GUARANTY
Exhibit
10aad
This GUARANTY dated as of November
10, 2006 is
made by Xxxxxx XX, Inc., a Delaware corporation, Rogers Specialty Materials
Corporation, a Delaware corporation, Rogers Japan Inc., a Delaware corporation,
Rogers Southeast Asia, Inc., a Delaware corporation, Rogers Taiwan, Inc., a
Delaware corporation, Rogers Korea, Inc., a Delaware corporation, Rogers
Technologies Singapore, Inc., a Delaware corporation and Rogers Circuit
Materials Incorporated, a Delaware corporation (together, the "Guarantors") in
favor of Citizens Bank of Connecticut, a Connecticut stock savings bank (the
"Bank").
WHEREAS, the Borrower and the
Guarantors are members of a group of related corporations, the success of any
one of which is dependent in part on the success of the other members of such
group;
WHEREAS, the Guarantors expect
to receive direct and indirect benefits from the extensions of credit to the
Borrower by the Bank pursuant to the Multicurrency Revolving Credit Agreement
dated as of the date hereof among Xxxxxx Corporation, Rogers Technologies
(Barbados) SRL, Rogers (China) Investment Co., Ltd., Rogers N.V., Rogers
Technologies (Suzhou) Co., Ltd. (collectively the "Borrowers"), and the Bank
(the "Credit Agreement") (which benefits are hereby acknowledged);
WHEREAS, it is a condition
precedent to the obligation of the Bank to make any loans or otherwise extend
credit to the Borrowers under the Credit Agreement that the Guarantors execute
and deliver to the Bank this Guaranty; and
WHEREAS, the Guarantors wish
to guaranty the Borrowers' obligations to the Bank under or in respect of the
Credit Agreement as provided herein;
NOW, THEREFORE, the Guarantors
hereby jointly and severally agree with the Bank as follows:
1. Definitions.
The term “Obligations” or “Obligation” and all other capitalized terms used
herein without definition that are defined in the Credit Agreement shall have
the respective meanings provided therefor in the Credit Agreement.
2. Guaranty
of Payment and Performance. The Guarantors hereby jointly and severally
guarantee to the Bank the full and punctual payment when due (whether at stated
maturity, by required pre-payment, or by acceleration after the occurrence of an
Event of Default or when otherwise due), as well as the performance, of all of
the Obligations including all such which would become due but for the operation
of the automatic stay pursuant to §362(a) of the Federal Bankruptcy Code and the
operation of §§502(b) and 506(b) of the Federal Bankruptcy Code. This Guaranty
is an absolute, unconditional and continuing guaranty of the full and punctual
payment and performance of all of the Obligations and not of their
collectibility only and is in no way conditioned upon any requirement that the
Bank first attempt to collect any of the Obligations from the Borrowers or
resort to any collateral security or other means of obtaining payment. Should
the Borrowers default in the payment or performance of any of the Obligations,
the obligations of the Guarantors hereunder with respect to such Obligations in
default shall, upon demand by the Bank, become immediately due and payable to
the Bank, without further demand or notice of any nature, all of which are
expressly waived by the Guarantors. Payments by the Guarantors hereunder may be
required by the Bank on any number of occasions. All payments by the Guarantors
hereunder shall be made to the Bank, in the manner and at the place of payment
specified therefor in the Credit Agreement, for the account of the
Bank.
3. Guarantors’
Agreement to Pay Enforcement Costs, etc. The Guarantors further
jointly and severally agree, as principal obligors and not as guarantors only,
to pay to the Bank, on demand, all costs and expenses (including court costs and
reasonable legal expenses) reasonably incurred or expended by the Bank in
connection with the Obligations, this Guaranty and the enforcement thereof,
together with interest on amounts recoverable under this §3 from the time when
such amounts become due until payment, whether before or after judgment, at the
rate of interest for overdue principal set forth in the Credit Agreement, provided that if such
interest exceeds the maximum amount permitted to be paid under applicable law,
then such interest shall be reduced to such maximum permitted
amount.
4. Waivers
by Guarantors; Bank’s Freedom to Act. The Guarantors jointly and
severally agree that the Obligations will be paid and performed strictly in
accordance with their respective terms, 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 Bank with respect thereto. The Guarantors waive promptness,
diligences, presentment, demand, protest, notice of acceptance, notice of any
Obligations incurred and all other notices of any kind, all defenses which may
be available by virtue of any valuation, stay, moratorium law or other similar
law now or hereafter in effect, any right to require the marshalling of assets
of the Borrowers or any other entity or other person primarily or secondarily
liable with respect to any of the Obligations, and all suretyship defenses
generally. Without limiting the generality of the foregoing, the Guarantors
agree to the provisions of any instrument evidencing, securing or otherwise
executed in connection with any Obligation and agree that the obligations of the
Guarantors hereunder shall not be released or discharged, in whole or in part,
or otherwise affected by (i) the failure of the Bank to assert any claim or
demand or to enforce any right or remedy against the Borrowers or any other
entity or other person primarily or secondarily liable with respect to any of
the Obligations; (ii) any extensions, compromise, refinancing, consolidation or
renewals of any Obligation; (iii) any change in the time, place or manner of
payment of any of the Obligations or any rescissions, waivers, compromise.
refinancing, consolidation or other amendments or modifications of any of the
terms or provisions of the Credit Agreement, the Notes, the other Loan Documents
or any other agreement evidencing, securing or otherwise executed in connection
with any of the Obligations, (iv) the addition, substitution or release of any
entity or other person primarily or secondarily liable for any Obligation; (v)
the adequacy of any rights which the Bank may have against any collateral
security or other means of obtaining repayment of any of the Obligations; (vi)
the impairment of any collateral securing any of the Obligations, including
without limitation the failure to perfect or preserve any rights which the Bank
might have in such collateral security or the substitution, exchange, surrender,
release, loss or destruction of any such collateral security; or (vii) any other
act or omission which might in any manner or to any extent vary the risk of the
Guarantors or otherwise operate as a release or discharge of the Guarantors, all
of which may be done without notice to the Guarantors. To the fullest extent
permitted by law, the Guarantors hereby expressly waive any and all rights or
defenses arising by reason of (A) any “one action” or “anti-deficiency” law
which would otherwise prevent the Bank from bringing any action, including any
claim for a deficiency, or exercising any other right or remedy (including any
right of set-off), against the Guarantors before or after the Bank’s
commencement or completion of any foreclosure action, whether judicially, by
exercise of power of sale or otherwise, or (B) any other law which in any other
way would otherwise require any election of remedies by the Bank.
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5. Unenforceability
of Obligations Against Borrowers. If for any reason any Borrower
has no legal existence or is under no legal obligation to discharge any of the
Obligations, or if any of the Obligations have become irrecoverable from any
Borrower by reason of such Borrower’s insolvency, bankruptcy or reorganization
or by other operation of law or for any other reason, this Guaranty shall
nevertheless be binding on the Guarantors to the same extent as if each
Guarantor at all times had been the principal obligor on all such Obligations.
In the event that acceleration of the time for payment of any of the Obligations
is stayed upon the insolvency, bankruptcy or reorganization of any Borrower, or
for any other reason, all such amounts otherwise subject to acceleration under
the terms of the Credit Agreement, the Notes, the other Loan Documents or any
other agreement evidencing, securing or otherwise executed in connection with
any Obligation shall be immediately due and payable by the
Guarantors.
6. Subrogation:
Subordination.
6.1. Waiver of
Rights Against
Borrower. Until
the final payment and performance in full of all of the Obligations, the
Guarantors shall not exercise and hereby waive any rights against the Borrowers
arising as a result of payment by the Guarantors hereunder, by way of
subrogation, reimbursement, restitution, contribution or otherwise, and will not
prove any claim in competition with the Bank in respect of any payment hereunder
in any bankruptcy, insolvency or reorganization case or proceedings of any
nature; the Guarantors will not claim any setoff, recoupment or counterclaim
against any Borrower in respect of any liability of the Guarantors to such
Borrower; and the Guarantors waive any benefit of and any right to participate
in any collateral security which may be held by the Bank.
6.2. Subordination. The payment of any amounts
due with respect to any indebtedness of any Borrower for money borrowed or
credit received now or hereafter owed to the Guarantors is hereby subordinated
to the prior payment in full of all of the Obligations; provided that so long as no
Event of Default has occurred and is continuing, any amounts due to the
Guarantors from the Borrowers may continue to be paid when due. The Guarantors
agree that, after the occurrence of any Event of Default, the Guarantors will
not demand, xxx for or otherwise attempt to collect any such indebtedness of any
Borrower to the Guarantors until all of the Obligations shall have been paid in
full. If, notwithstanding the foregoing sentence, the Guarantors shall collect,
enforce or receive any amounts in respect of such indebtedness while any
Obligations are still outstanding, such amounts shall be collected, enforced and
received by the Guarantors as trustees for the Bank and be paid over to the
Bank, on account of the Obligations without affecting in any manner the
liability of the Guarantors under the other provisions of this
Guaranty.
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6.3. Provisions
Supplemental. The provisions of this §6 shall be supplemental to and not
in derogation of any rights and remedies of the Bank under any separate
subordination agreement which the Bank may at any time and from time to time
enter into with the Guarantors for the benefit of the Bank.
7. Setoff.
Regardless of the adequacy of any collateral security or other means of
obtaining payment of any of the Obligations, the Bank is hereby authorized at
any time and from time to time after the occurrence of an Event of Default,
without notice to the Guarantors (any such notice being expressly waived by the
Guarantors) and to the fullest extent permitted by law, to set off and apply
such deposits and other sums against the obligations of the Guarantors under
this Guaranty, whether or not the Bank shall have made any demand under this
Guaranty. The Bank shall provide notice to the applicable Guarantor promptly
after the exercise of any such right of setoff.
8. Further
Assurances. The Guarantors agree that they will from time to time, at the
written request of the Bank, do all such things and execute all such documents
as the Bank may consider reasonably necessary or desirable to give full effect
to this Guaranty and to perfect and preserve the rights and powers of the Bank
hereunder. The Guarantors acknowledge and confirm that the Guarantors have
established their own adequate means of obtaining from the Borrowers on a
continuing basis all information desired by the Guarantors concerning the
financial condition of the Borrowers and that the Guarantors will look to the
Borrowers and not to the Bank in order for the Guarantors to keep adequately
informed of changes in the Borrowers' financial condition.
9. Termination;
Reinstatement. This Guaranty shall remain in full force and effect until
the Bank is given written notice of the Guarantors’ intentions to discontinue
this Guaranty, notwithstanding any intermediate or temporary payment or
settlement of the whole or any part of the Obligations. No such notice shall be
effective unless received and acknowledged by an officer of the Bank at the
address of the Bank for notices set xxxxx xx §00 of the Credit Agreement. No
such notice shall affect any rights of the Bank hereunder, including without
limitation the rights set forth in §§4
and 6,
with respect to any Obligations incurred or accrued prior to the receipt of such
notice or any Obligations incurred or accrued pursuant to any contract or
commitment in existence prior to such receipt. This Guaranty shall continue to
be effective or be reinstated, notwithstanding any such notice, if at any time
any payment made or value received with respect to any Obligation is rescinded
or must otherwise be returned by the Bank upon the insolvency, bankruptcy or
reorganization of the Borrower, or otherwise, all as though such payment had not
been made or value received.
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10. Successors
and Assigns. This Guaranty shall be binding upon the Guarantors, their
successors and assigns, and shall inure to the benefit of the Bank and its
successors, transferees and assigns. Without limiting the generality of the
foregoing sentence, subject to and in accordance with §18 of the Credit
Agreement, the Bank may assign or otherwise transfer the Credit Agreement, the
Notes, the other Loan Documents or any other agreement or note held by it
evidencing, securing or otherwise executed in connection with the Obligations,
or sell participations in any interest therein, to any other entity or other
person, and such other entity or other person shall thereupon become vested, to
the extent set forth in the agreement evidencing such assignment, transfer or
participation, with all the rights in respect thereof granted to the Bank
herein. The Guarantors may not assign any of their obligations hereunder without
the prior written consent of the Bank.
11. Amendments
and Waivers. No amendment or waiver of any provision of this Guaranty nor
consent to any departure by the Guarantors therefrom shall be effective unless
the same shall be in writing and signed by the Bank. No failure on the part of
the Bank 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.
12. Notices.
All notices and other communications called for hereunder shall be made in
accordance with §19 of the Credit Agreement and shall be addressed as follows:
if to the Guarantors, at the addresses set forth beneath their signatures
hereto, and if to the Bank, at the address for notices to the Bank set xxxxx xx
§00 of the Credit Agreement, or at such address as either party may designate by
notice in writing to the other.
13. Governing
Law; Consent to Jurisdiction. THIS GUARANTY IS INTENDED TO TAKE
EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. The
Guarantors agree that any suit for the enforcement of this Guaranty may be
brought in the courts of the Commonwealth of Massachusetts or any federal court
sitting therein and consent to the
nonexclusive jurisdiction of such court and to service of process in any such
suit being made upon the Guarantors by mail at the address referred to in §12.
The Guarantors hereby waive any objection that they may now or hereafter have to
the venue of any such suit or any such court or that such suit was brought in an
inconvenient court.
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14. Waiver of
Jury Trial. THE
GUARANTORS HEREBY WAIVE THEIR RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION
OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS GUARANTY, ANY RIGHTS
OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF ANY OF SUCH RIGHTS OR
OBLIGATIONS. Except as prohibited by law, the Guarantors hereby waive
any rights which they may have to claim or recover in any litigation referred to
in the preceding sentence any special, exemplary, punitive or consequential
damages or any damages other than, or in addition to, actual damages. The
Guarantors (i) certify that neither the Bank nor any representative, agent or
attorney of the Bank has represented, expressly or otherwise, that the Bank
would not, in the event of litigation, seek to enforce the foregoing waivers and
(ii) acknowledge that, in entering into the Credit Agreement and the other Loan
Documents to which the Bank is a party, the Bank is relying upon, among other
things, the waivers and certifications contained in this §14.
15. Miscellaneous.
This Guaranty constitutes the entire agreement of the Guarantors with respect to
the matters set forth herein. The rights and remedies herein provided are
cumulative and not exclusive of any remedies provided by law or any other
agreement, and this Guaranty shall be in addition to any other guaranty of or
collateral security for any of the Obligations. The invalidity or
unenforceability of any one or more sections of this Guaranty shall not affect
the validity or enforceability of its remaining provisions. Captions are for the
ease of reference only and shall not affect the meaning of the relevant
provisions. The meanings of all defined terms used in this Guaranty shall be
equally applicable to the singular and plural forms of the terms
defined.
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IN WITNESS WHEREOF, the
Guarantors have caused this Guaranty to be executed and delivered as an
instrument under seal as of the date first written above.
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XXXXXX XX,
INC.
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By:
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/s/ Xxxxxx X. Xxxxxx | |
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Xxxxxx
X. Xxxxxx
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| President and Chief Executive Officer | |||
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By:
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/s/ Xxxxxx X. Xxxxxxxx | |
| Xxxxxx X. Xxxxxxxx | |||
| Vice President-Finance and Chief Financial Officer | |||
| Address: | Xxx Xxxxxxxxxx Xxxxx | ||
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X.X.
Xxx 000
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| Xxxxxx, XX 00000-0000 | |||
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Telecopier
No.: (000) 000-0000
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| ROGERS SPECIALTY MATERIALS CORPORATION | |||
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By:
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/s/ Xxxxxx X. Xxxxxx | |
| Xxxxxx X. Xxxxxx | |||
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President
and Chief Executive Officer
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By:
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/s/ Xxxxxx X. Xxxxxxxx | |
| Xxxxxx X. Xxxxxxxx | |||
| Vice President-Finance and Chief Financial Officer | |||
| Address: | Xxx Xxxxxxxxxx Xxxxx | ||
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X.X.
Xxx 000
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| Xxxxxx, XX 00000-0000 | |||
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Telecopier
No.: (000) 000-0000
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ROGERS
JAPAN, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx | |
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Xxxxxx X.
Xxxxxx
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President and Chief
Executive Officer
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By:
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/s/ Xxxxxx X. Xxxxxxxx | |
| Xxxxxx X. Xxxxxxxx | |||
| Vice President-Finance and Chief Financial Officer | |||
| Address: | Xxx Xxxxxxxxxx Xxxxx | ||
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X.X.
Xxx 000
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| Xxxxxx, XX 00000-0000 | |||
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Telecopier
No.: (000) 000-0000
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ROGERS
SOUTHEAST ASIA, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx | |
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Xxxxxx X.
Xxxxxx
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President and Chief
Executive Officer
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By:
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/s/ Xxxxxx X. Xxxxxxxx | |
| Xxxxxx X. Xxxxxxxx | |||
| Vice President-Finance and Chief Financial Officer | |||
| Address: | Xxx Xxxxxxxxxx Xxxxx | ||
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X.X.
Xxx 000
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| Xxxxxx, XX 00000-0000 | |||
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Telecopier
No.: (000) 000-0000
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ROGERS
TAIWAN, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx | |
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Xxxxxx X.
Xxxxxx
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President and Chief
Executive Officer
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By:
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/s/ Xxxxxx X. Xxxxxxxx | |
| Xxxxxx X. Xxxxxxxx | |||
| Vice President-Finance and Chief Financial Officer | |||
| Address: | Xxx Xxxxxxxxxx Xxxxx | ||
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X.X.
Xxx 000
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| Xxxxxx, XX 00000-0000 | |||
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Telecopier
No.: (000) 000-0000
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ROGERS
KOREA, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx | |
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Xxxxxx X.
Xxxxxx
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President and Chief
Executive Officer
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By:
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/s/ Xxxxxx X. Xxxxxxxx | |
| Xxxxxx X. Xxxxxxxx | |||
| Vice President-Finance and Chief Financial Officer | |||
| Address: | Xxx Xxxxxxxxxx Xxxxx | ||
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X.X.
Xxx 000
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| Xxxxxx, XX 00000-0000 | |||
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Telecopier
No.: (000) 000-0000
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ROGERS
TECHNOLOGIES SINGAPORE,
INC.
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By:
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/s/ Xxxxxx X. Xxxxxx | |
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Xxxxxx X.
Xxxxxx
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President and Chief
Executive Officer
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By:
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/s/ Xxxxxx X. Xxxxxxxx | |
| Xxxxxx X. Xxxxxxxx | |||
| Vice President-Finance and Chief Financial Officer | |||
| Address: | Xxx Xxxxxxxxxx Xxxxx | ||
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X.X.
Xxx 000
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| Xxxxxx, XX 00000-0000 | |||
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Telecopier
No.: (000) 000-0000
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ROGERS
CIRCUIT MATERIALS INCORPORATED
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By:
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/s/ Xxxxxx X. Xxxxxx | |
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Xxxxxx X.
Xxxxxx
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President and Chief
Executive Officer
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By:
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/s/ Xxxxxx X. Xxxxxxxx | |
| Xxxxxx X. Xxxxxxxx | |||
| Vice President-Finance and Chief Financial Officer | |||
| Address: | Xxx Xxxxxxxxxx Xxxxx | ||
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X.X.
Xxx 000
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| Xxxxxx, XX 00000-0000 | |||
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Telecopier
No.: (000) 000-0000
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