<PAGE> 1
Exhibit 2.2
EXHIBIT C
GENERAL ASSIGNMENT, ASSUMPTION AND AGREEMENT
REGARDING LITIGATION, CLAIMS AND OTHER LIABILITIES
This GENERAL ASSIGNMENT, ASSUMPTION AND AGREEMENT REGARDING LITIGATION,
CLAIMS AND OTHER LIABILITIES (this "Agreement"), is made as of __________, 2000,
by and between SYBRON INTERNATIONAL CORPORATION, a Wisconsin corporation
("Sybron"), and SYBRON DENTAL SPECIALITIES, INC. (formerly known as "SDS Holding
Co."), a Delaware corporation ("SDS").
RECITALS
WHEREAS, pursuant to the Contribution Agreement, Plan and Agreement of
Reorganization and Distribution between the parties dated as of _________, 2000
(the "Contribution Agreement") and pursuant to certain other agreements of even
date herewith, Sybron is transferring, or will transfer, to SDS, all of the
assets associated with the Dental Business (as defined in the Contribution
Agreement) consisting of (a) the equity interests of SDM (as defined in the
Contribution Agreement) (and, indirectly, the other Dental Business
Subsidiaries, as defined in the Contribution Agreement) and (b) the
Miscellaneous Dental Assets (as defined in the Contribution Agreement) ((a) and
(b) together referred to as the "Dental Assets");
WHEREAS, the parties intend hereby to provide for the transfer to SDS of
all of the Dental Assets;
WHEREAS, the parties intend hereby to provide for the assumption by SDS of
the Miscellaneous Dental Liabilities (as defined in the Contribution Agreement);
WHEREAS, by this Agreement Sybron and SDS seek to implement the general
principle that, with the exceptions noted herein and in the other Contribution
Documents (as defined in the Contribution Agreement), following the Effective
Date, SDS and the Dental Business Subsidiaries shall be responsible for any
liabilities associated with or arising at any time out of the Dental Business,
and Sybron and the Laboratory Business Subsidiaries (as defined in the
Contribution Agreement) shall be responsible for any liabilities associated with
or arising at any time out of the Laboratory Business (as defined in the
Contribution Agreement).
NOW, THEREFORE, in consideration of the premises and the mutual promises
contained in this Agreement and the Contribution Documents, the parties hereto
agree as follows:
<PAGE> 2
ARTICLE IASSIGNMENT AND ASSUMPTION
1.1 General Assignment. Effective as of the Effective Date, and except as
specifically provided in the Contribution Documents, Sybron hereby assigns,
transfers, conveys and delivers to SDS all of its right, title, and interest in
and to, and SDS hereby accepts, all of the Dental Assets.
1.2 General Assumption. Effective as of the Effective Date, and except as
otherwise specifically provided in the Contribution Documents, without any
further responsibility or liability of, or recourse to, Sybron, any subsidiary
of Sybron, or any of their respective former or present directors, shareholders,
officers, employees, agents, consultants, representatives, successors,
transferees or assignees, exclusive of SDS and its subsidiaries (collectively,
the "Sybron Parties"), SDS hereby irrevocably assumes all of the obligations and
liabilities arising out of, relating to or associated with: (a) the Dental
Assets and (b) the Miscellaneous Dental Liabilities (such assumed obligations
and liabilities being herein referred to collectively as the "Assumed
Liabilities"); whether such Assumed Liabilities are matured or unmatured,
liquidated or unliquidated, fixed or contingent, known or unknown, whether
arising out of circumstances existing prior to, on or after the Effective Date,
and whether or not reflected on the books of Sybron. SDS and the Dental Business
Subsidiaries shall be responsible for the Assumed Liabilities, regardless of
when or where any such Assumed Liabilities arose or arise, or whether the acts
or omissions on which they are based occurred or are alleged to have occurred
prior to, on or after the Effective Date, regardless of where or against whom
such Assumed Liabilities are asserted or whether such Assumed Liabilities are
asserted prior or subsequent to the Effective Date, and regardless of whether
such Assumed Liabilities arose from negligence, recklessness, violation of law,
fraud or misrepresentation by Sybron or any of its former or present directors,
officers, employees, agents, subsidiaries or affiliates.
1.3 Special Assumption Arrangement. The parties acknowledge and agree that
the trade name associated with the Dental Business as of the Effective Date is
the subject of a separate Trade Name Assignment and Transitional Trade Name Use
and License Agreement, of even date herewith, between the parties. The transfer
of assets and assumption of obligations, liabilities, and expenses provided for
in this Agreement is subject in all respects to the provisions of that separate
agreement insofar as the provisions of this Agreement may be deemed to relate to
the subject matter of that separate agreement and this Agreement shall not be
deemed to effect the transfer of the trade name.
1.4 Liabilities Not Assumed. Notwithstanding anything contained in this
Agreement to the contrary, SDS does not assume any obligation, liability or
expense if and to the extent that:
(a) such obligation, liability or expense (in whole or in part)
arises out of, relates to or is associated with the Laboratory
Business, Laboratory Business Subsidiaries or its or their
assets; or
(b) Sybron has expressly agreed to retain such obligation, liability
or expense pursuant to any Contribution Document (such
obligations, liabilities, and
C-2
<PAGE> 3
expenses referred to in clauses (i) and (ii) of this sentence
being referred to herein as the "Retained Liabilities").
Sybron and the Laboratory Business Subsidiaries shall retain responsibility
for the Retained Liabilities without any further responsibility or liability of,
or recourse to, SDS, any subsidiary of SDS, or any of their respective former or
present directors, shareholders, officers, employees, agents, consultants,
representatives, successors, transferees or assignees (collectively, the "SDS
Parties"), regardless of when or where any such Retained Liabilities arose or
arise, or whether the acts or omissions on which they are based occurred or are
alleged to have occurred prior to, on or after the Effective Date, regardless of
where or against whom such Retained Liabilities are asserted or whether such
Retained Liabilities are asserted prior to or subsequent to the Effective Date,
and regardless of whether such Retained Liabilities arose from negligence,
recklessness, violation of law, fraud or misrepresentation by SDS or any of its
former or present directors, officers, employees, agents, subsidiaries or
affiliates.
1.5 Allocation of Joint Assets and Liabilities. The parties agree that, by
this Agreement, and except as specifically otherwise provided in the
Contribution Documents, Sybron and SDS seek to transfer, assign, and convey to
SDS, and/or have SDS assume, as the case may be, all of the assets and
liabilities of the Dental Business and the Dental Assets that are not already
the property or responsibility of any Dental Business Subsidiaries. By this
Agreement, and except as specifically otherwise provided in the Contribution
Documents, Sybron does not intend to transfer, assign or convey to SDS, and/or
have SDS assume, as the case may be, any of the assets and liabilities of the
Laboratory Business or Laboratory Business Subsidiaries. In the case of an asset
or liability, if any, which relates to, arises out of, or is associated with
both the Dental Business and the Laboratory Business, both parties agree to
apportion the asset or liability among the parties in accordance with their
respective interests in or responsibility for such asset or liability. If the
asset or liability is not divisible, the asset or liability will be wholly
allocated to the party to which party's business the indivisible asset or
liability primarily relates. The parties will make this decision in accordance
with Article VIII of this Agreement. The parties will use reasonable efforts to
resolve any controversy or disputes as promptly as possible.
ARTICLE II
ASSUMED LIABILITIES, EXCULPATION AND INDEMNIFICATION BY SDS
Neither Sybron nor any of the Sybron Parties shall be liable to SDS or any
subsidiary of SDS or any of their respective former or present directors,
shareholders, officers, employees, agents, consultants, customers,
representatives, successors, transferees or assignees for any reason whatsoever
on account of any obligations, liabilities or expenses arising out of, relating
to or associated with:
(i) any Assumed Liabilities; or
C-3
<PAGE> 4
(ii) any obligation, liability or expense, including any litigation or
claims, arising out of or associated with the assets, business,
operations or activities of SDS and its affiliates (whether or
not in the ordinary course of business, and whether occurring
before or on or after the Effective Date); or
(iii) SDS's obligations, covenants, warranties, representations,
assumptions, and agreements contained or reflected in the
Contribution Documents;
except as otherwise specifically provided in the Contribution Documents;
provided, that Sybron shall remain liable to SDS for any breach by Sybron and
its subsidiaries of any of its obligations, covenants, warranties,
representations, assumptions or agreements contained or reflected in the
Contribution Documents. The matters with respect to which the liability of
Sybron and the other Sybron Parties is excluded pursuant to clauses (i), (ii),
and (iii) of the preceding sentence are hereby referred to as the "Dental
Business Liabilities."
SDS shall fully indemnify, defend, save and hold harmless Sybron and each
of the other Sybron Parties from and against all claims, liabilities,
obligations, costs, costs of defense (as and when incurred, and including
reasonable outside attorneys' and consultants' fees), expenses, fines, taxes,
levies, imports, duties, deficiencies, assessments, charges, penalties,
allegations, demands, damages (including but not limited to actual or punitive,
foreseen or unforeseen, known or unknown), settlements, awards or judgments of
any kind or nature whatsoever, to the extent directly arising out of or
associated with the Dental Business Liabilities or, except as otherwise provided
in the Contribution Documents, that otherwise are related to, arise from, or
associated with the ownership, use, possession, operation or conduct of the
assets, business or operations of SDS or its affiliates before, on or after the
Effective Date (all of which are hereinafter collectively called the "Sybron
Damages").
Except as specifically provided in the Contribution Documents, the
indemnities provided by SDS hereunder shall extend to any and all Dental
Business Liabilities of any nature, including, without limitation, any and all
Dental Business Liabilities with respect to environment, health, safety,
personal injury, property damage, employment, benefits, compensation, pension
rights, claims arising out of contracts, product liability, warranty,
merchantability or fitness of goods for any particular purpose, conformity of
goods to contractual requirements, deceptive trade practice, misrepresentation,
fraud or any other alleged or actual breach or violation of any obligation or
requirement.
It is an absolute condition to SDS's obligations under this Article II that
the entities listed on the Sybron Subsidiaries Guarantee attached hereto as
Annex I execute that Subsidiaries Guarantee and deliver the same to SDS.
C-4
<PAGE> 5
ARTICLE III
EXCULPATION AND INDEMNIFICATION BY SYBRON
Neither SDS nor any of the SDS Parties shall be liable to Sybron or any
subsidiary of Sybron or any of their respective former or present directors,
shareholders, officers, employees, agents, consultants, customers,
representatives, successors, transferees or assignees for any reason whatsoever
on account of any obligations, liabilities or expenses arising out of, relating
to or associated with:
(i) any Retained Liabilities; or
(ii) any obligation, liability or expense, including any litigation or
claims, arising out of or associated with the assets, business,
operations or activities of Sybron and its affiliates (other than
the Dental Business, Dental Business Subsidiaries or Dental
Assets)(whether or not in the ordinary course of business, and
whether occurring before or on or after the Effective Date); or
(iii) Sybron's obligations, covenants, warranties, representations,
assumptions, and agreements contained or reflected in the
Contribution Documents;
except as otherwise specifically provided in the Contribution Documents;
provided, that SDS shall remain liable to Sybron for any breach by SDS and its
subsidiaries of any of its obligations, covenants, warranties, representations,
assumptions or agreements contained or reflected in the Contribution Documents.
The matters with respect to which Sybron and its affiliates retain liability
pursuant to clauses (i), (ii), and (iii) of the preceding sentence are herein
referred to as the "Sybron Liabilities."
Sybron shall fully indemnify, defend, save and hold harmless SDS and each
of the other SDS Parties from and against all claims, liabilities, obligations,
costs, costs of defense (as and when incurred, and including reasonable outside
attorneys' and consultants' fees), expenses, fines, taxes, levies, imports,
duties, deficiencies, assessments, charges, penalties, allegations, demands,
damages (including but not limited to actual or punitive, foreseen or
unforeseen, known or unknown), settlements, awards or judgments of any kind or
nature whatsoever, to the extent directly arising out of or associated with the
Sybron Liabilities or, except as otherwise provided in the Contribution
Documents, that otherwise are related to, arise from, or associated with the
ownership, use, possession, operation or conduct of the assets, business or
operations of Sybron and its affiliates, other than the Dental Assets, Dental
Business Subsidiaries or the Dental Business, before, on or after the Effective
Date (all of which are hereinafter collectively called the "SDS Damages").
Except as specifically provided in the Contribution Documents, the
indemnities provided by Sybron hereunder shall extend to any and all Sybron
Liabilities of any nature, including, without limitation, any and all Sybron
Liabilities with respect to environment, health, safety, personal injury,
property damage, employment, benefits, compensation, pension rights, claims
arising out of
C-5
<PAGE> 6
contracts, product liability, warranty, merchantability or fitness of goods for
any particular purpose, conformity of goods to contractual requirements,
deceptive trade practice, misrepresentation, fraud or any other alleged or
actual breach or violation of any obligation or requirement.
It is an absolute condition to Sybron's obligations under this Article III
that the entities listed on the SDS Subsidiaries Guarantee attached hereto as
Annex II execute that Subsidiaries Guarantee and deliver the same to Sybron.
ARTICLE IV
SPECIFIC INDEMNIFICATION ISSUES
4.1 Contracts Between Sybron & SDS. It is acknowledged that, prior to and
after the Effective Date, Sybron, SDS, the Laboratory Business Subsidiaries, and
the Dental Business Subsidiaries may have arms-length negotiated business
relationships between and among each other, which relationships are or shall be
described in contracts, agreements and other documents entered into in the
normal course of business. Such business relationships shall not be subject to
the indemnity or other provisions hereof or any other agreements covered by the
Contribution Documents, unless the parties expressly agree to such in the
agreements governing such relationships.
4.2 Joint Liability. In the event a claim, demand, action or proceeding is
brought by a third party in which the liability as between Sybron and SDS is
determined after trial in any judgment, award or decree to be joint or in which
the entitlement to indemnification hereunder is not readily determinable, the
parties shall negotiate in good faith in an effort to agree, as between Sybron
and SDS, on the proper allocation of liability or entitlement to
indemnification, as well as the proper allocation of the costs of any joint
defense or settlement pursuant to Section 6.4, all in accordance with the
provisions of and the principles set forth in this Agreement. In the absence of
any such agreement, such allocation of liability or entitlement to
indemnification, and such allocation of costs, shall be subject to ultimate
resolution between Sybron and SDS based upon all of the relevant facts and
circumstances pursuant to Article VIII and consistent with the policy set forth
in the last whereas recital of this Agreement.
ARTICLE V
NOTICE AND PAYMENT OF CLAIMS
5.1 Procedure for Notification. If either a party to this Agreement or a
person entitled to a defense and/or indemnification under this Agreement ("the
Indemnified Party") determines that it is or may be entitled to a defense or
indemnification by SDS or Sybron, as the case may be ("the Indemnifying Party"),
under this Agreement:
(a) The Indemnified Party shall deliver promptly to the Indemnifying
Party a written notice and demand for a defense or
indemnification, specifying the
C-6
<PAGE> 7
basis for the claim for defense and/or indemnification, the
nature of the claim, and, if known, the amount for which the
Indemnified Party reasonably believes it is entitled to be
indemnified.
(b) The Indemnifying Party shall have 30 days from receipt of the
notice requesting indemnification within which to either: (i)
assume the defense of such litigation or claim; (ii) pay the
claim in immediately available funds; (iii) reserve its rights
pending negotiations under Section 6.4; or (iv) object to the
claim in accordance with Section 5.2. This 30-day period may be
extended by express agreement of the parties.
(c) In the event that the amount for which the Indemnifying Party may
be liable is not known or reasonably determinable at the time of
such notice, the Indemnified Party shall deliver to the
Indemnifying Party a further notice specifying the amount for
which the Indemnified Party reasonably believes it is entitled to
be indemnified as soon as reasonably practicable after such
amount is known or reasonably determinable, at which time the
Indemnifying Party shall have a further opportunity to take
action as set forth above. Nothing in this subparagraph shall be
interpreted to abrogate or delay an Indemnifying Party's
obligation to provide the other with a defense under this
Agreement.
5.2 Objection and Waiver of Objection. The Indemnifying Party may object
to the claim for defense and/or indemnification set forth in any notice;
provided that if the Indemnifying Party does not give the Indemnified Party
written notice setting forth its objection to such claim (or the amount thereof)
and the grounds therefor within the 30-day period (or any extended period)
referred to in Section 5.1 above, the Indemnifying Party shall be deemed to have
acknowledged its liability to provide a defense or for the amount of such claim
and the Indemnified Party may exercise any and all of its rights under
applicable law to obtain such defense or collect such amount. Any objection to a
claim for a defense or indemnification shall be resolved in accordance with
Article VIII.
5.3 Insurance Coverage. The right to a defense or indemnification under
this Agreement shall not be affected, diminished, abrogated or eliminated by
virtue of the existence of, or coverage by, any insurance proceeds or the
provision of legal defense received by a party from its insurance carrier. The
potential availability of insurance coverage to Sybron or the Sybron Parties or
SDS or the SDS Parties shall not relieve the other party of its obligations for
defense or indemnification hereunder, or delay either party's obligation to the
other to assume a defense or pay any sums due hereunder. In the event that
insurance proceeds are received, appropriate adjustments will be made under the
Insurance Matters Agreement, of even date herewith, between Sybron and SDS,
which governs the rights and obligations of Sybron and SDS with respect to such
insurance.
C-7
<PAGE> 8
ARTICLE VI
DEFENSE OF THIRD-PARTY CLAIMS
6.1 Assumption of Third-Party Claims. If the Indemnified Party's claim for
indemnification under this Agreement is based on a claim, demand, investigation,
action or proceeding, judicial or otherwise, brought by a third party, and the
Indemnifying Party does not object under Section 5.2 hereof, the Indemnifying
Party shall, within the 30-day period (or any extended period) referred to in
Section 5.1 above, assume the defense of such third-party claim at its sole cost
and expense and shall thereafter be designated as the case handler. Any such
defense shall be conducted by attorneys employed by the Indemnifying Party,
provided that such attorneys shall be reasonably satisfactory to the Indemnified
Party. The Indemnified Party may retain attorneys of its own choosing to
participate in such defense at the Indemnified Party's sole cost and expense.
6.2 Settlement of Third-Party Claims. If the Indemnifying Party assumes
the defense of any such third-party claim, the Indemnifying Party may settle or
compromise the claim without the prior consent of the Indemnified Party,
provided that all present and future claims against the Indemnified Party
relating to such third-party claim(s) are irrevocably and unconditionally
released in full.
6.3 Indemnification After Settlement. The Indemnifying Party shall pay to
the Indemnified Party in immediately available funds the amount for which the
Indemnified Party is entitled to be indemnified within 30 days after the
settlement or compromise of such third-party claim or the final unappealable
judgment of a court of competent jurisdiction (or within such longer period as
agreed to by the parties). If the Indemnifying Party does not assume the defense
of any such third-party claim, the Indemnifying Party shall be bound by the
result obtained with respect thereto by the Indemnified Party, except that the
Indemnifying Party shall have the right to contest that it is obligated to the
Indemnified Party under the terms of this Agreement, provided that the
Indemnifying Party shall have raised its objections in a timely manner under
Section 5.2.
6.4 Third-Party Joint Liability Claim. In the event a claim, demand,
action or proceeding is brought by a third party in which the liability as
between Sybron and SDS is alleged to be joint or in which the entitlement to
indemnification hereunder is not readily determinable (or, if an objection, in
good faith, pursuant to Section 5.2 has been received), the parties shall
cooperate in a joint defense. Such joint defense shall be under the general
management and supervision of the party which is expected to bear the greater
share of the liability, as determined by representatives of Sybron and SDS, and
which will be considered the case handler, unless otherwise agreed, provided,
however, that neither party shall settle or compromise any such joint defense
matter without the consent of the other. The costs of such joint defense, any
settlement, and any award or judgment (unless the award or judgment specifies
otherwise) shall be borne as the parties may agree or, in the absence of such
agreement, such costs shall be borne by the party incurring such costs, subject
to ultimate resolution between SDS and Sybron based upon all of the relevant
facts and circumstances pursuant to Article VIII.
C-8
<PAGE> 9
ARTICLE VII
COOPERATION AND PRESERVATION OF RECORDS
7.1 General. SDS and Sybron shall cooperate with one another fully and in
a timely manner in connection with the defense of any litigation related to the
Assumed Liabilities or Retained Liabilities or any other actual or threatened
claim, investigation, audit or administrative or judicial action or proceeding
brought or commenced by a third party (including any governmental agency or
authority) involving any matter affecting the potential liability of Sybron or
any Sybron Party or SDS or any SDS Party, so long as Sybron and SDS (or their
affiliates) are not directly adverse in a lawsuit between each other in that
specific matter.
7.2 Availability of Records. The cooperation required by this Article VII
shall include, without limitation, making available to the other party during
such normal business hours and upon reasonable notice, appropriate books,
records and information ("Litigation Records"), officers, and employees (without
substantial interruption of employment) necessary or useful in connection with
any accrued or actual or threatened claim, investigation, audit, action or
proceeding, so long as Sybron and SDS are not directly adverse in a lawsuit
between each other in that specific matter.
7.3 Retention of Records. Each party shall continue in force or, at the
request of the other party, shall issue notices exempting from destruction at
the expiration of normal records retention periods any Litigation Records which
the requesting party represents may be necessary to the defense of, or required
to be produced in discovery in connection with, any claim, investigation, audit,
action or proceeding, and shall refrain from destroying any Litigation Records
until authorized by the requesting party. The requesting party shall notify the
other party promptly when the Litigation Records are no longer required to be
maintained.
7.4 Cost of Access to Records. The party requesting access to Litigation
Records or officers and employees pursuant to Section 7.2 or preservation of
Litigation Records pursuant to Section 7.3 shall bear all reasonable
out-of-pocket expenses (except reimbursement of salaries, employee benefits and
general overhead) incurred in connection with providing such Litigation Records
or officers and employees.
7.5 Confidential or Proprietary Records. The party providing Litigation
Records under this Article VII may elect, upon a reasonable basis and within a
reasonable time, to designate all or a portion of the Litigation Records as
confidential or proprietary. If Litigation Records are so designated, the party
receiving them will treat them as it would its own confidential or proprietary
information and will take all reasonable steps to protect and safeguard the
Litigation Records while in its own custody and will attempt to shield the
information contained in the Litigation Records from disclosure by motions to
quash, motions for a protective order, reduction or other appropriate actions.
7.6 Power of Attorney. Subject to the provisions of the Contribution
Documents, Sybron hereby constitutes and appoints SDS, its successors or
assigns, the true and lawful attorney of
C-9
<PAGE> 10
Sybron with full power of substitution, for the benefit and at the expense of
SDS: (a) to institute and prosecute all proceedings which SDS may deem proper in
order to collect, assert or enforce any claim, right or title of any kind in or
to any of the Dental Assets and Assumed Liabilities, to defend or compromise any
and all actions, suits and proceedings in respect of any of the conveyed assets
and liabilities, and to do all such acts and things in relation thereto as SDS
shall deem advisable; and (b) to take all action which SDS may deem proper in
order to provide SDS the benefits or obligations under any of the Dental Assets
and Assumed Liabilities where any required consent of another party to the
assignment thereof to SDS pursuant to the Contribution Agreement shall not have
been obtained. Sybron acknowledges that the foregoing powers are coupled with an
interest and shall be irrevocable by Sybron in any manner or for any reason. SDS
shall be entitled to retain for its own account any amounts collected pursuant
to the foregoing powers, including any amounts payable as interest in respect
thereto.
ARTICLE VIII
DISPUTE RESOLUTION
In the event that any dispute or difference arises between the parties
relating to the interpretation or performance of this Agreement, the parties
shall comply with the dispute resolution procedures prescribed in Article VIII
of the Contribution Agreement.
ARTICLE IX
NOTICES
9.1 General. All notices and communications required or permitted under
this Agreement shall be in writing and any communication or delivery hereunder
shall be deemed to have been duly made if actually delivered, or if mailed by
first class mail, postage prepaid, or by air express service, with charges
prepaid and addressed as follows:
If to Sybron: Sybron International Corporation
411 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: General Counsel
If to SDS: Sybron Dental Specialities, Inc.
1717 West Collins Avenue
Orange, California 92867
Attention: General Counsel
9.2 Change in Address. Either party may, by written notice so delivered to
the other, change the address to which future delivery shall be made.
C-10
<PAGE> 11
ARTICLE X
MISCELLANEOUS
10.1. Entire Agreement. This Agreement and the other Contribution
Documents constitute the entire understanding of the parties hereto with respect
to the subject matter hereof, superseding all negotiations, prior discussions
and prior agreements and understandings relating to their subject matter;
provided, however, that the specific provisions of any other agreement between
the parties executed and delivered by the parties in connection with the closing
under the Contribution Agreement shall not be superseded by this Agreement and
to the extent any such other agreement is in conflict herewith, such specific
agreement shall control.
10.2. Assignment. This Agreement and all the provisions hereof shall be
binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by either party
without the prior written consent of the other party; except that this Agreement
may be assigned to a parent or subsidiary of a party, or to a third party
acquiring substantially all of the assets of a party, without such prior written
consent to such an assignment, provided that any such third party expressly
assumes, and agrees to be bound by the terms of, this Agreement, and provided
further that the assigning party shall not be relieved of any of its obligations
hereunder in the event of such an assignment.
10.3. No Third Party Beneficiaries. This Agreement is solely for the
benefit of the parties and is not intended to confer upon any person except the
parties any rights or remedies hereunder. There are no third party beneficiaries
to this Agreement.
10.4. Written Amendment and Waiver . This Agreement may not be altered or
amended nor any rights hereunder be waived, except by an instrument in writing
executed by the party or parties to be charged with the amendment or waiver.
10.5 Limited Amendment or Waiver . No waiver of any term, provision or
condition of this Agreement or failure to exercise any right, power or remedy or
failure to enforce any provision of this Agreement, in any one or more
instances, shall be deemed to be a further or continuing waiver of any such
term, provision or condition or as a waiver of any other term, provision or
condition or enforcement right of this Agreement or deemed to be an impairment
of any right, power or remedy or acquiescence to any breach.
10.6. Reformation and Severability. If any provision of this Agreement
shall be held to be invalid, unenforceable or illegal in any jurisdiction under
any circumstances for any reason, (a) that provision shall be reformed to the
minimum extent necessary to cause such provision to be valid, enforceable and
legal and preserve the original intent of the parties, or (b) if that provision
cannot be so reformed, it shall be severed from this Agreement. The holding
shall not affect or impair the validity, enforceability or legality of the
provision in any other jurisdiction or under any other circumstances. Neither
the holding nor the reformation or severance shall affect or impair the
C-11
<PAGE> 12
legality, validity or enforceability of any other provision of this Agreement to
the extent that the other provision is not itself actually in conflict with any
applicable law. Upon a determination that any term or provision is invalid,
unenforceable or illegal, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible.
10.7. Jurisdiction. This Agreement shall be governed and construed and
enforced in accordance with the internal laws of the State of Wisconsin (without
regard to conflict of law principles) as to all matters including, without
limitation, matters of validity, construction, effect, performance and remedies.
10.8. Titles and Headings. All titles and headings have been inserted
solely for the convenience of the parties and are not intended to be a part of
this Agreement or to affect its meaning or interpretation.
10.9. Counterparts. This Agreement, and any other agreement to be executed
in connection herewith, may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
10.10. Effectiveness. This Agreement shall become effective at the
Effective Date and may be terminated by Sybron at any time prior thereto without
any liability on either party's part.
C-12
<PAGE> 13
IN WITNESS WHEREOF the parties have caused this Agreement to be executed as
of the date first above written by their duly authorized officers.
SYBRON INTERNATIONAL CORPORATION
By: _________________________________________
Name:
Title: President and Chief Executive Officer
SYBRON DENTAL SPECIALTIES, INC.
By: _________________________________________
Name:
Title: President and Chief Executive Officer
C-13
<PAGE> 14
ANNEX I
SYBRON SUBSIDIARIES GUARANTEE
<PAGE> 15
SYBRON SUBSIDIARIES GUARANTEE
This SUBSIDIARIES GUARANTEE, dated as of ________, 2000, made by each of
the corporations that are signatories hereto (the "Guarantors"), in favor of
Sybron Dental Specialities, Inc. (formerly known as "SDS Holding Co."), a
Delaware corporation ("SDS") as a party to the General Assignment, Assumption
and Agreement Regarding Litigation, Claims and Other Liabilities (as amended,
supplemented or otherwise modified from time to time, the "Assignment"), by and
between Sybron International Corporation, a Wisconsin corporation ("Sybron") and
SDS, of even date herewith.
RECITALS
WHEREAS, Sybron owns, or will own, directly or indirectly, all of the
issued and outstanding stock of each Guarantor;
WHEREAS, Sybron and the Guarantors are members of the same consolidated
group of companies and engaged in related businesses, and each Guarantor will
derive substantial direct and indirect benefit pursuant to the terms of the
Assignment; and
WHEREAS, it is a condition precedent to the obligation of SDS to enter into
the Assignment that the Guarantors shall have executed and delivered this
Guarantee to SDS;
NOW, THEREFORE, in consideration of the premises and to induce SDS to enter
into the Assignment, the Guarantors hereby agree as follows:
1. Defined Terms.
(a) Unless otherwise defined herein, terms defined in the Assignment
and used herein shall have the meanings given to them in the Assignment.
(b) As used herein, "Obligations" means any and all obligations of
Sybron under Article II of the Assignment.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Guarantee.
(a) Subject to the provisions of paragraph , each of the Guarantors
hereby, jointly and severally, unconditionally and irrevocably, guarantees to
SDS and its respective successors, transferees and assigns, the prompt and
complete satisfaction and performance by Sybron of the Obligations.
<PAGE> 16
(b) Anything herein to the contrary notwithstanding, the maximum
liability of each Guarantor hereunder shall in no event exceed the amount which
can be guaranteed by such Guarantor under applicable federal and state laws
relating to the insolvency of debtors.
(c) Each Guarantor further agrees to pay any and all expenses
(including, without limitation, all fees and disbursements of counsel) which may
be paid or incurred by SDS in enforcing any rights with respect thereto, against
such Guarantor under this Guarantee.
(d) Each Guarantor agrees that liability under the Obligations may at
any time and from time to time exceed the amount of the liability of such
Guarantor hereunder without impairing this Guarantee or affecting the rights and
remedies of SDS.
(e) Each Guarantor agrees that whenever, at any time, or from time to
time, it makes any payment to SDS on account of its liability hereunder, it
shall notify SDS in writing that such payment is made under this Guarantee for
such purpose.
3. Right of Contribution. Each Guarantor hereby agrees that, to the
extent that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder who has not paid its
proportionate share of such payment. The provisions of this Section 3 shall in
no respect limit the obligations and liabilities of any Guarantor to SDS, and
each Guarantor shall remain liable to SDS for the full amount guaranteed by such
Guarantor hereunder.
4. Amendments, etc. with Respect to the Obligations; Waiver of Rights.
(a) Each Guarantor shall remain obligated hereunder notwithstanding
that, without any reservation of rights against any Guarantor and without notice
to or further assent by any Guarantor, SDS may rescind any previously made
demand for satisfaction or performance of any Obligation, and such Obligation
may be continued.
(b) When making any demand hereunder against any of the Guarantors,
SDS may, but shall be under no obligation to, make a similar demand on Sybron or
any other Guarantor, and any failure by SDS to make any such demand from Sybron
or any such other Guarantor or any release of Sybron or such other Guarantor
shall not relieve any of the Guarantors in respect of which a demand is not made
or any of the Guarantors not so released of their several obligations or
liabilities hereunder, and shall not impair or affect the rights and remedies,
express or implied, or as a matter of law, of SDS against any of the Guarantors.
For the purposes hereof "demand" shall include the commencement and continuance
of any legal proceedings.
2
<PAGE> 17
5. Guarantee Absolute and Unconditional.
(a) Each Guarantor waives any and all notice of the creation,
renewal, extension or accrual of any of the Obligations and any and all notice
of or proof of reliance by SDS upon this Guarantee or acceptance of this
Guarantee. The Obligations shall conclusively be deemed to have been created,
contracted, incurred, renewed, extended, amended or waived in reliance upon this
Guarantee. All dealings between Sybron and any of the Guarantors, on the one
hand, and SDS, on the other hand, likewise shall be conclusively presumed to
have been had or consummated in reliance upon this Guarantee.
(b) Each Guarantor waives diligence, presentment, protest, demand for
satisfaction or performance and notice of nonsatisfaction or nonperformance to
or upon Sybron or any of the Guarantors with respect to the Obligations.
(c) Each Guarantor understands and agrees that this Guarantee shall
be construed as a continuing, absolute and unconditional guarantee to satisfy
and perform the Obligations without regard to: (i) the validity, regularity or
enforceability of the Assignment or any of the Obligations; (ii) any defense,
set-off or counterclaim (other than a defense of satisfaction or performance)
which may at any time be available to or be asserted by Sybron against SDS; or
(iii) any other circumstance whatsoever (with or without notice to or knowledge
of Sybron or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of Sybron from the Obligations, or
of such Guarantor under this Guarantee, in bankruptcy or in any other instance.
(d) When pursuing its rights and remedies hereunder against any
Guarantor, SDS may, but shall be under no obligation to, pursue such rights and
remedies as it may have against Sybron for the Obligations, and any failure by
SDS to pursue such other rights or remedies from Sybron, or any release of
Sybron shall not relieve such Guarantor of any liability hereunder, and shall
not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of SDS against such Guarantor.
(e) This Guarantee shall remain in full force and effect and be
binding in accordance with and to the extent of its terms upon each Guarantor
and the successors and assigns thereof, and shall inure to the benefit of SDS
and its respective successors, transferees and assigns, until all the
Obligations and the obligations of each Guarantor under this Guarantee shall
have been satisfied or performed in full.
6. Reinstatement. This Guarantee shall continue to be effective or shall
be reinstated, as the case may be, if at any time any payments made in
satisfaction or performance of any of the Obligations is rescinded or must
otherwise be restored or returned by SDS upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of Sybron or any Guarantor, or upon
or as a result of the appointment of a receiver, intervenor or conservator of,
or trustee or similar officer for, Sybron or any Guarantor or any substantial
part of its property, or otherwise, all as though such payments had not been
made.
3
<PAGE> 18
7. Payments. Each Guarantor hereby guarantees that payments hereunder
will be paid to SDS without set-off or counterclaim in U.S. Dollars at SDS's
corporate offices located at 411 East Wisconsin Avenue, Milwaukee, Wisconsin,
53202.
8. Notices. All notices and communications required or permitted under
this Agreement shall be in writing and any communication or delivery hereunder
shall be deemed to have been duly made if actually delivered, or if mailed by
first class mail, postage prepaid, or by air express service, with charges
prepaid and addressed as follows::
(a) if to SDS, at its address or transmission number for notices
provided in or referred to in subsection 9.1 of the Assignment; and
(b) if to any Guarantor, at its address or transmission number for
notices set forth under its name below.
SDS and any Guarantor may, by written notice so delivered to the
other, change the address to which future delivery shall be made.
9. Counterparts. This Guarantee may be executed by one or more of the
Guarantors on any number of separate counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument. A set of the counterparts of this Guarantee signed by all the
Guarantors shall be lodged with SDS.
10. Reformation and Severability. If any provision of this Guarantee shall
be held to be invalid, unenforceable or illegal in any jurisdiction under any
circumstances for any reason, (a) that provision shall be reformed to the
minimum extent necessary to cause such provision to be valid, enforceable and
legal and preserve the original intent of the parties, or (b) if that provision
cannot be so reformed, it shall be severed from this Guarantee. The holding
shall not affect or impair the validity, enforceability or legality of the
provision in any other jurisdiction or under any other circumstances. Neither
the holding nor the reformation or severance shall affect or impair the
legality, validity or enforceability of any other provision of this Guarantee to
the extent that the other provision is not itself actually in conflict with any
applicable law. Upon a determination that any term or provision is invalid,
unenforceable or illegal, the parties hereto shall negotiate in good faith to
modify this Guarantee so as to effect the original intent of the parties as
closely as possible.
11. Entire Agreement. This Guarantee constitutes the entire understanding
of the parties hereto with respect to the subject matter hereof, superseding all
negotiations, prior discussions and prior agreements and understandings relating
to their subject matter, and there are no promises by SDS relative to the
subject matter hereof not reflected herein.
12. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this Guarantee may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by each Guarantor and
4
<PAGE> 19
SDS (other than supplements, in form and substance acceptable to SDS, for the
purpose of adding new Guarantors), provided that any provision of this Guarantee
may be waived by SDS in a letter or agreement executed by SDS or by telex or
facsimile transmission from SDS.
(b) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
13. Section Headings. The Section headings used in this Guarantee are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
14. Assignment. This Guarantee and all the provisions hereof shall be
binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns, but neither this Guarantee nor any of the
rights, interests or obligations hereunder shall be assigned by either party
without the prior written consent of the other party; except that this Guarantee
may be assigned to a parent or subsidiary of a party, or to a third party
acquiring substantially all of the assets of a party, without such prior written
consent to such an assignment, provided that any such third party expressly
assumes, and agrees to be bound by the terms of, this Guarantee, and provided
further that the assigning party shall not be relieved of any of its obligations
hereunder in the event of such an assignment.
15. Jurisdiction. This Agreement shall be governed and construed and
enforced in accordance with the internal laws of the State of Wisconsin (without
regard to conflict of law principles) as to all matters including, without
limitation, matters of validity, construction, effect, performance and remedies.
16. Acknowledgments. Each Guarantor hereby acknowledges that:
(a) SDS does not have any fiduciary relationship with or duty to such
Guarantor arising out of or in connection with this Guarantee or the Assignment;
and
(b) no joint venture is created hereby or by the Assignment or
otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Guarantors and the Lenders.
5
<PAGE> 20
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee to be
executed and delivered by its duly authorized officer as of the day and year
first above written.
6
<PAGE> 21
ANNEX II
SDS SUBSIDIARIES GUARANTEE
<PAGE> 22
SDS SUBSIDIARIES GUARANTEE
This SUBSIDIARIES GUARANTEE, dated as of ________, 2000, made by each of
the corporations that are signatories hereto (the "Guarantors"), in favor of
Sybron International Corporation, a Wisconsin corporation ("Sybron") as a party
to the General Assignment, Assumption and Agreement Regarding Litigation, Claims
and Other Liabilities (as amended, supplemented or otherwise modified from time
to time, the "Assignment"), by and between Sybron and Sybron Dental
Specialities, Inc. (formerly known as "SDS Holding Co."), a Delaware corporation
("SDS"), of even date herewith.
RECITALS
WHEREAS, SDS owns, or will own, directly or indirectly, all of the issued
and outstanding stock of each Guarantor;
WHEREAS, SDS and the Guarantors are members of the same consolidated group
of companies and engaged in related businesses, and each Guarantor will derive
substantial direct and indirect benefit pursuant to the terms of the Assignment;
and
WHEREAS, it is a condition precedent to the obligation of Sybron to enter
into the Assignment that the Guarantors shall have executed and delivered this
Guarantee to Sybron;
NOW, THEREFORE, in consideration of the premises and to induce Sybron to
enter into the Assignment, the Guarantors hereby agree as follows:
17. Defined Terms.
(a) Unless otherwise defined herein, terms defined in the Assignment
and used herein shall have the meanings given to them in the Assignment.
(b) As used herein, "Obligations" means any and all obligations of
SDS under Article II of the Assignment.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
18. Guarantee.
(a) Subject to the provisions of paragraph , each of the Guarantors
hereby, jointly and severally, unconditionally and irrevocably, guarantees to
Sybron and its respective successors, transferees and assigns, the prompt and
complete satisfaction and performance by SDS of the Obligations.
<PAGE> 23
(b) Anything herein to the contrary notwithstanding, the maximum
liability of each Guarantor hereunder shall in no event exceed the amount which
can be guaranteed by such Guarantor under applicable federal and state laws
relating to the insolvency of debtors.
(c) Each Guarantor further agrees to pay any and all expenses
(including, without limitation, all fees and disbursements of counsel) which may
be paid or incurred by Sybron in enforcing any rights with respect thereto,
against such Guarantor under this Guarantee.
(d) Each Guarantor agrees that liability under the Obligations may at
any time and from time to time exceed the amount of the liability of such
Guarantor hereunder without impairing this Guarantee or affecting the rights and
remedies of Sybron.
(e) Each Guarantor agrees that whenever, at any time, or from time to
time, it makes any payment to Sybron on account of its liability hereunder, it
shall notify Sybron in writing that such payment is made under this Guarantee
for such purpose.
19. Right of Contribution. Each Guarantor hereby agrees that, to the
extent that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder who has not paid its
proportionate share of such payment. The provisions of this Section 3 shall in
no respect limit the obligations and liabilities of any Guarantor to Sybron, and
each Guarantor shall remain liable to Sybron for the full amount guaranteed by
such Guarantor hereunder.
20. Amendments, etc. with Respect to the Obligations; Waiver of Rights.
(a) Each Guarantor shall remain obligated hereunder notwithstanding
that, without any reservation of rights against any Guarantor and without notice
to or further assent by any Guarantor, Sybron may rescind any previously made
demand for satisfaction or performance of any Obligation, and such Obligation
may be continued.
(b) When making any demand hereunder against any of the Guarantors,
Sybron may, but shall be under no obligation to, make a similar demand on SDS or
any other Guarantor, and any failure by Sybron to make any such demand from SDS
or any such other Guarantor or any release of SDS or such other Guarantor shall
not relieve any of the Guarantors in respect of which a demand is not made or
any of the Guarantors not so released of their several obligations or
liabilities hereunder, and shall not impair or affect the rights and remedies,
express or implied, or as a matter of law, of Sybron against any of the
Guarantors. For the purposes hereof "demand" shall include the commencement and
continuance of any legal proceedings.
21. Guarantee Absolute and Unconditional.
(a) Each Guarantor waives any and all notice of the creation,
renewal, extension or accrual of any of the Obligations and any and all notice
of or proof of reliance by Sybron upon this Guarantee or acceptance of this
Guarantee. The Obligations shall conclusively be deemed to
2
<PAGE> 24
have been created, contracted, incurred, renewed, extended, amended or waived in
reliance upon this Guarantee. All dealings between SDS and any of the
Guarantors, on the one hand, and Sybron, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon this
Guarantee.
(b) Each Guarantor waives diligence, presentment, protest, demand for
satisfaction or performance and notice of nonsatisfaction or nonperformance to
or upon SDS or any of the Guarantors with respect to the Obligations.
(c) Each Guarantor understands and agrees that this Guarantee shall
be construed as a continuing, absolute and unconditional guarantee to satisfy
and perform the Obligations without regard to: (i) the validity, regularity or
enforceability of the Assignment or any of the Obligations; (ii) any defense,
set-off or counterclaim (other than a defense of satisfaction or performance)
which may at any time be available to or be asserted by SDS against Sybron; or
(iii) any other circumstance whatsoever (with or without notice to or knowledge
of SDS or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of SDS from the Obligations, or of
such Guarantor under this Guarantee, in bankruptcy or in any other instance.
(d) When pursuing its rights and remedies hereunder against any
Guarantor, Sybron may, but shall be under no obligation to, pursue such rights
and remedies as it may have against SDS for the Obligations, and any failure by
Sybron to pursue such other rights or remedies from SDS, or any release of SDS
shall not relieve such Guarantor of any liability hereunder, and shall not
impair or affect the rights and remedies, whether express, implied or available
as a matter of law, of Sybron against such Guarantor.
(e) This Guarantee shall remain in full force and effect and be
binding in accordance with and to the extent of its terms upon each Guarantor
and the successors and assigns thereof, and shall inure to the benefit of Sybron
and its respective successors, transferees and assigns, until all the
Obligations and the obligations of each Guarantor under this Guarantee shall
have been satisfied or performed in full.
22. Reinstatement. This Guarantee shall continue to be effective or shall
be reinstated, as the case may be, if at any time any payments made in
satisfaction or performance of any of the Obligations is rescinded or must
otherwise be restored or returned by Sybron upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of SDS or any Guarantor, or upon or
as a result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, SDS or any Guarantor or any substantial part of
its property, or otherwise, all as though such payments had not been made.
23. Payments. Each Guarantor hereby guarantees that payments hereunder
will be paid to Sybron without set-off or counterclaim in U.S. Dollars at
Sybron's corporate offices located at 411 East Wisconsin Avenue, Milwaukee,
Wisconsin, 53202.
3
<PAGE> 25
24. Notices. All notices and communications required or permitted under
this Agreement shall be in writing and any communication or delivery hereunder
shall be deemed to have been duly made if actually delivered, or if mailed by
first class mail, postage prepaid, or by air express service, with charges
prepaid and addressed as follows::
(a) if to Sybron, at its address or transmission number for notices
provided in or referred to in subsection 9.1 of the Assignment; and
(b) if to any Guarantor, at its address or transmission number for
notices set forth under its name below.
Sybron and any Guarantor may, by written notice so delivered to the
other, change the address to which future delivery shall be made.
25. Counterparts. This Guarantee may be executed by one or more of the
Guarantors on any number of separate counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument. A set of the counterparts of this Guarantee signed by all the
Guarantors shall be lodged with Sybron.
26. Reformation and Severability. If any provision of this Guarantee shall
be held to be invalid, unenforceable or illegal in any jurisdiction under any
circumstances for any reason, (a) that provision shall be reformed to the
minimum extent necessary to cause such provision to be valid, enforceable and
legal and preserve the original intent of the parties, or (b) if that provision
cannot be so reformed, it shall be severed from this Guarantee. The holding
shall not affect or impair the validity, enforceability or legality of the
provision in any other jurisdiction or under any other circumstances. Neither
the holding nor the reformation or severance shall affect or impair the
legality, validity or enforceability of any other provision of this Guarantee to
the extent that the other provision is not itself actually in conflict with any
applicable law. Upon a determination that any term or provision is invalid,
unenforceable or illegal, the parties hereto shall negotiate in good faith to
modify this Guarantee so as to effect the original intent of the parties as
closely as possible.
27. Entire Agreement. This Guarantee constitutes the entire understanding
of the parties hereto with respect to the subject matter hereof, superseding all
negotiations, prior discussions and prior agreements and understandings relating
to their subject matter, and there are no promises by Sybron relative to the
subject matter hereof not reflected herein.
28. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this Guarantee may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by each Guarantor and Sybron (other than supplements, in form and
substance acceptable to Sybron, for the purpose of adding new Guarantors),
provided that any provision of this Guarantee may be waived by Sybron in a
letter or agreement executed by Sybron or by telex or facsimile transmission
from Sybron.
4
<PAGE> 26
(b) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
29. Section Headings. The Section headings used in this Guarantee are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
30. Assignment. This Guarantee and all the provisions hereof shall be
binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns, but neither this Guarantee nor any of the
rights, interests or obligations hereunder shall be assigned by either party
without the prior written consent of the other party; except that this Guarantee
may be assigned to a parent or subsidiary of a party, or to a third party
acquiring substantially all of the assets of a party, without such prior written
consent to such an assignment, provided that any such third party expressly
assumes, and agrees to be bound by the terms of, this Guarantee, and provided
further that the assigning party shall not be relieved of any of its obligations
hereunder in the event of such an assignment.
31. Jurisdiction. This Agreement shall be governed and construed and
enforced in accordance with the internal laws of the State of Wisconsin (without
regard to conflict of law principles) as to all matters including, without
limitation, matters of validity, construction, effect, performance and remedies.
32. Acknowledgments. Each Guarantor hereby acknowledges that:
(a) Sybron does not have any fiduciary relationship with or duty to
such Guarantor arising out of or in connection with this Guarantee or the
Assignment; and
(b) no joint venture is created hereby or by the Assignment or
otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Guarantors and the Lenders.
5
<PAGE> 27
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee to be
executed and delivered by its duly authorized officer as of the day and year
first above written.
6
