EXHIBIT 10.3
GUARANTEE AGREEMENT
GUARANTEE dated as of August 31, 2003 is made by SUEZ, a societe anonyme
organized under the laws of the Republic of France ("GUARANTOR"), in favor of
Blackstone/Neptune Acquisition Company L.L.C., a Delaware limited liability
company ("BUYER").
WHEREAS, each of Xxx Holding Company, a Delaware corporation ("XXX"), and
Nalco International S.A.S., a societe par actions simplifiee organized under the
laws of the Republic of France ("NIS" and, together with XXX, the "SELLERS" and
each a "SELLER"), are indirect wholly-owned subsidiaries of Guarantor; and
WHEREAS, the Sellers and Buyer have concurrently herewith entered into that
certain Stock Purchase Agreement dated as of as the date hereof (the "STOCK
PURCHASE AGREEMENT"; unless otherwise defined herein, capitalized terms used
herein are used as defined in the Stock Purchase Agreement), which provides for,
among other things, the acquisition by Buyer, and the sale by the Sellers, of
the Shares;
NOW, THEREFORE, in order to induce Buyer to enter into the Stock Purchase
Agreement, Guarantor hereby issues and delivers to and for the benefit of Buyer
this Guarantee (the "GUARANTEE"):
1. The Guarantee. Guarantor hereby unconditionally guarantees the full and
punctual payment of all amounts which are or may become due and payable by any
Seller under the Stock Purchase Agreement (the "GUARANTEED OBLIGATIONS"),
including, but not limited to, payment of any amounts that may become due and
payable by any Seller under Section 8.09 or Section 11.02 thereof. Upon failure
by any Seller to pay punctually any Guaranteed Obligation, Guarantor shall pay
the Guaranteed Obligation within five business days after demand therefor. This
Guarantee is intended to constitute a guarantee of payment and performance and
not merely a guarantee of collection and shall not be conditioned upon the
pursuit of any remedies against any Seller. Any payment shall be in immediately
available funds and at the place specified in the demand.
2. Guarantee Unconditional and Full Performance. The obligations of Guarantor
pursuant hereunder shall be unconditional and absolute, and shall remain in full
force and effect until all Guaranteed Obligations under the Stock Purchase
Agreement have been performed in full.
3. Subrogation. Upon performance by Guarantor of any Guaranteed Obligation,
Guarantor shall be subrogated to the rights of Buyer with respect to such
Guaranteed Obligation.
4. Representations and Warranties. Guarantor represents and warrants to
Buyer that:
(a) Corporate Existence and Powers. Guarantor is a societe anonyme
duly organized, validly existing and in good standing under the laws of the
Republic of France.
(b) Corporate Authorization. The execution, delivery and performance
by Guarantor of this Guarantee are within Guarantor's corporate or other
organizational powers and have been duly authorized by all necessary
corporate or other organizational action on the part of Guarantor. This
Guarantee constitutes a valid and binding agreement of Guarantor.
(c) Governmental Authorization. The execution, delivery and
performance by Guarantor of this Guarantee and the consummation of the
transactions contemplated hereby require no action by or in respect of, or
filing with, any governmental body, agency or official.
(d) Noncontravention. The execution, delivery and performance by
Guarantor of this Guarantee and the consummation of the transactions
contemplated hereby do not and will not (i) violate the organizational
documents of Guarantor or (ii) violate in any material respect any material
applicable law, rule, regulation, judgment, injunction, order or decree.
5. Amendments and Waivers. Any provision of this Guarantee may be amended
or waived if, but only if, such amendment or waiver is in writing and is signed
by Buyer and Guarantor.
6. Successors and Assigns. This Guarantee shall be binding upon Guarantor
and its successors and assigns.
7. Governing Law. This Guarantee shall be construed in accordance with and
governed by the law of the State of New York.
8. Jurisdiction. The parties hereto agree that any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement shall be brought in the United
States District Court for the Southern District of New York or any New York
State court sitting in New York City, so long as one of such courts shall have
subject matter jurisdiction over such suit, action or proceeding, and that any
cause of action arising out of this Agreement shall be deemed to have arisen
from a transaction of business in the State of New York, and each of the parties
hereby irrevocably consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
that it may now or hereafter have to
the laying of the venue of any such suit, action or proceeding in any such court
or that any such suit, action or proceeding which is brought in any such court
has been brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Guarantee to be
duly executed by their respective authorized officers as of the day and year
first above written.
SUEZ
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Senior Vice President, Financial
Operations, Treasury and Tax
Agreed to and accepted by:
BLACKSTONE/NEPTUNE ACQUISITION COMPANY, L.L.C.
By: /s/ Xxxxx Xxx
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Name: Xxxxx Xxx
Title: President
