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EXHIBIT 4.8(b)
AFFILIATE GUARANTY
This AFFILIATE GUARANTY (as amended, supplemented, amended and
restated or otherwise modified from time to time, this "Guaranty"), dated as of
October 30, 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 Affiliate Guarantor", and,
collectively, the "Additional Affiliate Guarantors", and, together with each of
the signatories hereto, each, individually, an "Affiliate Guarantor", and,
collectively, the "Affiliate Guarantors"), in favor of BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as administrative agent (the "Administrative
Agent") for each of the Lender Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to a Term Loan Agreement, dated as of October 30,
1997 (as amended, supplemented, amended and restated or otherwise modified from
time to time, the "Term Loan Agreement"), among Pioneer Americas, Inc., a
corporation organized under the laws of Delaware (the "Borrower"), the Parent
Guarantor named therein, 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, the Administrative Agent, and United States Trust Company of
New York, as Collateral Agent for the Secured Parties, the Lenders have
extended Term Loan 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 Affiliate Guarantor is required to execute
and deliver this Guaranty;
WHEREAS, each Affiliate Guarantor has duly authorized the execution,
delivery and performance of this Guaranty; and
WHEREAS, it is in the best interests of each Affiliate Guarantor to
execute this Guaranty inasmuch as each Affiliate 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 Affiliate
Guarantor agrees, for the benefit of each Lender 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 Affiliate Guarantor" and "Additional Affiliate Guarantors"
are defined in the preamble.
"Administrative Agent" is defined in the preamble.
"Affiliate Guarantor" and "Affiliate Guarantors" are 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.
"Lender Parties" means, collectively, the Agents, the Lenders and each
of their respective successors, transferees and assigns.
"Original Currency" is defined in Section 2.9.
"Other Currency" is defined in Section 2.9.
"PCI Carolina" means PCI Carolina, Inc., a Delaware corporation and
any successor thereto.
"Pioneer Licensing" means Pioneer Licensing, Inc., a Delaware
corporation and any successor thereto.
"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 Affiliate 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) or any applicable amount which would become due but for
any similar stay under any Canadian Bankruptcy Law) (the "Guaranteed
Obligations"), and
(b) indemnifies and holds harmless each Lender Party and each
holder of a Term Note for any and all costs and expenses (including
reasonable attorneys' fees and expenses) incurred by such Lender Party
or such holder, as the case may be, in enforcing any rights under this
Guaranty;
provided, however, that each Affiliate 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 Affiliate 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 Affiliate Guarantor
specifically agrees that it shall not be necessary or required that any Lender
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 Affiliate Guarantor hereunder.
SECTION 2.2. Acceleration of Guaranty. Each Affiliate Guarantor
agrees that, in the event of any Default of the nature set forth in clause (a),
(b) or (c) 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 Affiliate Guarantor will pay to the Lenders forthwith the full
amount which would be payable hereunder by such Affiliate 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 Affiliate
Guarantor hereunder shall have been paid in full in cash and all Term Loan
Commitments shall have terminated. Each Affiliate Guarantor guarantees that
the Guaranteed
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Obligations will be paid strictly in accordance with the terms of the Term Loan
Agreement, the 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 Lender Party or
any holder of any Term Note with respect thereto. The liability of each
Affiliate 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 Lender 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
Affiliate 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 Affiliate Guarantor) of, or
collateral securing, any Guaranteed Obligations;
(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 Affiliate 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 Lender 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 Affiliate 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 Affiliate Guarantor or any other Person on account
of any Indebtedness owing by the Borrower or any Affiliate 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 Affiliate Guarantor or any
refinancing or restructuring of any of the Guaranteed Obligations;
(j) the sale of the Borrower's or any Affiliate Guarantor's
business or any part thereof;
(k) subject to Section 7.2.5 of the Term Loan Agreement, any
amalgamation, merger or consolidation, arrangement or reorganization
of the Borrower, any Affiliate Guarantor, any Person resulting from
the amalgamation, merger or consolidation of the Borrower or any
Affiliate 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
Affiliate 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 Affiliate 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 Lender
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 Affiliate Guarantor hereby waives
promptness, diligence, notice of acceptance and, to the extent permitted by
law, any other notice with respect to any of the Guaranteed Obligations and of
this Guaranty and any requirement that the Administrative Agent, any other
Lender 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 Affiliate
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 Affiliate Guarantor hereunder and the termination of all
Term Loan Commitments. Any amount paid to any Affiliate 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 Lender
Parties and each holder of a Term Note and shall immediately be paid to the
Administrative Agent for the benefit of the Lender 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 Affiliate Guarantor has made payment to the Lender
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 Affiliate Guarantor hereunder shall have
been paid in full in cash and all Term Loan Commitments have been
terminated,
each Lender Party and each holder of a Term Note agrees that, at such Affiliate
Guarantor's request, the Administrative Agent, on behalf of the Lender Parties
and the holders of the Term Notes, will execute and deliver to such Affiliate
Guarantor appropriate documents (without recourse and without representation or
warranty) necessary to evidence the transfer by subrogation to such Affiliate
Guarantor of an interest in the Guaranteed Obligations resulting from such
payment by such Affiliate Guarantor. In furtherance of the foregoing, for so
long as any Guaranteed Obligations, obligations of any Affiliate Guarantor
hereunder or Term Loan Commitments remain outstanding, each Affiliate 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
Lender Party or any holder of a Term Note; provided, however, that an Affiliate
Guarantor may file appropriate proofs of claim in any bankruptcy or insolvency
proceeding of the Borrower or any other Affiliate Guarantor; provided further,
however, that such Affiliate 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 Affiliate 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 Lender 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 Affiliate Guarantor hereby
agrees that to the extent that an Affiliate Guarantor shall have paid more than
its proportionate share of any payment made hereunder, such Affiliate Guarantor
shall be entitled to seek and receive
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contribution from and against any other Affiliate Guarantor hereunder who has
not paid its proportionate share of such payment. Each Affiliate 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 Affiliate Guarantor to the Administrative
Agent and each other Lender Party, and each Affiliate Guarantor shall remain
liable to the Administrative Agent and each other Lender Party for the full
amount guaranteed by such Affiliate Guarantor hereunder.
SECTION 2.8. Successors, Transferees and Assigns; Transfers of Term
Notes, etc. This Guaranty shall:
(a) be binding upon each Affiliate Guarantor, and its
successors, transferees and assigns; and
(b) inure to the benefit of and be enforceable by the
Administrative Agent and each other Lender 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
11.11 and Article X of the Term Loan Agreement.
SECTION 2.9. Judgment Currency.
(a) If, for purposes of obtaining judgment in any court, it
is necessary to convert any sum due, or owing under any Loan Document
to the Administrative Agent or any one or more of the Lenders in any
currency (the "Original Currency") into another currency (the "Other
Currency"), the parties signatory hereto agree, to the fullest extent
that they may effectively do so, that the rate of exchange used shall
be that at which, in accordance with normal banking procedures, the
Administrative Agent could purchase the Original Currency with the
Other Currency on the Business Day preceding that on which the final
judgment is granted.
(b) The Obligations of any Affiliate Guarantor in respect of
any sum due in the Original Currency from it to the Administrative
Agent or any one or more of the Lenders under any of the Loan
Documents shall, notwithstanding any judgment in any Other Currency,
be discharged only to the extent that on the Business Day following
receipt by the Administrative Agent of any such adjudged to be so due
or owing in such Other Currency, the Administrative Agent may in
accordance with normal banking procedures purchase the Original
Currency with such Other Currency. If the amount of the Original
Currency so purchased is less than the sum originally due or owing to
the Administrative
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Agent or any one or more of the Lenders in the Original Currency, such
Affiliate Guarantor shall, as a separate obligation and
notwithstanding any such judgment, indemnify the Administrative Agent
or such Lender(s) against such loss, and if the amount of the Original
Currency so purchased exceeds the sum originally due or owing to the
Administrative Agent or such Lender(s) in the Original Currency, the
Administrative Agent or such Lender(s) shall remit such excess to such
Affiliate Guarantor.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. Each Affiliate
Guarantor hereby represents and warrants for itself unto each Lender 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 Affiliate Guarantor or
such Affiliate 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 Affiliate Guarantor and such
Affiliate 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 Affiliate Guarantor and such Affiliate
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 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
Affiliate 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 Affiliate 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 Affiliate 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 Affiliate 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 Affiliate 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
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of any Lien on any asset of such Affiliate 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 Affiliate Guarantor party thereto, as applicable,
enforceable against such Affiliate Guarantor in accordance with their
respective terms.
SECTION 3.6. Investment Company Act Representation. No Affiliate
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
Affiliate 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 Affiliate 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 Affiliate Guarantor hereunder shall have been paid in full in cash, such
Affiliate Guarantor will perform, comply with and be bound by all the
agreements, covenants and obligations contained in the Term Loan Agreement
applicable to such Affiliate Guarantor or such Affiliate 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 Affiliate Guarantor under this
Guaranty and each other Loan Document, the Borrower and the Affiliate
Guarantors acknowledge that they have entered into each of the applicable
Security Documents (including this Guaranty) to which each is a party.
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(b) PCI Carolina, Pioneer Licensing and each Additional Affiliate
Guarantor that is a Restricted Subsidiary of any PCIFP Company shall, jointly
and severally, perform at their sole cost and expense any and all acts and
execute any and all documents (including 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 Agent 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 Agent, and to fully preserve and protect the rights
of the Agents and the Lenders under the Term Loan Agreement and the other Loan
Documents. PCI Carolina, Pioneer Licensing and such Additional Affiliate
Guarantor 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.
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 Affiliate Guarantor and its successors,
transferees and assigns and shall inure to the benefit of and be enforceable by
each Lender 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 Affiliate 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 Affiliate
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
an Affiliate Guarantor, to such Affiliate Guarantor in care of the Borrower at
the address of the Borrower specified in the Term
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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 Affiliate 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 Affiliate Guarantors. Upon the execution and
delivery by any other Person of an instrument in the form of Annex I hereto,
such Person shall become an "Affiliate Guarantor" hereunder with the same force
and effect as if originally named as an Affiliate Guarantor herein. The
execution and delivery of any such instrument shall not require the consent of
any other Affiliate Guarantor hereunder. The rights and obligations of each
Affiliate Guarantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Affiliate 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 Affiliate Guarantors any other guarantees or
other security or any monies or other assets which 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
Lender 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 Lender Party or any holder of a Term Note under applicable law,
each Lender Party and each such holder shall, upon the occurrence of any
Default described in any of clause (a), (b) or (c) 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 Affiliate Guarantor owing to it hereunder, whether or not
then due, and such Affiliate Guarantor hereby grants to each Lender Party and
each such holder a continuing security interest in, any
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and all balances, credits, deposits, accounts or moneys of such Affiliate
Guarantor then or thereafter maintained with such Lender Party, or such holder
or any agent or bailee for such Lender 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 LENDER PARTIES
OR THE AFFILIATE 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 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
AFFILIATE 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.
EACH AFFILIATE 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 AFFILIATE 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
AFFILIATE GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION
OF
13
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 AFFILIATE 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 AFFILIATE 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 LENDER PARTIES OR ANY AFFILIATE GUARANTOR. EACH AFFILIATE
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 AFFILIATE GUARANTOR IS A
PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER 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.
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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.
PCI CAROLINA, INC.
By /s/ Philip J. Ablove
-----------------------------
Name: Philip J. Ablove
Title: Vice President
PIONEER LICENSING, INC.
By /s/ Philip J. Ablove
-----------------------------
Name: Philip J. Ablove
Title: Vice President
PIONEER CHLOR ALKALI COMPANY,
INC.
By /s/ Philip J. Ablove
-----------------------------
Name: Philip J. Ablove
Title: Vice President
ALL-PURE CHEMICAL CO.
By /s/ Philip J. Ablove
-----------------------------
Name: Philip J. Ablove
Title: Vice President
IMPERIAL WEST CHEMICAL CO.
By /s/ Philip J. Ablove
-----------------------------
Name: Philip J. Ablove
Title: Vice President
15
BLACK MOUNTAIN POWER
COMPANY
By /s/ PHILIP J. ABLOVE
-----------------------------
Name: Philip J. Ablove
Title: Vice President
ALL PURE CHEMICAL NORTHWEST,
INC.
By /s/ PHILIP J. ABLOVE
-----------------------------
Name: Philip J. Ablove
Title: Vice President
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
PIONEER (EAST), INC.
By /s/ PHILIP J. ABLOVE
-----------------------------
Name: Philip J. Ablove
Title: Vice President
16
T.C. HOLDINGS, INC.
By /s/ PHILIP J. ABLOVE
-----------------------------
Name: Philip J. Ablove
Title: Vice President
T.C. PRODUCTS, INC.
By /s/ PHILIP J. ABLOVE
-----------------------------
Name: Philip J. Ablove
Title: Vice President