMENT This Amended and Restated Management Services Agreement (the "Agreement") is made as of this 21st day of December, 1993 by and between S&H INC., a Connecticut corporation ("S&H"), and SILGAN PLASTICS CORPORATION, a Delaware corporation ("Plastics"). W I T N E S S E T H: WHEREAS, S&H and Plastics have entered into the Management Services Agreement dated June 30, 1989, as amended by Amendment No. 1 thereto dated July 13, 1990 and Amendment No. 2 thereto dated as of June 29, 1992 (as amended by Amendment No. 1 and Amendment No. 2, the "Original Management Services Agreement"), pursuant to which S&H provides general management, supervision, administrative and other services to Plastics in accordance with the terms of the Original Management Services Agreement; WHEREAS, R. Philip Silver ("Silver"), D. Greg Horrigan ("Horrigan"), The Morgan Stanley Leveraged Equity Fund II, L.P. ("MS Equity"), Bankers Trust New York Corporation, First Plaza Group Trust and Silgan Holdings Inc. ("Holdings") are entering into an Amended and Restated Organization Agreement dated as of the date hereof (the "Organization Agreement") providing for, among other things, the terms governing the relationship among the parties for the term thereof and the amendment and restatement of the management services agreement between S&H and Holdings dated June 30, 1989, as amended by Amendment No. 1 thereto dated July 13, 1990 and Amendment No. 2 thereto dated as of June 29, 1992; WHEREAS, S&H also is a party to a management services agreement dated June 30, 1989, as amended by Amendment No. 1 thereto dated July 13, 1990 and Amendment No. 2 thereto dated as of June 29, 1992 with each of Silgan Corporation, the parent holding company of Plastics ("Silgan"), and Silgan Containers Corporation, a wholly owned subsidiary of Silgan ("Containers"); WHEREAS, S&H and each of Holdings, Silgan and Containers are entering into an amended and restated management services agreement dated as of the date hereof (collectively, as so amended and restated, the "Affiliate Management Services Agreements"); and WHEREAS, S&H and Plastics desire to amend and restate hereby the Original Management Services Agreement in order to make certain changes in light of the terms of the Affiliate Management Services Agreements. NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein, S&H and Plastics agree as follows: 1. Management Services. (a) S&H and Plastics hereby agree that, during the period beginning on the Closing Date (as defined in the Organization Agreement) and continuing throughout the term hereof, S&H and its Affiliates shall provide to Plastics general management, supervision and administrative services, including, without limitation, the preparation of the annual and long-term business plans, and perform such other duties and provide such other services as Plastics shall be permitted to request of S&H pursuant to the Restated Certificate of Incorporation or By-Laws of Holdings or pursuant to applicable law, which power and authority Plastics hereby grants to S&H ("General Management Services"). (The General Management Services are hereinafter collectively referred to as the "Services" and individually as a "Service"). (b) Any Service hereunder shall be provided to Plastics only by S&H or its Affiliates or such consultants, subcontractors or agents as may be selected from time to time by S&H. It is understood and agreed that S&H shall retain the services of Morgan Stanley & Co. Incorporated as financial advisor to Plastics. 2. Fees; Payment. (a) In consideration for General Management Services provided by S&H to Plastics hereunder, Plastics shall pay to S&H aggregate fees or compensation therefor (not including any related out-of-pocket expenses), (i) on a monthly basis, Plastics' Proportionate Percentage (as defined below) of five thousand dollars ($5,000) plus an amount equal to 2.475% of EBDIT (as defined in Paragraph 2(j) hereof) for such calendar month until EBDIT for the calendar year to date has reached the Scheduled Amount for such calendar year (as defined in Paragraph 2(e) hereof) and 1.65% of EBDIT for such calendar month to the extent that EBDIT for the calendar year to date exceeds the Scheduled Amount but is not greater than the Maximum Amount (as defined in Paragraph 2(e) hereof) (the "Monthly Management Fee"); and (ii) on a quarterly basis, an amount equal to Plastics' Proportionate Percentage of 2.475% of EBDIT for such calendar quarter until EBDIT for the calendar year to date has reached the Scheduled Amount and 1.65% of EBDIT for such calendar quarter to the extent that EBDIT for the calendar year to date exceeds the Scheduled Amount but is not greater than the Maximum Amount (the "Quarterly Management Fee"). For purposes of this Paragraph 2, "Proportionate Percentage" means such percentage of EBDIT for a given period that is attributable to the results of Plastics for such period. (b) Such Quarterly Management Fee shall continue to accrue, but shall not be paid, to S&H by Plastics in the event that, and from the date on which, Plastics or Silgan shall have received written notice ("Notice") from the Agent (as defined below) that an Event of Default (as such term is defined in the Credit Agreement, dated as of December 21, 1993, among Silgan, Containers, Plastics, the financial institutions parties thereto, Bankers Trust Company, as Agent (the "Agent"), and Bank of America National Trust and Savings Association, as Co-Agent, as amended, supplemented or modified from time to time (the "Credit Agreement")) exists under any of Sections 9.01, 9.03 (but only to the extent resulting from the violation of one or more of Sections 8.08, 8.09, 8.10, and 8.11 of the Credit Agreement), 9.04(i)(x), 9.04(ii) or 9.05 of the Credit Agreement (each of the foregoing Events of Default, a "Financial Covenant Event of Default") until, and shall be paid by Plastics to S&H on, the earliest to occur of (x) the first date after receipt of such Notice upon which no Financial Covenant Event of Default to which the Notice related or otherwise known to S&H or Silgan, shall be in existence (and so long as no such Financial Covenant Event of Default would be in existence after giving effect to the payment of such unpaid portion of the Quarterly Management Fee), (y) the first date occurring 180 days or more after receipt by Silgan of a notice stating that no Event of Default exists under Section 9.01 of the Credit Agreement, or (z) the date that Silgan, Containers, Plastics and California-Washington Can Corporation, a wholly owned subsidiary of Containers, shall have paid all outstanding Obligations (as such term is defined under the Credit Agreement). In the event that a Notice is delivered by the Agent, Plastics shall pay to S&H that portion of any unpaid Quarterly Management Fee that has accrued with respect to that portion of such calendar quarter prior to the occurrence of any Financial Covenant Event of Default to which such Notice relates. (c) Nothing contained in Paragraph 2(b) shall prevent the Agent from giving successive Notices of the type described in Paragraph 2(b) (in which case the rules set forth in Paragraph 2(b) shall apply to, and the time periods set forth therein shall begin to run on, the date of such subsequent Notice); provided that only one Notice relating to a single Financial Covenant Event of Default and all other Financial Covenant Events of Default in existence at the date of the giving of any such Notice may be given. Notwithstanding anything to the contrary stated herein, if at any time after the giving of Notice by the Agent to Silgan, S&H shall certify to Silgan that all Financial Covenant Events of Default to which such Notice relates have been cured or waived, and that S&H knows of no other Financial Covenant Event of Default then in existence, then Plastics shall, unless it knows of the existence of a Financial Covenant Event of Default which has not yet been cured or waived, pay to S&H any accrued and unpaid Quarterly Management Fee or portion thereof in the manner set forth in Paragraph 2(h) hereof. S&H shall not be required to deliver any such certification to Silgan upon the occurrence of the dates or events set forth in clauses (y) or (z) of Paragraph 2(b), and promptly after the occurrence of such date or event, Plastics will pay to S&H any accrued and unpaid Quarterly Management Fee or portion thereof. (d) In addition to the management fees payable pursuant to Paragraph 2(a) hereof, Plastics shall pay to S&H on the closing date of the IPO (as defined in the Organization Agreement) an amount, if any (the "Additional Amount"), equal to the sum of the present values, calculated for each year or portion thereof, of (i) the amount of the annual management fee for such year or portion thereof that otherwise would have been payable to S&H for each such year or portion thereof for the period beginning as of the time of the IPO and ending on June 30, 1999 (the "Remaining Term") pursuant to Paragraph 2(a) hereof but for the occurrence of the IPO, minus (ii) Plastics' Average Proportionate Percentage (as defined below) of the amount payable to S&H for the Remaining Term at the rate of $2.0 million per year. S&H may elect to have up to two-thirds (but no more than two-thirds) of the Additional Amount paid to S&H in cash with the balance of the Additional Amount being paid in fully-vested shares of common stock of Holdings, valued for the purposes of such payment at the public offering price per share in the IPO. The amounts described in clause (i) of this Paragraph 2(d) will be calculated based upon S&H's good faith projections of both Holdings' EBDIT and Plastics' Proportionate Percentage for each such year (or portion thereof) during the Remaining Term (the "Estimated Plastics Fees"), which projections shall be made on a basis consistent with S&H's past projections. The difference between the amount of the Estimated Plastics Fees for any particular year and Plastics' Average Proportionate Percentage of $2 million shall be discounted to present value at the time of the IPO using a discount rate of eight percent (8%) per annum, compounded annually. For purposes of this Paragraph 2(d), "Average Proportionate Percentage" shall mean a weighted average of the percentage of EBDIT for each year or portion thereof during the Remaining Term that would be attributable to the results of Plastics for each such year or portion thereof, as calculated based upon S&H's good faith projections which shall be made on a basis consistent with S&H's past projections. (e) For any given year during the term of this Agreement, the Scheduled Amount and the Maximum Amount for such year will be the amounts set forth in Schedule I hereto. (f) In addition to the fees referred to in Paragraphs 2(a) and 2(d), Plastics shall also reimburse S&H in an amount equal to all out-of- pocket expenses paid by S&H in providing the Services hereunder, including fees and expenses paid to consultants, subcontractors and other third parties, in connection with such Services. Such expenses shall be paid by Plastics to S&H on a monthly basis. (g) (i) Not later than fifteen (15) days after the end of each calendar month during the term hereof with respect to the Monthly Management Fee and (ii) not later than thirty (30) days after the end of each full calendar quarter during the term hereof with respect to the Quarterly Management Fee, S&H shall furnish Plastics with a bill for an amount equal to the Monthly Management Fee and the Quarterly Management Fee, respectively, then owing with respect to periods ended on or before the end of such calendar month or such calendar quarter. (h) Each bill furnished to Plastics hereunder shall be paid in full within thirty (30) days of the receipt of such bill, except that any accrued and unpaid Quarterly Management Fee or portion thereof shall be paid on the earliest date on which such payment is permitted to be made pursuant to Paragraphs 2(a), 2(b) and 2(c) hereof. All payments of such bills shall be sent to: S&H Inc. 4 Landmark Square Suite 301 Stamford, CT 06901 Attention: R. Philip Silver or to such other address as S&H may specify from time to time by written notice to Plastics. (i) All fees and expenses paid to S&H by Holdings and Silgan, pursuant to their respective Affiliate Management Services Agreements with S&H, shall be credited to the fees and expenses referred to in Paragraphs 2(a), 2(d) and 2(f) hereof. (j) For purposes of this Section 2, EBDIT shall mean, for any period, the consolidated net income of Holdings and its subsidiaries, before interest expense and provision for income taxes and without giving effect to any extraordinary non-cash gains or extraordinary non-cash losses and any adjustments resulting from changes in the value of employee stock options and/or stock appreciation rights, and adjusted by adding thereto (i) the amount of any fees and expenses paid pursuant to this Agreement or the Affiliate Management Services Agreements, (ii) the amount of all charges and expenses incurred in connection with the Refinancing (as defined in Amendment No. 5 to Holdings' Registration Statement on Form S-1, dated June 23, 1992, relating to Holdings' Senior Discount Debentures due 2002 (Commission File No. 33-47632)) (which charges and expenses have been charged against the consolidated net income of Holdings or its subsidiaries), and (iii) the amount of all amortization of intangibles, covenants not to compete, goodwill and debt financing costs and all depreciation (which amortization and depreciation have been charged against the consolidated net income of Holdings and its subsidiaries, before interest expense), computed in accordance with generally accepted accounting principles. 3. Direct Expenses. It is understood that the consideration to be paid by Plastics to S&H for Services hereunder shall not be in lieu of, and that Plastics shall be directly liable for, direct expenses incurred by Plastics, or by S&H on Plastics' behalf (other than the out-of-pocket expenses billed to Plastics by S&H pursuant to Paragraph 2(f) hereof), for services rendered to Plastics by third parties, including, but not limited to, legal and accounting fees and insurance premiums. Plastics shall pay any compensation (including employee benefit costs and any related out-of-pocket expenses) to officers and other employees of Plastics who provide substantially full-time services to Plastics, other than Silver and Horrigan who shall receive no salaries, notwithstanding that said officers and other employees may simultaneously be officers or employees of S&H or one of its subsidiaries or Affiliates. 4. Term. (a) The term of this Agreement shall commence on the date hereof and shall continue until the earliest of: (i) the completion of an IPO; (ii) June 30, 1999; (iii) at the option of Plastics, the occurrence of an Event of Default pursuant to Paragraph 5(a) hereof; (iv) at MS Equity's option, the occurrence of any Event of Default other than an Event of Default pursuant to Paragraph 5(a) hereof; or (v) a Change of Control (as defined in the Restated Certificate of Incorporation of Holdings in effect from time to time) shall take place. The Monthly Management Fee and the Quarterly Management Fee will cease to accrue on the date this Agreement is terminated pursuant to this Paragraph 4(a). (b) If any default specified in Paragraphs 5(b)-(f) hereof occurs or exists with respect to Holdings as a result of an Event of Force Majeure (as such term is defined in Paragraph 7 hereof), this Agreement shall continue in full force and effect except that S&H shall be entitled only to the Monthly Management Fee. 5. Events of Default. Any one of the following defaults shall constitute an Event of Default (other than by reason of an Event of Force Majeure in the case of each of Paragraphs 5(a)-(f)): (a) The failure or refusal of S&H to comply with or perform its obligations under this Agreement if such failure or refusal continues unremedied for more than sixty (60) days after written notice of the existence of such failure or refusal shall have been given to the failing or refusing party by any of the parties; (b) S&H or Holdings is declared insolvent or bankrupt by any court of competent jurisdiction, or a voluntary petition in bankruptcy is filed in any court of competent jurisdiction by either of them; (c) An involuntary petition in bankruptcy is filed in any court of competent jurisdiction against S&H or Holdings and within forty-five (45) days thereafter shall not have been dismissed or stayed (and, in the event of any such stay, such stay shall not have been set aside and the petition dismissed within forty-five (45) days after the stay shall have been granted); (d) A trustee or receiver is appointed for S&H or Holdings and remains undischarged for more than forty-five (45) days after being appointed; (e) A proceeding seeking a reorganization, arrangement, liquidation or dissolution of S&H or Holdings is instituted in a court of competent jurisdiction and remains undismissed for more than forty-five (45) days after being instituted; (f) S&H or Holdings voluntarily seeks any such reorganization or arrangement or makes an assignment for the benefit of creditors; or (g) Death or permanent disability of both Horrigan and Silver. For the purposes of this Agreement, "permanent disability" shall mean the inability of Horrigan or Silver, as the case may be, by reason of illness or injury to perform substantially all of his duties as Chairman of the Board or as President of Holdings (or in performing his duties in any other office in Holdings or any of its respective Affiliates to which he may be duly appointed) during any continuous period of one hundred eighty (180) days. 6. Limitation of Liability; Indemnification. (a) S&H and its Affiliates shall not be liable to Plastics, to any director, officer, stockholder, consultant or subcontractor of Plastics, or to any person or entity controlling Plastics or any such stockholder, consultant or subcontractor of Plastics, for any cost, damage, expense or loss, including without limitation any special, indirect, consequential or punitive damages, of Plastics or any such officer, director, stockholder, consultant, subcontractor or controlling person or entity, allegedly arising out of (i) S&H's and/or its Affiliates' failure to perform any services for Plastics hereunder or the misperformance of any such service, or (ii) Plastics' or such officer's, director's, stockholder's, consultant's, subcontractor's or controlling person's or entity's reliance on any advice or data S&H and its Affiliates may provide to Plastics pursuant to this Agreement. (b) Plastics shall indemnify S&H and each of its Affiliates, officers, directors, employees, consultants and subcontractors, and any Person or entity controlling S&H and each of its Affiliates or any such consultant or subcontractor and shall hold S&H and each of its Affiliates and each such officer, director, employee, consultant, subcontractor and controlling Person or entity, harmless against any damage, loss, cost or expense (including court costs and reasonable attorneys' fees which S&H and its Affiliates or any such officer, director, employee, consultant, subcontractor or controlling Person or entity, may sustain or incur by reason of any claim, demand, suit or recovery by any Person or entity arising in connection with this Agreement or out of S&H's or its Affiliates', or any consultant's or subcontractor's, performance of S&H's obligations under this Agreement), provided, however, that no officer of S&H may benefit from the foregoing indemnity in the event of his serious criminal conduct or in the event that the Required Majority (as defined in the Restated Certificate of Incorporation of Holdings) of the Board of Directors of Holdings so decides, with MS Equity agreeing to cause the Class B Directors (as defined in the Restated Certificate of Incorporation of Holdings) to vote in accordance with the Class A Directors (as defined in the Restated Certificate of Incorporation of Holdings) on such matter. (c) Nothing contained in this Section shall limit or affect Plastics' rights to submit any matter to arbitration. (d) The manner of any indemnification under this Agreement shall be in accordance with Section 9.1 of the Organization Agreement. (e) No salaried officer or employee of S&H shall have any liability to MS Equity or any Affiliate or Associate thereof arising in connection with this Agreement nor will such entities make any claim seeking damages arising out of such individual's performance as an officer or employee of Holdings, except for performance which could constitute serious criminal conduct or, in the case of an officer or employee of Holdings, as otherwise approved by the Required Majority of the Board of Directors of Holdings, with MS Equity agreeing to cause the Class B Directors to vote in accordance with the Class A Directors on such matter. 7. Force Majeure. The term "Event of Force Majeure" as used herein shall mean any failure of a party to perform any of its obligations hereunder if such failure is due to circumstances beyond its control, including but not limited to, any requisition by any government authority, act of war, strike, boycott, lockout, picketing, riot, sabotage, civil commotion, insurrection, epidemic, disease, act of God, fire, flood, accident, explosion, earthquake, storm, failure of public utilities or common carriers, mechanical failure, embargo, or prohibition imposed by any governmental body or agency having authority over the party, which would have constituted an Event of Default but for the fact that such events constituted an Event of Force Majeure. The party affected by an Event of Force Majeure shall give prompt notice thereof to the other parties hereto and each party shall use its best efforts to minimize the duration and consequences of, and to eliminate, any such Event of Force Majeure. At such time as an Event of Force Majeure no longer exists, the respective obligations of the parties hereto shall be reinstated and this Agreement shall continue in full force and effect. 8. Insurance. S&H agrees that for the term of this Agreement it shall cause Plastics to obtain and maintain insurance for such risks and in such amounts similar to companies of comparable size which are engaged in similar business activities, provided that if Plastics or Silgan maintains a level of insurance which complies with the applicable terms of the Credit Agreement, S&H shall be deemed to be in compliance with the provisions of this paragraph. 9. Definitions. Terms not defined herein which are defined in the Organization Agreement shall have the meanings ascribed to them therein. 10. Notices. All notices and other communications required by or specifically provided for in this Agreement shall be in writing and shall be deemed to have been given (a) when delivered in person, (b) when sent by telex or telecopier with answerback received, or (c) seventy-two (72) hours after having been deposited in the U.S. mails, certified mail with return receipt requested and postage prepaid, and in any case addressed to the party for which it is intended at that party's address as set forth below, or at such other address as the addressee shall have designated by notice hereunder to the other party. If to S&H: S&H Inc. 4 Landmark Square Suite 301 Stamford, CT 06901 Attention: R. Philip Silver If to Plastics: Silgan Plastics Corporation 16216 Baxter Road, Suite 300 P.O. Box 1080 Chesterfield, MO 63006 Attention: Russell F. Gervais If a notice is sent to any of the above, a copy shall be sent to each of the following: Winthrop, Stimson, Putnam & Roberts Financial Centre 695 East Main Street P.O. Box 6760 Stamford, CT 06904-6760 Attention: Frode Jensen, III, Esq. The Morgan Stanley Leveraged Equity Fund II, L.P. Morgan Stanley Leveraged Equity Fund II, Inc., General Partner 1251 Avenue of the Americas New York, NY 10020 Attention: Robert H. Niehaus Davis Polk & Wardwell 450 Lexington Avenue New York, New York 10017 Attention: John R. Ettinger, Esq. Any notice or request sent by telecopier or similar facsimile telecommunication shall be confirmed promptly by the sending of a copy of such notice or request to the addressee thereof by prepaid certified mail, return receipt requested. 11. Amendment; Assignment; Binding Effect. This Agreement may be amended or modified only by a written instrument signed by the parties hereto. No party shall assign or transfer this Agreement, in whole or in part, or any of such party's rights or obligations hereunder, to any other person or entity without the prior written consent of the other parties, except that S&H may transfer or assign all of its rights and obligations hereunder to any entity directly or indirectly succeeding to S&H by merger, consolidation or reorganization. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted assigns. 12. Waiver; Severability. The failure of a party to insist in any instance upon the strict and punctual performance of any provision of this Agreement shall not constitute a continuing waiver of such provision. No party shall be deemed to have waived any right, power, or privilege under this Agreement or any provisions hereof unless such waiver shall have been in writing and duly executed by the party to be charged with such waiver, and such waiver shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights of the waiving party or the obligations of any other party in any other respect or at any other time. If any provision of this Agreement shall be waived, or be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unaffected thereby and shall remain binding and in full force and effect. 13. Relationship of the Parties. In all matters relating to this Agreement, each party hereto shall be solely responsible for the acts of its employees, and employees of one party shall not be considered employees of the other party. Except as otherwise provided herein, no party shall have any right, or authority to create any obligation, express or implied, on behalf of any other party. 14. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to its conflict of laws rules and laws. 15. Entire Agreement; Termination of Original Management Services Agreement. This Agreement, the Organization Agreement and the agreements and documents executed and delivered with respect thereto, constitute the entire Agreement between the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements and understandings, either oral or written, with respect thereto. Upon the execution and delivery of this Agreement, the Original Management Services Agreement shall be terminated and shall be of no effect whatsoever. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. S&H INC. By: /s/ D. Greg Horrigan ------------------------------- Title: President SILGAN PLASTICS CORPORATION By: /s/ Harley Rankin, Jr. ------------------------------- Title: Vice President Accepted and Agreed to: THE MORGAN STANLEY LEVERAGED EQUITY FUND II, L.P. By: MORGAN STANLEY LEVERAGED EQUITY FUND II, INC. (General Partner) By: /s/ Robert H. Niehaus --------------------------- Name: Robert H. Niehaus Title: Director SCHEDULE I (000's omitted) Scheduled Amount Maximum Amount ----------------- -------------- 1993 $ 65,500 1993 N/A 1994 71,500 1994 $ 90,197 1995 77,500 1995 95,758 1996 83,500 1996 98,101 1997 89,500 1997 100,504 1998 95,500 1998 102,964 1999 101,500 1999 105,488 EX-8 9 EXHIBIT 8 SILGAN HOLDINGS INC. 8-K Exhibit 8 STOCK PURCHASE AGREEMENT DATED AS OF DECEMBER 21, 1993 BETWEEN SILGAN HOLDINGS INC. AND FIRST PLAZA GROUP TRUST TABLE OF CONTENTS Page 1. Purchase and Sale of Common Stock . . . . . . . . . . . . . . . . . 4 1.1 Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.2 Payment and Delivery . . . . . . . . . . . . . . . . . . . . . 5 1.3 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2. Representations and Warranties of the Company . . . . . . . . . . . 5 2.1 Corporate Organization and Authority . . . . . . . . . . . . . 5 2.2 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . 5 2.3 Authorization . . . . . . . . . . . . . . . . . . . . . . . . . 7 2.4 Validity of Shares . . . . . . . . . . . . . . . . . . . . . . 7 2.5 Subsidiary Stock . . . . . . . . . . . . . . . . . . . . . . . 7 2.6 Title to Shares . . . . . . . . . . . . . . . . . . . . . . . . 7 2.7 No Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2.8 Options, Warrants and Similar Rights . . . . . . . . . . . . . 8 2.9 Financial Statements . . . . . . . . . . . . . . . . . . . . . 8 2.10 Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 2.11 Tax Filings . . . . . . . . . . . . . . . . . . . . . . . . . . 9 2.12 Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 2.13 Properties . . . . . . . . . . . . . . . . . . . . . . . . . . 9 2.14 Compliance with Statutes; Environmental and Safety Laws . . . . 10 2.15 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . 11 2.16 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . 11 3. Representations and Warranties of the Investor . . . . . . . . . . . 12 3.1 Organization and Authority . . . . . . . . . . . . . . . . . . 12 3.2 Investment Intent . . . . . . . . . . . . . . . . . . . . . . . 12 3.3 Experience . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3.4 Risks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 3.5 Information . . . . . . . . . . . . . . . . . . . . . . . . . . 13 3.6 Domicile . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 3.7 Federal Securities Laws . . . . . . . . . . . . . . . . . . . . 13 3.8 State Securities Laws . . . . . . . . . . . . . . . . . . . . . 13 3.9 Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 3.10 Legend . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 3.11 Solicitation . . . . . . . . . . . . . . . . . . . . . . . . . 14 4. Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 4.1 Compliance with Agreements . . . . . . . . . . . . . . . . . . 14 4.2 Current Public Information . . . . . . . . . . . . . . . . . . 14 4.3 Public Disclosures . . . . . . . . . . . . . . . . . . . . . . 15 4.4 Repurchase of Shares . . . . . . . . . . . . . . . . . . . . . 15 5. Conditions of the Investor's Obligation at the Closing . . . . . . . 15 5.1 Representations and Warranties; Performance . . . . . . . . . . 15 5.2 Organization Agreement . . . . . . . . . . . . . . . . . . . . 15 5.3 Stockholders Agreement . . . . . . . . . . . . . . . . . . . . 15 5.4 Asset Purchase Agreement . . . . . . . . . . . . . . . . . . . 16 5.5 Supply Agreement . . . . . . . . . . . . . . . . . . . . . . . 16 5.6 Bank Agreement . . . . . . . . . . . . . . . . . . . . . . . . 16 5.7 Management Services Agreement . . . . . . . . . . . . . . . . . 16 5.8 Amendment of Certificate of Incorporation . . . . . . . . . . . 16 5.9 Opinion of the Company's Counsel . . . . . . . . . . . . . . . 16 5.10 Closing Documents . . . . . . . . . . . . . . . . . . . . . . . 16 5.11 Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . 17 5.12 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . 17 6. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 6.1 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 6.2 Indemnification and Contribution . . . . . . . . . . . . . . . 18 6.3 Governing Law; Jurisdiction; Venue . . . . . . . . . . . . . . 18 6.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 6.5 Severability . . . . . . . . . . . . . . . . . . . . . . . . . 19 6.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 19 6.7 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . 19 6.8 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 6.9 Successors and Assigns . . . . . . . . . . . . . . . . . . . . 19 6.10 Costs of Enforcement . . . . . . . . . . . . . . . . . . . . . 19 Exhibit A - Form of Organization Agreement Exhibit B - Form of Stockholders Agreement Exhibit C - Form of Bank Agreement Exhibit D - Form of Management Services Agreement Exhibit E - Form of Amended and Restated Certificate of Incorporation Exhibit F - Opinion of Winthrop, Stimson, Putnam & Roberts Exhibit G - Addresses for Notices STOCK PURCHASE AGREEMENT This Stock Purchase Agreement dated as of December 21, 1993 (the "Agreement") is entered into by and between Silgan Holdings Inc., a Delaware corporation (the "Company"), and First Plaza Group Trust, a New York Trust (the "Investor"). RECITALS A. Pursuant to a Purchase Agreement, dated as of September 3, 1993, as amended by the Amendment to Purchase Agreement dated as of December 10, 1993 (as amended, the "Asset Purchase Agreement"), between Silgan Containers Corporation, an indirect wholly-owned subsidiary of the Company ("SCC"), and Del Monte Corporation ("Del Monte"), SCC is purchasing certain of the U.S. can manufacturing assets of Del Monte (the "Del Monte Asset Acquisition"). B. The Investor desires to purchase from the Company 250,000 shares (the "Shares") of the Company's Class B Common Stock, par value $.01 per share (the "Class B Common Stock"). C. The Company is willing to sell the Shares to the Investor and the Investor is willing to purchase the Shares from the Company only on the terms and subject to the conditions contained in this Agreement, the Amended and Restated Organization Agreement of even date herewith among R. Philip Silver ("Silver"), D. Greg Horrigan ("Horrigan"), The Morgan Stanley Leveraged Equity Fund II, L.P. ("MS Equity"), Bankers Trust New York Corporation ("BT"), the Investor and the Company (the "Organization Agreement"), the Stockholders Agreement of even date herewith among Silver, Horrigan, MS Equity, BT, the Investor and the Company (the "Stockholders Agreement") and the agreements referred to herein and therein. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants and conditions herein contained, the Company and the Investor agree as follows: 1. Purchase and Sale of Common Stock. 1.1 Purchase. On the terms and subject to the conditions contained in this Agreement, the Company hereby agrees to issue and sell to the Investor, and the Investor hereby agrees to purchase from the Company, the Shares at a purchase price of $60.00 per share, for an aggregate purchase price of $15,000,000 (the "Purchase Price"). 1.2 Payment and Delivery. On or before the Closing Date (as defined in Section 1.3), the Investor will pay the Purchase Price to the Company. The Purchase Price shall be paid by the Investor by wire transfer in immediately available funds to the Company's account, No. 00-228-515, at Bankers Trust Company. On the Closing Date, the certificate(s) representing the Shares will be delivered to the Investor. 1.3 Closing. The closing of the transaction provided for in this Agreement (the "Closing") shall take place at the offices of White & Case, 1155 Avenue of the Americas, New York, New York at 9:00 a.m. New York time on December 21, 1993, or at such other date and time as is mutually acceptable to the parties hereto (the "Closing Date"). 2. Representations and Warranties of the Company. As an inducement to the Investor to purchase the Shares, the Company makes the following representations and warranties (which representations and warranties shall survive the Closing Date), and authorizes the Investor to rely upon the same: 2.1 Corporate Organization and Authority. The Company and each of its consolidated subsidiaries (the "Subsidiaries") (i) is a corporation duly organized, validly existing, authorized to exercise all its corporate powers, rights and privileges, and in good standing under the laws of the State of its incorporation; (ii) is duly qualified as a foreign corporation to transact business in, and is in good standing in, every jurisdiction in which the ownership of its properties or the conduct of its business makes such qualification necessary, except in those jurisdictions where the failure to be so qualified would not, individually or in the aggregate, have a material adverse effect on the business, operations, property, assets or condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole; and (iii) has the corporate power and corporate authority to own and operate its properties and to carry on its business as now conducted and as presently proposed to be conducted after consummation of the Del Monte Asset Acquisition and to carry out the transactions contemplated by this Agreement. 2.2 Capitalization. (a) Currently Authorized. The authorized capital stock of the Company currently consists of three million one hundred sixty-seven thousand five hundred (3,167,500) shares, consisting of five hundred thousand (500,000) shares of Class A Common Stock, par value $.01 per share (the "Class A Common Stock"), six hundred sixty-seven thousand five hundred (667,500) shares of Class B Common Stock, one million (1,000,000) shares of Class C Common Stock, par value $.01 per share (the "Class C Common Stock"), and one million (1,000,000) shares of Preferred Stock, par value $.01 per share. (b) Currently Issued and Outstanding. As of the date of this Agreement, prior to giving effect to the transaction contemplated by this Agreement, the issued and outstanding capital stock of the Company consists of four hundred and seventeen thousand five hundred (417,500) shares of Class A Common Stock registered in the names of Silver (208,750 shares) and Horrigan (208,750 shares), four hundred and seventeen thousand five hundred (417,500) shares of Class B Common Stock registered in the name of MS Equity and fifty thousand (50,000) shares of Class C Common Stock registered in the name of BT. (c) Post Closing. After giving effect to the transaction contemplated by this Agreement, the issued and outstanding capital stock of the Company will be four hundred and seventeen thousand five hundred (417,500) shares of Class A Common Stock, six hundred and sixty seven thousand five hundred (667,500) shares of Class B Common Stock and fifty thousand (50,000) shares of Class C Common Stock. (d) Outstanding Options. The Company has issued and there are currently outstanding options to purchase up to 15,000 shares of Class C Common Stock pursuant to the Company's Amended and Restated Stock Option Plan, which options are held by certain officers of the Company (the "Company Options"). In addition, SCC has issued and there are currently outstanding options to purchase up to 816 shares of SCC common stock, par value $.01 per share, pursuant to the SCC Amended and Restated 1989 Stock Option Plan (the "SCC Option Plan"), which options are held by certain officers of SCC (the "SCC Options"), and Silgan Plastics Corporation, an indirect wholly-owned subsidiary of the Company ("SPC"), has issued and there are currently outstanding options to purchase up to 300 shares of SPC common stock, par value $.01 per share, pursuant to the SPC Amended and Restated 1989 Stock Option Plan (the "SPC Option Plan"), which options are held by certain officers of SPC (the "SPC Options"). The SCC Options and the SPC Options are convertible under certain circumstances pursuant to the terms of the SCC Option Plan and the SPC Option Plan, respectively, into options to purchase Class C Common Stock of the Company or any securities issued in exchange therefor. In addition, pursuant to the terms of the SCC Option Plan and the SPC Option Plan, if any SCC Option or SPC Option, as the case may be, has been exercised prior to a "public offering" of the common stock of the Company or a "change of control" of the Company, the shares of SCC common stock or SPC common stock issued upon such exercise (the "Underlying Shares") are convertible into shares of Class C Common Stock of the Company or any securities issued in exchange therefor in accordance with the terms and conditions of the SCC Option Plan and the SPC Option Plan, respectively. The Company Options, the SCC Options, the SPC Options and the Underlying Shares are herein referred to as the "Outstanding Options." (e) As of the date of this Agreement, each Subsidiary of the Company is wholly-owned by the Company or by a Subsidiary of the Company. 2.3 Authorization. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution, delivery and performance of all obligations under this Agreement, the Organization Agreement and the Stockholders Agreement and for the issuance and delivery of the Shares has been taken, and this Agreement, the Organization Agreement and the Stockholders Agreement constitute legally binding valid obligations of the Company enforceable in accordance with their terms except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors rights and general principles of equity (whether considered in an action at law or in equity). 2.4 Validity of Shares. The Shares, when issued, sold and delivered in accordance with the terms of, and for the consideration expressed in, this Agreement, shall be duly authorized, validly issued and fully-paid and nonassessable, are not subject to preemptive rights of any stockholder of the Company and, subject to the accuracy of the representations and warranties made by the Investor in this Agreement, will have been issued in compliance with all applicable federal and state securities laws. 2.5 Subsidiary Stock. All of the outstanding capital stock of each of the Subsidiaries have been duly authorized, validly issued and are fully paid and nonassessable and all outstanding shares of capital stock of each Subsidiary are owned by the Company or another Subsidiary free and clear of any lien, mortgage, security interest, charge or encumbrance (other than security interests granted pursuant to the Bank Agreement (as defined in Section 2.7)). 2.6 Title to Shares. Upon delivery of the Shares to the Investor and payment therefor, the Investor will acquire good and valid title to the Shares, free and clear of any and all claims, liens, restrictions, pledges, charges, options, security interests, encumbrances or other rights of third parties, including any imposed by operation of law, except such claims, liens, restrictions, pledges, charges, options, security interests, encumbrances or other rights (i) created by the Investor or the Trustee or (ii) arising in connection with this Agreement, the Organization Agreement or the Stockholders Agreement. 2.7 No Conflict. The execution, delivery and performance of this Agreement (including any repurchase of Shares pursuant to Section 4.5 hereof), the Organization Agreement, the Stockholders Agreement, the Asset Purchase Agreement, the Credit Agreement among Silgan Corporation, SCC, SPC, the lenders from time to time party thereto, Bank of America National Trust and Savings Association, as Co-Agent and Bankers Trust Company, as Agent, dated as of December 21, 1993 (the "Bank Agreement"), and the Supply Agreement between SCC and Del Monte dated as of September 3, 1993, as amended by the Amendment to Supply Agreement dated as of December 21, 1993 (as so amended, the "Supply Agreement"), will not (i) conflict with or result in a breach of the terms, conditions or provisions of, (ii) constitute a default under, (iii) result in the creation of any lien, security interest, charge or encumbrance upon the Company's or any of the Subsidiaries' capital stock or assets pursuant to (other than consensual liens, security interests, charges or encumbrances to secure obligations to lenders that do not affect the Company's capital stock), (iv) give any third party the right to accelerate any obligation under, (v) result in a violation of, or (vi) require any authorization, consent, approval, exemption or other action by or notice to any court or administrative or governmental body (except such authorizations, consents, approvals, exemptions or other actions as have been obtained or taken) pursuant to, the Company's or any Subsidiary's Certificate of Incorporation, the Company's or any Subsidiary's by-laws or any law, statute, rule or regulation to which the Company or any Subsidiary is subject, or any agreement, instrument, order, judgement or decree to which the Company or any Subsidiary is subject. 2.8 Options, Warrants and Similar Rights. Except as provided for in the Restated Certificate of Incorporation of the Company, the Organization Agreement and the Outstanding Options, there are no options, warrants, conversion privileges, preemptive, subscription or other rights presently outstanding to purchase any of the authorized but unissued capital stock of the Company or any Subsidiary, nor is the Company required to repurchase or redeem any shares of its capital stock. 2.9 Financial Statements. The Company's consolidated audited financial statements at and for the fiscal year ended December 31, 1992 and its unaudited financial statements at and for the nine-month period ended September 30, 1993 contained in the Company's reports filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") with the Securities and Exchange Commission (the "Financial Statements") are complete and correct in all material respects and have been prepared, in the case of the audited financial statements, in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods indicated, and are consistent with each other (except as disclosed in the notes to the Financial Statements) and the books and records of the Company. The Financial Statements present fairly in all material respects the financial condition and operating results of the Company on a consolidated basis as of the dates, and for the periods, indicated therein, subject, in the case of unaudited financial statements, to normal year-end audit adjustments. Except as set forth in the Financial Statements, none of the Company or any Subsidiary has liabilities, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent to September 30, 1993 and (ii) liabilities incurred in the ordinary course of business and not required under generally accepted accounting principles to be reflected in the Financial Statements, which, individually or in the aggregate, are not material to the financial condition or operating results of the Company and the Subsidiaries taken as a whole. 2.10 Changes. Since September 30, 1993, there has not been: (a) any change in the assets, liabilities, financial condition or operating results of the Company or any Subsidiary from that reflected in the Financial Statements, except changes in the ordinary course of business which have not been, in the aggregate, materially adverse; or (b) any other event or condition of any character which has materially and adversely affected the assets, properties, financial condition, operating results or business of the Company or any Subsidiary. 2.11 Tax Filings. The Company and each of its Subsidiaries have filed all federal tax returns and material state tax returns required to be filed, which returns are complete and correct in all material respects, and neither the Company nor any subsidiary is in default in the payment of any taxes which were payable pursuant to said returns or any assessments with respect thereto. 2.12 Filings. The Company has filed all material applications and has obtained all permits, approvals, licenses, franchises, certificates and authorizations of all Federal, state or local governmental or regulatory authorities ("Permits") as are necessary to own its properties and to conduct its business in the manner now being conducted; the Company has fulfilled and performed all of its obligations with respect to such Permits in all material respects and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or would result in any other material impairment of the rights of the holder of any such Permit; and none of such Permits contain any restrictions that are materially burdensome to the holder thereof. 2.13 Properties. Except for liens granted to the Secured Creditors (as defined in the Bank Agreement), the Company and each of the Subsidiaries has good and marketable title to all property (real and personal) owned by it, free and clear of all liens, claims, security interests or other encumbrances except those which would not, individually or collectively, have a material adverse effect on the condition (financial or otherwise), business, net worth or results of operation of the Company or any Subsidiary, and the property held under lease by the Company and each of the Subsidiaries is held under valid subsisting and enforceable leases. 2.14 Compliance with Statutes; Environmental and Safety Laws. (a) The Company and each of its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property (including applicable statutes, regulations, orders and restrictions relating to environmental standards and controls), except such statutes, regulations, orders and restrictions the failure to be in compliance with which would not, individually or in the aggregate, have a material adverse effect on the business, operations, property, assets or condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole. (b) The Company and each of its Subsidiaries have complied with all applicable federal, state and local environmental laws (including, without limitation, the Resources Conservation and Recovery Act, as amended from time to time, 42 U.S.C. 6901 et seq., and the Comprehensive Environmental Response Compensation of Liability Act of 1980, as amended from time to time, 42 U.S.C. 9601 et seq.), regulations and ordinances governing its business products, properties or assets with respect to all discharges into the ground and surface water, emissions into the ambient air and generation, accumulation, storage, treatment, transportation, labeling or disposal of waste materials or process by-products for which failure to comply could have a material adverse effect on the business, operations, property, assets or condition (financial or otherwise) of the Company or of the Company and its Subsidiaries taken as a whole, and neither the Company nor its Subsidiaries is liable for any material penalties, fines or forfeitures for failure to comply with any of the foregoing in the manner set forth above. (c) All material licenses, permits or registrations required for the business of the Company and its Subsidiaries, as presently conducted, under any federal, state or local environmental laws, regulations or ordinances have been secured and the Company and its Subsidiaries is in substantial compliance therewith. (d) Neither the Company nor any of its Subsidiaries is in noncompliance with, breach of or default under any applicable writ, order, judgment, injunction, or decree to which any such person is a party or which would materially and adversely affect the ability of such person to operate its businesses or its manufacturing facilities and no event has occurred and is continuing which, with the passage of time or the giving of notice or both, would constitute noncompliance, breach of or default thereunder which would materially and adversely affect the ability of such person to operate its business or its manufacturing facilities. (e) There are no legal or governmental proceedings pending or, to the best of the Company's knowledge after reasonable investigation, threatened which (i) question the validity, term or entitlement of the Company or any of its Subsidiaries for any material permit, license, order or registration required for the operation of any facility which the Company or any of its Subsidiaries currently operates and (ii) wherein an unfavorable decision, ruling or finding could have a material adverse effect on the financial viability of any of its facilities. (f) To the best of the Company's knowledge and belief, neither the Company nor any of its Subsidiaries has disposed of or otherwise discharged any hazardous waste, toxic substances or similar materials, the disposal of which could give rise to any liability under applicable environmental laws and regulations which could have a materially adverse effect on the business, operations, property, assets or condition (financial or otherwise) of the Company or of the Company and its Subsidiaries taken as a whole. 2.15 Disclosure. To the best of the Company's knowledge, neither this Agreement, the Organization Agreement, the Asset Purchase Agreement, or any of the schedules, attachments, written statements, documents, certificates or other items prepared or supplied to the Investor by or on behalf of the Company with respect to the transactions contemplated hereby or thereby contain any untrue statement of a material fact or omit a material fact necessary to make each statement contained herein or therein not misleading. To the best of the Company's knowledge, there is no fact which has not been disclosed to the Investor which materially affects adversely or could reasonably be anticipated to materially affect adversely the Company's or any Subsidiary's business, financial condition, operating results, earnings, assets or business prospects. 2.16 Litigation. Other than as disclosed in the Company's [Post- Effective Amendment No. 1 to Form S-1 Registration Statement (Registration No. 33-47632) dated June 18, 1993 or Annual Report on Form 10-K for the fiscal year ended December 31, 1992], there are no actions, suits, proceedings, orders, investigations or claims pending or, to the Company's knowledge, threatened against the Company or any Subsidiary, at law or in equity, or before or by any governmental department, commission, board, bureau, agency or instrumentality that, if adversely determined, would adversely affect any action taken or to be taken by the Company or any Subsidiary under this Agreement, the Organization Agreement, the Asset Purchase Agreement or the Supply Agreement, or that, if adversely determined would materially adversely affect the business, operations, properties or financial position of the Company or any Subsidiary; and, to the Company's knowledge, there is no reasonable basis for any such actions, suits, proceedings, orders, investigations or claims. 3. Representations and Warranties of the Investor. As an inducement to the Company to issue the Shares, and in order to establish the suitability for the Investor of such an investment, the Investor hereby makes the following representations and warranties (which representations and warranties shall survive the Closing Date), and authorizes the Company to rely upon the same: 3.1 Organization and Authority. The Investor is a trust duly organized and validly existing under the laws of its jurisdiction of organization; it has the power and authority under its trust agreement to enter into and perform this Agreement; the execution of this Agreement by it has been duly authorized; the consummation of the transactions contemplated hereunder will not result in a breach or violation of, or a default under, its trust agreement or any material agreement by which it or any of its properties is bound or any statute, rule, regulation, order or other law to which it is subject, nor require the obtaining of any consent, approval, permit or license from or filing with, any governmental authority or other person by the Investor in connection with the execution, delivery and performance by it of this Agreement, except for violations which would not, or consents or filings which, if not obtained or made, would not, in the aggregate, affect materially and adversely its ability to consummate the transactions contemplated by, or fulfill its obligations under, this Agreement; and this Agreement constitutes (assuming its due authorization and execution by the Company) its legal, valid and binding obligation. 3.2 Investment Intent. The Investor is aware of and familiar with the business affairs and financial condition of the Company and has acquired sufficient information about the Company to reach a knowledgeable and informed decision to purchase the Shares. The Investor is acquiring the Shares for investment for the Investor's own account, not for resale, without any intention of, or view toward, or for participating, directly or indirectly, in, a distribution of the Shares or any portion thereof. 3.3 Experience. The Investor: (i) has such knowledge and experience in financial and business matters (or the professional advisors or representatives of the Investor who are unaffiliated with and who are not compensated directly or indirectly by the Company or by any affiliate or selling agent of the Company have such knowledge and experience in financial and business matters) that the Investor (or the Investor's professional advisors or representatives, as the case may be) is capable of evaluating the merits and risks of the purchase of the Shares, protecting the Investor's interest in connection with the purchase of the Shares, and making an informed investment decision with respect thereto, (ii) has investigated the purchase of the Shares to the extent the Investor has deemed necessary or desirable, and has been provided with any assistance the Investor has requested from the Company in connection therewith and (iii) has determined that the Shares are a suitable investment for the Investor and that at this time the Investor could bear a complete loss of an investment in the Shares. 3.4 Risks. The Investor understands that an investment in the Company is speculative, that any possible profits therefrom are uncertain, and that the Investor must bear the economic risks of the investment in the Company for an indefinite period of time. The Investor is able to bear these economic risks and to hold the Shares for an indefinite period. 3.5 Information. The Investor has received all information and data with respect to the Company which the Investor has requested and has deemed relevant in connection with an evaluation of the merits and risks of the purchase of the Shares, and the Investor does not desire any further information or data with respect to the Company prior to the purchase of the Shares. 3.6 Domicile. The Trustee is domiciled in the State of Pennsylvania. The Investor's investment decisions made in connection with this Agreement, including the decision to purchase the Shares, were made in the State of New York. 3.7 Federal Securities Laws. The Investor understands that the Shares have not been registered under the Securities Act of 1933, as amended (the "Act"), in reliance on the exemption from registration provided by Section 4(2) of the Act. In furtherance thereof, the Investor represents and warrants to the Company that: (a) The Investor has the financial ability to bear the economic risk of this investment, has adequate means for providing for the current needs and contingencies of the Investor and has no need for liquidity with respect to the investment in the Company; and (b) The Investor is an entity that qualifies as an "accredited investor" under Rule 501 of Regulation D. 3.8 State Securities Laws. The Investor understands that the Shares have not been registered or qualified with, nor has a permit been obtained for the issuance of the Shares from, any state securities authority. The Investor is aware of any and all restrictions imposed by the Company in the Organization Agreement and the Stockholders Agreement on the further distribution of the Shares, including, but not limited to, any restrictive legends appearing on the stock certificates evidencing the Shares, required holding periods, stop transfer orders or buyback rights of the Company or the holders of its securities. 3.9 Transfers. The Investor understands that the Shares may have to be held indefinitely unless they are subsequently registered under the Act and qualified or registered under other applicable securities laws, including state securities laws, or unless an exemption from such qualification or registration is available. The Company has no obligation to so qualify or register the Shares except such obligations, if any, as are contained in the Organization Agreement and the Stockholders Agreement. 3.10 Legend. The Investor understands and agrees that a legend in the form provided in Section 3.3 of the Organization Agreement will be placed on the certificate evidencing the Shares and on certificates issued to transferees. 3.11 Solicitation. To the Investor's knowledge, the offer and sale of the Shares was not effected by any form of general solicitation or general advertising or accomplished by the publication of any advertisement. 4. Covenants. As an inducement to the Investor to purchase the Shares, the Company makes the following covenants (which covenants shall survive the Closing Date); 4.1 Compliance with Agreements. The Company shall perform and observe (i) all of its obligations to stockholders of the Company set forth in the Company's Certificate of Incorporation and by-laws and (ii) all of its obligations to the Investor as set forth in the Organization Agreement. 4.2 Current Public Information. The Company shall file all reports required to be filed by it under the Act and the Exchange Act and the rules and regulations adopted by the Securities and Exchange Commission thereunder and shall take such further action as the Investor may reasonably request, all to the extent required to enable the Investor to sell Shares pursuant to (i) Rule 144 adopted by the Securities and Exchange Commission under the Act (as such rule may be amended from time to time) or any similar rule or regulation hereafter adopted by the Securities and Exchange Commission or (ii) a registration statement on Form S-2 or S-3 or any similar registration form hereafter adopted by the Securities and Exchange Commission. Upon request, the Company shall deliver to the Investor a written statement as to whether it has complied with such requirements. 4.3 Public Disclosures. The Company shall not, nor shall it permit any subsidiaries to, disclose the Investor's name or identity as an investor in the Company in any press release or other public announcement or in any document or material filed with any governmental entity, without the prior written consent of the Investor, unless such disclosure is required by applicable law or governmental regulations or by order of a court of competent jurisdiction, in which case prior to making such disclosure the Company shall give written notice to the Investor describing in reasonable detail the proposed content of such disclosure and shall permit the Investor to review and comment upon the form and substance of such disclosure. 4.4 Repurchase of Shares. In the event that the Del Monte Asset Acquisition is not consummated on the Closing Date, the Company shall invest the $15 million received as the purchase price of the Shares in a short-term (i.e., open-ended or overnight) investment fund designated by the Investor, which fund shall be of a type in which pension funds are generally permitted to invest. If the Del Monte Asset Acquisition does not occur within three days after the Closing Date, then (i) the Company shall seek further instruction from the Investor and the Investor shall have the right at such time to require the Company to repurchase the Shares at a price equal to $15 million plus any amounts earned from the investment of such funds pursuant to this Section 4.5 and (ii) the Company shall have the right at such time to rescind the sale of the Shares to the Investor. 5. Conditions of the Investor's Obligation at the Closing. The obligation of the Investor to purchase the Shares at the Closing is subject to the satisfaction as of the Closing of the following conditions: 5.1 Representations and Warranties; Performance. The representations and warranties contained in Section 2 hereof shall be true and correct in all material respects at and as of the Closing as though then made, and the Company shall have performed and complied with in all material respects all of the agreements, obligations and conditions required to be performed or complied with by it hereunder on or prior to the Closing. 5.2 Organization Agreement. The Organization Agreement shall have been entered into by the parties thereto, shall be substantially in the form attached hereto as Exhibit A and the Organization Agreement shall be in full force as of the Closing. 5.3 Stockholders Agreement. The Stockholders Agreement shall have been entered into by the parties thereto, shall be substantially in the form attached hereto as Exhibit B and shall be in full force as of the Closing. 5.4 Asset Purchase Agreement. The Asset Purchase Agreement shall be in full force and effect as of the Closing and shall not have been amended or modified in any material respect from the executed agreement dated as of September 3, 1993 and amended as of December 10, 1993. The conditions in Article X of the Asset Purchase Agreement shall have been satisfied in full (without reliance on any waiver by SCC). The Investor shall be satisfied that the Del Monte Asset Acquisition will be consummated promptly after the Closing. 5.5 Supply Agreement. The Supply Agreement shall be in full force and effect as of the Closing and shall not have been amended or modified in any material respect from the executed agreement dated as of September 3, 1993 and amended as of December 21, 1993. 5.6 Bank Agreement. The Bank Agreement shall have been entered into by the parties thereto, shall be substantially in the form attached hereto as Exhibit C and shall be in full force as of the Closing. 5.7 Management Services Agreement. The Amended and Restated Management Services Agreement between S&H Inc. and the Company shall have been entered into, shall be substantially in the form attached hereto as Exhibit D and shall be in full force as of the Closing. 5.8 Amendment of Certificate of Incorporation. The Company's Restated Certificate of Incorporation shall have been amended and restated to be substantially in the form of Exhibit E hereto. 5.9 Opinion of the Company's Counsel. The Investor shall have received from Winthrop, Stimson, Putnam & Roberts, counsel for the Company, an opinion with respect to the matters set forth in Exhibit F hereto, which shall be addressed to the Investor, dated the date of the Closing and in form and substance reasonably satisfactory to the Investor. 5.10 Closing Documents. The Company shall have delivered to the Investor all of the following documents: (i) certified copies of the resolutions duly adopted by the Company's board of directors authorizing the execution, delivery and performance of this Agreement, the Organization Agreement and the Stockholders Agreement, the issuance and sale of the Shares and consummation of all other transactions contemplated by this Agreement; (ii) a certified copy of the Certificate of Incorporation of the Company as in effect at the Closing; (iii) copies of all third party and governmental consents, approvals and filings required in connection with the consummation of the transactions hereunder (including, without limitation, all blue sky law filings); (iv) a certificate of the President or Executive Vice Prsident of the Company, dated as of the date of Closing, stating that the conditions specified in paragraphs 5.1 through 5.8, inclusive, have been fully satisfied; and (v) such other documents relating to the transactions contemplated by this Agreement, the Organization Agreement, the Stockholders Agreement, the Bank Agreement, the Asset Purchase Agreement and the Supply Agreement as the Investor or its counsel may reasonably request. 5.11 Proceedings. All corporate and other proceedings taken or required to be taken in connection with the transactions contemplated by this Agreement or the Organization Agreement to be consummated at or prior to the Closing and all documents incident thereto shall be satisfactory in form and substance to the Investor and its counsel. 5.12 Litigation. No suit, action, investigation, inquiry or other proceeding by any governmental authority shall be pending and no preliminary or permanent injunction or order by a state or federal court shall have been entered, and no hearing relating to any such injunction or order to be issued shall be pending or noticed, as to which there is a reasonable likelihood of an adverse determination and which if determined adversely would be likely in the good-faith opinion of the Investor to have a material adverse effect on (x) the consummation of the Del Monte Asset Acquisition, (y) the ability of the Company to enforce its rights or to perform its obligations under the Supply Agreement or (z) the ability of the Company to perform its obligations under this Agreement or the Organization Agreement or the validity or enforceability of this Agreement or the Organization Agreement or the rights, remedies and benefits of the Investor under this Agreement or the Organization Agreement. 6. Miscellaneous. 6.1 Expenses. The Company agrees to pay, and hold the Investor harmless against liability for the payment of all of the Investor's out of pocket expenses relating to the transactions contemplated by this Agreement, including but not limited to, (i) the reasonable fees and expenses of its counsel arising in connection with the negotiation and execution of this Agreement and the Organization Agreement and the consummation of the transactions contemplated herein and therein (including, without limitation, the due diligence review performed by the Investor) which shall be payable at the Closing and (ii) stamp and other taxes which may be payable in respect of the execution and delivery of this Agreement and the Organization Agreement or the issuance, delivery or acquisition of the Shares. 6.2 Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless the Investor, the beneficial owner of the Shares held by a nominee or any named fiduciary acting for the Investor, and the advisors acting for any such named fiduciary in connection with this Agreement, and the respective directors, officers, trustees, fiduciaries, employees and agents of the foregoing persons from and against all losses, claims, damages, liabilities and expenses (including expenses of litigation and preparation therefor and other reasonable fees and disbursements of counsel) (collectively, "Losses") which any such indemnified party may incur or which may be asserted against any such indemnified party in connection with or arising out of any breach of any representations, warranties or other agreements of the Company contained in this Agreement. (b) The Investor agrees to indemnify and hold harmless the Company and the directors, officers, employees and agents of the Company from and against all Losses which any such indemnified party may incur or which may be asserted against any such indemnified party in connection with or arising out of any breach of any representations, warranties or other agreements of the Investor contained in this Agreement. (c) If the indemnification provided for in subparagraphs (a) and (b) of this Section 6.2 is unavailable to any party entitled to indemnification thereunder (an "Indemnified Party") in respect of any Losses, then each party required to provide indemnification thereunder (an "Indemnifying Party"), in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and the Indemnified Party on the other in connection with such Losses, as well as any other relevant equitable considerations. 6.3 Governing Law; Jurisdiction; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to any choice of law or conflicts of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. 6.4 Notices. All notices and other communications under this Agreement shall be in writing, and shall be deemed to have been duly given on the date of service if served personally or on the second day after mailing if mailed to the parties to whom notice is to be given by first-class mail, registered or certified, postage prepaid at the address of such party (until such address is changed by notice duly given) set forth on Exhibit G. 6.5 Severability. In the event one or more of the provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 6.6 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original, but all of which, when taken together, shall constitute one and the same agreement. This Agreement shall become effective when one or more counterparts has been signed by each of the parties and delivered to the other party. 6.7 Entire Agreement. This Agreement (including the exhibits hereto, which are hereby incorporated herein by reference) constitutes and contains the entire agreement of the parties with respect to the transactions contemplated by this Agreement and supersedes all prior or contemporaneous negotiations, correspondence, arrangements, letters of intent, understandings and agreements relating to those transactions. 6.8 Headings. The section headings in this Agreement have been inserted for identification and reference and shall not by themselves determine the meaning or interpretation of any provision of this Agreement. 6.9 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, personal representatives and permitted assigns. 6.10 Costs of Enforcement. If any party to this Agreement seeks to enforce its rights under this Agreement by legal proceedings or otherwise, or seeks a declaration of any rights or obligations under this Agreement, the non-prevailing party shall pay all costs and expenses incurred by the prevailing party, including, without limitation, all legal fees and expenses. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. COMPANY: SILGAN HOLDINGS INC. a Delaware corporation By: /s/ Harley Rankin, Jr. ---------------------------------- Title: Executive Vice President INVESTOR: FIRST PLAZA GROUP TRUST By: MELLON BANK, N.A. as Trustee (as directed by General Motors Investment Management Corporation) By: /s/ Judith A. Manion ---------------------------------- Title: Paralegal Exhibit G ADDRESSES FIRST PLAZA GROUP TRUST c/o General Motors Investment Management Corporation 767 Fifth Avenue New York, New York 10153 Attn: Private Market Investments Facsimile: (212) 418-3651 SILGAN HOLDINGS INC. 4 Landmark Square, Suite 301 Stamford, Connecticut 06901 Attention: R. Philip Silver Facsimile: (203) 975-7902 EX-9 10 EXHIBIT 9 SILGAN HOLDINGS INC. 8-K Exhibit 9 CREDIT AGREEMENT among SILGAN CORPORATION, SILGAN CONTAINERS CORPORATION, SILGAN PLASTICS CORPORATION, VARIOUS BANKS, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as CO-AGENT and BANKERS TRUST COMPANY, as AGENT ___________________ Dated as of December 21, 1993 ___________________ TABLE OF CONTENTS ----------------- Page Section 1. Amount and Terms of Credit . . . . . . . . . . . . . . . . . 1 1.01 Commitments . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.02 Minimum Amount of Each Borrowing . . . . . . . . . . . . . . . 5 1.03 Notice of Borrowing . . . . . . . . . . . . . . . . . . . . . 5 1.04 Disbursement of Funds . . . . . . . . . . . . . . . . . . . . 6 1.05 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1.06 Conversions . . . . . . . . . . . . . . . . . . . . . . . . . 8 1.07 Pro Rata Borrowings . . . . . . . . . . . . . . . . . . . . . 9 1.08 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 1.09 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . 10 1.10 Increased Costs, Illegality, etc. . . . . . . . . . . . . . . 11 1.11 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . 13 1.12 Change of Applicable Lending Office . . . . . . . . . . . . . 14 Section 2. Letters of Credit . . . . . . . . . . . . . . . . . . . . . . 15 2.01 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . 15 2.02 Minimum Stated Amount . . . . . . . . . . . . . . . . . . . . 17 2.03 Letter of Credit Requests . . . . . . . . . . . . . . . . . . 17 2.04 Letter of Credit Participations . . . . . . . . . . . . . . . 17 2.05 Agreement to Repay Letter of Credit Drawings . . . . . . . . . 19 2.06 Increased Costs . . . . . . . . . . . . . . . . . . . . . . . 20 Section 3. Fees; Commitments; Reductions of Commitments . . . . . . . . 20 3.01 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 3.02 Voluntary Termination of Working Capital Commitments . . . . . 22 3.03 Mandatory Reduction or Termination of Commitments . . . . . . 22 Section 4. Prepayments; Payments; Commitment and Available Amount Reductions . . . . . . . . . . . . . . . . . . . . . . . . . 23 4.01 Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . 23 4.02 Mandatory Prepayments; Commitment and Available Amount Reductions . . . . . . . . . . . . . . . . . . . . . . . . . 24 4.03 Method and Place of Payment . . . . . . . . . . . . . . . . . 27 4.04 Net Payments . . . . . . . . . . . . . . . . . . . . . . . . . 28 Section 5. Conditions Precedent . . . . . . . . . . . . . . . . . . . . 30 5.01 Conditions to Loans on the Initial Borrowing Date . . . . . . 30 (a) Execution of Agreement; Notes . . . . . . . . . . . . . 30 (b) Officer's Certificate . . . . . . . . . . . . . . . . . 30 (c) Opinions of Counsel . . . . . . . . . . . . . . . . . . 30 (d) Corporate Documents; Proceedings . . . . . . . . . . . . 30 (e) Plans; Shareholders' Agreements; Management Agreements; Debt Agreements . . . . . . . . . . . . . . . . . . . . 31 (f) Holdings Common Stock Issuance . . . . . . . . . . . . . 31 (g) Repayment and Termination of Commitments under the Existing Credit Agreements. . . . . . . . . . . . . . . 32 (h) The Acquisition . . . . . . . . . . . . . . . . . . . . 32 (i) Guaranties . . . . . . . . . . . . . . . . . . . . . . . 32 (j) Contribution Agreement . . . . . . . . . . . . . . . . . 33 (k) Pledge Agreements . . . . . . . . . . . . . . . . . . . 33 (l) Security Agreement . . . . . . . . . . . . . . . . . . . 34 (m) Mortgages; Title Insurance; Surveys; etc. . . . . . . . 35 (n) Adverse Change, etc. . . . . . . . . . . . . . . . . . . 36 (o) Litigation . . . . . . . . . . . . . . . . . . . . . . . 37 (p) Fees, etc. . . . . . . . . . . . . . . . . . . . . . . . 37 (q) Solvency Certificate; Environmental Analyses . . . . . . 37 (r) Notices to Holders of Certain Indebtedness and to the Collateral Agent . . . . . . . . . . . . . . . . . . . . 37 (s) Consent Letter . . . . . . . . . . . . . . . . . . . . . 38 (t) Financial Projections . . . . . . . . . . . . . . . . . 39 (u) Initial Borrowing Base Certificate and Report of Inventory and Accounts Receivable . . . . . . . . . . . . . . . . 39 (v) Tax Sharing Agreement . . . . . . . . . . . . . . . . . 39 (w) Insurance . . . . . . . . . . . . . . . . . . . . . . . 39 (x) Intercompany Agency Agreement . . . . . . . . . . . . . 40 5.02 Conditions to Working Capital Loans and Letters of Credit on and after the Initial Borrowing Date . . . . . . . . . . . . . . 40 (a) No Borrowing Base Deficiency . . . . . . . . . . . . . . 40 (b) Additional PCP Acquisition Conditions . . . . . . . . . 40 5.03 Conditions to All Credit Events . . . . . . . . . . . . . . . 40 (a) No Default . . . . . . . . . . . . . . . . . . . . . . . 40 (b) Representations and Warranties . . . . . . . . . . . . . 40 (c) Notice of Borrowing; Letter of Credit Request . . . . . 40 (d) Subsequent Legal Opinions . . . . . . . . . . . . . . . 41 (e) Corporate Proceedings . . . . . . . . . . . . . . . . . 41 (f) No Future Advances Notice . . . . . . . . . . . . . . . 41 Section 6. Representations, Warranties and Agreements . . . . . . . . . 42 6.01 Corporate Status . . . . . . . . . . . . . . . . . . . . . . . 42 6.02 Corporate Power and Authority . . . . . . . . . . . . . . . . 42 6.03 No Violation . . . . . . . . . . . . . . . . . . . . . . . . . 42 6.04 Governmental Approvals . . . . . . . . . . . . . . . . . . . . 43 6.05 Pledge Agreements . . . . . . . . . . . . . . . . . . . . . . 43 6.06 Security Agreement; Mortgages; Real Property . . . . . . . . . 43 6.07 Financial Statements; Financial Condition; etc. . . . . . . . 44 6.08 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . 45 6.09 True and Complete Disclosure . . . . . . . . . . . . . . . . . 45 6.10 Use of Proceeds; Margin Regulations . . . . . . . . . . . . . 46 6.11 Tax Returns and Payments . . . . . . . . . . . . . . . . . . . 46 6.12 Compliance with ERISA . . . . . . . . . . . . . . . . . . . . 46 6.13 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . 47 6.14 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . 48 6.15 Compliance with Statutes, etc. . . . . . . . . . . . . . . . . 48 6.16 Investment Company Act . . . . . . . . . . . . . . . . . . . . 49 6.17 Public Utility Holding Company Act . . . . . . . . . . . . . . 49 6.18 Labor Relations . . . . . . . . . . . . . . . . . . . . . . . 50 6.19 Patents, Licenses, Franchises and Formulas . . . . . . . . . . 50 6.20 Transaction . . . . . . . . . . . . . . . . . . . . . . . . . 50 6.21 Representations and Warranties in Acquisition Documents . . . 51 6.22 Subordination . . . . . . . . . . . . . . . . . . . . . . . . 51 Section 7. Affirmative Covenants . . . . . . . . . . . . . . . . . . . . 51 7.01 Information Covenants . . . . . . . . . . . . . . . . . . . . 51 7.02 Books, Records and Inspections . . . . . . . . . . . . . . . . 54 7.03 Maintenance of Property, Insurance . . . . . . . . . . . . . . 55 7.04 Corporate Franchises . . . . . . . . . . . . . . . . . . . . . 55 7.05 Compliance with Statutes, etc. . . . . . . . . . . . . . . . . 55 7.06 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 7.07 End of Fiscal Years; Fiscal Quarters . . . . . . . . . . . . . 56 7.08 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 7.09 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . 56 7.10 Additional Security; Further Assurances; etc. . . . . . . . . 57 7.11 Foreign Subsidiaries Security . . . . . . . . . . . . . . . . 58 7.12 Registry . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Section 8. Negative Covenants . . . . . . . . . . . . . . . . . . . . . 59 8.01 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 8.02 Consolidation, Merger, Sale of Assets, etc. . . . . . . . . . 60 8.03 Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . 61 8.04 Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 8.05 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . 63 8.06 Advances, Investments and Loans . . . . . . . . . . . . . . . 65 8.07 Transactions with Affiliates . . . . . . . . . . . . . . . . . 68 8.08 Capital Expenditures . . . . . . . . . . . . . . . . . . . . . 68 8.09 Current Ratio . . . . . . . . . . . . . . . . . . . . . . . . 69 8.10 Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . 69 8.11 Total Indebtedness to Consolidated Net Worth . . . . . . . . . 70 8.12 Limitation on Voluntary Payments and Modifications of Senior Notes or Senior Subordinated Notes; Modifications of Documents, Certificate of Incorporation, By-Laws and Certain Other Agreements; etc. . . . . . . . . . . . . . . . . . . . 70 8.13 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . 71 8.14 Limitation on Restrictions on Subsidiary Dividends and Other Distributions . . . . . . . . . . . . . . . . . . . . . . . . 71 8.15 Limitation on Issuances of Capital Stock by Subsidiaries . . . 72 8.16 Business . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 8.17 Change of Name . . . . . . . . . . . . . . . . . . . . . . . . 72 8.18 Consummation of PCP Acquisition . . . . . . . . . . . . . . . 72 Section 9. Events of Default . . . . . . . . . . . . . . . . . . . . . . 73 9.01 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 9.02 Representations, etc. . . . . . . . . . . . . . . . . . . . . 74 9.03 Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . 74 9.04 Default Under Other Agreements . . . . . . . . . . . . . . . . 74 9.05 Bankruptcy, etc. . . . . . . . . . . . . . . . . . . . . . . . 74 9.06 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 9.07 Pledge Agreements . . . . . . . . . . . . . . . . . . . . . . 75 9.08 Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . 75 9.09 Security Agreements; Mortgages; Additional Security Documents 76 9.10 Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . 76 9.11 Ownership; Change of Control . . . . . . . . . . . . . . . . . 76 Section 10. Definitions and Accounting Terms . . . . . . . . . . . . . . 77 10.01 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . 77 10.02 Principles of Construction . . . . . . . . . . . . . . . . . 101 Section 11. The Agent and Co-Agent . . . . . . . . . . . . . . . . . . . 102 11.01 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . 102 11.02 Nature of Duties . . . . . . . . . . . . . . . . . . . . . . 102 11.03 Lack of Reliance on the Agent and Co-Agent . . . . . . . . . 102 11.04 Certain Rights of the Agent . . . . . . . . . . . . . . . . . 103 11.05 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . 103 11.06 Indemnification . . . . . . . . . . . . . . . . . . . . . . . 103 11.07 The Agent and the Co-Agent in Their Individual Capacity . . . 103 11.08 Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 11.09 Resignation by the Agent and the Co-Agent . . . . . . . . . . 104 Section 12. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . 105 12.01 Payment of Expenses, etc. . . . . . . . . . . . . . . . . . . 105 12.02 Right of Setoff . . . . . . . . . . . . . . . . . . . . . . . 106 12.03 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 12.04 Benefit of Agreement . . . . . . . . . . . . . . . . . . . . 106 12.05 No Waiver; Remedies Cumulative . . . . . . . . . . . . . . . 108 12.06 Payments Pro Rata . . . . . . . . . . . . . . . . . . . . . . 108 12.07 Calculations; Computations . . . . . . . . . . . . . . . . . 109 12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE . . . . . . 109 12.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 110 12.10 Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . 110 12.11 Headings Descriptive . . . . . . . . . . . . . . . . . . . . 111 12.12 Amendment or Waiver . . . . . . . . . . . . . . . . . . . . . 111 12.13 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . 112 12.14 Domicile of Loans . . . . . . . . . . . . . . . . . . . . . . 112 12.15 Provision Inserted Pursuant to Local Real Estate Law . . . . 112 12.16 Confidentiality . . . . . . . . . . . . . . . . . . . 112 SCHEDULES Schedule I Commitments Schedule II Existing Letters of Credit Schedule III Real Property Schedule IV Insurance Schedule V Permitted Liens Schedule VI Existing Indebtedness Schedule VII Mirror Intercompany Notes Schedule VIII Certain Capitalized Leases Schedule IX Existing Investments Schedule X Bank Addresses EXHIBITS Exhibit A Notice of Borrowing Exhibit B-1 A Term Note Exhibit B-2 B Term Note Exhibit B-3 Working Capital Note Exhibit B-4 Swingline Note Exhibit C Letter of Credit Request Exhibit D Section 4.04(b)(iii) Certificate Exhibit E Opinion of Winthrop, Stimson, Putnam & Roberts Exhibit F Officers' Certificate Exhibit G-1 Holdings Guaranty Exhibit G-2 Borrowers Guaranty Exhibit H-1 Amendment to Silgan Pledge Agreement Exhibit H-2 Amendment to Subsidiaries Pledge Agreement Exhibit H-3 Amendment to Holdings Pledge Agreement Exhibit I Amendment to Security Agreement Exhibit J Solvency Certificate Exhibit K Consent Letter Exhibit L Inventory and Accounts Receivable Report Exhibit M Borrowing Base Certificate Exhibit N Assignment and Assumption Agreement CREDIT AGREEMENT, dated as of December 21, 1993, among SILGAN COR- PORATION, a Delaware corporation ("Silgan"), SILGAN CONTAINERS CORPORATION, a Delaware corporation ("Containers"), SILGAN PLASTICS CORPORATION, a Delaware corporation ("Plastics", and together with Silgan and Containers, the "Borrowers," and each individually, a "Borrower"), the lenders from time to time party hereto (each, a "Bank" and, collectively, the "Banks"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Co-Agent (in such capacity, the "Co-Agent"), and BANKERS TRUST COMPANY, as Agent (in such capacity, the "Agent"). Unless otherwise defined herein, all capitalized terms used herein and defined in Section 10 are used herein as so defined. W I T N E S S E T H : WHEREAS, subject to and upon the terms and conditions herein set forth, the Banks are willing to make available to the Borrowers the respective credit facilities provided for herein; NOW, THEREFORE, IT IS AGREED: Section 1. Amount and Terms of Credit. 1.01 Commitments. (a) Subject to and upon the terms and conditions set forth herein, each Bank with an A Term Loan Commitment severally agrees to make, on the Initial Borrowing Date, a term loan (each, an "A Term Loan" and, collectively, the "A Term Loans") to Silgan, which A Term Loans (x) shall be made and initially maintained as a single Borrowing of Base Rate Loans (subject to the option to convert such A Term Loans pursuant to Section 1.06) and (y) shall not exceed for any Bank, in initial aggregate principal amount, that amount which equals the A Term Loan Commitment of such Bank on such date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(b)(i)(x) but after giving effect to any reductions thereto on or prior to such date pursuant to Section 3.03(b)(i)(y)). Once repaid, A Term Loans incurred herunder may not be reborrowed. (b) Subject to and upon the terms and conditions set forth herein, each Bank with a B Term Loan Commitment severally agrees to make, on the Initial Borrowing Date, a term loan (each, a "B Term Loan" and, collectively, the "B Term Loans") to Silgan, which B Term Loans (i) shall be made and initially maintained as a single Borrowing of Base Rate Loans (subject to the option to convert such B Term Loans pursuant to Section 1.06) and (ii) shall not exceed for any Bank, in initial aggregate principal amount, that amount which equals the B Term Loan Commitment of such Bank on such date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(b)(ii)(x) but after giving effect to any reductions thereto on or prior to such date pursuant to Section 3.03(b)(ii)(y)). Once repaid, B Term Loans incurred hereunder may not be reborrowed. Notwithstanding anything to the contrary contained in this Agreement, if the aggregate principal amount of Term Loans incurred on the Initial Borrowing Date is less than the Total Term Loan Commitment as then in effect, Silgan shall be required to borrow A Term Loans and B Term Loans pro rata based upon the amount of the Total A Term Loan Commitment, on the one hand, and the Total B Term Loan Commitment, on the other hand. (c) Subject to and upon the terms and conditions set forth herein, each Bank with a Working Capital Commitment severally agrees, at any time and from time to time on and after the Initial Borrowing Date and prior to the Working Capital Loan Maturity Date, to make a revolving loan or revolving loans (each, a "Working Capital Loan" and, collectively, the "Working Capital Loans") to Containers or Plastics, as the case may be, which Working Capital Loans: (i) shall, at the option of Containers or Plastics, as the case may be, be either Base Rate Loans or Eurodollar Loans, provided that (A) all Working Capital Loans made as part of the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type and (B) no Working Capital Loans maintained as Eurodollar Loans may be incurred prior to the earlier of (x) the 90th day after the Initial Borrowing Date and (y) the Syndication Date; (ii) may be repaid and reborrowed in accordance with the provisions hereof; (iii) shall not exceed for any Bank at any time outstanding that aggregate principal amount which, when added to the product of (A) such Bank's Percentage and (B) the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Working Capital Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Working Capital Loans) then outstanding, equals the Working Capital Commitment of such Bank at such time; (iv) shall not exceed for all Banks at any time outstanding that aggregate principal amount which, when added to (x) the amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Working Capital Loans) at such time and (y) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Working Capital Loans) then outstanding, equals an amount equal to the Borrowing Base at such time; and (v) shall not exceed for all Banks at any time outstanding that aggregate principal amount which, when added to (x) the amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Working Capital Loans) at such time and (y) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Working Capital Loans) then outstanding, equals the Total Working Capital Commitment at such time. (d) Subject to and upon the terms and conditions set forth herein, BTCo in its individual capacity agrees to make, at any time and from time to time on and after the Initial Borrowing Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each, a "Swingline Loan" and, collectively, the "Swingline Loans") to Containers or Plastics, as the case may be, which Swingline Loans: (i) shall be made and maintained as Base Rate Loans; (ii) may be repaid and reborrowed in accordance with the provisions hereof; (iii) shall not exceed in aggregate principal amount at any time outstanding, when added to (x) the aggregate principal amount of all Working Capital Loans then outstanding and (y) all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Working Capital Loans) at such time, an amount equal to the Borrowing Base at such time; (iv) shall not exceed in aggregate principal amount at any time outstanding, when added to (x) the aggregate principal amount of all Working Capital Loans then outstanding and (y) all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Working Capital Loans) at such time, an amount equal to the Total Working Capital Commitment at such time; and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. BTCo shall not be obligated to make any Swingline Loans to Containers or Plastics at a time when a Bank Default exists unless BTCo has entered into arrangements satisfactory to it and Containers or Plastics, as the case may be, to eliminate BTCo's risk with respect to the Bank which is the subject of such Bank Default, including by cash collateralizing such Bank's Percentage of the outstanding Swingline Loans. Notwithstanding anything to the contrary in this Section 1.01(d), BTCo will not make a Swingline Loan after it has received written notice from the Required Banks stating that a Default or an Event of Default is then in existence and specifically requesting that BTCo not make any Swingline Loan, provided that BTCo may continue making Swingline Loans at such time thereafter as the respective Default or Event of Default has been cured or waived in accordance with the requirements of this Agreement or the Required Banks have withdrawn the written notice described above in this sentence. (e) On any Business Day, BTCo may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with a Borrowing of Working Capital Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 or 9.11(iii) of this Agreement or Section 9(e) of the Holdings Guaranty with respect to Holdings or upon the exercise of any of the remedies provided in the last paragraph of Section 9 of this Agreement), in which case a Borrowing of Working Capital Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day from all Banks with a Working Capital Commitment (without giving effect to any termination thereof pursuant to the last paragraph of Section 9) pro rata based on each Bank's Percentage (determined before giving effect to any termination of the Working Capital Commitments pursuant to the last paragraph of Section 9), and the proceeds thereof shall be applied directly to BTCo to repay BTCo for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Working Capital Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by BTCo not- withstanding (i) the amount of the Mandatory Borrowing may not comply with the minimum amount for Borrowings otherwise required hereunder, (ii) whether any conditions specified in Section 5 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Borrowing Base or the Total Working Capital Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding of the type referred to in Section 9.05 with respect to any of the Borrowers), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from Containers or Plastics, as the case may be, on or after such date and prior to such purchase) from BTCo such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Working Capital Commitments pursuant to the last paragraph of Section 9); provided, that (x) all interest payable on the Swingline Loans shall be for the account of BTCo until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay BTCo interest on the principal amount of participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Working Capital Loans maintained as Base Rate Loans hereunder for each day thereafter. 1.02 Minimum Amount of Each Borrowing. (a) The aggregate principal amount of each Borrowing of any Tranche of Term Loans shall not be less than $5,000,000 and, if greater, shall be in an integral multiple of $1,000,000. (b) The aggregate principal amount of each Borrowing of Working Capital Loans shall be not less than $1,000,000 and, if greater, shall be in an integral multiple of $500,000, except that Mandatory Borrowings shall be made in the amounts required by Section 1.01(e). (c) The aggregate principal amount of each Borrowing of Swingline Loans shall be not less than $250,000 and, if greater, shall be in an integral multiple of $50,000. (d) More than one Borrowing may occur on the same date, but at no time shall there be outstanding more than ten Borrowings of Eurodollar Loans. 1.03 Notice of Borrowing. (a) Whenever a Borrower desires to make a Borrowing of Loans hereunder (excluding Borrowings of Swingline Loans and Mandatory Borrowings), it shall give the Agent at its Notice Office at least one Business Day's prior notice of each Base Rate Loan and at least three Business Days' prior notice of each Eurodollar Loan to be made hereunder; provided that any such notice shall be deemed to have been given on a certain day only if given before 12:00 Noon (New York time) on such day. Each such notice (each a "Notice of Borrowing"), except as otherwise expressly provided in Section 1.10, shall be irrevocable and shall be given by the respective Borrower in the form of Exhibit A, appropriately completed to specify the name of such Borrower, the aggregate principal amount of the Loans to be made pursuant to such Borrowing, the date of such Borrowing (which shall be a Business Day), whether the Loans being made pursuant to such Borrowing shall constitute A Term Loans, B Term Loans or Working Capital Loans and whether the Loans being made pursuant to such Borrowing are to be initially maintained as Base Rate Loans or Eurodollar Loans and, if Eurodollar Loans, the initial Interest Period to be applicable thereto. The Agent shall promptly give each Bank which is required to make Loans of the Tranche specified in the respective Notice of Borrowing, notice of such proposed Borrowing, of such Bank's proportionate share thereof and of the other matters required by the immediately preceding sentence to be specified in the Notice of Borrowing. (b) (i) Whenever Containers or Plastics desires to make a Borrowing of Swingline Loans hereunder, it shall give BTCo not later than 1:00 P.M. (New York time) on the date that a Swingline Loan is to be made, written notice or telephonic notice promptly confirmed in writing of each Swingline Loan to be made hereunder. Each such notice shall be irrevocable and specify in each case (A) the date of Borrowing (which shall be a Business Day) and (B) the aggregate principal amount of the Swingline Loans to be made pursuant to such Borrowing. (ii) Without in any way limiting the obligation of Containers or Plastics to confirm in writing any telephonic notice of such Borrowing of Swingline Loans, BTCo may act without liability upon the basis of telephonic notice of such Borrowing, believed by BTCo in good faith to be from the President, a Vice President, the Treasurer or an Assistant Treasurer of such Borrower (or any other officer or employee of such Borrower designated in writing to BTCo by the President, a Vice President, the Treasurer or an Assistant Treasurer of such Borrower so authorized to give such notices under this Agreement) prior to receipt of written confirmation. In each such case, each of Containers and Plastics hereby waives the right to dispute BTCo's record of the terms of such telephonic notice of such Borrowing of Swingline Loans. (iii) Mandatory Borrowings shall be made upon the notice specified in Section 1.01(e), with Containers and Plastics irrevocably agreeing, by its incurrence of any Swingline Loan, to the making of Mandatory Borrowings as set forth in Section 1.01(e). 1.04 Disbursement of Funds. Except as otherwise specifically provided in the immediately succeeding sentence, no later than 12:00 Noon (New York time) on the date specified in each Notice of Borrowing (or (x) in the case of Swingline Loans, no later than 3:00 P.M. (New York time) on the date specified pursuant to Section 1.03(b)(i) or (y) in the case of Mandatory Borrowings, no later than 12:00 Noon (New York time) on the date specified in Section 1.01(e)), each Bank with a Commitment of the respective Tranche will make available its pro rata portion of each such Borrowing requested to be made on such date (or in the case of Swingline Loans, BTCo shall make available the full amount thereof). All such amounts shall be made available in Dollars and in immediately available funds at the Payment Office of the Agent, and the Agent will make available to the relevant Borrower at the Payment Office the aggregate of the amounts so made available by the Banks. Unless the Agent shall have been notified by any Bank prior to the date of Borrowing that such Bank does not intend to make available to the Agent such Bank's portion of any Borrowing to be made on such date, the Agent may assume that such Bank has made such amount available to the Agent on such date of Borrowing and the Agent may, in reliance upon such assumption, make available to the relevant Borrower a corresponding amount. If such corresponding amount is not in fact made available to the Agent by such Bank, the Agent shall be entitled to recover such corresponding amount on demand from such Bank. If such Bank does not pay such corresponding amount forthwith upon the Agent's demand therefor, the Agent shall promptly notify the relevant Borrower and such Borrower shall immediately pay such corresponding amount to the Agent. The Agent shall also be entitled to recover on demand from such Bank or such Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Agent to such Borrower until the date such cor- responding amount is recovered by the Agent, at a rate per annum equal to (i) if recovered from such Bank, at the overnight Federal Funds Rate and (ii) if recovered from such Borrower, the rate of interest applicable to the respec- tive Borrowing, as determined pursuant to Section 1.08. Nothing in this Section 1.04 shall be deemed to relieve any Bank from its obligation to make Loans hereunder or to prejudice any rights which the Borrower may have against any Bank as a result of any failure by such Bank to make Loans here- under. 1.05 Notes. (a) Each Borrower's obligation to pay the principal of, and interest on, all the Loans made by each Bank to such Borrower shall be evidenced (i) if A Term Loans, by a promissory note duly executed and delivered by Silgan substantially in the form of Exhibit B-1 (each, an "A Term Note" and, collectively, the "A Term Notes"), (ii) if B Term Loans, by a promissory note duly executed and delivered by Silgan substantially in the form of Exhibit B-2 (each, a "B Term Note" and, collectively, the "B Term Notes"), (iii) if Working Capital Loans, by promissory notes duly executed and delivered by each of Containers and Plastics substantially in the form of Exhibit B-3 (each, a "Working Capital Note" and, collectively, the "Working Capital Notes") and (iv) if Swingline Loans, by promissory notes duly executed and delivered by each of Containers and Plastics to BTCo substantially in the form of Exhibit B-4 (each, a "Swingline Note and, collectively the Swingline Notes"), in each case with blanks appropriately completed in conformity herewith. (b) The A Term Note issued by Silgan to each Bank with an A Term Loan Commitment shall (i) be payable to the order of such Bank and be dated the Initial Borrowing Date, (ii) be in a stated principal amount equal to the principal amount of A Term Loans made by such Bank on the Initial Borrowing Date and payable in the outstanding principal amount of A Term Loans evidenced thereby, (iii) mature on the A Term Loan Maturity Date, (iv) bear interest as provided in the appropriate clause of Section 1.08 in respect of Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby, (v) be subject to mandatory repayment as provided in Section 4.02 and (vi) be entitled to the benefits of this Agreement and the other Credit Documents. (c) The B Term Note issued by Silgan to each Bank with a B Term Loan Commitment shall (i) be payable to the order of such Bank and be dated the Initial Borrowing Date, (ii) be in a stated principal amount equal to the principal amount of the B Term Loans made by such Bank on the Initial Borrowing Date and payable in the principal amount of the B Term Loans evidenced thereby, (iii) mature on the B Term Loan Maturity Date, (iv) bear interest as provided in the appropriate clause of Section 1.08 in respect of Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby, (v) be subject to mandatory repayment as provided in Section 4.02 and (vi) be entitled to the benefits of this Agreement and the other Credit Documents. (d) The Working Capital Note issued by each of Containers and Plastics to each Bank with a Working Capital Commitment shall (i) be payable to the order of such Bank and be dated the Initial Borrowing Date, (ii) be in a stated principal amount equal to the Working Capital Commitment of such Bank and be payable in the outstanding principal amount of the Working Capital Loans evidenced thereby, (iii) mature on the Working Capital Loan Maturity Date, (iv) bear interest as provided in the appropriate clause of Section 1.08 in respect of Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby, (v) be subject to mandatory repayment as provided in Section 4.02 and (vi) be entitled to the benefits of this Agreement and the other Credit Documents. (e) The Swingline Note issued by each of Containers and Plastics to BTCo shall (i) be payable to the order of BTCo and be dated the Initial Borrowing Date, (ii) be in a stated principal amount equal to the Maximum Swingline Amount and be payable in the outstanding principal amount of Swingline Loans evidenced thereby, (iii) mature on the Swingline Expiry Date, (iv) bear interest as provided in the appropriate clause of Section 1.08 in the case of the Base Rate Loans evidenced thereby and (v) be entitled to the benefits of this Agreement and the other Credit Documents. (f) Each Bank will note on its internal records the amount of each Loan made by it and each payment and conversion in respect thereof and will prior to any transfer of any of its Notes endorse on the reverse side thereof the outstanding principal amount of Loans evidenced thereby. Failure to make any such notation shall not affect the respective Borrower's obligations in respect of such Loans. 1.06 Conversions. Each Borrower shall have the option to convert, on any Business Day occurring on or after the earlier of (x) the 90th day after the Initial Borrowing Date and (y) the Syndication Date, all or a portion equal to at least $5,000,000 (and, if greater, in an integral multiple of $1,000,000) in the case of a Borrowing of any Tranche of Term Loans and equal to at least $1,000,000 (and, if greater, in an integral multiple of $500,000) in the case of a Borrowing of Working Capital Loans of the outstanding principal amount of such Loans made to such Borrower pursuant to one or more Borrowings (so long as of the same Tranche) of one or more Types of Loans into a Borrowing (of the same Tranche) of another Type of Loan, provided that (i) except as otherwise provided in Section 1.10(b), Eurodollar Loans may be converted into Base Rate Loans only on the last day of an Interest Period applicable to the Loans being converted and no such partial conversion of Eurodollar Loans shall reduce the outstanding principal amount of such Eurodollar Loans made pursuant to a single Borrowing to less than $5,000,000 in the case of a Borrowing of any Tranche of Term Loans and to less than $1,000,000 in the case of a Borrowing of Working Capital Loans, (ii) Base Rate Loans may only be converted into Eurodollar Loans if no Default or Event of Default is in existence on the date of the conversion, (iii) no conversion pursuant to this Section 1.06 shall result in a greater number of Borrowings than is permitted under Section 1.02 and (iv) Swingline Loans may not be converted pursuant to this Section 1.06. Each conversion pursuant to this Section 1.06 shall be effected by the respective Borrower by giving the Agent at its Notice Office prior to 12:00 Noon (New York time) at least three Business Days' prior notice (each a "Notice of Conversion") specifying the Loans to be so converted, the Borrowing(s) pursuant to which such Loans were made and, if to be converted into Eurodollar Loans, the Interest Period to be initially applicable thereto. The Agent shall give each Bank prompt notice of any such proposed conversion affecting any of its Loans. Upon any such conversion the proceeds thereof will be applied directly on the day of such conversion to prepay the outstanding principal amount of the Loans being converted. 1.07 Pro Rata Borrowings. All Borrowings of A Term Loans, B Term Loans and Working Capital Loans under this Agreement shall be incurred from the Banks pro rata on the basis of their A Term Loan Commitments, B Term Loan Commitments or Working Capital Commitments, as the case may be. It is understood that no Bank shall be responsible for any default by any other Bank of its obligation to make Loans hereunder and that each Bank shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any other Bank to make its Loans hereunder. 1.08 Interest. (a) Each Borrower agrees to pay interest in respect of the unpaid principal amount of each Base Rate Loan made to such Borrower hereunder from the date the proceeds thereof are made available to such Borrower until the maturity thereof (whether by acceleration or otherwise) at a rate per annum which shall be equal to the sum of the Applicable Margin plus the Base Rate in effect from time to time. (b) Each Borrower agrees to pay interest in respect of the unpaid principal amount of each Eurodollar Loan made to such Borrower from the date the proceeds thereof are made available to such Borrower until the maturity thereof (whether by acceleration or otherwise) at a rate per annum which shall, during each Interest Period applicable thereto, be equal to the sum of the Applicable Margin plus the Eurodollar Rate for such Interest Period. (c) Overdue principal and, to the extent permitted by law, overdue interest in respect of each Loan and any other overdue amount payable hereunder shall, in each case, bear interest at a rate per annum equal to the greater of (x) 2% per annum in excess of the rate otherwise applicable to Base Rate Loans of the respective Tranche from time to time and (y) the rate which is 2% in excess of the rate then borne by such Loans, in each case with such interest to be payable on demand. (d) Accrued (and theretofore unpaid) interest shall be payable (i) in respect of each Base Rate Loan, quarterly in arrears on each Quarterly Payment Date, (ii) in respect of each Eurodollar Loan, on the last day of each Interest Period applicable thereto and, in the case of an Interest Period in excess of three months, on each date occurring at three-month intervals after the first day of such Interest Period and (iii) in respect of each Loan, on any repayment or prepayment (on the amount repaid or prepaid), at maturity (whether by acceleration or otherwise) and, after such maturity, on demand. (e) Upon each Interest Determination Date, the Agent shall determine the interest rate for the Eurodollar Loans for which such determination is being made and shall promptly notify the respective Borrower and the respective Banks thereof. Each such determination shall, absent manifest error, be final and conclusive and binding on all parties hereto. 1.09 Interest Periods. At the time it gives any Notice of Borrowing or Notice of Conversion in respect of the making of, or conversion into, a Borrowing of Eurodollar Loans (in the case of the initial Interest Period applicable thereto) or on the third Business Day prior to the expiration of an Interest Period applicable to such a Borrowing of Eurodollar Loans (in the case of subsequent Interest Periods), the respective Borrower shall have the right to elect, by giving the Agent notice thereof, the interest period (each an "Interest Period") applicable to such Borrowing, which Interest Period shall, at the option of such Borrower, be either a one, two, three or six month period, provided that: (i) all Eurodollar Loans comprising a Borrowing shall at all times have the same Interest Period; (ii) the initial Interest Period for any Eurodollar Loan shall commence on the date of Borrowing of such Eurodollar Loan (including the date of any conversion thereto from a Loan of a different Type) and each Interest Period occurring thereafter in respect of such Eurodollar Loan shall commence on the day on which the next preceding Interest Period applicable thereto expires; (iii) if any Interest Period relating to a Eurodollar Loan begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest Period shall end on the last Business Day of such calendar month; (iv) if any Interest Period would otherwise expire on a day which is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided, however, that if any Interest Period for a Eurodollar Loan would otherwise expire on a day which is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the next preceding Business Day; (v) no Interest Period may be selected at any time when an Event of Default is then in existence; (vi) no Interest Period in respect of any Borrowing of A Term Loans shall be selected which extends beyond any date upon which a mandatory repayment of A Term Loans will be required to be made under Section 4.02(c) if the aggregate principal amount of A Term Loans which have Interest Periods which will expire after such date will be in excess of the aggregate principal amount of A Term Loans then outstanding less the aggregate amount of such required repayment; and (vii) no Interest Period in respect of any Borrowing of any Tranche of Loans shall be selected which extends beyond the respective Maturity Date for such Tranche of Loans. If upon the expiration of any Interest Period applicable to a Bor- rowing of Eurodollar Loans, the relevant Borrower has failed to elect, or is not permitted to elect, a new Interest Period to be applicable to such Eurodollar Loans as provided above, such Borrower shall be deemed to have elected to convert such Eurodollar Loans into Base Rate Loans effective as of the expiration date of such current Interest Period. 1.10 Increased Costs, Illegality, etc. (a) In the event that any Bank shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Agent): (i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date affecting the interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or (ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loans because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to: (A) a change in the basis of taxation of payment to any Bank of the principal of or interest on the Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances since the Effective Date affecting such Bank or the interbank Eurodollar market or the position of such Bank in such market; or (iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank in good faith with any governmental request (whether or not having the force of law) or (z) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the interbank Eurodollar market; then, and in any such event, such Bank (or the Agent, in the case of clause (i) above) shall on such date give notice (by telephone confirmed in writing) to the respective Borrowers and, except in the case of clause (i) above, to the Agent of such determination (which notice the Agent shall promptly transmit to each of the other Banks). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Agent notifies the respective Borrowers and the respective Banks that the circumstances giving rise to such notice by the Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by such Borrower, (y) in the case of clause (ii) above, the respective Borrower agrees to pay to such Bank, upon written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice in reasonable detail as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the respective Borrower by such Bank in good faith shall, absent manifest error, be final and conclusive and binding upon all the parties hereto) and (z) in the case of clause (iii) above, take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. (b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a) (ii) or (iii), the respective Borrower may (and in the case of a Eurodollar Loan affected pursuant to Section 1.10 (a)(iii) shall) either (i) if the affected Eurodollar Loan is then being made pursuant to a Borrowing or a conversion, cancel said Borrowing or conversion by giving the Agent telephonic notice (confirmed in writing) thereof on the same date that such Borrower was notified by the Bank or the Agent pursuant to Section 1.10(a)(ii) or (iii), or (ii) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Agent, require the affected Bank to convert each such Eurodollar Loan into a Base Rate Loan; provided, that if more than one Bank is affected at any time, then all affected Banks must be treated the same pursuant to this Section 1.10(b). (c) If at any time after the Effective Date any Bank determines that the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law and including, without limitation, those announced or published prior to the Effective Date) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any such corporation controlling such Bank based on the existence of such Bank's Commitments hereunder or its obligations hereunder, then the Borrowers jointly and severally agree to pay to any such Bank, upon such Bank's written demand therefor, such additional amounts as shall be required to compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable; provided, that such Bank's determination of compensa- tion owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the respective Borrowers, which notice shall show in reasonable detail the basis for calculation of such additional amounts, although the failure to give any such notice shall not release or diminish any of the respective Borrowers' obligations to pay additional amounts pursuant to this Section 1.10(c). 1.11 Compensation. Each Borrower agrees to compensate each Bank, upon such Bank's written request (which request shall set forth in reasonable detail the basis for requesting such compensation), for all losses, expenses and liabilities (including, without limitation, any loss, expense or liability incurred by reason of the liquidation or reemployment of deposits or other funds required by such Bank to fund its Eurodollar Loans) which such Bank may sustain: (i) if for any reason (other than a default by such Bank or the Agent) a Borrowing of, or conversion from or into, Eurodollar Loans does not occur on a date specified therefor in a Notice of Borrowing or Notice of Conversion given by such Borrower (whether or not withdrawn by the respective Borrower or deemed withdrawn pursuant to Section 1.10(a)); (ii) if any repayment (including any repayment made pursuant to Section 4.02 or as a result of an acceleration of Loans pursuant to Section 9) or conversion of any of such Borrower's Eurodollar Loans occurs on a date which is not the last day of an Interest Period with respect thereto; (iii) if any prepayment of any of such Borrower's Eurodollar Loans is not made on any date specified in a notice of prepayment given by such Borrower; or (iv) as a consequence of (x) any other default by such Borrower to repay its Loans when required by the terms of this Agreement or the respective Notes or (y) an election made, or action required to be taken, by such Borrower pursuant to Section 1.10(b). 1.12 Change of Applicable Lending Office. Each Bank agrees that, upon the occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.06 or Section 4.04 with respect to such Bank, it will, if requested by the applicable Borrower, use reasonable efforts (subject to overall policy considerations of such Bank) to designate another lending office for any Loans or Letters of Credit affected by such event; provided, that such designation is made on such terms that such Bank and its lending office suffer no economic, legal or regulatory disadvantage, with the object of avoiding the consequence of the event giving rise to the operation of any such Section. Nothing in this Section 1.12 shall affect or postpone any of the obligations of any Borrower or the right of any Bank provided in Sections 1.10, 2.06 and 4.04. 1.13 Replacement of Banks. (x) Upon the occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.06 or Section 4.04 with respect to any Bank which results in such Bank charging to any Borrower increased costs in excess of those being generally charged by the other Banks or (y) in the case of a refusal by a Bank to consent to a proposed change, waiver, discharge or termination with respect to this Agreement which has been approved by the Required Banks as provided in Section 12.12(b), Silgan shall have the right, if no Default or Event of Default then exists, to replace such Bank (the "Replaced Bank") with one or more other Eligible Transferee or Transferees (collectively, the "Replacement Bank") acceptable to the Agent; provided, that: (i) at the time of any replacement pursuant to this Section 1.13, the Replacement Bank shall enter into one or more Assignment and Assumption Agreements pursuant to Section 12.04(b) (and with all fees payable pursuant to said Section 12.04(b) to be paid by the Replacement Bank) pursuant to which the Replacement Bank shall acquire all of the Commitments and outstanding Loans of, and in each case participations in Letters of Credit by, the Replaced Bank and, in connection therewith, shall pay to (x) the Replaced Bank in respect thereof an amount equal to the sum of (A) an amount equal to the principal of, and all accrued interest on, all outstanding Loans of the Replaced Bank, (B) an amount equal to all Unpaid Drawings that have been funded by (and not reimbursed to) such Replaced Bank, together with all then unpaid interest with respect thereto at such time and (C) an amount equal to all accrued, but theretofore unpaid, Fees owing to the Replaced Bank pursuant to Section 3.01 and (y) BTCo an amount equal to such Replaced Bank's Percentage of any Unpaid Drawing (which at such time remains an Unpaid Drawing) to the extent such amount was not theretofore funded by such Replaced Bank; and (ii) all obligations of the respective Borrowers owing to the Replaced Bank (other than those specifically described in clause (i) above in respect of which the assignment purchase price has been, or is concurrently being, paid) shall be paid in full to such Replaced Bank concurrently with such replacement. Upon the execution of the respective Assignment and Assumption Agreements, the payment of amounts referred to in clauses (i) and (ii) above and, if so requested by the Replacement Bank, delivery to the Replacement Bank of the appropriate Note or Notes executed by the appropriate Borrower, the Replacement Bank shall become a Bank hereunder and the Replaced Bank shall cease to constitute a Bank hereunder, except with respect to indemnification provisions under this Agreement, which shall survive as to such Replaced Bank. Section 2. Letters of Credit. 2.01 Letters of Credit. (a) Subject to and upon the terms and conditions set forth herein, either of Containers or Plastics may request that BTCo in its individual capacity issue, at any time and from time to time on and after the Initial Borrowing Date and prior to the Working Capital Loan Maturity Date, for the account of Containers or Plastics, as the case may be, an irrevocable standby letter of credit in a form customarily used by BTCo, or in such other form as has been approved by BTCo (each such letter of credit issued pursuant to this Section 2.01(a), and each letter of credit described in the next sentence of this Section 2.01(a), a "Letter of Credit") in support of such obligations of Containers, Plastics or any of their Subsidiaries as may be requested by Containers or Plastics, as the case may be. It is hereby acknowledged and agreed that each of the letters of credit described in Schedule II (the "Existing Letters of Credit"), which were issued by BTCo under the Existing Credit Agreement and remain outstanding on the Initial Borrowing Date, shall constitute a "Letter of Credit" for all purposes of this Agreement. In addition, BTCo shall not be obligated to issue any Letter of Credit at a time when a Bank Default exists unless BTCo has entered into arrangements satisfactory to it and Containers or Plastics, as the case may be, to eliminate BTCo's risk with respect to the Bank which is the subject of the Bank Default, including by cash collateralizing such Bank's Percentage of the Letter of Credit Outstandings. (b) BTCo hereby agrees that it will, at any time and from time to time on and after the Initial Borrowing Date and prior to the Working Capital Loan Maturity Date, following its receipt of the respective Letter of Credit Request, issue for the account of Containers or Plastics, as the case may be, one or more Letters of Credit; provided, that BTCo shall be under no obligation to issue any Letter of Credit if at the time of such issuance: (i) any order, judgment or decree of any governmental authority or arbitrator shall purport by its terms to enjoin or restrain BTCo from issuing such Letter of Credit or any requirement of law applicable to BTCo or any request or directive (whether or not having the force of law) from any governmental authority with jurisdiction over BTCo shall prohibit, or request that BTCo refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon BTCo with respect to such Letter of Credit any restriction or reserve or capital requirement (for which BTCo is not otherwise compen- sated) not in effect on the Effective Date, or any unreimbursed loss, cost or expense which was not applicable, in effect or known to BTCo as of the Effective Date and which BTCo in good faith deems material to it; or (ii) BTCo shall have received notice from the Required Banks prior to the issuance of such Letter of Credit of the type described in the penultimate sentence of Section 2.03(b). (c) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and prior to the issuance of, the respective Letter of Credit) at such time, would exceed the lesser of (x) $15,000,000 and (y) when added to the aggregate principal amount of all Working Capital Loans and Swingline Loans then outstanding, an amount equal to the Total Working Capital Commitment at such time (after giving effect to any reductions to the Total Working Capital Commitment on such date), (ii) no Letter of Credit shall be issued the Stated Amount of which, when added to (x) the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and prior to the issuance of, the respective Letter of Credit) at such time and (y) the aggregate principal amount of all Working Capital Loans and Swingline Loans then outstanding, would exceed an amount equal to the Borrowing Base at such time, and (iii) each Letter of Credit shall by its terms terminate on or before the earlier of (x) one year after the date of issuance thereof (although any such Letter of Credit may be extendable for successive periods up to one year, but not beyond the Working Capital Loan Maturity Date, on terms acceptable to BTCo) and (y) the Working Capital Loan Maturity Date. 2.02 Minimum Stated Amount. The Stated Amount of each Letter of Credit shall be not less than $100,000 or such lesser amount as is acceptable to BTCo. 2.03 Letter of Credit Requests. (a) Whenever Containers or Plastics desires that a Letter of Credit be issued for its account, Containers or Plastics, as the case may be, shall give the Agent and BTCo at least two Business Days' prior written notice thereof. Each notice shall be in the form of Exhibit C (each a "Letter of Credit Request"). The Agent shall promptly transmit copies of each Letter of Credit Request to each Bank. (b) The making of each Letter of Credit Request shall be deemed to be a representation and warranty by Containers or Plastics, as the case may be, that such Letter of Credit may be issued in accordance with, and will not violate the requirements of, Section 2.01(c). Unless BTCo has received notice from the Required Banks before it issues a Letter of Credit that one or more of the conditions specified in Section 5 are not then satisfied, or that the issuance of such Letter of Credit would violate Section 2.01(c), then BTCo may issue the requested Letter of Credit for the account of Containers or Plastics, as the case may be, in accordance with BTCo's usual and customary practices. Upon its issuance of, or its entering into any amendment with respect to, any Letter of Credit, BTCo shall promptly notify the Agent and each Bank of such issuance or amendment and deliver to the Agent and each Bank, a copy of the Letter of Credit actually issued or amended, as the case may be. 2.04 Letter of Credit Participations. (a) Immediately upon the issuance by BTCo of any Letter of Credit (or upon the Initial Borrowing Date in the case of the Existing Letters of Credit), BTCo shall be deemed to have sold to each Bank with a Working Capital Commitment, other than BTCo (each such Bank, in its capacity under this Section 2.04, a "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased from BTCo, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Percentage in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of Containers or Plastics, as the case may be, under this Agreement with respect thereto, in the respective Letter of Credit Fees payable with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Working Capital Commitments of the Banks pursuant to Section 12.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Percentages of the assignor and assignee Bank. (b) In determining whether to pay under any Letter of Credit, BTCo shall not have any obligation relative to the Participants therein other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by BTCo under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for BTCo any resulting liability to Containers, Plastics, any Participant or any other Bank. (c) In the event that BTCo makes any payment under any Letter of Credit and Containers or Plastics, as the case may be, shall not have reimbursed such amount in full to BTCo pursuant to Section 2.05(a), BTCo shall promptly notify the Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Agent for the account of BTCo, the amount of such Participant's Percentage of such unreimbursed payment in Dollars and in same day funds. If the Agent so notifies, prior to 11:00 a.m. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Agent for the account of BTCo such Participant's Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to the Agent for the account of BTCo, such Participant agrees to pay to the Agent for the account of BTCo, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Agent for the account of BTCo at the overnight Federal Funds Rate. The failure of any Participant to make available to the Agent for the account of BTCo its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Agent for the account of BTCo its Percentage of any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Agent for the account of BTCo such other Participant's Percentage of any such payment. (d) Whenever BTCo receives a payment of a reimbursement obligation as to which the Agent has received for the account of BTCo any payments from the respective Participants pursuant to clause (c) above, BTCo shall pay to the Agent and the Agent shall promptly pay to each such Participant which has paid its Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations. (e) Upon the request of any Participant, BTCo shall furnish to such Bank copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant. (f) The obligations of the respective Participants to make payments to the Agent for the account of BTCo with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances: (i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents; (ii) the existence of any claim, set-off, defense or other right which any Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, BTCo, any Bank, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between any Borrower and the beneficiary named in any such Letter of Credit); (iii) any draft, certificate or any other document presented under the Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or in- accurate in any respect; (iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or (v) the occurrence of any Default or Event of Default. 2.05 Agreement to Repay Letter of Credit Drawings. (a) Each of Containers and Plastics hereby agrees to reimburse BTCo, by making payment to the Agent in immediately available funds at the Payment Office, for any pay- ment or disbursement made by BTCo under any Letter of Credit issued for its account (each such amount so paid or disbursed until reimbursed, an "Unpaid Drawing") immediately after, and in any event on the date of, such payment or disbursement with interest on the amount so paid or disbursed by BTCo, to the extent not reimbursed prior to 12:00 Noon (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but not including the date BTCo was reimbursed therefor at a rate per annum which shall be the Base Rate in effect from time to time plus the Applicable Margin in respect of Working Capital Loans; provided, however, to the extent such amounts are not reimbursed prior to 12:00 Noon (New York time) on the first Business Day following such payment or disbursement, interest shall thereafter accrue on the amounts so paid or disbursed by BTCo (and until reimbursed by Containers or Plastics, as the case may be) at a rate per annum which shall be the Base Rate in effect from time to time plus the Applicable Margin in respect of Working Capital Loans plus 2%, in each such case, with such interest to be payable on demand. (b) The obligations of Containers and Plastics under this Section 2.05 to reimburse BTCo with respect to Unpaid Drawings (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment which Containers or Plastics may have or have had against any Bank (including in such Bank's capacity as issuer of the Letter of Credit or as a Participant with respect thereto), including, without limitation, any defense based upon the failure of any drawing under a Letter of Credit (each a "Drawing") to conform to the terms of the Letter of Credit or any non- application or misapplication by the beneficiary of the proceeds of such Drawing; provided, however, that Containers and Plastics shall not be obligated to reimburse BTCo for any wrongful payment made by BTCo under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of BTCo. 2.06 Increased Costs. If at any time after the Effective Date, the introduction of or any change in applicable law, rule or regulation, guideline or in the interpretation or administration thereof by any governmental authority charged with the interpretation or administration thereof, or compliance by BTCo or any Participant with any request or directive by any such authority (whether or not having the force of law), or any change in generally accepted accounting principles, shall either (i) impose, modify or deem applicable any reserve, deposit, capital adequacy or similar requirement against letters of credit issued by BTCo or participated in by any Participant, or (ii) impose on BTCo or any Participant any other conditions relating, directly or indirectly, to this Agreement or any respective Letter of Credit, and the result of any of the foregoing is to increase the cost to BTCo or any Participant of issuing, maintaining or participating in any such Letter of Credit, or reduce the amount of any sum received or receivable by BTCo or any Participant hereunder, then, upon demand to Containers or Plastics by BTCo or such Participant (a copy of which notice shall be sent by BTCo or such Participant to the Agent), Containers or Plastics, as the case may be, shall pay to BTCo or such Participant the additional amount or amounts as will compensate BTCo or such Participant for such increased cost or reduction together with interest on each such amount from the date demanded until payment in full thereof at the Base Rate in effect from time to time plus the then Applicable Margin in respect of Working Capital Loans plus 2%. A certificate submitted to Containers or Plastics by BTCo or such Participant, as the case may be (a copy of which certificate shall be sent by BTCo or such Participant to the Agent), setting forth the basis for the determination of such additional amount or amounts necessary to compensate BTCo or such Participant as aforesaid, shall be conclusive and binding on Containers or Plastics, as the case may be, absent manifest error, as to the amount thereof. Section 3. Fees; Commitments; Reductions of Commitments. 3.01 Fees. (a) Silgan agrees to pay to the Agent for distribution to each Bank with a Term Loan Commitment, a commitment commission (the "Term Loan Commitment Commission") for the period from the Effective Date to but excluding the date on which the Total Term Loan Commitment shall have been terminated, computed at a rate equal to 1/2 of 1% per annum on the daily average Term Loan Commitments of such Bank. Accrued Term Loan Commitment Commission shall be due and payable on the Initial Borrowing Date or, if earlier, on the date on which the Total Term Loan Commitment shall have been terminated. (b) Each of Containers and Plastics jointly and severally agrees to pay to the Agent for distribution to each Bank with a Working Capital Commitment a commitment commission (the "Working Capital Commitment Commission") for the period from the Effective Date to but excluding the Working Capital Loan Maturity Date (or such earlier date as the Total Working Capital Commitment shall have been terminated), computed at a rate equal to 1/2 of 1% per annum on the daily average Unutilized Working Capital Commitment of such Bank. Accrued Working Capital Commitment Commission shall be due and payable quarterly in arrears on each Quarterly Payment Date and on the Working Capital Loan Maturity Date or upon such earlier date as the Total Working Capital Commitment shall have been terminated. (c) Each of Containers and Plastics jointly and severally agrees to pay to the Agent for proportionate distribution to each Bank with a Working Capital Commitment (based upon their respective Percentages) a fee in respect of each Letter of Credit issued hereunder (the "Letter of Credit Fee") for the period from and including the date of issuance of such Letter of Credit (or, in the case of the Existing Letters of Credit, from the Initial Borrowing Date) to and including the termination of such Letter of Credit, computed at a rate per annum of 3% on the daily average Stated Amount of such Letter of Credit. Accrued Letter of Credit Fees shall be due and payable quarterly in arrears on each Quarterly Payment Date and upon the first day after the termination of the Total Working Capital Commitment upon which no Letters of Credit remain outstanding. (d) Each of Containers and Plastics jointly and severally agrees to pay to the Agent, for the account of BTCo, a facing fee in respect of each Letter of Credit issued by BTCo for the account of Containers or Plastics (the "Facing Fee"), computed at a rate of 1/4 of 1% per annum on the daily average Stated Amount of such Letter of Credit. Accrued Facing Fees shall be due and payable quarterly in arrears on each Quarterly Payment Date and upon the first day after the termination of the Total Working Capital Commitment upon which no Letters of Credit remain outstanding. (e) Each of Containers and Plastics jointly and severally agrees to pay to the Agent, for the account of BTCo, in respect of each Letter of Credit issued for the account of such Borrower, such amount or amounts as BTCo customarily charges as processing fees for issuing, amending and paying on letters of credit. (f) The Borrowers jointly and severally agree to pay to the Agent and the Co-Agent, for their own accounts, such fees as may be agreed to from time to time between the Borrowers and the Agent and Co-Agent. 3.02 Voluntary Termination of Working Capital Commitments. Upon at least three Business Days' prior written notice (or telephonic notice promptly confirmed in writing) by any Borrower to the Agent at its Notice Office (which notice the Agent shall promptly transmit to each of the Banks), any Borrower shall have the right, with out premium or penalty, to terminate the Total Unutilized Working Capital Commitment, in whole or, if in part, in integral multiples of $1,000,000, provided, that each such reduction shall apply proportionately to permanently reduce the Working Capital Commitment of each Bank. 3.03 Mandatory Reduction or Termination of Commitments. (a) The Total Commitment (and the A Term Loan Commitment, the B Term Loan Commitment and the Working Capital Commitment of each Bank) shall terminate on December 31, 1993 unless the Initial Borrowing Date has occurred on or prior to such date. (b)(i) In addition to any other mandatory commitment reductions pursuant to this Section 3.03, the Total A Term Loan Commitment (and the A Term Loan Commitment of each Bank) shall (x) terminate in its entirety on the Initial Borrowing Date (after giving effect to the making of the A Term Loans on such date) and (y) prior to the termination of the Total A Term Loan Commitment as provided in clause (x) above, be reduced from time to time to the extent required by Section 4.02. (ii) In addition to any other mandatory commitment reductions pursuant to this Section 3.03, the Total B Term Loan Commitment (and the B Term Loan Commitment of each Bank) shall (x) terminate in its entirety on the Initial Borrowing Date (after giving effect to the making of the B Term Loans on such date) and (y) prior to the termination of the Total B Term Loan Commitment as provided in clause (y) above, be reduced from time to time to the extent required by Section 4.02. (c) In addition to any other mandatory commitment reductions pursuant to this Section 3.03, the Total Working Capital Commitment (and the Working Capital Commitment of each Bank) shall terminate in its entirety on the Working Capital Loan Maturity Date. (d) In addition to any other mandatory commitment reductions pursuant to this Section 3.03, on each date after the Initial Borrowing Date upon which a mandatory repayment of Term Loans pursuant to Section 4.02(e), (f), (g), (h) and/or (j) is required (and exceeds in amount the aggregate principal of Term Loans then outstanding) or would be required if Term Loans were then outstanding, the Total Working Capital Commitment shall be permanently reduced by the amount, if any, by which the amount of such required repayment (determined as if an unlimited amount of Term Loans were actually outstanding) exceeds the aggregate principal amount of Term Loans then outstanding. (e) In addition to any other mandatory commitment reductions pursuant to this Section 3.03, the Total Working Capital Commitment shall be permanently reduced at the time of any voluntary prepayment of B Term Loans made pursuant to Section 4.01 in an amount which equals the Total Working Capital Commitment at such time multiplied by a fraction the numerator of which is the principal amount of B Term Loans so prepaid and the denominator of which is the total principal amount of B Term Loans then outstanding (immediately before giving effect to such prepayment). (f) Each reduction to the Total A Term Loan Commitment, the Total B Term Loan Commitment and the Total Working Capital Commitment pursuant to this Section 3.03 shall be applied proportionately to reduce the A Term Loan Commitment, the B Term Loan Commitment or the Working Capital Commitment, as the case may be, of each Bank with such a Commitment. Section 4. Prepayments; Payments; Commitment and Available Amount Reductions. 4.01 Voluntary Prepayments. Each Borrower shall have the right to prepay the Loans made to such Borrower, without premium or penalty, in whole or in part at any time and from time to time on the following terms and conditions: (i) such Borrower shall give the Agent at its Notice Office (x) at least one Business Day's prior written notice (or telephonic notice promptly confirmed in writing) of its intent to prepay Base Rate Loans (or same day notice in the case of Swingline Loans provided such notice is given prior to 3:00 P.M. (New York time) on such Business Day) and (y) at least three Business Days' prior written notice (or telephonic notice promptly confirmed in writing) of its intent to prepay Eurodollar Loans, whether A Term Loans, B Term Loans, Working Capital Loans or Swingline Loans shall be prepaid, the amount of such prepayment and the Types of Loans to be prepaid and, in the case of Eurodollar Loans, the specific Borrowing or Borrowings pursuant to which made, which notice the Agent shall promptly transmit to each of the Banks; (ii) each prepayment shall be in an aggregate principal amount of at least $1,000,000 (or $250,000 in the case of Swingline Loans); provided, that if any partial prepayment of Eurodollar Loans made pursuant to any Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to such Borrowing to an amount less than $5,000,000 in the case of a Borrowing of any Tranche of Term Loans or $1,000,000 in the case of a Borrowing of Working Capital Loans, then such Borrowing may not be continued as a Borrowing of Eurodollar Loans and any election of an Interest Period with respect thereto given by such Borrower shall have no force or effect; (iii) prepayments of Eurodollar Loans made pursuant to this Section 4.01 may only be made on the last day of an Interest Period applicable thereto; (iv) prepayments of B Term Loans pursuant to this Section 4.01 may only be made after all A Term Loans have been repaid in full; (v) each prepayment in respect of any Tranche of Loans made pursuant to a Borrowing shall be applied pro rata among such Tranche of Loans and (vi) each voluntary prepayment of B Term Loans shall be accompanied by a reduction to the Total Working Capital Commitment as provided in Section 3.03(e). 4.02 Mandatory Prepayments; Commitment and Available Amount Reductions. (a) If any Borrowing Base Certificate delivered pursuant to Section 7.01(i) shall disclose the existence of a Borrowing Base Deficiency, Containers and/or Plastics shall, on the day the delivery of such Borrowing Base Certificate is required by Section 7.01(i), prepay a principal amount of outstanding Swingline Loans in such amounts as are needed to eliminate the Borrowing Base Deficiency. To the extent that a Borrowing Base Deficiency continues to exist after repayment in full of all outstanding Swingline Loans, Containers and/or Plastics shall prepay the principal of Working Capital Loans in an amount equal to such remaining Borrowing Base Deficiency and, to the extent such Borrowing Base Deficiency exceeds the principal amount of then outstanding Working Capital Loans, pay an amount of cash or Cash Equivalents equal to such remaining Borrowing Base Deficiency (up to a maximum amount equal to the Letter of Credit Outstandings at such time) to the Agent at the Payment Office, such cash or Cash Equivalents to be held as security for all obligations of Containers and Plastics hereunder in a cash collateral account (the "Cash Collateral Account") established and maintained by the Agent; provided, that such amounts shall, so long as no Default or Event of Default then exists, be released to Containers or Plastics, as the case may be, from time to time to the extent in excess of the Borrowing Base Deficiency. (b) On any day on which the sum of the aggregate outstanding principal amount of Working Capital Loans, Swingline Loans and the Letter of Credit Outstandings exceeds the Total Working Capital Commitment as then in effect, Containers and/or Plastics shall prepay on such day principal of Swingline Loans and, after the Swingline Loans have been repaid in full, Working Capital Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Swingline Loans and Working Capital Loans, the aggregate amount of the Letter of Credit Outstandings exceeds the Total Working Capital Commitment as then in effect, Containers and/or Plastics shall pay to the Agent at the Payment Office on such day an amount of cash or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to the Letter of Credit Outstandings at such time), such cash or Cash Equivalents to be held as security for all obligations of Containers and Plastics hereunder in the Cash Collateral Account; provided, that such amounts shall, so long as no Default or Event of Default then exists, be released to Containers or Plastics, as the case may be, from time to time in the amount by which the Total Working Capital Commitment as then in effect equals or exceeds the sum of the aggregate outstanding principal amount of Working Capital Loans, Swingline Loans and the Letter of Credit Outstandings at such time. (c) In addition to any other mandatory repayments or commitment reductions pursuant to this Section 4.02, on each date set forth below, Silgan shall be required to repay that principal amount of A Term Loans, to the extent then outstanding, as is set forth opposite such date (each such repayment, as the same may be reduced in amount as provided in Section 4.01 and Section 4.02(i), an "A Term Loan Scheduled Repayment," and each such date, an "A Term Loan Scheduled Repayment Date"): A Term Loan Scheduled Repayment Date Amount ------------------------ ------ September 30, 1994 $ 5,000,000 December 31, 1994 $15,000,000 September 30, 1995 $ 5,000,000 December 31, 1995 $15,000,000 September 15, 1996 $20,000,000 (d) In addition to any other mandatory repayments or commitment reductions pursuant to this Section 4.02, Silgan shall be required to repay in full on the B Term Loan Maturity Date the principal amount of all B Term Loans then outstanding. (e) In addition to any other mandatory repayments or commitment reductions pursuant to this Section 4.02, on each Excess Cash Payment Date, an amount equal to 75% of Excess Cash Flow for the relevant Excess Cash Payment Period shall be applied as required by Section 4.02(i). (f) In addition to any other mandatory repayments or commitment reductions pursuant to this Section 4.02, on each date of any sale of assets (excluding sales of inventory in the ordinary course of business and sales of other assets (other than assets constituting Real Property) in the ordinary course of business not in excess of $100,000 per sale) by Silgan or any of its Subsidiaries on or after the Effective Date, and on the date of each sale or issuance of equity by any Subsidiary of Silgan (except sales or issuances of equity to Silgan to the extent that the sale or issuance thereof does not give rise to a repayment of (or an obligation to make an offer to repay) Senior Notes in accordance with the terms of the Senior Note Agreement), an amount equal to 80% of the Net Sale Proceeds from such sale of assets or 100% of the Net Equity Proceeds from such sale or issuance of equity, shall in each case be applied as a mandatory repayment (or, in the case of the Bank Debt, a repayment and/or commitment reduction, together with any prepayments or cash collateralizations required as a result thereof) of the then outstanding Senior Debt, with each Issue of Senior Debt to receive its Share of the amount required to be so applied (except to the extent the holders of the Senior Notes do not require that their full Share be so applied to prepay Senior Notes, in which case the amount of their Share not so applied to prepay Senior Notes shall be applied to the Bank Debt as required below) and with the amount required to repay Bank Debt to be applied as required by the immediately succeeding sentence; provided, however, that to the extent the amount of Net Sale Proceeds from any sale of assets, together with the amount of all prior Net Sale Proceeds realized from such sales of assets by Silgan and any of its Subsidiaries from and after June 29, 1992, equals or is greater than $7,000,000 an amount equal to 100% of such Net Sale Proceeds from such sale shall be applied as a mandatory repayment of Senior Debt in the manner provided in this clause (f). All amounts required to be applied to Bank Debt pursuant to this Section 4.02(f) shall be applied as required by Section 4.02(i). (g) In addition to any other mandatory repayments or commitment reductions pursuant to this Section 4.02, following any mandatory repayment of Senior Debt required by Section 4.02(f) with respect to which the Shares of the various Issues of Senior Debt have been calculated in accordance with clause (A) of the definition of "Share", on the first date thereafter upon which it is subsequently determined that the amount which will actually be used to mandatorily prepay Senior Notes is less than the Share applicable thereto (whether because the holders of the Senior Notes elected not to receive such prepayment, or otherwise), then the amount which will not be so used to mandatorily prepay the Senior Notes shall instead be applied to Bank Debt on the same basis as is required by the last sentence of Section 4.02(f). (h) Upon receipt thereof by Silgan or Holdings, an amount equal to 50% of the Net Equity Proceeds of any sale of equity by Silgan (except sales of equity to Holdings) or Holdings (except sales of equity referred to in Section 5.01(f)) shall be applied by Silgan in accordance with Section 4.02(i). (i) Any amount required to be applied pursuant to this Section 4.02(i) shall be applied by Silgan (i) first, as a mandatory repayment of the then outstanding principal amount of Term Loans (or, if prior to the Initial Borrowing Date, as a mandatory reduction to the Total Term Loan Commitment) and (ii) second, to the extent in excess of the amount required to be applied pursuant to preceding clause (i), such amount shall be applied to reduce the Total Working Capital Commitment. The amount to be applied to repay principal of Term Loans (or, if prior to the Initial Borrowing Date, as a mandatory reduction to the Total Term Loan Commitment) as required by this Section 4.02(i) shall be applied pro rata to each Tranche of Term Loans (with each Tranche of Terms Loans to be allocated that percentage of the amount to be applied as is equal to a fraction (expressed as a percentage) the numerator of which is the then outstanding principal amount of such Tranche of Term Loans (or, if prior to the Initial Borrowing Date, the Total A Term Loan Commitment or the Total B Term Loan Commitment, as the case may be, as then in effect) and the denominator of which is equal to the then outstanding principal amount of all Term Loans (or, if prior to the Initial Borrowing Date, the Total Term Loan Commitment as then in effect). The amount of each principal repayment of A Term Loans (or, if prior to the Initial Borrowing Date, the amount of each reduction to the Total A Term Loan Commitment) made as required by this Section 4.02(i) shall be applied to reduce the then remaining A Term Loan Scheduled Repayments on a pro rata basis (after giving effect to all prior reductions thereto). (j) If as a result of any Change of Control Silgan repurchases less than 25% of the aggregate principal amount of Senior Notes then outstanding pursuant to the terms of the Senior Note Agreement, Silgan shall, on the date or dates that it is required to repurchase such Senior Notes, apply as a mandatory repayment (or a repayment and/or commitment reduction, together with any repayments or cash collateralizations required as a result thereof) of then outstanding Bank Debt an amount equal to the aggregate amount so applied to repurchase Senior Notes multiplied by a fraction the numerator of which is the Bank Debt Amount immediately before giving effect to such repayment and the denominator of which is the aggregate principal amount of outstanding Senior Notes immediately before giving effect to the respective repurchase of Senior Notes on such date. All amounts so required to be applied to repay Bank Debt shall be applied as provided in Section 4.02(i). (k) With respect to each repayment of any Tranche of Loans required by this Section 4.02, the respective Borrower may designate the Types of Loans which are to be repaid and, in the case of Eurodollar Loans, the specific Borrowing or Borrowings pursuant to which made, provided that: (i) repayments of Eurodollar Loans made pursuant to this Section 4.02 may only be made on the last day of an Interest Period applicable thereto unless all such Eurodollar Loans of the respective Tranche with Interest Periods ending on such date of required repayment and all Base Rate Loans of the respective Tranche have been paid in full; (ii) if any repayment of Eurodollar Loans made pursuant to a single Borrowing shall reduce the outstanding Loans made pursuant to such Borrowing to an amount less than $5,000,000 (or $1,000,000 in the case of a Borrowing of Working Capital Loans) such Borrowing shall immediately be converted into Base Rate Loans; and (iii) each repayment of any Loans made pursuant to a Borrowing shall be applied pro rata among such Loans. In the absence of a designation by the respective Borrower as described in the preceding sentence, the Agent shall, subject to the above, make such designation in its sole discretion. (l) Notwithstanding anything to the contrary contained elsewhere in this Agreement, all then outstanding Loans of a respective Tranche shall be repaid in full on the respective Maturity Date for such Tranche of Loans. 4.03 Method and Place of Payment. Except as otherwise specifically provided herein, all payments under this Agreement or any Note shall be made to the Agent for the account of the Bank or Banks entitled thereto not later than 12:00 Noon (New York time) on the date when due and shall be made in Dollars in immediately available funds at the Payment Office of the Agent. Whenever any payment to be made hereunder or under any Note shall be stated to be due on a day which is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest shall be payable at the applicable rate during such extension. 4.04 Net Payments. (a) All payments made by each Borrower hereunder or under any Note will be made without setoff, counterclaim or other defense. Except as provided in Section 4.04(b), all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, except as provided in the immediately succeeding sentence, any tax imposed on or measured by the net income or profits of a Bank pursuant to the laws of the jurisdiction in which it is organized or in which the principal office or applicable lending office of such Bank is located or any subdivision thereof or therein) and all interest, penalties or similar liabilities with respect thereto (collectively, "Taxes"). If any amounts are payable in respect of Taxes pursuant to the preceding sentence, then such Borrower agrees to reimburse each Bank, upon the written request of such Bank, for taxes imposed on or measured by the net income or profits of such Bank pursuant to the laws of the jurisdiction in which it is organized or in which the principal office or applicable lending office of such Bank is located or under the laws of any political subdivision or taxing authority of any such jurisdiction and for any withholding of income or similar taxes imposed by the United States as such Bank shall determine are payable by, or withheld from, such Bank in respect of such amounts so paid to or on behalf of such Bank pursuant to the preceding sentence and in respect of any amounts paid to or on behalf of such Bank pursuant to this sentence. If any Taxes are so levied or imposed, such Borrower agrees to pay the full amount of such Taxes, and such additional amounts as may be necessary so that every payment of all amounts due under this Agreement or under any Note, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Note. Each Borrower will furnish to the Agent within 45 days after the date the payment of any Taxes is due pursuant to applicable law certified copies of tax receipts evidencing such payment by such Borrower. Each Borrower agrees to indemnify and hold harmless each Bank, and reimburse such Bank upon its written request, for the amount of any Taxes so levied or imposed and paid by such Bank. (b) Each Bank which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for United States Federal income tax purposes agrees (i) in the case of any such Bank that is a "bank" within the meaning of Section 881(c)(3)(A) of the Code and which constitutes a Bank hereunder on the Initial Borrowing Date, to provide to each Borrower and the Agent on or prior to the Initial Borrowing Date two original signed copies of Internal Revenue Service Form 4224 or Form 1001 certifying to such Bank's entitlement to an exemption from United States withholding tax with respect to payments to be made under this Agreement and under any Note, (ii) in the case of any such Bank that is a "bank" within the meaning of Section 881(c)(3)(A) of the Code, that, to the extent legally entitled to do so, (x) with respect to a Bank that is an assignee or transferee of an interest under this Agreement pursuant to Section 12.04 (unless the respective Bank was already a Bank hereunder immediately prior to such assignment or transfer), upon the date of such assignment or transfer to such Bank, and (y) with respect to any such Bank, from time to time upon the reasonable written request of any Borrower or the Agent after the Initial Borrowing Date, such Bank will provide to such Borrower and the Agent two original signed copies of Internal Revenue Service Form 4224 or Form 1001 (or any successor forms) certifying to such Bank's entitlement to an exemption from, or reduction in, United States withholding tax with respect to payments to be made under this Agreement and under any Note, (iii) in the case of any such Bank (other than a Bank described in clause (i) or (ii) above) which constitutes a Bank hereunder on the Initial Borrowing Date, to provide to such Borrower and the Agent, on or prior to the Initial Borrowing Date (x) a certificate substantially in the form of Exhibit D (any such certificate, a "Section 4.04(b)(iii) Certificate") and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8, certifying to such Bank's entitlement at the date of such certificate (assuming compliance by such Borrower with Section 7.12) to an exemption from United States withholding tax under the provisions of Section 881(c) of the Code with respect to payments to be made under this Agreement and under any Note and (iv) in the case of any such Bank (other than a Bank described in clause (i) or (ii) above), to the extent legally entitled to do so, (x) with respect to a Bank that is an assignee or transferee of an interest under this Agreement pursuant to Section 12.04 (unless the respective Bank was already a Bank hereunder immediately prior to such assignment or transfer), upon the date of such assignment or transfer to such Bank, and (y) with respect to any such Bank, from time to time upon the reasonable written request of such Borrower or the Agent after the Initial Borrowing Date, to provide to such Borrower and the Agent such other forms as may be required in order to establish the entitlement of such Bank to an exemption from withholding with respect to payments under this Agreement and under any Note. Notwithstanding anything to the contrary contained in Section 4.04(a), but subject to the immediately succeeding sentence, each Borrower shall be entitled, to the extent it is required to do so by law, to deduct or withhold income or similar taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein) from interest, fees or other amounts payable hereunder (without any obligation to pay the respective Bank additional amounts with respect thereto) for the account of any Bank which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for United States Federal income tax purposes and which has not provided to such Borrower such forms required to be provided to such Borrower pursuant to the first sentence of this Section 4.04(b). Notwithstanding anything to the contrary contained in the preceding sentence and except as set forth in Section 12.04(b) in the case of subsequent assignees, each Borrower agrees to indemnify each Bank in the manner set forth in Section 4.04(a) in respect of any amounts deducted or withheld by it as described in the immediately preceding sentence as a result of any changes after the Effective Date in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of income or similar Taxes. Section 5. Conditions Precedent. 5.01 Conditions to Loans on the Initial Borrowing Date. The obligation of each Bank to make Loans, and the obligation of BTCo to issue Letters of Credit, in each case on the Initial Borrowing Date is subject at the time of the making of such Loans or the issuance of such Letters of Credit to the satisfaction of the following conditions: (a) Execution of Agreement; Notes. On or prior to the Initial Borrowing Date, (i) the Effective Date shall have occurred and (ii) there shall have been delivered to the Agent for the account of each of the Banks the appropriate A Term Note, B Term Note and/or Working Capital Note executed by the appropriate Borrower, and to BTCo the appropriate Swingline Notes executed by the appropriate Borrower, in each case in the amount, maturity and as otherwise provided herein. (b) Officer's Certificate. On the Initial Borrowing Date, the Agent shall have received a certificate dated the Initial Borrowing Date signed by the President or any Vice President of Silgan stating that all of the applicable conditions in Sections 5.01(f), (g), (h), (n), (o), and (p), 5.02 and 5.03 have been satisfied on such date. (c) Opinions of Counsel. On the Initial Borrowing Date, the Agent shall have received (i) from Winthrop, Stimson, Putnam & Roberts, counsel to the Borrowers, an opinion addressed to the Agent, the Co- Agent and each of the Banks and dated the Initial Borrowing Date covering the matters set forth in Exhibit E and such other matters inci- dent to the transaction contemplated herein as the Agent or Co-Agent may reasonably request and (ii) from local counsel reasonably satisfactory to the Agent and the Co-Agent opinions each of which shall be in form and substance satisfactory to the Agent, the Co-Agent and the Required Banks and shall cover the perfection of the security interests granted pursuant to the Security Documents and such other matters incident to the transactions contemplated herein as the Agent, the Co-Agent or the Required Banks may reasonably request. (d) Corporate Documents; Proceedings. (i) On the Initial Borrowing Date, the Agent shall have received a certificate, dated the Initial Borrowing Date, signed by the President or any Vice President of each Credit Party, and attested to by the Secretary or any Assistant Secretary of such Credit Party, in the form of Exhibit F with appropriate insertions, together with copies of the Certificate of Incorporation and By-Laws of such Credit Party and the resolutions of such Credit Party referred to in such certificate, and the foregoing shall be acceptable to the Agent and the Co-Agent in their reasonable discretion. (ii) All corporate and legal proceedings and all instruments and agreements in connection with the transactions contemplated by this Agreement and the other Credit Documents and the Acquisition Documents shall be satisfactory in form and substance to the Agent, the Co-Agent and the Required Banks, and the Agent and the Co-Agent shall have received all information and copies of all documents and papers, includ- ing records of corporate proceedings, governmental approvals, good standing certificates and bring-down telegrams, if any, which the Agent or the Co-Agent reasonably may have requested in connection therewith, such documents and papers where appropriate to be certified by proper corporate or governmental authorities. (e) Plans; Shareholders' Agreements; Management Agreements; Debt Agreements. On the Initial Borrowing Date, there shall have been delivered to the Agent true and correct copies, certified as true and complete by an appropriate officer of Silgan of (i) the most recent IRS Form 5500, Schedule B ("Actuarial Information") for each Plan, (ii) all agreements entered into by Holdings or any of its Subsidiaries governing the terms and relative rights of its capital stock and any agreements entered into by shareholders relating to any such entity with respect to its capital stock (collectively, the "Shareholders' Agreements"), (iii) all agreements with members of, or with respect to, the management of Holdings or any of its Subsidiaries (collectively, the "Management Agreements") and (iv) all agreements evidencing or relating to Indebtedness of Holdings or any of its Subsidiaries which is to remain outstanding after giving effect to the incurrence of Loans on the Initial Borrowing Date if the aggregate principal amount of the respec- tive Indebtedness exceeds (or upon utilization of any unused commitments may exceed) $100,000 (collectively, the "Debt Agreements"); all of which Shareholders' Agreements, Management Agreements and Debt Agreements shall be in form and substance satisfactory to the Agent, the Co-Agent and the Required Banks and shall be in full force and effect on the Initial Borrowing Date. (f) Holdings Common Stock Issuance. On or prior to the Initial Borrowing Date, (x) Holdings shall have received cash proceeds in an aggregate amount of at least $15,000,000 in connection with the issuance by Holdings of its common stock to First Plaza Group Trust (a group trust under and for the benefit of certain pension plans of General Motors Corporation and its Subsidiaries), (y) Holdings shall have contributed all of the proceeds received by it pursuant to the immediately proceeding clause (x) to Silgan, which cash proceeds, when aggregated with the amount available under the Total Term Loan Commitment plus no more than $35,000,000 of Working Capital Loans incurred on the Initial Borrowing Date, shall be sufficient to consummate the Transaction and to pay all fees and expenses owing in connection therewith, and (z) the Banks shall have received true and correct copies of all documents executed and delivered in connection with such issuance, each of which shall be in full force and effect and shall be in form and substance satisfactory to the Agent, the Co-Agent and the Required Banks. In addition, all new owners of the common stock of Holdings and their relative equity interests in Holdings shall be satisfactory to the Agent, the Co-Agent and the Required Banks. (g) Repayment and Termination of Commitments under the Existing Credit Agreements. On the Initial Borrowing Date, concurrently with the consummation of the Transaction and the incurrence of Term Loans and Working Capital Loans, the total commitments under the Existing Credit Agreement shall have been terminated, and all loans thereunder shall have been repaid in cash in full, together with all accrued interest and fees thereon, all letters of credit (other than the Existing Letters of Credit, if any) issued thereunder shall have been terminated, and all other amounts owing pursuant to the Existing Credit Agreement shall have been repaid in full. The Agent and the Co-Agent shall have received evidence in form, scope and substance satisfactory to them that the matters set forth in this Section 5.01(g) have been satisfied on such date. (h) The Acquisition. On or prior to the Initial Borrowing Date, the Banks shall have received true and correct copies of the Acquisition Documents, which Acquisition Documents shall be in form and substance satisfactory to the Agent, the Co-Agent and the Required Banks. Each of the conditions precedent to the consummation of the Acquisition shall have been satisfied and not waived except with the consent of the Agent, the Co-Agent and the Required Banks, to the satisfaction of the Agent, the Co-Agent and the Required Banks. The representations and warranties set forth in the Acquisition Documents shall be true and correct in all material respects as if made on and as of the Initial Borrowing Date. On the Initial Borrowing Date, the Acquisition shall have been consummated in accordance with the Acquisition Documents and all applicable laws and Containers shall have entered into the Supply Contract. The assets constituting the Acquired Business shall have been purchased by Containers free and clear of all Liens other than Permitted Liens. (i) Guaranties. (i) On the Initial Borrowing Date, Holdings shall have duly authorized, executed and delivered an Amended and Restated Holdings Guaranty in the form of Exhibit G-1 (as modified, supplemented or amended from time to time, the "Holdings Guaranty"), and the Holdings Guaranty shall be in full force and effect. (ii) On the Initial Borrowing Date, each of Silgan, Containers, Plastics and DM Can shall have duly authorized, executed and delivered an Amended and Restated Borrowers Guaranty in the form of Exhibit G-2 (as modified, supplemented or amended from time to time, the "Borrowers Guaranty"), and the Borrowers Guaranty shall be in full force and effect. (j) Contribution Agreement. On the Initial Borrowing Date, DM Can shall have duly authorized, executed and delivered a counterpart to the Contribution Agreement, whereby DM Can shall become a party to, and bound by all of the terms and conditions of, the Contribution Agreement, and Schedule I to the Contribution Agreement shall be modified to reflect the new payment percentages of the parties thereto in a manner satisfactory to the Agent, the Co-Agent and the Required Banks, and the Contribution Agreement shall be in full force and effect. (k) Pledge Agreements. (i) On the Initial Borrowing Date, (i) Silgan shall have duly authorized, executed and delivered an amendment to the Silgan Pledge Agreement in the form of Exhibit H-1, (ii) the Silgan Pledge Agreement, as so amended, shall be in full force and effect, (iii) no filings, recordings, registrations or other actions shall be necessary or desirable to maintain the perfection and priority of the security interests granted pursuant thereto in the Pledge Agreement Collateral covered thereby and (iv) all the Pledged Securities referred to therein then owned by Silgan (x) endorsed in blank in the case of promissory notes constituting Pledged Securities and (y) together with executed and undated stock powers in the case of capital stock constituting Pledged Securities, shall have been delivered to the Collateral Agent, as Pledgee. (ii) On the Initial Borrowing Date, (i) Containers, Plastics and DM Can shall have duly authorized, executed and delivered an amendment to the Subsidiaries Pledge Agreement in the form of Exhibit H-2, (ii) the Subsidiaries Pledge Agreement, as so amended, shall be in full force and effect, and DM Can shall have become a party to, and bound by all of the terms and conditions of, the Subsidiaries Pledge Agreement, (iii) no filings, recordings, registrations or other actions shall be necessary or desirable to maintain the perfection and priority of the security interests granted pursuant thereto in the Pledge Agreement Collateral covered thereby and (iv) all the Pledged Securities referred to therein then owned by each such Credit Party, (x) endorsed in blank in the case of promissory notes constituting Pledged Securities and (y) together with executed and undated stock powers in the case of capital stock constituting Pledged Securities (including, but not limited to, the capital stock of DM Can), shall have been delivered to the Collateral Agent, as Pledgee. (iii) On the Initial Borrowing Date, (i) Holdings shall have duly authorized, executed and delivered an amendment to the Holdings Pledge Agreement in the form of Exhibit H-3, (ii) the Holdings Pledge Agreement, as so amended, shall be in full force and effect, (iii) no filings, recordings, registrations or other actions shall be necessary or desirable to maintain the perfection and priority of the security interest granted pursuant thereto in the Pledge Agreement Collateral covered thereby and (iv) all the Pledged Securities referred to therein then owned by Holdings (x) endorsed in blank in the case of promissory notes constituting Pledged Securities and (y) together with executed and undated stock powers in the case of capital stock constituting Pledged Securities, shall have been delivered to the Collateral Agent, as Pledgee. (l) Security Agreement. On the Initial Borrowing Date, (i) Containers, Plastics and DM Can shall have duly authorized, executed and delivered an amendment to the Security Agreement in the form of Exhibit I, (ii) the Security Agreement, as so amended, shall be in full force and effect, and DM Can shall have become a party to, and bound by all of the terms and conditions of, the Security Agreement, and (iii) except as provided below in this Section 5.01(l), no filings, recordings, registrations or other actions shall be necessary or desirable to maintain the perfection and priority of the security interest granted pursuant to the Security Agreement in the Security Agreement Collateral covered thereby. On the Initial Borrowing Date, there shall have been delivered to the Collateral Agent the following documents: (1) proper Financing Statements (Form UCC-1 or the appropriate equivalent) fully executed for filing under the UCC of each jurisdiction as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by the Security Agreement in the Security Agreement Collateral owned by DM Can and, to the extent acquired as part of the Acquisition, Containers; (2) certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing all effective Financing Statements that name DM Can and the predecessor company that owned such Security Agreement Collateral prior to the consummation of the Acquisition, in each case as debtor and that are filed in the jurisdictions referred to in said clause (a), together with copies of such other Financing Statements (none of which shall cover the Security Agreement Collateral except to the extent evidencing Permitted Liens); (3) evidence of the completion of all other recordings and filings of, or with respect to, the Security Agreement as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by the Security Agreement; and (4) evidence that all other actions necessary or, in the opinion of the Collateral Agent, desirable to perfect and protect the security interests purported to be created by the Security Agreement have been taken. (m) Mortgages; Title Insurance; Surveys; etc. (i) On the Initial Borrowing Date, the Collateral Agent shall have received fully executed counterparts of amendments (the "Mortgage Amendments"), in form and substance satisfactory to the Agent and the Co-Agent, to each of the Existing Mortgages, together with evidence that counterparts of each of the Mortgage Amendments have been delivered to the title company insuring the Lien on the Existing Mortgages for recording in all places to the extent necessary or desirable, in the judgment of the Collateral Agent, effectively to maintain a valid and enforceable first priority mortgage lien on the Existing Mortgaged Properties in favor of the Collateral Agent for the benefit of the Secured Creditors; and the Collateral Agent shall have received endorsements to the existing Mortgage Policies assuring the Collateral Agent that each Existing Mortgage is a valid and enforceable first priority mortgage lien on the respective Existing Mortgaged Properties, free and clear of all defects and encumbrances except Permitted Encumbrances. (ii) On the Initial Borrowing Date, the Collateral Agent also shall have received: (x) fully executed counterparts of New Mortgages covering such of the Real Property owned or leased by any Borrower or by DM Can as shall be designated as such on Schedule III (each, a "New Mortgaged Property" and, collectively, the "New Mortgaged Properties"), together with evidence that counterparts of the New Mortgages have been delivered to the title insurance company insuring the Lien of the New Mortgages for recording in all places to the extent necessary or desirable, in the judgment of the Collateral Agent, effectively to create a valid and enforceable first priority mortgage Lien (subject to Permitted Encumbrances relating thereto) on each New Mortgaged Property in favor of the Collateral Agent (or such other trustee as may be required or desired under local law) for the benefit of the Secured Creditors; (y) Mortgage Policies on each New Mortgaged Property issued by title insurers reasonably satisfactory to the Collateral Agent in amounts satisfactory to the Collateral Agent and assuring the Collateral Agent that the New Mortgages are valid and enforceable first priority mortgage Liens on the respective New Mortgaged Properties, free and clear of all defects and encumbrances except Permitted Encumbrances and such Mortgage Policies shall otherwise be in form and substance satisfactory to the Collateral Agent and shall include, as appropriate, an endorsement for future advances under this Agreement and the Notes and for any other matter that the Collateral Agent in its discretion may reasonably request, shall not include an exception for mechanics' liens, and shall provide for affirmative insurance and such reinsurance as the Collateral Agent in its discretion may request; and (z) a survey, in form and substance satisfactory to the Collateral Agent, of each owned New Mortgaged Property, certified by a licensed professional surveyor reasonably satisfactory to the Collateral Agent. (n) Adverse Change, etc. (i) On the Initial Borrowing Date, nothing shall have occurred (and the Banks shall have become aware of no facts or conditions not previously known) which the Agent, the Co-Agent or the Required Banks shall determine has, or could have, a material adverse effect on the rights or remedies of the Agent, the Co-Agent or the Banks, or on the ability of any Credit Party to perform its obliga- tions to the Agent, the Co-Agent and the Banks or which has, or could have, a materially adverse effect on the Acquired Business, Del Monte and its Subsidiaries taken as a whole or the business, operations, prop- erty, assets, condition (financial or otherwise) or prospects of any Credit Party or of any Credit Party and its Subsidiaries taken as a whole. (ii) On or prior to the Initial Borrowing Date, all necessary governmental (domestic and foreign) and third party approvals and consents in connection with the Transaction and the transactions contemplated by the Documents and otherwise referred to herein or there- in shall have been obtained and remain in effect, and all applicable waiting periods shall have expired without any action being taken by any competent authority which restrains, prevents or imposes materially adverse conditions upon the consummation of the Transaction or the other transactions contemplated by the Credit Documents and the Acquisition Documents and otherwise referred to herein or therein. Additionally, there shall not exist any judgment, order, injunction or other restraint issued or filed or a hearing seeking injunctive relief or other restraint pending or notified prohibiting or imposing materially adverse conditions upon the consummation of the Transaction, the transaction contemplated by the Credit Documents and the Acquisition Documents, the making of the Loans or issuance of Letters of Credit. (iii) No consents or approvals shall be required to be obtained by Holdings or any of its Subsidiaries from the holders of the Senior Notes, the Senior Discount Debentures or the Senior Subordinated Notes in connection with the consummation of the Transaction, the entering into of this Agreement or any of the other documents referred herein (including, without limitation, the amendments to the Contribution Agreement or any of the Security Documents) and the incurrence of all Loans hereunder. (o) Litigation. On the Initial Borrowing Date, no litigation by any entity (private or governmental) shall be pending or threatened with respect to this Agreement or any documentation executed in connection herewith or the transactions contemplated hereby, or with respect to the Transaction or which the Agent, the Co-Agent or the Required Banks shall determine could have a materially adverse effect on the Transaction, the Acquired Business, or on the business, operations, property, assets, condition (financial or otherwise) or prospects of Del Monte and its Subsidiaries taken as a whole, any Credit Party or of any Credit Party and its Subsidiaries taken as a whole. (p) Fees, etc. On the Initial Borrowing Date, Holdings and each Borrower shall have paid to the Agent, the Co-Agent and the Banks all costs, fees and expenses (including, without limitation, legal fees and expenses) payable to the Agent, the Co-Agent and the Banks or payable in respect of the Transaction to the extent then due. (q) Solvency Certificate; Environmental Analyses. On the Initial Borrowing Date, Silgan shall have delivered to the Agent (i) a solvency certificate in the form of Exhibit J from the chief financial officer of Silgan, dated the Initial Borrowing Date, setting forth the conclusion that, after giving effect to the Transaction and the incurrence of all financings contemplated herein, Silgan and its Subsidiaries (on a consolidated basis) and each Borrower (on a stand alone basis) is not insolvent and will not be rendered insolvent by the indebtedness in- curred in connection herewith, will not be left with unreasonably small capital with which to engage in their businesses and will not have incurred debts beyond their ability to pay such debts as they mature and become due, and (ii) Phase I environmental assessments from Green Environmental, Inc. covering the Real Property acquired or leased by Containers and DM Can pursuant to the Acquisition, the results of which shall be in form and substance satisfactory to the Agent, the Co-Agent and the Required Banks. (r) Notices to Holders of Certain Indebtedness and to the Collateral Agent. (i) On the Initial Borrowing Date, Holdings shall have delivered to the trustee under the indenture governing the terms of the Senior Discount Debentures, notice to the effect that this Agreement (and only this Agreement) constitutes the "Silgan Amended Credit Agreement" (as defined in such indenture), and Holdings shall have taken all other action as may be necessary or, in the opinion of the Agent or the Co-Agent desirable, to ensure that this Agreement is entitled to all the rights and benefits afforded the "Silgan Amended Credit Agreement" under such indenture. (ii) On the Initial Borrowing Date, Silgan shall have delivered to the trustee under the indenture governing the terms of the Senior Subordinated Notes, notice to the effect that this Agreement (and only this Agreement) constitutes the "Amended Credit Agreement" (as defined in such indenture), and Silgan shall have taken all other action as may be necessary or, in the opinion of the Agent or the Co-Agent desirable, to ensure that this Agreement is entitled to all the rights and benefits afforded the "Amended Credit Agreement" under such indenture. (iii) On the Initial Borrowing Date, Silgan shall have delivered to the purchasers of the Senior Notes, notice to the effect that this Agreement (and only this Agreement) constitutes the "Amended Credit Agreement" (as defined in the Senior Note Agreement), and Silgan shall have taken all other action as may be necessary, or in the opinion of the Agent or the Co-Agent desirable, to ensure that this Agreement is entitled to all the rights and benefits afforded the "Amended Credit Agreement" under the Senior Note Agreement. (iv) On the Initial Borrowing Date, each of Holdings and Silgan shall have delivered to the Collateral Agent notice to the effect that the Indebtedness incurred under this Agreement refinances the Indebtedness incurred under the Existing Credit Agreement and that the Indebtedness incurred under this Agreement shall be treated as issued under the "Credit Agreement" (as defined in each of the Security Documents), and shall have taken all other action as may be necessary or, in the opinion of the Agent or the Co-Agent desirable, to ensure that this Agreement is entitled to all the rights and benefits afforded the "Credit Agreement" under each of the Security Documents. (v) On the Initial Borrowing Date, Silgan shall have delivered to the Agent and the Co-Agent evidence in form, scope and substance satisfactory to the Agent and the Co-Agent that the matters set forth in this Section 5.01(r) have been satisfied as of such date. (s) Consent Letter. On the Initial Borrowing Date, the Agent shall have received a letter from CT Corporation System, presently located at 1633 Broadway, New York, New York 10019, substantially in the form of Exhibit K, indicating its consent to its appointment by each Credit Party as its agent to receive service of process as specified in this Agreement and the other Credit Documents. (t) Financial Projections. On or prior to the Initial Borrowing Date, there shall have been delivered to each Bank detailed projected financial statements for Silgan and its Subsidiaries for the period through December 31, 2002 (the "Projections"), which Projections (x) shall reflect the forecasted financial condition and results of operations of Silgan and its Subsidiaries after giving effect to the Transaction and the related financing thereof and the other transactions contemplated hereby and (y) shall otherwise be in form and substance satisfactory to the Agent, the Co-Agent and the Required Banks. There are no statements or conclusions in any of the Projections which are based upon or include information known to any Borrower to be misleading in any material respect or should fail to take into account material information regarding the matters reported therein. On the Initial Borrowing Date, each Borrower believes that the Projections were reasonable and attainable, it being recognized, however, that projections as to future events are not to be viewed as facts and that actual results during the period or periods covered thereby may differ from the projected results and that the differences may be material. (u) Initial Borrowing Base Certificate and Report of Inventory and Accounts Receivable. On the Initial Borrowing Date, Silgan shall have delivered to the Agent and the Co-Agent the initial Borrowing Base Certificate and the initial report of Inventory and Accounts Receivable meeting the requirements of Section 7.01(i) and, after giving effect to the incurrence of Working Capital Loans and the Letter of Credit Outstandings on the Initial Borrowing Date, no Borrowing Base Deficiency will exist. (v) Tax Sharing Agreement. On the Initial Borrowing Date, DM Can shall have duly authorized, executed and delivered a counterpart to the Tax Sharing Agreement whereby DM Can shall have become a party to, and be bound by all of the terms of, the Tax Sharing Agreement, and the Tax Sharing Agreement, as so amended, shall be in full force and effect. On the Initial Borrowing Date, Silgan shall have delivered to the Agent a true and correct copy of the Tax Sharing Agreement as amended through such date, and the Tax Sharing Agreement, as so amended, shall be in form and substance satisfactory to the Agent, the Co-Agent and the Required Banks. (w) Insurance. On the Initial Borrowing Date, Silgan shall have delivered to the Agent certificates from the respective insurer with respect to each insurance policy listed in Schedule IV, which certificates shall name the Collateral Agent as an additional insured and/or loss payee and shall state that such insurance shall not be cancelled without 30 days' prior written notice by the respective insurer to the Collateral Agent. (x) Intercompany Agency Agreement. On the Initial Borrowing Date, Silgan shall have delivered to the Agent and the Co-Agent a true and correct copy of the Intercompany Agency Agreement, and the Intercompany Agency Agreement shall be in form and substance satisfactory to the Agent, the Co-Agent and the Required Banks, and shall be in full force and effect. 5.02 Conditions to Working Capital Loans and Letters of Credit on and after the Initial Borrowing Date. The obligation of each Bank to make Working Capital Loans, and of BTCo to make Swingline Loans and to issue Letters of Credit on and after the Initial Borrowing Date is subject, at the time of each such Credit Event, to the satisfaction of the following conditions: (a) No Borrowing Base Deficiency. On the date of such Credit Event, based on the Borrowing Base Certificate last required to be delivered pursuant to Section 7.01(i) and after giving effect to the occurrence of such Credit Event on such date, no Borrowing Base Deficiency shall be in existence. In addition, on the date of such Credit Event, an authorized officer of the respective Borrower shall have certified that, after giving effect to the occurrence of such Credit Event on such date and after giving effect to any change in the Borrowing Base since the date of the Borrowing Base Certificate last delivered to each Bank, there is no reason to believe that a Borrowing Base Deficiency will exist. (b) Additional PCP Acquisition Conditions. At the time of the incurrence of any Working Capital Loans by Containers to consummate the PCP Acquisition, Containers shall have fully complied with the terms and conditions set forth in Sections 7.10 and 8.18. 5.03 Conditions to All Credit Events. The obligation of each Bank to make any Loans (including, without limitation, Loans of the types described in Sections 5.01 and 5.02), and of BTCo to issue any Letters of Credit, is subject at the time of each such Credit Event, to the satisfaction of the following conditions: (a) No Default. There shall exist no Default or Event of Default. (b) Representations and Warranties. All representations and warranties contained herein and in the other Credit Documents shall be true and correct in all respects with the same effect as though such representations and warranties had been made on and as of the date of such Credit Event. (c) Notice of Borrowing; Letter of Credit Request. The Agent shall have received a Notice of Borrowing with respect to such Borrowing of Loans (excluding Swingline Loans and Mandatory Borrowings) meeting the requirements of Section 1.03(a) or a Letter of Credit Request for such issuance of a Letter of Credit meeting the requirements of Section 2.03, as the case may be. Prior to the making of any Swingline Loans, BTCo shall have received the notice required by Section 1.03(b)(i). (d) Subsequent Legal Opinions. If, at the time of any Credit Event subsequent to the Initial Borrowing Date, the Agent, the Co-Agent or the Required Banks shall have reasonably requested same, the Agent shall have received from counsel (who shall be Winthrop, Stimson, Putnam & Roberts or such other counsel reasonably satisfactory to the Agent and the Co-Agent) for the Borrowers an opinion in form and substance satisfactory to the Agent, the Co-Agent and the Required Banks, addressed to the Agent, the Co-Agent and each of the Banks and dated the date of such Credit Event, covering such of the matters set forth in the opinions of counsel required to be delivered pursuant to this Section 5 as the Agent, the Co-Agent or the Required Banks shall specify or such other matters incident to the transactions contemplated herein as the Agent, the Co-Agent or the Required Banks may reasonably request. (e) Corporate Proceedings. All corporate and legal proceedings and all instruments and agreements in connection with the transaction contemplated by this Agreement and the other Credit Documents shall be satisfactory in form and substance to the Agent, the Co-Agent and the Required Banks and the Agent shall have received all information and copies of all documents and papers, including good standing certificates, records of corporate proceedings and governmental approvals, if any, which any such Bank reasonably may have requested in connection therewith, such documents and papers were appropriate to be certified by proper corporate or governmental authorities. (f) No Future Advances Notice. Neither the Agent, the Co-Agent nor any Bank shall have received notice from any Credit Party pursuant to 443.055 of the Missouri Revised Statutes to the effect that any Credit Party elects to terminate the operation of any Mortgage or Additional Security Document, as the case may be, as security for future advances made under this Agreement. The acceptance of the benefits of each Credit Event (and the occurrence of the Initial Borrowing Date) shall constitute a representation and warranty by each of the Borrowers to each of the Banks that all the applicable conditions specified in this Section 5 are satisfied as of that time. All of the Notes, certificates, legal opinions and other documents and papers referred to in this Section 5, unless otherwise specified, shall be delivered to the Agent at the Agent's Notice Office for the account of each of the Banks and, except for the Notes, in sufficient counterparts or copies for each of the Banks and shall be satisfactory in form and substance to the Required Banks. Section 6. Representations, Warranties and Agreements. In order to induce the Banks to enter into this Agreement and to make the Loans and issue or participate in Letters of Credit, each of the Borrowers makes the following representations, warranties and agreements, in each case after giving effect to the Transaction, all of which shall survive the execution and delivery of this Agreement and the Notes and the making of the Loans and the issuance of the Letters of Credit, with the occurrence of each Credit Event on and after the Initial Borrowing Date being deemed to constitute a representation and warranty that the matters specified in this Section 6 are true and correct on and as of the Initial Borrowing Date and on the date of each such Credit Event; provided, that each of Containers and Plastics makes the following representations, warranties and agreements only as to itself and its Subsidiaries: 6.01 Corporate Status. Each Credit Party and each of its Subsidiaries (i) is a duly organized and validly existing corporation in good standing under the laws of the jurisdiction of its incorporation, (ii) has the corporate power and authority 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 and 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 those jurisdictions where the failure to be so qualified would not, individually or in the aggregate, have a material adverse effect on the business, operations, property, assets or condition (financial or otherwise) of any Credit Party or of any Credit Party and its Subsidiaries taken as a whole. 6.02 Corporate Power and Authority. Each Credit Party has the corporate power and authority to execute, deliver and carry out the terms and provisions of each of the Credit Documents and the Acquisition Documents to which it is party and has taken all necessary corporate action to authorize the execution, delivery and performance by it of each of such Credit Documents and Acquisition Documents. Each Credit Party has duly executed and delivered each of the Credit Documents and the Acquisition Documents to which it is party and each of such Credit Documents and Acquisition Documents constitutes its legal, valid and binding obligation enforceable in accordance with its terms except to the extent that enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally and by equity principles (regardless of whether enforcement is sought in equity or at law). 6.03 No Violation. Neither the execution, delivery or performance by any Credit Party of any Document to which it is a party, nor compliance by it with any of the terms and provisions thereof, (i) will contravene any provision of any law, statute, rule or regulation or any order, writ, injunc- tion 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 Credit Party or any of its Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, credit agreement, loan agreement or any other agreement, contract or instrument to which such Credit Party 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 of such Credit Party or any of its Subsidiaries. 6.04 Governmental Approvals. 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 any Document or (ii) the legality, validity, binding effect or enforceability of any such Document. 6.05 Pledge Agreements. The security interests created in favor of the Collateral Agent for the benefit of the respective Secured Creditors under the Pledge Agreements secure the Secured Obligations and constitute first priority perfected security interests in the respective Pledge Agreement Collateral subject to no Lien of any other Person. No consents, filings or recordings are required in order to perfect, and/or maintain the perfection and priority of, the security interests purported to be created by the Pledge Agreements. 6.06 Security Agreement; Mortgages; Real Property. (a) The Security Agreement creates, in favor of the Collateral Agent for the benefit of the respective Secured Creditors as security for the Secured Obligations, a valid and enforceable perfected security interest in and Lien on all of the Security Agreement Collateral referred to therein, as may be perfected by the filing of financing statements or by the taking of possession by the Collateral Agent, superior to and prior to the rights and Liens of all third Persons (except that the security interests created by the Security Agreement may be subject to the Permitted Liens on the assets of the respective assignor thereunder and Liens permitted to exist under Section 8.01(i) and (ii)). Except as have been obtained or made, no consents, filings or recordings are required to maintain the perfection and priority of the security interests purported to be created by the Security Agreement. At the time of the granting of any security interests pursuant to the Security Agreement, the respective assignor thereunder shall have good and marketable title to all Security Agreement Collateral referred to therein free and clear of all Liens except those described above in this Section 6.06. (b) The Mortgages (as amended by the Mortgage Amendments, and including the New Mortgages) create, as security for the Secured Obligations, a valid and enforceable perfected security interest in and Lien on all of the respective Mortgaged Properties, in favor of the Collateral Agent for the benefit of the respective Secured Creditors, superior to and prior to the rights and Liens of all third persons (except that the security interests created by the Mortgages may be subject to the respective Permitted Encum- brances and Liens permitted to exist under Section 8.01(i), (ii) and (vii)). No consents, filings or recordings are required to maintain the perfection and priority of the security interests purported to be created by the Mortgages, except for the filings and recordings of the Mortgage Amendments and the New Mortgages. At the time of the granting of any Mortgage, the respective mortgagor shall have good and marketable title (subject to the respective Permitted Encumbrances) to all Mortgaged Properties covered thereby, free and clear of Liens except those described in the preceding sentence. Schedule III sets forth all Real Property owned and leased (beneficially or otherwise) by each Credit Party (all as indicated therein). (c) The Additional Security Documents, after the execution and delivery thereof, will create, in favor of the Collateral Agent for the benefit of the respective Secured Creditors, as security for the Secured Obligations, a valid and enforceable perfected security interest in and Lien on all of the Additional Collateral, superior to and prior to the rights and Liens of all third Persons (except that the security interests created by the Additional Security Documents may be subject to such Liens as are existing on the date of execution of such Additional Security Documents and permitted under Section 8.01). The respective Credit Party will have good and marketable title to the respective Additional Collateral, free and clear of all Liens, except those described in the preceding sentence. 6.07 Financial Statements; Financial Condition; etc. (a) The statements of consolidated and consolidating financial condition of each of Holdings and its Consolidated Subsidiaries and Silgan and its Consolidated Subsidiaries at December 31, 1992 and September 30, 1993 and the related consolidated and consolidating statements of income and cash flow of each of Holdings and its Consolidated Subsidiaries and Silgan and its Consolidated Subsidiaries for the fiscal year and nine-month period ended on such date, as the case may be (which (x) in the case of the financial statements for the fiscal year ended on December 31, 1992, have been certified by nationally recognized independent certified public accountants satisfactory to the Agent and the Co-Agent and (y) in the case of all such financial statements, have heretofore been furnished to the Banks), present fairly the financial position of each of Holdings and its Consolidated Subsidiaries and Silgan and its Consolidated Subsidiaries at the date of such statements and for the periods covered thereby and have been prepared in accordance with generally accepted accounting principles and practices consistently applied. Since December 31, 1992, and after giving effect to the Transaction, there has been no material adverse change in the operations, business, property, assets or condition (financial or otherwise) of any Credit Party or of any Credit Party and its Subsidiaries taken as a whole. (b) On the Initial Borrowing Date and after giving effect to the transactions and financings contemplated hereby and in the Documents, (i) the sum of the assets of each of Holdings and its Subsidiaries (taken as a whole) and each Borrower (on a stand alone basis), at a fair valuation, will exceed their respective liabilities, including contingent liabilities, (ii) each of Holdings and its Subsidiaries (taken as a whole) and each Borrower (on a stand alone basis) will have sufficient capital with which to conduct their respective businesses and (iii) each of Holdings and its Subsidiaries (taken as a whole) and each Borrower (on a stand alone basis) will not have incurred debts, and does not intend to incur debts, beyond their ability to pay such debts as they mature. For purposes of this Section 6.07(b), "debt" means any liability on a claim, and "claim" means (x) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured, or (y) right to an equitable remedy for breach of performance if such breach gives rise to a payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured. (c) Except as fully disclosed in the financial statements delivered pursuant to Section 6.07(a), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Holdings or any of its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due), which, either individually or in the aggregate, would be material to Holdings or its Subsidiaries. As of the Initial Borrowing Date, each Borrower knows of no Material Loss Contingency (as defined in Statements of Financial Accounting Standards No. 5) as to Holdings or its Subsidiaries. 6.08 Litigation. There are no actions, suits, investigations or proceedings pending or, to the best of the knowledge of any Borrower, threatened (i) with respect to any Document or the Transaction or (ii) that are reasonably likely to materially and adversely affect the business, operations, property, assets or condition (financial or otherwise) of any Credit Party or of any Credit Party and its Subsidiaries taken as a whole. 6.09 True and Complete Disclosure. To the best of each Borrower's knowledge after due inquiry, this Agreement and all other written information furnished to the Banks by or on behalf of the Borrowers in connection here- with did not taken as a whole contain any untrue statement of material fact or omit to state a material fact necessary in order to make the information contained herein and therein not misleading. 6.10 Use of Proceeds; Margin Regulations. (a) All proceeds of the Term Loans shall be used (i) to finance, in part, the repayment of amounts owing pursuant to the Existing Credit Agreement, (ii) to finance, in part, the purchase price of the Acquisition, (iii) to pay, in part, the cost of the 303 to 300 can conversion described in the Acquisition Agreement and (iv) to pay, in part, the fees and expenses incurred in connection with the Transaction. (b) (i) Proceeds of Working Capital Loans incurred on the Initial Borrowing Date may be used for the purposes described in Section 6.10(a), provided, that such Working Capital Loans shall not exceed $35,000,000 and (ii) proceeds of each Working Capital Loan and Swingline Loan incurred after the Initial Borrowing Date will be used by Containers or Plastics, as the case may be, for its general corporate purposes and for the general corporate purposes of DM Can and Express, including the payment of Dividends, the repayment of certain Indebtedness and the making of advances to the extent and for the purposes permitted pursuant to Sections 8.03, 8.05 and 8.06, provided that Working Capital Loans incurred to consummate the PCP Acquisition may only be incurred on the date such acquisition is consummated and no more than $15,000,000 of Working Capital Loans in the aggregate may be incurred by Containers to consummate the PCP Acquisition.. (c) No part of the proceeds of any Loan will be used by any Borrower or any Subsidiary thereof to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. Neither the making of any Loan nor the use of the proceeds thereof will violate or be inconsistent with the provisions of Regulations G, T, U or X of the Board of Governors of the Federal Reserve System. 6.11 Tax Returns and Payments. Each of the Borrowers and each of its Subsidiaries has filed all federal tax returns and material state tax returns required to be filed by it and has paid all income taxes payable by it which have become due pursuant to such tax returns and all other taxes and assessments payable by it which have become due, other than those not yet delinquent and except for those contested in good faith. Each of the Borrowers and each of its Subsidiaries has paid, or has provided adequate reserves (in the good faith judgment of the management of such Borrower) for the payment of, all federal and state income taxes applicable for all prior fiscal years and for the current fiscal year to the date hereof. 6.12 Compliance with ERISA. Each Plan is in substantial compliance with ERISA and the Code; no Plan is insolvent or in reorganization; no Plan other than a Plan which is a multiemployer plan (as defined in Section 4001(a)(3) of ERISA) has an Unfunded Current Liability; and no Plan has an accumulated or waived funding deficiency or has applied for an extension of any amortization period within the meaning of Section 412 of the Code; no Borrower nor any Subsidiary of any Borrower nor any ERISA Affiliate has incurred any liability to or on account of a Plan which is a single-employer plan (as defined in Section 4001(a)(15) of ERISA) pursuant to Section 4062, 4063 or 4064 of ERISA or a multiemployer plan (as defined in Section 4001(a)(3) of ERISA) pursuant to Section 515, 4201 or 4204 of ERISA; no proceedings have been instituted to terminate any Plan; and no condition exists which presents a material risk to any Borrower or any Subsidiary of any Borrower or any ERISA Affiliate of incurring a liability to or on account of a Plan pursuant to any of the foregoing Sections of ERISA or the Code; no lien imposed under the Code or ERISA on the assets of any Borrower or any Subsidiary of any Borrower or any ERISA Affiliate exists or is likely to arise on account of any Plan; and each of the Borrowers and their Subsidi- aries may terminate contributions to any other employee benefit plans maintained by them (except as provided pursuant to collective bargaining agreements) without incurring any material liability to any person interested therein other than with respect to benefits accrued prior to the date of termination. Notwithstanding anything to the contrary contained in this Section 6.12, all representations and warranties made in this Section 6.12 with respect to a Plan that is a multiemployer plan (as defined in Section 4001(a)(3) of ERISA) shall be to the best knowledge of the Borrowers. 6.13 Capitalization. On the Initial Borrowing Date: (a) the authorized capital stock of Silgan consists of (i)(x) 1,000 shares of Class A common stock, $.01 par value per share, of which one share is issued and outstanding and owned of record by Holdings, (y) 1,000 shares of Class B common stock, $.01 par value per share, of which one share is issued and outstanding and owned of record by Holdings and (z) 1,000 shares of Class C common stock, $.01 par value per share, of which no shares are issued and outstanding and (ii) 1,000 shares of preferred stock, $1.00 par value per share, of which no shares are issued and outstanding; (b) the authorized capital stock of Containers consists of (i) 13,000 shares of common stock, $.01 par value per share, of which 10,800 shares are issued and outstanding and owned of record by Silgan and (ii) 1,000 shares of preferred stock, $1.00 par value per share, of which no shares are issued and outstanding; (c) the authorized capital stock of Plastics consists of (i) 13,000 shares of common stock, $.01 par value per share, of which 10,800 shares are issued and outstanding and owned of record by Silgan and (ii) 1,000 shares of preferred stock, $1.00 par value per share, of which no shares are issued and outstanding; and (d) the authorized capital stock of DM Can consists of 100 shares of common stock, no par value, all of which shares are issued and outstanding and owned of record by Containers. All such outstanding shares of capital stock of Silgan, Containers, Plastics and DM Can have been duly and validly issued, are fully paid and non- assessable. None of the Borrowers has outstanding any securities convertible into or exchangeable for its capital stock or outstanding any rights to subscribe for or to purchase, or any options for the purchase of, or any agreements providing for the issuance (contingent or otherwise) of, or any calls, commitments or claims of any character relating to, its capital stock, except (i) options in respect of up to 1,200 shares of common stock of Containers granted to certain employees of Containers (the "Containers Employee Stock Options") pursuant to certain stock option agreements (the "Containers Stock Option Agreements") and the obligation of Containers to make certain payments in respect of the stock appreciation rights granted in connection therewith, (ii) options in respect of up to 1,200 shares of the common stock of Plastics granted to certain employees of Plastics (the "Plastics Employee Stock Options") pursuant to certain stock option agreements (the "Plastics Stock Option Agreements") and the obligation of Plastics to make certain payments in respect of the stock appreciation rights granted in connection therewith, (iii) the right of Containers or Plastics as the case may be, to call, and the obligation of Containers or Plastics as the case may be, to repurchase, all but not less than all of the Common Stock of Containers or Plastics, as the case may be, acquired by employees of Con- tainers or Plastics, as the case may be, through the exercise of their respective Employee Stock Options, and held by such employees at the time of their termination of employment, all as set forth in the Stock Option Agreements, and (iv) pursuant to the Amended and Restated 1989 Stock Option Plans of Containers and Plastics, in the event of a "public offering" of the common stock of Holdings or Silgan, or a "change of control" of Holdings or Silgan, Employee Stock Options shall, as more fully described therein, be converted to options to purchase common stock of Holdings, and shares previously issued upon the exercise of Employee Stock Options shall, as more fully described therein, be converted into common stock of Holdings. None of the Borrowers is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or make any payments in connection with stock appreciation rights, except as described in the immediately preceding sentence. 6.14 Subsidiaries. Other than Subsidiaries acquired or created pursuant to Section 8.13, (i) Silgan has no Subsidiaries other than Containers, Plastics, NRO and Subsidiaries of Containers and Plastics, (ii) Containers has no Subsidiaries other than DM Can, and (iii) Plastics has no Subsidiaries other than Express and Canadian Holdco. 6.15 Compliance with Statutes, etc. (a) Each of the Credit Parties and each of its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property (including applicable statutes, regulations, orders and restrictions relating to environmental standards and controls), except such statutes, regulations, orders and restrictions the failure to be in compliance with which would not, individually or in the aggregate, have a material adverse effect on the business, operations, property, assets or condition (financial or otherwise) of such Credit Party or of such Credit Party and its Subsidiaries taken as a whole. (b) Each Credit Party and each of its Subsidiaries have complied with all applicable federal, state and local environmental laws (including, without limitation, RCRA and CERCLA), regulations and ordinances governing its business products, properties or assets with respect to all discharges into the ground and surface water, emissions into the ambient air and generation, accumulation, storage, treatment, transportation, labeling or disposal of waste materials or process by-products for which failure to comply could have a material adverse effect on the business, operations, property, assets or condition (financial or otherwise) of such Credit Party or of such Credit Party and its Subsidiaries taken as a whole, and none of the Credit Parties nor their Subsidiaries is liable for any material penal- ties, fines or forfeitures for failure to comply with any of the foregoing in the manner set forth above. All material licenses, permits or registrations required for the business of the Credit Parties and their Subsidiaries, as presently conducted, under any federal, state or local environmental laws, regulations or ordinances have been secured and each of the Credit Parties and their Subsidiaries is in substantial compliance therewith. None of the Credit Parties nor any of their Subsidiaries is in noncompliance with, breach of or default under any applicable writ, order, judgment, injunction, or decree to which any such Person is a party or which would materially and adversely affect the ability of such Person to operate its businesses or its manufacturing facilities and no event has occurred and is continuing which, with the passage of time or the giving of notice or both, would constitute noncompliance, breach of or default thereunder which would materially and adversely affect the ability of such Person to operate its business or its manufacturing facilities. There are no legal or governmental proceedings pending or, to the best of the Borrowers' knowledge after reasonable investigation, threatened which (a) question the validity, term or entitle- ment of any Borrower or any of its Subsidiaries for any material permit, license, order or registration required for the operation of any facility which any Borrower or any of its Subsidiaries currently operates and (b) wherein an unfavorable decision, ruling or finding could have a material adverse effect on the financial viability of any of its facilities. (c) To the best of the Borrowers' knowledge and belief, none of the Borrowers nor any of their Subsidiaries has disposed of or otherwise discharged any hazardous waste, toxic substances or similar materials, the disposal of which could give rise to any liability under applicable environ- mental laws and regulations which could have a materially adverse effect on the business, operations, property, assets or condition (financial or otherwise) of any Credit Party or of any Credit Party and its Subsidiaries taken as a whole. 6.16 Investment Company Act. None of the Borrowers nor any of its Subsidiaries is an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended. 6.17 Public Utility Holding Company Act. None of the Borrowers nor any of its Subsidiaries is a "holding company," or a "subsidiary company" of a "holding company," or an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding company," within the meaning of the Public Utility Holding Company Act of 1935, as amended. 6.18 Labor Relations. None of the Credit Parties nor any of its Subsidiaries is engaged in any unfair labor practice that could have a material adverse effect on such Credit Party or on such Credit Party and its Subsidiaries taken as a whole. There is (i) no significant unfair labor practice complaint pending against any Borrower or any of its Subsidiaries or, to the best knowledge of the Borrowers, threatened against any of them, before the National Labor Relations Board, and no significant grievance or significant arbitration proceeding arising out of or under collective bargaining agreements is so pending against any Borrower or any of its Subsidiaries or, to the best knowledge of the Borrowers, threatened against any of them, (ii) no significant strike, labor dispute, slowdown or stoppage pending against any Borrower or any of its Subsidiaries or, to the best knowledge of the Borrowers, threatened against any Borrower or any of its Subsidiaries and (iii) to the best knowledge of the Borrowers, no union representation question existing with respect to the employees of any Borrower or any of its Subsidiaries and, to the best knowledge of the Borrowers, no union organizing activities are taking place, except (with respect to any matter specified in clause (i), (ii) or (iii) above, either individually or in the aggregate) such as could not have a material adverse effect on the business, operations, property, assets or condition (financial or otherwise) of any Credit Party or of any Credit Party and its Subsidiaries taken as a whole. 6.19 Patents, Licenses, Franchises and Formulas. Each of the Borrowers and its Subsidiaries owns all the patents, trademarks, permits, service marks, trade names, copyrights, licenses, franchises and formulas, or rights with respect to the foregoing, and has obtained assignments of all leases and other rights of whatever nature, necessary for the present conduct of its business, without any known conflict with the rights of others which, or the failure to obtain which, as the case may be, would result in a material adverse effect on the business, operations, property, assets or condition (financial or otherwise) of any Credit Party or of any Credit Party and its Subsidiaries taken as a whole. 6.20 Transaction. At the time of consummation thereof, the Transaction shall have been consummated in accordance with the terms of the respective Documents and all applicable laws. At the time of consummation thereof, all consents and approvals of, and filings and registrations with, and all other actions in respect of, all governmental agencies, authorities or instrumentalities required in order to make or consummate the Transaction have been obtained, given, filed or taken and are or will be in full force and effect (or effective judicial relief with respect thereto has been ob- tained). All applicable waiting periods with respect thereto have or, prior to the time when required, will have, expired without, in all such cases, any action being taken by any competent authority which restrains, prevents, or imposes material adverse conditions upon the Transaction. Additionally, there does not exist any judgment, order or injunction prohibiting or imposing material adverse conditions upon the Transaction, or the occurrence of any Credit Event or the performance by any Credit Party of its obligations under the respective Documents. All actions taken by the Credit Parties pursuant to or in furtherance of the Transaction have been taken in compliance with the respective Documents and all applicable laws. 6.21 Representations and Warranties in Acquisition Documents. All representations and warranties made by any Credit Party or any of its Subsidiaries set forth in each of the Acquisition Documents are true and correct in all material respects as of the time as of which such representa- tions and warranties were made. 6.22 Subordination. The subordination provisions contained in all notes, debentures and other instruments entered into or issued in respect of (i) the Senior Subordinated Notes and (ii) the Senior Discount Debentures in the event that same become the obligations of Silgan pursuant to the terms thereof, in each case are enforceable against the issuer of the respective security and the holders thereof and the Loans and all other Obligations are within the definition of "Senior Indebtedness" contained in the Senior Subordinated Note Documents and Senior Discount Debenture Documents. Section 7. Affirmative Covenants. The Borrowers jointly and severally covenant and agree (provided that each of Containers and Plastics covenants and agrees only as to itself and its Subsidiaries) that on and after the Effective Date and until the Total Commitments and all Letters of Credit have terminated and the Loans, Notes and Unpaid Drawings, together with interest, Fees and all other Obligations incurred hereunder and thereunder, are paid in full: 7.01 Information Covenants. The respective Borrower will furnish to each Bank: (a) Monthly Reports. As soon as practicable, and in any event within 30 days after the end of each calendar month of each fiscal year of Containers and Plastics, the management information reports for such month delivered by Containers and Plastics to Silgan, containing a monthly operating profit and loss statement for each such Subsidiary and each plant of Containers and Plastics, a statement of working capital showing the value of inventory and the amount of liabilities and containing an accounts receivable aging schedule, and management's estimate of cash flow showing capital expenditures. (b) Quarterly Financial Statements. Within 60 days (or 120 days in the case of the fourth fiscal quarter) after the close of each quarterly accounting period in each fiscal year of Silgan, the consolidated and consolidating balance sheets of Silgan and its Consolidated Subsidiaries as at the end of such quarterly accounting period and the related consolidated and consolidating statements of income and cash flow for such quarterly accounting period and for the elapsed portion of the fiscal year ended with the last day of such quarterly accounting period, in each case setting forth comparative figures for the related periods in the prior fiscal year, all of which shall be certified by the chief financial officer, treasurer or controller of Silgan, subject to normal year-end audit adjustments. (c) Annual Financial Statements. Within 120 days after the close of each fiscal year of Silgan, the consolidated and consolidating balance sheets of Silgan and its Consolidated Subsidiaries as at the end of such fiscal year and the related consolidated and consolidating statements of income and cash flow for such fiscal year, in each case setting forth comparative figures for the preceding fiscal year and certified, in the case of the consolidated financial statements, by independent certified public accountants of recognized national standing acceptable to the Agent and the Co-Agent, and in the case of the consolidating financial statements, by the chief financial officer, treasurer or controller of Silgan, in each case together with a report of such accounting firm stating that in the course of its regular audit of the financial statements of Silgan and its Consolidated Subsidiaries, which audit was conducted in accordance with generally accepted auditing standards, such accounting firm obtained no knowledge of any Default or Event of Default which has occurred and is continuing or, if in the opinion of such accounting firm such a Default or Event of Default has occurred and is continuing, a statement as to the nature thereof. (d) Management Letters. Promptly after Silgan's receipt thereof, a copy of any "management letter" received by Silgan from its certified public accountants. (e) Budgets; Forecasts. Within 60 days after the first day of each fiscal year of Silgan, (i) a budget in form and scope reasonably satisfactory to the Agent and the Co-Agent (including budgeted statements of income and sources and uses of cash and balance sheets) prepared by Silgan for each of the twelve months beginning on the first day of such fiscal year accompanied by the statement of the chief financial officer, treasurer or controller of Silgan to the effect that, to the best of such officer's knowledge, the budget is a reasonable estimate for the period covered thereby and (ii) a forecast of operations and sources and uses of cash for the five-year period beginning on the first day of such fiscal year, setting forth the assumptions made in preparing such forecast and accompanied by the statement of the chief financial officer, treasurer or controller of Silgan to the effect that, to the best of such officer's knowledge, the forecast is a reasonable estimate for the period covered thereby. (f) Officer's Certificates. At the time of the delivery of the financial statements provided for in Sections 7.01(a), (b) and (c), a certificate of the chief financial officer, treasurer or controller of Silgan to the effect that, to the best of such officer's knowledge, no Default or Event of Default has occurred and is continuing or, if any Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof, which certificate shall set forth the calculations required to establish (i) in the case of the statements delivered pursuant to Sections 7.01(a) and (b), whether the Borrowers were in compliance with the provisions of Sections 8.03, 8.09, 8.10 and 8.11, at the end of such calendar month or fiscal quarter, as the case may be, and (ii) in the case of the statements delivered pursuant to Section 7.01(c), the amount of the Excess Cash Flow for the respective fiscal year, the amount of any mandatory prepayments and/or commitment or available amount reductions required pursuant to Sections 3.03 and/or 4.02 during such fiscal year and whether the Borrowers were in compliance with the provisions of Sections 8.03, 8.04 and 8.08 through 8.11, inclusive, at the end of such fiscal year. (g) Notice of Default or Litigation. Promptly, and in any event within three Business Days after an officer of any Borrower obtains knowledge thereof, notice of (i) the occurrence of any event which con- stitutes a Default or Event of Default, (ii) any litigation or governmental proceeding pending (x) against any Borrower or any of its Subsidiaries which could materially and adversely affect the business, operations, property, assets or condition (financial or otherwise) of any Borrower or any of its Subsidiaries or (y) with respect to any Document and (iii) any other event (including any such event relating to environmental matters) which is likely to materially and adversely affect the business, operations, property, assets or condition (finan- cial or otherwise) of any Borrower or any of its Subsidiaries. (h) Other Reports and Filings. Promptly, copies of all financial information, proxy materials and other information and reports, if any, (i) which any Borrower shall file with the Securities and Exchange Commission or any governmental agencies substituted therefor (the "SEC"), (ii) which shall be filed with the SEC with respect to the Transaction or (iii) which Silgan shall deliver to the holders of, or to the trustee with respect to, the Senior Notes or the Senior Subordinated Notes. (i) Borrowing Base Certificate, etc. On the Initial Borrowing Date and not later than 10:00 a.m. (New York time) on the twentieth day of each calendar month thereafter, Silgan shall furnish (x) a report of Inventory and Accounts Receivable of each of Containers and DM Can on a consolidated basis and Plastics in the form of Exhibit L, setting forth (i) with respect to the Inventory of Containers and DM Can on a consolidated basis and Plastics, the type (i.e., raw materials, work-in- process or finished product) and value (at the lower of cost or market value calculated on a first in - first out basis) of such Inventory, along with a list of each county and state in which any such Inventory is located and (ii) with respect to such accounts receivable of Containers and DM Can on a consolidated basis and Plastics, the aggregate face amount and aging schedule of such accounts receivable, in each case as of the last day of the immediately preceding month, (y) a Borrowing Base Certificate in the form of Exhibit M (each a "Borrowing Base Certificate") and (z) a report of refunds, returns and allowances allowed by each of Containers and DM Can on a consolidated basis and Plastics during the immediately preceding calendar month; each of which documents shall be certified by the chief financial officer, treasurer or controller of Silgan. (j) Other Information. From time to time, such other information or documents (financial or otherwise) as the Agent, the Co-Agent or the Required Banks may reasonably request. 7.02 Books, Records and Inspections. Each of the Borrowers will, and will cause each of its Subsidiaries to, keep proper books of record and account in which full, true and correct entries in conformity with generally accepted accounting principles and all requirements of law shall be made of all dealings and transactions in relation to its business and activities. Each of the Borrowers will, and will cause each of its Subsidiaries to, permit officers and designated representatives of the Agent, the Co-Agent or any Bank to visit and inspect, under guidance of officers of such Borrower or such Subsidiary, any of the properties of such Borrower or such Subsidiary, and to examine the books of account of such Borrower or such Subsidiary and discuss the affairs, finances and accounts of such Borrower or such Subsidiary with, and be advised as to the same by, its and their officers, all at such reasonable times and intervals and to such reasonable extent as the Agent, the Co-Agent or such Bank may request. In connection with the foregoing, the Agent, the Co-Agent and the Banks agree to exercise their best efforts to keep any information delivered or made available by the Borrowers which the Borrowers clearly indicate to be confidential information confidential from anyone other than Persons employed or retained by the Agent, the Co-Agent or the Banks who are or are expected to become engaged in evaluating, approving, structuring or administering the Loans; provided, that nothing herein shall prevent the Agent, the Co-Agent or the Banks from disclosing such information (a) to any actual or potential assignee or participant, provided that such assignee or participant shall be subject to this sentence, (b) upon the order of any court or administrative agency, (c) upon the request or demand of any regulatory agency or authority having jurisdiction over the Agent, the Co-Agent or the Banks, (d) which has been publicly disclosed, (e) in connection with any litigation, (f) to the extent reasonably required in connection with the exercise of any remedy hereunder and (g) to the Agent's, the Co-Agent's or the Banks' legal counsel and independent auditors in connection with the business of the Agent, the Co- Agent or the Banks. 7.03 Maintenance of Property, Insurance. Schedule IV sets forth a true and complete listing of all insurance maintained by each of the Borrowers and its Subsidiaries as of the Effective Date, with the amounts insured on the Effective Date set forth therein. Each of the Borrowers shall, and shall cause each of its Subsidiaries to, (i) keep all property useful and necessary in its business in good working order and condition, ordinary wear and tear excepted, (ii) maintain with financially sound and reputable insurance companies insurance on all its property in at least such amounts and against at least such risks as is consistent with prudent risk management and industry practice and (iii) furnish to each Bank, upon written request, full information as to the insurance carried. 7.04 Corporate Franchises. Each of the Borrowers will, and will cause each of its Subsidiaries to, do or cause to be done, all things necessary to preserve and keep in full force and effect its existence and its material rights, franchises, licenses and patents; provided, however, that nothing in this Section 7.04 shall prevent the withdrawal by any Borrower or any of its Subsidiaries of its qualification as a foreign corporation in any jurisdiction where such withdrawal would not have a material adverse effect on the business, operations, property, assets or condition (financial or otherwise) of any Credit Party or of any Credit Party and its Subsidiaries taken as a whole. 7.05 Compliance with Statutes, etc. Each of the Borrowers will, and will cause each of its Subsidiaries to, comply with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property (including applicable statutes, regulations, orders and restrictions relating to environmental standards and controls), except such statutes, regulations, orders and restrictions the failure to be in compliance with which would not, in the aggregate, have a material adverse effect on the business, operations, property, assets or condition (financial or otherwise) of any Credit Party or of any Credit Party and its Subsidiaries taken as a whole. 7.06 ERISA. As soon as possible and in any event within 30 days after any Borrower or any Subsidiary of any Borrower or any ERISA Affiliate knows or has reason to know that a Reportable Event has occurred with respect to a Plan, that with respect to a Plan, an accumulated funding deficiency has been incurred or an application is to be or has been made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including any required installment payments) or an extension of any amorti- zation period under Section 412 of the Code, that a Plan has been or is likely to be terminated, reorganized, partitioned or declared insolvent under Title IV of ERISA, that a Plan other than a Plan which is a multiemployer plan (as defined in Section 4001(a)(3) of ERISA) has an Unfunded Current Liability, that proceedings have been instituted or may reasonably be expected to be instituted to terminate a Plan, or that any Borrower, any Subsidiary of any Borrower or any ERISA Affiliate will incur or is likely to incur any liability to or on account of a Plan which is a single-employer plan (as defined in Section 4001(a)(15) of ERISA) under Section 4062, 4063 or 4064 of ERISA, or which is a multiemployer plan (as defined in Section 4001(a)(3) of ERISA) under Section 515, 4201 or 4204 of ERISA, such Borrower will deliver to the Agent a certificate of the chief financial officer of such Borrower setting forth details as to such occurrence and action, if any, which such Borrower or Subsidiary or ERISA Affiliate is required or proposes to take, together with any notices required to be given to or filed with or by such Borrower or Subsidiary, the ERISA Affiliate, the PBGC, a Plan participant or the Plan administrator with respect thereto. Each Borrower will deliver to the Agent, upon request by the Agent, a complete copy of the annual report (Form 5500) of each Plan that is not (i) a multiemployer plan (as defined in Section 4001(a)(3) of ERISA) or (ii) a Plan which is no longer maintained or contributed to by any Borrower, any Subsidiary of any Borrower or an ERISA Affiliate, in each case which is required to be filed with the Internal Revenue Service. Copies of any other notices required to be delivered to the Banks hereunder shall be delivered no later than 30 days after the later of the date such report or notice has been filed with the Internal Revenue Service or the PBGC, given to Plan participants or received by any Borrower or any of its Subsidiaries or any ERISA Affiliate. 7.07 End of Fiscal Years; Fiscal Quarters. Each Borrower shall cause (i) each of its, and each of its Subsidiaries', fiscal years to end on December 31 and (ii) each of its, and each of its Subsidiaries', fiscal quarters to end on March 31, June 30, September 30 and December 31. 7.08 Taxes. Each of the Borrowers will, and will cause each of its Subsidiaries to, pay when due all taxes which, if not paid when due, would materially and adversely affect the business, operations, property, assets or condition (financial or otherwise) of any Credit Party or of any Credit Party and its Subsidiaries taken as a whole, except as contested in good faith and by appropriate proceedings if adequate reserves (in the good faith judgment of the management of Silgan) have been established with respect thereto. 7.09 Subsidiaries. Silgan will (i) at all times own not less than 90% of the outstanding common stock of Containers and 100% of all other outstanding capital stock of Containers and (ii) at all times own not less than 90% of the outstanding common stock of Plastics and 100% of all other outstanding capital stock of Plastics. In addition to the requirements of the immediately preceding sentence, (x) Silgan will at all times own all of the outstanding capital stock of each of Containers and Plastics, except for shares issued pursuant to the exercise of Employee Stock Options, (y) except as set forth in clause (x) above, each Borrower will at all times own (directly or indirectly) all of the outstanding capital stock of its Subsidiaries and (z) at no time shall Containers or Plastics issue or grant, or suffer to remain outstanding, any options or stock appreciation rights which, in the aggregate, relate to (i.e., represent the right to purchase the shares, in the case of options, or the right to receive payments as a result of the appreciation attributable to the shares, in the case of stock appreciation rights) that percentage of the outstanding shares of common stock of Containers or Plastics, as the case may be, on a fully diluted basis, which equals the remainder of (x) 10% less (y) the percentage of the then outstanding common stock of Containers or Plastics, as the case may be, not owned by Silgan. 7.10 Additional Security; Further Assurances; etc. (a) (i) Each of the Borrowers will, and will cause each of its Subsidiaries to, grant to the Collateral Agent, for the benefit of the Banks and the other Secured Creditors described in the Security Documents, security interests and mortgages in such assets and properties of such Borrower or such Subsidiary as are not covered by the original Security Documents and as are acquired by Containers in connection with the PCP Acquisition or as may be requested from time to time by the Required Banks (the "Additional Security Documents"). Such security interests and mortgages shall be granted pursuant to documentation satisfactory in form and substance to the Required Banks and shall (except as otherwise consented to by the Required Banks) constitute valid and enforceable perfected security interests superior to and prior to the rights of all third Persons and subject to no other Liens except such Liens as are permitted by Section 8.01. The Additional Security Documents or other instruments related thereto shall have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the Liens, in favor of the Collateral Agent for the benefit of the respective Banks and the other respective Secured Creditors, required to be granted pursuant to the Additional Security Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full. Notwithstanding the foregoing, this Section 7.10(a) shall not apply to any operating lease permitted under Section 8.04 which by its terms prevents the respective Borrower from granting a security interest therein, provided that such Borrower shall use reasonable good faith efforts (x) at the time it enters into any such lease, to have any such restrictive terms eliminated and, if it is unsuccessful, (y) upon any subsequent request of the Required Banks to negotiate the removal or waiver of any such provision. (b) Each of the Borrowers will, and will cause each of its Subsidiaries to, at its own expense, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time to time such vouchers, invoices, schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, real property surveys, reports and other assurances or instruments and take such further steps relating to the collateral covered by any of the Security Documents or Additional Security Documents as the Collateral Agent may reasonably require. Furthermore, the Borrowers shall cause to be delivered to the Collateral Agent such opinions of counsel, title insurance and other related documents as may be requested by the Required Banks to assure themselves that this Section 7.10 has been complied with. (c) Each of the Borrowers agrees that each action required by this Section 7.10 shall be completed (i) in the case of assets acquired in connection with the PCP Acquisition, on the date such acquisition is consummated and (ii) in all other cases, as soon as possible, but in no event later than 60 days after such action is requested to be taken by the Required Banks. 7.11 Foreign Subsidiaries Security. If following a change in the relevant sections of the Code and at the request of the Agent, the Co-Agent or the Required Banks, counsel for Silgan acceptable to the Agent and the Co- Agent does not within 30 days after such request deliver a written opinion, in form and substance satisfactory to the Agent and the Co-Agent, with respect to any Foreign Subsidiary whose capital stock is owned by a Credit Party, to the effect that a pledge (x) of 66-2/3% or more of the total combined voting power of all classes of capital stock of such Foreign Subsidiary entitled to vote and (y) of any promissory notes issued by such Foreign Subsidiary to Silgan or any other Credit Party party to a Pledge Agreement, in either case would cause the earnings of such Foreign Subsidiary to be treated as a deemed dividend to such Foreign Subsidiary's United States parent, then in the case of a failure to deliver the opinion described above, that portion of such Foreign Subsidiary's outstanding capital stock or any promissory notes so issued by such Foreign Subsidiary, in each case not theretofore pledged pursuant to a Pledge Agreement, shall be pledged to the Collateral Agent for the benefit of the Secured Creditors pursuant to the applicable Pledge Agreement. 7.12 Registry. Each Borrower hereby covenants that it shall maintain a register on which it will record the Commitments from time to time of each of the Banks, the Loans made by each of the Banks and each repayment in respect of the principal amount of the Loans of each Bank. Failure to make any such recordation, or any error in such recordation, shall not affect such Borrower's obligations in respect of such Loans. Upon the written request of any Borrower, the Agent hereby agrees to use its reasonable efforts to provide to such Borrower such information as such Borrower shall reasonably request from time to time in order to enable it to fulfill its obligations pursuant to this Section 7.12 and such Borrower shall have no obligation to make any such recordation until it receives such requested information from the Agent. Without limiting each Borrower's obligations hereunder, each Borrower shall indemnify any Bank described in Section 4.04(b)(iii) or (iv) for any losses (including withholding of Taxes required) arising as a result of such Borrower's failure to comply with this Section 7.12. With respect to any Bank described in Section 4.04(b)(iii) or (iv), (a) the transfer of the Commitments of such Bank and the rights to the principal of, and interest on, any Loan made pursuant to such Commitments shall not be effective until such transfer is recorded on the register maintained by such Borrower with respect to ownership of such Commitments and Loans and prior to such recordation all amounts owing to the transferor with respect to such Commitments and Loans shall remain owing to the transferor and (b) such Borrower shall immediately record all such transfers when notified thereof by the transferor Bank and such transfer shall be made only through (x) the surrender of a Note and the reissuance of such Note by such Borrower to the new holder of the old Note or the issuance by such Borrower of a new Note to the new holder (the "Issuance System") or (y) a register maintained by such Borrower and referred to in the first sentence of this Section (the "Book Entry System"). Each Borrower agrees to indemnify any transferee Bank from and against any and all losses, claims, damages and liabilities (including, without limitation, any amounts paid by the transferee to the transferor in connection with the transfer and all amounts which would otherwise be owing to the transferee if the transfer had been properly recorded) resulting from such Borrower's failure to record any such transfer through either the Issuance System or the Book Entry System. Section 8. Negative Covenants. Each of the Borrowers jointly and severally covenants and agrees (provided that each of Containers and Plastics covenants and agrees only as to itself and its Subsidiaries) that on and after the Effective Date and until the Total Commitments and all Letters of Credit have terminated and the Loans, Notes and Unpaid Drawings, together with interest, Fees and all other Obligations incurred hereunder and thereunder, are paid in full: 8.01 Liens. None of the Borrowers will, nor will it permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets (real or personal, tangible or intangible) of such Borrower or any of its Subsidiaries, whether now owned or hereafter acquired, or sell any such property or assets subject to an understanding or agreement, contingent or otherwise, to repurchase such property or assets (including sales of accounts receivable with recourse to any Borrower or any of its Subsidiaries), or assign any right to receive income or permit the filing of any financing statement under the UCC or any other similar notice of Lien under any similar recording or notice statute; provided that the provisions of this Section 8.01 shall not prevent the crea- tion, incurrence, assumption or existence of: (i) inchoate Liens for taxes not yet due and payable, or Liens for taxes being contested in good faith and by appropriate proceedings for which adequate reserves (in the good faith judgment of the management of Silgan) have been established; (ii) Liens in respect of property or assets of any Borrower or any of its Subsidiaries imposed by law, which were incurred in the ordinary course of business, such as carriers', warehousemen's and mechanics' liens and other similar Liens arising in the ordinary course of business, and (x) which do not in the aggregate materially detract from the value of such property or assets or materially impair the use thereof in the operation of the business of such Borrower or any of its Subsidiaries or (y) which are being contested in good faith by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the property or assets subject to any such Lien; (iii) Liens in existence on the Effective Date which are listed, and the property subject thereto described, in Schedule V (Liens described in this clause (iii) are herein referred to as "Permitted Liens"); (iv) Liens created pursuant to the Security Documents; (v) pledges or deposits in connection with worker's compensation, unemployment insurance and other social security legislation; (vi) deposits made in the ordinary course of business (including, without limitation, surety bonds and appeal bonds) to secure the performance of tenders, bids, leases, contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations, provided that the aggregate amount of cash and value of non-cash collateral so deposited shall at no time exceed $1,000,000; (vii) Permitted Encumbrances on the Mortgaged Properties, and easements, rights-of-way, zoning restrictions and other similar restrictions, charges or encumbrances which do not materially interfere with the ordinary conduct of the business of any Borrower or its Subsid- iaries and which do not materially detract from the value of the property to which they attach or impair the use thereof to any Borrower or its Subsidiaries; (viii) Liens created by virtue of capitalized lease obligations permitted pursuant to Section 8.05(ix), provided that such Liens are only in respect of the property or assets subject to, and secure only, the respective capitalized lease; and (ix) Liens not otherwise permitted by the provisions of this Section 8.01 to the extent securing liabilities not in excess of $2,500,000; provided, however, that if such Liens are consensual Liens, those Liens shall not encumber properties or assets with an aggregate fair value in excess of $3,000,000. 8.02 Consolidation, Merger, Sale of Assets, etc. None of the Borrowers will, nor will it permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its property or assets, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person, or permit any of its Subsidiaries so to do any of the foregoing, except that: (i) such Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business and sales of other assets (other than assets constituting Real Property) in the ordinary course of business not in excess of $100,000 per sale; (ii) such Borrower and its Subsidiaries may, in the ordinary course of business, sell equipment which is uneconomic or obsolete; (iii) capital expenditures shall be permitted to the extent not in violation of Section 8.08; (iv) the Acquisition shall be permitted; (v) DM Can may merge with and into Containers so long as (x) Containers is the surviving corporation of such merger and (y) all steps are taken as may be necessary, or in the opinion of the Collateral Agent desirable, to maintain the perfection and priority of the security interest granted by DM Can pursuant to the respective Security Documents to which it is a party; (vi) the Real Estate Sales shall be permitted so long as (x) each such sale is for fair market value (as determined in good faith by the Board of Directors of Silgan) and (y) the Net Sale Proceeds therefrom are applied in accordance with Section 4.02(f); and (vii) the PCP Acquisition shall be permitted in accordance with the requirements of Sections 7.10 and 8.18. To the extent any Collateral is sold as permitted by this Section 8.02 or the Required Banks waive the provisions of this Section 8.02 with respect to the sale of any Collateral as provided in Section 12.12 (and such sale is otherwise permitted by the terms of the Senior Note Agreement and such Collateral is released (or permitted to be released) from the Liens created by the respective Security Document) such Collateral in each such case shall be sold free and clear of the Liens created by the Security Documents and the Agent and Collateral Agent shall be authorized to take any action deemed appropriate to effect the foregoing. 8.03 Dividends. None of the Borrowers will, nor will it permit any of its Subsidiaries to, declare or pay any dividends to, or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Borrower with respect to its capital stock), or set aside any funds for any of the foregoing purposes, or permit any of the Borrowers (other than Silgan) to purchase or otherwise acquire for a consideration any shares of any class of the capital stock of any other Borrower now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by any other Borrower with respect to its capital stock), or make any payments to Holdings in respect of any Indebtedness (including without limitation indebtedness evidenced by the Holdings Intercompany Note) owing to Holdings by any Borrower or its Subsidiaries (all the foregoing, "Divi- dends"), except that: (i) so long as no Default or Event of Default then exists or would result therefrom, Containers or Plastics as the case may be, may (x) repurchase or redeem Containers Employee Stock Options or Plastics Employee Stock Options and (to the extent such Employee Stock Options have been validly exercised) the common stock of Containers or Plastics issued upon exercise thereof, upon the termination of employment of the holder thereof, all as set forth in the respective Stock Option Agreement and (y) make required payments with respect to stock appreciation rights granted in connection with such Employee Stock Op- tions, provided that no payment of the types described in this clause (i) may be made if the amount of such payment together with all amounts paid by Silgan to Holdings pursuant to clause (vii) below, when aggre- gated with the amount of all other such payments made after the Effective Date and to and including such date by Silgan, Containers and Plastics on an aggregate basis, would exceed an amount equal to 5% of Consolidated Net Worth at the end of the last fiscal quarter for which financial statements are required to have been delivered pursuant to Section 7.01(b); (ii) each of Containers and Plastics may declare and pay dividends to Silgan so as long as Containers or Plastics, as the case may be, is a Wholly-Owned Subsidiary of Silgan at the time of such declaration and payment of such dividends; (iii) each Subsidiary created pursuant to Section 8.13, as well as each Subsidiary of Containers and Plastics existing on the Effective Date, may pay dividends to the holder or holders of its capital stock; (iv) so long as no Default or Event of Default then exists or would result therefrom, Silgan may pay dividends to Holdings in an amount which shall at no time exceed, when added to all amounts advanced to Holdings by Silgan under Section 8.06(xvi), the amount required, and simultaneously used by Holdings, to pay interest on the promissory notes permitted to be issued by Holdings pursuant to Section 8(b)(i) and (ii) of the Holdings Guaranty; (v) Silgan may make payments to Holdings in accordance with Section 8.07(ii) to be immediately used by, and to the extent permitted to be made at such time by, Holdings under the Management Services Agreement of Holdings; (vi) Silgan, Containers, Plastics and/or DM Can may make payments required (or permitted) to be made by such Person under the Tax Sharing Agreement so long as any such payments which are made to Holdings are immediately used by Holdings to make tax payments as required thereunder; (vii) so long as no Default or Event of Default then exists or would result therefrom, Silgan may pay, subject to the 5% of Consoli- dated Net Worth limitation set forth in clause (i) above for all payments made pursuant to said clause (i) and this clause (vii), Dividends or other distributions to Holdings to the extent immediately used by Holdings to make payments in respect of stock options to the extent permitted by Section 8(b)(iii) of the Holdings Guaranty; (viii) so long as no Default or Event of Default then exists or would result therefrom, Silgan may pay dividends to Holdings in any fiscal year of Silgan in an amount which at no time shall exceed, when added to all advances and payments made to Holdings for such fiscal year pursuant to Sections 8.06(xviii) and 8.07(iv)(a), respectively, $1,000,000 so long as Holdings simultaneously uses such dividends to pay administrative expenses; and (ix) so long as no Default or Event of Default then exists or would result therefrom, Silgan may pay additional Dividends to Holdings with the prior written consent of the Required Banks. Notwithstanding anything to the contrary contained above or elsewhere in this Agreement, to the extent any investment is expressly permitted by Section 8.06, such investment shall not violate the provisions of this Section 8.03. 8.04 Leases. The Borrowers shall not permit the aggregate payments (including, without limitation, any property taxes paid as additional rent or lease payments) under agreements to rent or lease any real or personal property (excluding capitalized lease obligations) (i) by Silgan and its Subsidiaries on a consolidated basis, to exceed $13,600,000 in the calendar year ended December 31, 1993 and increasing by $700,000 in each calendar year thereafter. 8.05 Indebtedness. None of the Borrowers will, nor will it permit any of its Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness, except: (i) Indebtedness incurred under the Credit Documents; (ii) Indebtedness listed on Schedule VI ("Existing Indebtedness"); (iii) accrued expenses and current trade accounts payable incurred in the ordinary course of business and unsecured guarantees of Silgan of such trade accounts payable, and obligations under trade letters of credit incurred by such Borrower or any of its Subsidiaries in the ordinary course of business, which, in each case, are to be repaid in full not more than one year after the date on which such Indebtedness is originally incurred to finance the purchase of goods by such Borrower or such Subsidiary; (iv) obligations under letters of credit incurred by such Borrower or any of its Subsidiaries in the ordinary course of business in support of obligations incurred in connection with worker's compensation, unemployment insurance and other social security legislation in an aggregate amount not to exceed $15,000,000 at any time outstanding; (v) Indebtedness of Silgan not to exceed $50,000,000 (as reduced by any repayments of principal thereof) in aggregate principal amount evidenced by the Senior Notes; (vi) Indebtedness of Silgan not to exceed $135,000,000 (as reduced by any repayments of principal thereof) in aggregate principal amount evidenced by the Senior Subordinated Notes; (vii) Indebtedness of any Subsidiary of Silgan evidenced by a Mirror Intercompany Note to the extent such Mirror Intercompany Note is listed on Schedule VII and in the aggregate principal amount for such Mirror Intercompany Note as is listed for same on Schedule VII, in each case so long as all such Mirror Intercompany Notes are pledged and delivered to the Collateral Agent pursuant to the respective Pledge Agreement; (viii) Indebtedness of Containers to Plastics, and Indebtedness of Plastics to Containers, in each case to the extent permitted by Section 8.06(v); (ix) Indebtedness consisting of capitalized lease obligations (a) set forth on Schedule VIII or (b) incurred as otherwise permitted pursuant to the chart contained in Section 8.08, provided that in any fiscal year no more than 50% of the applicable amount allowed pursuant to such chart shall consist of capitalized lease obligations; (x) Indebtedness of Silgan to Containers and/or Plastics to the extent permitted pursuant to Section 8.06(ix) or (xii); (xi) Indebtedness of Plastics to Express to the extent permitted pursuant to Section 8.06(x); (xii) Indebtedness of Express to Plastics to the extent permitted pursuant to Section 8.06(x); (xiii) Indebtedness of Containers to DM Can to the extent permitted by Section 8.06(xix); (xiv) Indebtedness of DM Can to Containers to the extent permitted by Section 8.06(xix); and (xv) unsecured guarantees by (x) Silgan of Containers', Plastics' and/or DM Can's respective lease obligations under leases entered into in compliance with Section 8.04 and (y) Container's of DM Can's lease obligations to Del Monte under leases entered into in compliance with Section 8.04. 8.06 Advances, Investments and Loans. None of the Borrowers will, nor will it permit any of its Subsidiaries to, lend money or credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any other Person, or permit any of its Subsidiaries so to do, except that the following shall be permitted: (i) such Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; (ii) such Borrower and its Subsidiaries may acquire and hold Cash Equivalents; (iii) such Borrower and its Subsidiaries may make loans and advances to officers, employees and agents in the ordinary course of business equal in the aggregate for Silgan and its Subsidiaries to no more than $600,000 at any one time outstanding; (iv) Silgan and its Subsidiaries may make, or permit to remain outstanding, intercompany loans to one another which are evidenced by the Mirror Intercompany Notes to the extent permitted by Section 8.05(vii); (v) Containers may make intercompany loans to Plastics, and Plastics may make intercompany loans to Containers, provided that in each case all such intercompany loans are evidenced by Working Capital Intercompany Notes which are pledged and delivered to the Collateral Agent pursuant to the Subsidiaries Pledge Agreement; (vi) each Borrower may establish Wholly-Owned Subsidiaries to the extent permitted pursuant to Section 8.13; (vii) Silgan may own the capital stock of Containers, Plastics and NRO, Containers may own the capital stock of DM Can, Plastics may own the capital stock of Canadian Holdco, and Canadian Holdco may own the capital stock of Express; (viii) the Borrowers may continue to hold any investment they held as of the Effective Date as set forth on Schedule IX; (ix) Containers and/or Plastics may make intercompany loans to Silgan not to exceed $15,000,000 in aggregate principal amount outstanding at any time, provided that all such loans are evidenced by Working Capital Intercompany Notes which are pledged and delivered to the Collateral Agent pursuant to the Subsidiaries Pledge Agreement; (x) Express may make intercompany loans to Plastics not to exceed $3,000,000 in aggregate principal amount outstanding at any time, and Plastics may make intercompany loans to Express not to exceed $5,000,000 in aggregate principal amount outstanding at any time, provided that all such intercompany loans owing to Plastics are evidenced by Working Capital Intercompany Notes which are pledged pursuant to the Subsidiaries Pledge Agreement; (xi) Containers may contribute up to $6,000,000 in aggregate amount to Iowa City JV, including such contributions made by Containers on or prior to the Effective Date; (xii) Containers and/or Plastics may make intercompany loans to Silgan, in each case evidenced by a Working Capital Intercompany Note pledged pursuant to the Subsidiaries Pledge Agreement, in addition to those referred to in clause (ix) above, (i) to enable Silgan to pay interest which is then due and payable on the Senior Subordinated Notes provided that no intercompany loans may be made pursuant to this clause (xii) until Containers and/or Plastics shall have made the maximum payments permitted to be made by such Persons pursuant to the respective Mirror Intercompany Notes for such purpose and (ii) at any time that the lender of such intercompany loans is prohibited from paying dividends to Silgan by Section 8.03(ii), on such terms and conditions (which may include, without limitations, the terms and conditions required by clause (ix) above) as are satisfactory to the Agent and the Co-Agent in their sole discretion; (xiii) Plastics may make capital contributions to Canadian Holdco from time to time to the extent and only in the amounts necessary for Canadian Holdco to comply with certain Canadian laws and regulations relating to minimum equity capitalization; (xiv) Canadian Holdco may make capital contributions to Express from time to time to the extent and only in the amounts necessary for Express to comply with certain Canadian laws and regulations relating to minimum equity capitalization; (xv) Containers and Plastics may make advances to Silgan in the amounts and at the times that Silgan pays Dividends to Holdings pursuant to Section 8.03(iv); (xvi) so long as no Default or Event of Default then exists or would result therefrom, Silgan may make advances to Holdings in an amount which shall at no time exceed, when added to all amounts permitted to be dividended to Holdings pursuant to Section 8.03(iv), the amount required, and simultaneously used by Holdings, to pay interest on the promissory notes permitted to be issued by Holdings pursuant to Section 8(b)(i) and (ii) of the Holdings Guaranty; (xvii) Silgan may from time to time make capital contributions to either of Containers or Plastics; (xviii) so long as no Default or Event of Default then exists or would result therefrom, Silgan may make advances to Holdings in any fiscal year of Silgan in an amount which at no time shall exceed, when added to all Dividends and payments made to Holdings in such fiscal year pursuant to Sections 8.03(viii) and 8.07(iv)(a), respectively, $1,000,000 so long as Holdings simultaneously uses such advances to pay administrative expenses; (xix) Containers may make intercompany loans to DM Can, and DM Can may make intercompany loans to Containers, provided that in each case all such intercompany loans are evidenced by Working Capital Intercompany Notes which are pledged pursuant to the Subsidiaries Pledge Agreement; (xx) Containers may from time to time make capital contributions to DM Can so long as the aggregate amount of all such contribution does not exceed $5,000,000; and (xxi) Silgan may make additional loans and advances to, or investments in, Holdings with the prior written consent of the Required Banks. 8.07 Transactions with Affiliates. None of the Borrowers will, nor will it permit any of its Subsidiaries to, enter into any transaction or series of related transactions, whether or not in the ordinary course of business, with any Affiliate of such Borrower, other than on terms and con- ditions substantially as favorable to such Borrower or such Subsidiary as would be obtainable by such Borrower or such Subsidiary at the time in a comparable arm's-length transaction with a Person other than an Affiliate, provided that (i) each of Holdings, Silgan, Containers, Plastics and DM Can may execute, deliver and perform the Tax Sharing Agreement, (ii) Silgan, Containers and Plastics may each make such payments as are required pursuant to, and perform its obligations under, its Management Services Agreement, provided that the Quarterly Management Fee (as defined in the respective Management Services Agreement) shall accrue but not be paid by Holdings, Silgan, Containers and/or Plastics, as the case may be, upon the occurrence of certain events, and to the extent, provided in the respective Management Services Agreement, and provided further that the aggregate payments payable pursuant to this clause (ii) shall not exceed at any time the amount which would be payable under the Management Services Agreement of Silgan if the payment under the other Management Services Agreements were zero, (iii) Silgan may make the payments in respect of Containers Employee Stock Options and Plastics Employee Stock Options and the stock appreciation rights granted in connection therewith to the extent provided in Section 8.03(i); (iv) Silgan, Containers and Plastics may make payments to Holdings to pay (a) certain administrative expenses not to exceed, when added to the amount of all Dividends and advances made by Silgan to Holdings pursuant to Sections 8.03(viii) and 8.06(xviii), respectively, $1,000,000 in the aggregate in any fiscal year of Silgan and (b) state and local taxes to the extent that Holdings incurs liability therefor as a result of its investment in and/or ownership of Silgan and its Subsidiaries and (v) Containers and DM Can may enter into the Intercompany Agency Agreement. Notwithstanding anything to the contrary contained above, this Section 8.07 shall not prohibit the making of any Dividends, investments, loans and advances permitted pursuant to Sec- tions 8.02, 8.03, 8.05 and 8.06 or otherwise specifically permitted by the terms of this Agreement. 8.08 Capital Expenditures. (a) None of the Borrowers will, nor will it permit any of its Subsidiaries to, make any expenditure for fixed or capital assets (including, without limitation, expenditures for maintenance and repairs which should be capitalized in accordance with generally accepted accounting principles and including capitalized lease obligations) during any period set forth below (taken as one accounting period) which exceeds in the aggregate for Silgan and its Subsidiaries the amount set forth opposite such period below: Period Amount ------ ------ Calendar Year ended December 31, 1993 $46,500,000 Calendar Year ended December 31, 1994 $35,000,000 Calendar Year ended December 31, 1995 $30,000,000 Calendar Year ended December 31, 1996 $30,000,000 Notwithstanding anything to the contrary contained above, to the extent that capital expenditures made during any period set forth above are less than the amounts set forth opposite such period above, such amount (the "Carryover Amount") may be carried forward and utilized to make capital expenditures in excess of the amount permitted above in the immediately succeeding calendar year but not in any calendar year thereafter, it being understood and agreed that any capital expenditures made in such immediately succeeding calendar year shall be deemed to have first utilized the Carryover Amount in respect of such immediately preceding calendar year. (b) In addition to the capital expenditures permitted pursuant to the preceding clause (a), capital expenditures made on the Initial Borrowing Date in connection with Acquisition shall be permitted and capital expenditures made in connection with the PCP Acquisition shall be permitted to the extent provided in Section 8.18. 8.09 Current Ratio. None of the Borrowers will permit the ratio of Consolidated Current Assets to Consolidated Current Liabilities at any time to be less than 2.00:1. 8.10 Interest Coverage Ratio. None of the Borrowers will permit the ratio of (i) EBITDA to (ii) Interest Expense for any period of four consecutive fiscal quarters (or, if shorter, the period beginning on January 1, 1994 and ending on the last day of a fiscal quarter ended after January 1, 1994) (in each case, taken as one accounting period) ended during a period set forth below to be less than the ratio set forth opposite such period below: Period Ratio ------ ----- Fiscal quarter ending March 31, 1994 2.25:1 Fiscal quarter ending June 30, 1994 2.35:1 Fiscal quarter ending September 30, 1994 2.70:1 Fiscal quarter ending December 31, 1994 2.70:1 January 1, 1995 to and including December 31, 1995 3.00:1 January 1, 1996 to and including September 30, 1996 3.40:1 8.11 Total Indebtedness to Consolidated Net Worth. None of the Borrowers will permit the ratio of (i) Total Indebtedness to (ii) Consolidated Net Worth to exceed on any date set forth below the ratio set forth opposite such date: Date Amount ---- ------ December 31, 1994 5.00:1 December 31, 1995 3.25:1 August 31, 1996 2.75:1 8.12 Limitation on Voluntary Payments and Modifications of Senior Notes or Senior Subordinated Notes; Modifications of Documents, Certificate of Incorporation, By-Laws and Certain Other Agreements; etc. None of the Borrowers will, nor will it permit any of its Subsidiaries to, (i) make any voluntary or optional payment or prepayment on or redemption or acquisition for value of (including, without limitation, by way of depositing with the trustee with respect thereto money or securities before due for the purpose of paying when due) or exchange of any Senior Notes or Senior Subordinated Notes, or any purchase, redemption or acquisition for value of (or any offer to purchase, redeem or acquire) any Senior Notes or Senior Subordinated Notes, whether as a result of an Other Indebtedness Change of Control, the consummation of asset sales or otherwise (except that the Senior Notes may receive their Share of the Net Sale Proceeds and Net Equity Proceeds as provided in Section 4.02(f)), or (ii) amend or modify, or permit the amendment or modification of, any provision of the Senior Note Documents or any Senior Subordinated Note Documents or (iii) amend or modify, or permit the amendment or modification of, any provision of the Acquisition Agreement, the Tax Sharing Agreement, the Intercompany Agency Agreement or any Management Services Agreement to which it is a party or (iv) amend, modify or change its Certificate of Incorporation (including, without limitation, by the filing or modification of any certificate of designation) or By-Laws of any Borrower or any Subsidiary, or any agreement entered into by any of them, with respect to its capital stock (including without limitation the Employee Stock Options and the Stock Option Agreements) (except for (x) amendments to its Certificate of Incorporation to increase the authorized amount of common stock issuable thereunder and (y) immaterial changes to the Employee Stock Options and the Stock Option Agreements which could not adversely affect the Banks), or enter into any new agreement with respect to their capital stock (except that the issuance of new Employee Stock Options by Containers and Plastics in substantially the form furnished to the Agent on or prior to the Effective Date shall, subject to Section 7.09, be permitted). 8.13 Subsidiaries. Silgan shall have no Subsidiaries other than Containers, Plastics, NRO and their respective Subsidiaries, Containers shall have no Subsidiaries other than DM Can, NRO shall have no Subsidiaries, Plastics shall have no Subsidiaries other than Express and Canadian Holdco, and Canadian Holdco shall have no Subsidiaries other than Express, provided that, with the prior written consent of the Required Banks, any of Silgan, Containers or Plastics may create any other Wholly-Owned Subsidiaries. The respective Borrower establishing any such Subsidiary shall, and agrees to cause each Subsidiary to, grant to the Collateral Agent, for the benefit of the Banks and the other respective Secured Creditors, security interests and mortgages in the stock of, and such assets and properties owned by, each such Subsidiary, and to enter into such guaranties of the Obligations, in each case as may be requested by the Agent or the Required Banks. Such security interests, mortgages, and guaranties shall be granted pursuant to documen- tation that is satisfactory in form and substance to the Agent and the Required Banks. 8.14 Limitation on Restrictions on Subsidiary Dividends and Other Distributions. None of the Borrowers shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any such Subsidiary to (a) pay dividends or make any other distributions on its capital stock or any other interest or participation in its profits, owned by such Borrower or any Subsidiary of such Borrower, or pay any Indebtedness owed to such Borrower or a Subsidiary of such Borrower, (b) make loans or advances to such Borrower or (c) transfer any of its properties or assets to such Borrower, except for such encumbrances or restrictions existing under or by reason of (i) applicable law, (ii) this Agreement and the other Credit Documents, (iii) the Senior Note Documents, (iv) the Senior Subordinated Note Documents and (v) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of such Borrower or a Subsidiary of such Borrower. 8.15 Limitation on Issuances of Capital Stock by Subsidiaries. None of the Borrowers shall permit any of its Subsidiaries to issue any capital stock (including by way of sales of treasury stock) or any options or warrants to purchase, or securities convertible into, capital stock, except for (i) transfers and replacements of then outstanding shares of capital stock, (ii) stock splits, stock dividends and similar issuances which do not decrease the percentage ownership of such Borrower or any of its Subsidiaries in any class of the capital stock of such Subsidiary, (iii) issuances of common stock by Containers or Plastics to Silgan so long as such issuances either do not give rise to any Net Equity Proceeds or to the extent there are Net Equity Proceeds such proceeds are not required to be applied to repay (and Silgan shall not be required to make an offer to repay) Senior Notes, and (iv) subject to Section 7.09, the Employee Stock Options (and any common stock issuable upon exercise thereof). 8.16 Business. (a) None of the Borrowers will, nor will it permit any of its Subsidiaries to, engage (directly or indirectly) in any business other than the packaging business. (b) Canadian Holdco shall engage in no business other than its ownership of the stock of Express. NRO shall engage in no business. 8.17 Change of Name. None of the Borrowers will, nor will it permit any of its Subsidiaries to, change its legal name from that which exists on the Effective Date unless and until (i) it shall have given to the Agent and the Collateral Agent 45 days' prior written notice of its intention so to do, clearly describing such new name and providing such other information in connection therewith as the Agent and the Collateral Agent may reasonably request, and (ii) with respect to such new name, it shall have taken all action, reasonably satisfactory to the Agent and the Collateral Agent, to maintain the security interests granted by any Credit Party to the Collateral Agent in the Collateral pursuant to any Security Document at all times fully perfected and in full force and effect. 8.18 Consummation of PCP Acquisition. None of the Borrowers will, nor will it permit any of its Subsidiaries to, consummate the PCP Acquisition unless each of the following conditions shall be satisfied: (i) There shall have been delivered to the Banks prior to the date of the consummation of the PCP Acquisition true and correct copies of all PCP Acquisition Documents, and all material terms and conditions of such PCP Acquisition Documents shall be in form and substance reasonably satisfactory to the Agent and the Co-Agent, and the Required Banks shall not have otherwise objected in writing to any such terms and conditions. The Agent and the Co-Agent shall be satisfied with the nature of and the amount and type of assets being acquired in connection with the PCP Acquisition and shall be satisfied that no material liabilities (contingent or otherwise) are being acquired in connection with the PCP Acquisition other than those reasonably acceptable to the Agent and Co-Agent, and the Required Banks shall not have otherwise objected in writing to any such assets or liabilities. All necessary governmental and third party consents and approvals in connection with the PCP Acquisition shall have been obtained and shall be in full force and effect. The representations and warranties set forth in the PCP Acquisition Documents shall be true and correct in all material respects as if made on and as of the date the PCP Acquisition is to be consummated. Each of the conditions precedent to Container's obligation to consummate the PCP Acquisition as set forth in the PCP Acquisition Documents shall have been satisfied to the satisfaction of the Agent and the Co-Agent, or waived with the consent of the Agent and the Co-Agent, and the PCP Acquisition shall have been consummated in accordance, in all material respects, with applicable law and the PCP Acquisition Documents. The total purchase price for the PCP Acquisition shall not exceed $15,000,000. (ii) Prior to the consummation of the PCP Acquisition, Silgan shall have delivered to the Banks (x) a certificate of its chief financial officer certifying that Silgan and its Subsidiaries shall have sufficient availability under the Total Working Capital Commitment to meet their ongoing working capital requirements after giving effect to the PCP Acquisition and the financing thereof and (y) detailed projections which reflect the forecasted financial condition and results of operation and projected working capital requirements of Silgan and its Subsidiaries after giving effect to the PCP Acquisition and the related financing thereof, which projections shall be done on a monthly basis for the 12 month period following the consummation of the PCP Acquisition and on an annualized basis for the remainder of the term of this Agreement, and the Required Banks shall not have determined that such projections and certification are unreasonable or unattainable. (iii) No Default or Event of Default shall be in existence at the time of the consummation of the PCP Acquisition or shall exist immediately after giving effect thereto. (iv) The Agent and the Co-Agent shall have received such opinions of counsel as may have reasonably requested in connection with the PCP Acquisition, which opinions shall be in form and substance reasonably satisfactory to the Agent and the Co-Agent. Section 9. Events of Default. Upon the occurrence of any of the following specified events (each an "Event of Default"): 9.01 Payments. Any Borrower shall (i) default in the payment when due of any Unpaid Drawings or of any principal of the Loans or the Notes, or (ii) default, and such default shall continue unremedied for two or more Business Days, in the payment when due of any interest on Unpaid Drawings or of any interest on the Loans or the Notes or of any Fees or any other amounts owing hereunder or thereunder; or 9.02 Representations, etc. Any representation, warranty or statement made by any Credit Party herein or in any other Credit Document or in any certificate delivered pursuant hereto or thereto shall prove to be untrue or inaccurate in any material respect on the date as of which made or deemed made; or 9.03 Covenants. Any Credit Party shall (i) default in the due performance or observance by it of any term, covenant or agreement (other than those referred to in Sections 9.01 and 9.02 and clause (ii) of this Section 9.03) contained in this Agreement and such default shall continue unremedied for a period of 30 days after written notice to the Borrowers by either the Agent, the Co-Agent or any Bank or (ii) default in the due performance or observance by it of any term, covenant or agreement contained in Section 7.01(g)(i), 7.01(i)(y), 7.07 or Section 8; or 9.04 Default Under Other Agreements. (i) Any Borrower or any of its Subsidiaries shall (x) default in any payment of any Indebtedness (other than the Notes and the Intercompany Notes) beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created or (y) default in the observance or performance of any agreement or condition relating to any Indebtedness (other than the Notes and the Intercompany Notes) or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause (determined without regard to whether any notice is required but giving effect to any grace period), any such Indebtedness to become due prior to its stated maturity or (ii) any Indebtedness of any Borrower or any of its Subsidiaries shall be declared to be due and payable, or required to be prepaid other than by a regularly scheduled required prepayment (except that the Senior Notes may receive their Share of the Net Sale Proceeds and Net Equity Proceeds as provided in Section 4.02(f)), prior to the stated maturity thereof, provided that it shall not constitute an Event of Default under this Section 9.04 unless the aggregate amount of all Indebtedness referred to in clauses (i) and (ii) above exceeds $100,000; or 9.05 Bankruptcy, etc. Any Borrower or any of its Subsidiaries shall commence a voluntary case concerning itself under Title 11 of the United States Code entitled "Bankruptcy," as now or hereafter in effect, or any successor thereto (the "Bankruptcy Code"); or an involuntary case is commenced against any Borrower or any of its Subsidiaries, and the petition is not controverted within 10 days, or is not dismissed within 60 days, after commencement of the case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of any Borrower or any of its Subsidiaries, or any Borrower or any of its Subsidiaries commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to any Borrower or any of its Subsidiaries, or there is commenced against any Borrower or any of its Subsidiaries any such proceeding which remains undismissed for a period of 60 days, or any Borrower or any of its Subsidiaries is adjudicated insolvent or bankrupt; or any order of relief or other order approving any such case or proceeding is entered; or any Borrower or any of its Subsidiaries suffers any appointment of any custodian or the like for it or any substantial part of its property to continue undischarged or unstayed for a period of 60 days; or any Borrower or any of its Subsidiaries makes a general assignment for the benefit of creditors; or any corporate action is taken by any Borrower or any of its Subsidiaries for the purpose of effecting any of the foregoing; or 9.06 ERISA. (i) (a) A single-employer plan (as defined in Section 4001(a)(15) of ERISA) established by any Borrower, any Subsidiary of any Borrower or any ERISA Affiliate shall fail to maintain the minimum funding standard required by Section 412 of the Code for any plan year or part thereof or a waiver of such standard or the extension of any amortization period is sought or granted under Section 412 of the Code, (b) any Plan is, shall have been or is likely to be terminated or the subject of termination proceedings under ERISA or an event has occurred entitling the PBGC to terminate a Plan under Section 4042(a) of ERISA, (c) any Plan other than a Plan which is a multiemployer plan (as defined in Section 4001(a)(3) of ERISA) shall have an Unfunded Current Liability, or (d) any Borrower, any Subsidiary of any Borrower or an ERISA Affiliate has incurred or is likely to incur a liability to or on account of a Plan under Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA; (ii) there shall result from any such event or events described in clause (i) (a) the imposition of a lien upon the assets of any Borrower, any Subsidiary of any Borrower or an ERISA Affiliate, (b) the provision of security to induce the issuance of a waiver or extension of any funding requirement under Section 412 of the Code, or (c) liability or a material risk of incurring liability to the PBGC or the Internal Revenue Service or a Plan or a trustee appointed under ERISA; and (iii) which events described in clauses (i) and (ii) in the opinion of the Required Banks, will have a material adverse effect upon the business, operations, property, assets, condition (financial or otherwise) of any Borrower; or 9.07 Pledge Agreements. Any Pledge Agreement shall cease to be in full force and effect, or shall cease to give the Collateral Agent the Liens, rights, powers and privileges purported to be created thereby (including, without limitation, a first priority perfected security interest in, and Lien on, all of the respective Pledge Agreement Collateral except as provided herein), in favor of the Collateral Agent for the benefit of the respective Secured Creditors and securing the Secured Obligations, superior to and prior to the rights of all third Persons and subject to no other Liens, or any Credit Party party to a Pledge Agreement shall default in the due performance or observance of any term, covenant or agreement on its part to be performed or observed pursuant to such Pledge Agreement; or 9.08 Guaranties. Any Guaranty or any provision thereof shall cease to be in full force or effect, or the respective Guarantor, or any Person acting by or on behalf of such Guarantor, shall deny or disaffirm its obligations under a Guaranty, or the respective Guarantor shall default in the due performance or observance of any term, covenant or agreement on its part to be performed or observed pursuant to any Guaranty, or any Event of Default under, and as defined in, the Holdings Guaranty shall occur; or 9.09 Security Agreements; Mortgages; Additional Security Documents. Any of the Security Agreements, Mortgages or Additional Security Documents shall, after the execution and delivery thereof, cease to be in full force and effect, or shall cease to give the Collateral Agent the Liens, rights, powers and privileges purported to be created thereby (including, without limitation, a perfected security interest in, and Lien on, all the Collateral or Additional Collateral, as the case may be, covered thereby), in favor of the Collateral Agent for the benefit of the respective Secured Creditors under the Security Documents and securing the Secured Obligations, superior to and prior to the rights and Liens of all third Persons (except that the security interests created by the Security Agreement may be junior to the Permitted Liens, the security interests created by the Mortgages may be subject to the respective Permitted Encumbrances and the security interests created by the Additional Security Documents may be subject to Liens permitted by Section 8.01), or any Credit Party shall default in the due performance or observance of any term, covenant or agreement on its part to be performed or observed pursuant to any Security Agreement or Mortgage or Additional Security Document; or 9.10 Judgments. One or more judgments or decrees shall be entered against any Borrower or any of its Subsidiaries involving, when added to any other judgments or decrees of Silgan and its Subsidiaries, a liability (not paid or fully covered by insurance) of $1,000,000 or more, and all such judgments or decrees shall not have been vacated, discharged or stayed or bonded pending appeal within 60 days from the entry thereof; or 9.11 Ownership; Change of Control. (i) Holdings shall cease to own 100% of the capital stock of Silgan, (ii) a Change of Control shall occur or (iii) an Other Indebtedness Change of Control Excess Repayment shall occur; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing, the Agent, upon the written request of the Required Banks, shall by written notice to the Borrowers, take any or all of the following actions, without prejudice to the rights of the Agent, the Co- Agent, any Bank or the holder of any Note to enforce its claims against any Borrower (provided, that, if an Event of Default specified in either Section 9.05 shall occur with respect to any Borrower or Section 9.11(iii) shall occur, the result which would occur upon the giving of written notice by the Agent to the Borrowers as specified in clauses (i) and (ii) below shall occur automatically without the giving of any such notice): (i) declare the Total Commitments terminated, whereupon all Commitments shall forthwith terminate immediately and any Commitment Commission shall forthwith become due and payable without any other notice of any kind; (ii) declare the principal of and any accrued interest in respect of all Loans and the Notes and all Obligations owing hereunder and thereunder to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each of the Borrowers; (iii) exercise any rights or remedies under the Guaranties and/or in its capacity as Collateral Agent under any of the Security Documents; (iv) direct Containers and Plastics to pay (and the respective Borrower agrees that upon receipt of such notice it will pay) to the Agent at the Payment Office such additional amount of cash, to be held as security by the Agent in the Cash Collateral Account, as is equal to the aggregate Stated Amount of all then outstanding Letters of Credit; and (v) terminate any Letter of Credit which may be terminated in accordance with its terms. Section 10. Definitions and Accounting Terms. 10.01 Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined): "Acquired Business" shall mean certain fixed assets and working capital (excluding finished goods (other than certain finished ends)) constituting the containers manufacturing business of Del Monte and the capital stock of DM Can, together with certain liabilities relating thereto, in each case as set forth in the Acquisition Documents. "Acquisition" shall mean the purchase of the Acquired Business pursuant to the Acquisition Documents. "Acquisition Agreement" shall mean the Purchase Agreement, dated as of September 3, 1993, between Containers and Del Monte, as the same may be amended, modified or supplemented pursuant to the terms hereof and thereof. "Acquisition Documents" shall mean the Acquisition Agreement, the Supply Contract and all other documents and agreements entered into or delivered in connection with the Acquisition Agreement. "Additional Collateral" shall mean any assets or properties of any Borrower or any Subsidiary of any Borrower given as collateral pursuant to any Additional Security Document. "Additional Security Documents" shall have the meaning provided in Section 7.10(a) and shall include any additional security documentation executed and delivered pursuant to Section 8.13. "Adjusted Certificate of Deposit Rate" shall mean, on any day, the sum (rounded to the nearest 1/100 of 1%) of (1) the rate obtained by dividing (x) the most recent weekly average dealer offering rate for negotiable certificates of deposit with a three-month maturity in the secondary market as published in the most recent Federal Reserve System publication entitled "Select Interest Rates," published weekly on Form H.15 as of the date hereof, or if such publication or a substitute containing the foregoing rate information shall not be published by the Federal Reserve System for any week, the weekly average offering rate determined by the Agent on the basis of quotations for such certificates received by it from three certificate of deposit dealers in New York of recognized standing or, if such quotations are unavailable, then on the basis of other sources reasonably selected by the Agent, by (y) a percentage equal to 100% minus the stated maximum rate of all reserve requirements as specified in Regulation D applicable on such day to a three-month certificate of deposit of a member bank of the Federal Reserve System in excess of $100,000 (including, without limitation, any marginal, emergency, supplemental, special or other reserves), plus (2) the then daily net annual assessment rate as estimated by the Agent for determining the current annual assessment payable by the Agent to the Federal Deposit Insurance Corporation for insuring three-month certificates of deposit. "Adjusted Net Income" for any period shall mean consolidated net income of Silgan and its Subsidiaries for such period (after provision for taxes) plus the amount of all net non-cash charges (including, without limitation, depreciation, deferred tax expense, non-cash interest expense, write-downs of inventory and other non-cash charges) that were deducted in arriving at the consolidated net income of Silgan and its Subsidiaries for such period less the amount of all net non-cash gains and gains from sales of assets (other than sales of inventory in the ordinary course of business) that were added in arriving at said consolidated net income for such period. "Affiliate" shall mean, with respect to any Person, any other Person directly or indirectly controlling (including, but not limited to, all directors and officers of such Person), controlled by, or under direct or indirect common control with, such Person. A Person shall be deemed to control a corporation if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such corporation, whether through the ownership of voting securities, by contract or otherwise. The term "Affiliate" with respect to the Credit Parties and any of their Subsidiaries shall not include BTCo or any of its affiliates. "Agent" shall have the meaning provided in the first paragraph of this Agreement, and shall include any successor Agent appointed pursuant to Section 11.09. "Agreement" shall mean this Credit Agreement, as same may be modified, supplemented or amended from time to time. "Allowed Reduction" shall mean any reduction in stockholders' equity as a result of any payment or payments made by Silgan after the Effective Date to third parties which are not Affiliates of Silgan in respect of the Reorganization; provided, that, any reduction in excess of $14,000,000 shall not be deemed to be an Allowed Reduction without the consent of the Required Banks. "Applicable Margin" shall mean (w) in the case of A Term Loans which are maintained as (i) Base Rate Loans, 1-3/4% and (ii) Eurodollar Loans, 2-3/4%, (x) in the case of B Term Loans which are maintained as (i) Base Rate Loans, 2-1/4% and (ii) Eurodollar Loans, 3-1/4%, (y) in the case of Working Capital Loans which are maintained as (i) Base Rate Loans, 2% and (ii) Eurodollar Loans, 3% and (z) in the case of Swingline Loans, 2%. "Assignment and Assumption Agreement" shall mean the Assignment and Assumption Agreement substantially in the form of Exhibit N (appropriately completed). "A Term Loan" shall have the meaning provided in Section 1.01(a). "A Term Loan Commitment" shall mean, for each Bank, the amount set forth opposite such Bank's name in Schedule I directly below the column entitled "A Term Loan Commitment", as same may be (x) reduced from time to time pursuant to Sections 3.03, 4.02 and/or 9 or (y) adjusted from time to time as a result of assignments to or from such Bank pursuant to Sections 1.13 and/or 12.04. "A Term Loan Maturity Date" shall mean September 15, 1996. "A Term Loan Scheduled Repayment" shall have the meaning provided in Section 4.02(c). "A Term Loan Scheduled Repayment Date" shall have the meaning provided in Section 4.02(c). "A Term Note" shall have the meaning provided in Section 1.05(a). "Bank" shall have the meaning provided in the first paragraph of this Agreement. "Bank Debt" shall mean and include all Loans, Letters of Credit, Unpaid Drawings and the Unutilized Total Working Capital Loan Commitment outstanding hereunder. "Bank Debt Amount" at any time shall mean that amount which equals the sum of the aggregate principal amount of all Loans then outstanding, the Letter of Credit Outstandings at such time and the Unutilized Total Working Capital Loan Commitment, if any, at such time. "Bank Default" shall mean (i) the refusal (which has not been retracted) of a Bank to make available its portion of any Borrowing (including any Mandatory Borrowing) or to fund its portion of any unreimbursed payment under Section 2.04(c) or (ii) a Bank having notified in writing any Borrower and/or the Agent that it does not intend to comply with its obligations under Section 1.01(c) or 1.01(f) or Section 2, in case of either clause (i) or (ii) as a result of any takeover of such Bank by any regulatory authority or agency. "Bankruptcy Code" shall have the meaning provided in Section 9.05. "Base Rate" at any time shall mean the highest of (i) 1/2 of 1% in excess of the Adjusted Certificate of Deposit Rate, (ii) 1/2 of 1% in excess of the Federal Funds Rate and (iii) the Prime Lending Rate. "Base Rate Loan" shall mean (i) each Swingline Loan and (ii) any other Loan designated or deemed designated as a Base Rate Loan by the respective Borrower at the time of the incurrence thereof or conversion thereto. "Book Entry System" shall have the meaning provided in Section 7.12. "Borrower" shall have the meaning provided in the first paragraph of this Agreement. "Borrowers Guaranty" shall have the meaning provided in Section 5.01(i)(ii). "Borrowing" shall mean the borrowing of one Type of Loan of a single Tranche from all the Banks having Commitments of the respective Tranche (or from BTCo in the case of Swingline Loans) on a given date (or re- sulting from a conversion or conversions on such date) having in the case of Eurodollar Loans the same Interest Period; provided that Base Rate Loans incurred pursuant to Section 1.10(b) shall be considered part of the related Borrowing of Eurodollar Loans. "Borrowing Base" as at any date, shall mean the sum of the following amounts: (i) 85% of Eligible Accounts Receivable and (ii) 50% of Eligible Inventory. "Borrowing Base Certificate" shall have the meaning provided in Section 7.01(i). "Borrowing Base Deficiency" at any time shall mean the amount, if any, by which the sum of the aggregate principal amount of Working Capital Loans and Swingline Loans then outstanding plus the Letter of Credit Outstandings at such time exceeds the Borrowing Base. "Borrowing Base Surplus" at any time shall mean the amount, if any, by which the Borrowing Base exceeds the aggregate principal amount of Working Capital Loans and Swingline Loans then outstanding plus the Letter of Credit Outstandings at such time. "BTCo" shall mean Bankers Trust Company, in its individual capacity. "B Term Loan" shall have the meaning provided in Section 1.01(b). "B Term Loan Commitment" shall mean, for each Bank, the amount set forth opposite such Bank's name in Schedule I directly below the column entitled "B Term Loan Commitment," as same may be (x) reduced from time to time pursuant to Sections 3.03, 4.02 and/or 9 or (y) adjusted from time to time as a result of assignments to or from such Bank pursuant to Sections 1.13 and/or 12.04. "B Term Loan Maturity Date" shall mean September 15, 1996. "B Term Note" shall have the meaning provided in Section 1.05(a). "Business Day" shall mean (i) for all purposes other than as covered by clause (ii) below, any day except Saturday, Sunday and any day which shall be in New York City a legal holiday or a day on which banking institutions are authorized by law or other government action to close and (ii) with respect to all notices and determinations in connection with, and payments of principal and interest on, Eurodollar Loans, any day which is a Business Day described in clause (i) above and which is also a day for trading by and between banks in the New York interbank Eurodollar market. "Canadian Holdco" shall mean 827599 Ontario Inc., an Ontario corporation and a Wholly-Owned Subsidiary of Plastics. "Carryover Amount" shall have the meaning provided in Section 8.08(b). "Cash Collateral Account" shall have the meaning provided in Section 4.02(a). "Cash Equivalents" shall mean, as to any Person, (i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than six months from the date of acquisition, (ii) time deposits and certificates of deposit of any commercial bank incorporated in the United States of recognized standing having capital and surplus in excess of $100,000,000 with maturities of not more than six months from the date of acquisition by such Person, (iii) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (i) above entered into with any bank meeting the qualifications specified in clause (ii) above, (iv) commercial paper issued by the parent corporation of any commercial bank (provided that the parent corporation and the bank are both incorporated in the United States) of recognized standing having capital and surplus in excess of $500,000,000 and commercial paper issued by any Person incorporated in the United States rated at least A-1 or the equivalent thereof by Standard & Poor's Corporation or at least P-1 or the equivalent thereof by Moody's Investors Service, Inc. and in each case maturing not more than six months after the date of acquisition by such Person and (v) investments in money market funds substantially all of whose assets are comprised of securities of the types described in clauses (i) through (iv) above. "CERCLA" shall mean the Comprehensive Environmental Response Compensation of Liability Act of 1980, as the same may be amended from time to time, 42 U.S.C. 9601 et seq. "Change of Control" shall mean any of (i) the occurrence of an event described in Section 9(g) of the Holdings Guaranty or (ii) the occurrence of any Other Indebtedness Change of Control. "Co-Agent" shall have the meaning provided in the first paragraph of this Agreement. "Code" shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated thereunder and rulings issued thereunder. Section references to the Code are to the Code as in effect at the date of this Agreement, and to any subsequent provisions of the Code amendatory thereof, supplemental thereto or substituted therefor. "Collateral" shall mean all Pledge Agreement Collateral, all Security Agreement Collateral, all Mortgaged Properties and all Additional Collateral. "Collateral Agent" shall mean the Agent acting as collateral agent for the Secured Creditors pursuant to the Security Documents, and shall include any successor Collateral Agent appointed pursuant to the terms of the respective Security Document. "Commitment Commission" shall mean the Term Loan Commitment Commission and the Working Capital Commitment Commission. "Commitments" shall mean any of the commitments of any Bank, i.e., whether the A Term Loan Commitment, B Term Loan Commitment or Working Capital Loan Commitment. "Consolidated Current Assets" shall mean the current assets of Silgan and its Subsidiaries determined on a consolidated basis, provided that the Unutilized Total Working Capital Commitment shall be considered current assets of Silgan in making the foregoing determination. "Consolidated Current Liabilities" shall mean the current liabilities of Silgan and its Subsidiaries determined on a consolidated basis, provided that the current portion of the Loans (including any accrued interest with respect to such current portion), and accrued interest on the Senior Notes and the Senior Subordinated Notes from the last regularly scheduled interest payment date shall not be considered current liabilities for purposes of making the foregoing determination and, provided further, that the current portion of any intercompany loans made by Silgan to Containers or Plastics also shall not be considered current liabilities for the purposes of making the foregoing determination. "Consolidated Net Worth" shall mean the Net Worth of Silgan and its Subsidiaries determined on a consolidated basis. "Consolidated Subsidiaries" of any Person shall mean all subsidiaries of such Person which are consolidated with such Person for financial reporting purposes in accordance with generally accepted accounting principles in the United States. "Containers" shall have the meaning provided in the first paragraph of this Agreement. "Containers Employee Stock Options" shall have the meaning provided in Section 6.13. "Containers Stock Option Agreements" shall have the meaning provided in Section 6.13. "Contingent Obligation" shall mean, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations ("primary obligations") of any other Person (the "primary obligor") in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (x) for the purchase or payment of any such primary obligation or (y) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obliga- tion against loss in respect thereof; provided, however, that the term Contingent Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Contingent Obligation shall, unless expressly limited by its terms to a lesser amount, be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made (or such lesser amount) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith. "Contribution Agreement" shall mean the Contribution Agreement, dated as of June 18, 1992, by and among Containers, Plastics and DM Can, as the same may be modified, supplemented or amended pursuant to the terms hereof and thereof. "Credit Documents" shall mean this Agreement, the Contribution Agreement, each Note, each Guaranty, each Pledge Agreement, each Mortgage and each Security Agreement and, after the execution and delivery thereof, each Additional Security Document. "Credit Event" shall mean the making of any Loan or the issuance of any Letter of Credit. "Credit Party" shall mean and include Holdings, each of the Borrowers and DM Can, and after the creation thereof, any Subsidiary of Silgan created pursuant to Section 8.13 which has executed and delivered an Additional Security Document. "Debt Agreements" shall have the meaning provided in Section 5.01(e). "Default" shall mean any event, act or condition which with notice or lapse of time, or both, would constitute an Event of Default. "Del Monte" shall mean Del Monte Corporation, a New York corporation. "Dividends" shall have the meaning provided in Section 8.03. "DM Can" shall mean California-Washington Can Corporation, a California corporation. "Documents" shall mean the Credit Documents, the Acquisition Documents, the Senior Note Documents, the Senior Discount Debenture Documents and the Senior Subordinated Note Documents. "Dollars" and the sign "$" shall each mean freely transferable lawful money of the United States. "Domestic Subsidiary" shall mean each Subsidiary of Silgan incorporated or organized in the United States or any State or territory thereof. "Drawing" shall have the meaning provided in Section 2.05(b). "EBIT" shall mean, for any period, the consolidated net income of Silgan and its Subsidiaries, before interest expense and provision for taxes and without giving effect to any extraordinary non-cash gains or extraordinary non-cash losses and gains from sales of assets (other than sales of inventory in the ordinary course of business), any non-cash adjustments resulting from changes in value of employee stock options. "EBITDA" for any period shall mean EBIT, adjusted by adding thereto the amount of all depreciation and amortization of intangibles (including covenants not to compete), goodwill and loan fees that were deducted in arriving at EBIT for such period. "Effective Date" shall have the meaning provided in Section 12.10. "Eligible Accounts Receivable" shall mean the aggregate gross amount of Containers', Plastics' and DM Can's accounts receivable which conform to the warranties contained herein and in the Security Agreement and at all times continue to be acceptable to the Collateral Agent in its reasonable judgment, less any returns, discounts, claims, credits and allowances of any nature (whether issued, owing, granted or outstanding) and less reserves for any other matter affecting the creditworthiness of account debtors owing the accounts receivable, and excluding (i) foreign or governmental sales (except to the extent supported by a letter of credit issued by an issuer satisfactory to the Collateral Agent), (ii) bill and hold (or deferred shipment) transactions, (iii) contracts or sales to any Affiliate and (iv) all accounts receivable which have not been paid in full within 60 days of the due date thereof. "Eligible Inventory" shall mean the aggregate gross dollar value (valued at the lower of cost or market value) of Containers', Plastics' and DM Can's Inventory which conforms to the warranties contained in the Security Agreement and which at all times continues to be acceptable to the Collateral Agent in its reasonable judgment, less any supplies (other than raw mate- rials), spare parts, goods returned (other than goods returned by customers of Containers consistent with past practices and which goods are not damaged and are suitable for resale by Containers in the ordinary course of business) or rejected by customers, goods to be returned to suppliers, and less any reserves required by the Collateral Agent in its reasonable judgment for special order goods, market value declines and bill and hold (deferred shipment) sales. "Eligible Transferee" shall mean and include a commercial bank, financial institution or other "accredited investor" (as defined in Regulation D of the Securities Act). "Employee Stock Options" shall mean and include the Containers Employee Stock Options and the Plastics Employee Stock Options. "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to ERISA are to ERISA, as in effect at the date of this Agreement, and to any subsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor. "ERISA Affiliate" shall mean any person (as defined in Section 3(9) of ERISA) (including each trade or business (whether or not incorporated)) which together with any Borrower or any Subsidiary of any Borrower would be deemed to be a "single employer" or a member of the same "controlled group" of "contributing sponsors" within the meaning of Section 4001 of ERISA. "Eurodollar Loan" shall mean each Loan (other than a Swingline Loan) designated as a Eurodollar Loan by any Borrower at the time of the incurrence thereof or conversion thereto by such Borrower. "Eurodollar Rate" shall mean (a) the offered quotation to first- class banks in the New York interbank Eurodollar market by BTCo for Dollar deposits of amounts in immediately available funds comparable to the outstanding principal amount of the Eurodollar Loan of BTCo with maturities comparable to the Interest Period applicable to such Eurodollar Loan commencing two Business Days thereafter as of 10:00 A.M. (New York time) on the date which is two Business Days prior to the commencement of such Interest Period, divided (and rounded off to the nearest 1/100 of 1%) by (b) a percentage equal to 100% minus the then stated maximum rate of all reserve requirements (including, without limitation, any marginal, emergency, supple- mental, special or other reserves required by applicable law) applicable to any member bank of the Federal Reserve System in respect of Eurocurrency funding or liabilities as defined in Regulation D (or any successor category of liabilities under Regulation D). "Event of Default" shall have the meaning provided in Section 9. "Excess Cash Flow" shall mean, for any period, the remainder of (i) the sum of (x) Adjusted Net Income for such period and (y) the decrease, if any, in Working Capital from the first day to the last day of such period, minus (ii) the sum of (v) the amount of capital expenditures (not in excess of the amount permitted by Section 8.08 or such greater amounts as are consented to by the Required Banks) made by Silgan and its Subsidiaries on a consolidated basis during such period, (w) the aggregate principal amount of permanent payments or prepayments on Indebtedness for borrowed money of Silgan and its Subsidiaries (other than repayments of loans under the Intercompany Notes and any other intercompany loans among Holdings and its Subsidiaries and repayments of Loans, provided that repayments of Loans shall be deducted in determining Excess Cash Flow if such repayments were (1) required as a result of an A Term Loan Scheduled Repayment under Section 4.02(c) or (2) made as a voluntary prepayment (but in the case of a voluntary prepayment of Working Capital Loans, only to the extent accompanied by a voluntary reduction to the Total Working Capital Commitment)) on a consoli- dated basis during such period, (x) the increase, if any, in Working Capital from the first day to the last day of such period, (y) the aggregate amount of costs and expenses incurred by Silgan and its Subsidiaries during such period in connection with the consolidation and plant rationalization of their operations to the extent such amounts have not reduced Adjusted Net Income for such period or constituted capital expenditures made during such period, provided that no more than $13,000,000 in the aggregate may be deducted pursuant to his clause (y) and (z) the aggregate amount of cash payments actually made during such period to third parties which are not Affiliates of Silgan in respect of the Reorganization to the extent such amounts have not reduced Adjusted Net Income for such period, provided that no more than $14,000,000 in the aggregate may be deducted pursuant to his clause (z). "Excess Cash Payment Date" shall mean the date occurring 120 days after the last day of each fiscal year of Silgan (beginning with its fiscal year ended December 31, 1994). "Excess Cash Payment Period" shall mean with respect to the repayment required on each Excess Cash Payment Date, the immediately preceding fiscal year of Silgan. "Existing Credit Agreement" shall mean the Amended and Restated Credit Agreement, dated as of August 31, 1987, as amended and restated as of March 31, 1989, and amended and restated as of July 13, 1990, and further amended and restated as of June 18, 1992, among the Borrowers, the financial institutions party thereto and BTCo, as agent, as amended, modified or supplemented through the Initial Borrowing Date. "Existing Indebtedness" shall have the meaning provided in Section 8.05(ii). "Existing Letters of Credit" shall have the meaning provided in Section 2.01. "Existing Mortgaged Properties" shall mean all Real Property of Containers and Plastics listed on Schedule III and designated as "Existed Mortgaged Properties" therein. "Existing Mortgages" shall mean all Mortgages granted by Containers and Plastics pursuant to the Existing Credit Agreement and which have not been released by the lenders thereunder prior to the Effective Date. "Express" shall mean Express Plastic Containers Limited, an Ontario corporation and a Wholly-Owned Subsidiary of Canadian Holdco. "Facing Fees" shall have the meaning provided in Section 3.01(d). "Federal Funds Rate" shall mean for any period, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Agent from three Federal Funds brokers of recognized standing selected by the Agent. "Fees" shall mean all amounts payable pursuant to or referred to in Section 3.01. "Foreign Subsidiary" shall mean each Subsidiary of Silgan which is not a Domestic Subsidiary. "Guarantor" shall mean, with respect to any Guaranty, the respective guarantor or guarantors thereunder (i.e., Holdings, Silgan, Containers, Plastics, DM Can and/or any Subsidiary of Silgan required to deliver a Guaranty pursuant to Section 8.13, as the case may be). "Guaranty" shall mean and include each of the Holdings Guaranty, the Borrowers Guaranty and any guaranty delivered pursuant to Section 8.13. "Holdings" shall mean Silgan Holdings Inc., a Delaware corporation. "Holdings Guaranty" shall have the meaning provided in Section 5.01(i)(i). "Holdings Pledge Agreement" shall mean the Amended and Restated Holdings Pledge Agreement, dated as of June 30, 1989, and amended and restated as of June 18, 1992, between Holdings and the Collateral Agent, as the same may be modified, supplemented and amended pursuant to the terms hereof and thereof. "Indebtedness" shall mean, as to any Person, without duplication, (i) all indebtedness (including principal, interest, fees and charges) of such Person for borrowed money or for the deferred purchase price of property or services, (ii) the face amount of all letters of credit issued for the account of such Person and all drafts drawn thereunder, (iii) all liabilities secured by any Lien on any property owned by such Person, whether or not such liabilities have been assumed by such Person, (iv) the aggregate amount required to be capitalized under leases under which such Person is the lessee and (v) all Contingent Obligations of such Person. "Initial Borrowing Date" shall mean the date occurring on or after the Effective Date on which the initial Borrowing hereunder occurs. "Intercompany Agency Agreement" shall mean the Intercompany Agency Agreement, dated as of December 21, 1993, between Containers and DM Can. "Intercompany Notes" shall mean all Mirror Intercompany Notes and all Working Capital Intercompany Notes, which Intercompany Notes shall, (x) in the case of those Intercompany Notes issued to Holdings, Silgan, Containers, Plastics or DM Can, be pledged pursuant to the respective Pledge Agreement and (y) in all cases, contain a provision that, upon either the acceleration of the Loans pursuant to Section 9 hereof or a payment default on such Loans at final maturity thereof, all amounts due and payable under such Intercompany Notes shall be immediately due and payable without any further action. "Interest Determination Date" shall mean the second Business Day prior to the commencement of any Interest Period relating to a Eurodollar Loan. "Interest Expense" for any period shall mean the total consolidated interest expense of Silgan and its Subsidiaries for such period. "Interest Period" shall have the meaning provided in Section 1.09. "Interest Rate Protection Agreement" shall have the meaning provided in the Security Documents and the Guaranties. "Inventory" of any Person shall mean "Inventory" as defined in the Security Agreement. "Iowa City JV" shall mean the joint venture formed pursuant to the Joint Venture Agreement Creating Iowa City Can Mfg. Company, dated as of January 31, 1989, between Containers and Van Dorn Company, an Ohio corporation, acting through its Central States Can Co. division. "Issuance System" shall have the meaning provided in Section 7.12. "Issue" shall mean each of the two different types of Senior Debt, there being two separate Issues for purposes of this Agreement, i.e., the Bank Debt and the Senior Notes. "Leaseholds" of any Person, means all of the right, title and interest of such Person as lessee or licensee in, to and under leases or licenses of land, improvements, and/or fixtures. "Letter of Credit" shall have the meaning provided in Section 2.01(a). "Letter of Credit Fees" shall have the meaning provided in Section 3.01(c). "Letter of Credit Outstandings" shall mean, at any time, the sum of (i) the aggregate Stated Amount of all outstanding Letters of Credit and (ii) the amount of all Unpaid Drawings. "Letter of Credit Request" shall have the meaning provided in Section 2.03(a). "Lien" shall mean any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), preference, priority or other security agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement and any lease having substantially the same effect as any of the foregoing). "Loan" shall mean each A Term Loan, each B Term Loan, each Working Capital Loan and each Swingline Loan. "Majority Banks" shall mean collectively (and not individually) (i) Banks whose outstanding A Term Loans (or, if prior to the Initial Borrowing Date, A Term Loan Commitments) and Working Capital Commitments (or, if after the Total Working Capital Commitment has been terminated, outstanding Working Capital Loans and Percentages of outstanding Swingline Loans and Letter of Credit Outstandings) constitute at least a majority of the total outstanding A Term Loans (or, if prior to the Initial Borrowing Date, the Total A Term Loan Commitment) and the Working Capital Commitment (or, if after the Total Working Capital Commitment has been terminated, the total outstanding Working Capital Loans and the aggregate Percentages of the total outstanding Swingline Loans and Letter of Credit Outstandings at such time) and (ii) Banks whose outstanding B Term Loans (or, if prior to the Initial Borrowing Date, B Term Loan Commitments) constitute at least a majority of the total outstanding B Term Loans (or, if prior to the Initial Borrowing Date, the Total B Term Loan Commitment). "Management Services Agreements" shall mean each of the Amended and Restated Management Service Agreements, each dated as of December 21, 1993, between each of Holdings, Silgan, Containers and Plastics and S&H Inc., as any such Management Services Agreement may be amended, modified or supplemented from time to time pursuant to the terms hereof and thereof. "Mandatory Borrowing" shall have the meaning provided in Section 1.01(e). "Margin Stock" shall have the meaning provided in Regulation U of the Board of Governors of the Federal Reserve System. "Maturity Date" shall mean the A Term Loan Maturity Date, the B Term Loan Maturity Date or the Working Capital Loan Maturity Date, as the case may be. "Maximum Swingline Amount" shall mean $5,000,000. "Mirror Intercompany Notes" shall mean all promissory notes listed on Schedule VII delivered by the respective obligor thereunder evidencing an intercompany loan or loans with proceeds initially received by Silgan from the issuance of the Senior Notes, the Senior Subordinated Notes and the Term Loans. "Mortgage Amendments" shall have the meaning provided in Section 5.01(m)(i). "Mortgaged Properties" shall mean the Existing Mortgaged Properties and the New Mortgaged Properties. "Mortgage Policies" shall mean the mortgage title insurance policies issued in respect of each of the Mortgaged Properties. "Mortgages" shall mean mortgages, deeds of trust, leasehold mortgages and leasehold deeds of trust granted in favor of the Collateral Agent for the benefit of the respective Secured Creditors with respect to the Mortgaged Properties, which mortgages, deeds of trust, leasehold mortgages and leasehold deeds of trust are or shall be in a form which is satisfactory to the Required Banks, with such changes as are necessary or desirable in the opinion of local counsel to conform with applicable state law and procedure. "Net Equity Proceeds" shall mean, with respect to each issuance of equity by any Person, the proceeds (net of underwriting discounts and commissions and other reasonable costs associated therewith) received by such Person from the respective sale or issuance of such equity. "Net Sale Proceeds" shall mean Sale Proceeds, net of reasonable costs in connection therewith and the estimated marginal increase in taxes which will be payable by Silgan's consolidated group with respect to such year as a result thereof. "Net Worth" of any Person shall mean the sum of its capital stock, capital in excess of par or stated value of shares of its capital stock, retained earnings (without giving effect to any non-cash adjustments resulting from changes in value of employee stock options), and any other account which, in accordance with generally accepted accounting principles, constitutes stockholders' equity, less treasury stock. "New Mortgaged Properties" shall have the meaning provided in Section 5.01(m)(ii). "New Mortgages" shall mean those Mortgages which have been granted with respect to the New Mortgaged Properties. "Note" shall mean each A Term Note, each B Term Note, each Working Capital Note and each Swingline Note. "Notice of Borrowing" shall have the meaning provided in Section 1.03(a). "Notice of Conversion" shall have the meaning provided in Section 1.06. "Notice Office" shall mean the office of the Agent located at One Bankers Trust Plaza, New York, New York 10006, or such other office as the Agent may hereafter designate in writing as such to the other parties hereto. "NRO" shall mean 828745 Ontario Inc., an Ontario corporation and a Wholly-Owned Subsidiary of Silgan. "Obligations" shall mean all amounts owing to the Agent, the Co- Agent, the Collateral Agent or any Bank pursuant to the terms of this Agreement or any other Credit Document. "Other Indebtedness Change of Control" shall mean any Change of Control under, and as defined in, any of the Senior Note Agreement, the Senior Subordinated Note Documents or the Senior Discount Debenture Documents. "Other Indebtedness Change of Control Excess Repayment" shall mean any of (i) the repurchase (or the tender for repurchase by the respective holder or holders thereof) of 25% or more of the aggregate principal amount of the then outstanding Senior Notes as a result of an Other Indebtedness Change of Control or (ii) the repurchase (or the tender for repurchase by the respective holder or holders thereof) of any Senior Subordinated Note or Senior Discount Debenture (or a portion thereof) as a result of an Other Indebtedness Change of Control. "Participant" shall have the meaning provided in Section 2.04(a). "Payment Office" shall mean the office of the Agent located at One Bankers Trust Plaza, New York, New York 10006, or such other office as the Agent may hereafter designate in writing as such to the other parties hereto. "PBGC" shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto. "PCP Acquisition" shall mean the purchase by Containers of the PCP Acquired Business pursuant to the PCP Acquisition Documents. "PCP Acquired Business" shall mean certain fixed assets and working capital constituting the containers and manufacturing business of Pacific Coast Producers, Inc. as set forth in the PCP Acquisition Documents. "PCP Acquisition Documents" shall mean the Purchase Agreement to be entered into between Containers and Del Monte pursuant to Section 6.2 of the Acquisition Agreement relating to the purchase by Containers from Del Monte of the PCP Acquired Business, and all other documents and agreements entered into or delivered in connection with such Purchase Agreement. "Percentage" of any Bank at any time shall mean a fraction (expressed as a percentage) the numerator of which is the Working Capital Commitment of such Bank at such time and the denominator of which is the Total Working Capital Commitment at such time; provided, that if the Percentage of any Bank is to be determined after the Total Working Capital Commitment has been terminated, then the Percentages of the Banks shall be determined immediately prior (and without giving effect) to such termination. "Permitted Encumbrance" shall mean, with respect to any Mortgaged Property, such exceptions to title as are set forth in the Mortgage Policy delivered with respect thereto, all of which exceptions must be acceptable to the Required Banks in their reasonable discretion. "Permitted Liens" shall have the meaning provided in Section 8.01(iii). "Person" shall mean any individual, partnership, joint venture, firm, corporation, association, trust or other enterprise or any government or political subdivision or any agency, department or instrumentality thereof. "Plan" shall mean any multiemployer plan (as defined in Section 4001(a)(3) of ERISA) or any single-employer plan (as defined in Section 4001(a)(15) of ERISA), subject to Title IV of ERISA, which is maintained or contributed to, or at any time during the five calendar years preceding the date of this Agreement was maintained or contributed to by any Borrower, or by any Subsidiary of any Borrower or an ERISA Affiliate. "Plastics" shall have the meaning provided in the first paragraph of this Agreement. "Plastics Employee Stock Options" shall have the meaning provided in Section 6.13. "Plastics Stock Option Agreements" shall have the meaning provided in Section 6.13. "Pledge Agreements" shall mean and include each of the Holdings Pledge Agreement, the Silgan Pledge Agreement and the Subsidiaries Pledge Agreement. "Pledge Agreement Collateral" shall mean all "Collateral" as defined in the respective Pledge Agreement. "Pledged Securities" shall have the meaning provided in the respective Pledge Agreement. "Prime Lending Rate" shall mean the rate which BTCo announces from time to time as its prime lending rate, the Prime Lending Rate to change when and as such prime lending rate changes. The Prime Lending Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. BTCo may make commercial loans or other loans at rates of interest at, above or below the Prime Lending Rate. "Projections" shall have the meaning provided in Section 5.01(t). "Quarterly Payment Date" shall mean the last Business Day of each March, June, September and December. "RCRA" shall mean the Resources Conservation and Recovery Act, as the same may be amended from time to time, 42 U.S.C. 6901 et seq. "Real Estate Sales" shall mean the sale by Silgan or any of its Subsidiaries, as the case may be, of the Real Property located in Sharonville, Ohio, Nampa, Idaho, Mansville, Texas, Westport, Missouri, Maysville, Kentucky, Hillsboro, Oregon, Cambridge Springs, Pennsylvania and Smithfield, Utah, in each case in accordance with Section 8.02(vi). "Real Property" of any Person means all of the right, title and interest of such Person in and to land, improvements and fixtures, including Leaseholds. "Regulation D" shall mean Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof establishing reserve requirements. "Regulation G" shall mean Regulation G of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof. "Regulation T" shall mean Regulation T of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof. "Regulation U" shall mean Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof. "Regulation X" shall mean Regulation X of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof. "Reorganization" shall mean the corporate reorganization of Holdings and Silgan that occurred in June 1989. "Replaced Bank" shall have the meaning provided in Section 1.13. "Replacement Bank" shall have the meaning provided in Section 1.13. "Reportable Event" shall mean an event described in Section 4043(b) of ERISA with respect to a Plan as to which the 30-day notice requirement has not been waived by the PBGC. "Required Banks" shall mean Banks, the sum of whose outstanding Term Loans (or, if prior to the Initial Borrowing Date, Term Loan Commitments) and Working Capital Commitments (or after the termination thereof, outstanding Working Capital Loans and Percentage of outstanding Swingline Loans and Letter of Credit Outstandings) represent an amount greater than 50% of the sum of all outstanding Term Loans (or, if prior to the Initial Borrowing Date, the Total Term Loan Commitment) and the Total Working Capital Commitment (or after the termination thereof, the sum of the then total outstanding Working Capital Loans, Swingline Loans and Letter of Credit Outstandings). "Required Secured Creditors" shall have the meaning provided in the respective Security Document. "Sale Proceeds" shall mean all cash, the principal amount of all debt obligations and the fair market value of all other property received as proceeds of any sale of assets. "SEC" shall have the meaning provided in Section 7.01(h). "Section 4.04(b)(iii) Certificate" shall have the meaning provided in Section 4.04(b). "Secured Creditors" shall mean (x) the Banks, the Agent, the Co- Agent, the Collateral Agent and certain lenders of Indebtedness which refinance Indebtedness under this Agreement, (y) the Interest Rate Protection Creditors (as defined in the Security Agreement) and (z) the holders of Senior Notes; provided, however, the Holdings Pledge Agreement shall not secure the obligations under any Senior Note or other Senior Note Document. "Secured Obligations" shall mean all Obligations under, and as defined in, this Agreement as well as all other Obligations as defined in the respective Security Documents. "Securities Act" shall mean the Securities Act of 1933, as amended. "Security Agreement" shall mean the Amended and Restated Security Agreement, dated as of August 31, 1987, and amended and restated as of June 18, 1992, among Plastics, Containers, DM Can and the Collateral Agent, as the same may be amended pursuant to the terms hereof and thereof. "Security Agreement Collateral" shall mean and include all "Collateral" as defined in the Security Agreement. "Security Documents" shall mean and include the Pledge Agreements, the Mortgages, the Security Agreement and, after the execution and delivery thereof, each Additional Security Document. "Senior Debt" shall mean the Bank Debt and the Senior Notes. "Senior Discount Debenture Documents" shall mean and include each of the Senior Discount Debentures and all securities purchase agreements, indentures and other documents and agreements related thereto. "Senior Discount Debentures" shall mean the 13-1/4% Senior Discount Debentures due 2002 issued by Holdings. "Senior Note Agreement" shall mean the Note Purchase Agreement, dated as of June 29, 1992, between Silgan and each of the purchasers party thereto, as same may be amended, modified or supplemented from time to time in accordance with the terms of this Agreement. "Senior Note Documents" shall mean and include each of the Senior Notes and all securities purchase agreements, indentures and other documents and agreements related thereto, including, without limitation, the Senior Note Agreement. "Senior Notes" shall mean the $50,000,000 aggregate principal amount of Senior Secured Floating Rate Notes due 1997 issued by Silgan. "Senior Subordinated Note Documents" shall mean and include each of the Senior Subordinated Notes and all securities, purchase agreements, indentures and other documents and agreements related thereto. "Senior Subordinated Notes" shall mean the $135,000,000 aggregate principal amount of Silgan's 11-3/4% Senior Subordinated Notes due 2002. "Share" shall mean, for each Issue, (A) if the event requiring a repayment of Senior Debt pursuant to Section 4.02(f) would, in accordance with the terms of the Senior Note Agreement (in each case except to the extent same has been made more stringent after June 29, 1992 as to required prepayments based on asset sales or dispositions or equity issuances), give rise to a mandatory prepayment or redemption of Senior Notes, or a mandatory offer to prepay same, then the "Share" (x) of the Senior Notes shall equal the lesser of (1) the amount required to be applied to the repayment of Senior Debt pursuant to Section 4.02(f) multiplied by a fraction the numerator of which is the then outstanding principal amount of Senior Notes and the denominator of which is the then aggregate principal amount of all then outstanding Senior Notes and the Bank Debt Amount at such time or (2) the maximum amount which would be required to be used to make a mandatory prepayment or redemption of Senior Notes in accordance with the terms of the Senior Note Agreement (in each case except to the extent same has been made more stringent after June 29, 1992 as to required prepayments based on asset sales or dispositions or equity issuances), or a mandatory offer to prepay same, as a result of such event requiring a repayment of Senior Debt pursuant to Section 4.02(f) and (y) of the Bank Debt shall equal the remainder of the amount required to be applied to Senior Debt pursuant to Section 4.02(f), less the "Share" of the Senior Notes as determined pursuant to preceding clause (x), and (B) if the event giving rise to a mandatory repayment of Senior Debt would not require a mandatory repayment or redemption of Senior Notes in accordance with the terms of the Senior Note Agreement (in each case except to the extent same has not been made more stringent after June 29, 1992 as to required prepayment based on asset sales of dispositions or equity issuances), or a mandatory offer to prepay same, the "Share" of each Issue shall equal (x) in the case of the Senior Notes, $0 and (y) in the case of the Bank Debt, the amount required to be applied to Senior Debt pursuant to Section 4.02(f). "Shareholders Agreement" shall have the meaning provided in Section 5.01(e). "Silgan" shall have the meaning provided in the first paragraph of this Agreement. "Silgan Pledge Agreement" shall mean the Amended and Restated Silgan Pledge Agreement, dated as of August 31, 1987, and amended and restated as of March 1, 1989, and amended and restated as of July 13, 1990, and further amended and restated as of June 18, 1992, between Silgan and the Collateral Agent, as the same may be modified, supplemented and amended from time to time in accordance with the terms hereof and thereof. "Stated Amount" of each Letter of Credit shall mean the maximum amount available to be drawn thereunder, determined without regard to whether any conditions to drawing could then be met. "Stock Option Agreements" shall mean and include the Containers Stock Option Agreements and the Plastics Stock Option Agreements. "Subsidiary" shall mean, as to any Person, (i) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corpor- ation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person and/or one or more Subsidiaries of such Person and (ii) any partnership, association, joint venture or other entity in which such Person and/or one or more Subsidiaries of such Person has more than a 50% equity interest at the time. Unless the context indicates otherwise, all references herein to Subsidiaries are references to Subsidiaries of any Borrower. "Subsidiaries Pledge Agreement" shall mean the Amended and Restated Subsidiaries Pledge Agreement, dated as of June 18, 1992, among Containers, Plastics, DM Can and the Collateral Agent, as the same may be modified, supplemented and amended pursuant to the terms hereof and thereof. "Supply Contract" shall mean the Supply Agreement, dated as of September 3, 1993, between Containers and Del Monte. "Swingline Expiry Date" shall mean, at any time, the date which is two Business Days prior to the Working Capital Loan Maturity Date. "Swingline Loan" shall have the meaning provided in Section 1.01(d). "Swingline Note" shall have the meaning provided in Section 1.05(a). "Syndication Date" shall mean the Business Day occurring on or after the earlier of (i) the 90th day after the Initial Borrowing Date and (ii) the date upon which the Agent and the Co-Agent determine in their sole discretion (and notify Silgan) that the primary syndication (and the resultant addition of institutions as Banks pursuant to Section 12.04) has been completed. "Tax Sharing Agreement" shall mean the Amended and Restated Tax Allocation Agreement, dated as of July 13, 1990, as amended on December 21, 1993, by and among Holdings and each of its Subsidiaries party thereto. "Taxes" shall have the meaning provided in Section 4.04. "Term Loan" shall mean each A Term Loan and each B Term Loan. "Term Loan Commitment" shall mean, for each Bank at any time, the sum of the A Term Loan Commitment and the B Term Loan Commitment of such Bank at such time. "Term Loan Commitment Commission" shall have the meaning provided in Section 3.01(a). "Total A Term Loan Commitment" shall mean, at any time, the sum of the A Term Loan Commitments of each of the Banks. "Total B Term Loan Commitment" shall mean, at any time, the sum of the B Term Loan Commitments of each of the Banks. "Total Commitment" shall mean, at any time, the sum of the Commitments of each of the Banks. "Total Indebtedness" shall mean the aggregate Indebtedness of Silgan and its Subsidiaries determined on a consolidated basis, provided that there shall be excluded, in making the foregoing determination, Indebtedness consisting of capitalized lease obligations described in Schedule VIII. "Total Term Loan Commitment" shall mean, at any time, the sum of the Total A Term Loan Commitment and the Total B Term Loan Commitment. "Total Unutilized Working Capital Commitment" shall mean, at any time, an amount equal to the remainder of (x) the then Total Working Capital Commitment less (y) the sum of the aggregate principal amount of Working Capital Loans and Swingline Loans then outstanding plus the then aggregate amount of Letter of Credit Outstandings. "Total Working Capital Commitment" shall mean, at any time, the sum of the Working Capital Commitments of each of the Banks. "Tranche" shall mean the respective facility and commitments utilized in making Loans hereunder, with there being four separate Tranches, i.e., A Term Loans, B Term Loans, Working Capital Loans and Swingline Loans. "Transaction" shall mean each of (i) the issuance of the common stock of Holdings as described in Section 5.01(f), (ii) the consummation of the Acquisition and (iii) the termination of the commitments under the Existing Credit Agreement and the repayment of all loans outstanding thereunder. "Type" shall mean the type of Loan determined with regard to the interest option applicable thereto, i.e., whether a Base Rate Loan or a Eurodollar Loan. "UCC" shall mean the Uniform Commercial Code as in effect in the relevant jurisdictions. "Unfunded Current Liability" of any Plan means the amount, if any, by which the present value of the accrued benefits under the Plan as of the close of its most recent plan year exceeds the fair market value of the assets allocable thereto determined in accordance with Section 412 of the Code. "United States" and "U.S." shall each mean the United States of America. "Unpaid Drawing" shall have the meaning provided in Section 2.05(a). "Unutilized Working Capital Commitment" with respect to any Bank, at any time, shall mean such Bank's Working Capital Commitment at such time less the sum of (i) the aggregate outstanding principal amount of Working Capital Loans made by such Bank and (ii) such Bank's Percentage of the Letter of Credit Outstandings. "Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any corporation 100% of whose capital stock is at the time owned by such Person and/or one or more Wholly-Owned Subsidiaries of such Person and (ii) any partnership, association, joint venture or other entity in which such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such time. "Working Capital" shall mean Consolidated Current Assets (excluding cash, Cash Equivalents and the portion of the Unutilized Total Working Capital Commitment otherwise included therein) less Consolidated Current Lia- bilities. "Working Capital Commitment" shall mean, for each Bank, the amount set forth opposite such Bank's name in Schedule I directly below the column entitled "Working Capital Commitment," as same may be (x) reduced from time to time pursuant to Sections 3.02, 3.03, 4.02 and/or 9 or (y) adjusted from time to time as a result of assignments to or from such Bank pursuant to Sections 1.13 and/or 12.04(b). "Working Capital Commitment Commission" shall have the meaning provided in Section 3.01(b). "Working Capital Intercompany Notes" shall mean all promissory notes evidencing intercompany loans by and among Silgan and its Subsidiaries other than the Mirror Intercompany Notes. "Working Capital Loans" shall have the meaning provided in Section 1.01(c). "Working Capital Loan Maturity Date" shall mean September 15, 1996. "Working Capital Note" shall have the meaning provided in Section 1.05(a). 10.02 Principles of Construction. (a) All references to sections, schedules and exhibits are to sections, schedules and exhibits in or to this Agreement unless otherwise specified. (b) All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles in the United States in conformity with those used in the preparation of the last audited financial statements referred to in Section 6.07(a). Section 11. The Agent and Co-Agent. 11.01 Appointment. The Banks hereby designate Bankers Trust Company as Agent (for purposes of this Section 11, the term "Agent" shall include Bankers Trust Company in its capacity as Collateral Agent pursuant to the Security Documents) to act as specified herein and in the other Credit Documents. The Banks hereby designate Bank of America National Trust and Savings Association as Co-Agent to act as specified herein and in the other Credit Documents. Each Bank hereby irrevocably authorizes the Agent and the Co-Agent to take such action on its behalf under the provisions of this Agreement, the other Credit Documents and any other instruments and agreements referred to herein or therein and to exercise such powers and to perform such duties hereunder and thereunder as are specifically delegated to or required of the Agent and the Co-Agent by the terms hereof and thereof and such other powers as are reasonably incidental thereto. The Agent and the Co-Agent may perform any of its duties hereunder by or through their respective officers, directors, agents or employees. 11.02 Nature of Duties. Neither the Agent nor the Co-Agent shall have any duties or responsibilities except those expressly set forth in this Agreement and the Security Documents. Neither the Agent, the Co-Agent nor any of their respective officers, directors, agents or employees shall be liable for any action taken or omitted by it or them hereunder or under any other Credit Document or in connection herewith or therewith, unless caused by its or their gross negligence or willful misconduct. The duties of the Agent and the Co-Agent shall be mechanical and administrative in nature; neither the Agent nor the Co-Agent shall have by reason of this Agreement or any other Credit Document a fiduciary relationship in respect of any Bank; and nothing in this Agreement or any other Credit Document, expressed or implied, is intended to or shall be so construed as to impose upon the Agent or the Co-Agent any obligations in respect of this Agreement or any other Credit Document except as expressly set forth herein. 11.03 Lack of Reliance on the Agent and Co-Agent. Independently and without reliance upon the Agent or the Co-Agent, each Bank, to the extent it deems appropriate, has made and shall continue to make (i) its own independent investigation of the financial condition and affairs of each of the Borrowers in connection with the making and the continuance of the Loans and the taking or not taking of any action in connection herewith and (ii) its own appraisal of the creditworthiness of each of the Borrowers and, except as expressly provided in this Agreement, neither the Agent nor the Co- Agent shall have any duty or responsibility, either initially or on a contin- uing basis, to provide any Bank with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans, or at any time or times thereafter. Neither the Agent nor the Co- Agent shall be responsible to any Bank for any recitals, statements, infor- mation, representations or warranties herein or in any document, certificate or other writing delivered in connection herewith or for the execution, effectiveness, genuineness, validity, enforceability, perfection, collectibility, priority or sufficiency of this Agreement or any other Credit Document or the financial condition of any Borrower or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any other Credit Document, or the financial condition of any Borrower or the existence or possible existence of any Default or Event of Default. 11.04 Certain Rights of the Agent. If the Agent shall request instructions from the Required Banks (or from the Required Secured Creditors with respect to the Security Documents) with respect to any act or action (including failure to act) in connection with this Agreement or any other Credit Document, as the case may be, the Agent shall be entitled to refrain from such act or taking such action unless and until the Agent shall have received instructions from the Required Banks or the Required Secured Creditors, as the case may be, and the Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, no Bank shall have any right of action whatsoever against the Agent as a result of the Agent acting or refraining from acting hereunder or under any other Credit Document in accordance with the instructions of the Required Banks or the Required Secured Creditors, as the case may be. 11.05 Reliance. The Agent and the Co-Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, statement, certificate, telex, teletype or facsimile message, cablegram, radiogram, order or other document or telephone message signed, sent or made by any Person that the Agent or the Co-Agent believed to be the proper Person, and, with respect to all legal matters pertaining to this Agreement and any other Credit Document and its duties hereunder and thereunder, upon advice of counsel selected by it. 11.06 Indemnification. To the extent the Agent or the Co-Agent is not reimbursed and indemnified by the Borrowers, the Banks will reimburse and indemnify the Agent and the Co-Agent, in proportion to their respective "percentages" as used in determining the Required Banks, for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against the Agent or the Co-Agent in performing their duties hereunder or under any other Credit Document, in any way relating to or arising out of this Agreement or any other Credit Document; provided that no Bank shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Agent's or the Co-Agent's gross negligence or willful misconduct. 11.07 The Agent and the Co-Agent in Their Individual Capacity. With respect to its obligation to make Loans and, to participate in Letters of Credit under this Agreement, the Agent and the Co-Agent shall have the rights and powers specified herein for a "Bank" and may exercise the same rights and powers as though it were not performing the duties specified herein; and the term "Banks," "Required Banks," or any similar terms shall, unless the context clearly otherwise indicates, include the Agent and the Co- Agent in their individual capacity. The Agent and the Co-Agent may accept deposits from, lend money to, and generally engage in any kind of banking, trust or other business with, or purchase an equity interest in, any Borrower or any Affiliate of any Borrower as if it were not performing the duties specified herein, and may accept fees and other consideration from any Borrower for services in connection with this Agreement and otherwise without having to account for the same to the Banks. The Agent and the Co-Agent may also be an equity investor in any Borrower or any Affiliate of any Borrower without any consent required from any Banks. 11.08 Holders. The Agent may deem and treat the payee of any Note as the owner thereof for all purposes hereof unless and until a written notice of the assignment, transfer or endorsement thereof, as the case may be, shall have been filed with the Agent. Any request, authority or consent of any person or entity who, at the time of making such request or giving such authority or consent, is the holder of any Note shall be conclusive and binding on any subsequent holder, transferee, assignee or indorsee, as the case may be, of such Note or of any note or notes issued in exchange therefor. 11.09 Resignation by the Agent and the Co-Agent. (a) The Agent and/or the Co-Agent may resign from the performance of all their respective functions and duties hereunder and/or under the other Credit Documents (other than under the Security Documents except to the extent provided therein) at any time by giving 15 Business Days' prior written notice to the Borrowers and the Banks. In the case of the resignation by the Agent, such resignation shall take effect upon the appointment of a successor Agent pursuant to clauses (b) and (c) below or as otherwise provided below. In the case of a resignation by the Co-Agent, such resignation shall become effective immediately. (b) Upon any such notice of resignation, the Banks shall appoint a successor Agent hereunder or thereunder who shall be a commercial bank or trust company reasonably acceptable to the Borrowers. (c) If a successor Agent shall not have been so appointed within such 15 Business Day period, the Agent, with the consent of the Borrowers, shall then appoint a successor Agent who shall serve as Agent hereunder or thereunder until such time, if any, as the Banks appoint a successor Agent as provided above. (d) If no successor Agent has been appointed pursuant to clause (b) or (c) above by the 20th Business Day after the date such notice of resignation was given by the Agent, the Agent's resignation shall become effective and the Banks shall thereafter perform all the duties of the Agent hereunder and/or under any other Credit Document (other than under any Security Document except to the extent so appointed in accordance with the terms thereof) until such time, if any, as the Banks appoint a successor agent as provided above. Section 12. Miscellaneous. 12.01 Payment of Expenses, etc. The Borrowers jointly and severally agree that they will: (i) whether or not the transactions herein contemplated are consummated, pay all reasonable out-of-pocket costs and expenses of the Agent and the Co-Agent in connection with the preparation, execution and delivery of the Credit Documents and the documents and instru- ments referred to therein and any amendment, waiver or consent relating thereto (including, without limitation, the reasonable fees and disbursements of White & Case, local counsel and, without duplication, the allocated costs of in-house counsel for the Co-Agent) and of the Agent and the Co-Agent in connection with their syndication efforts with respect to this Agreement and of the Agent, the Co-Agent, the Collateral Agent and each of the Banks in connection with the enforcement of the Credit Documents and the documents and instruments referred to therein (including, without limitation, the reasonable fees and disbursements of counsel for the Agent, the Collateral Agent and for each of the Banks); (ii) pay and hold each of the Banks harm- less from and against any and all present and future stamp, excise and other similar taxes with respect to the foregoing matters and save each of the Banks harmless from and against any and all liabilities with respect to or resulting from any delay or omission (other than to the extent attributable to such Bank) to pay such taxes; and (iii) indemnify the Agent, the Co-Agent, the Collateral Agent and each Bank, its officers, directors, employees, representatives and agents from and hold each of them harmless against any and all liabilities, obligations (including removal or remedial actions), losses, damages, penalties, claims, actions, judgments, suits, costs, expenses and disbursements (including reasonable attorneys' and consultants' fees and disbursements) incurred by, imposed on or assessed against any of them as a result of, or arising out of, or in any way related to, or by reason of, (a) any investigation, litigation or other proceeding (whether or not the Agent, the Co-Agent or any Bank is a party thereto) related to the entering into and/or performance of this Agreement or any other Credit Document or the use of any Letter of Credit or the proceeds of any Loans hereunder or the consummation of any transactions contemplated herein (including, without limitation, the Transaction) or in any other Credit Document or the exercise of any of their rights or remedies provided herein or in the other Credit Documents, or (b) the actual or alleged presence of hazardous materials in the air, surface water or groundwater or on the surface or subsurface of any Real Property owned or at any time operated by Holdings or any of its Subsidiaries, the generation, storage, transportation, handling or disposal of hazardous materials at any location, whether or not owned or operated by Holdings or any of its Subsidiaries, the non-compliance of any Real Property with foreign, federal, state and local laws, regulations, and ordinances (including applicable permits thereunder) applic- able to any Real Property, or any environmental claim asserted against Holdings, any of its Subsidiaries or any Real Property owned or at any time operated by Holdings or any of its Subsidiaries, including, in each case, without limitation, the reasonable fees and disbursements of counsel and other consultants incurred in connection with any such investigation, litigation or other proceeding (but excluding any losses, liabilities, claims, damages or expenses to the extent incurred by reason of the gross negligence or willful misconduct of the Person to be indemnified). To the extent that the undertaking to indemnify, pay or hold harmless the Agent, the Co-Agent or any Bank set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, the Borrowers shall make the maximum contribution to the payment and satisfaction of each of the indemnified liabilities which is permissible under applicable law. 12.02 Right of Setoff. In addition to any rights now or hereafter granted under applicable law or otherwise, and not by way of limitation of any such rights, upon the occurrence of an Event of Default, each Bank is hereby authorized at any time or from time to time with the prior consent of the Agent or the Required Banks, without presentment, demand, protest or other notice of any kind to any Borrower or to any other Person, any such notice being hereby 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 Bank (including, without limitation, by branches and agencies of such Bank wherever located) to or for the credit or the account of such Borrower against and on account of the Obligations and liabilities of such Borrower to such Bank under this Agreement or under any of the other Credit Documents, including, without limitation, all interests in Obligations purchased by such Bank pursuant to Section 12.06(b), and all other claims of any nature or description arising out of or connected with this Agreement or any other Credit Document, irrespective of whether or not such Bank shall have made any demand hereunder and although said Obligations, liabilities or claims, or any of them, shall be contingent or unmatured. 12.03 Notices. Except as otherwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing (including telegraphic, telex, telecopier or cable communication) and mailed, telegraphed, telexed, telecopied, cabled or delivered, if to any Borrower, at its address specified opposite its signature below; if to any Bank, at its office specified opposite its name on Schedule X; and if to the Agent, at its Notice Office; or, as to any Borrower or the Agent, at such other address as shall be designated by such party in a written notice to the other parties hereto and, as to each other party, at such other address as shall be designated by such party in a written notice to the Borrowers and the Agent. All such notices and communications shall, when mailed, telegraphed, telexed, telecopied, or cabled or sent by overnight courier, be effective when deposited in the mails, delivered to the telegraph company, cable company or overnight courier, as the case may be, or sent by telex or telecopier, except that notices and communications to the Agent shall not be effective until received by the Agent. 12.04 Benefit of Agreement. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, however, no Borrower may assign or transfer any of its rights, obligations or interest hereunder or under any other Credit Document without the prior written consent of the Banks and, provided further, that, although any Bank may transfer, assign or grant participations in its rights hereunder, such Bank shall remain a "Bank" for all purposes hereunder (and may not transfer or assign all or any portion of its Commitments hereunder except as provided in Sections 1.13 and 12.04(b)) and the transferee, assignee or participant, as the case may be, shall not constitute a "Bank" hereunder and, provided further, that no Bank shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) extend the final scheduled maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is not extended beyond the Working Capital Loan Maturity Date) in which such participant is participating, or reduce the rate or extend the time of payment of interest or Fees thereon (except in connec- tion with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof), (ii) consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement or (iii) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) supporting the Loans hereunder in which such parti- cipant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Bank in respect of such participation to be those set forth in the agreement executed by such Bank in favor of the participant relating thereto) and all amounts payable by any Borrower hereunder shall be determined as if such Bank had not sold such participation. (b) Notwithstanding the foregoing, any Bank (or any Bank together with one or more other Banks) may (x) assign all or a portion of its Commitments and related outstanding Obligations hereunder to its parent company and/or any affiliate of such Bank which is at least 50% owned by such Bank or its parent company or to one or more Banks or (y) assign all, or if less than all, a portion equal to at least $5,000,000 in the aggregate for the assigning Bank or assigning Banks, of such Commitments and related outstanding Obligations hereunder to one or more Eligible Transferees, each of which assignees shall become a party to this Agreement as a Bank by execu- tion of an Assignment and Assumption Agreement, provided that, (i) at such time Schedule I shall be deemed modified to reflect the Commitments (or outstanding Term Loans, as the case may be) of such new Bank and of the existing Banks, (ii) new Notes will be issued, at the Borrowers' expense, to such new Bank and to the assigning Bank upon the request of such new Bank or assigning Bank, such new Notes to be in conformity with the requirements of Section 1.05 (with appropriate modifications) to the extent needed to reflect the revised Commitments (or outstanding Term Loans, as the case may be), (iii) the consent of the Agent shall be required in connection with any assignment to an Eligible Transferee pursuant to clause (y) above and (iv) the Agent shall receive at the time of each such assignment, from the assigning or assignee Bank, the payment of a non-refundable assignment fee of $3,000. To the extent of any assignment pursuant to this Section 12.04(b), the assigning Bank shall be relieved of its obligations hereunder with respect to its assigned Commitments. At the time of each assignment pursuant to this Section 12.04(b) to a Person which is not already a Bank hereunder and which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Bank shall, to the extent legally entitled to do so, provide to the Borrower in the case of a Bank described in clause (ii) or (iv) of Section 4.04(b), the forms described in such clause (ii) or (iv), as the case may be. To the extent that an assignment of all or any portion of a Bank's Commitments and related outstanding Obligations pursuant to Section 1.13 or this Section 12.04(b) would, at the time of such assignment, result in increased costs under Section 1.10, 1.11 or 4.04 from those being charged by the respective assigning Bank prior to such assignment, then the Borrowers shall not be obligated to pay such increased costs (although the Borrowers shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (c) Nothing in this Agreement shall prevent or prohibit any Bank from pledging its Loans and Notes hereunder to a Federal Reserve Bank in support of borrowings made by such Bank from such Federal Reserve Bank. 12.05 No Waiver; Remedies Cumulative. No failure or delay on the part of the Agent, the Co-Agent or any Bank or any holder of a Note in exercising any right, power or privilege hereunder or under any other Credit Document and no course of dealing between any Borrower and the Agent, the Co- Agent or any Bank or the holder of any Note shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder or under any other Credit Document preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder. The rights, powers and remedies herein or in any other Credit Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Agent, the Co-Agent or any Bank or the holder of any Note would otherwise have. No notice to or demand on any Borrower in any case shall entitle any Borrower to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the Agent, the Co-Agent, the Banks or the holder of any Note to any other or further action in any circumstances without notice or demand. 12.06 Payments Pro Rata. (a) The Agent agrees that promptly after its receipt of each payment from or on behalf of any Borrower in respect of any Obligations of such Borrower hereunder, it shall distribute such payment to the Banks (other than any Bank that has consented in writing to waive its pro rata share of any such payment) pro rata based upon their respective shares, if any, of the Obligations with respect to which such pay- ment was received. (b) Each of the Banks agrees that, if it should receive any amount hereunder (whether by voluntary payment, by realization upon security, by the exercise of the right of setoff or banker's lien, by counterclaim or cross action, by the enforcement of any right under the Credit Documents, or otherwise), which is applicable to the payment of the principal of, or interest on, the Loans, the Unpaid Drawings, Commitment Commission or Letter of Credit Fees, of a sum which with respect to the related sum or sums received by other Banks is in a greater proportion than the total of such Obligation then owed and due to such Bank bears to the total of such Obligation then owed and due to all such Banks immediately prior to such receipt, then such Bank receiving such excess payment shall purchase for cash without recourse or warranty from the other Banks an interest in the Obligations of such Borrower to such Banks in such amount as shall result in a proportional participation by all of the Banks in such amount; provided that if all or any portion of such excess amount is thereafter recovered from such Bank, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest. 12.07 Calculations; Computations. (a) The financial statements to be furnished to the Banks pursuant hereto shall be made and prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved (except as set forth in the notes thereto or as otherwise disclosed in writing by Silgan to the Banks); provided that, except as otherwise specifically provided herein, all computations determining compliance with Section 4.02 and Section 8 shall utilize account- ing principles and policies in conformity with those used to prepare the audited historical financial statements delivered to the Banks pursuant to Section 6.07(a); provided further that in determining the Net Worth of Silgan for any period, no effect shall be given to the Allowed Reduction. (b) All computations of interest, Commitment Commission and Fees hereunder shall be made on the actual number of days elapsed over a year of 360 days. 12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE. (A) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWERS HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH OF THE BORROWERS HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CT CORPORATION SYSTEM, WITH OFFICES ON THE DATE HEREOF AT 1633 BROADWAY, NEW YORK, NEW YORK 10019 AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RE- SPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, EACH OF THE BORROWERS AGREES TO DESIGNATE A NEW DESIGNEE, AP- POINTEE AND AGENT IN NEW YORK CITY ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO THE AGENT. EACH OF THE BORROWERS FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFORE- MENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH BORROWER AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT OR ANY BANK TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY BORROWER IN ANY OTHER JURISDICTION. (B) EACH OF THE BORROWERS 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 AGREEMENT 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 ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. 12.09 Counterparts. This Agreement 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 the Borrowers and the Agent. 12.10 Effectiveness. This Agreement shall become effective on the date (the "Effective Date") on which (i) each of the Borrowers and the Banks shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered the same to the Agent at its Notice Office or, in the case of the Banks, shall have given to the Agent telephonic (confirmed in writing), written or telex notice (actually received) at such office that the same has been signed and mailed to it. The Agent will give the Borrowers and each Bank prompt written notice of the occurrence of the Effective Date. 12.11 Headings Descriptive. The headings of the several sections and subsections of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement. 12.12 Amendment or Waiver. (a) Neither this Agreement nor any other Credit Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the Borrowers and the Required Banks, provided that no such change, waiver, discharge or termination shall, without the consent of each Bank (with Obligations being directly affected in the case of following clause (i)), (i) extend the final scheduled maturity of any Loan or Note or extend the stated maturity of any Letter of Credit beyond the Working Capital Loan Maturity Date, or reduce the rate or extend the time of payment of interest or Fees thereon, or reduce the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) under all the Security Documents, (iii) amend, modify or waive any provision of this Section 12.12, (iv) reduce the percentage specified in the definition of Required Banks (it being understood that, with the consent of the Required Banks, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Banks on substantially the same basis as the extensions of Term Loans and Working Capital Loan Commitments are included on the Effective Date) or (v) consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement; provided further, that no such change, waiver, discharge or termination shall (v) increase the Commitments of any Bank over the amount thereof then in effect without the consent of such Bank (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the Total Commitment shall not constitute an increase of the Commitment of any Bank, and that an increase in the available portion of any Commitment of any Bank shall not constitute an increase in the Commitment of such Bank), (w) without the consent of BTCo, amend, modify or waive any provision of Section 2 or alter its rights or obligations with respect to Letters of Credit or Swingline Loans, (x) without the consent of the Agent or the Co-Agent, amend, modify or waive any provision of Section 11 as same applies to the Agent or the Co-Agent or any other provision as same relates to the rights or obligations of the Agent or the Co-Agent or, (y) without the consent of the Collateral Agent, amend, modify or waive any provision relating to the rights or obligations of the Collateral Agent or (z) without the consent of the Majority Banks, amend the definition of Majority Banks or alter the application of any prepayments or repayments (or commitment reductions) pursuant to Section 3.03(d), Section 4.01 or Section 4.02(i), as the case may be (although the Required Banks may waive, in whole or in part, any such prepayment, repayment or commitment reduction so long as the application of any such prepayment, repayment or commitment reduction which is still required to be made is not altered). (b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clause (a)(i) through (v), inclusive, of this Section 12.12, the consent of the Required Banks is obtained but the consent of one or more of other Banks whose consent is required is not obtained, then Silgan shall have the right to replace each such non-consenting Bank or Banks (so long as all non- consenting Banks are so replaced) with one or more Replacement Banks pursuant to Section 1.13 so long as at the time of such replacement, each such Replacement Bank consents to the proposed change, waiver, discharge or termination, provided that the Borrower shall not have the right to replace a Bank solely as a result of the exercise of such Bank's rights (and the withholding of any required consent by such Bank) pursuant to the second proviso to Section 12.12(a). 12.13 Survival. All indemnities set forth herein including, without limitation, in Sections 1.10, 1.11, 2.06, 4.04, 11.06 and 12.01 shall survive the execution and delivery of this Agreement and the Notes and the making and repayment of the Loans and all Unpaid Drawings hereunder and the termination of the Commitments. 12.14 Domicile of Loans. Each Bank may transfer and carry its Loans at, to or for the account of any office, Subsidiary or Affiliate of such Bank. Notwithstanding anything to the contrary contained herein, to the extent that a transfer of Loans pursuant to this Section 12.14 would, at the time of such transfer, result in increased costs under Section 1.10, 1.11, 2.06 or 4.04 from those being charged by the respective Bank prior to such transfer, then no Borrower shall be obligated to pay such increased costs (although each Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective transfer). 12.15 Provision Inserted Pursuant to Local Real Estate Law. The indebtedness and obligations evidenced hereby are secured by, among other things, those certain Deed of Trust, Assignment of Leases and Rents and Security Agreements, in each case dated as of August 31, 1987, as amended, executed by Containers and Plastics, as the case may be, to David Frantze, Trustee, for the benefit of Bankers Trust Company, as Collateral Agent, which Deed of Trust, Assignment of Leases and Rents and Security Agreements create liens upon real property in Buchanan, Lawrence and St. Louis counties, Missouri. 12.16 Confidentiality. (a) Subject to the provisions of clause (b) of this Section 12.16, each Bank agrees that it will use its best effort not to disclose without the prior consent of Silgan (other than to its employees, auditors or counsel or to another Bank or such Bank's holding or parent company if such Bank determines in its sole discretion that any such party should have access to such information) any information with respect to Holdings or any of its Subsidiaries which is now or in the future furnished pursuant to this Agreement or any other Credit Document and which is designated by any Borrower to the Banks in writing as confidential, provided that any Bank may disclose any such information (a) as has become generally available to the public, (b) as may be required or appropriate in any report, statement or testimony submitted to any municipal, state or Federal regulatory body having or claiming to have jurisdiction over such Bank or to the Federal Reserve Board or the Federal Deposit Insurance Corporation or similar organizations (whether in the United States or elsewhere) or their successors, (c) as may be required or appropriate in respect to any summons or subpoena or in connection with any litigation, (d) in order to comply with any law, order, regulation or ruling applicable to such Bank, and (e) to any prospective or actual transferee or participant in connection with any contemplated transfer or participation of any of the Notes or Working Capital Commitments or any interest therein by such Bank, provided, that such prospective transferee executes an agreement with such Bank containing provisions substantially identical to those contained in this Section. (b) Each Borrower hereby acknowledges and agrees that each Bank may share with any of its affiliates any information related to Holdings or any of its Subsidiaries (including, without limitation, any nonpublic customer information regarding the creditworthiness of Holdings and its Subsidiaries). IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Agreement as of the date first above written. Address: SILGAN CORPORATION 4 Landmark Square Suite 301 Stamford, CT 06901 By /s/ Harley Rankin Jr. ------------------------------------- Attn: Harley Rankin, Jr. Title: Executive Vice President Telephone: (203) 975-7110 Fax: (203) 975-7902 SILGAN CONTAINERS CORPORATION 4 Landmark Square Suite 301 Stamford, CT 06901 By /s/ Harley Rankin Jr. ------------------------------------- Attn: Harley Rankin, Jr. Title: Vice President Telephone: (203) 975-7110 Fax: (203) 975-7902 SILGAN PLASTICS CORPORATION 4 Landmark Square Suite 301 Stamford, CT 06901 By /s/ Harley Rankin Jr. ------------------------------------- Attn: Harley Rankin, Jr. Title: Vice President Telephone: (203) 975-7110 Fax: (203) 975-7902 BANKERS TRUST COMPANY, Individually and as Agent By /s/ Daniel Toscano ------------------------------------------ Title: Associate BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, Individually and as Co-Agent By /s/ Elizabeth Borow ------------------------------------------ Title: Vice President SCHEDULE I TO CREDIT AGREEMENT ---------------- COMMITMENTS ----------- A Term Loan B Term Loan Working Capital Bank Commitment Commitment Commitment - ----- ----------- ----------- --------------- Bankers Trust $30,000,000 $40,000,000 $35,000,000 Company Bank of America $30,000,000 $40,000,000 $35,000,000 National Trust and Savings Association _________________ ______________________________ Total $60,000,000 $80,000,000 $70,000,000 SCHEDULE II TO CREDIT AGREEMENT ----------------- EXISTING LETTERS OF CREDIT -------------------------- Letters of Credit Number Beneficiary Stated Amount Expiry Date ---------------- ----------- ------------- ----------- S-02498 Insurance Company of $300,000 5/1/94 North America S-07651 National Union Fire $1,995,000 3/1/94 Insurance Company S-03407 Travelers Indemnity $169,511 8/31/94 S-05970 Transportation Insurance $3,504,500 8/31/94 S-08794 General Mills Inc. $125,000 9/30/94 SCHEDULE III TO CREDIT AGREEMENT ---------------- REAL PROPERTY ------------- 1. Silgan Containers Corporation ----------------------------- Owned Properties ---------------- Plant* 3250 Patterson Road Riverbank, CA 95367 1815 Navy Drive Plant* Stockton, CA 95206 224 Silgan Way Plant* 1/ Nampa, ID 83651 305 West North Street Plant* Mt. Vernon, MO 65712 165 Railroad Street Plant* Cambridge Springs, PA 16403 1500 East Broad Plant* Mansfield, TX 76063 Wisteria Street & Dallas Warehouse* Mansfield, TX 76063 N90 W14600 Commerce Drive Plant* Menomonee Falls, WI 53051- 2337 505 Libby Street Plant* Waupun, WI 53963 Jefferson Industrial Park Plant 2/* Fort Madison, IA 52627 1100 East Third Street Plant* Maysville, KY 41056 2115 Lower Lake Road Plant* St. Joseph, MO 64504 669 South First Street Plant* Hillsboro, OR 97123 520 West Second Street Plant* Oconomowoc, WI 53066 Rochelle 115 Plant** 15th Street Rochelle, IL 61608 Smithfield 140 Plant** 521 S. Main Street Smithfield, Utah 84335 Leased Properties ----------------- 21800 Oxnard Street (Landlord: Warren Properties Suite 600 III; lease dated 9/3/93) Woodland Hills, CA 91367 3591 Maple Drive (Landlord: Fort Dodge Fort Dodge, IA 50501 Betterment Foundation; lease dated 11/7/86, assigned 8/31/87)* Warehouse #5 (Landlord: Lincoln Paper 1605 Tillie-Lewis Drive Company; lease dated Stockton, CA 95205 12/21/88)* 3591 Maple Drive (Landlord: Fort Dodge Better- Fort Dodge, IA 50501 ment Foundation; lease dated 11/20/89)* 1416 Indian Head Drive (Landlord: Northern Can Menomonee, WI 54715 Systems of Wisconsin, Inc.; lease dated 5/25/93) 1409 Indian Head Drive (Landlord: Northern Can Memomonee, WI 54715 Systems Warehouse, Inc.; lease dated 5/25/93) 6180 Roselle Avenue (Landlord: Riverbank Venture: Riverbank, CA 95367 lease dated May 1, 1990) Parker Tobacco (Landlord: Parker Tobacco: 697 Parker Road lease dated 6/1/91) Maysville, KY 41056 Herro-Radthe West (Landlord: Herro-Radthe: 1325 Wall Street lease dated 3/1/89)* Oconomowoc, WI 53066 Warehouse N57 W39593 (Landlord: Herro-Radthe: Highway 16 West lease dated 11/20/90)* Oconomowoc, WI 53066 Alsman Warehouse (Landlord: Bill Alsman: 2808 Patterson Road lease dated 7/1/90) Riverbank, CA 95367 Robert B. Schilli (Landlord: Robert B. Schilli: Jefferson Industrial Park lease dated 1/1/89) Ft. Madison, Iowa 52627 1 Mile East of Plover (Landlord: Del Monte on County Track Highway B Corporation: lease dated Plover, WI 54467 12/17/93)** Farm Road 393 (Landlord: Del Monte Crystal City, TX 78839 Corporation: lease dated 12/17/93)** 2. Silgan Plastics Corporation --------------------------- Owned Properties ---------------- 27 Bridge Street Plant* Deep River, CT 06417 910 Gerber Street Plant* Ligonier, IN 46767 3574 East Kemper Road Plant* Sharonville, OH 45231 2337 Centerline (Unimproved land)* Industrial Drive Westport, MO 63141 Vine Street and Adamson Plant* Drive Monroe, GA 30655 3779 North Country Road Plant* 850 East Seymour, IN 47274 Leased Properties ----------------- 1858 Meca Way (Sublease from Amoco 11/3/78, Norcross, GA 30093 amended 4/1/91) 2337 Centerline (Landlord: Crow - St. Louis; Industrial Drive lease dated 11/21/67, amended Westport, MO 63141 11/26/69, 11/23/74, 3/17/80 (Plant) and 2/15/85)* 910 Gerber Street (Landlord: The Northwestern Ligonier, IN 46767 Mutual Life Insurance Company; lease dated 10/1/61, amended 4/1/65 and 2/20/69)* 379 Thornall (Landlord: Metro Four Assoc., Edison, NJ 08837 L.P.; lease dated 6/5/88, amended 3/16/93) 611 East Cerritos Avenue (Landlord: Anaheim/Cerritos Anaheim, CA 92803 Investment Group; lease dated 7/26/88) 16216 Baxter Road, (Landlord: Land Corp, Inc.; Suite 300 lease dated 9/25/87, amended Chesterfield, MO 63017 11/18/87 and 4/22/91) 377 East Butterfield Road (Landlord: Homart Development Suite 440 Co.; lease dated 12/3/92) Lombard, IL 60148-5681 Building #460 (Landlord: USCO Distribution Erie Industrial Park Services, Inc.; lease dated Port Clinton, OH 43452 2/18/85, amended 9/1/88 and 6/7/91) Building #2 (Landlord: USCO Distribution Erie Industrial Park Services, Inc.; lease dated Port Clinton, OH 43452 9/22/86, amended 9/1/87 and 6/7/91) 7600 White Pine Road (Landlord: Armal Corporation; Richmond, VA 23237 lease dated 3/31/89, subleased (Chesterfield County) to American Sitronia Corporation 7/1/92) 700 and 715 Orange St. (Landlord: Armal Corporation; Franklin, KY 42134 lease dated 3/31/89)* 109, 110, 111 and 112 (Landlord: Kylou, Inc.; lease Watterson Warehouse Center dated 3/20/84, amended 3899 Produce Road 8/17/88) Louisville, KY 40218 121 Wheeler Court (Landlord: Adwin Realty Co.; Bucks County Business Park lease dated 8/16/78, extended Langhorne, PA 19047 9/3/93) 181 Wheeler Court (Landlord: Prudential Ins. Bucks County Business Park Co. of America; lease dated Langhorne, PA 19047 4/12/90, expires 1994, a portion subleased to Schwartz Paper Co. 8/23/93) 3. Express Plastic Containers Limited ---------------------------- Owned Properties ---------------- None. Leased Properties ----------------- 1575 Drew Road (Landlord: 827531 Ontario Mississauga, Ontario Limited; lease dated 3/31/89) Canada 2380 Drew Road (Landlord: Morgan Mae Mississauga, Ontario Enterprises Limited and Mid Canada King Investments Limited d/b/a Alness Properties; leases dated February 3, 1987 and April 30, 1987) 4. Silgan Corporation ------------------ Owned Properties ---------------- None. Leased Properties ----------------- None. 5. California-Washington Can Corporation -------------------------- Owned Properties ---------------- 49 E. Third Avenue Plant** Toppenish, WA 98948 Leased Properties ----------------- 2716 E. Miner Avenue (Landlord: Del Monte Stockton, CA 95205 Corporation; lease dated 12/17/93** Kern & Marion Street (Landlord: Del Monte Kingsburg, CA 93631 Corporation; lease dated 12/17/93)** 400 Yosemite Blvd. (Landlord: Del Monte Modesto, CA 95354 Corporation; lease dated 12/17/93)** 3100 E. 9th Street (Landlord: Del Monte Oakland, CA 94601 Corporation; lease dated 12/17/93) - ----------------------- */ Existing Mortgaged Properties. **/ New Mortgaged Properties. 1/ Mortgage Amendment will be prepared and filed within 45 days following the Initial Borrowing Date. 2/ Mortgage Amendment will be prepared and filed within 45 days following the Initial Borrowing Date. SCHEDULE IV TO CREDIT AGREEMENT ---------------- INSURANCE REQUIREMENT --------------------- See Annex A attached hereto for the amounts insured and types of coverage provided. SCHEDULE V TO CREDIT AGREEMENT ---------------- Permitted Liens --------------- Liens evidenced by filings permitted by Annex A to the Security Agreement and Annex A to the First Amendment to the Amended and Restated Security Agreement. SCHEDULE VI TO CREDIT AGREEMENT ---------------- Existing Indebtedness --------------------- 1. Silgan Containers Corporation ----------------------------- Trade payables and accruals $46,000,000 2. Silgan Plastics Corporation --------------------------- Trade payables and accruals $28,500,000 3. Express Plastic Container Limited --------------------------------- Trade payables and accruals $ 1,500,000 4. California-Washington Can Corporation ------------------------------------- Trade payables and accruals $ 1,300,000 SCHEDULE VII TO CREDIT AGREEMENT ----------------- MIRROR INTERCOMPANY NOTES ------------------------- Containers Senior Subordinated Debt $ 92,425,000 Intercompany Note Plastics Senior Subordinated Debt 42,575,000 Intercompany Note Containers Senior Secured Debt Intercompany 17,225,000 Note Plastics Senior Secured Debt Intercompany Note 32,775,000 Containers Acquisition Intercompany Note A 60,000,000 Containers Acquisition Intercompany Note B 15,000,000 Plastics Acquisition Intercompany Note B 61,000,000 Express Acquisition Intercompany Note C $ 6,598,256 Canadian Holdco Acquisition Intercompany Note C $ 6,598,256 Containers Short Term B Loan Intercompany Note 19,000,000 SCHEDULE VIII TO CREDIT AGREEMENT ----------------- CERTAIN CAPITALIZED LEASES -------------------------- Silgan Containers Corporation None Silgan Plastics Corporation None Express Plastic Containers Limited None California-Washington Can Corporation None SCHEDULE IX TO CREDIT AGREEMENT ---------------- EXISTING INVESTMENTS -------------------- None SCHEDULE X TO CREDIT AGREEMENT ---------------- BANK ADDRESSES -------------- Bankers Trust Company One Bankers Trust Plaza New York, New York 10006 Attention: Daniel Toscano Telephone No.: (212) 250-9568 Telecopier No.: (212) 250-7218 Bank of America National Trust and Savings Association 335 Madison Avenue New York, New York 10017 Attention: Elizabeth Borow Telephone No.: (212) 503-8236 Telecopier No.: (212) 503-7771 EX-10 11 EXHIBIT 10 SILGAN HOLDINGS INC. 8-K Exhibit 10 AMENDED AND RESTATED HOLDINGS GUARANTY AMENDED AND RESTATED GUARANTY (as amended, modified or supplemented from time to time, this "Guaranty"), dated as of June 30, 1989, and amended and restated as of June 18, 1992, and further amended and restated as of December 21, 1993, made by SILGAN HOLDINGS INC., a Delaware corporation (the "Guarantor"). Except as otherwise defined herein, terms used herein and defined in the Credit Agreement (as hereinafter defined) shall be used herein as so defined. W I T N E S S E T H : WHEREAS, Silgan Corporation ("Silgan"), Silgan Containers Corporation ("Containers"), Silgan Plastics Corporation ("Plastics" and, together with Containers and Silgan, each, a "Borrower" and, collectively, the "Borrowers"), the lenders from time to time party thereto (the "Banks"), Bank of America National Trust and Savings Association, as Co-Agent (the "Co- Agent"), and Bankers Trust Company, as Agent (the "Agent", and together with the Banks and the Co-Agent, the "Bank Creditors") are party to the Credit Agreement, dated as of December 21, 1993 (as the same may be amended, modified or supplemented from time to time, the "Credit Agreement"), providing for the making of Loans and the issuing of Letters of Credit as provided therein; WHEREAS, one or more of the Borrowers are, or may from time to time in the future be, party to one or more interest rate protection agreements (including, without limitation, interest rate swaps, caps, floors, collars, and similar agreements) (collectively, "Interest Rate Protection Agreements"), with any Bank or an affiliate of a Bank (each such Bank or affiliate, even if the respective Bank subsequently ceases to be a Bank under the Credit Agreement for any reason, together with such Bank's or affiliate's successors and assigns, are herein called the "Interest Rate Protection Creditors" and, together with the Bank Creditors, the "Secured Creditors"); WHEREAS, the Guarantor has heretofore entered into a Guaranty, dated as of June 30, 1989 and amended and restated as of June 18, 1992 (as amended, modified or supplemented to the date hereof, the "Original Holdings Guaranty"); WHEREAS, each of the Borrowers is a Wholly-Owned Subsidiary of the Guarantor; WHEREAS, it is a condition to the above-mentioned extensions of credit to the Borrowers that the Guarantor shall have executed and delivered this Guaranty; and WHEREAS, the Guarantor will obtain benefits as a result of the entering into of the Credit Agreement, the consummation of the Transaction and the extensions of credit to the Borrowers under the Credit Agreement and, accordingly, the Guarantor desires to enter into this Guaranty in order to satisfy the conditions described in the preceding paragraph and to amend and restate the Original Holdings Guaranty in the form of this Guaranty; NOW, THEREFORE, in consideration of the foregoing and other benefits accruing to the Guarantor, the receipt and sufficiency of which are hereby acknowledged, the Guarantor hereby makes the following representations and warranties to the Secured Creditors and hereby covenants and agrees with each Secured Creditor as follows: 1. The Guarantor hereby irrevocably and unconditionally guarantees (x) to each Bank Creditor the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of the principal of and interest on each Note issued to such Bank Creditor under the Credit Agreement, together with all other liabilities and obligations of the Borrowers to the Bank Creditors (including, without limitation, to repay all Loans, Unpaid Drawings, Fees, indemnities and interest) incurred or to be incurred under, arising out of or in connection with, the Credit Agreement or any other Credit Document and the due performance of and compliance with the terms, conditions and agreements contained in the Credit Documents by each Borrower (all such Notes, liabilities and other obligations are herein collectively called the "Credit Agreement Obligations") and (y) to each Interest Rate Protection Creditor the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations of any Borrower owing under any Interest Rate Protection Agreement, whether now in existence or hereafter arising, and the due performance and compliance with all the terms, conditions and agreements contained therein (all such obligations and liabilities being herein collectively called the "Interest Rate Protection Obligations"; and together with the Credit Agreement Obligations are herein collectively called the "Guaranteed Obligations"). The Guarantor understands, agrees and confirms that each Secured Creditor may enforce this Guaranty up to the full amount of the Guaranteed Obligations against it without proceeding against the Borrowers, against any security for the Guaranteed Obligations, against any other guarantor or under any other guaranty covering the Guaranteed Obligations. This Guaranty shall constitute a guaranty of payment and not of collection. 2. The Guarantor hereby waives notice of acceptance of this Guaranty and notice of any liability to which it may apply, and waives presentment, demand of payment, protest, notice of dishonor or nonpayment of any such liabilities, suit or taking of other action by the Secured Creditors against, and any other notice to, any party liable thereon (including the Guarantor or any other guarantor). 3. Any Secured Creditor may at any time and from time to time without the consent of, or notice to, the Guarantor, without incurring responsibility to the Guarantor, without impairing or releasing the obligations of the 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 or alter, any of the Guaranteed Obligations, 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) sell, exchange, release, 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 of the Borrowers or others 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 to creditors of such Borrower other than the Secured Creditors and the Guarantor; (e) apply any sums by whomsoever paid or howsoever realized to any liability or liabilities of any Borrower to the Secured Creditors regardless of what liability or liabilities of such Borrower remain unpaid; (f) consent to or waive any breach of, or any act, omission or default under, any Credit Documents, or otherwise amend, modify or supplement any Credit Documents or any of such other instruments or agreements; and/or (g) act or fail to act in any manner referred to in this Guaranty which may deprive the Guarantor of its right to subrogation against any Borrower to recover full indemnity for any payments made pursuant to this Guaranty. 4. No invalidity, irregularity or unenforceability of all or part of the Guaranteed Obligations or of any security therefor shall affect, impair or be a defense to this Guaranty, and this Guaranty is a primary obligation of the Guarantor. 5. If and to the extent that the Guarantor makes any payment to a Secured Creditor or to any other Person pursuant to or in respect of this Guaranty, any claim which the Guarantor may have against any Borrower by reason thereof shall be subject and subordinate to the prior payment in full of the Guaranteed Obligations of each Secured Creditor. 6. As used in this Guaranty, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined): "Common Stock Issuance" shall mean the issuance by Holdings on or prior to the Initial Borrowing Date of 250,000 shares of its Class B Common Stock, $.01 par value, to Mellon Bank, N.A., as trustee for First Plaza Group Trust, a group trust established under the laws of the State of New York ("First Plaza"). "Dividend" shall mean, with respect to any Person, the payment of any dividends to, or return any capital to, its stockholders or the authorization of or making of any other distribution, payment or delivery of property or cash to its stockholders as such, or redemption, retirement, purchase or other acquisition, directly or indirectly, for a consideration, of any shares of any class of its capital stock now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock), or the setting aside of any funds for any of the foregoing purposes. "Holdings Employee Stock Options" shall have the meaning provided in Section 7(h) of this Guaranty. "Holdings Stock Option Agreement" shall mean those various stock option agreements pursuant to which the Guarantor has issued, or may from time to time issue, Holdings Employee Stock Options. "Shareholders Agreement" shall mean the Amended and Restated Organization Agreement, dated as of December 21, 1993, among Mr. R. Philip Silver ("Silver"), Mr. D. Greg Horrigan ("Horrigan"), the Guarantor, The Morgan Stanley Leveraged Equity Fund, II, L.P. ("MS Equity"), First Plaza and Bankers Trust New York Corporation ("BTNY"), as amended, modified or supplemented to the date hereof. 7. In order to induce the Bank Creditors to enter into the Credit Agreement and to make the Loans and issue Letters of Credit pursuant to the Credit Agreement, the Guarantor makes the following representations, warranties and agreements: (a) Corporate Status. Each of the Guarantor and its Subsidiaries (i) is a duly organized and validly existing corporation in good standing under the laws of the jurisdiction of its incorporation, (ii) has the corporate power and authority to own its property and assets and to transact the business in which it is engaged, and (iii) is duly qualified as a foreign corporation and in good standing in each jurisdiction where the ownership, leasing or operation of its property or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the business, operations, property, assets or condition (financial or otherwise) of the Guarantor or of the Guarantor and its Subsidiaries taken as a whole. (b) Corporate Power and Authority. The Guarantor has the corporate power and authority to execute, deliver and carry out the terms and provisions of each of the Credit Documents to which it is party and has taken all necessary corporate action to authorize the execution, delivery and performance by it of each of the Credit Documents to which it is a party. The Guarantor has duly executed and delivered each of the Credit Documents to which it is party, and each of the Credit Documents to which it is a party constitutes its legal, valid and binding obligation enforceable in accordance with its terms except to the extent that enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally and by equity principles (regardless of whether enforcement is sought in equity or at law). (c) No Violation. Neither the execution, delivery and performance by each of the Guarantor and its Subsidiaries of any Credit Document to which it is a party nor compliance by it with the terms and provisions thereof (i) will contravene any 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 the Guarantor or any of its Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, credit agreement, loan agreement or any other agreement, contract or instrument to which the 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 is subject, or (iii) will violate any provision of the Certificate of Incorporation or By-Laws of the Guarantor or any of its Subsidiaries. (d) Litigation. There are no actions, suits or proceedings pending or, to the best knowledge of the Guarantor, threatened with respect to the Guarantor or any of its Subsidiaries or with respect to any Document or the Transaction that are reasonably likely to have a material adverse effect on (i) the business, operations, property, assets or condition (financial or otherwise) of the Guarantor and its Subsidiaries taken as a whole, or (ii) the ability of the Guarantor or any of its Subsidiaries to perform its obligations under the Documents to which it is party. (e) Liabilities; Assets. (i) Other than pursuant to the Documents to which the Guarantor is a party and advances made to the Guarantor pursuant to Section 8.06(xvi), (xviii) and (xxi) of the Credit Agreement and certain liabilities to certain former stockholders of Silgan in connection with the Reorganization there were as of the Effective Date no liabilities or obligations with respect to the Guarantor of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individ- ually or in the aggregate, would be material to the Guarantor and its Subsidiaries taken as a whole. Except as described in the previous sentence, as of the Effective Date, the Guarantor does not know of any basis for the assertion against the Guarantor of any liability or obligation of any nature whatsoever which, either individually or in the aggregate, is reasonably likely to be material to the Guarantor and its Subsidiaries taken as a whole. (ii) As of the Effective Date, the Guarantor has no significant assets other than its ownership interest in Silgan. (f) Governmental Approvals. No order, consent, approval, license, authorization, or validation of, or filing, recording or registration with (except as have been obtained or 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 by the Guarantor of any Document to which it is party or (ii) the legality, validity, binding effect or enforceability of any Document to which the Guarantor is party. (g) Holdings Pledge Agreement. The Holdings Pledge Agreement is in full force and effect on and after the Effective Date and is one of the Documents subject to the representations and warranties made in preceding clause (b) of this Section 7. The security interests created in favor of the Collateral Agent under the Holdings Pledge Agreement constitute first priority perfected security interests in the respective Pledge Agreement Collateral in favor of the Collateral Agent and subject to no Lien of any other Person. No consents, filings or recordings are required in order to perfect (or maintain the perfection or priority of) the security interests in the Pledged Securities purported to be created by the Holdings Pledge Agreement. (h) Capitalization. The authorized capital stock of the Guarantor consists of 3,167,500 shares of capital stock, consisting of (i) 500,000 shares of Class A Common Stock, $0.01 par value, of which 417,500 shares are issued and outstanding, (ii) 667,500 shares of Class B Common Stock, $0.01 par value, all of which shares are issued and outstanding, (iii) 1,000,000 shares of Class C Common Stock, $0.01 par value, of which 50,000 shares are issued and outstanding, and (iv) 1,000,000 shares of preferred stock, none of which are issued and outstanding. All such outstanding shares of capital stock of the Guarantor have been duly and validly issued, are fully paid and non-assessable. The Guarantor has issued and there are currently outstanding options to purchase up to 15,000 shares of Class C Common Stock of the Guarantor pursuant to the Guarantor's Amended and Restated Stock Option Plan, which options are held by certain officers of the Company (the "Guarantor Options"). The Guarantor does not have outstanding any securities convertible into or exchangeable for its capital stock or outstanding any rights to subscribe for or to purchase, or any options for the purchase of, or any agreements providing for the issuance (contingent or otherwise) of, or any calls, commitments or claims of any character relating to, its capital stock, except (i) the right of the Guarantor to call, and the obligation of the Guarantor to repurchase, the Class A Common Stock held by Silver and Horrigan (or certain related Persons) as set forth in Sections 5.5 and 5.6 of the Shareholders Agreement, provided that any payment obligation with respect thereto shall be evidenced by a promissory note of the Guarantor issued in the form of Exhibit A hereto (a "Shareholder Subordinated Note"), (ii) the right of the Guarantor to call, and the obligation of the Guarantor to repurchase, certain options (the "Holdings Employee Stock Options") or common stock held by certain other employees of the Guarantor, provided that any payment obligation with respect thereto shall be evidenced by a Shareholder Subordinated Note which may not provide for payment of interest in cash before the earlier of (a) March 31, 1997 and (b) any date after the termination of the Guaranteed Obligations, (iii) the rights of first refusal granted under the Shareholders Agreement and the Stockholders Agreement, dated as of December 21, 1993, among Silver, Horrigan, MS Equity, BTNY, First Plaza and the Guarantor (the "Stockholders Agreement"), (iv) the right of the Guarantor to call the Class B Common Stock held by Mellon Bank, N.A., as trustee for First Plaza pursuant to Article VI of the Shareholders Agreement, (v) payments relating to the Holdings Employee Stock Options in respect of 15,000 shares of common stock of the Guarantor to be issued to certain employees and/or officers of the Guarantor pursuant to the Holdings Stock Option Agreement, provided that such payments shall be subject to the limits set forth in Section 8(b)(iii) of this Guaranty and in Section 8.03(i) and (vii) of the Credit Agreement, (vi) pursuant to the Containers Amended and Restated 1989 Stock Option Plan (the "Containers Option Plan"), under which options are held by certain officers of Containers (the "Containerrs Options"), and the Plastics Amended and Restated 1989 Stock Option Plan (the "Plastics Option Plan"), under which options are held by certain officers of Plastics (the "Plastics Options"), in the event of a "public offering" of the common stock of the Guarantor, or a "change of control" of the Guarantor, Containers Options and Plastics Options shall, pursuant to the terms of the Containers Option Plan and the Plastics Option Plan, respectively, be converted into options to purchase common stock of the Guarantor, and shares previously issued upon the exercise of Containers Options or Plastics Options shall, pursuant to the terms of the Containers Option Plan or the Plastics Option Plan, respectively, be converted into shares of common stock of the Guarantor, and (vii) the rights and obligations of any Regulated Stockholder of the Guarantor (as defined in the Restated Certificate of Incorporation of the Guarantor) to convert shares of one class of common stock of the Guarantor into shares of another class of common stock of the Guarantor pursuant to the terms of Paragraph D of Article SEVENTH of the Restated Certificate of Incorporation of the Guarantor. (i) Compliance with Statutes, etc. Each of the Guarantor and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property (including applicable statutes, regulations, orders and restrictions relating to environmental standards and controls, equal opportunity employment and employee safety), except for such non-compliances which, in the aggregate for the Guarantor and its Subsidiaries, would not have a material adverse effect on the business, property, assets or condition (financial or otherwise) of the Guarantor and its Subsidiaries taken as a whole. (j) Tax Returns and Payments. Each of the Guarantor and its Subsidiaries has filed all federal tax returns and material state tax returns required to be filed by it and has paid all income taxes payable by it which have become due pursuant to such tax returns and all other taxes and assessments payable by it which have become due, other than those not yet delinquent and except for those contested in good faith. The Guarantor and each of its Subsidiaries has paid, or has provided adequate reserves (in the good faith judgment of the management of the Guarantor) for the payment of, all federal and state income taxes applicable for all prior fiscal years and for the current fiscal year to the date hereof. (k) Investment Company Act. The Guarantor is not an "investment company" within the meaning of the Investment Company Act of 1940, as amended. (l) True and Complete Disclosure. To the best of the Guarantor's knowledge after due inquiry, each Document to which the Guarantor is party and all other written information furnished to the Secured Creditors by or on behalf of the Guarantor in connection herewith and therewith did not taken as a whole contain any untrue statement of material fact or omit to state a material fact (taken as a whole) necessary in order to make the information contained herein and therein not misleading. (m) Holdings. The Guarantor owns all of the outstanding and issued capital stock of Silgan. The Guarantor has no direct Wholly- Owned Subsidiaries other than Silgan. (n) Representations and Warranties in Other Agreements. All representations and warranties made by any Credit Party in the Documents to which it is a party are true and correct in all material respects as of the time as of which such representations and warranties were made or deemed made. (o) Absence of Default and Events of Default. No event has occurred and no condition exists, or by reason of any of the transactions contemplated by the Documents or otherwise will occur or exist, which would constitute a Default or an Event of Default under the Credit Agreement. 8. The Guarantor covenants and agrees that on and after the Effective Date and for so long as the Credit Agreement is in effect and until the Total Commitments and all Letters of Credit have terminated and the Loans, Notes and Unpaid Drawings, together with interest, Fees and all other Obligations incurred hereunder and thereunder are paid in full, it will: (a) Liens. Not create, assume or suffer to exist any Lien upon any of its properties or assets, whether now owned or hereafter acquired, except (i) Liens in favor of the Collateral Agent pursuant to the Holdings Pledge Agreement, (ii) inchoate tax Liens for taxes not yet due and payable and (iii) Liens for taxes being contested in good faith and by appropriate proceedings for which adequate reserves (in the good faith judgment of the management of the Guarantor) have been established. (b) Distributions. Not declare or make any Dividend to its shareholders, except that (i) the Guarantor may, upon the death, disability or termination of employment of Silver and/or Horrigan and pursuant to the terms and conditions set forth in Sections 5.5 and 5.6 of the Shareholders Agreement, purchase the Class A Common Stock held by such persons, their estates or certain other related Persons, provided that the total consideration paid to such persons or their estate for such purchase shall be evidenced by a Shareholder Subordinated Note, (ii) the Guarantor may, upon death, disability or termination of certain other employees and/or officers of the Guarantor, purchase certain options or common stock of such employees, provided that the total consideration paid for such purchase shall be evidenced by a Shareholder Subordinated Note containing subordination provisions contained in Annex A thereto and upon which no interest shall be payable in cash before the earlier of (a) March 31, 1997 and (b) the date of the termination of the Guaranteed Obligations and (iii) the Guarantor may (x) repurchase or redeem its Holdings Employee Stock Options and (to the extent such Holdings Employee Stock Options have been validly exercised) the common stock of the Guarantor issued upon the exercise thereof upon the termination of employment of the holder thereof, all as set forth in the Holdings Stock Option Agreement and (y) make required payments with respect to the stock appreciation rights granted in connection with its Holdings Employee Stock Options, provided that no payment of the types described in this clause (iii) may be made if (1) at the time of such payment a Default or an Event of Default then exists or would result therefrom and (2) the amount of such payment, when aggregated with the amount of all other such payments permitted pursuant to Section 8.03(i) and (vii) of the Credit Agreement made after the Effective Date and including such date by Silgan, Containers, Plastics and the Guarantor on an aggregate basis would exceed an amount equal to 5% of Consolidated Net Worth at the end of the last fiscal quarter for which financial statements are required to have been delivered pursuant to Section 7.01(b) of the Credit Agreement. (c) Indebtedness. Not create, incur, assume or suffer to exist any Indebtedness except (i) Indebtedness incurred under this Guaranty, (ii) Indebtedness represented by the Senior Discount Debentures in an aggregate face amount not to exceed $275,000,000 (as reduced by any repayments of principal thereof), (iii) Indebtedness represented by advances made to the Guarantor pursuant to Section 8.06(xvi), (xviii) and (xxi) of the Credit Agreement and (iv) upon the purchase of the common stock and/or options as permitted by Section 8(b) hereof, Indebtedness of the Guarantor represented by a Shareholder Subordinated Note issued by the Guarantor as consideration therefor. (d) Advances, Investments and Loans. Not make or permit to remain outstanding any loans or advances by it to any other Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any other Person, except that (i) the Guarantor may own the capital stock of Silgan and (ii) the Guarantor may make capital contributions to Silgan. If at any time after the Initial Borrowing Date the Guarantor holds cash or Cash Equivalents which exceed $250,000 in the aggregate for any period of five consecutive Business Days, such excess shall be contributed to Silgan on the sixth such Business Day. (e) Merger and Sale of Assets; Issuance of Stock. Not (i) wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its property or assets, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets of any Person and (ii) sell, assign, lease, transfer or otherwise dispose of any shares of capital stock of Silgan. (f) Business. Not engage in any business, enter into any material agreements or incur, assume or suffer to exist any significant liabilities, in either case on and after the Effective Date other than the (i) ownership of the capital stock of Silgan, (ii) the issuance of Shareholder Subordinated Notes referred to in Section 8(b)(i) and (ii) hereof, (iii) the transactions in connection with the investments, advances and loans permitted under Section 8(d) hereof, (iv) in respect of the transactions, agreement and liabilities permitted by the terms of this Guaranty and (v) management and administration of Holdings and its Subsidiaries substantially as conducted on the date hereof. (g) Preservation of Existence, etc. Preserve and maintain its corporate existence, rights, franchises and privileges in the jurisdiction of its organization. (h) Compliance with Statutes, etc. Comply, and cause each of its Subsidiaries to comply, with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property (including applicable statutes, regulations, orders and restrictions relating to environmental standards and controls), except such noncompliances as would not, in the aggregate, have a material adverse effect on the business, operations, property, assets or condition (financial or otherwise) of the Guarantor or any of its Subsidiaries or the Guarantor and its Subsidiaries taken as a whole. (i) Information Covenants. Furnish to each Bank copies of any financial information provided, or required to be provided, to the holders of the Senior Discount Debentures pursuant to the terms thereof and of the respective indentures governing the terms of the Senior Discount Debentures, and also the following: (A) Notice of Default or Litigation. Promptly, and in any event within three Business Days after an officer of the Guarantor obtains knowledge thereof, notice of (i) the occurrence of any event which constitutes a Default or Event of Default, (ii) any litigation or governmental proceeding (x) against the Guarantor or any of its Subsidiaries which is reasonably likely to materially and adversely affect the business, operations, property, assets or condition (financial or otherwise) of the Guarantor or any of its Subsidiaries or (y) with respect to any Document, and (iii) any other event (including any such event relating to environmental matters) which is likely to materially and adversely affect the business, operations, property, assets or condition (financial or otherwise) of the Guarantor or any of its Subsidiaries. (B) Other Reports and Filings. Promptly, copies of all financial information, proxy materials and other information and reports, if any, (i) which the Guarantor shall file with the SEC, or (ii) which the Guarantor shall deliver to the holders of, or to the trustee with respect to, the Senior Discount Debentures or its capital stock. (C) Other Information. From time to time, such other information or documents (financial or otherwise) as the Agent, the Co-Agent or the Required Banks may reasonably request. (j) Inspection of Records. Permit any Person designated by the Agent, the Co-Agent or any Bank to examine the books and financial records of the Guarantor and make copies thereof or extracts therefrom and to discuss its affairs, finances and accounts with the principal officers of the Guarantor and its independent public accountants, all at such reasonable times and as often as the Agent, the Co-Agent or any Bank may reasonably request. (k) Properties and Accounts. Keep true books of records and accounts in which full and correct entries will be made of all its business transactions, and will reflect in its financial statements adequate accruals and appropriations to reserves, all in accordance with generally accepted accounting principles. (l) Taxes. Pay when due, and cause each of its Subsidiaries to pay when due, all taxes which, if not paid when due, would materially and adversely affect the business, operations, property, assets or condition (financial or otherwise) of the Guarantor or any of its Subsidiaries or of the Guarantor and its Subsidiaries taken as a whole, except as contested in good faith and by appropriate proceedings if adequate reserves (in the good faith judgment of the management of the Guarantor) have been established with respect thereto. (m) Holdings. Not at any time own less than 100% of the outstanding capital stock of Silgan. (n) Transactions with Affiliates. Not enter into any transaction or series of transactions, whether or not in the ordinary course of business, with any Affiliate other than on terms and conditions substantially as favorable to the Guarantor as would be obtainable by the Guarantor at the time in a comparable arm's-length transaction with a Person other than an Affiliate, provided that (i) the Guarantor may make payments as are required pursuant to and perform its obligations under the Management Services Agreement to which it is a party, provided that the Quarterly Management Fee (as defined in such Management Services Agreement) shall accrue but not be paid by the Guarantor upon the occurrence of certain events, and to the extent, provided in such Management Services Agreement, (ii) Silgan may make distributions, advances and loans to the Guarantor to the extent permitted by Sections 8.03, 8.05 and 8.06 of the Credit Agreement, (iii) each of the Guarantor, Silgan, Containers, Plastics and DM Can may execute, deliver and perform the Tax Sharing Agreement, (iv) each of the Guarantor and its Subsidiaries may execute, deliver and perform the Documents to which it is a party, (v) the Guarantor may execute, deliver and perform the Shareholders Agreement and Stockholders Agreement and (vi) the Guarantor may perform certain administrative functions for Silgan and its Subsidiaries and the Guarantor may receive the amounts permitted by Section 8.07(iv) of the Credit Agreement. (o) Limitation on Modifications of Documents; Voluntary Prepayments. Not (i) make any voluntary or optional payment or prepayment on or redemption or acquisition for value of (including, without limitation, by depositing with the trustee with respect thereto any money or securities before due for the purpose of paying when due), or exchange, the Senior Discount Debentures or any Shareholder Subordinated Notes permitted to be issued by the Guarantor pursuant to Section 8(b)(i) and (ii) of this Guaranty, or make any purchase, redemption or acquisition for value (or any offer to purchase, redeem or acquire) of any Senior Discount Debentures, whether as a result of an Other Indebtedness Change of Control, the consummation of asset sales or otherwise or (ii) amend or modify, or permit the amendment or modification of, any provision of the Documents (including the Senior Discount Debenture Documents, but excluding any amendment to any of the Documents on the Initial Borrowing Date required as a result of the Transaction), any Shareholder Subordinated Notes permitted to be issued by the Guarantor pursuant to Section 8(b)(i) and (ii) of this Guaranty or of any agreement (including, without limitation, any purchase agreement, indenture or loan agreement) relating to any of the foregoing or (iii) amend or modify, or permit the amendment or modification of, any provision of the Tax Sharing Agreement or any Management Services Agreement or (iv) amend, modify or change the Shareholders Agreement, Stockholders Agreement, the Holdings Stock Option Agreement, the Holdings Employee Stock Options (except, in the case of the Holdings Stock Option Agreement and the Holdings Employee Stock Options, immaterial changes which could not adversely affect the Secured Creditors), its Certificate of Incorporation (including, without limitation, by the filing or modification of any certificate of designa- tion) or By-Laws, or any other agreement entered into by the Guarantor with respect to its capital stock, or enter into any new agreement with respect to its capital stock (except that the issuance of new Holdings Employee Stock Options by Holdings in substantially the form furnished to the Banks on or prior to the Effective Date shall, subject to Section 9(g) hereof, be permitted). (p) ERISA. Comply with ERISA with respect to each Plan and will not incur any material obligation to PBGC, any material withdrawal liability to any Multi-employer Plan or any material accumulated funding deficiency within the meaning of ERISA, in each of the foregoing cases so as to have a materially adverse effect on the assets, business, financial condition, operations or prospects of the Guarantor or so as to impair the ability of the Guarantor to perform its obligations hereunder. (q) Limitation on Issuances of Capital Stock by Subsidiaries. Not permit any of its Subsidiaries to issue any capital stock (including by way of sales of treasury stock) or any options or warrants to purchase, or securities convertible into, capital stock, except for (i) transfers and replacements of then outstanding shares of capital stock, (ii) stock splits, stock dividends and similar issuances which do not decrease the direct or indirect percentage ownership of the Guarantor in any class of the capital stock of such Subsidiary, (iii) subject to Section 7.09 of the Credit Agreement, the Employee Stock Options (and any common stock issuable upon exercise thereof) and (iv) subject to Section 8.15 of the Credit Agreement, issuances of common stock by Containers and Plastics to Silgan. (r) Compliance with Credit Documents. Cause each other Credit Party to comply with each term, covenant and agreement set forth in the Credit Documents, and, if the Guarantor receives any amounts in contravention of such terms, covenants and agreements, the Guarantor shall immediately pay such amounts to the Collateral Agent to be applied to the Guaranteed Obligations if then due and payable, and otherwise, to be held as collateral for the Guaranteed Obligations. (s) Contributions. Contribute to Silgan, upon receipt thereof, an amount equal to 50% of the Net Equity Proceeds of any sale of equity (except sales of equity described in Section 5.01(f) of the Credit Agreement) by the Guarantor and cause Silgan to apply such proceeds to a mandatory prepayment of the Term Loans as required by Section 4.02(h) of the Credit Agreement. 9. The occurrence of any of the following specified events shall constitute an event of default (an "Event of Default") hereunder: (a) Payment. Any payment default shall exist with respect to any of the Guaranteed Obligations which continues unremedied for two or more Business Days; or (b) Representations, etc. (i) Any representation, warranty or statement made by the Guarantor herein or any other Credit Party in any other Credit Document or in any certificate delivered pursuant hereto or thereto shall prove to be untrue or inaccurate in any material respect on the date as of which made or deemed made. (ii) Any representation, warranty or statement made in the Shareholders Agreement made by any party thereto shall prove to be untrue or misleading, and all such untrue and misleading representations, warranties and statements shall evidence a material adverse difference in the business, operations, property, assets, condition (financial or otherwise) or prospects of the Guarantor or Silgan. (c) Covenants. The Guarantor shall (i) default in the due performance or observance by it of any term, covenant or agreement (other than those referred to in Section 9(a) and (b) above and clause (ii) of this Section 9(c)) contained in this Guaranty and such default shall continue unremedied for a period of 30 days after written notice to the Guarantor by the Agent, the Co-Agent or any Bank or (ii) default in the due performance or observance by it of any term, covenant or agreement contained in Sections 8(a), (b), (c), (d), (e), (f), (g), (i)(A)(i), (m), (n), (o), (p), (q) and (s); or (d) Default Under Other Agreements; etc. (i) The Guarantor or any of its Subsidiaries shall (A) default in any payment of any Indebtedness (other than the Intercompany Notes) beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created, (B) default in the observance or performance of any agreement or condition relating to any Indebtedness (other than the Intercompany Notes) or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause (determined without regard to whether any notice is required but giving effect to any grace period), any such Indebtedness to become due prior to its stated maturity or (C) have any Indebtedness (other than the Intercompany Notes) of the Guarantor or any of its Subsidiaries declared to be due and payable, or required to be prepaid other than by a regularly scheduled required prepayment, prior to the stated maturity thereof (except that the Senior Notes may receive their Share of the Net Sale Proceeds and Net Equity Proceeds as provided in Section 4.02(f) of the Credit Agreement); provided that it shall not be an Event of Default under this subsection (d) unless the aggregate Indebtedness referred to in subclauses (A), (B) and (C) above exceeds $100,000; or (ii) any Credit Document shall cease to be in full force and effect, or any Secu- rity Document shall cease to give the Collateral Agent the Liens, rights, powers and privileges purported to be created thereby (including, without limitation, a first priority perfected security interest in, and Lien on, all of the respective Collateral), in favor of the Collateral Agent for the benefits of the Secured Creditors, superior to and prior to the rights of all third Persons (except that the security interests created by the Security Agreement may be junior to the Permitted Liens, the security interests created by the Mortgages may be subject to the respective Permitted Encumbrances and the security interests created by the Additional Security Documents may be subject to Liens permitted by Section 8.01 of the Credit Agreement), or any party to any Security Document shall default in the due performance or observance of any term, covenant or agreement on its part to be performed pursuant to such Security Document; or (e) Bankruptcy, etc. The Guarantor shall commence a voluntary case concerning itself under the Bankruptcy Code; or an involuntary case is commenced against the Guarantor or any of its Subsidiaries, and the petition is not controverted within 10 days, or is not dismissed within 60 days, after commencement of the case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of the Guarantor or any of its Subsidiaries, or the Guarantor or any of its Subsidiaries commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or simi- lar law of any jurisdiction whether now or hereafter in effect relating to the Guarantor or any of its Subsidiaries, or there is commenced against the Guarantor or any of its Subsidiaries any such proceeding which remains undismissed for a period of 60 days or the Guarantor or any of its Subsidiaries is adjudicated insolvent or bankrupt; or any order of relief or other order approving any such case or proceeding is entered; or the Guarantor or any of its Subsidiaries suffers any appointment of any custodian or the like for it or any substantial part of its property to continue undischarged or unstayed for a period of 60 days; or the Guarantor or any of its Subsidiaries makes a general assignment for the benefit of creditors; or any corporate action is taken by the Guarantor or any of its Subsidiaries for the purpose of effecting any of the foregoing; or (f) Judgments. One or more judgments or decrees shall be entered against the Guarantor or any of its Subsidiaries involving, when added to any other judgments or decrees of the Guarantor and its Subsidiaries, a liability (not paid or fully covered by insurance) of $1,000,000 or more, and all such judgments or decrees shall not have been vacated, discharged or stayed or bonded pending appeal within 60 days from the entry thereof; or (g) Change in Control. The Group and/or MS Equity (each as defined in the Shareholders Agreement) and/or any person (other than First Plaza or any transferee thereof (other than any other shareholder of the Guarantor party to the Shareholders Agreement on the Effective Date)) exercising rights of first refusal under the Shareholders Agreement shall fail to own a majority of the Class A Common Stock of the Guarantor, or the Group and/or MS Equity and/or any person (other than First Plaza or any transferee thereof (other than any other shareholder of the Guarantor party to the Shareholders Agreement on the Effective Date)) exercising rights of first refusal under the Shareholders Agreement shall fail to own a majority of the Class B Common Stock of the Guarantor. 10. (a) The Guarantor hereby waives all rights 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) to the claims of the Secured Creditors against the Borrowers or any other guarantor of the obligations (collectively, the "Other Parties") and all contractual, statutory or common law rights of reimbursement, contribution or indemnity from any Other Party which it may at any time otherwise have as a result of this Guaranty. The Guarantor hereby further waives any right to enforce any other remedy which the Secured Creditors now have or may hereafter have against any Other Party, any endorser or any other guarantor of all or any part of the indebtedness of the Borrowers and any benefit of, and any right to participate in, any security or collateral given to or for the benefit of the Secured Creditors to secure payment of the indebtedness of the Borrowers. The Guarantor also waives all claims (as such term is defined in the Bankruptcy Code) it may at any time otherwise have against any Other Party arising from any transaction whatsoever, including, without limitation, its right to assert or enforce any such claims. (b) Notwithstanding the provisions of the preceding clause (a), the Guarantor shall have and be entitled to (i) all rights of subrogation otherwise provided by law in respect of any payment it may make or be obligated to make under this Guaranty and (ii) all claims (as defined in the Bankruptcy Code) it would have against any Other Party in the absence of the preceding clause (a), and to assert and enforce same, in each case on and after, but at no time prior to, the date (the "Subrogation Trigger Date") which is one year and five days after the date on which all indebtedness of the Borrowers owing to the Secured Creditors has been paid in full if and only if (x) no Default or Event of Default of the type described in Section 9.05 of the Credit Agreement with respect to the respective Other Party has existed at any time on and after the date of this Guaranty to and including the Subrogation Trigger Date and (y) the existence of the Guarantor's rights under this clause (b) would not make the Guarantor a creditor (as defined in the Bankruptcy Code) of the respective Other Party in any insolvency, bankruptcy, reorganization or similar proceeding commenced on or prior to the Subrogation Trigger Date. (c) The Guarantor understands, is aware and hereby acknowledges that to the extent the Guaranteed Obligations are secured by real property located in the State of California, the Guarantor shall be liable for the full amount of its liability hereunder notwithstanding foreclosure on such real property by trustee sale or any other reason impairing the Guarantor's or any Secured Creditors' right to proceed against any Borrower. The Guarantor hereby waives, to the fullest extent permitted by law, all rights and benefits under Section 2809 of the California Civil Code purporting to reduce a guarantor's obligation in proportion to the principal obligation. The Guarantor hereby waives all rights and benefits under Section 580a of the California Code of Civil Procedure purporting to limit the amount of any deficiency judgment which might be recoverable following the occurrence of a trustee's sale under a deed of trust and all rights and benefits under Section 580b of the California Code of Civil Procedure stating that no deficiency may be recovered on a real property purchase money obligation. The Guarantor further understands, is aware and hereby acknowledges that if the Secured Creditors elect to nonjudicially foreclose on any real property security located in the State of California any right of subrogation of the Guarantor against the Secured Creditors may be impaired or extinguished and that as a result of such impairment or extinguishment of subrogation rights, the Guarantor will have a defense to a deficiency judgment arising out of the operation of (i) Section 580d of the California Code of Civil Procedure which states that no deficiency may be recovered on a note secured by a deed of trust on real property in case such real property is sold under the power of sale contained in such deed of trust, and (ii) related principles of estoppel. To the fullest extent permitted by law, the Guarantor waives all rights and benefits and any defense arising out of the operation of Section 580d of the California Code of Civil Procedure and related principles of estoppel, even though such election operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of the Guarantor against any Borrower or any other party or any security. In addition, the Guarantor hereby waives, to the fullest extent permitted by applicable laws, without limiting the generality of the foregoing or any other provision hereof, all rights and benefits which might otherwise be available to the Guarantor under Section 726 of the California Code of Civil Procedure and all rights and benefits which might otherwise be available to the Guarantor under California Civil Code Sections 2809, 2810, 2815, 2819, 2821, 2839, 2845, 2848, 2849, 2850, 2899 and 3433. 11. 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 the Guarantor in any case shall entitle the 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 further action in any circumstances without notice or demand. 12. This Guaranty shall be binding upon the Guarantor and its successors and assigns and shall inure to the benefit of the Secured Creditors and their successors and assigns. 13. Neither this Guaranty nor any provision hereof may be changed, waived, discharged or terminated except with the written consent of the Required Banks. 14. The Guarantor acknowledges that an executed (or conformed) copy of the Credit Agreement has been made available to its principal executive officers and such officers are familiar with the contents thereof. 15. 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 of an Event of Default or any condition, event, or act which with notice or lapse of time, or both, would constitute such an Event of Default, each Secured Creditor is hereby authorized at any time or from time to time with the prior consent of the Agent or the Required Banks, without notice to the 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 the Guarantor, against and on account of the obligations and liabilities of the 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 obligations, liabilities, deposits and claims, or any of them, shall be contingent or unmatured. 16. 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 Bank Creditor, as provided in the Credit Agreement, (ii) in the case of any Interest Rate Protection Creditor, at such address as such Interest Rate Protection Creditor shall have specified in writing to the Guarantor and the Agent and (iii) in the case of the Guarantor, at its address set forth opposite its signature below; or in any case at such other address as any of the Persons listed above may hereafter notify the others in writing. 17. 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 (a) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property, or (b) any settlement or compromise of any such claim effected by such payee with any such claimant (including any Borrower), then and in such event the Guarantor agrees that any such judgment, decree, order, settlement or compromise shall be binding upon it, notwithstanding any revocation hereof or the cancellation of any Note or instrument evidencing any liability of any Borrower, and the 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. 18. Any acknowledgment or new promise, whether by payment of principal or interest or otherwise and whether by any Borrower or others (including the Guarantor), with respect to any of the Guaranteed Obligations shall, if the statute of limitations in favor of the Guarantor against any Secured Creditor shall have commenced to run, toll the running of such statute of limitations, and if the period of such statute of limitations shall have expired, prevent the operation of such statute of limitations. 19. THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE SECURED CREDITORS, THE HOLDERS OF THE NOTES AND THE GUARANTOR HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. Any legal action or proceeding with respect to this Guaranty or any other Credit Document may be brought in the courts of the State of New York or of the United States for the Southern District of New York, and, by execution and delivery of this Agreement, the Guarantor hereby irrevocably accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts. The Guarantor hereby irrevocably designates, appoints and empowers CT Corporation System, with offices on the date hereof at 1633 Broadway, New York, New York 10019 as its designee, appointee and agent to receive, accept and acknowledge for and on its behalf, and in respect of its property, service of any and all legal process, summons, notices and documents which may be served in any such action or proceeding. If for any reason such designee, appointee and agent shall cease to be available to act as such, the Guarantor agrees to designate a new designee, appointee and agent in New York City on the terms and for the purposes of this provision satisfactory to the Agent. The 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 the Guarantor at its address set forth opposite its signature below, such service to become effective 30 days after such mailing. Nothing herein shall affect the right of the Agent, the Co-Agent, any other Secured Creditor or the holder of any Note to serve process in any other manner permitted by law or to commence legal proceedings or otherwise proceed against the Guarantor in any other jurisdiction. The Guarantor hereby irrevocably waives any objec- tion 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 the Guaranty brought in the courts referred to above and hereby further irrevocably waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum. 20. The indebtedness and obligations evidenced hereby are secured by, among other things, the Holdings Pledge Agreement. 21. All references to Sections are to Sections in this Guaranty unless otherwise specified. 22. All payments made under the Guaranty shall be made without setoff, counterclaim or other defense. * * * IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed and delivered as of the date first above written. Address 4 Landmark Square SILGAN HOLDINGS INC. Suite 301 Stamford, CT 06901 Attention: Harley Rankin, Jr. By /s/ Harley Rankin, Jr. -------------------------------- Title: Executive Vice President ACCEPTED AND AGREED TO: BANKERS TRUST COMPANY, as Agent for the Banks By /s/ Daniel Toscano --------------------------- Title: Associate EX-11 12 EXHIBIT 11 SILGAN HOLDINGS INC. 8-K Exhibit 11 AMENDED AND RESTATED BORROWERS GUARANTY AMENDED AND RESTATED GUARANTY (as amended, modified or supplemented from time to time, this "Guaranty"), dated as of June 18, 1992, and amended and restated as of December 21, 1993, made by each of the undersigned (each, a "Guarantor" and, collectively, the "Guarantors"). Except as otherwise defined herein, terms used herein and defined in the Credit Agreement (as hereinafter defined) shall be used herein as so defined. W I T N E S S E T H : WHEREAS, Silgan Corporation ("Silgan"), Silgan Containers Corporation ("Containers"), Silgan Plastics Corporation ("Plastics" and, together with Containers and Silgan, each, a "Borrower" and, collectively, the "Borrowers"), the lenders from time to time party thereto (the "Banks"), Bank of America National Trust and Savings Association, as Co-Agent, and Bankers Trust Company, as Agent (the "Agent," and together with the Banks and the Co-Agent, the "Bank Creditors") are party to the Credit Agreement, dated as of December 21, 1993 (as amended, modified or supplemented from time to time, the "Credit Agreement"), providing for the making of the Loans and the issuing of Letters of Credit as provided therein; WHEREAS, one or more of the Borrowers are, or may from time to time in the future be, party to one or more interest rate protection agreements (including, without limitation, interest rate swaps, caps, floors, collars, and similar agreements) (collectively, "Interest Rate Protection Agreements") with any Bank or an affiliate of a Bank, each such Bank or affiliate, even if the respective Bank subsequently ceases to be a Bank under the Credit Agreement for any reason, together with such Bank's or affiliate's successors and assigns, are herein called the "Interest Rate Protection Creditors" and, together with the Bank Creditors, the "Secured Creditors"); WHEREAS, California-Washington Can Corporation ("DM Can") is an indirect Wholly-Owned Subsidiary of Silgan and a direct Wholly-Owned Subsidiary of Containers: WHEREAS, the Guarantors (other than DM Can) have heretofore entered into a Guaranty, dated as of June 18, 1992 (as amended, modified or supplemented to the date hereof, the "Original Borrowers Guaranty"); WHEREAS, it is a condition to the above-mentioned extensions of credit to the Borrowers that each Guarantor shall have executed and delivered this Guaranty; and WHEREAS, each Guarantor will obtain benefits as a result of the extensions of credit to the Borrowers under the Credit Agreement and the execution, delivery and performance of the Interest Rate Protection Agreements and, accordingly, each Guarantor desires to enter into this Guaranty in order to satisfy the condition described in the preceding para- graph and to amend and restate the Original Borrowers Guaranty in the form of this Guaranty; 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 representa- tions and warranties to the Secured Creditors and hereby covenants and agrees with each Secured Creditor as follows: 1.(a) Silgan hereby irrevocably and unconditionally guarantees (x) to each Bank Creditor the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of the principal of and interest on each Working Capital Note and Swingline Note issued to such Bank Creditor under the Credit Agreement, together with all other liabilities and obligations of each other Borrower (including, without limitation, to repay all Working Capital Loans, Swingline Loans and Unpaid Drawings with respect to Letters of Credit and all Fees, indemnities and interest related to the foregoing) to such Bank Creditor incurred or to be incurred under the Credit Agreement or any other Credit Document and the due performance and compliance by each other Borrower with the terms, conditions and agreements contained in the Credit Documents, in each case in respect of the Working Capital Notes, the Swingline Notes and the Letters of Credit (all such Notes, liabilities and obligations are herein collectively called the "Silgan Guaranteed Credit Agreement Obligations") and (y) to each Interest Rate Protection Creditor the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations of any other Borrower owing under any Interest Rate Protection Agreement, whether now in existence or hereafter arising, and the due performance and compliance with all the terms, conditions and agreements contained therein (all such obligations and liabilities being herein collectively called the "Silgan Guaranteed Interest Rate Protection Obligations"; and together with the Silgan Guaranteed Credit Agreement Obligations are herein collectively called the "Silgan Guaranteed Obligations"); (b) Containers hereby irrevocably and unconditionally guarantees (x) to each Bank Creditor the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of the principal of and interest on each A Term Note and B Term Note issued by Silgan, and each Working Capital Note and Swingline Note issued by Plastics, in each case to such Bank Creditor under the Credit Agreement, together with all other lia- bilities and obligations of each other Borrower (including, without limitation, to repay all such A Term Loans, B Term Loans, Working Capital Loans, Swingline Loans and Unpaid Drawings with respect to Letters of Credit and all Fees, indemnities and interest related to the foregoing) to such Bank Creditor incurred or to be incurred under the Credit Agreement or any other Credit Document and the due performance and compliance by each other Borrower with the terms, conditions and agreements contained in the Credit Documents, in each case in respect of such A Term Notes, B Term Notes, Working Capital Notes, Swingline Notes and Letters of Credit (all such Notes, liabilities and obligations are herein collectively called the "Containers Guaranteed Credit Agreement Obligations") and (y) to each Interest Rate Protection Creditor the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations of any other Borrower owing under any Interest Rate Protection Agreement, whether now in existence or hereafter arising, and the due performance and compliance with all the terms, conditions and agreements contained therein (all such obligations and liabilities being herein collectively called the "Containers Guaranteed Interest Rate Protection Obligations"; and together with the Containers Guaranteed Credit Agreement Obligations are herein collectively called the "Containers Guaranteed Obligations"); (c) Plastics hereby irrevocably and unconditionally guarantees (x) to each Bank Creditor the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of the principal of and interest on each A Term Note and B Term Note issued by Silgan, and each Working Capital Note and Swingline Note issued by Containers, in each case to such Bank Creditor under the Credit Agreement, together with all other liabilities and obligations of each other Borrower (including, without limitation, to repay all such A Term Loans, B Term Loans, Working Capital Loans, Swingline Loans and Unpaid Drawings with respect to Letters of Credit and all Fees, indemnities and interest related to the foregoing) to such Bank Creditor incurred or to be incurred under the Credit Agreement or any other Credit Document and the due performance and compliance by each other Borrower with the terms, conditions and agreements contained in the Credit Documents, in each case in respect of such A Term Notes, B Term Notes, Working Capital Notes, Swingline Notes and Letters of Credit (all such Notes, liabilities and obligations are herein collectively called the "Plastics Guaranteed Credit Agreement Obligations") and (y) to each Interest Rate Protection Creditor the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations of any other Borrower owing under any Interest Rate Protection Agreement, whether now in existence or hereafter arising, and the due performance and compliance with all the terms, conditions and agreements contained therein (all such obligations and liabilities being herein collectively called the "Plastics Guaranteed Interest Rate Protection Obligations"; and together with the Plastics Guaranteed Credit Agreement Obligations are herein collectively called the "Plastics Guaranteed Obligations"); and (d) DM Can hereby irrevocably and unconditionally guarantees (i) to each Bank Creditor the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of (x) the principal of and interest on each Note issued to such Bank Creditor under the Credit Agreement, together with all other liabilities and obligations of each Borrower (including, without limitation, to repay all Loans and Unpaid Drawings with respect to Letters of Credit, and all Fees, indemnities and interest related to the foregoing) to such Bank Creditor incurred or to be incurred under the Credit Agreement or any other Credit Document and the due performance and compliance by each Borrower with the terms, conditions and agreements contained in the Credit Documents (all such Notes, obligations and liabilities being herein collectively referred to as the "DM Can Guaranteed Credit Agreement Obligations") and (ii) to each Interest Rate Protection Creditor the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations of any Borrower owing under any Interest Rate Protection Agreement, whether now in existence or hereafter arising, and the due performance and compliance with all the terms, conditions and agreements contained therein (all such obligations and liabilities being herein collectively called the "DM Can Guaranteed Interest Rate Protection Obligations"; and together with the DM Can Credit Agreement Obligations are herein collectively called the "DM Can Guaranteed Obligations," and the DM Can Guaranteed Obligations, together with the Silgan Guaranteed Obligations, the Containers Guaranteed Obligations and the Plastics Guaranteed Obligations are herein collectively called the "Guaranteed Obligations"). (e) Each Guarantor understands, agrees and confirms that each Secured Creditor may enforce this Guaranty up to the full amount of such Guarantor's Guaranteed Obligations without proceeding against any Borrower, against any security such Guaranteed Obligations, against any other Guarantor, against any other guarantor or under any other guaranty covering such Guaranteed Obligations. This Guaranty shall constitute a guaranty of payment and not of collection. 2. Each Guarantor hereby waives notice of acceptance of this Guaranty and notice of any liability to which it may apply, and waives presentment, demand of payment, protest, notice of dishonor or nonpayment of any such liabilities, suit or taking of other action by the Secured Creditors against, and any other notice to, any party liable thereon (including such Guarantor or any other guarantor). 3. Any Secured Creditor may at any time and from time to time without the consent of, or notice to, any Guarantor, without incurring responsibility to any Guarantor and without impairing or releasing the obligations of any 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 or alter, any of the Guaranteed Obligations, 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) sell, exchange, release, 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 of the Borrowers or others 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 to creditors of such Borrower other than the Secured Creditors and the Guarantors; (e) apply any sums by whomsoever paid or howsoever realized to any liability or liabilities of any Borrower to the Secured Creditors regardless of what liability or liabilities of such Borrower remain unpaid; (f) consent to or waive any breach of, or any act, omission or default under, any of the Interest Rate Protection Agreements or the Credit Documents, or otherwise amend, modify or supplement any of the Interest Rate Protection Agreements or the Credit Documents or any of such other instruments or agreements; and/or (g) act or fail to act in any manner referred to in this Guaranty which may deprive any Guarantor of its right to subrogation against any Borrower to recover full indemnity for any payments made pursuant to this Guaranty. 4. No invalidity, irregularity or unenforceability of all or part of the Guaranteed Obligations or of any security therefor shall affect, impair or be a defense to this Guaranty, and this Guaranty is a primary obligation of each of the Guarantors. 5. If and to the extent that any Guarantor makes any payment to a Secured Creditor or to any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have under the Contribution Agreement or otherwise against any Borrower by reason thereof shall be subject and subordinate to the prior payment in full of (i) the Guaranteed Obligations of each Secured Creditor and (ii) the obligations of each Guarantor under the Senior Note Documents. 6. (a) Each Guarantor hereby waives (i) all rights 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) to the claims of the Secured Creditors against any Borrower or any other guarantor of the Guaranteed Obligations (collectively, the "Other Parties") and all contractual, statutory or common law rights of reimbursement, contribution or indemnity from any Other Party which it may at any time otherwise have as a result of this Guaranty, (ii) any right to enforce any other remedy which the Secured Creditors now have or may hereafter have against any Other Party, any endorser or any other guarantor of all or any part of the indebtedness of any Borrower and any benefit of, and any right to participate in, any security or collateral given to or for the benefit of the Secured Creditors to secure payment of the indebtedness of any Borrower and (iii) all claims (as such term is defined in the Bankruptcy Code) it may at any time otherwise have against any Other Party arising from any transaction whatsoever, including without limitation its right to assert or enforce any such claims; provided that in the case of clause (i), (ii) and (iii) above, Plastics does not waive its right of contribution from Containers or DM Can, as the case may be, Containers does not waive its right of contribution from Plastics or DM Can, as the case may be, and DM Can does not waive its right of contribution from Containers or Plastics, as the case may be, in each case as provided in the Contribution Agreement. (b) Each Guarantor understands, is aware and hereby acknowledges that to the extent the Guaranteed Obligations are secured by real property located in the State of California, such Guarantor shall be liable for the full amount of its liability hereunder notwithstanding foreclosure on such real property by trustee sale or any other reason impairing such Guarantor's or any Secured Creditors' right to proceed against any Borrower. Each Guarantor hereby waives, to the fullest extent permitted by law, all rights and benefits under Section 2809 of the California Civil Code purporting to reduce a guarantor's obligation in proportion to the principal obligation. Each Guarantor hereby waives all rights and benefits under Section 580a of the California Code of Civil Procedure purporting to limit the amount of any deficiency judgment which might be recoverable following the occurrence of a trustee's sale under a deed of trust and all rights and benefits under Section 580b of the California Code of Civil Procedure stating that no deficiency may be recovered on a real property purchase money obligation. Each Guarantor further understands, is aware and hereby acknowledges that if the Secured Creditors elect to nonjudicially foreclose on any real property security located in the State of California any right of subrogation of such Guarantor against the Secured Creditors may be impaired or extinguished and that as a result of such impairment or extinguishment of subrogation rights, such Guarantor will have a defense to a deficiency judgment arising out of the operation of (i) Section 580d of the California Code of Civil Procedure which states that no deficiency may be recovered on a note secured by a deed of trust on real property in case such real property is sold under the power of sale contained in such deed of trust, and (ii) related principles of estoppel. To the fullest extent permitted by law, each Guarantor waives all rights and benefits and any defense arising out of the operation of Section 580d of the California Code of Civil Procedure and related principles of estoppel, 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 or any other party or any security. In addition, each Guarantor hereby waives, to the fullest extent permitted by applicable laws, without limiting the generality of the foregoing or any other provision hereof, all rights and benefits which might otherwise be available to such Guarantor under Section 726 of the California Code of Civil Procedure and all rights and benefits which might otherwise be available to such Guarantor under California Civil Code Sections 2809, 2810, 2815, 2819, 2821, 2839, 2845, 2848, 2849, 2850, 2899 and 3433. 7. In order to induce the Bank Creditors to make the Loans and to issue the Letters of Credit pursuant to the Credit Agreement, and in order to induce the Interest Rate Protection Creditors to perform the Interest Rate Protection Agreements, each Guarantor hereby makes and confirms each and every representation and warranty made by it in Section 6 of the Credit Agreement to the same extent as if set forth herein in their entirety. 8. 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 any 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. 9. 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. 10. Neither this Guaranty nor any provision hereof may be changed, waived, discharged or terminated except with the written consent of the Required Banks. 11. Each Guarantor acknowledges that an executed (or conformed) copy of the Credit Agreement has been made available to its principal executive officers and such officers are familiar with their respective contents. 12. 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 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 any condition, event, or act which with notice or lapse of time, or both, would constitute such an Event of Default, each Secured Creditor is hereby authorized at any time or from time to time with the prior consent of the Agent or the Required Banks, 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 any Guarantor, against and on account of the obligations and liabilities of such Guarantor to such Creditor under this Guaranty, irrespective of whether or not such Secured Creditor shall have made any demand hereunder and although said obligations, liabilities, deposits or claims, or any of them, shall be contingent or unmatured. 13. 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 a Guarantor and any Bank Creditor, as provided in the Credit Agreement and (ii) in the case of any Interest Rate Protection Creditor, at such address as such Interest Rate Protection Creditor shall have specified in writing to any Guarantor and the Agent; or in any case at such other address as any of the Persons listed above may hereafter notify the others in writing. 14. 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 (a) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property, or (b) any settlement or compromise of any such claim effected by such payee with any such claimant (including any Borrower), then and in such event each Guarantor agrees that any such judgment, decree, order, settlement or compromise shall be binding upon it, notwithstanding any revocation hereof or the cancellation of any A Term Note, B Term Note, Working Capital Note or Swingline Note, as the case may be, or any Interest Rate Protection Agreement or other instrument evidencing any liability of any Borrower, and each 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. 15. Any acknowledgment or new promise, whether by payment of principal or interest or otherwise and whether by any Borrower or others (including any Guarantor), with respect to any of the Guaranteed Obligations shall, if the statute of limitations in favor of the Guarantors against any Secured Creditor shall have commenced to run, toll the running of such statute of limitations, and if the period of such statute of limitations shall have expired, prevent the operation of such statute of limitations. 16. (A) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY 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 ANY 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, AND, BY EXECUTION AND DELI- VERY OF THIS GUARANTY, EACH GUARANTOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH GUARANTOR HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CT CORPORATION SYSTEMS, 1633 BROADWAY, NEW YORK, NEW YORK 10019, AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, EACH GUARANTOR AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK CITY ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO THE AGENT FOR THE BANKS UNDER THIS GUARANTY. 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 OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. 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 ANY 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. 17. 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 the Guarantors and the Agent. 18. The indebtedness and obligations evidenced hereby are secured by, among other things, the Security Documents, including, without limitation, those certain Deed of Trust, Assignment of Leases and Rents and Security Agreements, in each case dated as of August 28, 1987, executed by Containers to David Frantze, Trustee, for the benefit of Bankers Trust Company, as Collateral Agent, which Deed of Trust, Assignment of Leases and Rents and Security Agreements create liens upon real property in Buchanan and Lawrence counties, Missouri. 19. In the event that all of the capital stock of one or more Guarantors is sold in connection with a sale permitted by the Credit Agreement and the proceeds of such sale or sales are applied in accordance with the provisions of Section 4.02 of the Credit Agreement, to the extent applicable, each Guarantor (x) all of the capital stock of which is so sold or (y) which is a Subsidiary of a Guarantor all of the capital stock of which is so sold, shall be released from this Guaranty and this Guaranty shall, as to each Guarantor or Guarantors, terminate, and have no further force or effect. 20. All payments made by any Guarantor hereunder will be made without setoff, counterclaim or other defense. * * * IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed and delivered as of the date first above written. Address: 4 Landmark Square SILGAN CORPORATION Suite 301 Stamford, Connecticut 06901 Attention: President By /s/ Harley Rankin, Jr. ----------------------------- Title: Executive Vice President 4 Landmark Square SILGAN CONTAINERS CORPORATION Suite 301 Stamford, Connecticut 06901 Attention: President By /s/ Harley Rankin, Jr. ------------------------------ Title: Vice President 4 Landmark Square SILGAN PLASTICS CORPORATION Suite 301 Stamford, Connecticut 06901 Attention: President By /s/ Harley Rankin, Jr. ----------------------------- Title: Vice President 4 Landmark Square CALIFORNIA-WASHINGTON CAN Suite 301 CORPORATION Stamford, Connecticut 06901 Attention: President By /s/ Harley Rankin, Jr. ----------------------------- Title: Vice President ACCEPTED AND AGREED TO: BANKERS TRUST COMPANY, as Agent for the Banks By /s/ Daniel Toscano --------------------------- Title: Associate -----END PRIVACY-ENHANCED MESSAGE-----