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EXHIBIT 4.3(b)
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY (as amended, supplemented, amended and
restated or otherwise modified from time to time, this "Guaranty"), dated as of
June 17, 1997, is made by each of the signatories hereto and each other Person
which may from time to time hereafter become a party hereto pursuant to Section
5.5 (each, individually, an "Additional Subsidiary Guarantor", and,
collectively, the "Additional Subsidiary Guarantors", and, together with each
of the signatories hereto, each, individually, a "Subsidiary Guarantor", and,
collectively, the "Subsidiary Guarantors"), in favor of BANK OF AMERICA
ILLINOIS, as administrative agent (the "Administrative Agent") for each of the
Secured Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to a Term Loan Agreement, dated as of June 17, 1997
(as amended, supplemented, amended and restated or otherwise modified from time
to time, the "Term Loan Agreement"), among Pioneer Americas Acquisition Corp.,
a Delaware corporation (the "Borrower"), the various financial institutions as
are, or may from time to time become, parties thereto (each, individually, a
"Lender", and collectively, the "Lenders"), DLJ Capital Funding, Inc., as
Syndication Agent for the Lenders, Salomon Brothers Holding Company Inc, as
Documentation Agent for the Lenders and Bank of America Illinois, as
Administrative Agent for the Lenders, the Lenders have extended commitments to
make Term Loans to the Borrower;
WHEREAS, as a condition precedent to the making of the Term Loans
under the Term Loan Agreement, each Subsidiary Guarantor is required to execute
and deliver this Guaranty;
WHEREAS, each Subsidiary Guarantor has duly authorized the execution,
delivery and performance of this Guaranty; and
WHEREAS, it is in the best interests of each Subsidiary Guarantor to
execute this Guaranty inasmuch as each Subsidiary Guarantor will derive
substantial direct and indirect benefits from the making of Term Loans to the
Borrower by the Lenders pursuant to the Term Loan Agreement;
NOW THEREFORE, for good and valuable consideration the receipt of
which is hereby acknowledged, and in order to induce the Lenders to make the
Term Loans to the Borrower pursuant to the Term Loan Agreement, each Subsidiary
Guarantor agrees, for the benefit of each Secured Party, as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Additional Subsidiary Guarantor" and "Additional Subsidiary
Guarantors" are defined in the preamble.
"Administrative Agent" is defined in the preamble.
"Borrower" is defined in the first recital.
"Guaranteed Obligations" is defined in clause (a) of Section 2.1.
"Guaranty" is defined in the preamble.
"Lender" and "Lenders" are defined in the first recital.
"PAI" means Pioneer Americas, Inc., a Delaware corporation and direct
Wholly-Owned Restricted Subsidiary of the Borrower, and any successor thereto.
"PCAC" means Pioneer Chlor Alkali Company, Inc., a Delaware
corporation and direct Wholly-Owned Restricted Subsidiary of the Borrower, and
any successor thereto.
"Secured Parties" means, collectively, the Administrative Agent, the
Lenders and each of their respective successors, transferees and assigns.
"Subsidiary Guarantor" and "Subsidiary Guarantors" are defined in the
preamble.
"Term Loan Agreement" is defined in the first recital.
SECTION 1.2. Term Loan Agreement Definitions. Unless otherwise
defined herein or the context otherwise requires, terms used in this Guaranty,
including its preamble and recitals, have the meanings provided in the Term
Loan Agreement.
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ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1. Guaranty. Each Subsidiary Guarantor hereby absolutely,
unconditionally and irrevocably
(a) guarantees the full and punctual payment when due,
whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, of all Obligations of the Borrower
and each other Obligor, now or hereafter existing, whether for
principal, interest, fees, expenses or otherwise (including all such
amounts which would become due but for the operation of the automatic
stay under Section 362(a) of the United States Bankruptcy Code, 11
U.S.C. Section 362(a), and the operation of Sections 502(b) and 506(b)
of the United States Bankruptcy Code, 11 U.S.C. Section 502(b) and
Section 506(b)) (the "Guaranteed Obligations"), and
(b) indemnifies and holds harmless each Secured Party and
each holder of a Term Note for any and all costs and expenses
(including reasonable attorneys' fees and expenses) incurred by such
Secured Party or such holder, as the case may be, in enforcing any
rights under this Guaranty;
provided, however, that each Subsidiary Guarantor shall be liable under this
Guaranty for the maximum amount of such liability that can be hereby incurred
without rendering this Guaranty, as it relates to such Subsidiary Guarantor,
voidable under applicable law relating to fraudulent conveyance or fraudulent
transfer, and not for any greater amount. This Guaranty constitutes a guaranty
of payment when due and not of collection, and each Subsidiary Guarantor
specifically agrees that it shall not be necessary or required that any Secured
Party or any holder of any Term Note exercise any right, assert any claim or
demand or enforce any remedy whatsoever against the Borrower or any other
Obligor (or any other Person) before or as a condition to the obligations of
such Subsidiary Guarantor hereunder.
SECTION 2.2. Acceleration of Guaranty. Each Subsidiary Guarantor
agrees that, in the event of any Default of the nature set forth in clause (a)
or (b) of Section 8.1.9 of the Term Loan Agreement, and if such event shall
occur at a time when any of the Guaranteed Obligations may not then be due and
payable, such Subsidiary Guarantor will pay to the Lenders forthwith the full
amount which would be payable hereunder by such Subsidiary Guarantor if all
such Guaranteed Obligations were then due and payable.
SECTION 2.3. Guaranty Absolute, etc. This Guaranty shall in all
respects be a continuing, absolute, unconditional and irrevocable guaranty of
payment, and shall remain in full force and effect until all Guaranteed
Obligations have been paid in full in cash, all obligations of each Subsidiary
Guarantor hereunder shall have been paid in full in cash and all Term Loan
Commitments shall have terminated. Each Subsidiary Guarantor guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms
of the Term Loan Agreement, the
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Term Notes and each other Loan Document under which they arise, regardless of
any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of any Secured Party or any holder of
any Term Note with respect thereto. The liability of each Subsidiary Guarantor
under this Guaranty shall be absolute, unconditional and irrevocable
irrespective of:
(a) any lack of validity, legality or enforceability of the
Term Loan Agreement, any Term Note or any other Loan Document;
(b) the failure of any Secured Party or any holder of any
Term Note
(i) to assert any claim or demand or to enforce any
right or remedy against the Borrower, any other Obligor or any
other Person (including any other guarantor (including any
Subsidiary Guarantor)) under the provisions of the Term Loan
Agreement, any Term Note, any other Loan Document or
otherwise, or
(ii) to exercise any right or remedy against any
other guarantor (including any Subsidiary Guarantor) of, or
collateral securing, any Obligations of the Borrower or any
other Obligor;
(c) 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 extension, compromise or renewal of any Guaranteed Obligation;
(d) any reduction, limitation, impairment or termination of
any Guaranteed Obligations for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be
subject to (and each Subsidiary Guarantor hereby waives any right to
or claim of) any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise, unenforceability of, or any
other event or occurrence affecting, any Guaranteed Obligations or
otherwise;
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the terms of
the Term Loan Agreement, any Term Note or any other Loan Document;
(f) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver or
release or addition of, or consent to departure from, any other
guaranty, held by any Secured Party or any holder of any Term Note
securing any of the Guaranteed Obligations;
(g) the occurrence of any change in the laws, rules,
regulations or ordinances of any jurisdiction by any present or future
action of any governmental authority or court amending, varying,
reducing or otherwise affecting, or purporting to amend, vary, reduce
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or otherwise affect, any of the Guaranteed Obligations and the
obligations of any Subsidiary Guarantor hereunder;
(h) the application by the Administrative Agent or the
Lenders of all monies at any time and from time to time received from
the Borrower, any Subsidiary Guarantor or any other Person on account
of any Indebtedness owing by the Borrower or any Subsidiary Guarantor
to the Administrative Agent or the Lenders, in such manner as the
Administrative Agent or the Lenders deems best and the changing of
such application in whole or in part and at any time or from time to
time, or any manner of application of collateral, or proceeds thereof,
to all or any of the Guaranteed Obligations;
(i) any change in the name, business, capital structure or
governing instrument of the Borrower or any Subsidiary Guarantor or
any refinancing or restructuring of any of the Guaranteed Obligations;
(j) the sale of the Borrower's or any Subsidiary Guarantor's
business or any part thereof;
(k) subject to Section 7.2.5 of the Term Loan Agreement, any
merger or consolidation, arrangement or reorganization of the
Borrower, any Subsidiary Guarantor, any Person resulting from the
merger or consolidation of the Borrower or any Subsidiary Guarantor
with any other Person or any other successor to such Person or merged
or consolidated Person or any other change in the corporate existence,
structure or ownership of the Borrower or any Subsidiary Guarantor; or
(l) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the
Borrower, any other Obligor, any surety or any guarantor.
SECTION 2.4. Reinstatement, etc. Each Subsidiary Guarantor agrees
that this Guaranty shall continue to be effective or be reinstated, as the case
may be, if at any time any payment (in whole or in part) of any of the
Guaranteed Obligations is rescinded or must otherwise be restored by any
Secured Party or any holder of any Term Note, upon the insolvency, bankruptcy
or reorganization of the Borrower or any other Obligor or otherwise, all as
though such payment had not been made.
SECTION 2.5. Waiver, etc. Each Subsidiary Guarantor hereby waives
promptness, diligence, notice of acceptance and any other notice with respect
to any of the Guaranteed Obligations and of this Guaranty and any requirement
that the Administrative Agent, any other Secured Party or any holder of any
Term Note protect, secure, perfect or insure any security interest or Lien, or
any property subject thereto, or exhaust any right or take any action against
the Borrower, any other Obligor or any other Person (including any other
guarantor) or entity or any collateral securing the Guaranteed Obligations.
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SECTION 2.6. Postponement of Subrogation, etc. Each Subsidiary
Guarantor hereby agrees that it will not exercise any rights which it may
acquire by way of rights of subrogation under this Guaranty, by any payment
made hereunder or otherwise, until the prior payment in full in cash of all
Guaranteed Obligations, until the prior payment in full in cash of all
obligations of such Subsidiary Guarantor hereunder and the termination of all
Term Loan Commitments. Any amount paid to any Subsidiary Guarantor on account
of any such subrogation rights prior to the payment in full in cash of all
Guaranteed Obligations shall be held in trust for the benefit of the Secured
Parties and each holder of a Term Note and shall immediately be paid to the
Administrative Agent for the benefit of the Secured Parties and each holder of
a Term Note and credited and applied against the Guaranteed Obligations,
whether matured or unmatured, in accordance with the terms of the Term Loan
Agreement; provided, however, that if
(a) such Subsidiary Guarantor has made payment to the Secured
Parties and each holder of a Term Note of all or any part of the
Guaranteed Obligations, and
(b) all Guaranteed Obligations have been paid in full in
cash, all obligations of such Subsidiary Guarantor hereunder shall
have been paid in full in cash and all Term Loan Commitments have been
permanently terminated,
each Secured Party and each holder of a Term Note agrees that, at such
Subsidiary Guarantor's request, the Administrative Agent, on behalf of the
Secured Parties and the holders of the Term Notes, will execute and deliver to
such Subsidiary Guarantor appropriate documents (without recourse and without
representation or warranty) necessary to evidence the transfer by subrogation
to such Subsidiary Guarantor of an interest in the Guaranteed Obligations
resulting from such payment by such Subsidiary Guarantor. In furtherance of
the foregoing, for so long as any Guaranteed Obligations, obligations of any
Guarantor hereunder or Term Loan Commitments remain outstanding, each
Subsidiary Guarantor shall refrain from taking any action or commencing any
proceeding against the Borrower or any other Obligor (or any of their
respective successors or assigns, whether in connection with a bankruptcy
proceeding or otherwise) to recover any amount in respect of any payment made
under this Guaranty to any Secured Party or any holder of a Term Note;
provided, however, that a Subsidiary Guarantor may file appropriate proofs of
claim in any bankruptcy or insolvency proceeding of the Borrower or any other
Subsidiary Guarantor; provided further, however, that such Subsidiary Guarantor
shall not accept any payment or distribution of cash, securities or other
property in respect of any such proof of claim unless and until each of the
conditions referred to in clause (b) of the proviso to the preceding sentence
shall have occurred and, in the event such Subsidiary Guarantor shall in any
case receive or be entitled to receive any such payment or distribution in
contravention of this proviso, such payment or distribution shall be received
and held in trust for, and/or shall be promptly paid over or delivered to, the
Secured Parties to the extent necessary to pay the Guaranteed Obligations and
other obligations referred to in such clause (b) in full.
SECTION 2.7. Right of Contribution. Each Subsidiary Guarantor hereby
agrees that to the extent that a Subsidiary Guarantor shall have paid more than
its proportionate share of any
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payment made hereunder, such Subsidiary Guarantor shall be entitled to seek and
receive contribution from and against any other Subsidiary Guarantor hereunder
who has not paid its proportionate share of such payment. Each Subsidiary
Guarantor's right of contribution shall be subject to the terms and conditions
of Section 2.6. The provisions of this Section 2.7 shall in no respect limit
the obligations and liabilities of any Subsidiary Guarantor to the
Administrative Agent and each other Secured Party, and each Subsidiary
Guarantor shall remain liable to the Administrative Agent and each other
Secured Party for the full amount guaranteed by such Subsidiary Guarantor
hereunder.
SECTION 2.8. Successors, Transferees and Assigns; Transfers of Term
Notes, etc. This Guaranty shall:
(a) be binding upon each Subsidiary Guarantor, and its
successors, transferees and assigns; and
(b) inure to the benefit of and be enforceable by the
Administrative Agent and each other Secured Party.
Without limiting the generality of clause (b), any Lender may assign or
otherwise transfer (in whole or in part) any Term Note or Term Loan held by it
to any other Person in accordance with the provisions of the Term Loan
Agreement, and such other Person shall thereupon become vested with all rights
and benefits in respect thereof granted to such Lender under any Loan Document
(including this Guaranty) or otherwise, subject, however, to any contrary
provisions in such assignment or transfer, and to the provisions of Section
10.11 and Article IX of the Term Loan Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. Each Subsidiary
Guarantor hereby represents and warrants for itself unto each Secured Party as
to all matters contained in Article VI of the Term Loan Agreement and this
Article III, in each case insofar as applicable to such Subsidiary Guarantor or
such Subsidiary Guarantor's properties, together with all related definitions
and ancillary provisions, all of which are hereby incorporated into this
Article III as though specifically set forth herein.
SECTION 3.2. Organization, etc. Each Subsidiary Guarantor and such
Subsidiary Guarantor's Subsidiaries is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
respective incorporation. Each Subsidiary Guarantor and such Subsidiary
Guarantor's Subsidiaries is in good standing and is duly qualified to do
business in each jurisdiction where, because of the nature of its activities or
properties, such qualification
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is required, except for those states in which its failure to qualify to do
business would not be reasonably likely to have a Material Adverse Effect.
SECTION 3.3. Due Authorization, Non-Contravention, etc. Each
Subsidiary Guarantor is duly authorized to execute and deliver this Guaranty
and each other Loan Document to be executed by it and to perform its
obligations under this Guaranty and each other Loan Document to be executed by
it and is and will continue to be duly authorized to perform its obligations
thereunder. The execution, delivery and performance by each Subsidiary
Guarantor of this Guaranty and each other Loan Document to which it is a party
do not and will not require any consent or approval of any governmental agency
or authority.
SECTION 3.4. No Conflicts. The execution, delivery and performance
by each Subsidiary Guarantor of this Guaranty and each other Loan Document to
which it is a party do not and will not conflict with (i) any provision of law,
(ii) the Certificate or Articles of Incorporation, as applicable, or bylaws, of
such Subsidiary Guarantor, (iii) any agreement binding upon which conflict is
reasonably likely to have a Material Adverse Effect or (iv) any court or
administrative order or decree applicable to such Subsidiary Guarantor which
conflict is reasonably likely to have a Material Adverse Effect, and do not and
will not require, or result in, the creation or imposition of any Lien on any
asset of such Subsidiary Guarantor, except to the extent created pursuant to
any Loan Document.
SECTION 3.5. Validity and Binding Effect. This Guaranty and each
other Loan Document, when duly executed and delivered, will be legal, valid and
binding obligations of each Subsidiary Guarantor party thereto, as applicable,
enforceable against such Subsidiary Guarantor in accordance with their
respective terms.
SECTION 3.6. Investment Company Act Representation. No Subsidiary
Guarantor or any of its Subsidiaries is an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
SECTION 3.7. Public Utility Holding Company Act Representation. No
Subsidiary Guarantor or any of its Subsidiaries is a "holding company" or a
"subsidiary company" of a "holding company" or an "affiliate" of a "holding
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
ARTICLE IV
COVENANTS, ETC.
SECTION 4.1. Affirmative Covenants. Each Subsidiary Guarantor
covenants and agrees that, until all Term Loan Commitments have terminated, all
Guaranteed Obligations have been paid in full in cash and all obligations of
such Subsidiary Guarantor hereunder shall have
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been paid in full in cash, such Subsidiary Guarantor will perform, comply with
and be bound by all the agreements, covenants and obligations contained in the
Term Loan Agreement applicable to such Subsidiary Guarantor or such Subsidiary
Guarantor's properties. Each such agreement, covenant and obligation contained
in the Term Loan Agreement and all related definitions and ancillary provisions
are hereby incorporated into this Guaranty as though specifically set forth
herein.
SECTION 4.2. Concerning the Collateral and the Loan Documents. (a)
In order to secure the due and punctual payment of the Guaranteed Obligations,
including principal of, premium (if any) and interest (including interest on
overdue principal) on the Term Loans, when and as the same shall become due and
payable, whether on the scheduled payment date therefor, at maturity, by
acceleration or otherwise, and performance of all other obligations of the
Borrower to the Agents and the Lenders under the Term Loan Agreement and each
other Loan Document and all obligations of each Subsidiary Guarantor under this
Guaranty and each other Loan Document, the Borrower, the Subsidiary Guarantors
and the other Obligors have entered into each of the applicable Security
Documents (including, without limitation, this Guaranty) to which each is a
party.
(b) PCAC and PAI shall perform at their sole cost and expense any and
all acts and execute any and all documents (including, without limitation, the
execution, amendment or supplementation of any financing statement and
continuation statement or other statement) for filing under the provisions of
the UCC and the rules and regulations thereunder, or any other statute, rule or
regulation of any applicable federal, state or local jurisdiction, including
any filings in local real estate land record offices, which are necessary or
advisable and shall do such other acts and execute such other documents as may
be required under any of the Security Documents, from time to time, in order to
grant and maintain valid and perfected Liens on the Collateral in favor of the
Collateral Agents in the priorities purported to be created by the Security
Documents, subject only to Liens permitted under the Security Documents to be
senior or pari passu to the Liens of the Collateral Agents, and to fully
preserve and protect the rights of the Agents and the Lenders under the Term
Loan Agreement and the other Loan Documents. PCAC and PAI shall pay and
satisfy promptly all mortgage and financing and continuation statement
recording and/or filing fees, charges and taxes relating to this Term Loan
Agreement, the Security Documents and the other Loan Documents, any amendments
thereto and any other instruments of further assurance.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Loan Document. This Guaranty is a Loan Document
executed pursuant to the Term Loan Agreement and shall (unless otherwise
expressly indicated herein) be construed, administered and applied in
accordance with the terms and provisions thereof.
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SECTION 5.2. Binding on Successors, Transferees and Assigns;
Assignment. In addition to, and not in limitation of, Section 2.8, this
Guaranty shall be binding upon each Subsidiary Guarantor and its successors,
transferees and assigns and shall inure to the benefit of and be enforceable by
each Secured Party and each holder of a Term Note and their respective
successors, transferees and assigns (to the fullest extent provided pursuant to
Section 2.8); provided, however, that no Subsidiary Guarantor may assign any of
its obligations hereunder without the prior written consent of all Lenders.
SECTION 5.3. Amendments, etc. No amendment to or waiver of any
provision of this Guaranty, nor consent to any departure by any Subsidiary
Guarantor herefrom, shall in any event be effective unless the same shall be in
writing and signed by the Administrative Agent (on behalf of the Lenders or the
Required Lenders, as the case may be) and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 5.4. Notices. All notices and other communications provided
for hereunder shall be in writing and mailed or telecopied or delivered, if to
a Subsidiary Guarantor, to such Subsidiary Guarantor in care of the Borrower at
the address of the Borrower specified in the Term Loan Agreement, and, if to
the Administrative Agent, to the Administrative Agent at the address of the
Administrative Agent specified in the Term Loan Agreement, or as to any party,
at such other address as shall be designated by such party in a written notice
to the Agent or the Subsidiary Guarantors (in care of the Borrower), as the
case may be, complying as to delivery with the terms of this Section. All such
notices and other communications, if mailed and properly addressed with postage
prepaid or if properly addressed and sent by pre-paid courier service, shall be
deemed given when received; any such notice or communication, if transmitted by
facsimile, shall be deemed given when electronic confirmation thereof is
received by the transmitter.
SECTION 5.5. Additional Subsidiary Guarantors. Upon the execution
and delivery by any other Person of an instrument in the form of Annex I
hereto, such Person shall become a "Subsidiary Guarantor" hereunder with the
same force and effect as if originally named as a Subsidiary Guarantor herein.
The execution and delivery of any such instrument shall not require the consent
of any other Subsidiary Guarantor hereunder. The rights and obligations of
each Subsidiary Guarantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Subsidiary Guarantor as a party to this
Guaranty.
SECTION 5.6. Guaranty Is in Addition to Other Security. This
Guaranty shall be in addition to and not in substitution for any other
guarantees or other security which the Administrative Agent may now or
hereafter hold in respect of the Guaranteed Obligations owing to the
Administrative Agent or the Lenders by the Borrower and (except as may be
required by law) the Administrative Agent shall be under no obligation to
marshal in favor of each of the Subsidiary Guarantors any other guarantees or
other security or any monies or other assets which
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the Administrative Agent may be entitled to receive or upon which the
Administrative Agent or the Lenders may have a claim.
SECTION 5.7. No Waiver; Remedies. In addition to, and not in
limitation of, Section 2.3 and Section 2.5, no failure on the part of any
Secured Party or any holder of a Term Note 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 5.8. Captions. Section captions used in this Guaranty are
for convenience of reference only, and shall not affect the construction of
this Guaranty.
SECTION 5.9. Setoff. In addition to, and not in limitation of, any
rights of any Secured Party or any holder of a Term Note under applicable law,
each Secured Party and each such holder shall, upon the occurrence of any
Default described in any of clause (a) or (b) of Section 8.1.9 of the Term Loan
Agreement or with the consent of the Required Lenders, any Event of Default,
have the right to appropriate and apply to the payment of the obligations of
any Subsidiary Guarantor owing to it hereunder, whether or not then due, and
such Subsidiary Guarantor hereby grants to each Secured Party and each such
holder a continuing security interest in, any and all balances, credits,
deposits, accounts or moneys of such Subsidiary Guarantor then or thereafter
maintained with such Secured Party, or such holder or any agent or bailee for
such Secured Party or such holder; provided, however, that any such
appropriation and application shall be subject to the provisions of Section 4.8
of the Term Loan Agreement.
SECTION 5.10. Severability. Wherever possible each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SECTION 5.11. Governing Law, Entire Agreement, etc. THIS GUARANTY
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
SECTION 5.12. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE SECURED PARTIES
OR THE SUBSIDIARY GUARANTORS SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE
COURTS OF THE STATE OF NEW YORK, NEW YORK COUNTY OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT
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AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE
AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR
OTHER PROPERTY MAY BE FOUND. EACH SUBSIDIARY GUARANTOR HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK,
NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE
AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. SUCH SERVICE MAY BE MADE BY MAILING OR
DELIVERING A COPY OF SUCH PROCESS TO SUCH SUBSIDIARY GUARANTOR IN CARE OF THE
PROCESS AGENT AT THE PROCESS AGENT'S ABOVE ADDRESS, AND SUCH SUBSIDIARY
GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND DIRECTS THE PROCESS AGENT TO ACCEPT
SUCH SERVICE ON ITS BEHALF. AS AN ALTERNATIVE METHOD OF SERVICE, EACH
SUBSIDIARY GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE
STATE OF NEW YORK. EACH SUBSIDIARY GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE
OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN
ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY SUBSIDIARY
GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, SUCH SUBSIDIARY GUARANTOR HEREBY IRREVOCABLY WAIVES
SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS GUARANTY AND THE OTHER
LOAN DOCUMENTS.
SECTION 5.13. Waiver of Jury Trial. EACH SUBSIDIARY GUARANTOR HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF THE SECURED PARTIES OR ANY SUBSIDIARY GUARANTOR. EACH SUBSIDIARY
GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION (AND EACH OTHER
PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH SUCH SUBSIDIARY GUARANTOR IS A
PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE SECURED
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PARTIES ENTERING INTO THE TERM LOAN AGREEMENT AND EACH SUCH OTHER LOAN
DOCUMENT.
SECTION 5.14. Counterparts. This Guaranty may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Guaranty to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
PIONEER AMERICAS, INC.
By /s/ PHILIP J. ABLOVE
--------------------------------------
Name: Philip J. Ablove
Title: Vice President and Chief
Financial Officer
PIONEER CHLOR ALKALI COMPANY, INC.
By /s/ PHILIP J. ABLOVE
--------------------------------------
Name: Philip J. Ablove
Title: Vice President and Chief
Financial Officer
ALL-PURE CHEMICAL CO.
By /s/ PHILIP J. ABLOVE
--------------------------------------
Name: Philip J. Ablove
Title: Vice President and Chief
Financial Officer
IMPERIAL WEST CHEMICAL CO.
By /s/ PHILIP J. ABLOVE
--------------------------------------
Name: Philip J. Ablove
Title: Vice President and Chief
Financial Officer
BLACK MOUNTAIN POWER COMPANY
By /s/ PHILIP J. ABLOVE
--------------------------------------
Name: Philip J. Ablove
Title: Vice President and Chief
Financial Officer
15
ALL PURE CHEMICAL NORTHWEST, INC.
By /s/ PHILIP J. ABLOVE
--------------------------------------
Name: Philip J. Ablove
Title: Vice President and Chief
Financial Officer
PIONEER CHLOR ALKALI INTERNATIONAL, INC.
By /s/ PHILIP J. ABLOVE
--------------------------------------
Name: Philip J. Ablove
Title: Vice President
G.O.W. CORPORATION
By /s/ PHILIP J. ABLOVE
--------------------------------------
Name: Philip J. Ablove
Title: Vice President and Chief
Financial Officer
PIONEER (EAST), INC.
By /s/ KENT R. STEPHENSON
--------------------------------------
Name: Kent R. Stephenson
Title: President
T.C. HOLDINGS, INC.
By /s/ PHILIP J. ABLOVE
--------------------------------------
Name: Philip J. Ablove
Title: Vice President and Chief
Financial Officer
T.C. PRODUCTS, INC.
By /s/ PHILIP J. ABLOVE
--------------------------------------
Name: Philip J. Ablove
Title: Vice President and Chief
Financial Officer
16
ANNEX I to
the Subsidiary Guaranty
SUPPLEMENT NO. ___ dated as of ________________, 19__
(this "Supplement"), to the Subsidiary Guaranty, dated as of
June 17, 1997 (together with all amendments, supplements,
restatements and other modifications, if any, from time to
time thereafter made thereto, the "Guaranty"), among the
initial signatories thereto and each other Person which from
time to time thereafter became a party thereto pursuant to
Section 5.5 thereof (each, individually, a "Subsidiary
Guarantor", and, collectively, the "Subsidiary Guarantors"),
in favor of the Secured Parties (as defined in the Guaranty).
W I T N E S S E T H:
WHEREAS, capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Guaranty; and
WHEREAS, the Guaranty provides that additional parties may become
Subsidiary Guarantors under the Guaranty by execution and delivery of an
instrument in the form of this Supplement; and
WHEREAS, pursuant to the provisions of Section 5.5 of the Guaranty,
the undersigned is becoming an Additional Subsidiary Guarantor under the
Guaranty; and
WHEREAS, the undersigned desires to become a Subsidiary Guarantor
under the Guaranty in order to induce the Secured Parties to continue to make
Term Loans under the Term Loan Agreement as consideration therefor;
NOW, THEREFORE, the undersigned agrees, for the benefit of each
Secured Party, as follows:
SECTION 1. In accordance with the Guaranty, the undersigned by its
signature below becomes a Subsidiary Guarantor under the Guaranty with the same
force and effect as if it were an original signatory thereto as a Subsidiary
Guarantor and the undersigned hereby (a) agrees to all the terms and provisions
of the Guaranty applicable to it as a Subsidiary Guarantor thereunder and (b)
represents and warrants that the representations and warranties made by it as a
Subsidiary Guarantor thereunder are true and correct on and as of the date
hereof. In furtherance of the foregoing, each reference to a "Subsidiary
Guarantor" or an "Additional Subsidiary Guarantor" in the Guaranty shall be
deemed to include the undersigned.
17
SECTION 2. The undersigned hereby represents and warrants that this
Supplement has been duly authorized, executed and delivered by the undersigned
and constitutes a legal, valid and binding obligation of the undersigned,
enforceable against it in accordance with its terms.
SECTION 3. Except as expressly supplemented hereby, the Guaranty
shall remain in full force and effect in accordance with its terms.
SECTION 4. In the event any one or more of the provisions contained
in this Supplement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein and in the Guaranty shall not in any way be affected or
impaired.
SECTION 5. Without limiting the provisions of the Term Loan Agreement
(or any other Loan Document, including the Guaranty), the undersigned agrees to
reimburse the Administrative Agent for its reasonable out-of-pocket expenses in
connection with this Supplement, including reasonable attorneys' fees and
expenses of the Administrative Agent.
SECTION 6. THIS SUPPLEMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. WITHOUT LIMITING THE EFFECT ON SECTION 5.12 OF THE
GUARANTY, ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS SUPPLEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE SECURED PARTIES OR THE UNDERSIGNED SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE
UNDERSIGNED HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET
FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH SUCH LITIGATION. SUCH SERVICE MAY BE MADE BY MAILING OR
DELIVERING A COPY OF SUCH PROCESS TO THE UNDERSIGNED IN CARE OF THE PROCESS
AGENT AT THE PROCESS AGENT'S ABOVE ADDRESS, AND THE UNDERSIGNED HEREBY
IRREVOCABLY AUTHORIZES AND DIRECTS THE PROCESS AGENT TO ACCEPT SUCH SERVICE ON
ITS BEHALF. AS AN ALTERNATIVE METHOD OF SERVICE, THE UNDERSIGNED FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF
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PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR
WITHOUT THE STATE OF NEW YORK. THE UNDERSIGNED HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE
UNDERSIGNED HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY
IN RESPECT OF ITS OBLIGATIONS UNDER THIS SUPPLEMENT AND THE OTHER LOAN
DOCUMENTS.
SECTION 8. WITHOUT LIMITING THE EFFECT OF SECTION 5.13 OF THE
GUARANTY, THE ADMINISTRATIVE AGENT AND THE UNDERSIGNED HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS SUPPLEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE SECURED PARTIES OR THE UNDERSIGNED. THE UNDERSIGNED ACKNOWLEDGES AND
AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS
PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS
A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE
LENDERS ENTERING INTO THE TERM LOAN AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT
AND THE ADMINISTRATIVE AGENT ACCEPTING THIS SUPPLEMENT.
SECTION 9. This Supplement hereby incorporates by reference the
provisions of the Guaranty, which provisions are deemed to be a part hereof,
and this Supplement shall be deemed to be a part of the Guaranty.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned has caused this Supplement to the
Guaranty to be duly executed and delivered by its officer thereunto duly
authorized as of the day and year first above written.
[NAME OF ADDITIONAL SUBSIDIARY GUARANTOR]
By
--------------------------------------
Name:
Title:
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