FORM OF SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTY
Dated August 21, 1996
From
THE GUARANTORS NAMED HEREIN
as Guarantors
in favor of
THE SECURED PARTIES REFERRED TO IN
THE CREDIT AGREEMENT REFERRED TO HEREIN
T A B L E O F C O N T E N T S
Section Page
1. Guaranty; Limitation of Liability 1
2. Guaranty Absolute 3
3. Waivers and Acknowledgments 4
4. Subrogation 5
5. Payments Free and Clear of Taxes, Etc 6
6. Representations and Warranties 8
7. Covenants 10
8. Amendments, Etc. 11
9. Notices, Etc. 11
10. No Waiver; Remedies 11
11. Right of Set-off 11
12. Indemnification 12
13. Continuing Guaranty; Assignments under the
Credit Agreement 12
14. Execution in Counterparts 13
15. Governing Law; Jurisdiction; Waiver of Jury
Trial, Etc. 13
SCHEDULE I-Uniroyal Guarantors and Crompton Guarantors
SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTY dated August 21, 1996 made by the Persons
listed on the signature pages hereof (each, a "Guarantor", and
collectively the "Guarantors"), in favor of the Secured Parties
(as defined in the Credit Agreement referred to below).
PRELIMINARY STATEMENT. Crompton & ▇▇▇▇▇▇▇ Corporation ("Crompton
Corp."), Crompton & ▇▇▇▇▇▇▇ Colors Incorporated ("Crompton
Colors"), ▇▇▇▇▇-Standard Corporation ("▇▇▇▇▇-Standard") and
Ingredient Technology Corporation ("ITC" and, together with
Crompton Corp., Crompton Colors and ▇▇▇▇▇-Standard, the "Crompton
Borrowers") and Uniroyal Chemical Company, Inc. (together with
the Crompton Borrowers, the "Borrowers") have entered into a
Credit Agreement dated as of August 21, 1996 (said Agreement, as
it may hereafter be amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"; terms used herein and
not otherwise defined are used herein as therein defined) with
the lender parties party thereto (the "Lender Parties"), Citicorp
Securities, Inc., as Arranger, Citicorp USA, Inc., as Agent and
The Chase Manhattan Bank, as Managing Agent. Each Guarantor may
receive a portion of the proceeds of the Advances under the
Credit Agreement and will derive substantial direct and indirect
benefit from the transactions contemplated by the Credit
Agreement. It is a condition precedent to the making of Advances
and the issuance of Letters of Credit by the Lender Parties under
the Credit Agreement and the entry by the Hedge Banks into Bank
Hedge Agreements with the Borrowers from time to time that each
Guarantor shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lender Parties to make Advances and to issue Letters
of Credit under the Credit Agreement and the Hedge Banks to enter
into Bank Hedge Agreements with the Borrowers from time to time,
each Guarantor, jointly and severally with each other Guarantor,
hereby agrees as follows:
Section 1. Guaranty; Limitation of Liability. (a) Each
Guarantor hereby absolutely, unconditionally and irrevocably
guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all Obligations of
each other Loan Party now or hereafter existing under the Loan
Documents, whether for principal (including reimbursement for
amounts drawn under Letters of Credit), interest, premiums,
penalties, fees, indemnifications, contract causes of action,
costs, expenses or otherwise (such Obligations being the
"Guaranteed Obligations"), and agrees to pay any and all expenses
(including reasonable counsel fees and expenses) incurred by the
Agent or any other Secured Party in enforcing any rights under
this Guaranty and the other Loan Documents. Without limiting the
generality of the foregoing, each Guarantor's liability shall
extend to all amounts that constitute part of the Guaranteed
Obligations and would be owed by any Loan Party to the Agent or
any other Secured Party under the Loan Documents but for the fact
that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving
such Loan Party.
(b)(i)Uniroyal Guarantors. Each Guarantor listed on Part A of
Schedule I hereto (each, a "Uniroyal Guarantor" and collectively,
the "Uniroyal Guarantors"), and by its acceptance of this
Guaranty, the Agent and each other Secured Party, hereby confirms
that it is the intention of all such parties that this Guaranty
not constitute a fraudulent transfer or conveyance for purposes
of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state
law to the extent applicable to this Guaranty. To effectuate the
foregoing intention, the Agent, the other Secured Parties and the
Guarantors hereby irrevocably agree that the Obligations of each
Uniroyal Guarantor under this Guaranty shall not exceed the
lesser of (A) so long as any Uniroyal Indenture remains in
effect, the maximum amount of Debt permitted to be incurred under
such Uniroyal Indenture and (B) the maximum amount as will, after
giving effect to such maximum amount (including, without
limitation, the net benefit realized by the Uniroyal Guarantors
from the proceeds of the Advances made from time to time by the
Borrowers to the Uniroyal Guarantors or any Subsidiary of any
Uniroyal Guarantor) and all other contingent and fixed
liabilities of such Uniroyal Guarantor that are relevant under
such laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the Obligations of
such other Guarantor under this Guaranty, result in the
Obligations of such Uniroyal Guarantor under this Guaranty not
constituting a fraudulent transfer or conveyance. For purposes
hereof, "Bankruptcy Law" means Title 11, U.S. Code, or any
similar Federal or state law for the relief of debtors.
(ii)Crompton Guarantors. The liability of each Guarantor listed
on Part B of Schedule I hereto (each a "Crompton Guarantor")
under this Guaranty with respect to the Obligations of each other
Loan Party (other than any Loan Party that is a Subsidiary of
such Crompton Guarantor) guaranteed hereunder shall not exceed
the maximum amount as will, after giving effect to such maximum
amount (including, without limitation, the net benefit realized
by the Crompton Guarantors from the proceeds of the Advances made
from time to time by the Borrowers to the Crompton Guarantors or
any Subsidiary of any Crompton Guarantor) and all other
contingent and fixed liabilities of such Crompton Guarantor that
are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments
made by or on behalf of any other Guarantor in respect of the
Obligations of such other Guarantor under this Guaranty, result
in the Obligations of such Crompton Guarantor under this Guaranty
not constituting a fraudulent transfer or conveyance.
(iii)Each Guarantor agrees that in the event any payment shall be
required to be made to the Secured Parties under this Guaranty or
the Parent Guaranty or any other guaranty, such Guarantor will
contribute, to the maximum extent permitted by law, such amounts
to each other Guarantor and Crompton Corp. and each other
guarantor so as to maximize the aggregate amount paid to the
Secured Parties under the Loan Documents.
Section 2. Guaranty Absolute. Each Guarantor guarantees that
the Guaranteed Obligations will be paid strictly in accordance
with the terms of the Loan Documents, regardless of any law,
regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the
Agent or any other Secured Party with respect thereto. The
Obligations of each Guarantor under this Guaranty are independent
of the Guaranteed Obligations or any other Obligations of any
other Loan Party under the Loan Documents, and a separate action
or actions may be brought and prosecuted against each Guarantor
to enforce this Guaranty, irrespective of whether any action is
brought against any Borrower or any other Loan Party or whether
such Borrower or any other Loan Party is joined in any such
action or actions. The liability of each Guarantor under this
Guaranty shall be irrevocable, absolute and unconditional
irrespective of, and each Guarantor hereby irrevocably waives any
defenses it may now or hereafter have in any way relating to, any
or all of the following:
(a)any lack of validity or enforceability of any Loan Document or
any agreement or instrument relating thereto;
(b)any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations or
any other Obligations of any other Loan Party under the Loan
Documents, or any other amendment or waiver of or any consent to
departure from any Loan Document, including, without limitation,
any increase in the Guaranteed Obligations resulting from the
extension of additional credit to any Borrower or any of its
Subsidiaries or otherwise;
(c)any taking, exchange, release or non-perfection of any
Collateral, or any taking, release or amendment or waiver of or
consent to departure from any other guaranty, for all or any of
the Guaranteed Obligations;
(d)any manner of application of Collateral, or proceeds thereof,
to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any Collateral for all or any of the
Guaranteed Obligations or any other Obligations of any other Loan
Party under the Loan Documents or any other assets of any Loan
Party or any of its Subsidiaries;
(e)any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its
Subsidiaries;
(f)any failure of any Secured Party to disclose to any Borrower
or any Guarantor any information relating to the financial
condition, operations, properties or prospects of any other Loan
Party now or in the future known to any Secured Party (each
Guarantor waiving any duty on the part of the Secured Parties to
disclose such information);
(g)the failure of any other person to execute any guaranty or
agreement or the release or reduction of liability of any
guarantor or other surety with respect to the Guaranteed
Obligations; or
(h)any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Agent or any other Secured Party that might
otherwise constitute a defense available to, or a discharge of,
any Borrower, any Guarantor or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as
the case may be, if at any time any payment of any of the
Guaranteed Obligations is rescinded or must otherwise be returned
by any Secured Party or any other Person upon the insolvency,
bankruptcy or reorganization of any Borrower or any other Loan
Party or otherwise, all as though such payment had not been made.
Section 3. Waivers and Acknowledgments. (a) Each Guarantor
hereby waives promptness, diligence, notice of acceptance,
presentment, demand for performance, protest, notice of
nonperformance, default, acceleration, protest or dishonor and
any other notice with respect to any of the Guaranteed
Obligations and this Guaranty or the rights of the Secured
Parties under this Guaranty and any requirement that the Agent or
any other Secured Party protect, secure, perfect or insure any
Lien or any property subject thereto or exhaust any right or take
any action against any Loan Party or any other Person or any
Collateral.
(b)Each Guarantor hereby waives any right to revoke this
Guaranty, and acknowledges that this Guaranty is continuing in
nature and applies to all Guaranteed Obligations, whether
existing now or in the future.
(c) Each Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth
in Section 2 and this Section 3 are knowingly made in
contemplation of such benefits.
Section 4. Subrogation. No Guarantor will exercise any rights
that it may now or hereafter acquire against any Borrower or any
other insider guarantor that arise from the existence, payment,
performance or enforcement of such Guarantor's Obligations under
this Guaranty or any other Loan Document, including, without
limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in
any claim or remedy of any Secured Party against each Borrower or
any other insider guarantor or any Collateral, whether or not
such claim, remedy or right arises in equity or under contract,
statute or common law, including, without limitation, the right
to take or receive from each Borrower or any other insider
guarantor, directly or indirectly, in cash or other property or
by set-off or in any other manner, payment or security on account
of such claim, remedy or right, unless and until all of the
Obligations and all other amounts payable under this Guaranty
shall have been paid in full in cash, all Bank Hedge Agreements
shall have expired or terminated and the Commitments shall have
expired or terminated. If any amount shall be paid to any
Guarantor in violation of the preceding sentence at any time
prior to the later of the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this
Guaranty and the later of (i) the Termination Date and (ii) the
expiration or termination of all Bank Hedge Agreements, such
amount shall be held in trust for the benefit of the Agent and
the other Secured Parties and shall forthwith be paid to the
Agent to be credited and applied to the Guaranteed Obligations
and all other amounts payable under this Guaranty, whether
matured or unmatured, in accordance with the terms of the Loan
Documents, or to be held as Collateral for any Guaranteed
Obligations or other amounts payable under this Guaranty
thereafter arising. If (i) any Guarantor shall make payment to
the Agent or any other Secured Party of all or any part of the
Guaranteed Obligations, (ii) all of the Guaranteed Obligations
and all other amounts payable under this Guaranty shall be paid
in full in cash and (iii) the Termination Date shall have
occurred and all Bank Hedge Agreements shall have expired or
terminated, the Agent and the other Secured Parties will, at any
Guarantor's request and expense, execute and deliver to such
Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by
subrogation to such Guarantor of an interest in the Guaranteed
Obligations resulting from such payment by such Guarantor.
Section 5. Payments Free and Clear of Taxes, Etc. (a) Any and
all payments made by any Guarantor hereunder shall be made, in
accordance with Section 2.11 of the Credit Agreement, free and
clear of and without deduction for any and all present or future
Taxes. If any Guarantor shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder to the
Agent or any other Secured Party, (i) the sum payable shall be
increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums
payable under this Section) the Agent or such other Secured Party
(as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) such
Guarantor shall make such deductions and (iii) such Guarantor
shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b)In addition, each Guarantor agrees to pay any present or
future Other Taxes.
(c)The Guarantors jointly and severally agree to indemnify the
Agent and each other Secured Party for and hold them harmless
against the full amount of Taxes and Other Taxes, and for the
full amount of taxes of any kind imposed by any jurisdiction on
amounts payable under this Section 5, imposed on or paid by the
Agent or such other Secured Party (as the case may be) and any
liability (including penalties, additions to tax, interest and
expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date the
Agent or such other Secured Party (as the case may be) makes
written demand therefor.
(d)Within 30 days after the date of any payment of Taxes by or on
behalf of any Guarantor, such Guarantor will furnish to the
Agent, at its address referred to in the Credit Agreement, the
original or a certified copy of a receipt evidencing such
payment. In the case of any payment hereunder by or on behalf of
any Guarantor through an account or branch outside the United
States or by or on behalf of such Guarantor by a payor that is
not a United States person, if such Guarantor determines that no
Taxes are payable in respect thereof, such Guarantor shall
furnish, or shall cause such payor to furnish, to the Agent, at
such address, an opinion of counsel acceptable to the Agent
stating that such payment is exempt from Taxes. For purposes of
this subsection (d) and subsection (e), the terms "United States"
and "United States person" shall have the meanings specified in
Section 7701 of the Internal Revenue Code.
(e)Upon the reasonable request in writing of any Guarantor, each
Secured Party organized under the laws of a jurisdiction outside
the United States shall, on or prior to the date of its execution
and delivery of the Credit Agreement in the case of each Initial
Lender or Initial Issuing Bank, as the case may be, and on the
date of the Assignment and Acceptance or other agreement pursuant
to which it becomes a Secured Party in the case of each other
Secured Party, and from time to time thereafter upon the
reasonable request in writing by any Guarantor (but only so long
thereafter as such Secured Party remains lawfully able to do so),
provide the Agent and such Guarantor with Internal Revenue
Service forms 1001 or 4224 or (in the case of a Secured Party
that is claiming exemption from United States withholding tax
under Section 871(h) or 881(c) of the Internal Revenue Code with
respect to payments of "portfolio interest") two accurate and
complete signed original Forms W-8 (and, if such Secured Party
delivers Forms W-8, two signed certificates certifying that such
Secured Party (i) is not a "bank" for purposes of Section 881(c)
of the Internal Revenue Code, (ii) is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code) of the Borrower, (iii) is not a controlled
foreign corporation related to the Borrower (within the meaning
of Section 864(d)(4) of the Internal Revenue Code) and (iv) is
not a conduit entity participating in a conduit financing
arrangement (as defined in Treasury Regulation Section 1.881-3),
as appropriate, or any successor or other form prescribed by the
Internal Revenue Service, certifying that such Secured Party is
exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to the Credit Agreement. If
the accurate and complete forms provided by a Secured Party at
the time such Secured Party first becomes a party to the Credit
Agreement indicate a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be
considered excluded from Taxes unless and until such Secured
Party provides the appropriate form certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only shall
be considered excluded from Taxes for periods governed by such
form; provided, however, that, if at the date of the Assignment
and Acceptance pursuant to which a Secured Party assignee becomes
a party to the Credit Agreement, the Secured Party assignor was
entitled to payments under subsection (a) in respect of United
States withholding tax with respect to interest paid at such
date, then, to such extent, the term Taxes shall include (in
addition to withholding taxes that may be imposed in the future
or other amounts otherwise includable in Taxes) United States
withholding tax, if any, applicable with respect to the Secured
Party assignee on such date.
(f)For any period with respect to which a Secured Party has
failed to provide any Guarantor following such Guarantor's
request therefor pursuant to subsection (e) above with the
appropriate form described in subsection (e) above (other than if
such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or if such
form otherwise is not required under subsection (e) above), such
Secured Party shall not be entitled to indemnification under
subsection (a) or (c) with respect to Taxes imposed by the United
States by reason of such failure; provided, however, that should
a Secured Party become subject to Taxes because of its failure to
deliver a form required hereunder, such Guarantor shall take such
steps, at such Lender Party's sole expense, as such Secured Party
shall reasonably request to assist such Secured Party to recover
such Taxes.
(g)Any Secured Party claiming any additional amounts payable
pursuant to this Section 5 agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Applicable
Lending Office if the making of such a change would avoid the
need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable
judgment of such Secured Party, be otherwise disadvantageous to
such Secured Party.
(h)If any Secured Party, in its sole opinion, determines that it
has finally and irrevocably received or been granted a refund in
respect of any Taxes or Other Taxes as to which indemnification
has been paid by Crompton Corp. pursuant to Section 5(a) or (b),
it shall promptly remit such refund (including any interest) to
Crompton Corp., net of all out-of-pocket expenses of such Secured
Party; provided, however, that Crompton Corp., upon the request
of such Secured Party, agrees promptly to return such refund
(plus any interest) to such party in the event such party is
required to repay such refund to the relevant taxing authority.
Such Secured Party shall provide Crompton Corp. with a copy of
any notice or assessment from the relevant taxing authority
(deleting any confidential information contained therein)
requiring repayment of such refund. Nothing contained herein
shall impose an obligation on any Secured Party to apply for any
refund.
(i)Without prejudice to the survival of any other agreement of
any Guarantor hereunder or under any other Loan Document, the
agreements and obligations of each Guarantor contained in this
Section 5 and in Section 12 shall survive the payment in full of
the Guaranteed Obligations and all other amounts payable under
this Guaranty.
Section 6. Representations and Warranties. Each Guarantor
hereby represents and warrants as follows:
(a)Such Guarantor (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction
of its incorporation, (ii) is duly qualified and in good standing
as a foreign corporation in each other jurisdiction in which it
owns or leases property or in which the conduct of its business
requires it to so qualify or be licensed except where the failure
to so qualify or be licensed would not have a Material Adverse
Effect and (iii) has all requisite corporate power and authority
(including, without limitation, all governmental licenses,
permits and other approvals) to own or lease and operate its
properties and to carry on its business as now conducted and as
proposed to be conducted. All of the outstanding capital stock
of such Guarantor has been validly issued and is fully paid and
non-assessable.
(b)The execution, delivery and performance by such Guarantor of
this Guaranty and each other Loan Document and each Related
Document to which it is or is to be a party, and the consummation
of the Merger and the other transactions contemplated hereby, are
within such Guarantor's corporate powers, have been duly
authorized by all necessary corporate action, and do not
(i) contravene such Guarantor's charter or bylaws, (ii) violate
any law, rule, regulation (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve
System), order, writ, judgment, injunction, decree, determination
or award, (iii) conflict with or result in the breach of, or
constitute a default under, any loan agreement, indenture,
mortgage, deed of trust or other instrument or material contract
or material lease binding on or affecting such Guarantor, any of
its Subsidiaries or any of their properties or (iv) except for
the Liens created under the Loan Documents, result in or require
the creation or imposition of any Lien upon or with respect to
any of the properties of such Guarantor or any of its
Subsidiaries. Neither such Guarantor nor any of its Subsidiaries
is in violation of any such law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award or in breach
of any such contract, loan agreement, indenture, mortgage, deed
of trust, lease or other instrument, the violation or breach of
which would have a Material Adverse Effect.
(c)No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body
or any other third party is required for (i) the due execution,
delivery, recordation, filing or performance by such Guarantor of
this Guaranty, any other Loan Document or any Related Document to
which it is or is to be a party, or for the consummation of the
Merger or the other transactions contemplated hereby, (ii) the
grant by such Guarantor of the Liens granted by it pursuant to
the Collateral Documents, (iii) the perfection or maintenance of
the Liens created by the Collateral Documents (including the
first priority nature thereof) or (iv) the exercise by the Agent
or any Lender Party of its rights under the Loan Documents or the
remedies in respect of the Collateral pursuant to the Collateral
Documents, except for the authorizations, approvals, actions,
notices and filings listed on Schedule 4.01(d) to the Credit
Agreement, all of which have been duly obtained, taken, given or
made and are in full force and effect. All applicable waiting
periods in connection with the Merger and the other transactions
contemplated hereby and by the Credit Agreement have expired
without any action having been taken by any competent authority
restraining, preventing or imposing materially adverse conditions
upon the Merger or the rights of such Guarantor or its
Subsidiaries freely to transfer or otherwise dispose of, or to
create any Lien on, any properties now owned or hereafter
acquired by any of them.
(d)This Guaranty has been, and each other Loan Document and each
Related Document to which such Guarantor will be a party when
delivered pursuant to the Credit Agreement will have been, duly
executed and delivered by such Guarantor. This Guaranty is, and
each other Loan Document and each Related Document to which it
will be a party when delivered pursuant to the Credit Agreement
will be, the legal, valid and binding obligation of such
Guarantor, enforceable against such Guarantor in accordance with
its terms.
(e)There is no action, suit, investigation, litigation or
proceeding affecting such Guarantor or any of its Subsidiaries,
including any Environmental Action, pending or threatened before
any court, governmental agency or arbitrator that (i) would be
reasonably likely to have a Material Adverse Effect (other than
the Disclosed Litigation) or (ii) purports to affect the
legality, validity or enforceability of the Merger, this
Guaranty, any other Loan Document or any Related Document or the
consummation of the transactions contemplated by the Loan
Documents, and there has been no material adverse change in the
status, or financial effect on such Guarantor or any of its
Subsidiaries, of the Disclosed Litigation from that described on
Schedule 3.01(f) of the Credit Agreement.
(f)There are no conditions precedent to the effectiveness of this
Guaranty that have not been satisfied or waived.
(g)Such Guarantor has, independently and without reliance upon
the Agent or any other Secured Party and based on such documents
and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Guaranty, and such
Guarantor has established adequate means of obtaining from any
other Loan Parties on a continuing basis information pertaining
to, and is now and on a continuing basis will be completely
familiar with, the financial condition, operations, properties
and prospects of such other Loan Parties.
Section 7. Covenants. Each Guarantor covenants and agrees that,
so long as any part of the Guaranteed Obligations shall remain
unpaid, any Letter of Credit shall be outstanding, any Lender
Party shall have any Commitment or any Hedge Bank shall have any
obligation under any Bank Hedge Agreement, such Guarantor will,
unless the Required Lenders shall otherwise consent in writing,
perform or observe, and cause its Subsidiaries to perform or
observe, all of the terms, covenants and agreements that the Loan
Documents state that the Borrowers are to cause such Guarantor or
such Subsidiaries to perform or observe.
Section 8. Amendments, Etc. No amendment or waiver of any
provision of this Guaranty and no consent to any departure by any
Guarantor therefrom shall in any event be effective unless the
same shall be in writing and signed by the Agent and the Required
Lenders, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by all of the Secured Parties
(other than any Lender Party that is, at such time, a Defaulting
Lender), (a) reduce or limit the liability of such Guarantor
hereunder or release such Guarantor, (b) postpone any date fixed
for payment hereunder or (c) change the number of Secured Parties
required to take any action hereunder.
Section 9. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including
telegraphic, telecopy or telex communication) and mailed,
telegraphed, telecopied, telexed or delivered to it, if to any
Guarantor, addressed both c/o Crompton Corp. at its address at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
Chief Financial Officer and c/o Uniroyal Corp. at its address at
World Headquarters, ▇▇▇▇▇▇ Road, Middlebury, CT 06749,
Attention: Chief Financial Officer, if to the Agent or any Lender
Party, at its address specified in the Credit Agreement, if to
any Hedge Bank, at its address specified in the Bank Hedge
Agreement to which it is a party, or as to any party at such
other address as shall be designated by such party in a written
notice to each other party. All such notices and other
communications shall (a) when mailed, be effective three Business
Days after the same is deposited in the mails, (b) when mailed
for next day delivery by a reputable freight company or reputable
overnight courier service, be effective one Business Day
thereafter, and (c) when sent by telegraph, telecopier or telex,
be effective when the same is confirmed by telephone, telecopier
confirmation or return telecopy or telex answerback,
respectively. Delivery of a notice to any Guarantor at the above
addresses shall be deemed notice to all Guarantors.
Section 10. No Waiver; Remedies. No failure on the part of the
Agent or any other Secured Party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
Section 11. Right of Set-off. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making
of the request or the granting of the consent specified by
Section 6.01 of the Credit Agreement to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of
said Section 6.01, each Lender Party and each of its respective
Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at
any time owing by such Lender Party or such Affiliate to or for
the credit or the account of any Guarantor against any and all of
the Obligations of such Guarantor now or hereafter existing under
this Guaranty, whether or not such Lender Party shall have made
any demand under this Guaranty and although such Obligations may
be unmatured. Each Lender Party agrees promptly to notify such
Guarantor after any such set-off and application; provided,
however, that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of each
Lender Party and its respective Affiliates under this Section are
in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender Party and
its respective Affiliates may have.
Section 12. Indemnification. Without limitation on any other
Obligations of any Guarantor or remedies of the Secured Parties
under this Guaranty, each Guarantor shall, to the fullest extent
permitted by law, indemnify, defend and save and hold harmless
each Secured Party from and against, and shall pay on demand, any
and all losses, liabilities, damages, costs, expenses and charges
(including the fees and disbursements of such Secured Party's
legal counsel) suffered or incurred by such Secured Party as a
result of any failure of any Guaranteed Obligations to be the
legal, valid and binding obligations of any Loan Party
enforceable against such Loan Party in accordance with their
terms, except to the extent such loss, liability, damages, cost,
expense or charge is found in a final, non-appealable judgment by
a court of competent jurisdiction to have resulted from such
Secured Party's gross negligence or willful misconduct.
Section 13. Continuing Guaranty; Assignments under the Credit
Agreement. This Guaranty is a continuing guaranty and shall
(a) remain in full force and effect until the later of the
payment in full in cash of the Guaranteed Obligations and all
other amounts payable under this Guaranty and the later of (i)
the Termination Date and (ii) the expiration or termination of
all Bank Hedge Agreements, (b) be binding upon each Guarantor,
its successors and assigns and (c) inure to the benefit of and be
enforceable by the Agent and the other Secured Parties and their
successors, transferees and assigns. Without limiting the
generality of the foregoing clause (c), any Secured Party may
assign or otherwise transfer all or any portion of its rights and
obligations under the Credit Agreement (including, without
limitation, all or any portion of its Commitments, the Advances
owing to it and the Note or Notes held by it) to any other
Person, and such other Person shall thereupon become vested with
all the benefits in respect thereof granted to such Secured Party
herein or otherwise, in each case as and to the extent provided
in Section 8.07 of the Credit Agreement. No Guarantor shall have
the right to assign its rights hereunder or any interest herein
without the prior written consent of the Secured Parties.
Section 14. Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which when so
executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery
of an executed counterpart of a signature page to this Agreement
by telecopier shall be effective as delivery of a manually
executed counterpart of this Agreement.
Section 15. Governing Law; Jurisdiction; Waiver of Jury Trial,
Etc. (a) This Guaranty shall be governed by, and construed in
accordance with, the laws of the State of New York.
(b)Each Guarantor hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of
any New York State court or federal court of the United States of
America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or
relating to this Guaranty or any of the other Loan Documents to
which it is or is to be a party, or for recognition or
enforcement of any judgment, and each Guarantor hereby
irrevocably and unconditionally agrees that all claims in respect
of any such action or proceeding may be heard and determined in
any such New York State court or, to the extent permitted by law,
in such federal court. Each Guarantor agrees that a final
judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Guaranty
shall affect any right that any party may otherwise have to bring
any action or proceeding relating to this Guaranty or any of the
other Loan Documents to which it is or is to be a party in the
courts of any jurisdiction.
(c)Each Guarantor irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or
relating to this Guaranty or any of the other Loan Documents to
which it is or is to be a party in any New York State or federal
court. Each Guarantor hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
(d)Each Guarantor hereby irrevocably waives all right to trial by
jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to any of
the Loan Documents, the transactions contemplated thereby or the
actions of the Agent or any other Secured Party in the
negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
CK HOLDING CORPORATION
By
Title:
CNK DISPOSITION CORP.
By
Title:
CROMPTON & ▇▇▇▇▇▇▇ COLORS
INCORPORATED
By
Title:
CROMPTON & ▇▇▇▇▇▇▇ OVERSEAS
CORPORATION
By
Title:
▇▇▇▇▇-STANDARD CORPORATION
By
Title:
INGREDIENT TECHNOLOGY CORPORATION
By
Title:
▇▇▇▇▇▇▇▇▇, INC.
By
Title:
▇▇▇▇▇▇▇▇▇ INTERNATIONAL COMPANY
By
Title:
KEM MANUFACTURING CORPORATION
By
Title:
LOKAR ENTERPRISES, INC.
By
Title:
TRACE CHEMICALS, INC.
By
Title:
UNIROYAL CHEMICAL BRAZIL HOLDING, INC.
By
Title:
UNIROYAL CHEMICAL COMPANY, INC.
By
Title:
UNIROYAL CHEMICAL CORPORATION
By
Title:
UNIROYAL CHEMICAL EXPORT LIMITED
By
Title:
UNIROYAL CHEMICAL INTERNATIONAL
COMPANY
By
Title:
UNIROYAL CHEMICAL LEASING
COMPANY, INC.
By
Title:
SCHEDULE I TO THE GUARANTY
PART A:
UNIROYAL GUARANTORS
▇▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇▇▇▇▇▇ International Company
Lokar Enterprises, Inc.
Trace Chemicals, Inc.
Uniroyal Chemical Brazil Holding, Inc.
Uniroyal Chemical Company, Inc.
Uniroyal Chemical Corporation
Uniroyal Chemical Export Limited
Uniroyal Chemical International Company
Uniroyal Chemical Leasing Company, Inc.
PART B:
CROMPTON GUARANTORS
CK Holding Corporation
CNK Disposition Corp.
Crompton & ▇▇▇▇▇▇▇ Colors Incorporated
Crompton & ▇▇▇▇▇▇▇ Overseas Corporation
▇▇▇▇▇-Standard Corporation
Ingredient Technology Corporation
Kem Manufacturing Corporation