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EXHIBIT 10(C)
THE GEON COMPANY
UNCONDITIONAL AND CONTINUING GUARANTY
WHEREAS, the undersigned, THE GEON COMPANY, a Delaware corporation
("Guarantor"), seeks to induce (i) OLIN SUNBELT, INC., a Delaware corporation
("OSI"), a wholly-owned subsidiary of OLIN CORPORATION, a Virginia corporation
("OC", and OSI and OC being singly and together referred to herein as "Olin") to
execute a partnership agreement (the "Partnership Agreement") with 1997
Chloralkali Venture Inc., an Alabama corporation ("Subsidiary"), a wholly-owned
subsidiary of Guarantor, to form a general partnership to be known as Sunbelt
Chlor Alkali Partnership (the "Partnership"), and (ii) OC to enter into a real
estate lease, an engineering, procurement and construction agreement, and an
operating agreement with the Partnership ("Contracts"); and
WHEREAS, the execution and delivery by Guarantor of this Unconditional and
Continuing Guaranty ("Guaranty") is a condition precedent to Olin's entering
into the Partnership and executing the Contracts;
WHEREAS, Guarantor will derive substantial benefits from such arrangements;
NOW, THEREFORE, in consideration of the premises and of other good valuable
consideration, the receipt of which is hereby acknowledged, Guarantor hereby
represents and agrees as follows:
1. GUARANTY. Guarantor hereby absolutely, irrevocably and
unconditionally guarantees to Olin the full and prompt performance by
Subsidiary of all of Subsidiary's covenants and obligations under the
Partnership Agreement, as amended and modified from time to time,
including, without limitation, the punctual and full performance or
payment when due, whether at the stated date or dates for such
payment, by acceleration or otherwise, of all indebtedness,
liabilities and obligations of Subsidiary under the Partnership
Agreement, whether absolute or contingent, now existing or hereafter
arising, and including, without limitation, all contributions,
interest, premiums, fees, cost and expense reimbursements and all
other obligations of Subsidiary pursuant to the Partnership
Agreement, together with all liabilities, rights of contribution and
indemnities in favor of the Partnership and Olin, imposed in law or
equity (all of the foregoing are hereinafter sometimes referred to as
the "Obligations"); provided however, that this Guaranty of the
Obligations shall be solely for the benefit of the Partnership and
Olin, and shall not be deemed to create any right in or be in whole
or in part for the independent benefit of any person other than the
Partnership and Olin, together with their successors and Permitted
Assignees. For purposes of this Guaranty, a "Permitted Assignee"
shall mean an assignee permitted under the Partnership Agreement or
the Contracts.
2. PERFORMANCE BY GUARANTOR. In the event of the occurrence of any
breach or default in the Obligations, Guarantor hereby agrees to
perform and/or make payment of each and every Obligation within five
(5) business days after receipt of notice from Olin of such breach or
default, provided that for those Obligations reasonably incapable of
cure within five (5) days, Guarantor shall have commenced a cure
within five (5) days and thereafter diligently pursue such cure.
3. OBLIGATIONS OF GUARANTOR UNCONDITIONAL. Guarantor hereby agrees that:
(a) Its liability hereunder is unconditional, irrespective of: (i)
any claim by Subsidiary of lack of authorization or insufficient
consideration with respect to the Obligations; (ii) the absence
of any action or effort by Olin or the Partnership to either
resort to, enforce or exhaust its remedies with respect to the
Obligations; (iii) the waiver or consent by Olin or the
Partnership with respect to any provision in the documentation of
the Obligations (provided that Guarantor shall be entitled to the
benefit of any such waiver or consent agreed to by Olin directly
or by the vote of the Management Committee on behalf of the
Partnership); or (iv) the recovery of any judgment against
Subsidiary or any action to enforce such judgment or any other
circumstance which might, absent the unconditional nature of this
Guaranty, constitute a legal or equitable discharge or defense of
Guarantor.
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(b) The liability of Guarantor hereunder will not be discharged
except by complete and final performance and/or payment of the
Obligations.
(c) The liability of Guarantor under this Guaranty shall be
reinstated with respect to any amount paid to the Partnership by
Subsidiary which is thereafter required to be returned to
Subsidiary or any trustee, receiver or other representative of or
for Subsidiary, upon or by reason of the bankruptcy, insolvency,
reorganization, or dissolution of Subsidiary, or for any other
reason, other than a valid defense on the merits to the same, all
as though such amount had never been paid by Subsidiary.
(d) This is a guarantee of payment and not merely of collection.
(e) Notwithstanding any provision herein to the contrary, this
Guaranty shall not limit, amend, modify, impair or otherwise
affect any right, claim or action of Guarantor or Subsidiary
arising under the Partnership Agreement or the Contracts.
4. WAIVERS. Guarantor hereby expressly waives (a) notice of the
acceptance of this Guaranty; (b) notice of any change in the rate at
which any of the Obligations are accruing interest or fees; (c)
diligence, presentment and demand for performance or payment of any
of the Obligations; (d) protest, notice of protest, notice of
dishonor and notice of nonperformance, nonpayment or default to
Guarantor or to any other person with respect to the Obligations; (e)
filings of claims or proof of claims with a court in the event of any
bankruptcy or insolvency proceedings to which Subsidiary is subject;
(f) any right to require a proceeding first against Subsidiary or any
other person; (g) any defenses available to a surety under law; and
(h) all other legally waivable notices to which Guarantor might
otherwise be entitled.
5. CONTINUING GUARANTY. This Guaranty is a continuing Guaranty and shall
remain in full force and effect and be binding upon Guarantor and its
successors and assigns, irrespective of any sale of or transfer by
Guarantor of any or all of the shares of capital stock of Subsidiary,
until satisfaction in full of all the Obligations.
6. MISCELLANEOUS.
(a) NOTICES. All notices, requests, demands or other communications
(including telecommunications) to or from Guarantor or Olin shall
be in writing and shall be deemed to have been duly given or made
when delivered (i) to Olin, at its office at Cleveland, TN, and
(ii) to Guarantor, at its address set next to its signature
below, or as to either party, at such other address as such party
may hereafter specify to the party in writing. Written notices
shall be deemed effectively delivered if delivered by hand or by
registered or certified mail, postage prepaid. The date of
delivery shall be deemed to be the date the notice is given.
(b) EXPENSES. Guarantor agrees that, with or without notice to or
demand upon Subsidiary or Guarantor, Guarantor will pay or
reimburse Olin (to the extent reimbursement has not already been
made by Subsidiary) for all expenses, including reasonable fees
and expenses of its legal counsel, incurred by Olin in connection
with the collection and the enforcement of any provisions of this
Guaranty.
(c) ASSIGNMENTS. Olin may assign its rights and powers under this
Guaranty to any successor or Permitted Assignee of the Olin
interest in the Partnership and/or the Contracts, with respect to
all or any of the Obligations, and, in the event of such
succession or assignment, the successor or Permitted Assignee of
such rights and powers, to the extent of such succession or
assignment, shall have the same rights and remedies as if
originally named herein in the place of its assignor or
predecessor in interest.
(d) WAIVER OF RIGHTS. No delay on the part of Olin in exercising any
rights hereunder or failure to exercise the same shall operate as
a waiver of such rights; no notice to or demand on Guarantor
shall be deemed to be a waiver of the obligation of Guarantor or
of the right of Olin to take other or further action without
notice or demand as provided herein. In any event no modification
or waiver of the provisions hereof shall be effective unless in
writing nor shall any waiver be applicable except with respect to
the specific person to whom and in the specific instance or
matter for which given.
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(e) CUMULATIVE REMEDIES. The obligations of Guarantor hereunder are
in addition to and not in substitution for any other obligations
now or hereafter held by Olin and shall not operate as a merger
of any contract or debt or suspend the fulfillment of, or affect
the rights, remedies or powers of Olin in respect of, any
obligation for the fulfillment thereof. The rights and remedies
provided herein and in any other instrument are cumulative and
not exclusive of any other rights or remedies provided by law.
(f) GOVERNING LAW. This Guaranty shall be governed by, determined
and construed in accordance with the laws of the State of
Delaware.
(g) SEVERABILITY. If any part of this Guaranty is contrary to,
prohibited by or deemed invalid under the applicable law or
regulations of any jurisdiction, such provision shall, as to such
jurisdiction, be inapplicable and deemed omitted to the extent so
contrary, prohibited or invalid, but the remainder hereof shall
not be invalidated thereby and shall be given full force and
effect so far as possible, and any such prohibition or invalidity
in any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.
IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty as
of the 23rd day of August, 1996.
WITNESS: THE GEON COMPANY
By: /s/Gregory L. Rutman
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Gregory L. Rutman
Title:Secretary
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Address: One Geon Center
Avon Lake, OH 44012
Attn: Corporate Secretary
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