GUARANTY
EXECUTION VERSION
Dated as of November 10, 2010
As amended and restated on December 4, 2013
From
THE US GUARANTORS NAMED HEREIN
and
THE ADDITIONAL US GUARANTORS REFERRED TO HEREIN
as US Guarantors
in favor of
THE SECURED PARTIES REFERRED TO HEREIN
TABLE OF CONTENTS
| Section | Page |
| Section 1. Guaranty; Limitation of Liability | 3 |
| Section 2. Guaranty Absolute | 5 |
| Section 3. Waivers and Acknowledgments | 6 |
| Section 4. Subrogation | 7 |
| Section 5. Payments Free and Clear of Taxes, Etc | 8 |
| Section 6. Representations and Warranties | 8 |
| Section 7. Covenants | 8 |
| Section 8. Amendments, Guaranty Supplements, Etc. | 9 |
| Section 9. Notices, Etc | 9 |
| Section 10. No Waiver; Remedies | 9 |
| Section 11. Right of Set-off | 10 |
| Section 12. Indemnification | 10 |
| Section 13. Subordination | 11 |
| Section 14. Continuing Guaranty; Assignments under the Credit Agreement | 12 |
| Section 15. Rights and Remedies | 13 |
| Section 16. Execution in Counterparts | 13 |
| Section 17. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. | 13 |
| Section 18. Amendment and Restatement | 14 |
Exhibit A - Guaranty Supplement
| 2 | Chemtura (Revolving Facility) US Guaranty |
GUARANTY dated as of November 10, 2010 (the “Existing Guaranty”, and as amended and restated on December 4, 2013 and as further amended, amended and restated, supplemented or otherwise modified from time to time, this “Guaranty”) made by the US Borrowers (as defined below) and each of the other Persons listed on the signature pages hereof under the caption “US Guarantors” and the Additional US Guarantors (as defined in Section 8(b)) (the US Borrowers, such Persons so listed and the Additional US Guarantors being, collectively, the “US Guarantors” and, individually, each a “US Guarantor”) in favor of the US Secured Parties (as defined in the Credit Agreement referred to below).
PRELIMINARY STATEMENT. Chemtura Corporation, a Delaware corporation (the “Company”) and the other US Borrowers referred to therein (together with the Company, the “US Borrowers”), are parties to a Senior Secured Revolving Facilities Credit Agreement, dated as of November 10, 2010 (as amended and restated on December 4, 2013 and as further amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; the capitalized terms defined therein or the Intercreditor Agreement (as defined in the Credit Agreement) and not otherwise defined herein being used herein as therein defined) among the US Borrowers, Bank of America, N.A., as US Administrative Agent, the other agents named therein, the Lender Parties party thereto from time to time and the other parties thereto. Each US Guarantor will derive substantial direct and indirect benefits from the transactions contemplated by the Credit Agreement and the other Loan Documents, and 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 Cash Management Banks into Secured Cash Management Agreements from time to time, that each US 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 Cash Management Banks to enter into Secured Cash Management Agreements from time to time, each US Guarantor, jointly and severally with each other US Guarantor, hereby agrees as follows:
Section 1. Guaranty; Limitation of Liability. (a) Each US Guarantor hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all US Obligations of each other US Loan Party or Subsidiary of a US Loan Party now or hereafter existing under or in respect of the Loan Documents and US Secured Cash Management Agreements (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing US Obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or otherwise (such US Obligations being the “Guaranteed Obligations”), and agrees to pay any and all reasonable and documented out-of-pocket expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by the US Administrative Agent or any other US Secured Party in enforcing any rights under this Guaranty. Without limiting the generality of the foregoing, each US Guarantor’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any other US Loan Party or Subsidiary of a US Loan Party to the US Administrative Agent or any other US Secured Party under or in respect of the Loan Documents and US Secured Cash Management Agreements but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such other US Loan Party or Subsidiary.
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(b) Each US Guarantor, and by its acceptance of this Guaranty, the US Administrative Agent and each other US Secured Party, hereby confirms that it is the intention of all such Persons that this Guaranty and the Obligations of each US Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law (as hereinafter defined), the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to this Guaranty and the Obligations of each US Guarantor hereunder. To effectuate the foregoing intention, the US Administrative Agent, the other US Secured Parties and the US Guarantors hereby irrevocably agree that the Obligations of each US Guarantor under this Guaranty at any time shall be limited to the maximum amount as will result in the Obligations of such US Guarantor under this Guaranty not constituting a fraudulent transfer or conveyance. For purposes hereof, “Bankruptcy Law” means any proceeding of the type referred to in Section 6.01(l) of the Credit Agreement or Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtors.
(c) Each US Guarantor hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made to any US Secured Party under this Guaranty or any other guaranty, such US Guarantor will contribute, to the maximum extent permitted by law, such amounts to each other US Guarantor and each other guarantor so as to maximize the aggregate amount paid to the US Secured Parties under or in respect of the Loan Documents and US Secured Cash Management Agreements. If any US Guarantor (other than the US Borrowers) makes a payment under this Guaranty of any Obligations under the Loan Documents or US Secured Cash Management Agreements (any such payment by a US Guarantor other than the US Borrowers, a “US Guarantor Payment”) that, taking into account all other US Guarantor Payments previously or concurrently made by any other US Guarantor (other than the US Borrowers), exceeds the amount that such US Guarantor would otherwise have paid if each US Guarantor had paid the aggregate Obligations under the Loan Documents or US Secured Cash Management Agreements satisfied by such US Guarantor Payments in the same proportion that such US Guarantor's Allocable Amount bore to the total Allocable Amounts of all US Guarantors (other than the US Borrowers), then (subject to compliance with the first sentence of this section 1(c)) such US Guarantor shall be entitled to receive contribution and indemnification payments from, and to be reimbursed by, each other US Guarantor (other than the US Borrowers) for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such US Guarantor Payment. The “Allocable Amount” for any US Guarantor shall be the maximum amount that could then be recovered from such US Guarantor under this Guaranty without rendering such payment voidable under Section 548 of the Bankruptcy Code or under any applicable state fraudulent transfer or conveyance act, or similar statute or common law.
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Section 2. Guaranty Absolute. Each US Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Loan Documents and US Secured Cash Management Agreements, 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 US Administrative Agent or any other US Secured Party with respect thereto. The Obligations of each US Guarantor under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other Obligations of any other US Loan Party under or in respect of the Loan Documents and US Secured Cash Management Agreements, and a separate action or actions may be brought and prosecuted against each US Guarantor to enforce this Guaranty, irrespective of whether any action is brought against any US Borrower or any other US Loan Party or whether any US Borrower or any other US Loan Party is joined in any such action or actions. The liability of each US Guarantor under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and each US Guarantor hereby irrevocably waives (to the extent permitted by law) any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan Document or US Secured Cash Management Agreement 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 US Loan Party under or in respect of the Loan Documents and US Secured Cash Management Agreements, or any other amendment or waiver of or any consent to departure from any Loan Document or US Secured Cash Management Agreement, including, without limitation, any increase in the Guaranteed Obligations resulting from the extension of additional credit to any US Loan Party or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any Collateral or any other 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 any other collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any Collateral or any other collateral for all or any of the Guaranteed Obligations or any other Obligations of any US Loan Party under the Loan Documents and US Secured Cash Management Agreements, or any other assets of any US Loan Party or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate structure or existence of any US Loan Party or any of its Subsidiaries;
(f) any failure of the US Administrative Agent or any other US Secured Party to disclose to any US Loan Party any information relating to the business condition (financial or otherwise), operations, properties or prospects of any other US Loan Party now or hereafter known to the US Administrative Agent or such other US Secured Party, as the case may be (each US Guarantor waiving any duty on the part of the US Secured Parties to disclose such information);
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(g) the failure of any other Person to execute or deliver this Guaranty, any Guaranty Supplement (as hereinafter defined) or any other guaranty or agreement or the release or reduction of liability of any US Guarantor or other guarantor or 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 US Administrative Agent or any other US Secured Party) that might otherwise constitute a defense available to, or a discharge of, any US Loan Party or any other guarantor or surety, in each case other than the payment in full in cash of the Guaranteed Obligations.
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 the US Administrative Agent or any other US Secured Party or any other Person upon the insolvency, bankruptcy or reorganization of any US Borrower or any other US Loan Party or otherwise, all as though such payment had not been made.
Section 3. Waivers and Acknowledgments. (a) Each US Guarantor hereby unconditionally and irrevocably waives (to the extent permitted by law) promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that the US Administrative Agent or any other US Secured Party protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against any US Loan Party or any other Person or any Collateral.
(b) Each US Guarantor hereby unconditionally and irrevocably waives (to the extent permitted by law) 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 US Guarantor hereby unconditionally and irrevocably waives (to the extent permitted by law) (i) any defense arising by reason of any claim or defense based upon an election of remedies by any US Secured Party that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of such US Guarantor or other rights of such US Guarantor to proceed against any of the other US Loan Parties, any other guarantor or any other Person or any Collateral and (ii) any defense based on any right of set-off or counterclaim against or in respect of the Obligations of such US Guarantor hereunder.
(d) Each US Guarantor acknowledges that the US Administrative Agent may, without notice to or demand upon such US Guarantor and without affecting the liability of such US Guarantor under this Guaranty, foreclose under any mortgage by nonjudicial sale, and each US Guarantor hereby waives any defense to the recovery by the US Administrative Agent and the other US Secured Parties against such US Guarantor of any deficiency after such nonjudicial sale and any defense or benefits that may be afforded by applicable law.
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(e) Each US Guarantor hereby unconditionally and irrevocably waives (to the extent permitted by law) any duty on the part of any US Secured Party to disclose to such US Guarantor any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other US Loan Party or any of its Subsidiaries now or hereafter known by such US Secured Party.
(f) Each US Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by the Loan Documents and US Secured Cash Management Agreements, and that the waivers set forth in Section 2 and this Section 3 are knowingly made in contemplation of such benefits.
Section 4. Subrogation. Each US Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against any US Borrower, any other US Loan Party or any other insider guarantor that arise from the existence, payment, performance or enforcement of such US Guarantor’s Obligations under or in respect of this Guaranty, or any other Loan Document or US Secured Cash Management Agreement, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the US Administrative Agent or any other US Secured Party against any US Borrower, any other US Loan Party 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 any US Borrower, any other US Loan Party 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 Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash, all US Letters of Credit and all US Secured Cash Management Agreements shall have expired or been terminated (or all US L/C Obligations shall have been Cash Collateralized and all obligations under US Secured Cash Management Agreements shall have been cash collateralized in a manner reasonably satisfactory to each applicable US Cash Management Bank) and all US Revolving Credit Commitments shall have expired or been terminated (including the expiration or termination of the US Borrowers’ rights under Section 2.19 of the Credit Agreement). If any amount shall be paid to any US Guarantor in violation of the immediately preceding sentence at any time prior to the latest of (a) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty, (b) the latest date of expiration or termination of all US Letters of Credit and all US Secured Cash Management Agreements (or the date on which all US L/C Obligations shall have been Cash Collateralized and all obligations under US Secured Cash Management Agreements shall have been cash collateralized in a manner reasonably satisfactory to each applicable US Cash Management Bank), and (c) the expiration or termination of all US Revolving Credit Commitments (including the expiration or termination of the US Borrowers’ rights under Section 2.19 of the Credit Agreement), such amount shall be received and held in trust for the benefit of the US Administrative Agent and the other US Secured Parties, shall be segregated from other property and funds of such US Guarantor and shall forthwith be paid or delivered to the US Administrative Agent in the same form as so received (with any necessary endorsement or assignment) 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 and US Secured Cash Management Agreements, or to be held as Collateral for any Guaranteed Obligations or other amounts payable under this Guaranty thereafter arising. If (i) any US Guarantor shall make payment to any US 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 (other than contingent indemnification obligations under which a claim has not yet been asserted) shall have been paid in full in cash, (iii) all US Letters of Credit and all US Secured Cash Management Agreements shall have expired or been terminated (or all US L/C Obligations shall have been Cash Collateralized and all obligations under US Secured Cash Management Agreements shall have been cash collateralized in a manner reasonably satisfactory to each applicable US Cash Management Bank), and (iv) all US Revolving Credit Commitments shall have expired or been terminated (including the expiration or termination of the US Borrowers’ rights under Section 2.19 of the Credit Agreement), the US Administrative Agent and the other US Secured Parties will, at such US Guarantor’s request and expense, execute and deliver to such US Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such US Guarantor of an interest in the Guaranteed Obligations resulting from such payment made by such US Guarantor pursuant to this Guaranty.
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Section 5. Payments Free and Clear of Taxes, Etc. Any and all payments made by any US Guarantor under or in respect of this Guaranty, any other Loan Document or any US Secured Cash Management Agreement shall be made free and clear of and without deduction or withholding for any Indemnified Taxes or Other Taxes on the same terms and to the same extent that payments by the US Borrowers are required to be made free and clear of Indemnified Taxes and Other Taxes pursuant to the terms of Section 2.13 of the Credit Agreement.
Section 6. Representations and Warranties. Each US Guarantor hereby makes each representation and warranty made in the Loan Documents and US Secured Cash Management Agreements by any US Borrower with respect to such US Guarantor and each US Guarantor hereby further represents and warrants as follows:
(a) There are no conditions precedent to the effectiveness of this Guaranty that have not been satisfied or waived.
(b) Such US Guarantor has, independently and without reliance upon any US 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 each other Loan Document and US Secured Cash Management Agreement to which it is or is to be a party, and such US Guarantor has established adequate means of obtaining from each other US Loan Party on a continuing basis information pertaining to, and is now and on a continuing basis will be completely familiar with, the business, condition (financial or otherwise), operations, performance, properties and prospects of such other US Loan Party.
Section 7. Covenants. Each US Guarantor covenants and agrees that, so long as any part of the Guaranteed Obligations shall remain unpaid, any US Letter of Credit shall be outstanding, any US Lender Party shall have any Commitment or any US Secured Cash Management Agreement shall be in effect, such US Guarantor will perform and observe, and cause each of its Restricted Subsidiaries to perform and observe, all of the terms, covenants and agreements applicable to such Restricted Subsidiaries set forth in the Loan Documents and US Secured Cash Management Agreements, as the case may be, on its or their part to be performed or observed or that any US Borrower has agreed to cause such US Guarantor or such Restricted Subsidiaries to perform or observe.
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Section 8. Amendments, Guaranty Supplements, Etc. (a) No amendment or waiver of any provision of this Guaranty and no consent to any departure by any US Guarantor therefrom shall in any event be effective unless the same shall be in writing and signed by the US Administrative Agent and the Required Lenders (or by the US Administrative Agent with the consent of the Required Lenders) and, in the case of an amendment, the US Guarantors, 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 the US Administrative Agent and all of the Lenders (other than any Lender that is, at such time, a Defaulting Lender), subject to the next succeeding sentence, release any US Guarantor hereunder or otherwise limit any US Guarantor’s liability with respect to the Obligations owing to the US Secured Parties under or in respect of the Loan Documents, if such release or limitation is in respect of all or substantially all of the aggregate value of the Guarantees to the Lender Parties, or make any other change that is of the type that requires the consent of all Lenders under Section 10.01 of the Credit Agreement. Upon the sale of a US Guarantor to the extent permitted in accordance with the terms of the Loan Documents and US Secured Cash Management Agreements, such US Guarantor shall be automatically released from this Guaranty.
(b) Upon the execution and delivery by any Person of a guaranty supplement in substantially the form of Exhibit A hereto (each, a “Guaranty Supplement”), (i) such Person shall be referred to as an “Additional US Guarantor” and shall become and be a US Guarantor hereunder, and each reference in this Guaranty to a “US Guarantor” shall also mean and be a reference to such Additional US Guarantor, and each reference in any other Loan Document or US Secured Cash Management Agreement to a “US Guarantor” shall also mean and be a reference to such Additional US Guarantor, and (ii) each reference herein to “this Guaranty”, “hereunder”, “hereof” or words of like import referring to this Guaranty, and each reference in any other Loan Document or US Secured Cash Management Agreement to the “Guaranty”, “thereunder”, “thereof” or words of like import referring to this Guaranty, shall mean and be a reference to this Guaranty as supplemented by such Guaranty Supplement.
Section 9. Notices, Etc. All notices and other communications provided for hereunder shall be given in accordance with the provisions set out in Section 10.02 of the Credit Agreement, mutatis mutandis.
Section 10. No Waiver; Remedies. No failure on the part of any US 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.
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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 US Administrative Agent to declare the Advances due and payable pursuant to the provisions of said Section 6.01, each Agent and each US Lender Party and each of their 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 Agent, such US Lender Party or such Affiliate to or for the credit or the account of any US Guarantor against any and all of the US Obligations of such US Guarantor now or hereafter existing under the Loan Documents and US Secured Cash Management Agreements, irrespective of whether such Agent or such US Lender shall have made any demand under this Guaranty or any other Loan Document or US Secured Cash Management Agreement, and although such US Obligations may be unmatured. Each Agent and each US Lender Party agrees promptly to notify such US 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 Agent and each US Lender Party and their respective Affiliates under this Section are in addition to other rights and remedies (including, without limitation, other rights of set-off) that such Agent, such US Lender Party and their respective Affiliates may have.
Section 12. Indemnification. (a) Without limitation on any other US Obligations of any US Guarantor or remedies of the US Secured Parties under this Guaranty, each US Guarantor shall, to the fullest extent permitted by law, indemnify and hold harmless each US Secured Party and each of their Affiliates and their respective officers, directors, employees, agents and advisors (each, an “Indemnified Party”) from and against, and shall pay within ten (10) Business Days of written demand, any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded against any Indemnified Party in connection with or as a result of any failure of any Guaranteed Obligations to be the legal, valid and binding obligations of any US Loan Party enforceable against such US Loan Party in accordance with their terms. This Section 12(a) shall not apply with respect to Taxes, other than Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
(b) Each US Guarantor hereby also agrees that none of the Indemnified Parties shall have any liability (whether direct or indirect, in contract, tort or otherwise) to any of the US Guarantors or any of their respective Affiliates or any of their respective security holders, creditors, officers, directors, employees, agents and advisors arising out of, related to or in connection with any aspect of the transactions contemplated hereby, except to the extent such liability is determined in a final, non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnified Party’s gross negligence or willful misconduct. In no event, however, shall any Indemnified Party be liable on any theory of liability for any special, indirect, consequential or punitive damages (including without limitation, any loss of profits, business or anticipated savings). Notwithstanding any other provision of this Guaranty, no Indemnified Party shall be liable for any damages arising from the use by others of information or other materials obtained through electronic telecommunications or other information transmission systems, except to the extent such damages are determined in a final, non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnified Party’s gross negligence or willful misconduct.
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(c) Without prejudice to the survival of any of the other agreements of any US Guarantor under this Guaranty or any of the other Loan Documents or US Secured Cash Management Agreements, the agreements and obligations of each US Guarantor contained in Section 1(a) (with respect to enforcement expenses), the last sentence of Section 2, Section 5 and this Section 12 shall survive the payment in full of the Guaranteed Obligations and all of the other amounts payable under this Guaranty.
Section 13. Subordination. Each US Guarantor hereby subordinates any and all Debt owed to such US Guarantor by each other US Loan Party (the “Subordinated Obligations”) to the Guaranteed Obligations to the extent and in the manner hereinafter set forth in this Section 13:
(a) Prohibited Payments, Etc. After the occurrence and during the continuance of any Event of Default (including the commencement and continuation of any proceeding under any Bankruptcy Law relating to any other US Loan Party), provided that either (1) a notice of acceleration of the maturity of the Advances has been delivered to the Borrowers in accordance with Section 6.01(ii) of the Credit Agreement, or (2) a demand for payment has been made under this Guaranty and, in the case of this clause (2), amounts that are due remain unpaid, no US Guarantor shall (unless the US Administrative Agent otherwise agrees) demand, accept or take any action to collect any payment on account of the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding under any Bankruptcy Law relating to any other US Loan Party, each US Guarantor agrees that the US Secured Parties shall be entitled to receive payment in full in cash of all Guaranteed Obligations (including all interest and expenses accruing after the commencement of a proceeding under any Bankruptcy Law, whether or not constituting an allowed claim in such proceeding (“Post Petition Interest”)) before such US Guarantor receives payment of any Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance of any Event of Default (including the commencement and continuation of any proceeding under any Bankruptcy Law relating to any other US Loan Party), provided that either (1) a notice of acceleration of the maturity of the Advances has been delivered to the Borrowers in accordance with Section 6.01(ii) of the Credit Agreement, or (2) a demand for payment has been made under this Guaranty and, in the case of this clause (2), amounts that are due remain unpaid, each US Guarantor shall, if the US Administrative Agent so requests, collect, enforce and receive payments on account of the Subordinated Obligations as trustee for the US Secured Parties and deliver such payments to the US Administrative Agent on account of the Guaranteed Obligations (including all Post Petition Interest), together with any necessary endorsements or other instruments of transfer, but without reducing or affecting in any manner the liability of such US Guarantor under the other provisions of this Guaranty.
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(d) US Administrative Agent Authorization. After the occurrence and during the continuance of any Event of Default (including the commencement and continuation of any proceeding under any Bankruptcy Law relating to any other US Loan Party), provided that either (1) a notice of acceleration of the maturity of the Advances has been delivered to the Borrowers in accordance with Section 6.01(ii) of the Credit Agreement, or (2) a demand for payment has been made under this Guaranty and, in the case of this clause (2), amounts that are due remain unpaid, the US Administrative Agent is authorized and empowered (but without any obligation to so do), in its discretion, (i) in the name of each US Guarantor, to collect and enforce, and to submit claims in respect of, Subordinated Obligations and to apply any amounts received thereon to the Guaranteed Obligations (including any and all Post Petition Interest), and (ii) to pay any amounts received on such obligations to the US Administrative Agent for application to the Guaranteed Obligations (including any and all Post Petition Interest).
Section 14. Continuing Guaranty; Assignments under the Credit Agreement. This Guaranty is a continuing guaranty and shall (a) remain in full force and effect until the latest of (i) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty, (ii) the latest date of expiration or termination of all US Letters of Credit and all US Secured Cash Management Agreements (or the date on which all US L/C Obligations shall have been Cash Collateralized and all obligations under US Secured Cash Management Agreements shall have been cash collateralized in a manner reasonably satisfactory to each applicable US Cash Management Bank), and (iii) the expiration or termination of all US Revolving Credit Commitments (including the expiration or termination of the US Borrowers’ rights under Section 2.19 of the Credit Agreement), (b) be binding upon each US Guarantor and its successors and assigns and (c) inure to the benefit of and be enforceable by the US Administrative Agent and the other US Secured Parties and their respective successors, transferees and assigns. Without limiting the generality of clause (c) of the immediately preceding sentence, any US 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 US Revolving Credit Commitments, the US Revolving Credit Advances owing to it and the Notes held by it in respect of the US Revolving Facility) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such US Secured Party herein or otherwise, in each case as and to the extent provided in Section 10.07 of the Credit Agreement. No US Guarantor shall have the right to assign its rights hereunder or any interest herein without the prior written consent of the US Secured Parties.
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Section 15. Rights and Remedies. At any time an Event of Default shall have occurred and be continuing, the US Administrative Agent and the US Lender Parties may, in their discretion, pursue such rights and remedies as they deem appropriate, including realization upon Collateral by judicial foreclosure or non judicial sale or enforcement, without affecting any rights and remedies under any Loan Document. If, in taking any action in connection with the exercise of any rights or remedies, the US Administrative Agent or any US Lender Party shall forfeit any other rights or remedies, including the right to enter a deficiency judgment against any US Guarantor or any other Person, whether because of any applicable laws pertaining to “election of remedies” or otherwise, each US Guarantor consents to such action and waives any claim based upon it, even if the action may result in loss of any rights of subrogation that such US Guarantor might otherwise have had. Any election of remedies that results in denial or impairment of the right of the US Administrative Agent or any US Lender Party to seek a deficiency judgment against any US Loan Party shall not impair each US Guarantor’s obligation to pay the full amount of the US Obligations under the Loan Documents. Each US Guarantor waives all rights and defenses arising out of an election of remedies, such as nonjudicial foreclosure with respect to any security for the US Obligations under the Loan Documents, even though that election of remedies destroys such US Guarantor’s rights of subrogation against any other Person. The US Administrative Agent may bid all or a portion of the US Obligations under the Loan Documents at any foreclosure or trustee’s sale or at any private sale, and the amount of such bid need not be paid by the US Administrative Agent but shall be credited against the US Obligations under the Loan Documents. The amount of the successful bid at any such sale, whether the US Administrative Agent or any other Person is the successful bidder, shall be conclusively deemed to be the fair market value of the Collateral acquired pursuant to such sale, and, after application of the proceeds of such sale to payment of the US Obligations under the Loan Documents, the difference between such bid amount and the remaining balance of the US Obligations under the Loan Documents shall be conclusively deemed to be the amount of the US Obligations under the Loan Documents guaranteed under this Guaranty, notwithstanding that any present or future law or court decision may have the effect of reducing the amount of any deficiency claim to which the US Administrative Agent or any US Lender Party might otherwise be entitled but for such bidding at any such sale.
Section 16. Execution in Counterparts. This Guaranty and each amendment, waiver and consent with respect hereto may be executed in any number of counterparts and by different parties thereto in separate 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 Guaranty by telecopier or by electronic transmission (e.g. “.pdf” or “.tif”) shall be effective as delivery of an original executed counterpart of this Guaranty.
Section 17. 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 US Guarantor hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive 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 or US Secured Cash Management Agreements to which it is or is to be a party, or for recognition or enforcement of any judgment, and each US 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 US 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.
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(c) Each US 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 or US Secured Cash Management Agreements to which it is or is to be a party in any New York State or federal court. Each US Guarantor hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or proceeding in any such court.
(d) EACH US 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 OR US SECURED CASH MANAGEMENT AGREEMENTS, THE ADVANCES OR THE ACTIONS OF ANY SECURED PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
Section 18. Amendment and Restatement. This Guaranty amends and restates the Existing Guaranty in its entirety.
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IN WITNESS WHEREOF, each US Guarantor has caused this Guaranty to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.
| CHEMTURA CORPORATION | ||
| By | ||
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: Executive Vice President and Chief Financial Officer | ||
| BIO-LAB, INC. | ||
| By | ||
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Vice President | ||
| CROMPTON COLORS INCORPORATED | ||
| By | ||
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Vice President | ||
| GLCC LAUREL, LLC | ||
| By | ||
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Vice President | ||
| GREAT LAKES CHEMICAL CORPORATION | ||
| By | ||
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Vice President | ||
| [Signature Page] | Chemtura (Revolving Facility) US Guaranty |
| HOMECARE LABS, INC. | ||
| By | ||
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Vice President | ||
| RECREATIONAL WATER PRODUCTS, INC. | ||
| By | ||
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Vice President | ||
| [Signature Page] | Chemtura (Revolving Facility) US Guaranty |
Exhibit A
To The
Guaranty
FORM OF GUARANTY SUPPLEMENT
_________ __, ____
Bank of America, N.A., as US Administrative Agent
[Address of US Administrative Agent]
Attention: ____________
Senior Secured Revolving Facilities Credit Agreement dated as of November 10, 2010 (as amended and restated on December 4, 2013 and as further amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) among Chemtura Corporation, a Delaware corporation (the “Company”) and the other US Borrowers referred to therein (together with the Company, the “US Borrowers”), Bank of America, N.A., as US Administrative Agent, the other agents named therein, the Lender Parties party thereto from time to time and the other parties thereto
Ladies and Gentlemen:
Reference is made to the above-captioned Credit Agreement and to the Guaranty referred to therein (such Guaranty, as in effect on the date hereof and as it may hereafter be amended, supplemented or otherwise modified from time to time, together with this Guaranty Supplement, being the “Guaranty”). The capitalized terms defined in the Guaranty or in the Credit Agreement and not otherwise defined herein are used herein as therein defined.
Section 1. Guaranty; Limitation of Liability. (a) The undersigned hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all US Obligations of each other US Loan Party or Subsidiary of a US Loan Party now or hereafter existing under or in respect of the Loan Documents and US Secured Cash Management Agreements (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing US Obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, premium, fees, indemnities, contract causes of action, costs, expenses or otherwise (such US Obligations being the “Guaranteed Obligations”), and agrees to pay any and all reasonable and documented out-of-pocket expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by the US Administrative Agent or any other US Secured Party in enforcing any rights under the Guaranty or this Guaranty Supplement. Without limiting the generality of the foregoing, the undersigned’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any other US Loan Party or Subsidiary of a US Loan Party to the US Administrative Agent or any other US Secured Party under or in respect of the Loan Documents and US Secured Cash Management Agreements but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such other US Loan Party or Subsidiary.
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(b) The undersigned, and by its acceptance of this Guaranty Supplement, the US Administrative Agent and each other US Secured Party, hereby confirms that it is the intention of all such Persons that this Guaranty Supplement, the Guaranty and the Obligations of the undersigned hereunder and thereunder 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 foreign, federal or state law to the extent applicable to this Guaranty Supplement, the Guaranty and the Obligations of the undersigned hereunder and thereunder. To effectuate the foregoing intention, the US Administrative Agent, the other US Secured Parties and the undersigned hereby irrevocably agree that the Obligations of the undersigned under this Guaranty Supplement and the Guaranty at any time shall be limited to the maximum amount as will result in the Obligations of the undersigned under this Guaranty Supplement and the Guaranty not constituting a fraudulent transfer or conveyance.
(c) The undersigned hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made to any US Secured Party under this Guaranty Supplement, the Guaranty or any other guaranty, the undersigned will contribute, to the maximum extent permitted by applicable law, such amounts to each other US Guarantor and each other guarantor so as to maximize the aggregate amount paid to the US Secured Parties under or in respect of the Loan Documents and US Secured Cash Management Agreements.
Section 2. Obligations Under the Guaranty. The undersigned hereby agrees, as of the date first above written, to be bound as a US Guarantor by all of the terms and conditions of the Guaranty to the same extent as each of the other US Guarantors thereunder. The undersigned further agrees, as of the date first above written, that each reference in this Guaranty Supplement to an “Additional US Guarantor” or a “US Guarantor” shall also mean and be a reference to the undersigned, and each reference in any other Loan Document or US Secured Cash Management Agreement to a “US Guarantor” or a “US Loan Party” shall also mean and be a reference to the undersigned.
Section 3. Representations and Warranties. The undersigned hereby makes each representation and warranty set forth in Section 6 of the Guaranty with respect to itself to the same extent as each other US Guarantor made such representation with respect to itself.
Section 4. Electronic Delivery. Delivery of an executed counterpart of a signature page to this Guaranty Supplement by telecopier or by electronic transmission (e.g. “.pdf” or “.tif”) shall be effective as delivery of an original executed counterpart of this Guaranty Supplement.
Section 5. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. (a) This Guaranty Supplement shall be governed by, and construed in accordance with, the laws of the State of New York.
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(b) The undersigned hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York State court or any 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 Supplement, the Guaranty or any of the other Loan Documents or US Secured Cash Management Agreements to which it is or is to be a party, or for recognition or enforcement of any judgment, and the undersigned 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. The undersigned 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.
(c) The undersigned 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 Supplement, the Guaranty or any of the other Loan Documents or US Secured Cash Management Agreements to which it is or is to be a party in any New York State or federal court. The undersigned hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or proceeding in any such court.
(d) THE UNDERSIGNED 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 OR US SECURED CASH MANAGEMENT AGREEMENTS, THE ADVANCES OR THE ACTIONS OF ANY SECURED PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
| Very truly yours, | ||
| [NAME OF ADDITIONAL US GUARANTOR] | ||
| By | ||
| Name: | ||
| Title: | ||
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