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GUARANTY
THIS GUARANTY (this "Guaranty") is made as of the 11th day of December,
2000, by and among SYBRON DENTAL MANAGEMENT, INC., a Delaware corporation
("SDM"), XXXX CORPORATION, a Delaware corporation ("Xxxx"), ORMCO CORPORATION, a
Delaware corporation ("Ormco"), METREX RESEARCH CORPORATION, a Wisconsin
corporation ("Metrex") and PINNACLE PRODUCTS, INC., a Wisconsin corporation
("Pinnacle") (each an "Initial Guarantor" and together with any additional
Material Domestic Subsidiaries of SDS which become parties to this Guaranty by
executing an Addendum hereto in the form attached as Annex I, the "Guarantors")
in favor of the Administrative Agent, for the ratable benefit of the Holders of
Secured Obligations, under (and as defined in) the Credit Agreement referred to
below;
WITNESSETH:
WHEREAS, Sybron Dental Specialties, Inc., a Delaware corporation
("SDS"), the Subsidiary Swing Line Borrowers from time to time parties thereto,
Xxxx, Ormco, SDM, the institutions from time to time parties thereto as Lenders,
ABN AMRO BANK N.V. in its capacity as contractual representative (the
"Administrative Agent") for itself and the other Lenders, The Chase Manhattan
Bank, as Syndication Agent and First Union National Bank, as Documentation
Agent, have entered into a certain Credit Agreement dated as of November 28,
2000 (as the same may be amended, modified, supplemented and/or restated, and as
in effect from time to time, the "Credit Agreement"), providing, subject to the
terms and conditions thereof, for extensions of credit and other financial
accommodations to be made by the Lenders to the Borrowers;
WHEREAS, it is a condition precedent to the initial extensions of
credit by the Lenders under the Credit Agreement that each of the Guarantors
(constituting all of the Material Domestic Subsidiaries of SDS required to
execute this Guaranty pursuant to Section 7.2(K) of the Credit Agreement)
execute and deliver this Guaranty, whereby each of the Guarantors shall
guarantee the payment when due of all "Secured Obligations" (as defined in the
Credit Agreement), principal, interest, letter of credit reimbursement
obligations and other amounts that shall be at any time payable by the Borrowers
under the Credit Agreement, any Hedging Agreement and the other Loan Documents;
and
WHEREAS, in consideration of the direct and indirect financial and
other support that the Borrowers have provided, and such direct and indirect
financial and other support as the Borrowers may in the future provide, to the
Guarantors, and in order to induce the Lenders and the Administrative Agent to
enter into the Credit Agreement, each of the Guarantors is willing to guarantee
the obligations of the Borrowers under the Credit Agreement, any Hedging
Agreement and the other Loan Documents;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
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SECTION 1. Definitions. Terms defined in the Credit Agreement and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein.
SECTION 2. Representations, Warranties and Covenants. Each of the
Guarantors represents and warrants (which representations and warranties shall
be deemed to have been renewed at the time of the making, conversion or
continuation of any Loan or issuance of any Letter of Credit) that:
(a) It is a corporation, limited liability company, partnership or
other commercial entity duly incorporated or formed, validly existing and in
good standing under the laws of its jurisdiction of incorporation or formation
and has all requisite authority to conduct its business as a foreign Person in
each jurisdiction in which its business is conducted, except where the failure
to have such requisite authority would not have a Material Adverse Effect.
(b) It has the power and authority and legal right to execute and
deliver this Guaranty and to perform its obligations hereunder. The execution
and delivery by it of this Guaranty and the performance by it of its obligations
hereunder have been duly authorized by proper proceedings, and this Guaranty
constitutes a legal, valid and binding obligation of such Guarantor, enforceable
against such Guarantor in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
(c) Neither the execution and delivery by it of this Guaranty, nor the
consummation by it of the transactions herein contemplated, nor compliance by it
with the terms and provisions hereof, will (i) violate any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on it or
its certificate or articles of incorporation or by-laws, limited liability
company or partnership agreement (as applicable) or the provisions of any
indenture, instrument or material agreement to which it is a party or is
subject, or by which it, or its property, is bound, (ii) or conflict with or
constitute a default thereunder, or (iii) result in the creation or imposition
of any Lien in, of or on its property pursuant to the terms of any such
indenture, instrument or material agreement. No order, consent, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any Governmental Authority, is required to authorize, or
is required in connection with the execution, delivery and performance by it of,
or the legality, validity, binding effect or enforceability against it of, this
Guaranty.
In addition to the foregoing, each of the Guarantors covenants that, so
long as any Lender has any Revolving Loan Commitment outstanding under the
Credit Agreement or any amount payable under the Credit Agreement or any other
Secured Obligations shall remain unpaid, it will, and, if necessary, will enable
the Borrowers to, fully comply with those covenants and agreements of the
Borrowers applicable to such Guarantor set forth in the Credit Agreement.
SECTION 3. The Guaranty. Each of the Guarantors hereby unconditionally
guarantees, jointly with the other Guarantors and severally, the full and
punctual payment when due (whether at stated maturity, upon acceleration or
otherwise) of the Secured Obligations, including, without
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limitation, (i) the principal of and interest on each Advance made to the
Borrowers pursuant to the Credit Agreement, (ii) any Reimbursement Obligations
of the Borrowers, (iii) all Hedging Obligations of the Borrower owing to any
Lender or any affiliate of any Lender under any hedging Agreement, and (iv) all
other amounts payable by the Borrowers or any of their Subsidiaries under the
Credit Agreement, any Hedging Agreement and the other Loan Documents (all of the
foregoing being referred to collectively as the "Guaranteed Obligations"). Upon
failure by any Borrower or any of their respective Affiliates, as applicable, to
pay punctually any such amount, each of the Guarantors agrees that it shall
forthwith on demand pay such amount at the place and in the manner specified in
the Credit Agreement, any Hedging Agreement or the relevant Loan Document, as
the case may be. Each of the Guarantors hereby agrees that this Guaranty is an
absolute, irrevocable and unconditional guaranty of payment and is not a
guaranty of collection.
SECTION 4. Guaranty Unconditional. The obligations of each of the
Guarantors hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(a) any extension, renewal, settlement, indulgence, compromise, waiver
or release of or with respect to the Guaranteed Obligations or any part thereof
or any agreement relating thereto, or with respect to any obligation of any
other guarantor of any of the Guaranteed Obligations, whether (in any such case)
by operation of law or otherwise, or any failure or omission to enforce any
right, power or remedy with respect to the Guaranteed Obligations or any part
thereof or any agreement relating thereto, or with respect to any obligation of
any other guarantor of any of the Guaranteed Obligations;
(b) any modification or amendment of or supplement to the Credit
Agreement, any Hedging Agreement or any other Loan Document, including, without
limitation, any such amendment which may increase the amount of the Secured
Obligations guaranteed hereby;
(c) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any collateral
securing the Guaranteed Obligations or any part thereof, any other guaranties
with respect to the Guaranteed Obligations or any part thereof, or any other
obligation of any person or entity with respect to the Guaranteed Obligations or
any part thereof, or any nonperfection or invalidity of any direct or indirect
security for the Guaranteed Obligations;
(d) any change in the corporate, partnership or other existence,
structure or ownership of any Borrower or any other guarantor of any of the
Guaranteed Obligations, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting any Borrower or any other guarantor of the
Guaranteed Obligations, or any of their respective assets or any resulting
release or discharge of any obligation of any Borrower or any other guarantor of
any of the Guaranteed Obligations;
(e) the existence of any claim, setoff or other rights which the
Guarantors may have at any
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time against any Borrower, any other guarantor of any of the Guaranteed
Obligations, the Administrative Agent, any Holder of Secured Obligations or any
other Person, whether in connection herewith or in connection with any unrelated
transactions, provided that nothing herein shall prevent the assertion of any
such claim by separate suit or compulsory counterclaim;
(f) the enforceability or validity of the Guaranteed Obligations or any
part thereof or the genuineness, enforceability or validity of any agreement
relating thereto or with respect to any collateral securing the Guaranteed
Obligations or any part thereof, or any other invalidity or unenforceability
relating to or against any Borrower or any other guarantor of any of the
Guaranteed Obligations, for any reason related to the Credit Agreement, any
Hedging Agreement, any other Loan Document, or any provision of applicable law
or regulation purporting to prohibit the payment by any Borrower or any other
guarantor of the Guaranteed Obligations, of any of the Guaranteed Obligations;
(g) the failure of the Administrative Agent to take any steps to
perfect and maintain any security interest in, or to preserve any rights to, any
security or collateral for the Guaranteed Obligations, if any;
(h) the election by, or on behalf of, any one or more of the Holders of
Secured Obligations, in any proceeding instituted under Chapter 11 of Title 11
of the United States Code (11 U.S.C. 101 et seq.) (the "Bankruptcy Code"), of
the application of Section 1111(b)(2) of the Bankruptcy Code;
(i) any borrowing or grant of a security interest by any Borrower, as
debtor-in-possession, under Section 364 of the Bankruptcy Code;
(j) the disallowance, under Section 502 of the Bankruptcy Code, of all
or any portion of the claims of any of the Holders of Secured Obligations or the
Administrative Agent for repayment of all or any part of the Guaranteed
Obligations;
(k) the failure of any other Guarantor to sign or become party to this
Guaranty or any amendment, change, or reaffirmation hereof; or
(l) any other act or omission to act or delay of any kind by any
Borrower, any other guarantor of the Guaranteed Obligations, the Administrative
Agent, any Holder of Secured Obligations or any other Person or any other
circumstance whatsoever which might, but for the provisions of this Section 4,
constitute a legal or equitable discharge of any Guarantor's obligations
hereunder.
SECTION 5. Discharge Only Upon Payment In Full: Reinstatement In
Certain Circumstances. Each of the Guarantors' obligations hereunder shall
remain in full force and effect until all Guaranteed Obligations shall have been
paid in full in cash and the Revolving Loan Commitments and all Letters of
Credit issued under the Credit Agreement shall have terminated or expired. If at
any time any payment of the principal of or interest on any Advance, any
Reimbursement Obligation
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or any other amount payable by any Borrower or any other party under the Credit
Agreement, any Hedging Agreement or any other Loan Document is rescinded or must
be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of any Borrower or otherwise, each of the Guarantors' obligations
hereunder with respect to such payment shall be reinstated as though such
payment had been due but not made at such time. Each Guarantor hereby expressly
waives the benefits of Section 2815 of the California Civil Code (or any similar
law in any other jurisdiction) purporting to allow a guarantor to revoke a
continuing guaranty with respect to any transactions occurring after the date of
the guaranty. If, notwithstanding the foregoing, any Guarantor shall have any
right under applicable law to terminate or revoke its guaranty of the
Obligations, such Guarantor agrees that such termination or revocation shall not
be effective until a written notice of such revocation or termination,
specifically referring hereto, signed by such Guarantor, is actually received by
the Administrative Agent. Such notice shall not affect the right and power of
any Lender or the Administrative Agent to enforce rights arising prior to
receipt thereof by the Administrative Agent.
SECTION 6. Waivers.
(a) Each of the Guarantors irrevocably waives acceptance hereof,
presentment, demand or action on delinquency, protest and, to the fullest extent
permitted by law, any notice not provided for herein, as well as any requirement
that at any time any action be taken by any Person against any Borrower, any
other guarantor of the Guaranteed Obligations, or any other Person.
(b) Without limiting the generality of the foregoing or any other
provision hereof, each Guarantor hereby waives, to the fullest extent permitted
by applicable law in accordance with Section 2856 of the California Civil Code,
all rights and benefits under California Civil Code Sections 2787 to 2855,
inclusive(or any similar laws in other jurisdictions) and all rights and
benefits of California Civil Code Sections 2899 and 3433 (or any similar laws in
any other jurisdiction). In addition, without limiting the generality of the
foregoing or any other provision hereof, each Guarantor hereby waives, in
accordance with Section 2856 of the California Civil Code, all rights and
defenses (including, without limitation, all rights and defenses arising out of
an election of remedies by the Administrative Agent or any Holder of Secured
Obligations) that such Guarantor may have because the Secured Obligations are
secured by real property. This means, among other things:
(i) the Administrative Agent or any Holder of Secured
Obligations may collect from any Guarantor without first foreclosing on
any real or personal property collateral pledged to or for the benefit
of the Administrative Agent or any Holder of Secured Obligations; and
(ii) if the Administrative Agent or any Holder of Secured
Obligations forecloses on any real property collateral pledged by any
Borrower or Guarantor: (A) the amount of the debt may be reduced only
by the price for which that collateral is sold at the foreclosure sale,
even if the collateral is worth more than the sale price; and (B) the
Administrative Agent or any Holder of Secured Obligations may collect
from any Guarantor even if the
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Administrative Agent or any Holder of Secured Obligations, by
foreclosing on the real property collateral, has destroyed any right
such Guarantor may have to collect from a Borrower.
(c) This is an unconditional and irrevocable waiver of any rights and
defenses each Guarantor may have because the Secured Obligations are secured by
real property. These rights and defenses include, but are not limited to, any
rights or defenses based upon Section 580a, 580b, 580d or 726 of the California
Code of Civil Procedure (or any similar laws in any other jurisdiction). In
accordance with Section 14 below, this Guaranty shall be governed by, and shall
be construed and enforced in accordance with, the internal laws (as opposed to
the conflicts of laws provisions) and decisions of the State of Illinois. This
Section 4 and other referenced provisions of California law are included solely
out of an abundance of caution, and shall not be construed to mean that any of
the referenced provisions of California law are in any way applicable to this
Guaranty or to any of the Secured Obligations.
SECTION 7. Subordination of Subrogation; Subordination of Intercompany
Indebtedness.
(a) Subordination of Subrogation. Until the Secured Obligations have
been indefeasibly paid in full in cash, the Guarantors (i) shall have no right
of subrogation with respect to such Secured Obligations and (ii) waive any right
to enforce any remedy which the Holders of Secured Obligations, Issuing Banks or
the Administrative Agent now have or may hereafter have against any Borrower,
any endorser or any guarantor of all or any part of the Secured Obligations or
any other Person, and the Guarantors waive any benefit of, and any right to
participate in, any security or collateral given to the Holders of Secured
Obligations, the Issuing Banks and the Administrative Agent to secure the
payment or performance of all or any part of the Secured Obligations or any
other liability of the Borrowers to the Holders of Secured Obligations or
Issuing Banks. Should any Guarantor have the right, notwithstanding the
foregoing, to exercise its subrogation rights, each Guarantor hereby expressly
and irrevocably (i) subordinates any and all rights at law or in equity to
subrogation, reimbursement, exoneration, contribution, indemnification or set
off that the Guarantor may have to the indefeasible payment in full in cash of
the Secured Obligations and (ii) waives any and all defenses available to a
surety, guarantor or accommodation co-obligor until the Secured Obligations are
indefeasibly paid in full in cash. Each Guarantor acknowledges and agrees that
this subordination is intended to benefit the Administrative Agent and the
Holders of Secured Obligations and shall not limit or otherwise affect such
Guarantor's liability hereunder or the enforceability of this Guaranty, and that
the Administrative Agent, the Holders of Secured Obligations and their
respective successors and assigns are intended third party beneficiaries of the
waivers and agreements set forth in this Section 7(a).
(b) Subordination of Intercompany Indebtedness. Each Guarantor agrees
that any and all claims of such Guarantor against either the Borrower or any
other Guarantor hereunder (each an "Obligor") with respect to any "Intercompany
Indebtedness" (as hereinafter defined), any endorser, obligor or any other
guarantor of all or any part of the Secured Obligations, or against any of its
properties shall be subordinate and subject in right of payment to the prior
payment, in
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full and in cash, of all Secured Obligations. Notwithstanding any right of any
Guarantor to ask, demand, xxx for, take or receive any payment from any Obligor,
all rights, liens and security interests of such Guarantor, whether now or
hereafter arising and howsoever existing, in any assets of any other Obligor
(whether constituting part of Collateral given to any Holder of Secured
Obligations or the Administrative Agent to secure payment of all or any part of
the Secured Obligations or otherwise) shall be and are subordinated to the
rights of the Holders of Secured Obligations and the Administrative Agent in
those assets. No Guarantor shall have any right to possession of any such asset
or to foreclose upon any such asset, whether by judicial action or otherwise,
unless and until all of the Secured Obligations (other than contingent indemnity
obligations) shall have been fully paid and satisfied (in cash) and all
financing arrangements pursuant to any Loan Document among the Borrower and the
Holders of Secured Obligations have been terminated. If all or any part of the
assets of any Obligor, or the proceeds thereof, are subject to any distribution,
division or application to the creditors of such Obligor, whether partial or
complete, voluntary or involuntary, and whether by reason of liquidation,
bankruptcy, arrangement, receivership, assignment for the benefit of creditors
or any other action or proceeding, or if the business of any such Obligor is
dissolved or if substantially all of the assets of any such Obligor are sold,
then, and in any such event (such events being herein referred to as an
"Insolvency Event"), any payment or distribution of any kind or character,
either in cash, securities or other property, which shall be payable or
deliverable upon or with respect to any indebtedness of any Obligor to any
Guarantor ("Intercompany Indebtedness") shall be paid or delivered directly to
the Administrative Agent for application on any of the Secured Obligations, due
or to become due, until such Secured Obligations (other than contingent
indemnity obligations) shall have first been fully paid and satisfied (in cash).
Should any payment, distribution, security or instrument or proceeds thereof be
received by the applicable Guarantor upon or with respect to the Intercompany
Indebtedness after any Insolvency Event and prior to the satisfaction of all of
the Secured Obligations (other than contingent indemnity obligations) and the
termination of all financing arrangements pursuant to any Loan Document among
the Borrower and the Holders of Secured Obligations, such Guarantor shall
receive and hold the same in trust, as trustee, for the benefit of the Holders
of Secured Obligations and shall forthwith deliver the same to the
Administrative Agent, for the benefit of the Holders of Secured Obligations, in
precisely the form received (except for the endorsement or assignment of the
Guarantor where necessary), for application to any of the Secured Obligations,
due or not due, and, until so delivered, the same shall be held in trust by the
Guarantor as the property of the Holders of Secured Obligations. If any such
Guarantor fails to make any such endorsement or assignment to the Administrative
Agent, the Administrative Agent or any of its officers or employees is
irrevocably authorized to make the same. Each Guarantor agrees that until the
Secured Obligations (other than the contingent indemnity obligations) have been
paid in full (in cash) and satisfied and all financing arrangements pursuant to
any Loan Document among the Borrower and the Holders of Secured Obligations have
been terminated, no Guarantor will assign or transfer to any Person (other than
the Administrative Agent) any claim any such Guarantor has or may have against
any Obligor.
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SECTION 8. Contribution with Respect to Guaranteed Obligations.
(a) To the extent that any Guarantor shall make a payment under this
Guaranty (a "Guarantor Payment") which, taking into account all other Guarantor
Payments then previously or concurrently made by any other Guarantor, exceeds
the amount which otherwise would have been paid by or attributable to such
Guarantor if each Guarantor had paid the aggregate Guaranteed Obligations
satisfied by such Guarantor Payment in the same proportion as such Guarantor's
"Allocable Amount" (as defined below) (as determined immediately prior to such
Guarantor Payment) bore to the aggregate Allocable Amounts of each of the
Guarantors as determined immediately prior to the making of such Guarantor
Payment, then, following indefeasible payment in full in cash of the Guaranteed
Obligations and termination of the Credit Agreement, such Guarantor shall be
entitled to receive contribution and indemnification payments from, and be
reimbursed by, each other Guarantor for the amount of such excess, pro rata
based upon their respective Allocable Amounts in effect immediately prior to
such Guarantor Payment.
(b) As of any date of determination, the "Allocable Amount" of any
Guarantor shall be equal to the maximum amount of the claim which could then be
recovered from such Guarantor under this Guaranty without rendering such claim
voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or
under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.
(c) This Section 8 is intended only to define the relative rights of
the Guarantors, and nothing set forth in this Section 8 is intended to or shall
impair the obligations of the Guarantors, jointly and severally, to pay any
amounts as and when the same shall become due and payable in accordance with the
terms of this Guaranty.
(d) The parties hereto acknowledge that the rights of contribution and
indemnification hereunder shall constitute assets of the Guarantor to which such
contribution and indemnification is owing.
(e) The rights of the indemnifying Guarantors against other Guarantors
under this Section 8 shall be exercisable upon the full and indefeasible payment
of the Guaranteed Obligations in cash and the termination of the Credit
Agreement.
SECTION 9. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the Borrowers under the Credit Agreement, any
Hedging Agreement or any other Loan Document is stayed upon the insolvency,
bankruptcy or reorganization of any Borrower, all such amounts otherwise subject
to acceleration under the terms of the Credit Agreement, any Hedging Agreement
or any other Loan Document shall nonetheless be payable by each of the
Guarantors hereunder forthwith on demand by the Administrative Agent.
SECTION 10. Notices. All notices, requests and other communications to
any party hereunder shall be given in the manner prescribed in Article XV of the
Credit Agreement with respect to the Administrative Agent at its notice address
therein and with respect to any Guarantor at the
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address set forth below or such other address or telecopy number as such party
may hereafter specify for such purpose by notice to the Administrative Agent in
accordance with the provisions of such Article XV:
Notice Address for Guarantors:
c/o Sybron Dental Specialties, Inc.
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
Fax:(000) 000-0000
with a copy to:
Xxxxxxx & Xxxxx, LLP
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Fax:(000) 000-0000
SECTION 11. No Waivers. No failure or delay by the Administrative Agent
or any Holder of Secured Obligations in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies provided in this
Guaranty, the Credit Agreement, any Hedging Agreement and the other Loan
Documents shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 12. Successors and Assigns. This Guaranty is for the benefit of
the Administrative Agent and the Holders of Secured Obligations and their
respective successors and permitted assigns, provided, that no Guarantor shall
have any right to assign its rights or obligations hereunder without the consent
of all of the Lenders, and any such assignment in violation of this Section 12
shall be null and void; and in the event of an assignment of any amounts payable
under the Credit Agreement, any Hedging Agreement or the other Loan Documents in
accordance with the respective terms thereof, the rights hereunder, to the
extent applicable to the indebtedness so assigned, may be transferred with such
indebtedness. This Guaranty shall be binding upon each of the Guarantors and
their respective successors and assigns.
SECTION 13. Changes in Writing. Other than in connection with the
addition of additional Subsidiaries, which become parties hereto by executing an
Addendum hereto in the form attached as Annex I, neither this Guaranty nor any
provision hereof may be changed, waived, discharged or terminated orally, but
only in writing signed by each of the Guarantors and the Administrative Agent
with the consent of the Required Lenders under the Credit Agreement (or all of
the Lenders if required pursuant to the terms of Section 9.3 of the Credit
Agreement).
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SECTION 14. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION
735 ILCS SECTION 105/5-1 ET SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT
OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS. ANY DISPUTE BETWEEN THE GUARANTORS AND THE
ADMINISTRATIVE AGENT OR ANY LENDER, OR ANY OTHER HOLDER OF SECURED OBLIGATIONS
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS GUARANTY, AND WHETHER ARISING
IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1 ET
SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE
STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
SECTION 15. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(a) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (b), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH, THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE
PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES
HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (a) ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(b) OTHER JURISDICTIONS. EACH GUARANTOR AGREES THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF SECURED OBLIGATIONS SHALL HAVE THE
RIGHT TO PROCEED AGAINST EACH GUARANTOR OR ITS RESPECTIVE PROPERTY IN A COURT IN
ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER ANY
GUARANTOR OR (2) REALIZE ON THE COLLATERAL GRANTED IN CONNECTION HEREWITH, OR
(3) IN ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH
PERSON. EACH GUARANTOR AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE
COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON IN A LOCATION OUTSIDE OF
ILLINOIS TO REALIZE ON ANY SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT
OR OTHER COURT ORDER IN FAVOR OF SUCH PERSON; PROVIDED THAT THE GUARANTORS'
RIGHT TO ASSERT PERMISSIVE COUNTERCLAIMS IN STATE OR FEDERAL COURTS
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LOCATED IN CHICAGO, ILLINOIS SHALL BE PRESERVED. EACH GUARANTOR WAIVES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS
COMMENCED A PROCEEDING DESCRIBED IN THIS SUBSECTION (b).
(c) VENUE. THE LENDERS AND EACH GUARANTOR IRREVOCABLY WAIVES ANY
OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS
GUARANTY OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(d) EACH GUARANTOR WAIVES PERSONAL SERVICE OF ANY PROCESS UPON IT AND
IRREVOCABLY APPOINTS CT CORPORATION, WITH OFFICES AT 000 XXXXX XXXXXXX XXXXXX,
XXXXXXX, XXXXXXXX 00000, AS THE GUARANTOR'S AGENT FOR THE PURPOSE OF ACCEPTING
SERVICE OF PROCESS ISSUED BY ANY COURT. NOTHING HEREIN SHALL IN ANY WAY BE
DEEMED TO LIMIT THE ABILITY OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE
ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.
(e) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS GUARANTY WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(f) WAIVER OF BOND. EACH GUARANTOR WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS
OR PROCEEDING TO REALIZE ON THE COLLATERAL, ENFORCE ANY JUDGMENT OR OTHER COURT
ORDER ENTERED IN FAVOR OF SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE,
TEMPORARY RESTRAINING ORDER, PRELIMINARY OR PERMANENT INJUNCTION, THIS GUARANTY
OR ANY OTHER LOAN DOCUMENT.
(g) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS GUARANTY AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 15, WITH ITS COUNSEL.
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SECTION 16. No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Guaranty. In the
event an ambiguity or question of intent or interpretation arises, this Guaranty
shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Guaranty.
SECTION 17. Taxes, Expenses of Enforcement, etc.
(a) Taxes.
(i) Any and all payments by any of the Guarantors hereunder
(whether in respect of principal, interest, fees or otherwise) shall be
made free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings or
any interest, penalties and liabilities with respect thereto including
those arising after the date hereof as a result of the adoption of or
any change in any law, treaty, rule, regulation, guideline or
determination of a Governmental Authority or any change in the
interpretation or application thereof by a Governmental Authority but
excluding, in the case of each Lender and the Administrative Agent,
such taxes (including income taxes, franchise taxes and branch profit
taxes) as are imposed on or measured by such Lender's or the
Administrative Agent's, as the case may be, net income by the United
States of America or any Governmental Authority of the jurisdiction
under the laws of which such Lender or the Administrative Agent, as the
case may be, is organized (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings, and liabilities which the
Administrative Agent or a Lender determines to be applicable to this
Guaranty, the other Loan Documents, the Revolving Loan Commitments, the
Loans or the Letters of Credit being hereinafter referred to as
"Taxes"). If any Guarantor shall be required by law to deduct or
withhold any Taxes from or in respect of any sum payable hereunder to
any Holder of Secured Obligations, (i) the sum payable shall be
increased as may be necessary so that after making all required
deductions or withholdings (including deductions applicable to
additional sums payable under this Section 17(a)) such Lender or
Administrative Agent (as the case may be) receives an amount equal to
the sum it would have received had no such deductions or withholdings
been made, (ii) the applicable Guarantor shall make such deductions or
withholdings, and (iii) the applicable Guarantor shall pay the full
amount deducted or withheld to the relevant taxation authority or other
authority in accordance with applicable law. If a withholding tax of
the United States of America or any other Governmental Authority shall
be or become applicable (y) after the date of this Guaranty, to such
payments by the applicable Guarantor made to the Lending Installation
or any other office that a Lender may claim as its Lending
Installation, or (z) after such Lender's selection and designation of
any other Lending Installation, to such payments made to such other
Lending Installation, such Lender shall use reasonable efforts to make,
fund and maintain the affected Loans through another Lending
Installation of such Lender in another jurisdiction so as to reduce the
applicable
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Guarantor's liability hereunder, if the making, funding or maintenance
of such Loans through such other Lending Installation of such Lender
does not, in the judgment of such Lender, otherwise adversely affect
such Loans, or obligations under the Revolving Loan Commitments of such
Lender.
(ii) In addition, each of the Guarantors agrees to pay any
present or future stamp or documentary taxes or any other excise or
property taxes, charges, or similar levies which arise from any payment
made hereunder, or from the execution, delivery or registration of, or
otherwise with respect to, this Guaranty, the other Loan Documents, the
Revolving Loan Commitments, the Loans or the Letters of Credit
(hereinafter referred to as "Other Taxes").
(iii) Subject to the exceptions in the Credit Agreement, each
of the Guarantors indemnifies each Lender and the Administrative Agent
for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any Governmental
Authority on amounts payable under this Section 17(a)) paid by such
Lender or the Administrative Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. This indemnification shall be
made within thirty (30) days after the date such Lender or the
Administrative Agent (as the case may be) makes written demand
therefor. If the Taxes or Other Taxes with respect to which any
Guarantor has made either a direct payment to the taxation or other
authority or an indemnification payment hereunder are subsequently
refunded to any Lender, such Lender will return to the applicable
Guarantor an amount equal to the lesser of the indemnification payment
or the refunded amount. A certificate as to any additional amount
payable to any Lender or the Administrative Agent under this Section
17(a) submitted to the applicable Guarantor and the Administrative
Agent (if a Lender is so submitting) by such Lender or the
Administrative Agent shall show in reasonable detail the amount payable
and the calculations used to determine such amount and shall, absent
manifest error, be deemed presumptively correct. With respect to such
deduction or withholding for or on account of any Taxes and to confirm
that all such Taxes have been paid to the appropriate Governmental
Authorities, the applicable Guarantor or Guarantors shall promptly (and
in any event not later than thirty (30) days after receipt) furnish to
each Lender and the Administrative Agent such certificates, receipts
and other documents as may be required (in the reasonable judgment of
such Lender or the Administrative Agent) to establish any tax credit to
which such Lender or the Administrative Agent may be entitled.
(iv) Within thirty (30) days after the date of any payment of
Taxes or Other Taxes by any Guarantor, the applicable Guarantor shall
furnish to the Administrative Agent the original or a certified copy of
a receipt evidencing payment thereof.
(v) Without prejudice to the survival of any other agreement
of the Guarantors hereunder, the agreements and obligations of the
Guarantors contained in this
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Section 17(a) shall survive the payment in full of all Guaranteed
Obligations and the termination of this Guaranty.
(vi) Each Lender (including any Replacement Lender or
Purchaser) that is not created or organized under the laws of the
United States of America or a political subdivision thereof (each a
"Non-U.S. Lender") shall deliver to the Borrowers and the
Administrative Agent on or before the Closing Date, or, if later, the
date on which such Lender becomes a Lender pursuant to Section 13.3 of
the Credit Agreement (and from time to time thereafter upon the request
of the Borrowers or the Administrative Agent, but only for so long as
such Non-U.S. Lender is legally entitled to do so), either (1) two (2)
duly completed copies of either (A) IRS Form W-8BEN, or (B) IRS Form
W-8ECI, or in either case an applicable successor form; or (2) in the
case of a Non-U.S. Lender that is not legally entitled to deliver
either form listed in clause (vi)(1), (x) a certificate of a duly
authorized officer of such Non-U.S. Lender to the effect that such
Non-U.S. Lender is not (A) a "bank" within the meaning of Section
881(c)(3)(A) of the Code, (B) a "10 percent shareholder" of any
Guarantor within the meaning of Section 881(c)(3)(B) of the Code, or
(C) a controlled foreign corporation receiving interest from a related
person within the meaning of Section 881(c)(3)(C) of the Code (such
certificate, an "Exemption Certificate") and (y) two (2) duly completed
copies of IRS Form W-8BEN or applicable successor form. Each such
Lender further agrees to deliver to the Borrowers and the
Administrative Agent from time to time a true and accurate certificate
executed in duplicate by a duly authorized officer of such Lender in a
form satisfactory to the Borrowers and the Administrative Agent, before
or promptly upon the occurrence of any event requiring a change in the
most recent certificate previously delivered by it to the Borrowers and
the Administrative Agent pursuant to this Section 17(a). Further, each
Lender which delivers a form or certificate pursuant to this clause
(vi) covenants and agrees to deliver to the Borrowers and the
Administrative Agent within fifteen (15) days prior to the expiration
of such form, for so long as this Guaranty is still in effect, another
such certificate and/or two (2) accurate and complete original
newly-signed copies of the applicable form (or any successor form or
forms required under the Code or the applicable regulations promulgated
thereunder).
(vii) Each Lender shall promptly furnish to the Borrowers and
the Administrative Agent such additional documents as may be reasonably
required by any Guarantor or the Administrative Agent to establish any
exemption from or reduction of any Taxes or Other Taxes required to be
deducted or withheld and which may be obtained without undue expense to
such Lender. Notwithstanding any other provision of this Section 17(a),
no Guarantor shall be obligated to gross up any payments to any Lender
pursuant to Section 17(a)(i), or to indemnify any Lender pursuant to
Section 17(a)(iii), in respect of United States federal withholding
taxes to the extent imposed as a result of (x) the failure of such
Lender to deliver to the Borrowers the form or forms and/or an
Exemption Certificate, as applicable to such Lender, pursuant to
Section 17(a)(vi), (y) such form or forms and/or Exemption Certificate
not establishing a complete exemption from U.S. federal withholding tax
or the information or certifications made therein by the Lender being
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untrue or inaccurate on the date delivered in any material respect, or
(z) the Lender designating a successor Lending Installation at which it
maintains its Loans which has the effect of causing such Lender to
become obligated for tax payments in excess of those in effect
immediately prior to such designation; provided, however, that the
applicable Guarantor shall be obligated to gross up any payments to any
such Lender pursuant to Section 17(a)(i), and to indemnify any such
Lender pursuant to Section 17(a)(iii), in respect of United States
federal withholding taxes if (x) any such failure to deliver a form or
forms or an Exemption Certificate or the failure of such form or forms
or exemption certificate to establish a complete exemption from U.S.
federal withholding tax or inaccuracy or untruth contained therein
resulted from a change in any applicable statute, treaty, regulation or
other applicable law or any interpretation of any of the foregoing
occurring after the date hereof, which change rendered such Lender no
longer legally entitled to deliver such form or forms or Exemption
Certificate or otherwise ineligible for a complete exemption from U.S.
federal withholding tax, or rendered the information or the
certifications made in such form or forms or Exemption Certificate
untrue or inaccurate in any material respect, (y) the redesignation of
the Lender's Lending Installation was made at the request of the
Borrowers or (z) the obligation to gross up payments to any such Lender
pursuant to Section 17(a)(i), or to indemnify any such Lender pursuant
to Section 17(a)(iii), is with respect to a Purchaser that becomes a
Purchaser as a result of an assignment made at the request of the
Borrowers.
(viii) Upon the request, and at the expense of the Borrowers,
each Lender to which any Guarantor is required to pay any additional
amount pursuant to this Section 17(a), shall reasonably afford the
applicable Guarantor the opportunity to contest, and shall reasonably
cooperate with the applicable Guarantor in contesting, the imposition
of any Tax giving rise to such payment; provided, that (i) such Lender
shall not be required to afford the applicable Guarantor the
opportunity to so contest unless the applicable Guarantor shall have
confirmed in writing to such Lender its obligation to pay such amounts
pursuant to this Guaranty; and (ii) the Borrowers shall reimburse such
Lender for its reasonable attorneys' and accountants' fees and
disbursements incurred in so cooperating with the applicable Guarantor
in contesting the imposition of such Tax; provided, however, that
notwithstanding the foregoing, no Lender shall be required to afford
any Guarantor the opportunity to contest, or cooperate with the
applicable Guarantor in contesting, the imposition of any Taxes, if
such Lender in good faith determines that to do so would have an
adverse effect on it.
(b) Expenses of Enforcement, Etc. Subject to the terms of the Credit
Agreement, after the occurrence of a Default under the Credit Agreement, the
Lenders shall have the right at any time to direct the Administrative Agent to
commence enforcement proceedings with respect to the Guaranteed Obligations. The
Guarantors agree to reimburse the Administrative Agent and the Holders of
Secured Obligations for any reasonable costs and out-of-pocket expenses
(including reasonable attorneys' fees and time charges of attorneys for the
Administrative Agent and the Holders of Secured Obligations, which attorneys may
be employees of the Administrative Agent or the Holders of Secured Obligations)
paid or incurred by the Administrative Agent or any
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Holders of Obligation in connection with the collection and enforcement of
amounts due under the Loan Documents, including without limitation this
Guaranty. The Administrative Agent agrees to distribute payments received from
any of the Guarantors hereunder to the Holders of Secured Obligations on a pro
rata basis for application in accordance with the terms of the Credit Agreement.
SECTION 18. Setoff. At any time after all or any part of the Guaranteed
Obligations have become due and payable (by acceleration or otherwise), each
Holder of Secured Obligations and the Administrative Agent may, without notice
to any Guarantor and regardless of the acceptance of any security or collateral
for the payment hereof, appropriate and apply toward the payment of all or any
part of the Guaranteed Obligations (a) any indebtedness due or to become due
from such Holder of Secured Obligations or the Administrative Agent to any
Guarantor, and (b) any moneys, credits or other property belonging to any
Guarantor, at any time held by or coming into the possession of such Holder of
Secured Obligations or the Administrative Agent or any of their respective
affiliates.
SECTION 19. Financial Information. Each Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of the
Borrowers and any and all endorsers and/or other Guarantors of all or any part
of the Guaranteed Obligations, and of all other circumstances bearing upon the
risk of nonpayment of the Guaranteed Obligations, or any part thereof, that
diligent inquiry would reveal, and each Guarantor hereby agrees that none of the
Holders of Secured Obligations or the Administrative Agent shall have any duty
to advise such Guarantor of information known to any of them regarding such
condition or any such circumstances. In the event any Holder of Secured
Obligations or the Administrative Agent, in its sole discretion, undertakes at
any time or from time to time to provide any such information to a Guarantor,
such Holder of Secured Obligations or the Administrative Agent shall be under no
obligation (a) to undertake any investigation not a part of its regular business
routine, (b) to disclose any information which such Holder of Secured
Obligations or the Administrative Agent, pursuant to accepted or reasonable
commercial finance or banking practices, wishes to maintain confidential or (c)
to make any other or future disclosures of such information or any other
information to such Guarantor.
SECTION 20. 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 21. Merger. This Guaranty represents the final agreement of
each of the Guarantors with respect to the matters contained herein and may not
be contradicted by evidence of prior or contemporaneous agreements, or
subsequent oral agreements, between the Guarantor and any Holder of Secured
Obligations or the Administrative Agent.
SECTION 22. Headings. Section headings in this Guaranty are for
convenience of reference only and shall not govern the interpretation of any
provision of this Guaranty.
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IN WITNESS WHEREOF, the Initial Guarantors have caused this
Guaranty to be duly executed by its authorized officer as of the day and year
first above written.
SYBRON DENTAL MANAGEMENT, INC.
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Representative
XXXX CORPORATION
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Representative
ORMCO CORPORATION
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Representative
METREX RESEARCH CORPORATION
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Representative
PINNACLE PRODUCTS, INC.
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Representative
SIGNATURE PAGE TO GUARANTY
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ANNEX I TO GUARANTY
Reference is hereby made to the Guaranty (the "Guaranty") made as of
the 11th day of December, 2000, by and among SYBRON DENTAL MANAGEMENT, INC.,
XXXX CORPORATION, ORMCO CORPORATION, METREX RESEARCH CORPORATION and PINNACLE
PRODUCTS, INC. (each an "Initial Guarantor" and along with any additional
Material Domestic Subsidiaries of SDS, which become parties thereto and together
with the undersigned, the "Guarantors") in favor of the Administrative Agent,
for the ratable benefit of the Holders of Secured Obligations, under the Credit
Agreement. Capitalized terms used herein and not defined herein shall have the
meanings given to them in the Guaranty. By its execution below, the undersigned
[NAME OF NEW GUARANTOR], a [corporation] [partnership] [limited liability
company], agrees to become, and does hereby become, a Guarantor under the
Guaranty and agrees to be bound by such Guaranty as if originally a party
thereto. By its execution below, the undersigned represents and warrants as to
itself that all of the representations and warranties contained in Section 2 of
the Guaranty are true and correct in all respects as of the date hereof.
IN WITNESS WHEREOF, [NAME OF NEW GUARANTOR], a [corporation]
[partnership] [limited liability company] has executed and delivered this Annex
I counterpart to the Guaranty as of this __________ day of _________, ____.
[NAME OF NEW GUARANTOR]
By:
------------------------------------
Name:
Title:
ANNEX I TO GUARANTY
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