<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(MARK ONE)
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended June 30, 1996
or
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from _________ to _________
Commission File Number: 1-11091
SYBRON INTERNATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
Wisconsin 22-2849508
--------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
411 East Wisconsin Avenue, Milwaukee, Wisconsin 53202
- ----------------------------------------------- -----
(Address of principal executive offices) (Zip Code)
(414) 274-6600
--------------
(Registrant's telephone number, including area code)
-------------------------------------------------------------------------
(Former name, former address and former fiscal year, if changed since last
report.)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days. Yes X No
--- ---
At August 6, 1996 there were 46,865,568 shares of the Registrant's
Common Stock, par value $0.01 per share, outstanding.
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SYBRON INTERNATIONAL CORPORATION AND SUBSIDIARIES
Index Page
----------------------------------------------------------- ----
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
Consolidated Balance Sheets, June 30, 1996 (unaudited)
and September 30, 1995 2
Consolidated Statements of Operations, three months ended
June 30, 1996 (unaudited) and 1995 (unaudited) and the
nine months ended June 30, 1996 (unaudited) and 1995
(unaudited) 3
Consolidated Statements of Shareholders' Equity for the
nine months ended June 30, 1996 (unaudited) and the
year ended September 30, 1995 4
Consolidated Statements of Cash Flows, nine months ended
June 30, 1996 (unaudited) and 1995 (unaudited) 5
Notes to Unaudited Consolidated Financial Statements 6
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS 8
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS 18
ITEM 2. CHANGES IN SECURITIES 19
ITEM 5. OTHER INFORMATION 19
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K 22
SIGNATURES 23
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PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
SYBRON INTERNATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
ASSETS
<TABLE>
<CAPTION>
June 30, September 30,
1996 1995
----------- -------------
<S> <C> <C>
(Unaudited)
Current assets:
Cash and cash equivalents ................................... $ 10,576 $ 9,243
Accounts receivable (less allowance for doubtful
receivables of $2,393 and $2,355) ........................... 118,463 109,572
Inventories (note 2) ........................................ 117,719 108,675
Deferred income taxes ....................................... 9,246 7,696
Prepaid expenses and other current assets ................... 16,720 13,229
-------- --------
Total current assets ..................................... 272,724 248,415
-------- --------
Property, plant and equipment net of depreciation of $123,062
and $103,497 ................................................ 151,875 148,110
Intangible assets ........................................... 452,165 437,865
Deferred income taxes ....................................... 14,435 11,672
Other non-current assets .................................... 7,020 6,021
-------- --------
Total assets ............................................. $898,219 $852,083
======== ========
</TABLE>
<TABLE>
LIABILITIES AND SHAREHOLDERS' EQUITY
<S> <C> <C>
Current liabilities:
Accounts payable ............................................... $ 27,435 $ 27,165
Current portion of long-term debt .............................. 40,069 39,635
Income taxes payable ........................................... 2,690 17,772
Accrued payroll and employee benefits .......................... 28,022 26,890
Deferred income taxes .......................................... 1,769 1,234
Other current liabilities ...................................... 25,487 25,459
-------- --------
Total current liabilities .................................... 125,472 138,155
-------- --------
Long-term debt .................................................. 436,661 406,547
Deferred income taxes ........................................... 56,277 62,071
Other liabilities ............................................... 11,644 17,803
Minority interest in consolidated subsidiaries .................. 232 257
Commitments and contingent liabilities:
Shareholders' equity:
Common Stock, $.01 par value; authorized 110,000,000
shares, issued 46,866,914 and 46,529,992 shares, respectively .. 469 465
Preferred Stock, $.01 par value; authorized 20,000,000 shares .. - -
Equity Rights; 1,098 rights at $1.09 per right ................. 1 1
Additional paid-in capital ..................................... 179,119 172,774
Retained earnings .............................................. 93,628 54,261
Cumulative foreign currency translation adjustment ............. (4,813) 220
Treasury common stock, 2,402 shares at cost .................... (1) (1)
Minimum pension liability adjustment (470) (470)
-------- --------
Total shareholders' equity .............................. 267,933 227,250
-------- --------
Total liabilities and shareholders' equity .................... $898,219 $852,083
======== ========
</TABLE>
See accompanying notes to unaudited consolidated financial statements
2
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SYBRON INTERNATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
June 30, June 30,
1996 1995 1996 1995
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Net sales ........................................ $171,096 $129,763 $488,809 $369,427
Cost of sales .................................... 85,618 64,541 246,101 184,012
-------- -------- -------- --------
Gross profit ..................................... 85,478 65,222 242,708 185,415
Selling, general and administrative expenses ..... 47,429 36,398 138,621 107,607
Restructuring expense ............................ - - 8,277 -
-------- -------- -------- --------
Operating income ................................. 38,049 28,824 95,810 77,808
-------- -------- -------- --------
Other income (expense):
Interest expense. ............................... (8,771) (5,855) (26,036) (15,626)
Amortization of deferred financing costs ........ (71) (234) (214) (700)
Minority interest in consolidated subsidiaries .. (19) (99) (127) (283)
Other, net ...................................... (83) 41 (59) 250
-------- -------- -------- --------
Income before income taxes ....................... 29,105 22,677 69,374 61,449
Income taxes ..................................... 12,000 8,878 30,007 24,198
-------- -------- -------- --------
Net income ....................................... $ 17,105 $ 13,799 $ 39,367 $ 37,251
======== ======== ======== ========
Earnings per common share ........................ $ .36 $ .29 $ .82 $ .79
======== ======== ======== ========
</TABLE>
See accompanying notes to unaudited consolidated financial statements.
3
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SYBRON INTERNATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
FOR THE YEAR ENDED SEPTEMBER 30, 1995
AND FOR THE NINE MONTHS ENDED JUNE 30, 1996
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
CUMULATIVE AMOUNT
FOREIGN RELATED TO
ADDITIONAL CURRENCY TREASURY RECORDING TOTAL
COMMON EQUITY PAID-IN RETAINED TRANSLATION COMMON MINIMUM SHAREHOLDERS'
STOCK RIGHTS CAPITAL EARNINGS ADJUSTMENT STOCK PENSION LIABILITY EQUITY
------ ------ ---------- -------- ----------- -------- ----------------- -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at September 30, 1994 $464 $2 $170,927 $ 5,346 $ 38 $ (2) $ - $176,775
Shares issued in connection
with the exercise of 135,268
stock options ................. 1 - 1,550 - - - - 1,551
Conversion of 294 equity rights
to common stock ............... - (1) - - - 1 - -
Tax benefits related to stock
options ....................... - - 297 - - - - 297
Net income .................... - - - 48,915 - - - 48,915
Cumulative foreign currency
translation adjustment ........ - - - - 182 - - 182
Amount related to recording
minimum pension liability ..... - - - - - - (470) (470)
------ ------ ---------- -------- ----------- -------- ----------------- -------------
Balance at September 30, 1995 $465 $1 $172,774 $54,261 $ 220 $ (1) $(470) $227,250
====== ====== ========== ======== =========== ======== ================= =============
Shares issued in connection
with the exercise of 336,922
stock options ................. 4 - 4,935 - - - - 4,939
Tax benefits related to stock
options ....................... - - 1,410 - - - - 1,410
Net income (Unaudited) ........ - - - 39,367 - - - 39,367
Cumulative foreign currency
translation adjustment ........ - - - - (5,033) - - (5,033)
------ ------ ---------- -------- ----------- -------- ----------------- -------------
Balance at June 30, 1996
(Unaudited) ................... $469 $1 $179,119 $93,628 $ (4,813) $ (1) $(470) $267,933
====== ====== ========== ======== =========== ======== ================= =============
</TABLE>
See accompanying notes to consolidated financial statements
4
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SYBRON INTERNATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
Nine Months Ended
June 30,
1996 1995
--------- ---------
Cash flows from operating activities:
<S> <C> <C>
Net income .......................................................... $39,367 $37,251
Adjustments to reconcile net income to net cash provided by operating
activities:
Depreciation ....................................................... 18,889 14,397
Amortization ....................................................... 14,412 10,003
Provision for losses on doubtful accounts .......................... 361 431
Inventory provisions ............................................... 1,582 761
Deferred taxes ..................................................... (9,572) (4,262)
Changes in assets and liabilities:
Increase in accounts receivable .................................... (4,235) (5,200)
Increase in inventories ............................................ (8,107) (12,437)
Increase in prepaid expenses and other current assets .............. (2,753) (2,011)
Decrease in accounts payable ....................................... (1,058) (2,165)
Decrease in taxes payable .......................................... (15,975) (373)
Increase in accrued payroll and employee benefits .................. 566 2,277
Increase (decrease) in other current liabilities (2,954) 163
Net change in other assets and liabilities ......................... (452) (11,059)
--------- ---------
Total adjustments ................................................ (9,296) (9,475)
--------- ---------
Net cash provided by operating activities .......................... 30,071 27,776
Cash flows from investing activities:
Capital expenditures ................................................ (18,852) (13,025)
Proceeds from sales of property, plant, and equipment .............. 3,618 318
Payments for businesses acquired ................................... (43,369) (45,056)
--------- ---------
Net cash used in investing activities .............................. (58,603) (57,763)
Cash flows from financing activities:
Net change in the revolving credit facility ......................... 52,800 49,200
Principal payments long-term debt ................................... (26,624) (20,408)
Proceeds from the exercise of common stock options and warrants ..... 4,938 184
--------- ---------
Net cash provided by financing activities .......................... 31,114 28,976
Effect of exchange rate changes on cash ............................. (1,249) 186
Net increase (decrease) in cash ..................................... 1,333 (825)
Cash and cash equivalents at beginning of year ...................... 9,243 11,194
--------- ---------
Cash and cash equivalents at end of period .......................... $10,576 $10,369
========= =========
Supplemental disclosures of cash flow information:
Cash paid during the period for interest ............................ $33,007 $14,374
Cash paid during the period for income taxes ........................ 32,244 25,129
Capital lease obligations incurred .................................. 879 965
</TABLE>
See accompanying notes to unaudited consolidated financial statements.
5
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SYBRON INTERNATIONAL CORPORATION AND SUBSIDIARIES
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
1. In the opinion of management, all adjustments which are necessary for a
fair statement of the results for the interim periods have been included.
All such adjustments were of a normal recurring nature. The results for
the nine month period ended June 30, 1996 are not necessarily indicative
of the results to be expected for the full year. Certain amounts from the
nine month period ended June 30, 1995, as originally reported, have been
reclassified to conform with the nine month period ended June 30, 1996
presentation.
2. Inventories at June 30, 1996 consist of the following:
(In thousands)
Raw materials $36,289
Work-in-process 21,507
Finished goods 64,712
LIFO Reserve (4,789)
-------
$ 117,719
=======
3. Subsequent to June 30, 1996, the Company completed three acquisitions
through its subsidiaries identified below and amended its Revolving Credit
Facility.
On July 3, 1996, Richard-Allan Scientific Company, a subsidiary of Erie
Scientific Company, completed the acquisition of certain assets of Stephens
Scientific Company. Stephens Scientific manufactures solvents, imbedding
waxes, reagent grade alcohols, and tissue freezing aerosol, all products
used in histology laboratories. Stephens Scientific annual sales were
approximately $11 million.
On July 12, 1996, Nalge Nunc International Corporation completed the
purchase of the assets of Flexible Components, Inc., a company engaged in
the manufacture of flexible hoses, fittings and accessories used in fluid
and gas transport applications in the pharmaceutical, biotech, food and
beverage, air and gas industries. Annual sales were approximately $14.8
million.
On July 15, 1996, Metrex Research Corporation, a subsidiary of Kerr
Corporation which manufactures infection control products for the medical
and dental markets, acquired the assets of Micro-Aseptic Products, Inc.
Micro-Aseptic markets and sells infection control products, disinfectant
and decontaminant cleaners, deodorizers, antiseptic hand and skin cleaners
and related products to the medical and dental markets. Micro-Aseptic
annual sales were approximately $4.5 million.
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In fiscal year 1996 to date, the Company has completed eight acquisitions,
all of which are accounted for as purchases.
On July 9, 1996, the Company amended its existing bank facility. The
amendment increases the capacity of the Company's Revolving Credit Facility
from $250 million to $300 million, and provides a mechanism for the Company
to solicit competitive interest rate bids from banks who participate in the
facility.
7
<PAGE> 9
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion and analysis contains forward-looking statements.
When used herein, the words "anticipate", "believe", "estimate", "expect",
"objective" and similar expressions are intended to identify such statements.
Forward-looking statements are subject to certain risks, uncertainties and
assumptions that could cause actual results to differ materially from those
projected, including those that are described in Item 5, "Other Information -
Cautionary Factors", in Part II of this report.
GENERAL
Both sales and operating income for Sybron International Corporation
(together with its subsidiaries, the "Company") for the quarter and nine months
ended June 30, 1996 (the third quarter and year to date of fiscal 1996) grew
over the corresponding prior year periods despite an $8.3 million restructuring
charge, described below, in the second quarter of fiscal 1996. Net sales for
the quarter and year to date ended June 30, 1996 increased by 31.9% and 32.3%,
respectively, over the corresponding fiscal 1995 periods. Sales growth in the
third quarter of fiscal 1996 was strong both domestically and internationally
with increases of 29.3% and 36.6% in domestic and international sales,
respectively, over the corresponding 1995 period. Approximately 25.2 percentage
points of the 31.9% overall sales growth in the third quarter were attributable
to acquired businesses, with 6.7 percentage points coming from existing
businesses. International sales were adversely affected by the strengthened
U.S. dollar by approximately $1.5 million in the third quarter of fiscal 1996.
The Company's internal growth came from both the laboratory and dental
segments.
The results of operations of the Company reflect goodwill amortization,
other amortization, and depreciation. These non-cash charges totaled $11.0
million and $8.2 million for the quarters ended June 30, 1996 and 1995,
respectively, and $33.3 million and $24.4 million for the first nine months of
fiscal years 1996 and 1995, respectively. The Company's earnings before
interest, taxes, depreciation and amortization ("EBITDA") which, as discussed
below in "Liquidity and Capital Resources", the Company believes is the
appropriate measure of the Company's ability to internally fund its liquidity
requirements, amounted to $48.9 million and $36.7 million for the quarters
ended June 30 1996 and 1995, respectively, and $137.0 million and $101.5
million for the first nine months of fiscal years 1996 and 1995, respectively.
BITDA represents, for any relevant period, net income plus (i) interest
expense, (ii) provision for income taxes, (iii) depreciation, (iv) amortization
and (v) the restructuring charge described below, all determined on a
consolidated basis and in accordance with generally accepted accounting
principles.
Substantial portions of the Company's sales, income and cash flows are
derived from international operations. The financial position and the results
of operations from substantially all of the Company's international operations,
other than most U.S. export sales, are measured using the local currency of the
countries in which such operations are conducted and are
8
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translated into U.S. dollars. While the reported income of foreign subsidiaries
will be impacted by a weakening or strengthening of the U.S. dollar in relation
to a particular local currency, the effects of foreign currency fluctuations
are partially mitigated by the fact that manufacturing costs and other expenses
of foreign subsidiaries are generally incurred in the same currencies in which
sales are generated. Such effects of foreign currency fluctuations are also
mitigated by the fact that such subsidiaries' operations are conducted in
numerous foreign countries and, therefore, in numerous foreign currencies. In
addition, the Company's U.S. export sales may be impacted by foreign currency
fluctuations to the relative value of the U.S. dollar as foreign customers may
adjust their level of purchases upward or downward according to the weakness or
strength of the U.S. dollar. In order to hedge against future strengthening of
the U.S. dollar, in October 1994, the Company employed currency hedges through
the purchase of a series of options. The options purchased in October 1994 had
a U.S. dollar notional amount of approximately $21.2 million at a cost of
approximately $0.2 million. The October 1994 options employed by the Company
were designed to protect the Company from potential detrimental effects of
currency movements as compared to the prior year. Because of a steadily
declining dollar throughout fiscal 1994, the Company was able to take advantage
of the favorable currency rates to employ a series of "out of the money"
options to accomplish that purpose at a minimal cost. These contracts all
expired worthless in fiscal 1995. The Company has decided not to employ foreign
currency hedges at this time. From time to time, management may employ
currency hedges to mitigate the impact of foreign currency fluctuations.
In March of 1996, the Company recorded a restructuring charge of
$8,277,000 ($6,087,000 after tax or $.13 per share) for the rationalization of
certain acquired companies, combination of certain production facilities,
movement of certain customer service and marketing functions, and the exiting
of several product lines. The majority of expenditures related to the
restructuring plan are expected to be made during fiscal 1996, except for
expenditures related to leases and severance commitments which have terms
expiring later. As of June 30, 1996, approximately $3,342,000 of the
established liability remains to be expended. Principal items included in the
reserve are severance and termination costs for approximately 130 notified
employees (primarily production, sales and marketing personnel) (approximately
$2,300,000), remaining lease payments and shut down costs on exited facilities
(approximately $2,100,000), the non-cash write-off of certain fixed assets and
inventory associated with exited product lines, primarily at Sybron Dental
Specialties (approximately $2,500,000), and other related restructuring costs
(approximately $1,300,000). The Company estimates that savings from this
restructuring will approximate $3.8 million annually, before income taxes. It
is anticipated that the realization of most of the savings will begin in fiscal
1997.
As reported previously, on May 2, 1996, Combustion Engineering, Inc.
("CE") commenced legal proceedings in the New York Supreme Court, County of
Monroe (the "CE Litigation"), against the Company with respect to the former
Taylor Instruments ("Taylor") facility in Rochester, New York (the "Rochester
Site"), a discontinued operation. According to CE's complaint, its claims are
based on an asset purchase and sale agreement dated as of September 30, 1983,
pursuant to which Taylor was sold to CE (the "1983 Agreement"), and an
agreement between a subsidiary of the Company and CE dated August 14, 1987 (the
"1987
9
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Agreement"). The complaint alleges that under the 1983 Agreement the Company
retained certain liabilities for, and indemnified CE with respect to,
environmental contamination, hazards and other conditions that existed at the
time of the sale of Taylor to CE, and that under the 1987 Agreement, the
Company agreed to bear 70 percent of the costs thereafter incurred to clean up,
remediate and remove mercury from the land and buildings at the Rochester Site.
CE's complaint seeks declaratory relief and claims damages of at least $10
million with respect to expenses CE has incurred and expects to incur to
remediate and remove mercury contamination from the land and buildings sold to
CE at the Rochester Site. The complaint also seeks declaratory relief and
claims damages in excess of $1 million with respect to expenses incurred and
expected to be incurred for remediating other alleged environmental hazards
associated with the Rochester Site. Some of CE's claims relate to the cost to
demolish and dispose of the buildings at the Rochester Site, which CE maintains
it had to do because the buildings were contaminated with mercury. CE
previously informed the Company that CE claims that the Company's share of such
demolition and disposal costs is approximately $4.2 million. The Company has
denied it has any liability for such costs. CE's remaining claims relate to
alleged soil and groundwater contamination, including mercury contamination,
for which the Company also denies liability. CE implemented a plan in early
1996 to assess the extent of potential soil and groundwater contamination at
the Rochester Site, the preliminary results of which have been provided by CE
to the Company. The preliminary results indicate there is mercury and
inorganic and volatile organic compound contamination in the soil and
groundwater at certain Rochester Site locations. CE is preparing a voluntary
clean-up proposal based on these results which it plans to present to the New
York Department of Environmental Conservation (the "NYDEC") for consideration.
The cost to remediate the Rochester Site will depend upon the remediation
standards incorporated into any voluntary agreement between CE and the NYDEC.
Because the clean-up standards which may be applied have not been determined,
the extent of remediation to be undertaken, and its cost, is unknown. As a
result, the Company cannot, at this time, estimate the cost of the soil and
groundwater remediation claims. The Company previously reported that prior to
beginning the Rochester Site assessment which generated the current test
results, CE had indicated to the Company that, based upon information available
to it and subject to a number of caveats, including the lack of assessment
information and the fact that clean-up standards which may be applied to the
Rochester Site have not been determined, the cost to remediate the soil and
groundwater would range from $3 million to $5 million. Because the bases for
this estimate were not disclosed by CE to the Company, the Company cannot make
a judgment about how the preliminary test results it has been provided would
affect this estimate. The Company intends to pursue insurance coverage for
CE's claims and has therefore provided notice of CE's claims to its third party
liability insurance carriers. To date the carriers have denied coverage.
RESULTS OF OPERATIONS
QUARTER ENDED JUNE 30, 1996 COMPARED TO THE QUARTER ENDED JUNE 30, 1995
NET SALES. Net sales for the three months ended June 30, 1996 were $171.1
million, an increase of $41.3 million (31.9%) from net sales of $129.8 million
for the corresponding three
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months ended June 30, 1995. Sales in the laboratory segment were $101.3
million for the three months ended June 30, 1996, an increase of 50.2% from the
corresponding 1995 fiscal period. Increased sales in the laboratory segment
resulted primarily from (i) sales of products of acquired companies
(approximately $28.8 million), (ii) increased volume from sales of existing
products at Nalge Nunc International Corporation ("Nalge Nunc International")
(approximately $1.4 million) and at Erie Scientific Company ("Erie")
(approximately $1.3 million), (iii) price increases at Erie (approximately $0.9
million), at Nalge Nunc International (approximately $0.7 million) and at
Barnstead/Thermolyne Corporation ("Barnstead/Thermolyne") (approximately $0.7
million) and (iv) increased volume from sales of new products at Nalge Nunc
International (approximately $0.6 million; primarily sales from the Micro
Packaging Vials product line). Increased sales in the laboratory segment were
partially offset by unfavorable foreign currency impacts at Erie (approximately
$0.7 million). In the dental segment, net sales were $69.8 million for the
three months ended June 30, 1996, an increase of 12.0% from the corresponding
fiscal 1995 period. Increased sales in the dental segment resulted primarily
from (i) increased volume from sales of new products (approximately $4.5
million; primarily sales from the ORTHOS(TM) and the Copper Ni-Ti(TM) product
lines manufactured by Ormco Corporation ("Ormco"), and Kerr Corporation's
("Kerr") TYTIN FC(TM) Alloy), (ii) sales of products of acquired companies
(approximately $3.3 million) and (iii) increased volume from sales of existing
products (approximately $0.4 million), partially offset by unfavorable foreign
currency impacts (approximately $0.8 million).
GROSS PROFIT. Gross profit for the third quarter of fiscal 1996 was $85.5
million, an increase of 31.1% from gross profit of $65.2 million for the
corresponding fiscal 1995 period. Gross profit in the laboratory segment was
$46.7 million (46.1% of net segment sales) in the third quarter of fiscal 1996,
an increase of 55.0% from gross profit of $30.1 million (44.6% of net segment
sales) during the corresponding fiscal 1995 period. Gross profit in the
laboratory segment increased primarily as a result of (i) the gross profits of
acquired businesses (approximately $13.0 million), (ii) increased volume at
Nalge Nunc International (approximately $1.4 million), at Barnstead/Thermolyne
(approximately $0.4 million) and at Erie (approximately $0.3 million), (iii) an
improved product mix at Nalge Nunc International (approximately $0.4 million),
at Barnstead/Thermolyne (approximately $0.4 million) and at Erie (approximately
$0.3 million), (iv) lower unit costs at Nalge Nunc International (approximately
$0.7 million), and (v) a reduction in material costs at Nalge Nunc
International (approximately $0.3 million). Increased gross profit was
partially offset by an inventory adjustment at Erie (approximately $0.5
million). In the dental segment, gross profit was $38.8 million (55.6% of net
segment sales) in the third quarter of fiscal 1996, an increase of 10.5% from
gross profit of $35.1 million (56.4% of net segment sales) during the
corresponding fiscal 1995 period. Increased gross profit in the dental segment
resulted primarily from (i) the gross profits of acquired businesses
(approximately $2.5 million), and (ii) increased volume (approximately $2.1
million) partially offset by unfavorable foreign currency impacts
(approximately $1.0 million).
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. Selling, general and
administrative expenses for the third quarter of fiscal 1996 were $47.4 million
(27.7% of net sales) as compared to $36.4 million (28.0% of net sales) in the
corresponding fiscal 1995 period. General and administrative expenses at the
corporate level, including amortization of purchase accounting
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adjustments and goodwill associated with acquisitions, were $6.0 million in the
third quarter of fiscal 1996, representing an increase of 27.1% from $4.7
million in the corresponding fiscal 1995 period. Increases at the corporate
level were primarily due to increased amortization of the purchase accounting
valuation as a result of the acquisition of the Nunc group of companies
("Nunc") on July 31, 1995 (approximately $1.1 million). Selling, general and
administrative expenses at the subsidiary level, including amortization of
intangibles, were $41.4 million (24.2% of sales), representing an increase of
30.8% from $31.7 million (24.4% of sales) in the corresponding fiscal 1995
period. Increases at the subsidiary level were primarily due to (i) expenses
related to newly acquired businesses (approximately $6.9 million), (ii)
increased general and administrative expense (approximately $1.9 million),
(iii) increased marketing expense (approximately $0.6 million) and (iv)
increased amortization of intangible assets as a result of acquisitions
(approximately $0.4 million) partially offset by a reduction in research and
development expenses (approximately $0.4 million).
OPERATING INCOME. As a result of the foregoing, operating income was
$38.0 million (22.2% of net sales) in the third quarter of fiscal 1996 compared
to $28.8 million (22.2% of net sales) in the corresponding fiscal 1995 period.
Operating income in the laboratory segment was $23.1 million (22.8% of net
segment sales) in the third quarter of fiscal 1996 compared to $14.6 million
(21.7% of net segment sales) in the corresponding fiscal 1995 period.
Operating income in the dental segment was $14.9 million (21.4% of net segment
sales) in the third quarter of fiscal 1996 compared to $14.2 million (22.8% of
net segment sales) in the corresponding fiscal 1995 period.
INTEREST EXPENSE. Interest expense was $8.8 million in the third quarter
of fiscal 1996 compared to $5.9 million in the corresponding fiscal 1995
period. The increase resulted from a higher debt balance primarily from
increased acquisition activity. Interest expense during the quarters ended
June 30, 1996 and 1995 included additional non-cash interest expense of $0.3
million resulting from the adoption of SFAS No. 106.
INCOME TAXES. Taxes on income increased $3.1 million in the third quarter
of fiscal 1996 over the corresponding period in fiscal 1995, primarily as a
result of increased earnings from operations and an increase in nondeductible
amortization primarily related to the Nunc acquisition.
NET INCOME. As a result of the foregoing, the Company had net income of
$17.1 million in the third quarter of fiscal 1996 compared to $13.8 million in
the corresponding 1995 period.
DEPRECIATION AND AMORTIZATION. Depreciation and amortization expense is
allocated among cost of sales, selling, general and administrative expenses and
other expense. Depreciation and amortization increased by $2.8 million (34.3%)
in the third quarter of fiscal 1996 when compared to the corresponding 1995
period. This increase is primarily due to increased amortization of intangible
assets and depreciation of property, plant and equipment related to acquired
companies.
NINE MONTHS ENDED JUNE 30, 1996 COMPARED TO THE NINE MONTHS ENDED JUNE 30, 1995
12
<PAGE> 14
NET SALES. Net sales for the nine months ended June 30, 1996 were $488.8
million, an increase of $119.4 million (32.3%) from net sales of $369.4 million
for the corresponding nine months ended June 30, 1995. Sales in the laboratory
segment were $284.7 million for the nine months ended June 30, 1996, an
increase of 52.2% from the corresponding 1995 fiscal period. Increased sales in
the laboratory segment resulted primarily from (i) sales of products of
acquired companies (approximately $90.5 million), (ii) increased prices at
Barnstead/Thermolyne (approximately $1.7 million), at Nalge Nunc International
(approximately $1.4 million) and at Erie (approximately $0.5 million), (iii)
increased volume from sales of existing products at Erie (approximately $1.9
million) and at Nalge Nunc International (approximately $0.5 million) and (iv)
increased volume from sales of new products at Nalge Nunc International
(approximately $1.1 million; primarily sales of Micro Packaging Vials and
silicone tubing products). In the dental segment, net sales were $204.1
million for the nine months ended June 30, 1996, an increase of 11.9% from the
corresponding fiscal 1995 period. Increased sales in the dental segment
resulted primarily from (i) sales of products of acquired companies
(approximately $12.6 million), (ii) increased volume from sales of new products
(approximately $10.8 million; primarily sales from the ORTHOS(TM) and the
Copper Ni-Ti(TM) product lines manufactured by Ormco, and Kerr's TYTIN FC(TM)
Alloy) and (iii) favorable foreign currency impacts (approximately $0.9
million), partially offset by a reduction in volume from sales of existing
products (approximately $2.7 million).
GROSS PROFIT. Gross profit for the nine months ended June 30, 1996 was
$242.7 million, an increase of 30.9% from gross profit of $185.4 million for
the corresponding fiscal 1995 period. Gross profit in the laboratory segment
was $130.2 million (45.7% of net segment sales) for the nine months ended June
30, 1996, an increase of 56.0% from gross profit of $83.4 million (44.6% of net
segment sales) during the corresponding fiscal 1995 period. Gross profit in
the laboratory segment increased primarily as a result of (i) the gross profits
of acquired businesses (approximately $40.7 million), (ii) increased sales
volume at Nalge Nunc International (approximately $1.6 million), at
Barnstead/Thermolyne (approximately $0.8 million) and at Erie (approximately
$0.2 million), (iii) an improved product mix at Nalge Nunc International
(approximately $0.9 million), at Barnstead/Thermolyne (approximately $0.7
million) and at Erie (approximately $0.3 million), (iv) lower unit costs at
Nalge Nunc International (approximately $1.4 million), (v) a reduction in
material costs at Nalge Nunc International (approximately $0.7 million), and
(vi) inventory adjustments at Barnstead/Thermolyne (approximately $0.2
million). Increased gross profit in the laboratory segment was partially offset
by inventory adjustments at Erie (approximately $0.5 million). In the dental
segment, gross profit was $112.6 million (55.1% of net segment sales) for the
nine months ended June 30, 1996, an increase of 10.4% from gross profit of
$102.0 million (55.9% of net segment sales) during the corresponding fiscal
1995 period. Increased gross profit in the dental segment resulted primarily
from (i) the gross profits of acquired businesses (approximately $8.3 million),
(ii) increased volume (approximately $3.2 million) and (iii) favorable foreign
currency impacts (approximately $0.4 million), partially offset by inventory
adjustments (approximately $1.7 million).
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. Selling, general and
administrative expenses for the nine months ended June 30, 1996 were $138.6
million (28.4% of net sales) as
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<PAGE> 15
compared to $107.6 million (29.1% of net sales) in the corresponding fiscal
1995 period. General and administrative expenses at the corporate level,
including amortization of purchase accounting adjustments and goodwill
associated with acquisitions, were $18.1 million for the nine months ended June
30, 1996, representing an increase of 19.5% from $15.1 million in the
corresponding fiscal 1995 period. Increases at the corporate level were
primarily due to increased amortization of purchase accounting adjustments as a
result of the acquisition of Nunc (approximately $3.5 million), partially
offset by a reduction in employee benefit costs (approximately $0.5 million).
Selling, general and administrative expenses at the subsidiary level, including
amortization of intangibles, were $120.5 million (24.7% of sales), representing
an increase of 30.3% from $92.5 million (25.0% of sales) in the corresponding
fiscal 1995 period. Increases at the subsidiary level were primarily due to
(i) expenses related to newly acquired businesses (approximately $22.3
million), (ii) increased general and administrative expense (approximately $2.0
million), (iii) increased amortization of intangible assets as a result of
acquisitions (approximately $1.4 million), (iv) increased marketing expense
(approximately $1.0 million), (v) increased research and development expenses
(approximately $0.8 million) and (vi) unfavorable foreign currency impacts
(approximately $0.6 million).
RESTRUCTURING CHARGE. In March of 1996, the Company recorded a
restructuring charge of $8,277,000 ($6,087,000 after tax or $.13 per share) for
the rationalization of certain acquired companies, combination of certain
production facilities, movement of certain customer service and marketing
functions, and the exiting of several product lines. The majority of
expenditures related to the restructuring plan are expected to be made during
fiscal 1996, except for expenditures related to leases and severance
commitments which have terms expiring later. As of June 30, 1996,
approximately $3.3 million of the established liability remains to be expended
and is recorded in other current liabilities. Principal items included in the
reserve are severance and termination costs for approximately 130 notified
employees (primarily production, sales and marketing personnel) (approximately
$2,300,000), remaining lease payments and shut down costs on exited facilities
(approximately $2,100,000), the non-cash write-off of certain fixed assets and
inventory associated with exited product lines, primarily at Sybron Dental
Specialties (approximately $2,500,000), and other related restructuring costs
(approximately $1,300,000).
OPERATING INCOME. As a result of the foregoing, operating income was
$95.8 million (19.6% of net sales) for the nine months ended June 30, 1996
compared to $77.8 million (21.1% of net sales) in the corresponding fiscal 1995
period. Operating income in fiscal 1996 prior to the restructuring charge was
$104.1 million (21.3% of net sales). Operating income in the laboratory
segment, prior to the restructuring charge described above, was $62.6 million
(22.0% of net segment sales) for the nine months ended June 30, 1996 compared
to $38.4 million (20.5% of net segment sales) in the corresponding fiscal 1995
period. Operating income in the dental segment, prior to the restructuring
charge described above, was $41.5 million (20.3% of net segment sales) for the
nine months ended June 30, 1996 compared to $39.4 million (21.6% of net segment
sales) in the corresponding fiscal 1995 period.
INTEREST EXPENSE. Interest expense was $26.0 million for the nine months
ended June 30, 1996 compared to $15.6 million in the corresponding fiscal 1995
period. The increase resulted
14
<PAGE> 16
from a higher debt balance primarily from increased acquisition activity.
Interest expense during the nine months ended June 30, 1996 and 1995 included
additional non-cash interest expense of $0.9 million resulting from the
adoption of SFAS No. 106.
INCOME TAXES. Taxes on income increased $5.8 million in the nine months
ended June 30, 1996, primarily as a result of increased earnings from
operations and an increase in nondeductible amortization primarily related to
the Nunc acquisition.
NET INCOME. As a result of the foregoing, the Company had net income of
$39.4 million for the nine months ended June 30, 1996 compared to $37.3 million
in the corresponding 1995 period. Without the restructuring charge, net income
would have been $45.5 million.
DEPRECIATION AND AMORTIZATION. Depreciation and amortization expense is
allocated among cost of sales, selling, general and administrative expenses and
other expense. Depreciation and amortization increased $8.9 million (36.5%) in
the nine months ended June 30, 1996 when compared to the corresponding 1995
period. This increase is primarily due to increased amortization of intangible
assets and depreciation of property, plant and equipment related to acquired
companies.
INFLATION. The Company does not believe that inflation has had a material
impact on net sales or income during any of the periods presented above. There
can be no assurance, however, that the Company's business will not be affected
by inflation in the future.
LIQUIDITY AND CAPITAL RESOURCES
As a result of the leveraged buyout in 1987 of a company known at the time
as Sybron Corporation (the "Acquisition"), subsequent adoption of SFAS 109 and
the acquisitions completed since 1987, the Company increased the carrying value
of certain tangible and intangible assets consistent with generally accepted
accounting principles. Also, as a result of the permanent financing effected
in August 1988 for the Acquisition, the Company incurred approximately $372
million of debt. Accordingly, the Company's results of operations include a
significant level of non-cash expenses related to the depreciation of fixed
assets and the amortization of intangible assets, including goodwill. Goodwill
and intangible assets increased by $31.4 million in the nine months ended June
30, 1996 as a result of acquisitions. The Company believes, therefore, that
EBITDA represents the more appropriate measure of the Company's ability to
internally fund its capital requirements.
The Company's capital requirements arise principally from indebtedness
incurred in connection with the permanent financing for the Acquisition and its
subsequent refinancings, the Company's working capital needs, primarily related
to inventory and accounts receivable, the Company's capital expenditures,
primarily related to purchases of machinery and molds, the purchase of various
businesses and product lines in execution of the Company's acquisition
strategy, the periodic expansion of physical facilities and, in the short term,
payments related to the restructuring charge (as described above). In
addition, in the event the Company should be
15
<PAGE> 17
held liable for CE's claims in the CE Litigation (described above), liability
for which the Company denies, the Company could require capital to satisfy such
liabilities, depending upon their magnitude. With respect to the restructuring
charge, as of June 30, 1996, the Company has paid approximately $2.4 million
and charged an additional $2.5 million to inventory and fixed assets. The
Company intends to expend an additional $2.2 million by the end of fiscal 1996
and $1.1 million over the remaining terms of exited facilities leases and
severance agreements. With respect to acquisitions, it is currently the
Company's intent to continue to pursue its acquisition strategy. If
acquisitions are to continue at the Company's historical pace, the Company
believes it will require financing beyond the capacity of its existing Credit
Facilities (as defined below). In addition, certain acquisitions previously
completed contain "earnout provisions" requiring further payments in the future
if certain financial results are achieved by the acquired companies.
The statement contained in the immediately preceding paragraph concerning
the Company's intent to continue to pursue its acquisition strategy is a
forward-looking statement. The Company's ability to continue its acquisition
strategy is subject to a number of uncertainties, including, but not limited
to, its ability to raise capital beyond the capacity of its existing Credit
Facilities, and the availability of suitable acquisition candidates at
reasonable prices. See Item 5, "Other Information - Cautionary Factors", in
Part II of this report.
On July 31, 1995, the Company and its domestic subsidiaries entered into a
new credit agreement (as amended, the "Credit Agreement") with Chemical Bank
and certain other lenders providing for a term loan facility of $300 million
(the "Term Loan Facility"), and a revolving credit facility of $250 million
(the "Revolving Credit Facility") (collectively the "Credit Facilities"). On
the same day, the Company and its subsidiaries borrowed a total of
approximately $422.5 million under the Credit Facilities. The Company borrowed
$300 million under the Term Loan Facility and approximately $122.5 million was
borrowed under the Revolving Credit Facility. Approximately $167.6 million of
the borrowed funds were used to finance the acquisition of the Nunc group of
companies. The remaining borrowed funds of approximately $254.9 million were
used to repay outstanding amounts, including accrued interest, under the
Company's previous senior bank credit facilities (the "Previous Credit
Facilities") and to pay certain fees in connection with such refinancing. On
July 9, 1996, the Credit Agreement was amended to increase the capacity of the
Revolving Credit Facility to $300 million and to establish a competitive bid
process as an additional option to the Company in setting interest rates.
Payment of principal and interest with respect to the Credit Facilities
and the Sale/Leaseback (as defined later herein) are anticipated to be the
Company's largest use of funds in the future. As with the Company's Previous
Credit Facilities, the Credit Facilities provide for an annual interest rate,
at the option of the Company, equal to (a) the higher of (i) the rate from time
to time publicly announced by Chemical Bank in New York City as its prime rate,
(ii) the federal funds rate plus 1/2 of 1%, and (iii) the base CD rate plus
1%, (b) the London interbank offered rate ("LIBOR") plus 1/2% to 1% depending
upon the level of certain financial ratios, or (c) with respect to the
Revolving Credit Facility, the rate set by the competitive bid process among
the parties to the Revolving Credit Facility established in the July 9, 1996
amendment. Under the Previous Credit Facilities, the LIBOR margin was at 3/4%
through February 3, 1995. Upon
16
<PAGE> 18
application of the financial ratios for the period ending December 31, 1994,
the Company received a reduction in the LIBOR margin from 3/4% to 5/8%, which
took effect on February 4, 1995. On May 15, 1995, the LIBOR margin was
increased back to 3/4% and remained at that level through the first six months
of fiscal 1996. The primary reason for the rate increase was increased
borrowings under the Previous Credit Facilities and the Credit Facilities to
fund acquisitions completed in the second and third fiscal quarters of 1995 and
the first and second quarters of fiscal 1996. Upon application of the
financial ratios to the second quarter results of fiscal 1996, the Company
experienced an increase in the LIBOR margin from 3/4% to 1% effective May 15,
1996. The primary reason for this rate increase was the negative earnings
impact of the restructuring charge included in the second quarter. The LIBOR
margin decreased back to 3/4% on August 9, 1996 after application of the
financial ratios to the third quarter results.
As a result of the terms of the Credit Agreement and the agreement
governing the Previous Credit Facilities, the Company is sensitive to a rise in
interest rates. In order to reduce its sensitivity to such interest rate
increases, on July 2, 1993, the Company entered into two interest rate swaps,
aggregating $100 million, to hedge against a rise in interest rates. The first
swap was effective July 7, 1993, and fixed the interest rate on $50 million of
the Company's borrowings under the Credit Facilities and the Previous Credit
Facilities for a period of five years. A second swap was effective August 13,
1993, and fixed the interest rate on an additional $50 million of the Company's
borrowings for a period of six years. These rates, prior to the August 9, 1996
adjustment, were 6.17% and 6.44%, respectively, and decreased to 5.92% and
6.19%, respectively on August 9, 1996 as a result of the decrease in the LIBOR
margin discussed above.
The Company executed three additional interest rate swaps effective
December 8, 1995 with notional amounts of $50 million each. The three swaps,
prior to the August 9, 1996 adjustment, were at interest rates of 6.348%, 6.56%
and 6.624%, when the LIBOR margin was 1%, and adjusted to 6.098%, 6.31% and
6.374%, respectively, on August 9, 1996. These swap arrangements expire on
December 9, 1996, September 8, 2000 and September 10, 2001, respectively.
Also as part of the permanent financing for the Acquisition, on December
22, 1988, the Company entered into the sale and leaseback of its principal
domestic facilities (the "Sale/Leaseback"). In January 1994, the annual
obligation under the Sale/Leaseback increased from $2.9 million to $3.3
million, payable monthly. On the fifth anniversary of the leases and every
five years thereafter (including renewal terms), the rent will be increased by
the percentage equal to 75% of the percentage increase in the Consumer Price
Index over the preceding five years. The percentage increase to the rent in
any five-year period is capped at 15%. The next adjustment will not occur
until January 1, 1999.
The Company intends to fund its cash needs for acquisitions, working
capital requirements, capital expenditure requirements, principal and interest
payments, obligations under the Sale/Leaseback, restructuring expenditures,
other liabilities and periodic expansion of facilities, to the extent
available, with funds provided by operations and short-term borrowings under
the
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<PAGE> 19
Revolving Credit Facility. To the extent that funds are not available,
particularly with respect to acquisitions proposed to be made with cash, the
Company will have to raise additional capital.
As set forth above, until July 9, 1996 the Revolving Credit Facility
provided up to $250 million in credit, and on July 9, 1996, the Facility was
expanded to $300 million. As of June 30, 1996, prior to expansion of the
Facility and prior to the acquisitions of Stephens Scientific, Flexible
Components, Inc. And Micro-Aseptic Products, Inc., there was $78.2 million of
unused available credit under the Revolving Credit Facility. Under the Term
Loan Facility, on October 31, 1995 the Company began to repay principal in 28
consecutive quarterly installments. As of August 1, 1996, the Company paid all
of the $35 million obligation due in fiscal 1996. Future annual payments are
due as follows: $35 million, $40 million, $40 million, $50 million, $50
million, and $50 million in fiscal years 1997 through 2002, respectively.
The Credit Agreement contains numerous financial and operating covenants,
including, among other things, restrictions on investments; requirements that
the Company maintain certain financial ratios; restrictions on the ability of
the Company and its subsidiaries to incur indebtedness or to create or permit
liens, to make capital expenditures, or to pay cash dividends in excess of
$50.0 million plus 50% of the defined consolidated net income of the Company
for each fiscal quarter ending after September 30, 1995, less any dividends
paid after June 22, 1994; restrictions on annual capital expenditures to
amounts ranging from $36.0 million to $40.0 million during the remaining term
of the Credit Agreement; and limitations on incurrence of additional
indebtedness. The Credit Agreement permits the Company to make acquisitions
provided the Company continues to satisfy all financial covenants upon any such
acquisition. The ability of the Company to meet its debt service requirements
and to comply with such covenants is dependent upon the Company's future
performance, which is subject to financial, economic, competitive and other
factors affecting the Company, many of which are beyond its control.
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The following information should be read in conjunction with Item 3,
"Legal Proceedings", in Part I of the Company's Annual Report on Form 10-K for
the fiscal year ended September 30, 1995 and with Item 1, "Legal Proceedings",
in Part II of the Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended December 31, 1995 and March 31, 1996.
On May 2, 1996, Combustion Engineering, Inc. ("CE"), a subsidiary of ABB
Asea Brown Boveri Ltd. ("ABB"), commenced legal proceedings (the "CE
Litigation") against the Company with respect to the former Taylor Instruments
facility in Rochester, New York (the "Rochester Site"), a discontinued
operation. The CE Litigation, brought in the New York
18
<PAGE> 20
Supreme Court, Monroe County, New York, relates to the previously reported
claims ABB has made for reimbursement to it of expenses associated with the
remediation of alleged environmental contamination at the Rochester Site. The
Rochester Site was sold to CE in 1983 by the predecessor of a subsidiary of the
Company.
See Part I, Item 2, "Management's Discussion and Analysis of Financial
Condition and Results of Operations - General" for additional information
regarding the CE litigation.
ITEM 2. CHANGES IN SECURITIES
Information concerning the Company's Amended and Restated Credit
Agreement, dated as of July 31, 1995, with Chemical Bank and other lenders, as
amended by the First Amendment thereto, dated as of July 9, 1996, including the
financial and operating covenants contained therein (which, among other things,
place limitations upon the payment of dividends), is incorporated in response
to this item by reference to "Management's Discussion and Analysis of Financial
Condition and Results of Operations --Liquidity and Capital Resources" in Item
2 of Part I hereof.
ITEM 5. OTHER INFORMATION
CAUTIONARY FACTORS
This report contains various forward-looking statements concerning the
Company's prospects that are based on the current expectations and beliefs of
management. Forward-looking statements may also be made by the Company from
time to time in other reports and documents as well as oral presentations.
When used in written documents or oral presentations, the words "anticipate",
"believe", "estimate", "expect", "objective" and similar expressions are
intended to identify forward-looking statements. The statements contained
herein and such future statements involve or may involve certain assumptions,
risks and uncertainties that could cause the Company's actual results and
performance to differ materially from what is projected. In addition to the
assumptions and other factors referenced specifically in connection with such
statements, the following factors could impact the business and financial
prospects of the Company:
- Factors affecting the Company's international operations, including
relevant foreign currency exchange rates, which can affect the cost to
produce the Company's products or the ability to sell the Company's
products in foreign markets, and the value in U.S. dollars of sales made
in foreign currencies. Other factors include the Company's ability to
obtain effective hedges against fluctuations in currency exchange rates;
foreign trade, monetary and fiscal policies; laws, regulations and other
activities of foreign governments, agencies and similar organizations;
and risks associated with having major manufacturing facilities located
in countries, such as Mexico, Hungary and Italy, which have historically
been less stable than the United States in several respects, including
fiscal and political stability.
19
<PAGE> 21
- Factors affecting the Company's ability to continue pursuing its
current acquisition strategy, including the Company's ability to raise
capital beyond the capacity of its existing Credit Facilities or to use
the Company's stock for acquisitions, the cost of the capital required to
effect the Company's acquisition strategy, the availability of suitable
acquisition candidates at reasonable prices, the ability of the Company
to realize the synergies expected to result from acquisitions, and the
ability of existing Company personnel to efficiently handle increased
transitional responsibilities resulting from acquisitions.
- Factors affecting the Company's ability to profitably distribute and
sell its products, including any changes in the Company's business
relationships with its principal distributors, primarily in the
laboratory segment, competitive factors such as the entrance of
additional competitors into the Company's markets, pricing and
technological competition, and risks associated with the development and
marketing of new products in order to remain competitive by keeping pace
with advancing dental, orthodontic and laboratory technologies.
- With respect to Erie, factors affecting its Erie Electroverre S.A.
subsidiary's ability to manufacture the glass used by Erie's worldwide
manufacturing operations, including delays encountered in connection with
the periodic rebuild of the sheet glass furnace and furnace malfunctions
at a time when inventory levels are not sufficient to sustain Erie's
operations.
- Factors affecting the Company's ability to hire and retain competent
employees, including unionization of the Company's non-union employees
and changes in relationships with the Company's unionized employees.
- The risk of strikes or other labor disputes at those locations which
are unionized which could affect the Company's operations.
- Factors affecting the Company's ability to continue manufacturing
and selling those of its products that are subject to regulation by the
United States Food and Drug Administration or other domestic or foreign
governments or agencies, including the promulgation of stricter laws or
regulations, reclassification of the Company's products into categories
subject to more stringent requirements or the withdrawal of the approval
needed to sell one or more of the Company's products.
- Factors affecting the economy generally, including the financial and
business conditions of the Company's customers and the demand for
customers' products and services that utilize Company products.
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<PAGE> 22
- Factors relating to the impact of changing public and private
healthcare budgets which could affect demand for or pricing of the
Company's products.
- Factors affecting the Company's financial performance or condition,
including tax legislation, unanticipated restrictions on the Company's
ability to transfer funds from its subsidiaries and changes in applicable
accounting principles or environmental laws and regulations.
- The cost and other effects of claims involving the Company's
products and other legal and administrative proceedings,
including the expense of investigating, litigating and settling any
claims.
- Factors affecting the Company's ability to produce products on a
competitive basis, including the availability of raw materials at
reasonable prices.
Unanticipated technological developments that result in competitive
disadvantages and create the potential for impairment of existing assets.
The Company undertakes no obligation to publicly update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise.
21
<PAGE> 23
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS:
See the Exhibit Index following the Signature page in this report,
which is incorporated herein by reference.
(b) REPORTS ON FORM 8-K:
No reports on Form 8-K were filed during the quarter for which this
report is filed.
22
<PAGE> 24
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
SYBRON INTERNATIONAL CORPORATION
--------------------------------
(Registrant)
Date August 13, 1996 /s/ Dennis Brown
- --------------------- --------------------------------
Dennis Brown
Vice President - Finance, Chief
Financial Officer & Treasurer*
* executing as both the principal
financial officer and the duly
authorized officer of the Company.
23
<PAGE> 25
SYBRON INTERNATIONAL CORPORATION
(THE "REGISTRANT")
(COMMISSION FILE NO. 1-11091)
EXHIBIT INDEX
TO
QUARTERLY REPORT ON FORM 10-Q FOR QUARTER ENDED JUNE 30, 1996
<TABLE>
<CAPTION>
INCORPORATED
EXHIBIT HEREIN BY FILED
NUMBER DESCRIPTION REFERENCE TO HEREWITH
<S> <C> <C> <C>
4.1 First Amendment, dated as X
of July 9, 1996, to the Amended and
Restated Credit Agreement, dated
as of July 31, 1995 (as amended,
supplemented or otherwise modified
from time to time, the "Credit
Agreement"), among the Registrant
and certain of its subsidiaries,
the several Lenders from time to
time parties thereto, Chase
Securities Inc. (formerly known
as Chemical Securities Inc.), as
Arranger, and Chemical Bank, as
Administrative Agent for the
Lenders
4.2 Form of Revolving Credit Note, X
dated as of July 9, 1996, executed
pursuant to the Credit Agreement
4.3 Form of CAF Advance Note, dated as of X
July 9, 1996, executed pursuant
to the Credit Agreement
4.4 Amended and Restated Parent X
Pledge Agreement, dated as of
July 9, 1996, executed pursuant
to the Credit Agreement
4.5 Form of Amended and Restated X
Subsidiaries Guarantee,
dated as of July 9, 1996,
executed pursuant to the Credit
Agreement
4.6 Form of Amended and Restated X
Subsidiaries Pledge Agreement,
dated as of July 9, 1996, executed
pursuant to the Credit Agreement
11 Statement re Computation of Per
Share Earnings X
27 Financial Data Schedule X
</TABLE>
24
<PAGE> 1
EXHIBIT 4.1
EXECUTION COPY
--------------
FIRST AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
FIRST AMENDMENT, dated as of July 9, 1996 (this "Amendment"), to the
Amended and Restated Credit Agreement, dated as of July 31, 1995 (the "Credit
Agreement"), among Sybron International Corporation, a Wisconsin corporation
(the "Parent"), Ormco Corporation, a Delaware corporation ("Ormco"), Kerr
Corporation, a Delaware corporation ("Kerr"), Nalge Company, a Delaware
corporation ("Nalge"), Erie Scientific Company, a Delaware corporation ("Erie"),
Barnstead Thermolyne Corporation, a Delaware corporation ("Barnstead"; Ormco,
Kerr, Nalge, Erie and Barnstead are collectively referred to herein as the
"Subsidiary Borrowers"), the several banks and other financial institutions from
time to time parties thereto (the "Lenders"), Chase Securities Inc. (formerly
known as Chemical Securities Inc.), as Arranger, and Chemical Bank, a New York
banking corporation, as administrative agent for the Lenders thereunder (in such
capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to the Parent
and the Subsidiary Borrowers; and
WHEREAS, the Parent and the Subsidiary Borrowers have requested, and,
upon this Amendment becoming effective, the Lenders have agreed, that (i) the
Revolving Credit Commitments of the Lenders shall be increased by $50,000,000 in
the aggregate and (ii) certain provisions of the Credit Agreement be amended in
the manner provided for in this Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
I. Defined Terms. Terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
II. Amendments to Credit Agreement.
1. Amendments to Section 1. Subsection 1.1 of the Credit Agreement
is hereby amended by deleting the definitions of "Aggregate Outstanding
Extensions of Credit", "Borrowing Date", "Business Day", "Loan", "Notes", and
"Type" contained therein in their entirety and adding the following definitions
in alphabetical order:
<PAGE> 2
2
"Aggregate Outstanding Extensions of Credit": as to any Lender
at any time, an amount equal to the sum of (a) the aggregate
principal amount of all Revolving Credit Loans made by such Lender
then outstanding, (b) such Lender's Revolving Credit Commitment
Percentage of the L/C Obligations then outstanding, and (c) for all
purposes other than the calculation of the commitment fees pursuant
to subsection 2.9, such Lender's Revolving Credit Commitment
Percentage of the aggregate principal amount of all (i) CAF Advances
then outstanding and (ii) Swing Line Loans then outstanding.
"Amendment Effective Date": the date on which the First
Amendment dated as of July 9, 1996 to the Credit Agreement became
effective pursuant to the terms thereof.
"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.3, 2.5(a), 2.13 or 3.2 as a date on which
the Parent either on behalf of itself or any of the Subsidiary
Borrowers requests (a) the Lenders to make Loans or CAF Advances, as
the case may be, hereunder and/or (b) the Issuing Bank to issue a
Letter of Credit hereunder.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close; provided, that when such term is used to
describe a day on which a borrowing, payment or interest rate
determination is to be made in respect of a Eurodollar Rate CAF
Advance, such day shall also be a day on which dealings in foreign
currencies and exchange between banks may be carried on in London,
England.
"CAF Advance": each CAF Advance made pursuant to subsection
2.4.
"CAF Advance Availability Period": the period from and
including the Amendment Effective Date to and including the date
which is 7 days prior to the Termination Date.
"CAF Advance Confirmation": each confirmation by the Parent,
on behalf of itself or any other Revolving Credit Borrower, of its
acceptance of CAF Advance Offers, which confirmation shall be
substantially in the form of Exhibit J and shall be delivered to the
Administrative Agent by facsimile transmission.
"CAF Advance Interest Payment Date": as to each CAF Advance,
each interest payment date specified for such CAF Advance in the
related CAF Advance Request.
"CAF Advance Maturity Date": as to any CAF Advance, the date
specified by the Parent, on behalf of itself or any other Revolving
Credit Borrower, as the case may be,
<PAGE> 3
3
pursuant to paragraph 2.5(d)(ii) in its acceptance of the related
CAF Advance Offer.
"CAF Advance Note": as defined in subsection 2.7, which term
shall include any QFL CAF Advance Note issued pursuant to subsection
11.7.
"CAF Advance Offer": each offer by a Lender to make CAF
Advances pursuant to a CAF Advance Request, which offer shall
contain the information specified in Exhibit K and shall be
delivered to the Administrative Agent by telephone, immediately
confirmed by facsimile transmission.
"CAF Advance Request": each request by the Parent, on behalf
of itself or any other Revolving Credit Borrower, for Lenders to
submit bids to make CAF Advances, which request shall contain the
information in respect of such requested CAF Advances specified in
Exhibit L and shall be delivered to the Administrative Agent in
writing, by facsimile transmission, or by telephone, immediately
confirmed by facsimile transmission.
"Eurodollar Rate CAF Advance": any CAF Advance made pursuant
to a Eurodollar Rate CAF Advance Request.
"Eurodollar Rate CAF Advance Request": any CAF Advance Request
requesting the Lenders to offer to make CAF Advances at an interest
rate equal to the Eurodollar Rate plus (or minus) a margin.
"Fixed Rate CAF Advance": any CAF Advance made pursuant to a
Fixed Rate CAF Advance Request.
"Fixed Rate CAF Advance Request": any CAF Advance Request
requesting the Lenders to offer to make CAF Advances at a fixed rate
(as opposed to a rate composed of the Eurodollar Rate plus (or
minus) a margin).
"Loan": any loan (including any CAF Advance) made by any
Lender pursuant to this Agreement.
"Notes": the collective reference to the Revolving Credit
Notes, the CAF Advance Notes, the Swing Line Notes and the Term
Notes.
"QFL CAF Advance Note": as defined in subsection 11.7.
"Type": as to certain Loans made hereunder, its nature as an
ABR Loan or a Eurodollar Loan.
<PAGE> 4
4
2. Amendments to Section 2. (a) Section 2 is
hereby amended as follows:
(i) by deleting the first sentence of subsection 2.1(a) thereof
in its entirety and substituting in lieu thereof the following:
"Subject to the terms and conditions
hereof, each Lender severally agrees to make
revolving credit loans ("Revolving Credit
Loans") to the Revolving Credit Borrowers
from time to time during the Revolving Credit
Commitment Period in an aggregate principal
amount at any one time outstanding to all
Revolving Credit Borrowers, when added to
such Lender's Revolving Credit Commitment
Percentage of (i) the then outstanding L/C
Obligations, (ii) the aggregate principal
amount of all Swing Line Loans then
outstanding and (iii) the aggregate principal
amount of all CAF Advances then outstanding,
not to exceed the amount of such Lender's
Revolving Credit Commitment, provided that
nothing contained herein shall be deemed to
prohibit the making of, or relieve any Lender
of its obligation to make, Revolving Credit
Loans the proceeds of which are to be applied
solely to the repayment of principal of
Refunded Swing Line Loans pursuant to
subsection 2.16(c) except that in no event
shall any Lender be obligated to make
Revolving Credit Loans in excess of its
Revolving Credit Commitment";
(ii) by adding the following subsections at the end of
subsection 2.3:
"2.4. CAF Advances. Subject to the terms and
conditions of this Agreement, the Revolving Credit
Borrowers may borrow CAF Advances from time to time
on any Business Day during the CAF Advance
Availability Period. CAF Advances may be borrowed
in amounts such that the aggregate amount of (i)
Revolving Credit Loans, (ii) L/C Obligations, (iii)
Swing Line Loans and (iv) CAF Advances outstanding
at any time shall not exceed the aggregate amount of
the Revolving Credit Commitments at such time.
Within the limits and on the conditions hereinafter
set forth with respect to CAF Advances, the
Revolving Credit Borrowers from time to time may
borrow, repay and reborrow CAF Advances.
2.5 Procedure for CAF Advance Borrowing. (a) The
Parent, on behalf of itself or any other Revolving Credit
Borrower, shall request CAF Advances by
<PAGE> 5
5
delivering a CAF Advance Request to the Administrative
Agent, not later than 12:00 Noon (New York City time)
four Business Days prior to the proposed Borrowing Date
(in the case of a Eurodollar Rate CAF Advance Request),
and not later than 10:00 A.M. (New York City time) one
Business Day prior to the proposed Borrowing Date (in the
case of a Fixed Rate CAF Advance Request). Each CAF
Advance Request in respect of any Borrowing Date may
solicit bids for CAF Advances on such Borrowing Date in
an aggregate principal amount of $10,000,000 or an
integral multiple of $1,000,000 in excess thereof and
having not more than three alternative CAF Advance
Maturity Dates. The CAF Advance Maturity Date for each
CAF Advance shall be the date set forth therefor in the
relevant CAF Advance Request, which date shall be (i) not
less than 7 days nor more than 180 days after the
Borrowing Date therefor, in the case of a Fixed Rate CAF
Advance, (ii) one, two, three or six months after the
Borrowing Date therefor, in the case of a Eurodollar CAF
Advance and (iii) not later than the Termination Date, in
the case of any CAF Advance. The Administrative Agent
shall notify each Lender promptly by facsimile
transmission of the contents of each CAF Advance Request
received by the Administrative Agent.
(b) In the case of a Eurodollar Rate CAF Advance Request,
upon receipt of notice from the Administrative Agent of the contents
of such CAF Advance Request, each Lender may elect, in its sole
discretion, to offer irrevocably to make one or more CAF Advances at
the applicable Eurodollar Rate plus (or minus) a margin determined by
such Lender in its sole discretion for each such CAF Advance. Any
such irrevocable offer shall be made by delivering a CAF Advance
Offer to the Administrative Agent, before 10:30 A.M. (New York City
time) on the day that is three Business Days before the proposed
Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF
Advance Maturity Date and the aggregate maximum amount of
CAF Advances for all CAF Advance Maturity Dates which
such Lender would be willing to make (which amounts may,
subject to subsection 2.4, exceed such Lender's Revolving
Credit Commitment); and
(ii) the margin above or below the appropriate
Eurodollar Rate at which such Lender is willing to make
each such CAF Advance.
The Administrative Agent shall advise the Parent, on behalf of
itself or the relevant Revolving Credit Borrower, as the case may
be, before 11:00 A.M. (New York City time) on the date which is
three Business Days before the proposed Borrowing Date of the
contents of each such CAF Advance
<PAGE> 6
6
Offer received by it. If the Administrative Agent, in its capacity
as a Lender, shall elect, in its sole discretion, to make any such
CAF Advance Offer, it shall advise the Revolving Credit Borrower of
the contents of its CAF Advance Offer before 10:15 A.M. (New York
City time) on the date which is three Business Days before the
proposed Borrowing Date.
In the case of a Fixed Rate CAF Advance Request, upon receipt
of notice from the Administrative Agent of the contents of such CAF
Advance Request, each Lender may elect, in its sole discretion, to
offer irrevocably to make one or more CAF Advances at a rate of
interest determined by such Lender in its sole discretion for each
such CAF Advance. Any such irrevocable offer shall be made by
delivering a CAF Advance Offer to the Administrative Agent before
9:30 A.M. (New York City time) on the proposed Borrowing Date,
setting forth:
(i) the maximum amount of CAF Advances for each CAF
Advance Maturity Date, and the aggregate maximum amount
for all CAF Advance Maturity Dates, which such Lender
would be willing to make (which amounts may, subject to
subsection 2.4, exceed such Lender's Revolving Credit
Commitment); and
(ii) the rate of interest at which such Lender is
willing to make each such CAF Advance.
The Administrative Agent shall advise the Parent, on behalf of
itself or the relevant Revolving Credit Borrower, as the case may
be, before 10:00 A.M. (New York City time) on the proposed Borrowing
Date of the contents of each such CAF Advance Offer received by it.
If the Administrative Agent, in its capacity as a Lender, shall
elect, in its sole discretion, to make any such CAF Advance Offer,
it shall advise such Revolving Credit Borrower of the contents of
its CAF Advance Offer before 9:15 A.M. (New York City time) on the
proposed Borrowing Date.
(d) Before 11:30 A.M. (New York City time) three Business Days
before the proposed Borrowing Date (in the case of CAF Advances
requested by a Eurodollar Rate CAF Advance Request) and before 10:30
A.M. (New York City time) on the proposed Borrowing Date (in the
case of CAF Advances requested by a Fixed Rate CAF Advance Request),
the Parent, on behalf of itself or the relevant Revolving Credit
Borrower, as the case may be, in its absolute discretion, shall:
(i) cancel such CAF Advance Request by giving the
Administrative Agent telephone notice to that effect, or
<PAGE> 7
7
(ii) by giving telephone notice to the Administrative Agent
(immediately confirmed by delivery to the Administrative Agent of a CAF
Advance Confirmation by facsimile transmission) (A) subject to the
provisions of subsection 2.5(e), accept one or more of the offers made by
any Lender or Lenders pursuant to subsection 2.5(b) or subsection 2.5(c),
as the case may be, and (B) reject any remaining offers made by Lenders
pursuant to subsection 2.5(b) or subsection 2.5(c), as the case may be.
(e) The Parent's acceptance of CAF Advances in response to any CAF Advance
Offers shall be subject to the following limitations:
(i) the amount of CAF Advances accepted for each CAF Advance Maturity
Date specified by any Lender in its CAF Advance Offer shall not exceed the
maximum amount for such CAF Advance Maturity Date specified in such CAF
Advance Offer;
(ii) the aggregate amount of CAF Advances accepted for all CAF Advance
Maturity Dates specified by any Lender in its CAF Advance Offer shall not
exceed the aggregate maximum amount specified in such CAF Advance Offer for
all such CAF Advance Maturity Dates;
(iii) the Parent may not accept offers for CAF Advances for any CAF
Advance Maturity Date in an aggregate principal amount in excess of the
maximum principal amount requested in the related CAF Advance Request; and
(iv) if the Parent accepts any of such offers, it must accept offers
based solely upon pricing for each relevant CAF Advance Maturity Date and
upon no other criteria whatsoever, and if two or more Lenders submit offers
for any CAF Advance Maturity Date with identical pricing and the Parent
accepts any of such offers but does not wish to (or, by reason of the
limitations set forth in subsection 2.4, cannot) borrow the total amount
offered by such Lenders with such identical pricing, the Parent shall
accept offers from all of such Lenders in amounts allocated among them pro
rata according to the amounts offered by such Lenders (with appropriate
rounding, in the sole discretion of the Parent, to assure that each
accepted CAF Advance is an integral multiple of $1,000,000); provided that
if the number of Lenders that submit offers for any CAF Advance Maturity
Date at identical pricing is such that, after the Parent accepts such
offers pro rata in accordance with the foregoing provisions of this
paragraph, the CAF Advance to be made by any such Lender would be less than
$5,000,000 principal amount,
<PAGE> 8
7
the number of such Lenders shall be reduced by the
Administrative Agent by lot until the CAF Advances to be
made by each such remaining Lender would be in a
principal amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof.
(f) If the Parent notifies the Administrative Agent that
a CAF Advance Request is cancelled pursuant to subsection 2.5(d)(i),
the Administrative Agent shall give prompt telephone or fax notice
thereof to the Lenders.
(g) If the Parent accepts pursuant to subsection
2.5(d)(ii) one or more of the offers made by any Lender or
Lenders, the Administrative Agent promptly shall notify each Lender
which has made such an offer of the aggregate amount of such CAF
Advances to be made on such Borrowing Date for each CAF Advance
Maturity Date and the acceptance or rejection of any offers to make
such CAF Advances made by such Lender. Before 12:00 Noon (New York
City time) on the Borrowing Date specified in the applicable CAF
Advance Request, each Lender whose CAF Advance Offer has been
accepted shall make available to the Administrative Agent at its
office set forth in subsection 11.2 the amount of CAF Advances to be
made by such Lender, in immediately available funds. The
Administrative Agent will make such funds available to the relevant
Revolving Credit Borrower as soon as practicable on such date at such
office of the Administrative Agent. As soon as practicable after
each Borrowing Date, the Administrative Agent shall notify each
Lender of the aggregate amount of CAF Advances advanced on such
Borrowing Date and the respective CAF Advance Maturity Dates thereof.
2.6 CAF Advance Payments. (a) The Revolving Credit Borrower
in respect of each CAF Advance shall pay to the Administrative
Agent, for the account of the Lender which has made such CAF Advance,
on the applicable CAF Advance Maturity Date the then unpaid principal
amount of such CAF Advance. The Revolving Credit Borrowers shall not
have the right to prepay any principal amount of any CAF Advance
without the consent of the Lender to which such CAF Advance is owed.
(b) The Revolving Credit Borrower in respect of each CAF
Advance shall pay interest on the unpaid principal amount of such
CAF Advance made to such Revolving Credit Borrower from the
Borrowing Date to the applicable CAF Advance Maturity Date at the
rate of interest specified in the CAF Advance Offer accepted by the
Revolving Credit Borrower in connection with such CAF Advance
(calculated on the basis of a 360-day year for actual days elapsed),
payable on each applicable CAF Advance Interest Payment Date.
<PAGE> 9
9
(c) If any principal of, or interest on, any CAF Advance shall
not be paid when due (whether at the stated maturity, by acceleration
or otherwise), such CAF Advance shall, without limiting any rights of
any Lender under this Agreement, bear interest from the date on which
such payment was due at a rate per annum which is 2% above the rate
which would otherwise be applicable to such CAF Advance until the
stated CAF Advance Maturity Date of such CAF Advance, and for each
day thereafter at a rate per annum which is 2% above the ABR, in each
case until paid in full (as well after as before judgment). Interest
accruing pursuant to this paragraph (c) shall be payable from time to
time on demand.
2.7 CAF Advance Notes. The CAF Advances made by each Lender
shall be evidenced by a promissory note of the Revolving Credit
Borrowers, substantially in the form of Exhibit M-1 with appropriate
insertions (a "CAF Advance Note"), payable to the order of such
Lender and representing the obligation of each Revolving Credit
Borrower to pay the lesser of (a) the amount of the Aggregate
Revolving Credit Commitment and (b) the unpaid principal amount of
all CAF Advances made by such Lender to such Revolving Credit
Borrower, with interest on the unpaid principal amount from time to
time outstanding of each CAF Advance evidenced thereby as prescribed
in subsection 2.6(b). Each Lender is hereby authorized to record,
with respect to the appropriate Revolving Credit Borrower, the date
and amount of each CAF Advance made by such Lender, the CAF Advance
Maturity Date thereof, the date and amount of each payment of
principal thereof and the interest rate with respect thereto on the
schedule attached to and constituting part of its CAF Advance Note,
and any such recordation shall constitute prima facie evidence of the
accuracy of the information so recorded; provided, however, that the
failure to make any such recordation shall not affect the obligations
of the Revolving Credit Borrowers hereunder or under any CAF Advance
Note. Each CAF Advance Note shall be dated the Amendment Effective
Date, and each CAF Advance evidenced thereby shall bear interest for
the period from and including the Borrowing Date of such CAF Advance
on the unpaid principal amount thereof from time to time outstanding
at the applicable rate per annum determined as provided in, and such
interest shall be payable as specified in, subsection 2.6(b).
2.8 Certain Restrictions. A CAF Advance Request may request
offers for CAF Advances to be made on not more than one Borrowing
Date and to mature on not more than three CAF Advance Maturity
Dates. No CAF Advance Request may be submitted earlier than five
Business Days after submission of any other CAF Advance Request.";
<PAGE> 10
10
(iii) by deleting the first sentence of subsection 2.5 thereof
(as such subsection is identified in the Credit Agreement prior to this
Amendment) in its entirety and substituting in lieu thereof the following:
"The Parent shall have the right, upon not less than five
Business Days' notice from the Parent to the Administrative Agent,
to terminate the Aggregate Revolving Credit Commitment or, from time
to time, to reduce the amount of the Aggregate Revolving Credit
Commitment; provided that no such termination or reduction shall be
permitted if, after giving effect thereto and to any prepayments of
the Revolving Credit Loans, the Swing Line Loans and the CAF
Advances (to the extent permitted by subsection 2.6) made on the
effective date thereof, the aggregate principal amount of the
Revolving Credit Loans, the Swing Line Loans and the CAF Advances
then outstanding, when added to the then outstanding L/C
Obligations, would exceed the Aggregate Revolving Credit Commitment
then in effect.";
(iv) by deleting the first sentence of subsection 2.9 thereof (as
such subsection is identified in the Credit Agreement prior to this Amendment)
in its entirety and substituting in lieu thereof the following:
"Subject to the limitations contained in subsections 2.1 and
2.6 in respect of prepayments of Revolving Credit Loans, each
Borrower may on the last day of any Interest Period with respect
thereto, in the case of Eurodollar Loans, or at any time and from
time to time, in the case of ABR Loans, prepay the Loans made to
such Borrower, in whole or in part, without premium or penalty, upon
at least four Business Days' irrevocable notice in the case of
Eurodollar Loans, and upon at least one Business Days' irrevocable
notice in the case of ABR Loans, from the Parent to the
Administrative Agent, or upon irrevocable notice received by the
Administrative Agent prior to 11:00 A.M. on the requested prepayment
date in the case of Swing Line Loans, specifying the Borrower making
the prepayment, the date and amount of prepayment, whether the
prepayment is of Term Loans, Swing Line Loans, Revolving Credit
Loans or a combination thereof, and, if a combination thereof, the
amount allocable to each and whether the prepayment is of Eurodollar
Loans, ABR Loans or a combination thereof, and, if of a combination
thereof, the amount allocable to each."
(v) by deleting subsection 2.10(d) thereof (as such subsection is
identified in the Credit Agreement prior to this Amendment) in its entirety and
substituting in lieu thereof the following:
"(d) Each prepayment of the Loans pursuant to this subsection
2.15 shall be accompanied by payment in full of
<PAGE> 11
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all accrued interest thereon to and including the date of such
prepayment, together with any additional amounts owing pursuant to
subsection 2.26. Each reduction of the Aggregate Revolving Credit
Commitment pursuant to this subsection 2.15 shall be accompanied by
a prepayment of the Revolving Credit Loans, the Swing Line Loans and
the CAF Advances (if permitted by subsection 2.6) then outstanding
in an amount equal to the excess, if any, of the sum of (i) the
Revolving Credit Loans, (ii) the Swing Line Loans, (iii) the CAF
Advances and (iv) the L/C Obligations then outstanding, over the
Aggregate Revolving Credit Commitment, as so reduced. Any
prepayment required by the immediately preceding sentence shall be
applied first to the outstanding Swing Line Loans until they are
paid in full, second to the Revolving Credit Loans and third to the
CAF Advances (if permitted by subsection 2.6). To the extent that
in connection with the requirements hereof the Revolving Credit
Loans, the Swing Line Loans and the CAF Advances have been reduced
to zero and the L/C Obligations then outstanding exceed the
Aggregate Revolving Credit Commitment, as so reduced, the Parent
shall, simultaneously with such reduction, deposit in a cash
collateral account with the Administrative Agent having terms and
conditions reasonably acceptable to the Administrative Agent, an
amount equal to the sum of (i) the amount by which such outstanding
L/C Obligations exceed the Aggregate Revolving Credit Commitment, as
reduced and (ii) an amount equal to the commissions, fees and
estimated expenses (in each case as determined pursuant to
subsection 3.3) expected to be incurred by the Parent with respect
to such L/C Obligations over a one year period."; and
(vi) by deleting the first two sentences of subsection 2.17(a)
(as such subsection is identified in the Credit Agreement prior to this
Amendment) in their entirety and substituting in lieu thereof the following:
"Each borrowing by any Borrower from the Lenders hereunder
(other than any borrowing of Swing Line Loans or CAF Advances), each
payment by any Borrower on account of any commitment fee hereunder
(except as otherwise specifically provided herein) and any reduction
of the Commitments of the Lenders shall be made pro rata according
to the respective relevant Commitment Percentages of the Lenders.
Each payment (including each prepayment) by any Borrower on account
of principal of and interest on the Loans made to such Borrower
shall be made pro rata according to the respective principal or
interest, as the case may be, in respect of such Loans then due and
owing to the Lenders."
3. Amendments to Section 4. (a) Section 4 of the Credit
Agreement is hereby amended by deleting subsection 4.16 thereof in its
entirety and substituting in lieu thereof the following:
<PAGE> 12
12
"4.16 Purpose of Loans. (i) The proceeds of the Term Loans shall be
used to finance the Nunc Acquisition and to refinance indebtedness
outstanding under the Prior Credit Agreement and to pay fees and other
expenses related thereto and (ii) the proceeds of the Revolving Credit
Loans, the Swing Line Loans and the CAF Advances shall be used to finance
the Nunc Acquisition, to refinance indebtedness outstanding under the
Prior Credit Agreement and to finance the working capital needs of the
Parent and its Subsidiaries and for general corporate purposes, including
acquisitions other than the Nunc Acquisition, provided that no more than
$180,000,000 of the proceeds of the Loans may be used to finance the Nunc
Acquisition."
4. Amendments to Section 6. (a) Section 6 of the Credit Agreement
is hereby amended as follows:
(i) by deleting subsection 6.2(d) thereof in its entirety and
substituting in lieu thereof the following:
"(d) concurrently with the delivery of the financial
statements referred to in subsections 6.1(a) and 6.1(b), a
certificate of a Responsible Officer of the Parent indicating the
Parent's Interest Coverage Ratio and Leverage Ratio for such period
of four fiscal quarters of the Parent;"
(ii) by adding the following new paragraph at the end of
subsection 6.2(d):
"(e) concurrently with the delivery of the
financial statements referred to in subsection 6.1(a), a certificate
of the independent certified public accountants reporting on such
financial statements stating that in making the examination necessary
therefor no knowledge was obtained of any Default or Event of Default
relating to the covenants contained in subsections 7.1, 7.2, 7.4, 7.7
and 7.9, except as specified in such certificate; and"; and
(iii) by relettering subsection 6.2(e) as subsection 6.2(f).
5. Amendments to Section 7. (a) Section 7 is hereby amended as
follows:
(i) by deleting subsection 7.7 thereof in its entirety and
inserting in lieu thereof the following:
"7.7 Limitation on Leases. Permit Consolidated Lease Expense
for any fiscal year of the Parent and its Subsidiaries to exceed
$10,000,000."
<PAGE> 13
13
(ii) by deleting subsection 7.9 thereof in its entirety and inserting
in lieu thereof the following:
7.9 Limitation on Capital Expenditures. Make or
commit to make any Capital Expenditure (other than in connection with any
acquisition of a business unit specifically permitted by subsection
7.10(e)) except for expenditures in the ordinary course of business not
exceeding, in the aggregate for the Parent and its Subsidiaries during any
of the periods set forth below, the amount set forth opposite such period:
Period Amount
10/1/95 - 9/30/96 $38,000,000
10/1/96 - 9/30/97 $36,000,000
10/1/97 - 9/30/98 $38,000,000
10/1/98 - 9/30/99 $38,000,000
10/1/99 - 9/30/00 $40,000,000
10/1/00 - 9/30/01 $40,000,000
10/1/01 - Termination Date $40,000,000
6. Amendments to Section 11. (a) Section 11 of the Credit
Agreement is hereby amended as follows:
(i) by deleting subsection 11.6(e) thereof in its entirety and
substituting in lieu thereof the following:
"(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee
that is not then a Lender or an Affiliate thereof, by the Administrative
Agent) together with payment to the Administrative Agent by the assigning
Lender or such Assignee of a registration and processing fee of $4,000 (or
$1,000 in the case of an Assignee that is already a Lender), the
Administrative Agent shall (i) promptly accept such Assignment and
Acceptance and (ii) on the effective date determined pursuant thereto
record the information contained therein in the Register and give notice
of such acceptance and recordation to the Lenders and the Parent. On or
prior to such effective date, each of the Borrowers, at its own expense,
shall execute and deliver to the Administrative Agent (in exchange for the
Revolving Credit Note, CAF Advance Note or Term Note of the assigning
Lender) a new Revolving Credit Note, CAF Advance Note or Term Note, as the
case may be, to the order of such Assignee in amounts reflecting the
Revolving Credit Commitment or Term Loan, as the case may be, assumed by
it pursuant to such Assignment and Acceptance and, if the assigning Lender
has retained a Revolving Credit Commitment
<PAGE> 14
14
or Term Loan hereunder, a new Revolving Credit Note, CAF Advance Note
or Term Note, as the case may be, to the order of the assigning
Lender in amounts reflecting the Revolving Credit Commitment or Term
Loan, as the case may be, retained by it hereunder. Such new Notes
shall be dated the Closing Date in the case of Revolving Credit Notes
and Term Notes, and the Amendment Effective Date in the case of CAF
Advance Notes, and shall otherwise be in the form of the Note
replaced thereby";
(ii) by deleting subsections 11.7(a) and (b) thereof in their
entirety and substituting in lieu thereof the following:
"11.7 QFL Notes. (a) Any Lender that is not a "bank" within
the meaning of Section 881(c)(3)(A) of the Code and that satisfies
the requirements of subsection 2.25(b) (a "Qualified Foreign Lender")
shall, upon receipt of the written request of the Parent or the
Administrative Agent, and may upon its own written request to the
Administrative Agent (i) receive, or exchange any Revolving Credit
Note held by or assigned to it for, a QFL Revolving Credit Note
substantially in the form attached hereto as Exhibit A-2 (a "QFL
Revolving Credit Note"), (ii) receive, or exchange any Term Note held
by or assigned to it for, a QFL Term Note substantially in the form
attached hereto as Exhibit B-2 (a "QFL Term Note") and (iii) receive,
or exchange any CAF Advance Note held by or assigned to it for, a QFL
CAF Advance Note substantially in the form attached hereto as M-2 (a
"QFL CAF Advance Note"); the QFL Revolving Credit Notes, the QFL Term
Notes and the QFL CAF Advance Notes are collectively referred to
herein as the "QFL Notes"). Any QFL Notes issued pursuant to this
subsection 11.7 shall be (A) dated the Closing Date in the case of a
QFL Revolving Credit Note or a QFL Term Note, or dated the Amendment
Effective Date in the case of a QFL CAF Advance Note, (B) issued in
the name of the relevant Lender and (C) issued (i) in the same
principal amounts as such exchanged Revolving Credit Notes, Term
Notes or CAF Advance Notes as the case may be, or (ii) in the case of
a Lender not exchanging Revolving Credit Notes, Term Notes or CAF
Advance Notes, in amounts reflecting such Lender's Revolving Credit
Commitment or Term Loans, as the case may be.
(b) The Parent and each Subsidiary Borrower agree that, upon
the request of or delivery of a request to a Qualified Foreign Lender
pursuant to paragraph (a) of this subsection 11.7, it shall execute
and deliver QFL Notes to the Administrative Agent conforming to the
<PAGE> 15
15
requirements of such paragraph and pursuant to the terms thereof. To
the extent relevant, each Qualified Foreign Lender shall surrender
its Notes to the Administrative Agent in connection with any exchange
pursuant to this subsection 11.7. If an exchange of a Revolving
Credit Note, Term Note or CAF Advance Note is to occur, upon receipt
by the Administrative Agent of the existing Revolving Credit Note,
Term Note or CAF Advance Note to be exchanged for such QFL Notes in
accordance with this paragraph, the Administrative Agent shall
forward the QFL Notes to the Qualified Foreign Lender which
surrendered its Revolving Credit Note, Term Note or CAF Advance Note
for exchange and shall forward such exchanged Revolving Credit Note,
Term Note or CAF Advance Note to the Parent marked "cancelled." Once
issued, QFL Notes (i) shall, subject to the terms of this Amendment,
be deemed to and shall be "Term Notes", "Revolving Credit Notes" or
"CAF Advance Notes", as the case may be, for all purposes under this
Agreement, the Security Documents and the other Loan Documents, (ii)
may not be exchanged for "Revolving Credit Notes", "Term Notes" or
"CAF Advance Notes" notwithstanding anything to the contrary in this
Agreement, and (iii) shall at all times thereafter be QFL Notes,
including, without limitation, following any transfer or assignment
thereof;"; and
(iii) by deleting subsection 11.8(a) thereof in its entirety and
substituting in lieu thereof the following:
"(a) If any Lender (a "benefitted Lender") shall at any time
receive any payment of all or part of the Loans owing to it, or
interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events
or proceedings of the nature referred to in Section 8(f) or
otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such
other Lender's Loans then due and owing, or interest thereon then due
and owing, such benefitted Lender shall purchase for cash from such
other Lender a participating interest in such portion of each such
other Lender's Revolving Credit Loans, Term Loans or CAF Advances, as
the case may be, or shall provide such other Lenders with the
benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such benefitted Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefitted
Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without
interest."
<PAGE> 16
16
7. Amendments to Sections 1 through 11. Sections 1 through 11 of
the Credit Agreement are hereby amended by renumbering all references and
cross-references to subsections 2.4 through 2.22 contained in the Credit
Agreement prior to the Amendment Effective Date as subsections 2.9 through
2.27, respectively.
8. Amendment to Schedule I to the Credit Agreement. Schedule I to
the Credit Agreement is hereby amended by deleting Schedule I in its entirety
and substituting in lieu thereof Exhibit A hereto.
9. Amendments to Exhibits to the Credit Agreement. The Exhibits to
the Credit Agreement are hereby amended by inserting Exhibits B through F
hereto as Exhibits J through M-2, respectively, to the Credit Agreement.
III. Conditions to Effectiveness. This Amendment shall become effective
on the date (the "Amendment Effective Date") on which all of the following
conditions precedent have been satisfied or waived:
1. The Parent, the Subsidiary Borrowers, the Administrative Agent and the
Lenders (as required by the Credit Agreement) shall have executed and delivered
to the Administrative Agent this Amendment.
2. The Administrative Agent shall have received a copy of the
resolutions, in form and substance satisfactory to the Administrative Agent, of
the Board of Directors of each of the Parent and the Subsidiary Borrowers
authorizing the execution, delivery and performance of this Amendment, certified
by the Secretary or an Assistant Secretary of such party as of the Amendment
Effective Date, which certificate shall state that the resolutions thereby
certified have not been amended, modified, revoked or rescinded as of the date
of such certificate.
3. The Administrative Agent shall have received, to the extent that it has
not theretofore received, a certificate of the Secretary or Assistant Secretary
of the Parent and the Subsidiary Borrowers, dated the Amendment Effective Date,
as to the incumbency and signature of each of the officers signing this
Amendment, and any other instrument or document delivered by such party in
connection herewith, together with evidence of the incumbency of such Secretary
or Assistant Secretary.
4. The Administrative Agent shall have received a written legal opinion of
counsel to the Parent and the Subsidiary Borrowers in form and substance
satisfactory to the Administrative Agent and its counsel.
5. The Administrative Agent and the Lenders shall have received all fees
due from the Parent.
<PAGE> 17
17
IV. Purchase and Sale of Revolving Credit
Commitments and Revolving Credit Loans.
On the Amendment Effective Date, but immediately prior to any
borrowing on such date under the Credit Agreement, without the necessity of
further action by any party, one or more Lenders (the "Selling Lenders") as
specified on Schedule 1 hereto shall sell, transfer and assign to one or more
other Lenders (the "Purchasing Lenders") as specified on Schedule 1 hereto a
portion of the Selling Lender's right, title and interest in and to its
Revolving Credit Commitments and/or Revolving Credit Loans as specified on
Schedule 1 hereto, without recourse, representation or warranty, and each
Purchasing Lender shall purchase, take and acquire from a Selling Lender a
portion of such Selling Lender's right, title and interest in and to its
Revolving Credit Commitments and/or Revolving Credit Loans as specified on
Schedule 1 hereto, so that after giving effect to all such transfers, each
Lender's interest in the Revolving Credit Commitments and Revolving Credit
Loans shall be as specified on Schedule 1 hereto.
V. General.
1. Representation and Warranties. To induce the Administrative Agent and
the Lenders parties hereto to enter into this Amendment, the Parent and the
Subsidiary Borrowers hereby represent and warrant to the Administrative Agent
and all of the Lenders as of the Amendment Effective Date that the
representations and warranties made by the Parent and the Subsidiary Borrowers
in the Loan Documents are true and correct in all material respects on and as
of the Amendment Effective Date, before and after giving effect to the
effectiveness of this Amendment, as if made on and as of the Amendment
Effective Date.
2. Payment of Expenses. The Parent and the Subsidiary Borrowers agree
to pay or reimburse the Administrative Agent for all of its out-of-pocket costs
and reasonable expenses incurred in connection with this Amendment, any other
documents prepared in connection herewith and the transactions contemplated
hereby, including, without limitation, the reasonable fees and disbursements of
counsel to the Administrative Agent.
3. No Other Amendments; Confirmation. Except as expressly amended,
modified and supplemented hereby, the provisions of the Credit Agreement and
the Notes are and shall remain in full force and effect.
4. Governing Law; Counterparts. This Amendment and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
(b) This Amendment may be executed by one or more of the parties to this
Agreement on any number of separate counterparts,
<PAGE> 18
18
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. This Amendment may be delivered by facsimile
transmission of the relevant signature pages hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
SYBRON INTERNATIONAL CORPORATION
By:
-----------------------------------
Title:
ORMCO CORPORATION
By:
-----------------------------------
Title:
KERR CORPORATION
By:
-----------------------------------
Title:
NALGE COMPANY
By:
-----------------------------------
Title:
ERIE SCIENTIFIC COMPANY
By:
-----------------------------------
Title:
BARNSTEAD THERMOLYNE CORPORATION
By:
-----------------------------------
Title:
<PAGE> 19
19
CHEMICAL BANK,
as Administrative Agent and as a
Lender
By:
----------------------------------
Title:
ABN AMRO BANK N.V.
By:
----------------------------------
Title:
By:
----------------------------------
Title:
BANK OF AMERICA ILLINOIS
By:
----------------------------------
Title:
BANK OF MONTREAL
By:
----------------------------------
Title:
BANK ONE, COLUMBUS, NA
By:
----------------------------------
Title:
<PAGE> 20
20
THE BANK OF NOVA SCOTIA
By:____________________________
Title:
BANK OF SCOTLAND
By:____________________________
Title:
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By:____________________________
Title:
By:____________________________
Title:
BANQUE PARIBAS
By:____________________________
Title:
By:____________________________
Title:
CAISSE NATIONALE DE CREDIT
AGRICOLE
By:____________________________
Title:
<PAGE> 21
21
COMERICA BANK
By:
----------------------------------
Title:
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By:
----------------------------------
Title:
DG BANK, DEUTSCHE GENOSSENSCHAFTSBANK
CAYMAN ISLAND BRANCH
By:
----------------------------------
Title:
By:
----------------------------------
Title:
FIRST BANK NATIONAL ASSOCIATION
By:
----------------------------------
Title:
FLEET BANK OF MASSACHUSETTS, N.A.
By:
----------------------------------
Title:
<PAGE> 22
22
THE FUJI BANK, LIMITED
By:
------------------------------
Title:
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD. CHICAGO BRANCH
By:
------------------------------
Title:
MELLON BANK, N.A.
By:
------------------------------
Title:
THE BANK OF TOKYO-MITSUBISHI, Ltd.,
CHICAGO BRANCH
By:
------------------------------
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:
------------------------------
Title:
NBD BANK
By:
------------------------------
Title:
<PAGE> 23
23
THE SAKURA BANK, LIMITED
By:
------------------------------
Title:
SOCIETE GENERALE
By:
------------------------------
Title:
By:
------------------------------
Title:
THE SUMITOMO BANK, LTD., CHICAGO
BRANCH
By:
------------------------------
Title:
<PAGE> 24
SCHEDULE 1 to the First Amendment
<TABLE>
<CAPTION>
REVISED
REVOLVING
CREDIT AGGREGATE
Bank COMMITMENT VARIANCE
- ---- --------------- ---------------
<S> <C> <C>
Chemical Bank $ 16,965,909.08 $ 39,583.33
Bank of Montreal 15,352,272.73 55,416.67
Banque Paribas 15,352,272.73 55,416.67
Credit Lyonnais Cayman Island Branch 15,352,272.73 55,416.67
First Bank National Association 15,352,272.73 55,416.67
Fleet Bank of Massachusetts, N.A. 15,352,272.73 55,416.67
Mellon Bank, N.A. 15,352,272.73 55,416.67
NBD Bank 15,352,272.73 55,416.67
Bank of America Illinois 15,352,272.73 55,416.67
The Bank of Nova Scotia 15,352,272.73 55,416.67
The Mitsubishi Trust and 15,352,272.73 55,416.67
Banking Corporation
ABN AMRO Bank NV 15,352,272.73 55,416.67
The Long-Term Credit Bank of 15,352,272.73 55,416.67
Japan, Ltd. Chicago Branch
Societe Generale 15,352,272.73 55,416.67
Bank One, Columbus, NA 8,772,727.27 31,666.67
Bank of Scotland 7,272,727.27 (1,013,333.33)
Comerica Bank 8,772,727.27 31,667.67
Caisse Nationale de Credit Agricole 8,772,727.27 31,667.67
DG Bank, Deutsche 8,772,727.27 31,667.67
Genossenschaftsbank, Cayman
Island Branch
The Fuji Bank, Limited 8,772,727.27 31,667.67
Bank of Tokyo-Mitsibishi Bank, 8,772,727.27 31,667.67
Ltd., Chicago Branch
The Sakura Bank, Limited 8,772,727.27 31,667.67
The Sumitomo Bank, Ltd., 8,772,727.27 31,667.67
Chicago Branch
Banque Francaise du Commerce 6,000,000.00 0.00
Exterieur -- Cayman Island Branch
-------------- -------------
300,000,000.00 0.00
</TABLE>
<PAGE> 25
EXHIBIT A to the First Amendment
<TABLE>
<CAPTION>
TERM LOAN REVOLVING CREDIT TOTAL
BANK COMMITMENT COMMITMENT COMMITMENT
- ---- -------------- -------------------- --------------
<S> <C> <C> <C>
Chemical Bank $16,909,090.92 $16,965,909.08 $33,875,000.00
10 South LaSalle Street
Suite 2300
Chicago, Illinois 60603
Attention: Cynthia R. Berkshire
Telephone: (312) 807-4029
Telecopy: (312) 443-1964
Bank of Montreal 15,272,727.27 15,352,272.73 30,625,000.00
115 South LaSalle Street
Chicago, Illinois 60603
Attention: Irene M. Geller
Telephone: (312) 750-4368
Telecopy: (312) 750-3783
Banque Paribas 15,272,727.27 15,352,272.73 30,625,000.00
227 W. Monroe Street
Suite 3300
Chicago, Illinois 60606
Attention: Jerry O'Keeke
Telephone: (312) 853-6007
Telecopy: (312) 853-6020
Credit Lyonnais Cayman Island 15,272,727.27 15,352,272.73 30,625,000.00
Branch
227 West Monroe Street
Suite 3800
Chicago, Illinois 60606
Attention: Eric Tobin
Telephone: (312) 220-7314
Telecopy: (312) 641-0527
First Bank National Association 15,272,727.27 15,352,272.73 30,625,000.00
601 Second Avenue South
Minneapolis, Minnesota 55402-4302
Attention: Mark Olman
Telephone: (612) 973-1085
Telecopy: (612) 973-0825 15,272,727.27 15,352,272.73 30,625,000.00
Fleet Bank of Massachusetts, N.A. 15,272,727.27 15,352,272.73 30,625,000.00
75 State Street
4th Floor
Boston, Massachusetts 02109
Attention: Maryann Smith
Telephone: (617) 346-1579
Telecopy: (617) 443-1964
Mellon Bank, N.A. 15,272,727.27 15,352,272.73 30,625,000.00
55 West Monroe Street
Suite 2600
Chicago, Illinois 60603
Attention: Jeffrey A. Anderson
Telephone: (312) 357-3405
Telecopy: (312) 357-3414
</TABLE>
<PAGE> 26
2
<TABLE>
<CAPTION>
Revolving
Term Loan Credit Total
Bank Commitment Commitment Commitment
- ------ ---------- ----------- ----------
<S> <C> <C> <C>
NBD Bank 15,272,727.27 15,352,272.73 30,625,000.00
First National Plaza
Mail Suite 0088
14th Floor
Chicago, Illinois 60670-0088
Attention: Donald J. Buse
Telephone: (312) 732-6620
Telecopy: (312) 732-1117
Bank of America Illinois 15,272,727.27 15,352,272.73 30,625,000.00
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Meg Claggett
Telephone: (312) 828-1549
Telecopy: (312) 765-2080
The Bank of Nova Scotia 15,272,727.27 15,352,272.73 30,625,000.00
600 Peachtree Street N.E.
Suite 2700
Atlanta, Georgia 30308
Attention: Shannon Law
Telephone: (312) 201-4111
Telecopy: (312) 201-4108
The Mitsubishi Trust and Banking 15,272,727.27 15,352,272.73 30,625,000.00
Corporation
520 Madison Avenue
26th Floor
New York, New York 10022
Attention: Anthony Rock
Telephone: (212) 891-8425
Telecopy: (212) 593-4691
ABN AMRO Bank NV 15,272,727.27 15,352,272.73 30,625,000.00
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Douglas Elliott
Telephone: (312) 904-2994
Telecopy: (312) 606-8425
The Long-Term Credit Bank of 15,272,727.27 15,352,272.73 30,625,000.00
Japan,
Ltd. Chicago Branch
190 South LaSalle Street
Suite 800
Chicago, Illinois 60603
Attention: John R. Carley
Telephone: (312) 853-9516
Telecopy: (312) 704-8505
Societe Generale 15,272,727.27 15,352,272.73 30,625,000.00
181 West Madison Street
Suite 3400
Chicago, Illinois 60602
Attention: Susan C. Hummel
Telephone: (312) 578-5157
Telecopy: (312) 578-5099
</TABLE>
<PAGE> 27
3
<TABLE>
Caption
Revolving
Term Loan Credit Total
Commitment Commitment Commitment
---------- ---------- ------------
<S> <C> <C> <C>
Bank One, Columbus, NA 8,727,272.73 8,772,727.27 17,500,000.00
100 East Broad Street
7th Floor
Columbus, Ohio 43271
Attention: Douglas H. Klamfoth
Telephone: (614) 248-5839
Telecopy: (614) 248-5518
Bank of Scotland 8,727,272.73 8,772,727.27 17,500,000.00
181 West Madison Street
Suite 4710
Chicago, Illinois 60657
Attention: Colin J.D. Ferguson
Telephone: (312) 263-4054
Telecopy: (312) 263-1143
Comerica Bank 8,727,272.73 8,772,727.27 17,500,000.00
4747 West Dempster Street
Skokie, Illinois 60076
Attention: Harve C. Light
Telephone: (847) 933-2203
Telecopy: (847) 933-2209
Caisse Nationale de Credit 8,727,272.73 8,772,727.27 17,500,000.00
Agricole
55 East Monroe Street
Suite 4700
Chicago, Illinois 60603-5702
Attention: Roger H. Weis
Telephone: (312) 917-7440
Telecopy: (312) 372-3724
DG Bank, Deutsche 8,727,272.73 8,772,727.27 17,500,000.00
Genossenschaftsbank, Cayman
Island Branch
609 Fifth Avenue
New York, New York 10017
Attention: Norah E. McCann
Telephone: (212) 745-1584
Telecopy: (212) 745-1856
The Fuji Bank, Limited 8,727,272.73 8,772,727.27 17,500,000.00
225 West Wacker Drive
Suite 2000
Chicago, Illinois 60606
Attention: Steve Peca
Telephone: (312) 621-9484
Telecopy: (312) 621-0539
The Bank of Tokyo-, 8,727,272.73 8,772,727.27 17,500,000.00
Mitsubishi BankLtd.,
Chicago Branch
227 West Monroe Street
Suite 2300
Chicago, Illinois 60606
Attention: Wayne Yamanaka
Telephone: (312) 696-4664
Telecopy: (312) 696-4535
</TABLE>
<PAGE> 28
4
<TABLE>
Caption Revolving
Term Loan Credit Total
Commitment Commitment Commitment
---------- ---------- ----------
<S> <C> <C> <C>
The Sakura Bank, Limited 8,727,272.73 8,772,727.27 17,500,000.00
227 West Monroe Street
Suite 4700
Chicago, Illinois 60606
Attention: Teresita Ladd
Telephone: (312) 201-5121
Telecopy: (312) 352-5345
The Sumitomo Bank, Ltd., 8,727,272.73 8,772,727.27 17,500,000.00
Chicago Branch
233 South Wacker Drive
Suite 4800
Chicago, Illinois 60606
Attention: John DiLegge
Telephone: (312) 876-6444
Telecopy: (312) 876-6436
Banque Francaise du Commerce 6,000,000.00 6,000,000.00 12,000,000.00
Exterieur -- Cayman Island Branch
645 Fifth Avenue
New York, New York 10022
Attention: Frederick Kammler
Telephone: (212) 872-5041
Telecopy: (212) 872-5045
------------- ------------- ---------------
$300,000,000 $300,000,000 $600,000,000.00
</TABLE>
<PAGE> 29
EXHIBIT B to the First Amendment
EXHIBIT J
FORM OF
CAF ADVANCE CONFIRMATION
___________, 199_
Chemical Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
Reference is made to the Amended and Restated Credit Agreement, dated as
of July 31, 1995, among Sybron International Corporation, the Subsidiary
Borrowers, the Lenders named therein, Chase Securities Inc., as Arranger, and
Chemical Bank, as Administrative Agent (as the same may be amended,
supplemented or otherwise modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
In accordance with subsection 2.5(d) of the Credit Agreement, the
undersigned, on behalf of [itself] [One of the other Revolving Credit
Borrowers], accepts and confirms the offers by the CAF Advance Lender(s) to
make CAF advances to the undersigned on___________, 199_ under subsection
2.5(d) in the (respective) amount(s) set forth on the attached list of CAF
Advances offered.
Very truly yours,
[SYBRON INTERNATIONAL CORPORATION]
By____________________________
Title:
[NOTE: The Parent must attach the CAF Advance offer list prepared by the
Administrative Agent with the accepted amount entered by the Parent to the
right of each CAF Advance offer].
-1-
<PAGE> 30
EXHIBIT C to the First Amendment
EXHIBIT K
FORM OF
CAF ADVANCE OFFER
_____________, 199__
Chemical Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
Reference is made to the Amended and Restated Credit Agreement, dated
as of July 31, 1995, among Sybron International Corporation, the Subsidiary
Borrowers, the Lenders named therein, Chase Securities Inc., as Arranger, and
Chemical Bank, as Administrative Agent (as the same may be amended, supplemented
or otherwise modified from time to time, the "Credit Agreement"). Terms defined
in the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
In accordance with subsection 2.5 of the Credit Agreement, the
undersigned Lender offers to make CAF Advances thereunder in the following
amounts with the following maturity dates:
<TABLE>
<S> <C>
Borrowing Date: __________, 199__ Aggregate Maximum Amount: $_________
Maturity Date 1: Maximum Amount: $__________
__________, 199__ $________ offered at _______*
$________ offered at _______*
Maturity Date 2: Maximum Amount: $__________
__________, 199__ $________ offered at _______*
$________ offered at _______*
Maturity Date 3: Maximum Amount: $__________
__________, 199__ $________ offered at _______*
$________ offered at _______*
</TABLE>
[NOTE: Insert the interest rate offered for the specified CAF Advance
where indicated by an asterisk (*). In the case of Eurodollar Rate CAF
Advances, insert a margin bid.
-1-
<PAGE> 31
2
In the case of Fixed Rate CAF Advances, insert a fixed rate bid.]
Very truly yours,
[NAME OF LENDER]
By_______________________
Title:
Telephone No.:
Telecopy No.:
-2-
<PAGE> 32
EXHIBIT D to the First Amendment
EXHIBIT L
FORM OF
CAF ADVANCE REQUEST
__________, 199__
Chemical Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
Reference is made to the Amended and Restated Credit Agreement, dated
as of July 31, 1995, among Sybron International Corporation, the Subsidiary
Borrowers, the Lenders named therein, Chase Securities Inc., as Arranger, and
Chemical Bank, as Administrative Agent (as the same may be amended, supplemented
or otherwise modified from time to time, the "Credit Agreement"). Terms defined
in the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
This is a [Fixed Rate] [Eurodollar Rate] CAF Advance Request pursuant
to subsection 2.5 of the Credit Agreement requesting offers for the following
CAF Advances:
[NOTE: Pursuant to the Credit Agreement, a CAF Advance Request may be
transmitted in writing, by telecopy, or by telephone, immediately
confirmed by telecopy. In any case, a CAF Advance Request shall
contain the information specified in the second paragraph of this
form.]
<TABLE>
<CAPTION>
Loan 1 Loan 2 Loan 3
<S> <C> <C> <C>
Aggregate Principal Amount $__________ $__________ $_________
Borrowing Date
CAF Advance Maturity Date
CAF Advance Interest Payment Dates
</TABLE>
Very truly yours,
[SYBRON INTERNATIONAL CORPORATION]
By_______________________________
Title:
-1-
<PAGE> 33
EXHIBIT E to the First Amendment
EXHIBIT M-1
FORM OF CAF ADVANCE NOTE
New York, New York
$300,000,000 July __, 1996
FOR VALUE RECEIVED, each of the undersigned, Sybron International
Corporation ("Parent"), a Wisconsin corporation, Kerr Corporation ("Kerr"), a
Delaware Corporation, and Nalge Company ("Nalge"), a Delaware Company (each, a
"Revolving Credit Borrower"), severally, hereby unconditionally promises to pay
to the order of __________________________________ (the "Lender") at the office
of Chemical Bank located at 270 Park Avenue, New York, New York 10017, in
lawful money of the United States of America and in immediately available
funds, the principal amount of (a) THREE HUNDRED MILLION DOLLARS
($300,000,000), or, if less, (b) the aggregate unpaid principal amount of each
CAF Advance which is made by the Lender to such Revolving Credit Borrower
pursuant to subsection 2.4 of the Credit Agreement, as hereinafter defined.
The principal amount of each CAF Advance evidenced hereby shall be payable on
the CAF Advance Maturity Date therefor set forth on the schedule attached
hereto and made a part hereof or on a continuation of such schedule which shall
be attached hereto and made a part hereof (the "Grid"). Each Revolving Credit
Borrower, severally, further agrees to pay interest in like money at such
office on the unpaid principal amount of each CAF Advance made to such
Revolving Credit Lender, at the rate per annum set forth in respect of such CAF
Advance on the Grid, calculated on the basis of a year of 360 days and actual
days elapsed from the Borrowing Date of such CAF Advance until the due date
thereof (whether at the stated maturity, by acceleration or otherwise) and
thereafter at the rates determined in accordance with subsection 2.6(c) of the
Credit Agreement. Interest on each CAF Advance evidenced hereby shall be
payable on the date or dates set forth in respect of such CAF Advance on the
Grid. CAF Advances evidenced by this Note may not be prepaid.
The holder of this Note is authorized to endorse on the Grid the Borrowing
Date, amount, Interest rate, Interest Payment Dates and CAF Advance Maturity
Date in respect of each CAF Advance made pursuant to subsection 2.4 of the
Credit Agreement and each payment of principal with respect thereto. Each such
endorsement shall constitute prima facie evidence of the accuracy of the
information endorsed. The failure to make any such endorsement shall not
affect the obligations of the Borrower in respect of such CAF Advance.
This Note is one of the CAF Advance Notes referred to in the Amended and
Restated Credit Agreement dated as of July 31,
-1-
<PAGE> 34
2
1995 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Parent, the Subsidiary Borrowers, the Lender,
the other banks and financial institutions from time to time parties thereto,
Chemical Securities Inc., as Arranger, and Chemical Bank, as Administrative
Agent, and is subject to the provisions of the Credit Agreement.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SYBRON INTERNATIONAL CORPORATION
By
--------------------------------
Title:
KERR CORPORATION
By
--------------------------------
Title:
NALGE COMPANY
By
--------------------------------
Title:
-2-
<PAGE> 35
SCHEDULE OF CAF ADVANCES
_________________, Lender
Sybron International Corporation, Revolving Credit Borrower
Credit Agreement dated as of July 31, 1995
<TABLE>
<CAPTION>
Borrowing CAF Advance
Date of CAF Amount of CAF Interest Payment CAF Advance
Advance Advance Interest Rate Dates Maturity Date Payment Date Authorization
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
-3-
<PAGE> 36
SCHEDULE OF CAF ADVANCES
_________________, Lender
Kerr Corporation, Revolving Credit Borrower
Credit Agreement dated as of July 31, 1995
<TABLE>
<CAPTION>
Borrowing CAF Advance
Date of CAF Amount of CAF Interest Payment CAF Advance
Advance Advance Interest Rate Dates Maturity Date Payment Date Authorization
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
-4-
<PAGE> 37
SCHEDULE OF CAF ADVANCES
_________________, Lender
Nalge Company, Revolving Credit Borrower
Credit Agreement dated as of July 31, 1995
<TABLE>
<CAPTION>
Borrowing CAF Advance
Date of CAF Amount of CAF Interest Payment CAF Advance
Advance Advance Interest Rate Dates Maturity Date Payment Date Authorization
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
-5-
<PAGE> 38
EXHIBIT F to the First Amendment
EXHIBIT M-2
THIS QUALIFIED NON-U.S. LENDER NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE
WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW.
TRANSFERS OF THIS QUALIFIED NON-U.S. LENDER NOTE MUST BE RECORDED IN THE
REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH
CREDIT AGREEMENT.
FORM OF QUALIFIED NON-U.S. LENDER CAF ADVANCE NOTE
$300,000,000 July __, 1996
FOR VALUE RECEIVED, each of the undersigned, Sybron International
Corporation ("Parent"), a Wisconsin corporation, Kerr Corporation ("Kerr"), a
Delaware Corporation, and Nalge Company ("Nalge"), a Delaware Company (each, a
"Revolving Credit Borrower"), severally, hereby unconditionally promises to pay
to the order of __________________________________ (the "Lender") at the office
of Chemical Bank located at 270 Park Avenue, New York, New York 10017, in
lawful money of the United States of America and in immediately available
funds, the principal amount of (a) THREE HUNDRED MILLION DOLLARS
($300,000,000), or, if less, (b) the aggregate unpaid principal amount of each
CAF Advance which is made by the Lender to such Revolving Credit Borrower
pursuant to subsection 2.4 of the Credit Agreement, as hereinafter defined.
The principal amount of each CAF Advance evidenced hereby shall be payable on
the CAF Advance Maturity Date therefor set forth on the schedule attached
hereto and made a part hereof or on a continuation of such schedule which shall
be attached hereto and made a part hereof (the "Grid"). Each Revolving Credit
Borrower, severally, further agrees to pay interest in like money at such
office on the unpaid principal amount of each CAF Advance made to such
Revolving Credit Lender, at the rate per annum set forth in respect of such CAF
Advance on the Grid, calculated on the basis of a year of 360 days and actual
days elapsed from the Borrowing Date of such CAF Advance until the due date
thereof (whether at the stated maturity, by acceleration or otherwise) and
thereafter at the rates determined in accordance with subsection 2.6(c) of the
Credit Agreement. Interest on each CAF Advance evidenced hereby shall be
payable on the date or dates set forth in respect of such CAF Advance on the
Grid. CAF Advances evidenced by this Note may not be prepaid.
The holder of this Note is authorized to endorse on the Grid the Borrowing
Date, amount, Interest rate, Interest Payment
<PAGE> 39
2
Dates and CAF Advance Maturity Date in respect of each CAF Advance made
pursuant to subsection 2.4 of the Credit Agreement and each payment of
principal with respect thereto. Each such endorsement shall constitute prima
facie evidence of the accuracy of the information endorsed. The failure to
make any such endorsement shall not affect the obligations of the Borrower in
respect of such CAF Advance.
This Note is one of the CAF Advance Notes referred to in the Amended and
Restated Credit Agreement dated as of July 31, 1995 (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement"), among the
Parent, the Subsidiary Borrowers, the Lender, the other banks and financial
institutions from time to time parties thereto, Chemical Securities Inc., as
Arranger, and Chemical Bank, as Administrative Agent, and is subject to the
provisions of the Credit Agreement.
As provided in subsection 11.7(d) of the Credit Agreement, this Qualified
Non-U.S. Lender Note and the Obligation(s) evidenced hereby may be assigned in
whole or in part only by registration of such assignment of this Qualified
Non-U.S. Lender Note and the Obligation(s) evidenced hereby on the Register
described in subsection 11.7(c) of the Credit Agreement. Any assignment of all
or part of such Obligation(s) and this Qualified Non-U.S. Lender Note
evidencing the same shall be registered on the Register only upon surrender for
registration of assignment of this Qualified Non-U.S. Lender Note evidencing
such Obligation(s), duly endorsed by (or accompanied by a written instrument of
assignment duly executed by) the Qualified Non-U.S. Lender Noteholder hereof,
and thereupon one or more new Qualified Non-U.S. Lender Note(s) in the same
aggregate principal amount shall be issued to the designated Assignee(s) and
the old Qualified Non-U.S. Lender Note shall be returned to the Borrower marked
"cancelled". No assignment of this Qualified Non-U.S. Lender Note and the
Obligation(s) evidenced hereby shall be effective unless such assignment shall
have been recorded in the Register as provided herein and in subsection 11.7(d)
of the Credit Agreement. This Qualified Non-U.S. Lender Note may not be
exchanged for promissory notes that are not Qualified Non-U.S. Lender Notes.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser
<PAGE> 40
3
or otherwise, hereby waive presentment, demand, protest and all other notices
of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SYBRON INTERNATIONAL CORPORATION
By _____________________________
Title:
KERR CORPORATION
By _____________________________
Title:
NALGE COMPANY
By _____________________________
Title:
<PAGE> 41
SCHEDULE OF CAF ADVANCES
_________________, Lender
Sybron International Corporation, Revolving Credit Borrower
Credit Agreement dated as of July 31, 1995
<TABLE>
<CAPTION>
Borrowing CAF Advance
Date of CAF Amount of CAF Interest Payment CAF Advance
Advance Advance Interest Rate Dates Maturity Date Payment Date Authorization
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
-4-
<PAGE> 42
SCHEDULE OF CAF ADVANCES
_________________, Lender
Kerr Corporation, Revolving Credit Borrower
Credit Agreement dated as of July 31, 1995
<TABLE>
<CAPTION>
Borrowing CAF Advance
Date of CAF Amount of CAF Interest Payments CAF Advance
Advacne Advance Interest Rate Dates Maturity Date Payment Date Authorization
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
-5-
<PAGE> 43
SCHEDULE OF CAF ADVANCES
_________________, Lender
Nalge Company, Revolving Credit Borrower
Credit Agreement dated as of July 31, 1995
<TABLE>
<CAPTION>
CAF Advance
Borrowing Amount of CAF Interest Payment CAF Advance
Date of CAF Advance Advance Interest Rate Dates Maturity Date Payment Date Authorization
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
-6-
<PAGE> 1
EXHIBIT 4.2
FORM OF REVOLVING CREDIT NOTE
$_________ New York, New York
July 9, 1996
FOR VALUE RECEIVED, each of the undersigned, Sybron International
Corporation ("Parent"), a Wisconsin corporation, Kerr Corporation ("Kerr"), a
Delaware Corporation, and Nalge Company ("Nalge"), a Delaware Company (each, a
"Revolving Credit Borrower"), severally, hereby unconditionally promises to pay
to the order of __________________(the "Lender") at the office of Chemical Bank,
located at 270 Park Avenue, New York, New York 10017, in lawful money of the
United States of America and in immediately available funds, on the Termination
Date the lesser of (a) the principal amount of DOLLARS
($_______), and (b) the aggregate unpaid principal amount of all Revolving
Credit Loans made by the Lender to such Revolving Credit Borrower pursuant to
subsection 2.1 of the Credit Agreement, as hereinafter defined. Each Revolving
Credit Borrower, severally, further agrees to pay interest in like money at
such office on the unpaid principal amount of Revolving Credit Loans of such
Revolving Credit Borrower from time to time outstanding at the rates and on the
dates specified in subsection 2.14 of such Credit Agreement.
The holder of this Note is authorized to endorse on the appropriate
schedules annexed hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof the date, Type and amount
of each Revolving Credit Loan made by such holder to each Revolving Credit
Borrower pursuant to the Credit Agreement and the date and amount of each
payment or prepayment of principal thereof, each continuation thereof, each
conversion of all or a portion thereof to another Type and, in the case of
Eurodollar Loans, the length of each Interest Period and the Eurodollar Rate
with respect thereto. Each such endorsement shall constitute prima facie
evidence of the accuracy of the information endorsed. The failure to make any
such endorsement shall not affect the obligations of the Revolving Credit
Borrower in respect of such Revolving Credit Loan.
This Note (a) is one of the Revolving Credit Notes referred to in the
Credit Agreement, dated as of July 31, 1995 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Parent, Kerr, Nalge, Ormco Corporation, a Delaware corporation, Erie Scientific
Company, a Delaware corporation, Barnstead Thermolyne Corporation, a Delaware
corporation, the Lender, the other banks and financial institutions from time
to time parties thereto, Chemical Securities Inc., as arranger, and Chemical
Bank, as
<PAGE> 2
2
administrative agent, (b) is subject to the provisions of the Credit Agreement
and (c) is subject to optional and mandatory prepayment in whole or in part as
provided in the Credit Agreement. This Note is secured and guaranteed as
provided in the Loan Documents. Reference is hereby made to the Loan Documents
for a description of the assets in which a security interest has been granted,
the nature and extent of the security and the guarantees, the terms and
conditions upon which the security interests and each guarantee were granted
and the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind, except as
otherwise provided in any of the Loan Documents.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SYBRON INTERNATIONAL CORPORATION
By:__________________________
Name:________________________
Title:
KERR CORPORATION
By:____________________________
Name:__________________________
Title:_________________________
<PAGE> 3
3
NALGE COMPANY
By:__________________________
Name:_________________________
Title:________________________
<PAGE> 4
4
Schedule A-1
to Revolving Credit Note
PARENT
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
<TABLE>
Amount Amount of ABR Loans Unpaid Principal
Converted to Amount of Principal Converted to Balance of ABR
Date Amount of ABR Loans ABR Loans of ABR Loans Repaid Eurodollar Loans Loans Notation Made By
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE> 5
5
<TABLE>
<CAPTION>
Schedule A-2
to Revolving Credit Note
KERR
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
Amount Amount of ABR Loans Unpaid Principal
Converted to Amount of Principal Converted to Balance of ABR
Date Amount of ABR Loans ABR Loans of ABR Loans Repaid Eurodollar Loans Loans Notation Made By
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE> 6
Schedule A-3
to Revolving Credit Note
NALGE
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
<TABLE>
<CAPTION>
Amount Amount of ABR Loans Unpaid Principal
Converted to Amount of Principal Converted to Balance of ABR
Date Amount of ABR Loans ABR Loans of ABR Loans Repaid Eurodollar Loans Loans Notation Made By
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE> 7
Schedule B-1
to Revolving Credit Note
PARENT
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
Interest Period and Amount of
Eurodollar Rate Amount of Principal Eurodollar Loans Unpaid Principal
Amount of Amount Converted to with Respect of Eurodollar Loans Converted to ABR Balance of Notation
Date Eurodollar Loans Eurodollar Loans Thereto Repaid Loans Eurodollar Loans Made By
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE> 8
Schedule B-2
to Revolving Credit Note
KERR
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
Interest Period and Amount of
Eurodollar Rate Amount of Principal Eurodollar Loans Unpaid Principal
Amount of Amount Converted to with Respect of Eurodollar Loans Converted to ABR Balance of Notation
Date Eurodollar Loans Eurodollar Loans Thereto Repaid Loans Eurodollar Loans Made By
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE> 9
Schedule B-3
to Revolving Credit Note
NALGE
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
Interest Period and Amount of
Eurodollar Rate Amount of Principal Eurodollar Loans Unpaid Principal
Amount of Amount Converted to with Respect of Eurodollar Loans Converted to ABR Balance of Notation
Date Eurodollar Loans Eurodollar Loans Thereto Repaid Loans Eurodollar Loans Made By
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE> 1
EXHIBIT 4.3
FORM OF CAF ADVANCE NOTE
New York, New York
$300,000,000 July __, 1996
FOR VALUE RECEIVED, each of the undersigned, Sybron International
Corporation ("Parent"), a Wisconsin corporation, Kerr Corporation ("Kerr"), a
Delaware Corporation, and Nalge Company ("Nalge"), a Delaware Company (each, a
"Revolving Credit Borrower"), severally, hereby unconditionally promises to pay
to the order of (the "Lender") at the office
of Chemical Bank located at 270 Park Avenue, New York, New York 10017, in
lawful money of the United States of America and in immediately available
funds, the principal amount of (a) THREE HUNDRED MILLION DOLLARS
($300,000,000), or, if less, (b) the aggregate unpaid principal amount of each
CAF Advance which is made by the Lender to such Revolving Credit Borrower
pursuant to subsection 2.4 of the Credit Agreement, as hereinafter defined.
The principal amount of each CAF Advance evidenced hereby shall be payable on
the CAF Advance Maturity Date therefor set forth on the schedule attached
hereto and made a part hereof or on a continuation of such schedule which shall
be attached hereto and made a part hereof (the "Grid"). Each Revolving Credit
Borrower, severally, further agrees to pay interest in like money at such
office on the unpaid principal amount of each CAF Advance made to such
Revolving Credit Lender, at the rate per annum set forth in respect of such CAF
Advance on the Grid, calculated on the basis of a year of 360 days and actual
days elapsed from the Borrowing Date of such CAF Advance until the due date
thereof (whether at the stated maturity, by acceleration or otherwise) and
thereafter at the rates determined in accordance with subsection 2.6(c) of the
Credit Agreement. Interest on each CAF Advance evidenced hereby shall be
payable on the date or dates set forth in respect of such CAF Advance on the
Grid. CAF Advances evidenced by this Note may not be prepaid.
The holder of this Note is authorized to endorse on the Grid the Borrowing
Date, amount, Interest rate, Interest Payment Dates and CAF Advance Maturity
Date in respect of each CAF Advance made pursuant to subsection 2.4 of the
Credit Agreement and each payment of principal with respect thereto. Each such
endorsement shall constitute prima facie evidence of the accuracy of the
information endorsed. The failure to make any such endorsement shall not
affect the obligations of the Borrower in respect of such CAF Advance.
This Note is one of the CAF Advance Notes referred to in the Amended and
Restated Credit Agreement dated as of July 31, 1995 (as amended, supplemented
or otherwise modified from time to
time, the "Credit Agreement"), among the Parent, the Subsidiary Borrowers, the
Lender, the other banks and financial institutions from time to time parties
thereto, Chemical Securities Inc., as Arranger, and Chemical Bank, as
Administrative Agent, and is subject to the provisions of the Credit Agreement.
<PAGE> 2
2
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SYBRON INTERNATIONAL CORPORATION
By___________________________________
Title:
KERR CORPORATION
By___________________________________
Title:
NALGE COMPANY
By___________________________________
Title:
<PAGE> 3
SCHEDULE OF CAF ADVANCES
_________________, Lender
Sybron International Corporation, Revolving Credit Borrower
Credit Agreement dated as of July 31, 1995
<TABLE>
<CAPTION>
CAF Advance
Borrowing Amount of CAF Interest Payment CAF Advance
Date of CAF Advance Advance Interest Rate Dates Maturity Date Payment Date Authorization
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE> 4
SCHEDULE OF CAF ADVANCES
_________________, Lender
Kerr Corporation, Revolving Credit Borrower
Credit Agreement dated as of July 31, 1995
<TABLE>
<CAPTION>
CAF Advance
Borrowing Amount of CAF Interest Payment CAF Advance
Date of CAF Advance Advance Interest Rate Dates Maturity Date Payment Date Authorization
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE> 5
SCHEDULE OF CAF ADVANCES
_________________, Lender
Nalge Company, Revolving Credit Borrower
Credit Agreement dated as of July 31, 1995
<TABLE>
<Caption
CAF Advance
Borrowing Amount of CAF Interest Payment CAF Advance
Date of CAF Advance Advance Interest Rate Dates Maturity Date Payment Date Authorization
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE> 1
EXHIBIT 4.4
AMENDED AND RESTATED PARENT PLEDGE AGREEMENT
AMENDED AND RESTATED PLEDGE AGREEMENT, dated as of July 9, 1996, made by
Sybron International Corporation, a Wisconsin corporation (the "Parent"), in
favor of Chemical Bank, as Administrative Agent (in such capacity, the
"Administrative Agent"), for the banks and other financial institutions (the
"Lenders") from time to time parties to the Credit Agreement, dated as of July
31, 1995 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Parent, Ormco Corporation, a Delaware
corporation ("Ormco"), Kerr Corporation, a Delaware corporation ("Kerr"), Nalge
Company, a Delaware corporation ("Nalge"), Erie Scientific Company, a Delaware
corporation ("Erie"), Barnstead Thermolyne Corporation, a Delaware corporation
("Barnstead"; Ormco, Kerr, Nalge, Erie and Barnstead are collectively referred
to herein as the "Subsidiary Borrowers"), the Lenders, the Administrative Agent
and Chemical Securities Inc. (currently known as Chase Securities Inc.), as
Arranger.
W I T N E S S E T H :
WHEREAS, the Parent (formerly known as Sybron Corporation), the Subsidiary
Borrowers, the banks parties thereto and Chemical Bank, as agent for such
banks, are parties to that certain Credit Agreement, dated as of July 1, 1993
(as amended, supplemented or otherwise modified, the "Prior Credit Agreement")
providing for certain Loans (as defined therein) and other extensions of credit
described therein;
WHEREAS, the Parent and the Subsidiary Borrowers have requested the
Lenders to provide credit facilities pursuant to which Loans will be made to,
and Letters of Credit will be issued for the account of, the Parent and certain
Subsidiary Borrowers;
WHEREAS, the Parent and the Subsidiary Borrowers will use the proceeds of
the Loans in part (i) to refinance all outstanding indebtedness of the Parent
and the Subsidiary Borrowers under the Prior Credit Agreement, (ii) to finance
the acquisition (the "Nunc Acquisition") of all of the Capital Stock of Nunc
Inc., a Delaware corporation, Nunc GmbH, a German company, and Nunc AS, a
Danish company (collectively, "Nunc") and (iii) to finance the working capital
and general corporate needs, including acquisitions, of the Parent and the
Subsidiary Borrowers; and
<PAGE> 2
2
WHEREAS, the Lenders are willing to make the Loans and issue and/or
participate in the Letters of Credit (as hereinafter defined) on the terms and
conditions set forth in the Credit Agreement;
WHEREAS, the Parent is the legal and beneficial owner of the shares of
Pledged Stock (as hereinafter defined);
WHEREAS, the Parent is the legal and beneficial owner of each of the
Pledged Notes (as hereinafter defined); and
WHEREAS, it is a condition precedent to the obligation of the Lenders
to make their respective extensions of credit to the Parent and the Subsidiary
Borrowers under the Credit Agreement that the Parent shall have executed and
delivered this Pledge Agreement to the Administrative Agent for the ratable
benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective extensions of credit to the Parent
and Subsidiary Borrowers under the Credit Agreement, the Parent hereby agrees
with the Administrative Agent, for the ratable benefit of the Lenders, as
follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
(b) The following terms shall have the following meanings:
"Agreement": this Amended and Restated Pledge Agreement, as
the same may be amended, modified or otherwise supplemented from time to
time.
"Code": the Uniform Commercial Code from time to time in effect
in the State of New York.
"Collateral": the Pledged Stock, the Pledged Notes and all
Proceeds.
"Issuers": the collective reference to the companies identified
on Schedule 1 hereto as the issuers of the Pledged Stock.
"Obligations": (a) the unpaid principal amount of, and interest on
(including, without limitation, interest accruing after the maturity of
the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Parent, whether or not a claim for post-filing
or post-petition interest is allowed in such
<PAGE> 3
3
proceeding) the Notes and all other obligations and liabilities of
the Parent to the Administrative Agent or to the Lenders, whether
direct or indirect, absolute or contingent, due or to become due, or
now existing or hereafter incurred, which may arise under, out of,
or in connection with, the Credit Agreement (including, without
limitation, all obligations and liabilities of the Parent under
Section 9 of the Credit Agreement), the Notes, the other Loan
Documents and any other document made, delivered or given in
connection therewith or herewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees and disbursements
of counsel to the Administrative Agent or to the Lenders that are
required to be paid by the Parent pursuant to the terms of the
Credit Agreement) or otherwise and (b) all obligations of the Parent
to any Lender or an Affiliate of any Lender under or in connection
with any Interest Rate Agreement or foreign exchange contract.
"Obligors": the collective reference to the companies
identified on Schedule 2 hereto, as such Schedule may be amended
from time to time.
"Pledged Notes": the promissory note or notes of the Obligors
identified on Schedule 2, together with all substitutes,
replacements or refinancings thereto that may be issued by any
Obligor to the Parent while this Agreement is in effect.
"Pledged Stock": the shares of capital stock listed on
Schedule 1 hereto, together with all stock certificates, options or
rights of any nature whatsoever that may be issued or granted by any
Issuer to the Parent in respect of the Pledged Stock while this
Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the State of
New York on the date hereof and, in any event, shall include,
without limitation, all dividends or other income from the Pledged
Stock and the Pledged Notes, collections thereon or distributions
with respect thereto.
"Securities Act": the Securities Act of 1933, as amended.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section and
paragraph references are to this Agreement unless otherwise specified.
<PAGE> 4
4
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Pledge; Grant of Security Interest. The Parent hereby delivers
to the Administrative Agent, for the ratable benefit of the Lenders, all the
Pledged Stock and the Pledged Notes and hereby grants to the Administrative
Agent, for the ratable benefit of the Lenders, a first security interest in the
Collateral, as collateral security for the prompt and complete payment and
performance when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations.
3. Stock Powers and Allonges. (a) Concurrently with the delivery to
the Administrative Agent of each certificate representing one or more shares of
Pledged Stock to the Administrative Agent, the Parent shall deliver an undated
stock power covering such certificate, duly executed in blank by the Parent
with, if the Administrative Agent so requests, signature guaranteed.
(b) Concurrently with the delivery to the Administrative Agent of each
note representing one of the Pledged Notes, the Parent shall deliver executed
allonges endorsing such notes to "Bearer" with, if the Administrative Agent so
requests, signature guaranteed.
4. Representations and Warranties. The Parent represents and
warrants that:
(a) except as set forth on Schedule 1, the shares of Pledged Stock
constitute all the issued and outstanding shares of all classes of
the capital stock of each Issuer;
(b) the Pledged Notes listed on Schedule 2, as such Schedule may be
amended from time to time in accordance with the terms hereof,
constitute all of the issued and outstanding promissory notes
payable by the Subsidiaries of the Parent to the Parent;
(c) all the shares of the Pledged Stock have been duly and validly
issued and are fully paid and nonassessable; and each of the Pledged
Notes has been duly and validly issued and is the legal, valid and
binding obligation of the maker thereof, enforceable in accordance
with its terms, except as affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity
or at law) and an implied covenant of good faith and fair dealing;
(d) the Parent is the record and beneficial owner of, and has good
and marketable title to, the Pledged Stock and
<PAGE> 5
5
the Pledged Notes, free of any and all Liens or options in favor of,
or claims of, any other Person, except the security interest created
by this Agreement;
(e) upon delivery to the Administrative Agent of the stock
certificates evidencing the Pledged Stock and upon delivery to the
Administrative Agent of the Pledged Notes, the security interest
created by this Agreement will constitute a valid, perfected first
priority security interest in the Collateral, enforceable in
accordance with its terms against all creditors of the Parent and
any Persons purporting to purchase any Collateral from the Parent,
except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing;
(f) on the Closing Date, all of the stock owned by the Parent or
any of its Subsidiaries in any of their respective Subsidiaries will
be pledged pursuant to one of the Pledge Agreements, other than 35%
of the stock of any Controlled Foreign Corporation (or other than
all of the stock of any Controlled Foreign Corporation which is
owned directly by another Controlled Foreign Corporation) or other
than the stock of an inactive corporation or a corporation in the
process of liquidation;
(g) the Parent has obtained from each Issuer and has delivered to
the Administrative Agent an Acknowledgement and Consent,
substantially in the form attached hereto as Annex A, executed by
each such Issuer; and
(h) no consent or authorization of, filing with or other act by or
in respect of any Person is required in connection with the
execution, delivery, performance, validity or enforceability of the
Pledged Notes, and the Parent has fully performed all its
obligations under the Pledged Notes.
5. Covenants. The Parent covenants and agrees with the
Administrative Agent and the Lenders that, from and after the date of this
Agreement until the Obligations are paid in full and the Commitments are
terminated:
(a) If the Parent shall, as a result of its ownership of the
Pledged Stock, become entitled to receive or shall receive any stock
certificate (including, without limitation, any certificate representing a
stock dividend or a distribution in connection with any reclassification,
increase or reduction of capital or any certificate issued in connection
with any reorganization), option or rights, whether in addition to, in
substitution of, as a conversion
<PAGE> 6
6
of, or in exchange for any shares of the Pledged Stock, or otherwise in
respect thereof, the Parent shall accept the same as the agent of the
Administrative Agent and the Lenders, hold the same in trust for the
Administrative Agent and the Lenders and deliver the same forthwith to the
Administrative Agent in the exact form received, duly indorsed by the
Parent to the Administrative Agent, if required, together with an undated
stock power covering such certificate duly executed in blank by the Parent
and with, if the Administrative Agent so requests, signature guaranteed,
to be held by the Administrative Agent, subject to the terms hereof, as
additional collateral security for the Obligations. Any sums paid upon or
in respect of the Pledged Stock or the Pledged Notes upon the liquidation
or dissolution of any Issuer or any Obligor, as the case may be, shall be
paid over to the Administrative Agent to be held by it hereunder as
additional collateral security for the Obligations, and in case any
distribution of capital or payment of principal shall be made on or in
respect of the Pledged Stock or the Pledged Notes or any property shall be
distributed upon or with respect to the Pledged Stock or the Pledged Notes
pursuant to the recapitalization or reclassification of the capital of any
Issuer or any Obligor, as the case may be, or pursuant to the
reorganization thereof, the property so distributed shall be delivered to
the Administrative Agent to be held by it hereunder as additional
collateral security for the Obligations. If any sums of money or property
so paid or distributed in respect of the Pledged Stock or the Pledged
Notes shall be received by the Parent, the Parent shall, until such money
or property is paid or delivered to the Administrative Agent, hold such
money or property in trust for the Lenders, segregated from other funds of
the Parent, as additional collateral security for the Obligations.
Notwithstanding the foregoing, in no event shall more than 65% of the
issued and outstanding shares of stock, or any property distributed in
respect thereof, of any Issuer which is a Controlled Foreign Corporation
constitute collateral security for the Obligations of the Parent.
(b) Without the prior written consent of the Administrative Agent,
the Parent will not vote to enable, or take any other action to permit,
any Issuer to issue any stock or other equity securities of any nature or
to issue any other securities convertible into or granting the right to
purchase or exchange for any stock or other equity securities of any
nature of such Issuer, sell, assign, transfer, exchange, or otherwise
dispose of, or grant any option with respect to, the Collateral, or
create, incur or permit to exist any Lien or option in favor of, or any
claim of any Person with respect to, any of the Collateral, or any
interest therein, except for the security interests created by this
Agreement and Liens permitted by the Credit Agreement. The Parent will
defend the right,
<PAGE> 7
7
title and interest of the Administrative Agent and the Lenders in and to
the Collateral against the claims and demands of all Persons whomsoever.
(c) At any time and from time to time, upon the written request of
the Administrative Agent, and at the sole expense of the Parent, the
Parent will promptly and duly execute and deliver such further instruments
and documents and take such further actions as the Administrative Agent
may reasonably request for the purposes of obtaining or preserving the
full benefits of this Agreement and of the rights and powers herein
granted. If any amount payable under or in connection with any of the
Collateral shall be or become evidenced by any promissory note, other
instrument or chattel paper, such note, instrument or chattel paper shall
be immediately delivered to the Administrative Agent, duly endorsed in a
manner satisfactory to the Administrative Agent, to be held as Collateral
pursuant to this Agreement.
(d) The Parent shall pay, and save the Administrative Agent and the
Lenders harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or
other taxes which may be payable or determined to be payable with respect
to any of the Collateral or in connection with any of the transactions
contemplated by this Agreement.
(e) The Parent will not (i) amend, modify, terminate or waive any
provision of any Pledged Note in any manner materially adverse to the
interests of the Administrative Agent or the Lenders, (ii) fail to
exercise promptly and diligently each and every material right which it
may have under any Pledged Note where such failure could reasonably be
expected to have an adverse affect on the interests of the Administrative
Agent or the Lenders or (iii) fail to deliver to the Administrative Agent
a copy of each material demand, notice or document received by it relating
in any way to any Pledged Note.
(f) Without the prior written consent of the Administrative Agent,
the Parent will not grant any extension (other than, so long as no Default
or Event of Default shall exist, extensions granted in accordance with
prudent business judgment) of the time of payment of any Pledged Note,
compromise, compound or settle the same for less than the full amount
thereof, release, wholly or partially, any Person liable for the payment
thereof, or allow any credit or discount whatsoever thereon.
(g) The Parent shall deliver to the Administrative Agent, in the
exact form received, to be held by the Administrative Agent, subject to
the terms hereof, as additional collateral security for the Obligations
any additional promissory notes made by any Obligor for the
<PAGE> 8
8
benefit of the Parent or other securities, options or rights
received by it in substitution or exchange for, or as a conversion
of, or in addition to, any of the Pledged Notes, or otherwise in
respect thereof, together with an undated endorsement or power, as
the case may be, duly executed to the order of "Bearer" or in blank,
as the case may be, by the Parent and with, if the Administrative
Agent reasonably requests, signature guaranteed.
6. Cash Dividends; Voting Rights; Interest and Principal
Payments. (a) Unless an Event of Default shall have occurred and be continuing
and the Administrative Agent shall have given notice to the Parent of the
Administrative Agent's intent to exercise its corresponding rights pursuant to
Section below, the Parent shall be permitted to receive all cash dividends paid
in the normal course of business and consistent with past practice, to the
extent permitted in the Credit Agreement, in respect of the Pledged Stock and to
exercise all voting and corporate rights with respect to the Pledged Stock;
provided, however, that no vote shall be cast or corporate right exercised or
other action taken which, in the Administrative Agent's reasonable judgment,
would impair the Collateral or which would be inconsistent with or result in any
violation of any provision of the Credit Agreement, the Notes, this Agreement or
any other Loan Document.
(b) Unless an Event of Default shall have occurred and be
continuing and the Administrative Agent shall have given notice to the Parent of
the Administrative Agent's intent to exercise its corresponding rights pursuant
to Section 7 hereof, the Parent shall be permitted to receive and retain all
scheduled interest and principal payments on account of the Pledged Notes.
7. Rights of the Lenders and the Administrative Agent. (a) If
an Event of Default shall occur and be continuing and the Administrative Agent
shall give notice of its intent to exercise such rights to the Parent, the
Administrative Agent shall have the right to receive any and all cash dividends
paid in respect of the Pledged Stock and any and all interest, principal or
other payments paid in respect of the Pledged Notes and make application thereof
to the Obligations in such order as the Administrative Agent may determine, all
shares of the Pledged Stock shall be registered in the name of the
Administrative Agent or its nominee, and the Administrative Agent or its nominee
may thereafter exercise all voting, corporate and other rights pertaining to
such shares of the Pledged Stock at any meeting of shareholders of any Issuer or
otherwise and any and all rights of conversion, exchange, subscription and any
other rights, privileges or options pertaining to such shares of the Pledged
Stock as if it were the absolute owner thereof (including, without limitation,
the right to exchange at its discretion any and all of the Pledged Stock upon
the merger, consolidation, reorganization, recapitalization or other fundamental
change in the corporate structure of any Issuer, or
<PAGE> 9
9
upon the exercise by the Parent or the Administrative Agent of any right,
privilege or option pertaining to such shares of the Pledged Stock, and in
connection therewith, the right to deposit and deliver any and all of the
Pledged Stock with any committee, depositary, transfer agent, registrar or
other designated agency upon such terms and conditions as the Administrative
Agent may determine) and (3) the Administrative Agent or its nominee may
thereafter exercise all rights pertaining to the Pledged Notes (including
without limitation, any and all rights of conversion, exchange, subscription
and any other rights, privileges or options pertaining thereto) as if it were
the absolute owner thereof, all without liability except to account for
property actually received by it, but the Administrative Agent shall have no
duty to the Parent to exercise any such right, privilege or option and shall
not be responsible for any failure to do so or delay in so doing.
(b) Anything herein to the contrary notwithstanding, the Parent
shall remain liable under the Pledged Notes to observe and perform all the
conditions and obligations to be observed and performed by it thereunder all in
accordance with the terms and provisions of the Pledged Notes. Neither the
Administrative Agent nor the Lenders shall have any obligation or liability
under any Pledged Note by reason of or arising out of this Agreement or the
receipt by the Administrative Agent or the Lenders of any payment relating to
such Pledged Note pursuant hereto (other than to account for monies actually
received by it), nor shall the Administrative Agent or any of the Lenders be
obligated in any manner to perform any of the obligations of the Parent under or
pursuant to any Pledged Note, to make any payment, to make any inquiry as to the
nature or the sufficiency of any payment received by it or as to the sufficiency
of any performance by any party under any Pledged Note, to present or file any
claim, to take any action to enforce any performance or to collect the payment
of any amounts which may have been assigned to it or to which it may be entitled
at any time or times.
(c) The rights of the Administrative Agent and the Lenders
hereunder shall not be conditioned or contingent upon the pursuit by the
Administrative Agent or any Lender of any right or remedy against any Issuer or
any Obligor or against any other Person which may be or become liable in respect
of all or any part of the Obligations or against any collateral security
therefor, guarantee thereof or right of offset with respect thereto. Neither
the Administrative Agent nor any Lender shall be liable for any failure to
demand, collect or realize upon all or any part of the Collateral or for any
delay in doing so, nor shall the Administrative Agent be under any obligation to
sell or otherwise dispose of any Collateral upon the request of the Parent or
any other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof.
<PAGE> 10
10
8. Remedies. If an Event of Default shall occur and be continuing,
the Administrative Agent, on behalf of the Lenders, may exercise, in addition to
all other rights and remedies granted in this Agreement and in any other
instrument or agreement securing, evidencing or relating to the Obligations, all
rights and remedies of a secured party under the Code. Without limiting the
generality of the foregoing, the Administrative Agent, without demand of
performance or other demand, presentment, protest, advertisement or notice of
any kind (except any notice required by law referred to below) to or upon the
Parent, any Issuer, any Obligor or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, assign, give option
or options to purchase or otherwise dispose of and deliver the Collateral or any
part thereof (or contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, in the over-the-counter market, at any
exchange, broker's board or office of the Administrative Agent or any Lender or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Administrative Agent or any Lender shall
have the right upon any such public sale or sales, and, to the extent permitted
by law, upon any such private sale or sales, to purchase the whole or any part
of the Collateral so sold, free of any right or equity of redemption in the
Parent, which right or equity is hereby waived or released. The Administrative
Agent shall apply any Proceeds from time to time held by it and the net proceeds
of any such collection, recovery, receipt, appropriation, realization or sale,
after deducting all reasonable costs and expenses of every kind incurred in
respect thereof or incidental to the care or safekeeping of any of the
Collateral or in any way relating to the Collateral or the rights of the
Administrative Agent and the Lenders hereunder, including, without limitation,
reasonable attorneys' fees and disbursements of counsel to the Administrative
Agent, to the payment in whole or in part of the Obligations, in such order as
the Administrative Agent may elect, and only after such application and after
the payment by the Administrative Agent of any other amount required by any
provision of law, including, without limitation, Section 9-504(1)(c) of the
Code, need the Administrative Agent account for the surplus, if any, to the
Parent. To the extent permitted by applicable law, the Parent waives all
claims, damages and demands it may acquire against the Administrative Agent or
any Lender arising out of the exercise by them of any rights hereunder, except
such claims and damages arising out of the gross negligence or willful
misconduct of the Administrative Agent or any such Lender. If any notice of a
proposed sale or other disposition of Collateral shall be required by law, such
notice shall be deemed reasonable and proper if given at least 10 days before
such sale or other disposition. The Parent shall remain liable for any
deficiency if the proceeds of any sale or
<PAGE> 11
11
other disposition of Collateral are insufficient to pay the Obligations and the
fees and disbursements of any attorneys employed by the Administrative Agent or
any Lender to collect such deficiency.
9. Registration Rights; Private Sales. (a) If the Administrative
Agent shall determine to exercise its right to sell any or all of the Pledged
Stock pursuant to paragraph 8 hereof, and if in the opinion of the
Administrative Agent it is necessary or advisable to have the Pledged Stock, or
that portion thereof to be sold, registered under the provisions of the
Securities Act, the Parent will cause the Issuer thereof to execute and
deliver, and cause the directors and officers of such Issuer to execute and
deliver, all such instruments and documents, and do or cause to be done all such
other acts as may be, in the opinion of the Administrative Agent, necessary or
advisable to register the Pledged Stock, or that portion thereof to be sold,
under the provisions of the Securities Act, to use its best efforts to cause
the registration statement relating thereto to become effective and to remain
effective for a period of one year from the date of the first public offering of
the Pledged Stock, or that portion thereof to be sold and to make all
amendments thereto and/or to the related prospectus which, in the opinion of the
Administrative Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. The Parent agrees to
cause such Issuer to comply with the provisions of the securities or "Blue Sky"
laws of any and all jurisdictions which the Administrative Agent shall designate
and to make available to its security holders, as soon as practicable, an
earnings statement (which need not be audited) which will satisfy the provisions
of Section 11(a) of the Securities Act.
(b) The Parent recognizes that the Administrative Agent may be
unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. The
Parent acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The
Administrative Agent shall be under no obligation to delay a sale of any of the
Pledged Stock for the period of time necessary to permit the Issuer thereof to
register such securities for public sale under the Securities Act, or under
applicable state securities laws, even if such Issuer would agree to do so.
<PAGE> 12
12
(c) The Parent further agrees to use its best efforts to do or cause
to be done all such other acts as may be necessary to make such sale or sales of
all or any portion of the Pledged Stock pursuant to this Section valid and
binding and in compliance with any and all other applicable Requirements of Law.
The Parent further agrees that a breach of any of the covenants contained in
this Section will cause irreparable injury to the Administrative Agent and the
Lenders, that the Administrative Agent and the Lenders have no adequate remedy
at law in respect of such breach and, as a consequence, that each and every
covenant contained in this Section 9 shall be specifically enforceable against
the Parent, and the Parent hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants except for a
defense that no Event of Default has occurred under the Credit Agreement.
10. Irrevocable Authorization and Instruction to Issuer and Obligor.
The Parent hereby authorizes and instructs each Issuer and Obligor to comply
with any instruction received by it from the Administrative Agent in writing
that (a) states that an Event of Default has occurred and (b) is otherwise in
accordance with the terms of this Agreement, without any other or further
instructions from the Parent, and the Parent agrees that each Issuer and each
Obligor shall be fully protected in so complying.
11. Administrative Agent's Appointment as Attorney-in-Fact. (a)
The Parent hereby irrevocably constitutes and appoints the Administrative
Agent and any officer or agent of the Administrative Agent, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Parent and in the name of the
Parent or in the Administrative Agent's own name, from time to time in the
Administrative Agent's discretion, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Agreement, including, without limitation, any
financing statements, endorsements, assignments or other instruments of
transfer.
(b) The Parent hereby ratifies all that said attorneys shall
lawfully do or cause to be done pursuant to the power of attorney granted in
paragraph . All powers, authorizations and agencies contained in this Agreement
are coupled with an interest and are irrevocable until the Obligations are paid
in full and the Commitments are terminated.
12. Duty of Administrative Agent. The Administrative Agent's sole
duty with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Code or otherwise,
shall be to deal with it in the same manner as the Administrative Agent deals
with similar securities and property for its own account. Neither the
<PAGE> 13
13
Administrative Agent, any Lender nor any of their respective directors,
officers, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of the Parent or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof.
13. Execution of Financing Statements. Pursuant to Section 9-402 of
the Code, the Parent authorizes the Administrative Agent to file financing
statements with respect to the Collateral without the signature of the Parent in
such form and in such filing offices as the Administrative Agent reasonably
determines appropriate to perfect the security interests of the Administrative
Agent under this Agreement.
14. Authority of Administrative Agent. The Parent acknowledges that
the rights and responsibilities of the Administrative Agent under this Agreement
with respect to any action taken by the Administrative Agent or the exercise or
non-exercise by the Administrative Agent of any option, voting right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Agreement shall, as between the Administrative Agent and the
Lenders, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Administrative Agent and the Parent, the Administrative Agent shall be
conclusively presumed to be acting as agent for the Lenders with full and valid
authority so to act or refrain from acting, and neither the Parent, any Issuer
nor any Obligor shall be under any obligation, or entitlement, to make any
inquiry respecting such authority.
15. Notices. All notices, requests and demands to or upon the
Administrative Agent, the Parent, any Issuer or any Obligor to be effective
shall be in writing (or by telex, fax or similar electronic transfer confirmed
in writing) and shall be deemed to have been duly given or made when delivered
by hand or if given by mail, three days after being deposited in the mail,
postage prepaid, or if by telex, fax or similar electronic transfer, when sent
and receipt has been confirmed, addressed to the Administrative Agent or the
Parent at its address or transmission number for notices provided in the Credit
Agreement and to each Issuer and each Obligor at its address set forth in its
Acknowledgment and Consent. The Parent, any Issuer and any Obligor may change
their addresses and transmission numbers for notices by written notice to the
Administrative Agent.
16. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
<PAGE> 14
14
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
17. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None of the
terms or provisions of this Agreement may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by the Parent and
the Administrative Agent, provided that any provision of this Agreement may be
waived by the Administrative Agent and the Lenders in a letter or agreement
executed by the Administrative Agent or by telex or facsimile transmission from
the Administrative Agent.
(b) Neither the Administrative Agent nor any Lender shall by any act
(except by a written instrument pursuant to paragraph hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default or in any
breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Administrative Agent or any Lender,
any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Administrative Agent or any Lender
of any right or remedy hereunder on any one occasion shall not be construed as
a bar to any right or remedy which the Administrative Agent or such Lender
would otherwise have on any future occasion.
(c) 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.
18. Section Headings. The Section headings used in this Agreement are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
19. Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of the Parent and shall inure to the benefit of the
Administrative Agent and the Lenders and their successors and assigns.
20. Governing Law. This Agreement shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
<PAGE> 15
15
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be duly
executed and delivered as of the date first above written.
SYBRON INTERNATIONAL CORPORATION
By:
------------------------------
Title:
--------------------------
<PAGE> 16
SCHEDULE 1
TO PARENT PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
<TABLE>
<CAPTION>
Class Stock No. of Total No.
of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ------ ----- ----------- ------- -----------
<S> <C> <C> <C> <C>
SAC/Thermo-Barn, Inc. Common 001 2,000 4,000
002 2,000
SAC/Erie, Inc. Common 001 1,000 2,000
002 1,000
Malge Nunc Common 003 2,000 2,000
International
Corporation
Sybron Dental Common 003 2,000 4,000
Specialties, Inc. 004 2,000
Sybron Transition Common 001 100 100
Corp.
Mexoserv Company Common 003 100 100
</TABLE>
<PAGE> 17
SCHEDULE 2
TO PARENT PLEDGE AGREEMENT
PLEDGED NOTES
<TABLE>
<CAPTION>
Original
Date of Principal
Obligor Note Amount
- ------- ------- ---------
<S> <C> <C>
$________
</TABLE>
<PAGE> 18
ANNEX A
ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned is an Issuer referred to in the foregoing Amended
and Restated Parent Pledge Agreement and each of the undersigned hereby
acknowledges receipt of a copy of the Amended and Restated Parent Pledge
Agreement, dated July 9, 1996, made by Sybron International Corporation for the
benefit of Chemical Bank, as Administrative Agent (as amended, supplemented or
otherwise modified from time to time, the "Pledge Agreement"). The undersigned
agrees for the benefit of the Administrative Agent and the Lenders as follows:
The undersigned will be bound by the terms of the Pledge Agreement
and will comply with such terms insofar as such terms are applicable to
the undersigned.
The undersigned will notify the Administrative Agent promptly in
writing of the occurrence of any of the events described in paragraph of
the Pledge Agreement.
The terms of paragraph of the Pledge Agreement shall apply to it,
mutatis mutandis, with respect to all actions that may be required of it
under or pursuant to or arising out of Section of the Pledge Agreement.
SAC/THERMO-BARN, INC.
SAC/ERIE, INC.
NALGE NUNC INTERNATIONAL
CORPORATION
SYBRON DENTAL SPECIALTIES, INC.
SYBRON TRANSITION CORP.
MEXOSERV COMPANY
-------------------------------------
By:
Address for Notices:
c/o Sybron International Corporation
411 East Wisconsin Avenue, 24th Floor
Milwaukee, Wisconsin 53202
Fax: (414) 274-6561
<PAGE> 1
EXHIBIT 4.5
AMENDED AND RESTATED SUBSIDIARIES GUARANTEE
AMENDED AND RESTATED GUARANTEE, dated as of July 9, 1996, made by each of
the corporations that are signatories hereto (the "Guarantors"), in favor of
CHEMICAL BANK, as administrative agent (in such capacity, the "Administrative
Agent"), for the banks and other financial institutions (the "Lenders") from
time to time parties to the Credit Agreement, dated as of July 31, 1995 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Sybron Corporation, a Wisconsin corporation (the "Parent"),
Ormco International Corporation, a Delaware corporation ("Ormco"), Kerr
Corporation, a Delaware corporation ("Kerr"), Nalge Company, a Delaware
corporation ("Nalge"), Erie Scientific Company, a Delaware corporation
("Erie"), Barnstead Thermolyne Corporation, a Delaware corporation
("Barnstead"; Ormco, Kerr, Nalge, Erie and Barnstead are collectively referred
to herein as the "Subsidiary Borrowers"; and the Parent and the Subsidiary
Borrowers are collectively referred to herein as the "Borrowers"), the Lenders,
the Administrative Agent and Chemical Securities Inc. (currently known as Chase
Securities Inc.), as Arranger.
W I T N E S S E T H :
WHEREAS, the Parent (formerly known as Sybron Corporation), the Subsidiary
Borrowers, the banks parties thereto and Chemical Bank, as agent for such
banks, are parties to that certain Credit Agreement, dated as of July 1, 1993
(as amended, supplemented or otherwise modified, the "Prior Credit Agreement")
providing for certain Loans (as defined therein) and other extensions of credit
described therein;
WHEREAS, the Parent and the Subsidiary Borrowers have requested the
Lenders to provide credit facilities pursuant to which Loans will be made to,
and Letters of Credit will be issued for the account of, the Parent and certain
Subsidiary Borrowers;
WHEREAS, the Parent and the Subsidiary Borrowers will use the proceeds of
the Loans in part (i) to refinance all outstanding indebtedness of the Parent
and the Subsidiary Borrowers under the Prior Credit Agreement, (ii) to finance
the acquisition (the "Nunc Acquisition") of all of the Capital Stock of Nunc
Inc., a Delaware corporation, Nunc GmbH, a German company, and Nunc AS, a
Danish company (collectively, "Nunc") and (iii) to finance the working capital
and general corporate needs, including acquisitions, of the Parent and the
Subsidiary Borrowers; and
<PAGE> 2
2
WHEREAS, the Lenders are willing to make the Loans and issue and/or
participate in the Letters of Credit (as hereinafter defined) on the terms and
conditions set forth in the Credit Agreement;
WHEREAS, the Parent owns directly or indirectly all of the issued and
outstanding stock of each Guarantor;
WHEREAS, the Parent, the Subsidiary Borrowers 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 from the making of the Loans and the Letters of Credit; and
WHEREAS, it is a condition precedent to the obligation of the Lenders to
make their respective extensions of credit to the Parent and the Subsidiary
Borrowers under the Credit Agreement that the Guarantors shall have executed
and delivered this Guarantee to the Administrative Agent for the ratable
benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective extensions of credit to the Parent
and the Subsidiary Borrowers under the Credit Agreement, the Guarantors hereby
agree with the Administrative Agent, for the ratable benefit of the Lenders, as
follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms defined
in the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
(b) As used herein "Obligations" means (i) the unpaid principal of and
interest on (including, without limitation, interest accruing after the
maturity of the Loans and interest accruing on or after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization
or like proceeding, relating to the Parent or any of the Subsidiary Borrowers,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Notes and all other obligations and liabilities of the
Loan Parties to the Administrative Agent or to the Lenders, whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, the
Credit Agreement, the Notes, any other Loan Document and any other document
made, delivered or given in connection herewith or therewith, whether on
account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all fees and disbursements of
counsel to the Administrative Agent or to the Lenders) or otherwise and (ii)
all obligations of any of the Borrowers to any Lender or any Affiliate of any
Lender under
<PAGE> 3
3
or in connection with any Interest Rate Agreement or foreign exchange contract.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Guarantee shall refer to this Guarantee as a
whole and not to any particular provision of this Guarantee, and Section and
paragraph references are to this Guarantee unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Guarantee. Subject to the provisions of paragraph , each of
the Guarantors hereby, jointly and severally, unconditionally and irrevocably,
guarantees to the Administrative Agent, for the ratable benefit of the Lenders
and their respective successors, indorsees, transferees and assigns, the prompt
and complete payment and performance by the Borrowers when due (whether at the
stated maturity, by acceleration or otherwise) of the Obligations (other than
any obligations owing directly by such Guarantor as a Subsidiary Borrower).
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Loan Documents 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 the Administrative Agent or any Lender in enforcing, or
obtaining advice of counsel in respect of, any rights with respect to, or
collecting, any or all of the Obligations and/or enforcing any rights with
respect to, or collecting against, such Guarantor under this Guarantee. This
Guarantee shall remain in full force and effect until the Obligations are paid
in full and the Commitments are terminated, notwithstanding that from time to
time prior thereto the Borrowers may be free from any Obligations.
(d) Each Guarantor agrees that 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 the
Administrative Agent or any Lender hereunder.
(e) No payment or payments made by any of the Borrowers, any of the
Guarantors, any other guarantor or any other Person or received or collected by
the Administrative Agent or any Lender from any of the Borrowers, any of the
Guarantors, any other guarantor or any other Person by virtue of any action
<PAGE> 4
4
or proceeding or any set-off or appropriation or application at any time or from
time to time in reduction of or in payment of the Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of any Guarantor
hereunder which shall, notwithstanding any such payment or payments other than
payments made by such Guarantor in respect of the Obligations or payments
received or collected from such Guarantor in respect of the Obligations, remain
liable for the Obligations up to the maximum liability of such Guarantor
hereunder until the Obligations are paid in full and the Commitments are
terminated.
(f) Each Guarantor agrees that whenever, at any time, or from time
to time, it shall make any payment to the Administrative Agent or any Lender on
account of its liability hereunder, it will notify the Administrative Agent 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. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section hereof. The provisions
of this Section shall in no respect limit the obligations and liabilities of any
Guarantor to the Administrative Agent and the Lenders, and each Guarantor shall
remain liable to the Administrative Agent and the Lenders for the full amount
guaranteed by such Guarantor hereunder.
4. Right of Set-off. Upon the occurrence of any Event of
Default, each Guarantor hereby irrevocably authorizes each Lender at any time
and from time to time without notice to such Guarantor or any other Guarantor,
any such notice being expressly waived by each Guarantor, to set-off and
appropriate and apply any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender to or
for the credit or the account of such Guarantor, or any part thereof in such
amounts as such Lender may elect, against and on account of the obligations and
liabilities of such Guarantor to such Lender hereunder and claims of every
nature and description of such Lender against such Guarantor, in any currency,
whether arising hereunder, under the Credit Agreement, any Note, any Loan
Document or otherwise, as such Lender may elect, whether or not the
Administrative Agent or any Lender has made any demand for payment and although
such obligations, liabilities and claims may be contingent or unmatured. The
Administrative Agent and each Lender shall notify such Guarantor promptly of any
such set-off and the application made by the Administrative Agent or such
Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights
<PAGE> 5
5
of the Administrative Agent and each Lender under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) which the Administrative Agent or such Lender may have.
5. No Subrogation. Notwithstanding any payment or payments made
by any of the Guarantors hereunder or any set-off or application of funds of any
of the Guarantors by any Lender, no Guarantor shall be entitled to be subrogated
to any of the rights of the Administrative Agent or any Lender against any
Borrower or any other Guarantor or any collateral security or guarantee or right
of offset held by any Lender for the payment of the Obligations, nor shall any
Guarantor seek or be entitled to seek any contribution or reimbursement from any
Borrower or any other Guarantor in respect of payments made by such Guarantor
hereunder, until all amounts owing to the Administrative Agent and the Lenders
by the Borrowers on account of the Obligations are paid in full and the
Commitments are terminated. If any amount shall be paid to any Guarantor on
account of such subrogation rights at any time when all of the Obligations shall
not have been paid in full, such amount shall be held by such Guarantor in trust
for the Administrative Agent and the Lenders, segregated from other funds of
such Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned
over to the Administrative Agent in the exact form received by such Guarantor
(duly indorsed by such Guarantor to the Administrative Agent, if required), to
be applied against the Obligations, whether matured or unmatured, in such order
as the Administrative Agent may determine.
6. Amendments, etc. with respect to the Obligations; Waiver of
Rights. 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, any demand for payment of any of the
Obligations made by the Administrative Agent or any Lender may be rescinded by
such party and any of the Obligations continued, and the Obligations, or the
liability of any other party upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Administrative
Agent or any Lender, and the Credit Agreement, the Notes and the other Loan
Documents and any other documents executed and delivered in connection therewith
may be amended, modified, supplemented or terminated, in whole or in part, as
the Administrative Agent (or the Majority Lenders, as the case may be) may deem
advisable from time to time, and any collateral security, guarantee or right of
offset at any time held by the Administrative Agent or any Lender for the
payment of the Obligations may be sold, exchanged, waived, surrendered or
released. Neither the Administrative Agent nor any Lender shall have any
obligation to protect, secure, perfect or insure any Lien at any time held by it
as security for the Obligations or
<PAGE> 6
6
for this Guarantee or any property subject thereto. When making any
demand hereunder against any of the Guarantors, the Administrative Agent or any
Lender may, but shall be under no obligation to, make a similar demand on any
Borrower or any other Guarantor or guarantor, and any failure by the
Administrative Agent or any Lender to make any such demand or to collect any
payments from any such Borrower or any such other Guarantor or guarantor or any
release of any such Borrower or such other Guarantor or guarantor shall not
relieve any of the Guarantors in respect of which a demand or collection 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 the Administrative Agent or any
Lender against any of the Guarantors. For the purposes hereof "demand" shall
include the commencement and continuance of any legal proceedings.
7. Guarantee Absolute and Unconditional. Each Guarantor waives any and
all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent or
any Lender upon this Guarantee or acceptance of this Guarantee, the
Obligations, and any of them, shall conclusively be deemed to have been
created, contracted or incurred, or renewed, extended, amended or waived, in
reliance upon this Guarantee; and all dealings between any of the Borrowers and
any of the Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, likewise shall be conclusively presumed to have
been had or consummated in reliance upon this Guarantee. Each Guarantor waives
diligence, presentment, protest, demand for payment and notice of default or
nonpayment to or upon any of the Borrowers or any of the Guarantors with
respect to the Obligations. Each Guarantor understands and agrees that this
Guarantee shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity, regularity or
enforceability of the Credit Agreement, any Note or any other Loan Document,
any of the Obligations or any other collateral security therefor or guarantee
or right of offset with respect thereto at any time or from time to time held
by the Administrative Agent or any Lender, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) which may at any
time be available to or be asserted by any Borrower against the Administrative
Agent or any Lender, or (c) any other circumstance whatsoever (with or without
notice to or knowledge of any Borrower or such Guarantor) which constitutes, or
might be construed to constitute, an equitable or legal discharge of any of the
Borrowers for the Obligations, or of such Guarantor under this Guarantee, in
bankruptcy or in any other instance. When pursuing its rights and remedies
hereunder against any Guarantor, the Administrative Agent and any Lender may,
but shall be under no obligation to, pursue such rights and remedies as it may
have against the Borrower or any other Person or against any collateral
security or guarantee for the Obligations or any right of offset with respect
thereto, and any
<PAGE> 7
7
failure by the Administrative Agent or any Lender to pursue
such other rights or remedies or to collect any payments from any Borrower or
any such other Person or to realize upon any such collateral security or
guarantee or to exercise any such right of offset, or any release of any of the
Borrowers or any such other Person or any such collateral security, guarantee
or right of offset, 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 the Administrative Agent
and the Lenders against such Guarantor. 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 the Administrative Agent and the Lenders, and their
respective successors, indorsees, transferees and assigns, until all the
Obligations and the obligations of each Guarantor under this Guarantee shall
have been satisfied by payment in full and the Commitments shall be terminated,
notwithstanding that from time to time during the term of the Credit Agreement
the Borrowers may be free from any Obligations.
8. Reinstatement. This Guarantee shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned
by the Administrative Agent or any Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of any Borrower 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, the Borrower or any Guarantor or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
9. Payments. Each Guarantor hereby guarantees that payments hereunder
will be paid to the Administrative Agent without set-off or counterclaim in
U.S. Dollars at the office of the Administrative Agent located at 270 Park
Avenue, New York, New York 10017.
10 . Representations and Warranties. Each Guarantor hereby represents and
warrants that:
(a) it is a corporation duly organized, validly existing and in
good standing (or similar concept under applicable law) under the
laws of the jurisdiction of its incorporation and has the corporate
power and authority and the legal right to own and operate its
property, to lease the property it operates and to conduct the
business in which it is currently engaged;
(b) it has the corporate power and authority and the legal right to
execute and deliver, and to perform its obligations under, this
Guarantee, and has taken all
<PAGE> 8
8
necessary corporate action to authorize its execution, delivery and
performance of this Guarantee;
(c) this Guarantee constitutes a legal, valid and binding
obligation of such Guarantor enforceable in accordance with its terms,
except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
the enforcement of creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing;
(d) the execution, delivery and performance of this Guarantee will
not violate any provision of any Requirement of Law or Contractual
Obligation of such Guarantor and will not result in or require the
creation or imposition of any Lien on any of the properties or revenues of
such Guarantor pursuant to any Requirement of Law or Contractual
Obligation of the Guarantor;
(e) no consent or authorization of, filing with, or other act by or
in respect of, any arbitrator or Governmental Authority and no consent of
any other Person (including, without limitation, any stockholder or
creditor of such Guarantor) is required in connection with the execution,
delivery, performance, validity or enforceability of this Guarantee;
(f) no litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of
such Guarantor, threatened by or against such Guarantor or against any of
its properties or revenues with respect to this Guarantee or any of the
transactions contemplated hereby or which could reasonably be expected to
have a Material Adverse Effect; and
(g) it has good record and marketable title in fee simple to, or a
valid leasehold interest in, all its real property, and good title to, or
a valid leasehold interest in, all its other property, and none of such
property is subject to any Lien of any nature whatsoever except as
permitted by subsection 7.3 of the Credit Agreement.
Each Guarantor agrees that the foregoing representations and
warranties shall be deemed to have been made by such Guarantor on the date of
each borrowing by any Borrower under the Credit Agreement on and as of the
relevant Borrowing Date as though made hereunder on and as of such date.
11. Authority of Administrative Agent. Each Guarantor acknowledges
that the rights and responsibilities of the Administrative Agent under this
Guarantee with respect to any
<PAGE> 9
9
action taken by the Administrative Agent or the exercise or non-exercise by the
Administrative Agent of any option, right, request, judgment or other right or
remedy provided for herein or resulting or arising out of this Guarantee shall,
as between the Administrative Agent and the Lenders, be governed by the Credit
Agreement and by such other agreements with respect thereto as may exist from
time to time among them, but, as between the Administrative Agent and such
Guarantor, the Administrative Agent shall be conclusively presumed to be acting
as agent for the Lenders with full and valid authority so to act or refrain
from acting, and no Guarantor shall be under any obligation, or entitlement, to
make any inquiry respecting such authority.
12. Notices. All notices, requests and demands to or upon the
Administrative Agent, any Lender or any Guarantor to be effective shall be in
writing (or by telex, fax or similar electronic transfer confirmed in writing)
and shall be deemed to have been duly given or made when delivered by hand or
if given by mail, three days after deposited in the mails, postage prepaid, or
if by telex, fax or similar electronic transfer, when sent and receipt has been
confirmed, addressed as follows:
(a) if to the Administrative Agent or any Lender, at its address or
transmission number for notices provided in or referred to in subsection
11.2 of the Credit Agreement; and
(b) if to any Guarantor, at its address or transmission number for
notices set forth under its name below.
The Administrative Agent, each Lender and each Guarantor may change
its address and transmission numbers for notices by notice in the manner
provided in this Section.
13. Counterparts. This Guarantee may be executed by one or more of
the Guarantors on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the counterparts of this Guarantee signed by all the
Guarantors shall be lodged with the Administrative Agent.
14. Severability. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
15. Integration. This Guarantee represents the agreement of each
Guarantor with respect to the subject matter hereof and there are no promises
or representations by the
<PAGE> 10
10
Administrative Agent or any Lender relative to the subject matter hereof not
reflected herein.
16. 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 the Administrative Agent, provided that any provision of
this Guarantee may be waived by the Administrative Agent and the Lenders in a
letter or agreement executed by the Administrative Agent or by telex or
facsimile transmission from the Administrative Agent.
(b) Neither the Administrative Agent nor any Lender shall by any act
(except by a written instrument pursuant to paragraph hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default or in any
breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Administrative Agent or any Lender,
any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Administrative Agent or any Lender
of any right or remedy hereunder on any one occasion shall not be construed as
a bar to any right or remedy which the Administrative Agent or such Lender
would otherwise have on any future occasion.
(c) 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.
17. 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.
18. Successors and Assigns. This Guarantee shall be binding upon the
successors and assigns of each Guarantor and shall inure to the benefit of the
Administrative Agent and the Lenders and their successors and assigns.
19. Governing Law. This Guarantee shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
20. Submission To Jurisdiction. Each of the Guarantors hereby
irrevocable and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Guarantee and the other Loan Documents
to which it is a party, or for
<PAGE> 11
11
recognition and enforcement of any judgement in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the United States of
America for the Southern District of New York, and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court
or that such action or proceeding was brought in an inconvenient
court and agrees not to pleas or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered
or certified mail (or any substantially similar form of mail),
postage prepaid, to such Guarantor at its address set forth under
its signature below or at such other address of which the
Administrative Agent shall have been notified pursuant to the terms
of Section 12 hereof;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or
proceeding referred to in this subsection any special, exemplary,
punitive or consequential damages.
21. Acknowledgements. Each Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Guarantee and the other Loan
Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to such Guarantor arising out of
or in connection with this Guarantee or any of the other Loan
Documents, and the relationship between the Administrative Agent and
the Lenders, on one hand, and the Guarantors on the other hand, in
connection herewith or therewith is solely that of creditor and
debtor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Guarantors and
the Lenders.
22. WAIVERS OF JURY TRIAL. THE GUARANTORS AND THE ADMINISTRATIVE
AGENT AND THE LENDERS BY THEIR ACCEPTANCE HEREOF HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
<PAGE> 12
12
LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTEE OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
<PAGE> 13
13
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee to
be duly executed and delivered by its duly authorized officer as of the day and
year first above written.
SAC/THERMO-BARN, INC.
BARNSTEAD THERMOLYNE CORPORATION
BIOMOLECULAR, INC.
SAC/ERIE, INC.
ERIE SCIENTIFIC COMPANY
ERIE SCIENTIFIC COMPANY OF
PUERTO RICO
EVER READY THERMOMETER CO., INC.
OWL SCIENTIFIC, INC.
RICHARD-ALLAN SCIENTIFIC COMPANY
NEW ENGLAND REAGENT LABORATORY,
INC.
CASCO STANDARDS, INC.
THE NAUGATUCK GLASS COMPANY
METAVAC, INC.
BEDFORD MIRROR, INC.
NALGE NUNC INTERNATIONAL
CORPORATION
NALGE COMPANY
NUNC INCORPORATED
NALGE (EUROPE) INCORPORATED
I-CHEM COMPANY
SANI-TECH, INC.
ACUTECH PLASTICS, INC.
SYBRON DENTAL SPECIALTIES INC.
SAC/ORMCO, INC.
ORMCO CORPORATION
ALLESEE ORTHODONTIC APPLIANCES,
INC.
ETM CORPORATION
EXCELLENCE IN ENDODONTICS, INC.
ANALYTIC TECHNOLOGY CORPORATION
SAC/KERR, INC.
KERR CORPORATION
METREX RESEARCH CORPORATION
DEMETRON RESEARCH CORP.
BELLE DE ST. CLAIRE, INC.
SAC/COMMONWEALTH, INC.
SYBRON COMMONWEALTH HOLDINGS, INC.
SYBRON TRANSITION CORP.
MEXOSERV COMPANY
--------------------------------------
By:
Title:
<PAGE> 14
14
Address for Notices:
c/o Sybron International Corporation
411 East Wisconsin Avenue, 24th Floor
Milwaukee, Wisconsin 53202
Fax: (414) 274-6561
<PAGE> 1
EXHIBIT 4.6
AMENDED AND RESTATED SUBSIDIARIES PLEDGE AGREEMENT
AMENDED AND RESTATED PLEDGE AGREEMENT, dated as of July 9, 1996, made
by each of the undersigned corporations (each, a "Pledgor", and collectively,
the "Pledgors") in favor of Chemical Bank, as Administrative Agent (in such
capacity, the "Administrative Agent"), for the banks and other financial
institutions (the "Lenders") from time to time parties to the Credit Agreement,
dated as of July 31, 1995 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among Sybron International Corporation, a
Wisconsin corporation ("the Parent"), Ormco Corporation, a Delaware corporation
("Ormco"), Kerr Corporation, a Delaware corporation ("Kerr"), Nalge Company, a
Delaware corporation ("Nalge"), Erie Scientific Company, a Delaware corporation
("Erie"), Barnstead Thermolyne Corporation, a Delaware corporation ("Barnstead";
Ormco, Kerr, Nalge, Erie and Barnstead are collectively referred to herein as
the "Subsidiary Borrowers"), the Lenders, the Administrative Agent and Chemical
Securities Inc. (currently known as Chase Securities Inc)., as Arranger.
W I T N E S S E T H:
WHEREAS, the Parent (formerly known as Sybron Corporation), the
Subsidiary Borrowers, the banks parties thereto and Chemical Bank, as agent for
such banks, are parties to that certain Credit Agreement, dated as of July 1,
1993 (as amended, supplemented or otherwise modified, the "Prior Credit
Agreement") providing for certain Loans (as defined therein) and other
extensions of credit described therein;
WHEREAS, the Parent and the Subsidiary Borrowers have requested the
Lenders to provide credit facilities pursuant to which Loans will be made to,
and Letters of Credit will be issued for the account of, the Parent and certain
Subsidiary Borrowers;
WHEREAS, the Parent and the Subsidiary Borrowers will use the proceeds
of the Loans in part (i) to refinance all outstanding indebtedness of the Parent
and the Subsidiary Borrowers under the Prior Credit Agreement, (ii) to finance
the acquisition (the "Nunc Acquisition") of all of the Capital Stock of Nunc
Inc., a Delaware corporation, Nunc GmbH, a German company, and Nunc AS, a Danish
company (collectively, "Nunc") and (iii) to finance the working capital and
general corporate needs, including acquisitions, of the Parent and the
Subsidiary Borrowers; and
<PAGE> 2
2
hereinafter defined) on the terms and conditions set forth in the Credit
Agreement;
WHEREAS, each Pledgor is the legal and beneficial owner of the shares
of Pledged Stock (as hereinafter defined) hereby pledged by such Pledgor;
WHEREAS, each Pledgor is the legal and beneficial owner of each of the
Pledged Notes (as hereinafter defined) hereby pledged by such Pledgor; and
WHEREAS, it is a condition precedent to the obligation of the Lenders
to make their respective extensions of credit to the Parent and the Subsidiary
Borrowers under the Credit Agreement that each Pledgor shall have executed and
delivered this Pledge Agreement to the Administrative Agent for the ratable
benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective extensions of credit to the Parent
and Subsidiary Borrowers under the Credit Agreement, each Pledgor hereby agrees
with the Administrative Agent, for the ratable benefit of the Lenders, as
follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Credit Agreement or the Subsidiaries Guarantee and used herein are so used
as so defined.
(b) The following terms shall have the following meanings:
"Agreement": this Amended and Restated Pledge Agreement, as the same
may be amended, modified or otherwise supplemented from time to time.
"Code": the Uniform Commercial Code from time to time in effect in
the State of New York.
"Collateral": the Pledged Stock, the Pledged Notes and all Proceeds.
"Issuers": the collective reference to the companies identified on
Schedule 1 hereto as the issuers of the Pledged Stock.
"Obligations" means (a) as to any Pledgor, all of its obligations and
liabilities (i) under the Subsidiaries Guarantee, subject to the
limitations on liability contained therein and (ii) to any Lender or an
Affiliate of any Lender under or in connection with any Interest Rate
Agreement or foreign exchange contract and (b) without duplication, as to
any Pledgor
<PAGE> 3
3
which is a Subsidiary Borrower, the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of the
Loans made to such Pledgor and interest accruing on or after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to such Pledgor, whether or not
a claim for post-filing or post-petition interest is allowed in such
proceeding) the Notes of such Pledgor and all other obligations and
liabilities of such Pledgor to the Administrative Agent or to the Lenders,
whether direct or indirect, absolute or contingent, due or to become due,
or now existing or hereafter incurred, which may arise under, out of, or in
connection with, the Credit Agreement, the Notes, any other Loan Document
and any other document made, delivered or given in connection herewith or
therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including, without
limitation, all fees and disbursements of counsel to the Administrative
Agent or to the Lenders) or otherwise; where the context requires,
"Obligations" refers to the Obligations (as defined herein) of each and
every Pledgor.
"Obligors": the collective reference to the companies identified on
Schedule 2 hereto, as such Schedule may be amended from time to time.
"Pledged Notes": the promissory note or notes of the Obligors
identified on Schedule 2, together with all substitutes, replacements or
refinancings thereto that may be issued or granted by any Obligor to any
Pledgor while this Agreement is in effect.
"Pledged Stock": the shares of capital stock or other equity
interests listed on Schedule 1 hereto, together with all stock
certificates, options or rights of any nature whatsoever that may be issued
or granted by any Issuer to any Pledgor in respect of the Pledged Stock
while this Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the State of New York
on the date hereof and, in any event, shall include, without limitation,
all dividends or other income from the Pledged Stock and the Pledged Notes,
collections thereon or distributions with respect thereto.
"Securities Act": the Securities Act of 1933, as amended.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer
<PAGE> 4
4
to this Agreement as a whole and not to any particular provision of this
Agreement, and Section and paragraph references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Pledge; Grant of Security Interest. Each Pledgor hereby delivers
to the Administrative Agent, for the ratable benefit of the Lenders, all of the
Pledged Stock (except such Pledged Stock which is not certificated) and the
Pledged Notes listed with its name on Schedule 1 or Schedule 2 hereto, as the
case may be, and hereby grants to the Administrative Agent, for the ratable
benefit of the Lenders, a first security interest in the Collateral granted by
such Pledgor, as collateral security for the prompt and complete payment and
performance when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations of such Pledgor.
3. Stock Powers and Allonges. (a) Concurrently with the delivery to
the Administrative Agent of each certificate representing one or more shares of
Pledged Stock to the Administrative Agent, the relevant Pledgor shall deliver an
undated stock power covering such certificate, duly executed in blank by such
Pledgor with, if the Administrative Agent so requests, signature guaranteed.
(b) Concurrently with the delivery to the Administrative Agent of each
note representing one of the Pledged Notes, the relevant Pledgor shall deliver
executed allonges endorsing such notes to "Bearer" with, if the Administrative
Agent so requests, signature guaranteed.
4. Representations and Warranties. Each Pledgor represents and
warrants that:
(a) except as set forth on Schedule 1 hereto, the shares of Pledged
Stock of such Pledgor constitute all the issued and outstanding shares of
all classes of the capital stock of the Issuers thereof;
(b) the Pledged Notes of such Pledgor constitute all of the issued
and outstanding promissory notes payable by the Parent and the direct and
indirect Subsidiaries of the Parent (other than such Pledgor) to such
Pledgor;
(c) all the shares of such Pledged Stock have been duly and validly
issued and are fully paid and nonassessable; and each of such Pledged Notes
has been duly and validly issued and is the legal, valid and binding
obligation of the maker thereof, enforceable in accordance with its terms,
except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization,
<PAGE> 5
5
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing;
(d) such Pledgor is the record and beneficial owner of, and has good
and marketable title to, such Pledged Stock and Pledged Notes, free of any
and all Liens or options in favor of, or claims of, any other Person,
except the security interest created by this Agreement;
(e) upon delivery to the Administrative Agent of the stock
certificates evidencing such Pledged Stock (or in the case of certain
Issuers organized under foreign jurisdictions, the deed or other document
evidencing such Pledged Stock) and upon delivery to the Administrative
Agent of such Pledged Notes, the security interest created by this
Agreement will constitute a valid, perfected first priority security
interest in the Collateral granted by such Pledgor, enforceable in
accordance with its terms against all creditors of such Pledgor and any
Persons purporting to purchase any Collateral from such Pledgor, except as
affected by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing;
(f) such Pledgor has obtained from each Issuer and has delivered to
the Administrative Agent an Acknowledgement and Consent, substantially in
the form attached hereto as Annex A, executed by each such Issuer; and
(g) no consent or authorization of, filing with or other act by or in
respect of any Person is required in connection with the execution,
delivery, performance, validity or enforceability of such Pledged Notes,
and such Pledgor has fully performed all its obligations under such Pledged
Notes.
5. Covenants. Each Pledgor covenants and agrees with the
Administrative Agent and the Lenders that, from and after the date of this
Agreement until the Obligations are paid in full and the Commitments are
terminated:
(a) If such Pledgor shall, as a result of its ownership of any
Pledged Stock, become entitled to receive or shall receive any stock
certificate (including, without limitation, any certificate representing a
stock dividend or a distribution in connection with any reclassification,
increase or reduction of capital or any certificate issued in connection
with any reorganization), option or rights, whether in addition to, in
substitution of, as a conversion
<PAGE> 6
6
of, or in exchange for any shares of any Pledged Stock, or otherwise in
respect thereof, such Pledgor shall accept the same as the agent of the
Administrative Agent and the Lenders, hold the same in trust for the
Administrative Agent and the Lenders and deliver the same forthwith to the
Administrative Agent in the exact form received, duly indorsed by such
Pledgor to the Administrative Agent, if required, together with an undated
stock power covering such certificate duly executed in blank by such
Pledgor and with, if the Administrative Agent so requests, signature
guaranteed, to be held by the Administrative Agent, subject to the terms
hereof, as additional collateral security for the Obligations of such
Pledgor. Any sums paid to such Pledgor upon or in respect of any Pledged
Stock or any Pledged Notes upon the liquidation or dissolution of any
Issuer or any Obligor, as the case may be, shall be paid over to the
Administrative Agent to be held by it hereunder as additional collateral
security for the Obligations of such Pledgor, and in case any distribution
of capital or payment of principal shall be made to such Pledgor on or in
respect of any Pledged Stock or any Pledged Notes or any property shall be
distributed upon or with respect to any Pledged Stock or any Pledged Notes
pursuant to the recapitalization or reclassification of the capital of any
Issuer or any Obligor, as the case may be, or pursuant to the
reorganization thereof, the property so distributed to such Pledgor shall
be delivered to the Administrative Agent to be held by it hereunder as
additional collateral security for the Obligations of such Pledgor. If any
sums of money or property so paid or distributed in respect of any Pledged
Stock or any Pledged Notes shall be received by such Pledgor, such Pledgor
shall, until such money or property is paid or delivered to the
Administrative Agent, hold such money or property in trust for the Lenders,
segregated from other funds of such Pledgor, as additional collateral
security for the Obligations such Pledgor. Notwithstanding the foregoing,
in no event shall more than 65% of the issued and outstanding shares of
stock, or any property distributed in respect thereof, of any Issuer which
is a Controlled Foreign Corporation constitute collateral security for the
Obligations.
(b) Without the prior written consent of the Administrative Agent, no
Pledgor shall vote to enable, or take any other action to permit, any
Issuer to issue any stock or other equity securities of any nature or to
issue any other securities convertible into or granting the right to
purchase or exchange for any stock or other equity securities of any nature
of such Issuer sell, assign, transfer, exchange, or otherwise dispose of,
or grant any option with respect to, the Collateral, or create, incur or
permit to exist any Lien or option in favor of, or any claim of any Person
with respect to, any of the Collateral, or any interest therein, except for
the security interests
<PAGE> 7
7
created by this Agreement and Liens permitted by the Credit Agreement.
Each Pledgor will defend the right, title and interest of the
Administrative Agent and the Lenders in and to the Collateral against the
claims and demands of all Persons whomsoever.
(c) At any time and from time to time, upon the written request of
the Administrative Agent to a Pledgor, and at the sole expense of such
Pledgor, such Pledgor will promptly and duly execute and deliver such
further instruments and documents and take such further actions as the
Administrative Agent may reasonably request for the purposes of obtaining
or preserving the full benefits of this Agreement and of the rights and
powers herein granted. If any amount payable under or in connection with
any of the Collateral shall be or become evidenced by any promissory note,
other instrument or chattel paper, such note, instrument or chattel paper
shall be immediately delivered to the Administrative Agent, duly endorsed
in a manner satisfactory to the Administrative Agent, to be held as
Collateral pursuant to this Agreement.
(d) Each Pledgor shall pay, and save the Administrative Agent and the
Lenders harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or
other taxes which may be payable or determined to be payable with respect
to any of the Collateral granted by such Pledgor or in connection with any
of the transactions contemplated by this Agreement.
(e) Each Pledgor will not (i) amend, modify, terminate or waive any
provision of any Pledged Note in any manner materially adverse to the
interests of the Administrative Agent or the Lenders, (ii) fail to exercise
promptly and diligently each and every material right which it may have
under any Pledged Note where such failure could reasonably be expected to
have an adverse affect on the interests of the Administrative Agent or the
Lenders or (iii) fail to deliver to the Administrative Agent a copy of each
material demand, notice or document received by it relating in any way to
any Pledged Note.
(f) Without the prior written consent of the Administrative Agent, no
Pledgor will grant any extension (other than, so long as no Default or
Event of Default shall exist, extensions granted in accordance with prudent
business judgment) of the time of payment of any Pledged Note, compromise,
compound or settle the same for less than the full amount thereof, release,
wholly or partially, any Person liable for the payment thereof, or allow
any credit or discount whatsoever thereon.
<PAGE> 8
8
(g) Each Pledgor shall deliver to the Administrative Agent, in the
exact form received, to be held by the Administrative Agent, subject to the
terms hereof, as additional collateral security for the Obligations of such
Pledgor any additional promissory notes made by any Obligor for the benefit
of such Pledgor or other securities, options or rights received by it in
substitution or exchange for, or as a conversion of, or in addition to, any
of the Pledged Notes, or otherwise in respect thereof, together with an
undated endorsement or power, as the case may be, duly executed to the
order of "Bearer" or in blank, as the case may be, by such Pledgor and
with, if the Administrative Agent reasonably requests, signature
guaranteed.
6. Cash Dividends; Voting Rights; Interest and Principal Payments.
(a) Unless an Event of Default shall have occurred and be continuing and the
Administrative Agent shall have given notice to a Pledgor of the Administrative
Agent's intent to exercise its corresponding rights pursuant to Section below,
such Pledgor shall be permitted to receive all cash dividends paid in the normal
course of business and consistent with past practice, to the extent permitted in
the Credit Agreement, in respect of the Pledged Stock of such Pledgor and to
exercise all voting and corporate rights with respect to such Pledged Stock;
provided, however, that no vote shall be cast or corporate right exercised or
other action taken which, in the Administrative Agent's reasonable judgment,
would impair the Collateral or which would be inconsistent with or result in any
violation of any provision of the Credit Agreement, the Notes, this Agreement or
any other Loan Document.
(b) Unless an Event of Default shall have occurred and be continuing
and the Administrative Agent shall have given notice to a Pledgor of the
Administrative Agent's intent to exercise its corresponding rights pursuant to
Section 7 hereof, such Pledgor shall be permitted to receive and retain all
scheduled interest and principal payments on account of the Pledged Notes of
such Pledgor.
7. Rights of the Lenders and the Administrative Agent. (a) If an
Event of Default shall occur and be continuing and the Administrative Agent
shall give notice of its intent to exercise such rights to a Pledgor, the
Administrative Agent shall have the right to receive any and all cash dividends
paid in respect of the Pledged Stock of such Pledgor and any and all interest,
principal or other payments paid in respect of the Pledged Notes of such
Pledgor and make application thereof to the Obligations of such Pledgor in such
order as the Administrative Agent may determine, and all shares of such
Pledged Stock shall be registered in the name of the Administrative Agent or
its nominee, and the Administrative Agent or its nominee may thereafter
exercise all voting, corporate and other rights pertaining to such Pledged
Stock at any meeting of shareholders of any Issuer or otherwise and any and
all rights of
<PAGE> 9
9
conversion, exchange, subscription and any other rights, privileges or options
pertaining to such Pledged Stock as if it were the absolute owner thereof
(including, without limitation, the right to exchange at its discretion any and
all of such Pledged Stock upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate structure of any
Issuer, or upon the exercise by such Pledgor or the Administrative Agent of any
right, privilege or option pertaining to such Pledged Stock, and in connection
therewith, the right to deposit and deliver any and all of such Pledged Stock
with any committee, depositary, transfer agent, registrar or other designated
agency upon such terms and conditions as the Administrative Agent may
determine) and (3) the Administrative Agent or its nominee may thereafter
exercise all rights pertaining to such Pledged Notes (including without
limitation, any and all rights of conversion, exchange, subscription and any
other rights, privileges or options pertaining thereto) as if it were the
absolute owner thereof, all without liability except to account for property
actually received by it, but the Administrative Agent shall have no duty to
such Pledgor to exercise any such right, privilege or option and shall not be
responsible for any failure to do so or delay in so doing.
(b) Anything herein to the contrary notwithstanding, each Pledgor shall
remain liable under the Pledged Notes of such Pledgor to observe and perform
all the conditions and obligations to be observed and performed by it
thereunder all in accordance with the terms and provisions of such Pledged
Notes. Neither the Administrative Agent nor the Lenders shall have any
obligation or liability under any Pledged Note by reason of or arising out of
this Agreement or the receipt by the Administrative Agent or the Lenders of
any payment relating to such Pledged Note pursuant hereto (other than to
account for monies actually received by it), nor shall the Administrative Agent
or any of the Lenders be obligated in any manner to perform any of the
obligations of any Pledgor under or pursuant to any Pledged Note, to make any
payment, to make any inquiry as to the nature or the sufficiency of any payment
received by it or as to the sufficiency of any performance by any party under
any Pledged Note, to present or file any claim, to take any action to enforce
any performance or to collect the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
(c) The rights of the Administrative Agent and the Lenders hereunder
shall not be conditioned or contingent upon the pursuit by the Administrative
Agent or any Lender of any right or remedy against any Issuer or any Obligor
or against any other Person which may be or become liable in respect of all or
any part of the Obligations or against any collateral security therefor,
guarantee thereof or right of offset with respect thereto. Neither the
Administrative Agent nor any Lender shall be liable for any failure to demand,
collect or realize upon all or any part of the Collateral or for any delay in
doing so, nor
<PAGE> 10
10
shall the Administrative Agent be under any obligation to sell or otherwise
dispose of any Collateral upon the request of a Pledgor or any other Person or
to take any other action whatsoever with regard to the Collateral or any part
thereof.
8. Remedies. If an Event of Default shall occur and be continuing, the
Administrative Agent, on behalf of the Lenders, may exercise, in addition to
all other rights and remedies granted in this Agreement and in any other
instrument or agreement securing, evidencing or relating to the Obligations,
all rights and remedies of a secured party under the Code. Without limiting
the generality of the foregoing, the Administrative Agent, without demand of
performance or other demand, presentment, protest, advertisement or notice of
any kind (except any notice required by law referred to below) to or upon any
Pledgor, any Issuer, any Obligor or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, assign, give option
or options to purchase or otherwise dispose of and deliver the Collateral or
any part thereof (or contract to do any of the foregoing), in one or more
parcels at public or private sale or sales, in the over-the-counter market, at
any exchange, broker's board or office of the Administrative Agent or any
Lender or elsewhere upon such terms and conditions as it may deem advisable and
at such prices as it may deem best, for cash or on credit or for future
delivery without assumption of any credit risk. The Administrative Agent or
any Lender shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Collateral so sold, free of any right or equity of
redemption in any Pledgor, which right or equity is hereby waived or released.
The Administrative Agent shall apply any Proceeds from time to time held by it
and the net proceeds of any such collection, recovery, receipt, appropriation,
realization or sale, after deducting all reasonable costs and expenses of every
kind incurred in respect thereof or incidental to the care or safekeeping of
any of the Collateral or in any way relating to the Collateral or the rights of
the Administrative Agent and the Lenders hereunder, including, without
limitation, reasonable attorneys' fees and disbursements of counsel to the
Administrative Agent, to the payment in whole or in part of the Obligations, in
such order as the Administrative Agent may elect, and only after such
application and after the payment by the Administrative Agent of any other
amount required by any provision of law, including, without limitation, Section
9-504(1)(c) of the Code, need the Administrative Agent account for the surplus,
if any, to any Pledgor. To the extent permitted by applicable law, each
Pledgor waives all claims, damages and demands it may acquire against the
Administrative Agent or any Lender arising out of the exercise by them of any
rights hereunder, except such claims and damages arising out of the gross
negligence or willful misconduct of the Administrative
<PAGE> 11
11
Agent or any such Lender. If any notice of a proposed sale or other
disposition of Collateral shall be required by law, such notice shall be deemed
reasonable and proper if given at least 10 days before such sale or other
disposition. Each Pledgor shall remain liable for any deficiency if the
proceeds of any sale or other disposition of Collateral are insufficient to pay
the Obligations of such Pledgor and the fees and disbursements of any attorneys
employed by the Administrative Agent or any Lender to collect such deficiency.
9. Registration Rights; Private Sales. (a) If the Administrative Agent
shall determine to exercise its right to sell any or all of the Pledged Stock
of any Pledgor pursuant to paragraph 8 hereof, and if in the opinion of the
Administrative Agent it is necessary or advisable to have such Pledged Stock,
or that portion thereof to be sold, registered under the provisions of the
Securities Act, such Pledgor will cause the Issuer thereof to execute and
deliver, and cause the directors and officers of such Issuer to execute and
deliver, all such instruments and documents, and do or cause to be done all
such other acts as may be, in the opinion of the Administrative Agent,
necessary or advisable to register such Pledged Stock, or that portion thereof
to be sold, under the provisions of the Securities Act, to use its best
efforts to cause the registration statement relating thereto to become
effective and to remain effective for a period of one year from the date of the
first public offering of such Pledged Stock, or that portion thereof to be sold
and to make all amendments thereto and/or to the related prospectus which, in
the opinion of the Administrative Agent, are necessary or advisable, all in
conformity with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto. Such
Pledgor agrees to cause such Issuer to comply with the provisions of the
securities or "Blue Sky" laws of any and all jurisdictions which the
Administrative Agent shall designate and to make available to its security
holders, as soon as practicable, an earnings statement (which need not be
audited) which will satisfy the provisions of Section 11(a) of the Securities
Act.
(b) Each Pledgor recognizes that the Administrative Agent may be unable to
effect a public sale of any or all the Pledged Stock, by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws or otherwise, and may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers which will be obliged to agree,
among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. Such
Pledgor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The
Administrative Agent shall be under no obligation to delay a sale of any of the
Pledged Stock for the
<PAGE> 12
12
period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
(c) Each Pledgor further agrees to use its best efforts to do or cause to
be done all such other acts as may be necessary to make such sale or sales of
all or any portion of the Pledged Stock pursuant to this Section valid and
binding and in compliance with any and all other applicable Requirements of
Law. Such Pledgor further agrees that a breach of any of the covenants
contained in this Section will cause irreparable injury to the Administrative
Agent and the Lenders, that the Administrative Agent and the Lenders have no
adequate remedy at law in respect of such breach and, as a consequence, that
each and every covenant contained in this Section 9 shall be specifically
enforceable against such Pledgor, and such Pledgor hereby waives and agrees not
to assert any defenses against an action for specific performance of such
covenants except for a defense that no Event of Default has occurred under the
Credit Agreement.
10. Irrevocable Authorization and Instruction to Issuer and Obligor. Each
Pledgor hereby authorizes and instructs each Issuer of its Pledged Stock and
each Obligor of its Pledged Notes to comply with any instruction received by it
from the Administrative Agent in writing that (a) states that an Event of
Default has occurred and (b) is otherwise in accordance with the terms of this
Agreement, without any other or further instructions from such Pledgor, and
such Pledgor agrees that each such Issuer and each such Obligor shall be fully
protected in so complying.
11. Administrative Agent's Appointment as Attorney-in-Fact.
(a) Each Pledgor hereby irrevocably constitutes and appoints the
Administrative Agent and any officer or agent of the Administrative Agent, with
full power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of such Pledgor and in
the name of such Pledgor or in the Administrative Agent's own name, from time
to time in the Administrative Agent's discretion, for the purpose of carrying
out the terms of this Agreement, to take any and all appropriate action and to
execute any and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this Agreement, including, without
limitation, any financing statements, endorsements, assignments or other
instruments of transfer.
(b) Each Pledgor hereby ratifies all that said attorneys shall lawfully
do or cause to be done pursuant to the power of attorney granted in paragraph.
All powers, authorizations and agencies contained in this Agreement are coupled
with an interest and are irrevocable until the Obligations are paid in full and
the Commitments are terminated.
<PAGE> 13
13
12. Duty of Administrative Agent. The Administrative Agent's sole
duty with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Code or otherwise,
shall be to deal with it in the same manner as the Administrative Agent deals
with similar securities and property for its own account. Neither the
Administrative Agent, any Lender nor any of their respective directors,
officers, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of any Pledgor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof.
13. Execution of Financing Statements. Pursuant to Section 9-402 of the
Code, each Pledgor authorizes the Administrative Agent to file financing
statements with respect to the Collateral without the signature of such Pledgor
in such form and in such filing offices as the Administrative Agent reasonably
determines appropriate to perfect the security interests of the Administrative
Agent under this Agreement.
14. Authority of Administrative Agent. Each Pledgor acknowledges that
the rights and responsibilities of the Administrative Agent under this
Agreement with respect to any action taken by the Administrative Agent or the
exercise or non-exercise by the Administrative Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the Administrative
Agent and the Lenders, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Administrative Agent and a Pledgor, the Administrative Agent
shall be conclusively presumed to be acting as agent for the Lenders with full
and valid authority so to act or refrain from acting, and neither any Pledgor,
any Issuer nor any Obligor shall be under any obligation, or entitlement, to
make any inquiry respecting such authority.
15. Notices. All notices, requests and demands to or upon the
Administrative Agent, any Pledgor, any Issuer or any Obligor to be effective
shall be in writing (or by telex, fax or similar electronic transfer confirmed
in writing) and shall be deemed to have been duly given or made when delivered
by hand or if given by mail, three days after being deposited in the mail,
postage prepaid, or if by telex, fax or similar electronic transfer, when sent
and receipt has been confirmed, addressed to the Administrative Agent at its
address or transmission number for notices provided in the Credit Agreement, to
each Pledgor at its address or transmission number for notices provided in the
Subsidiaries Guarantee and to each Issuer and each Obligor at its address set
forth in its Acknowledgment and Consent. Any Pledgor, any Issuer and any
Obligor may change
<PAGE> 14
14
their addresses and transmission numbers for notices by written notice to the
Administrative Agent.
16. Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
17. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None
of the terms or provisions of this Agreement as it affects any Pledgor may be
waived, amended, supplemented or otherwise modified except by a written
instrument executed by such Pledgor and the Administrative Agent, provided that
any provision of this Agreement may be waived by the Administrative Agent and
the Lenders in a letter or agreement executed by the Administrative Agent or by
telex or facsimile transmission from the Administrative Agent.
(b) Neither the Administrative Agent nor any Lender shall by any act
(except by a written instrument pursuant to paragraph 17. (a) hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default or in any
breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Administrative Agent or any Lender,
any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Administrative Agent or any Lender
of any right or remedy hereunder on any one occasion shall not be construed as
a bar to any right or remedy which the Administrative Agent or such Lender
would otherwise have on any future occasion.
(c) 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.
18. Section Headings. The Section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
19. Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of each Pledgor and shall inure to the benefit of the
Administrative Agent and the Lenders and their successors and assigns.
<PAGE> 15
15
20. Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
<PAGE> 16
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be duly
executed and delivered as of the date first above written.
SAC/THERMO-BARN, INC.
BARNSTEAD THERMOLYNE CORPORATION
SAC/ERIE, INC.
ERIE SCIENTIFIC COMPANY
NAUGATUCK GLASS COMPANY
METAVAC, INC.
NALGE NUNC INTERNATIONAL
CORPORATION
NALGE COMPANY
SYBRON DENTAL SPECIALTIES, INC.
SAC/ORMCO, INC.
ORMCO CORPORATION
E.T.M. CORPORATION
EXCELLENCE IN ENDODONTICS, INC.
SAC/KERR, INC.
KERR CORPORATION
SAC/COMMONWEALTH, INC.
SYBRON COMMONWEALTH HOLDINGS, INC.
NUNC U.K. LIMITED
__________________________________
By:
Title:
<PAGE> 17
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
SAC/THERMO-BARN, INC.
<TABLE>
<CAPTION>
Class Stock No. of Total No.
of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ------------------------ -------- ------------ ------- -----------
<S> <C> <C> <C> <C>
Barnstead Thermolyne Common 2 100 100
Corporation
</TABLE>
<PAGE> 18
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
BARNSTEAD/THERMOLYNE CORPORATION
<TABLE>
<CAPTION>
Class Stock No. of Total No.
of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ------------------------ -------- ------------ ------- -----------
<S> <C> <C> <C> <C>
Biomolecular, Inc. Common 85 100 100
</TABLE>
<PAGE> 19
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
SAC/ERIE, INC.
<TABLE>
<CAPTION>
Class Stock No. of Total No.
of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ------------------------ -------- ------------ ------- -----------
<S> <C> <C> <C> <C>
Erie Scientific Common 1 100 100
Company
</TABLE>
<PAGE> 20
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
ERIE SCIENTIFIC COMPANY
<TABLE>
<CAPTION>
Class Stock No. of Total No.
of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ---------------------- ----- ----------- ------- -----------
<S> <C> <C> <C> <C>
Erie Scientific Common 001 1,000 1,000
Company of Puerto Rico
- ------------------------------------------------------------------------------
Erie Electroverre SA Common 9 325 500
- ------------------------------------------------------------------------------
Erie-Watala Glass Voting 5 42 84
Company Limited
Nonvoting 6 16 16
- ------------------------------------------------------------------------------
Erie Scientific 65% equity 363,880,000
Hungary Kft. interest
- ------------------------------------------------------------------------------
Ever Ready Thermometer Common 2 100 100
Co., Inc.
- ------------------------------------------------------------------------------
Owl Scientific, Inc. Common 2 100 100
- ------------------------------------------------------------------------------
Richard-Allan Common 1 100 100
Scientific Company
- ------------------------------------------------------------------------------
New England Reagent Common 1 100 100
Laboratory, Inc.
- ------------------------------------------------------------------------------
Casco Standards, Inc. Common 2 100 100
- ------------------------------------------------------------------------------
Naugatuck Glass Common 234 179,280 179,280
Company
- ------------------------------------------------------------------------------
</TABLE>
<PAGE> 21
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
NAUGATUCK GLASS COMPANY
<TABLE>
<CAPTION>
Stock No. of Total No.
Class of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ----------- ---------- ----------- ------- -----------
<S> <C> <C> <C> <C>
Metavac, Common 1 1,000 1,000
Inc.
</TABLE>
<PAGE> 22
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
METAVAC, INC.
<TABLE>
<CAPTION>
Stock No. of Total No.
Class of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ----------- ---------- ----------- ----------- ------------
<S> <C> <C> <C> <C>
Bedford Common 1 1,000 1,000
Mirror, Inc.
</TABLE>
<PAGE> 23
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
NALGE NUNC INTERNATIONAL CORPORATION
<TABLE>
<CAPTION>
Stock No. of Total No.
Class of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ----------- ---------- ----------- ----------- ------------
<S> <C> <C> <C> <C>
Nalge Company Common 2 100 100
Nunc
Incorporated Common 5 100 100
</TABLE>
<PAGE> 24
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
NALGE COMPANY
<TABLE>
Class Stock No. of Total No.
of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ------------------------ -------- ------------ ------- -----------
<S> <C> <C> <C> <C>
Nalge (Europe) Common 1 100 100
Incorporated
- ------------------------------------------------------------------------------
I-Chem Company Common 2 1,000 1,000
- ------------------------------------------------------------------------------
Sani-Tech, Inc. Common 2 100 100
- ------------------------------------------------------------------------------
Acutech Plastics, Common 9 4,500 4,500
Inc.
</TABLE>
<PAGE> 25
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
SYBRON DENTAL SPECIALTIES, INC.
<TABLE>
Class Stock No. of Total No.
of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ------------------------ -------- ------------ ------- -----------
<S> <C> <C> <C> <C>
SAC/Kerr, Inc. Common 1 1,000 2,000
2 1,000
- ------------------------------------------------------------------------------
SAC/Commonwealth, Inc. Common 1 600 2,000
2 350
3 650
4 350
- ------------------------------------------------------------------------------
SAC/Ormco Common 1 1,000 2,000
2 1,000
</TABLE>
<PAGE> 26
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
SAC/ORMCO, INC.
<TABLE>
<CAPTION>
Class Stock No. of Total No.
of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ------------------------ -------- ------------ ------- -----------
<S> <C> <C> <C> <C>
Ormco Corporation Common 1 100 100
</TABLE>
<PAGE> 27
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
ORMCO CORPORATION
<TABLE>
<CAPTION>
Stock No. of Total No. of
Class of Certificate Shares Shares
Issuer Stock No. Pledged Outstanding
- ---------------- -------- ----------- ------- -------------
<S> <C> <C> <C> <C>
Ormco Common 1 65 100
(Europe) AG
- ------------------------------------------------------------------------------
Ormex, SA Common 15 128,677 196,964 variable
de CV 1,000 fixed
- ------------------------------------------------------------------------------
Ormco Pty Common 4 30,550 47,000
Limited
- ------------------------------------------------------------------------------
Ormco de "B" Series 6 6,500 10,000 "B"
Mexico, SA "B-V" Series 1 244,801 386,617 "B-V"
de CV
- ------------------------------------------------------------------------------
Allesee Common 12 1,840 1,840
Orthodontic
Appliances,
Inc.
- ------------------------------------------------------------------------------
E.T.M. Common 199 100 100
Corporation
- ------------------------------------------------------------------------------
Excellence Common 4 100 100
in Endo-
dontics,
Inc.
</TABLE>
<PAGE> 28
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
E.T.M. CORPORATION
<TABLE>
<CAPTION>
Stock No. of Total No.
Class of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ----------- ---------- ----------- ----------- ------------
<S> <C> <C> <C> <C>
E.T.M. Series A 6 32,500 50,000
Corporation Capital
de Mexico, Stock
SA de CV
</TABLE>
<PAGE> 29
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
EXCELLENCE IN ENDODONTICS, INC.
<TABLE>
<CAPTION>
Stock No. of Total No.
Class of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ----------- ---------- ----------- ----------- ------------
<S> <C> <C> <C> <C>
Analytic Common 2 100 100
Technology
Corporation
</TABLE>
<PAGE> 30
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
SAC/KERR, INC.
<TABLE>
<CAPTION>
Stock No. of Total No.
Class of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ----------- ---------- ----------- ----------- ------------
<S> <C> <C> <C> <C>
Kerr Common 2 100 100
Corporation
- ------------------------------------------------------------------------------
Kerr Ordinary 3 600,202 923,389
Australia Pty
Limited
</TABLE>
<PAGE> 31
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
ERIE SCIENTIFIC COMPANY
<TABLE>
<CAPTION>
Class Stock No. of Total No.
of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ---------------------- ----- ----------- ------- -----------
<S> <C> <C> <C> <C>
Kerr Italia S.p.A. 11 13,988 21,520
- ------------------------------------------------------------------------------
Kerr (Europe) AG Common 7 163 250
- ------------------------------------------------------------------------------
Sybron Asia Ltd A-001 1,000 1,800
B-009 100
C-001 50
F-004 10
F-005 10
- ------------------------------------------------------------------------------
Demetron Research Common 28 640,020 640,020
Corp.
- ------------------------------------------------------------------------------
Sybron Deutschland Quotas Deed DM 845,000 DM 1,300,000
GmbH
- ------------------------------------------------------------------------------
Belle De St. Common 2 100 100
Claire, Inc.
- ------------------------------------------------------------------------------
Metrex Research Common 4 100 100
Corporation
</TABLE>
<PAGE> 32
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
SAC/COMMONWEALTH, INC.
<TABLE>
<CAPTION>
Stock No. of Total No.
Class of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ----------- ---------- ----------- ------- -----------
<S> <C> <C> <C> <C>
Sybron Commonwealth Common 2 65 100
Holdings, Inc. 1 35
________________________________________________________________________________
Sybron Canada Limited Common 3 651 1000
</TABLE>
<PAGE> 33
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
SYBRON COMMONWEALTH HOLDINGS, INC.
<TABLE>
<CAPTION>
Stock No. of Total No.
Class of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ----------- ---------- ----------- ----------- ------------
<S> <C> <C> <C> <C>
Sybron UK 0 [5 or 6] 1 500,000
Limited 7 324,999
</TABLE>
<PAGE> 34
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
NUNC U.K. LIMITED
<TABLE>
<CAPTION>
Stock No. of Total No.
Class of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ----------- ---------- ----------- ----------- ------------
<S> <C> <C> <C> <C>
Sybron Common 1 65,000 100,000
Holdings A/S (no classi-
fication)
</TABLE>
<PAGE> 35
SCHEDULE 2
TO SUBSIDIARIES PLEDGE AGREEMENT
PLEDGED NOTES
[NAME OF PLEDGOR]
<TABLE>
<CAPTION>
Original
Date of Principal
Obligor Note Amount
- ------- ------- ---------
<S> <C> <C>
$___________
</TABLE>
<PAGE> 36
ANNEX A
To Subsidiaries Pledge Agreement
ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned is an Issuer referred to in the foregoing Amended
and Restated Subsidiaries Pledge Agreement, and each of the undersigned hereby
acknowledges receipt of a copy of the Amended and Restated Subsidiaries Pledge
Agreement, dated as of July 9, 1996, made by the Pledgors (as defined therein)
in favor of Chemical Bank, as Administrative Agent (as amended, supplemented or
otherwise modified from time to time, the "Pledge Agreement"). The undersigned
agree for the benefit of the Administrative Agent and the Lenders as follows:
1. The undersigned will be bound by the terms of the Pledge Agreement and
will comply with such terms insofar as such terms are applicable to the
undersigned.
2. The undersigned will notify the Administrative Agent promptly in writing
of the occurrence of any of the events described in paragraph of the Pledge
Agreement.
3. The terms of paragraph of the Pledge Agreement shall apply to it,
mutatis mutandis, with respect to all actions that may be required of it under
or pursuant to or arising out of Section of the Pledge Agreement.
BARNSTEAD THERMOLYNE CORPORATION
BIOMOLECULAR, INC.
ERIE SCIENTIFIC COMPANY
ERIE ELECTROVERRE S.A.
ERIE SCIENTIFIC COMPANY OF
PUERTO RICO
ERIE-WATALA GLASS COMPANY LIMITED
ERIE SCIENTIFIC HUNGARY KFT.
EVER READY THERMOMETER CO., INC.
OWL SCIENTIFIC, INC.
RICHARD-ALLAN SCIENTIFIC COMPANY
NEW ENGLAND REAGENT LABORATORY,
INC.
CASCO STANDARDS, INC.
THE NAUGATUCK GLASS COMPANY
METAVAC, INC.
BEDFORD MIRROR, INC.
NALGE COMPANY
NUNC INCORPORATED
NALGE (EUROPE) INCORPORATED
I-CHEM COMPANY
SANI-TECH, INC.
ACUTECH PLASTICS, INC.
<PAGE> 37
SAC/ORMCO, INC.
ORMCO CORPORATION
ORMCO (EUROPE) A.G.
ORMEX, S.A. DE C.V.
ORMCO PTY. LTD.
ORMCO DE MEXICO SA de CV
ALLESEE ORTHODONTIC APPLIANCES,
INC.
E.T.M. CORPORATION
E.T.M. CORPORATION DE MEXICO,
SA de CV
EXCELLENCE IN ENDODONTICS, INC.
ANALYTIC TECHNOLOGY CORPORATION
SAC/KERR, INC.
KERR CORPORATION
KERR AUSTRALIA PTY. LIMITED
KERR ITALIA S.p.A.
KERR (EUROPE) A.G.
METREX RESEARCH CORPORATION
DEMETRON RESEARCH CORP.
BELLE DE ST. CLAIRE, INC.
SYBRON DEUTSCHLAND GMBH
SAC/COMMONWEALTH, INC.
SYBRON COMMONWEALTH HOLDINGS, INC.
SYBRON CANADA LIMITED
SYBRON U.K. LIMITED
SYBRON HOLDINGS A/S
--------------------------------------
By:
Title:
Address for Notices:
c/o Sybron International Corporation
411 East Wisconsin Avenue, 24th Floor
Milwaukee, Wisconsin 53202
Fax: (414) 274-6561
<PAGE> 1
EXHIBIT 11
SYBRON INTERNATIONAL CORPORATION AND SUBSIDIARIES
COMPUTATION OF PER SHARE EARNINGS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
June 30, June 30,
1996 1995 1996 1995
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Primary:
Net income $17,105 $13,799 $39,367 $37,251
========= ========= ========= =========
Shares
Weighted average Common shares .. 46,805 46,406 46,681 46,398
Common equivalent shares ........ 1,304 654 1,119 472
--------- --------- --------- ---------
48,109 47,060 47,800 46,870
========= ========= ========= =========
Primary earnings per share ...... $ .36 $ .29 $ .82 $ .79
========= ========= ========= =========
</TABLE>
25
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE UNAUDITED
CONSOLIDATED FINANCIAL STATEMENTS OF SYBRON INTERNATIONAL CORPORATION FOR THE
NINE MONTHS ENDED JUNE 30, 1996 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> SEP-30-1996
<PERIOD-START> OCT-01-1995
<PERIOD-END> JUN-30-1996
<CASH> 10,576
<SECURITIES> 0
<RECEIVABLES> 118,463
<ALLOWANCES> 2,393
<INVENTORY> 117,719
<CURRENT-ASSETS> 272,724
<PP&E> 151,875
<DEPRECIATION> 123,062
<TOTAL-ASSETS> 898,219
<CURRENT-LIABILITIES> 125,472
<BONDS> 436,661
0
0
<COMMON> 469
<OTHER-SE> 267,464
<TOTAL-LIABILITY-AND-EQUITY> 898,219
<SALES> 488,809
<TOTAL-REVENUES> 488,809
<CGS> 246,101
<TOTAL-COSTS> 146,898
<OTHER-EXPENSES> 400
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 26,036
<INCOME-PRETAX> 69,374
<INCOME-TAX> 30,007
<INCOME-CONTINUING> 39,367
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 39,367
<EPS-PRIMARY> .82
<EPS-DILUTED> .82
</TABLE>
