GUARANTEE
Exhibit
99.1
THIS GUARANTEE (this “Guarantee”) is dated
as of April 1, 2009 and by The Dow Chemical Company, a Delaware corporation (the
“Guarantor”).
W I T N E S S E T H
:
WHEREAS, the Rohm and Xxxx Company (the
“Company”)
executed and delivered an Indenture, dated as of September 10, 2007, (as the
same may be amended or supplemented from time to time, the “Indenture”), between
the Company and The Bank of New York Mellon (formerly known as The Bank of New
York), a national banking association, as trustee (the “Trustee”), providing
for the issuance of the Company’s 5.60% Notes due 2013 (the “Notes”);
WHEREAS, on the date hereof, pursuant
to the terms of an Agreement and Plan of Merger, dated as of July 10, 2008, the
Company has become a wholly owned subsidiary of the Guarantor;
WHEREAS, the Guarantor is undertaking
to execute and deliver this Guarantee to provide a guarantee by the Guarantor of
the obligations of the Company under the Notes on the terms set forth
herein;
NOW THEREFORE, for good and valuable
consideration, the Guarantor hereby covenants and agrees for the equal and
ratable benefit of the Holders as follows:
ARTICLE
1
Section
1.1. Definitions. For
all purposes of this Guarantee, except as otherwise expressly provided or unless
the context otherwise requires, all capitalized terms defined herein and in
either of the Indentures shall have the meanings assigned to them
herein. All capitalized terms not defined herein shall have the
meanings assigned to them in the Indenture.
ARTICLE
2
Section
2.1. Unconditional
Guarantee. The Guarantor hereby unconditionally and
irrevocably guarantees, as principal obligor and not only as a surety, to the
Persons in whose name a Note is registered in the Security Register for the
Notes (the “Holders”) and to the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of the Indenture, the Company’s obligations under the Notes, that
the due and punctual payment of the principal of, sinking fund payment, if any,
premium, if any, or interest on the Notes, when and as the same shall become due
and payable, whether at maturity, upon redemption or otherwise, shall be duly
and punctually paid when due according to the terms of the Indenture and the
Notes.
In case
of the failure of the Company punctually to pay any such principal, sinking fund
payment, if any, premium, if any, or interest, the Guarantor hereby agrees, upon
the receipt of written notice from the Trustee or the Holders of such failure,
to cause any such payment to be made within five (5) days of such notice.
The
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of merger or bankruptcy of the Company, any
right to require a proceeding first
1
against
the Company, protest or notice (except pursuant to the immediately preceding
paragraph) with respect to the Notes, and all demands whatsoever, and covenants
that the Guarantee will not be discharged except by complete performance of the
obligations contained in the Notes and in the Guarantee.
The
Guarantor shall be subrogated to all rights of the Holders against the Company
in respect of any amounts paid by the Guarantor pursuant to the provisions of
this Guarantee; provided,
however, that the Guarantor shall not, without the consent of the Holders
of all of the Notes then outstanding, be entitled to enforce or to receive any
payments arising out of or based upon such right of subrogation until the
principal of and interest on all Notes shall have been paid in full or payment
thereof shall have been provided for in accordance with the
Indenture.
Notwithstanding
anything to the contrary contained herein, if following any payment of principal
or interest by the Company on the Notes to the Holders it is determined by a
final decision of a court of competent jurisdiction that such payment shall be
avoided by a trustee in bankruptcy (including any debtor-in-possession) as a
preference under 11 U.S.C. Section 547 and such payment is paid by any such
Holder to such trustee in bankruptcy, then and to the extent of such repayment,
the obligations of the Guarantor hereunder shall remain in full force and
effect.
The
Guarantor hereby certifies and warrants that all acts, conditions and things
required to be done and performed and to have happened prior to the creation and
issuance of this Guarantee and to constitute the same as the legal, valid and
binding obligation of the Guarantor enforceable in accordance with its terms,
have been done and performed and have happened in due and strict compliance with
applicable laws.
Section
2.2. Substitution
of the Guarantor. Another entity may be substituted for the
Guarantor if: (i) such entity (the “Substitute
Guarantor”) is a corporation, company, partnership, or trust organized
and existing under the laws of the United States of America, any state thereof
or the District of Columbia, (ii) such Substitute Guarantor expressly assumes
all of the obligations of the Guarantor under this Guarantee by an instrument
substantially similar to this Guarantee; and (iii) immediately after giving
effect to such substitution, the Notes are rated Investment Grade by one or both
of the Rating Agencies. Upon any such substitution pursuant to this
Section 2.2, the Guarantor shall be immediately and automatically discharged and
released from all obligations under this Guarantee without any further
action.
Section
2.3. Release of the
Guarantor. The Guarantor will be automatically discharged and released
from all obligations under this Guarantee without any further action required if
(i) the Notes have been paid in full or are no longer Outstanding, (ii) the
Guarantor is dissolved or liquidated or (iii) if the corporation that is then
the “Company” (for purposes of this clause (iii) only, as such term is defined
under the Indenture) is no longer a corporation of which more than 50% of the
total ordinary voting power of shares of capital stock entitled to vote in the
election of directors is owned, directly or indirectly, by the Guarantor.
ARTICLE
3
Section
3.1. Governing
Law. This Guarantee shall be governed by and construed in
accordance with the laws of the State of New York.
2
Section
3.2. Third Party
Beneficiary. This Guarantee shall be binding upon the Guarantor and
its successors and assigns and shall inure to the benefit of the Trustee and the
Holders as they exist from time to time. Other than the Trustee and
the Holders, no other Person shall have any rights under this Guarantee or be
deemed a third party beneficiary of this Guarantee.
Section
3.3. Severability. If
any provision in this Guarantee shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section
3.4. Compliance with
Law. This Guarantee may be amended without the consent of the
Trustee or the Holders to the extent necessary in order to comply with
applicable law.
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IN WITNESS WHEREOF, the undersigned has
caused this Guarantee to be duly executed as of the date first above
written.
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THE
DOW CHEMICAL COMPANY,
as
the Guarantor
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By:
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/s/ Xxxxxxxx Xxxx | |
| Name: Xxxxxxxx Xxxx | |||
| Title: Corporate Vice President and Treasurer | |||
