SUBSIDIARY GUARANTY AGREEMENT
Guaranty Agreement dated as of July 31, 1998 (as amended from
time to time, this "Subsidiary Guaranty Agreement") by the undersigned
Subsidiaries (the "Subsidiary Guarantors") of Sybron Chemicals Inc., a
Delaware corporation (the "Borrower"), for the benefit of the Lender Parties
(as defined in the Credit Agreement referred to below).
WHEREAS, the Borrower has entered into a Credit Agreement dated
as of July 31, 1998 among the Borrower, the Lenders, DLJ Capital Funding,
Inc., as Syndication Agent, ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Documentation Agent, and Mellon Bank, N.A., as Administrative Agent, LC
Issuing Bank and Collateral Agent (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"); and
WHEREAS, the Lenders and the LC Issuing Bank are not willing to
make loans or maintain, issue or participate in letters of credit under the
Credit Agreement unless the Borrower causes each of its U.S. Subsidiaries to
guarantee the performance of the Borrower's obligations under the Loan
Documents referred to therein;
NOW, THEREFORE, each Subsidiary Guarantor agrees as follows:
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. The Guarantees. Subject to Section 9 hereof, each
Subsidiary Guarantor, jointly and severally, unconditionally and irrevocably
guarantees the full and punctual payment of all present and future indebtedness
and other obligations of the Borrower evidenced by or arising under any Loan
Document as and when the same shall become due and payable, whether at
maturity or by declaration or otherwise, according to the terms hereof and
thereof (including any interest which accrues on any of the foregoing
obligations after the commencement of any case, proceeding or other action
relating to the bankruptcy, insolvency or reorganization of the Borrower,
whether or not allowed or allowable as a claim in any such proceeding). If the
Borrower fails punctually to pay any indebtedness or other obligation
guaranteed hereby, each Subsidiary Guarantor, jointly and severally,
unconditionally agrees to cause such payment to be made punctually as and when
the same shall become due and payable, whether at maturity or by declaration
or otherwise.
Section 3. Taxes. Each Subsidiary Guarantor agrees to comply
with Section 8.04 of the Credit Agreement as if it were a party thereto and
each reference in such Section to the Borrower was a reference to such
Subsidiary Guarantor.
Section 4. Guarantee Unconditional. Except as provided in
Section 9 hereof, the obligations of each Subsidiary Guarantor under this
Subsidiary Guaranty Agreement 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, compromise, waiver or
release in respect of any obligation of the Borrower or any other Subsidiary
Guarantor under any Loan Document, by operation of law or otherwise;
(b) any modification, amendment or waiver of or supplement to
any Loan Document;
(c) any release, impairment, non-perfection or invalidity of
any direct or indirect security, or of any guarantee or other liability of any
third party, for any obligation of the Borrower or any Subsidiary Guarantor
under any Loan Document;
(d) any change in the corporate existence, structure or
ownership of the Borrower or any Subsidiary Guarantor, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting the Borrower
or any other Subsidiary Guarantor or its assets, or any resulting release or
discharge of any obligation of the Borrower or any other Subsidiary Guarantor
contained in any Financing Document;
(e) the existence of any claim, set-off or other rights which
such Subsidiary Guarantor may have at any time against the Borrower or any
other Subsidiary Guarantor, any Lender Party or any other Person, whether
or not arising in connection with this Subsidiary Guaranty Agreement;
provided that nothing herein shall prevent the assertion of any such claim
by separate suit or compulsory counterclaim;
(f) any invalidity or unenforceability relating to or against
the Borrower or any other Subsidiary Guarantor for any reason of any Loan
Document, or any provision of applicable law or regulation purporting to
prohibit the payment by the Borrower or any other Subsidiary Guarantor of any
amount payable by it under any Loan Document; or
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(g) any other act or omission to act or delay of any kind by
the Borrower or any Subsidiary Guarantor, any Lender Party or any other Person
or any other circumstance whatsoever that might, but for the provisions of
this Section, constitute a legal or equitable discharge of such Subsidiary
Guarantor's obligations under this Subsidiary Guaranty Agreement.
Section 5. Discharge Only Upon Payment in Full; Reinstatement
in Certain Circumstances. Each Subsidiary Guarantor's obligations under this
Subsidiary Guaranty Agreement constitute a continuing guaranty and shall
remain in full force and effect until the Credit Exposure of each Lender shall
have been reduced to zero and all amounts payable by the Borrower under the
Loan Documents shall have been paid in full. If at any time any amount
payable by the Borrower under any Loan Document is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, each Subsidiary Guarantor's
obligations under this Subsidiary Guaranty Agreement with respect to such
payment shall be reinstated at such time as though such payment had become due
but had not been made at such time.
Section 6. Waiver. Each Subsidiary Guarantor irrevocably
waives acceptance hereof, presentment, demand, protest and any notice not
provided for herein, as well as any requirement that at any time any action be
taken by any Person against the Borrower or any other Person or against any
security.
Section 7. Subrogation and Contribution. When any Subsidiary
Guarantor makes any payment hereunder with respect to the obligations of the
Borrower, such Subsidiary Guarantor shall be subrogated to the rights of the
payee against the Borrower with respect to the portion of such obligations paid
by such Subsidiary Guarantor, and shall also have a right of contribution in
respect of such payment against all other Subsidiary Guarantors pro rata among
them based on their respective net fair value as enterprises; provided that
such Subsidiary Guarantor shall not enforce any payment by way of subrogation
against the Borrower or contribution against any other Subsidiary Guarantor so
long as any Lender has any Credit Exposure under the Credit Agreement or any
amount payable by the Borrower under any Loan Document remains unpaid.
Section 8. Stay of Acceleration. If acceleration of the time
for payment of any amount payable by the Borrower under any Loan Document is
stayed upon the insolvency, bankruptcy or reorganization of the Borrower, all
such amounts otherwise subject to acceleration under the terms of such Loan
Document shall nonetheless be payable by each Subsidiary Guarantor hereunder
forthwith on demand by the Administrative Agent made at the request of the
requisite number of Lenders specified in Article 6 of the Credit Agreement.
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Section 9. Limit of Liability. The Subsidiary Guarantors and
the beneficiaries of this Subsidiary Guaranty Agreement intend that this
Subsidiary Guaranty Agreement shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. If and to the extent that the obligations of any
Subsidiary Guarantor under this Subsidiary Guaranty Agreement would, in the
absence of this sentence, be adjudicated to be invalid or unenforceable
because of any applicable state or federal law relating to fraudulent
conveyances or transfers, then the amount of such Subsidiary Guarantor's
liability hereunder in respect of the obligations of the Borrower guaranteed
hereunder shall be deemed to be reduced ab initio to the maximum amount which
would be permitted without causing such Subsidiary Guarantor's obligations
hereunder to be so invalidated.
Section 10. Additional Subsidiary Guarantors. Any Subsidiary
which is not a Subsidiary Guarantor may execute and deliver to the
Administrative Agent a letter substantially in the form of Exhibit A hereto,
whereupon such Subsidiary shall be both a Subsidiary Guarantor and an Obligor
for all purposes of the Loan Documents.
Section 11. Notices. Notices and other communications
hereunder shall be given, and take effect, in the manner specified in or
pursuant to Section 9.01 of the Credit Agreement and (i) in the case of any
Lender Party, shall be given to such Lender Party at the address, telex number
or facsimile number specified for it in or pursuant to such Section and (ii)
in the case of any Subsidiary Guarantor, shall be given to such Subsidiary
Guarantor at the address, telex number or facsimile number specified for the
Borrower in or pursuant to such Section.
Section 12. Governing Law; Submission to Jurisdiction. This
Subsidiary Guaranty Agreement shall be governed by and construed in accordance
with the laws of the State of New York. Each Subsidiary Guarantor hereby
submits to the nonexclusive jurisdiction of the United States District Court
for the Southern District of New York and of any New York State court sitting
in New York City for purposes of all legal proceedings arising out of or
relating to the Loan Documents or the transactions contemplated thereby. Each
Subsidiary Guarantor irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court and any claim that any
such proceeding brought in such a court has been brought in an inconvenient
forum.
Section 13. Successors and Assigns. This Subsidiary Guaranty
Agreement is for the benefit of the Lender Parties and their respective
successors and assigns. If any Loans, participations in Letters of Credit,
Notes or other amounts payable under the Loan Documents are assigned pursuant
to and in accordance with the terms of Section 9.06 of the Credit Agreement,
the rights hereunder, to the extent applicable to the indebtedness so
assigned, shall be transferred with such indebtedness. All the provisions of
this Subsidiary Guaranty Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
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Section 14. No Waiver. No failure or delay by any Lender
Party in exercising any right, power or privilege under any Loan Document 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 the Loan
Documents shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 15. Amendments and Waivers. Any provision of this
Subsidiary Guaranty Agreement may be amended, supplemented, modified or waived
as (and only as) provided in Section 9.05(b) of the Credit Agreement.
Section 16. Counterparts and Effectiveness. This Subsidiary
Guaranty Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures hereto and
thereto were upon the same instrument. This Subsidiary Guaranty Agreement
shall become effective as to each Subsidiary Guarantor when the Administrative
Agent shall have received a counterpart hereof signed by such Subsidiary
Guarantor and the Credit Agreement shall have become effective in accordance
with its terms. Thereafter, upon execution and delivery of a letter
substantially in the form of Exhibit A hereto on behalf of any other
Subsidiary, this Subsidiary Guaranty Agreement shall become effective with
respect to such other Subsidiary as of the date of such delivery.
Section 17. WAIVER OF JURY TRIAL. EACH SUBSIDIARY GUARANTOR,
AND EACH LENDER PARTY, UPON ITS ACCEPTANCE OF THIS SUBSIDIARY GUARANTY
AGREEMENT, HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUBSIDIARY GUARANTY
AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
EACH SUBSIDIARY GUARANTOR (A) WARRANTS AND REPRESENTS THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY LENDER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH LENDER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES TO THE
LOAN DOCUMENTS HAVE BEEN INDUCED TO ENTER INTO THIS SUBSIDIARY GUARANTY
AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY (AMONG OTHER THINGS)
THE WAIVERS, REPRESENTATIONS AND WARRANTIES IN THIS SECTION 16 AND SECTION
9.11 OF THE CREDIT AGREEMENT.
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IN WITNESS WHEREOF, each Subsidiary Guarantor has caused this
Subsidiary Guaranty Agreement to be duly executed by its authorized officer
as of the day and year first above written.
SYBRON CHEMICAL HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman
RUCO POLYMER CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman
RUCO POLYMER COMPANY OF GEORGIA, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman
Accepted and Acknowledged:
MELLON BANK, N.A., as
Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
EXHIBIT A
to the Subsidiary
Guaranty Agreement
[Date]
Mellon Bank, N.A.,
as Administrative Agent
[Address]
Gentlemen:
Reference is made to the Credit Agreement dated as of
__________, 1998 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement") among Sybron Chemicals Inc., the Lenders, DLJ
Capital Funding, Inc., as Syndication Agent, ▇▇▇▇▇▇ Guaranty Trust Company, as
Documentation Agent, and Mellon Bank, N.A., as Administrative Agent, LC
Issuing Bank and Collateral Agent, and to the Subsidiary Guaranty Agreement
referred to therein, copies of each of which have been furnished to the
undersigned.
The undersigned hereby agrees and confirms that effective as of
the date hereof, the undersigned is a party to the Subsidiary Guaranty
Agreement and is a "Subsidiary Guarantor" and an "Obligor" for all purposes of
the Loan Documents (as defined in the Credit Agreement).
Very truly yours,
[Name of Subsidiary]
By:__________________________
Name:
Title: