<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): April 25, 1997
SYBRON INTERNATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
WISCONSIN 1-11091 22-2849508
(State or other jurisdiction of (Commission File (I.R.S. Employer
incorporation or organization) Number) Identification No.)
</TABLE>
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 or former address, if changed since last report)
<PAGE> 2
Sybron International Corporation
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On April 25, 1997, Sybron International Corporation ("Sybron") completed
the previously announced pending acquisition of Remel Limited Partnership
("Remel"), a manufacturer and distributor of disposable diagnostic products
used in microbiology laboratories. The transaction was in the form of a
purchase of all outstanding partnership interests of Remel and equity interests
of certain related entities by Remel Acquisition Co., a Wisconsin corporation
formed by Sybron to complete the transaction. Remel Acquisition Co., which has
been renamed Remel, Inc., is a direct wholly owned subsidiary of Sybron's
subsidiary, Erie Scientific Company ("Erie"). Immediately after the
acquisition, Remel was dissolved, and as a result Remel, Inc. owns all of the
assets of Remel. The sellers included Regional Media Laboratories, Inc.,
Riverside/Remel Limited Partnership and certain family trusts. There is no
material relationship between the sellers and Sybron or any of its affiliates,
directors, officers or associates of any such directors or officers.
Remel, Inc. paid $121.6 million in cash at closing and assumed
approximately $35 million in debt. The assumed debt was repaid by Remel, Inc.
upon the closing of the transaction. The purchase price was determined through
arms-length negotiations between the parties. The transaction was financed
through expanded credit facilities provided under Sybron's Amended and Restated
Credit Agreement, as amended as of April 25, 1997, with Chase Manhattan Bank
and certain other lenders. Sybron will account for the acquisition as a
purchase.
Founded in 1973, Remel has its headquarters in Lenexa, Kansas, and has
manufacturing operations in Lenexa; Lake Charles, Louisiana; and Atlanta and
Augusta, Georgia. For the year ended December 31, 1996, Remel generated net
sales of approximately $60 million on a pro forma basis after adjusting for
Remel's acquisition of Chrisope Technologies, L.C. ("Chrisope") in November
1996. The pro forma adjustments include Chrisope's ten month sales prior to
being acquired by Remel.
Remel is a manufacturer of an extensive range of diagnostic products used
primarily by clinical and, to some extent, industrial microbiology laboratories
to identify microorganisms that cause disease or contaminate products or the
environment. Principal products manufactured by Remel include prepared culture
media, stains, reagents, antimicrobal/susceptibility tests, rapid assay test
kits, quality control organisms, and other disposable microbiology products.
Remel has an extensive customer base of clinical and industrial microbiology
laboratories in the United States. Its products have been sold only to a
limited extent internationally.
Sybron plans to continue the Remel business. Sales revenues and EBITDA of
the Remel business for the year ended September 30, 1997 are expected to be
approximately
<PAGE> 3
$63 million and $23 million, respectively. Remel, Inc. will be managed by
Erie, which plans to combine the microbiology resources of Remel with other
Erie businesses that serve the microbiology market.
The definitive purchase agreement, the Second Amendment to the Amended and
Restated Credit Agreement and certain related documents are filed as exhibits
to this report and are incorporated herein by reference. The descriptions
thereof herein do not purport to be complete and are qualified in their
entirety by reference to the provisions of the respective agreements.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
a) Financial Statements of Businesses Acquired:
b) Pro Forma Financial Information:
Although the acquisition of Remel is deemed to involve a significant
amount of assets under Instruction 4 to Item 2 of Form 8-K, no financial
statements or pro forma financial information are required to be furnished
since the acquisition does not exceed the minimum 20% significance
threshold under Rule 3-05 and Article 11 of Regulation S-X, as amended by
Release No. 33-7355 (Oct. 10, 1996).
c) Exhibits:
See the Exhibit Index following the Signature page of this report, which
is incorporated herein by reference.
<PAGE> 4
SIGNATURE
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
Date: May 9, 1997 By: /s/ Dennis Brown
---------------------------------
Dennis Brown
Vice President - Finance, Chief
Financial Officer & Treasurer
<PAGE> 5
SYBRON INTERNATIONAL CORPORATION
(THE "REGISTRANT")
(COMMISSION FILE NO. 1-11091)
EXHIBIT INDEX
TO
FORM 8-K CURRENT REPORT
DATED APRIL 25, 1997
<TABLE>
<CAPTION>
INCORPORATED
EXHIBIT HEREIN BY FILED
NUMBER DESCRIPTION REFERENCE TO HEREWITH
------ ----------- ------------ --------
<S> <C> <C> <C>
2.1 Purchase Agreement, dated as of X
March 14, 1997 (the "Purchase
Agreement"), by and among the
owners of the partnership interests
in Remel Limited Partnership
("Remel"), Remel Acquisition Co.
("Buyer"), Riverside Partners, Inc.
and the other parties identified
therein, relating to the purchase by
Buyer of all of the partnership
interests, limited liability company
interests and capital stock of Remel
and the other entities whose
businesses were acquired by Buyer
pursuant to the Purchase Agreement
(including the Registrant's guaranty
of the obligations of Buyer under
the Purchase Agreement).
2.2 Escrow Agreement dated as of April 25, X
1997 by and among Riverside
Partners, Inc., Remel Acquisition Co.
and State Street Bank and Trust
Company, as escrow agent.
</TABLE>
EI - 1
<PAGE> 6
<TABLE>
<CAPTION>
INCORPORATED
EXHIBIT HEREIN BY FILED
NUMBER DESCRIPTION REFERENCE TO HEREWITH
------ ----------- ------------ --------
<S> <C> <C>
4.1 Second Amended and Restated X
Credit Agreement dated as of April
25, 1997, constituting the
Second Amendment 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., as Arranger,
and The Chase Manhattan Bank,
as Administrative Agent for
the Lenders.
4.2 Form of Revolving Credit Note, X
dated as of April 25, 1997, executed
pursuant to the Credit Agreement.
4.3 Form of Term Note, dated as of X
April 25, 1997, executed pursuant
to the Credit Agreement.
4.4 Form of Swing Line Note, dated X
as of April 25, 1997, executed
pursuant to the Credit Agreement.
4.5 Form of CAF Advance Note, X
dated as of April 25, 1997, executed
pursuant to the Credit Agreement.
4.6 Form of Second Amended and X
Restated Parent Pledge Agreement,
dated as of April 25, 1997, executed
pursuant to the Credit Agreement.
</TABLE>
EI - 2
<PAGE> 7
<TABLE>
<CAPTION>
INCORPORATED
EXHIBIT HEREIN BY FILED
NUMBER DESCRIPTION REFERENCE TO HEREWITH
------ ----------- ------------ --------
<S> <C> <C>
4.7 Form of Second Amended and X
Restated Subsidiaries Guarantee,
dated as of April 25, 1997, executed
pursuant to the Credit Agreement.
4.8 Form of Second Amended and X
Restated Subsidiaries Pledge
Agreement, dated as of April 25,
1997, executed pursuant to the
Credit Agreement.
</TABLE>
EI - 3
<PAGE> 1
EXHIBIT 2.1
PURCHASE AGREEMENT
PURCHASE AGREEMENT, entered into as of March 14, 1997, by and among
ROBERT V. TAYLOR, as Trustee of the Mary Beth Moorman Trust, dated November 10,
1992, ROBERT V. TAYLOR, as Trustee of the Megan Dale Moorman Trust, dated
November 10, 1992, ROBERT V. TAYLOR, as Trustee of the Marsha Kay Moorman
Trust, dated November 10, 1992, and ROBERT V. TAYLOR, as Trustee of the Ruth
Ann Moorman Trust, dated November 10, 1992 (collectively, the "Moorman Children
Trusts" and each being the holder of a limited partnership interest in Remel
Limited Partnership (the "Company")), REGIONAL MEDIA LABORATORIES, INC.
("RMLI", being the holder of a limited partnership interest in the Company and
a limited liability company interest in Chrisope Technologies, L.C. ("Chrisope
L.C.")), RIVERSIDE/REMEL LIMITED PARTNERSHIP ("R/RLP", being the holder of a
limited partnership interest in the Company and sole shareholder of Remel
Management, Inc. ("RMI", which together with the Moorman Children Trusts, RMLI
and R/RLP are hereinafter collectively referred to as the "Remel Partners"),
ERIQUEZ FAMILY PARTNERSHIP, L.P. ("Eriquez L.P.") being the holder of a limited
partnership interest in Innovative Diagnostic Systems Limited Partnership ("IDS
L.P."), Remel Acquisition Co., a Wisconsin corporation (the "Buyer"), and
Riverside Partners, Inc. (the "Agent"). Hereinafter from time to time the
Moorman Children Trusts, RMLI, R/RLP, and Eriquez L.P. are collectively
referred to as the "Sellers"; and Chrisope L.C. and IDS L.P. are collectively
referred to as the "Operating Subsidiaries". The obligations of the Buyer
under this Agreement are guaranteed by Sybron International Corporation (the
"Guarantor") pursuant to a guarantee set forth at the end of this Agreement.
Introduction
The Remel Partners own in the aggregate one hundred percent (100%) of
the issued and outstanding partnership interests of the Company; R/RLP owns in
the aggregate one hundred percent (100%) of the issued and outstanding capital
stock of RMI; the Company and RMLI own in the aggregate one hundred percent
(100%) of the issued and outstanding limited liability company interests of
Chrisope L.C.; and the Company (directly and indirectly through its
wholly-owned subsidiary, IDS Management, Inc. ("IDS, Inc.", which together with
the Operating Subsidiaries are hereinafter collectively referred to as the
"Subsidiaries")) and Eriquez L.P. own in the aggregate one hundred percent
(100%) of the issued and outstanding partnership interests of IDS L.P.
The Sellers wish to sell, and the Buyer wishes to buy, all of such
partnership interests, limited liability company interests and capital stock,
for the purpose of acquiring the businesses conducted by the Company and the
Subsidiaries (collectively, the "Business"), on the terms and conditions set
forth herein.
<PAGE> 2
The guaranty provided by the Guarantor is a material inducement to the
Sellers to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF PARTNERSHIP INTERESTS,
CAPITAL STOCK AND LIMITED LIABILITY INTERESTS
Section 1.01. Purchase and Sale. Based on the representations,
warranties and covenants contained in this Agreement, and subject to the terms
and conditions hereof, at Closing (as hereinafter defined) the Sellers shall
sell, transfer, assign and deliver to the Buyer, and the Buyer shall purchase
from the Sellers (a) all of the Company's issued and outstanding partnership
interests, except that of RMI (the "Remel Partnership Interests"), (b) all of
the issued and outstanding capital stock of RMI, (c) all of the issued and
outstanding partnership interests of IDS L.P. which are owned by Eriquez L.P.
and (d) all of the issued and outstanding limited liability company interests of
Chrisope L.C. which are owned by RMLI (all of the interests and stock referred
to in clauses (a) through (d) being hereinafter referred to collectively as the
"Remel Entity Interests").
ARTICLE II
PURCHASE PRICE AND PAYMENT
Section 2.01. Purchase Price. The aggregate purchase price to be paid by
the Buyer for the Remel Entity Interests shall be the Final Purchase Price (as
hereinafter defined), which shall be payable as set forth below.
Section 2.02. Certain Definitions. For purposes of this Agreement, the
following terms shall have the meanings set forth below:
(a) "Base Purchase Price" means $155,000,000.
(b) "Closing Purchase Price" means the Base Purchase Price, adjusted
to reflect any adjustments set forth on the Estimated Purchase Price Certificate
(as defined in Section 2.03).
(c) "Final Purchase Price" means (i) the Base Purchase Price,
(ii) plus the amount, if any, by which Net Asset Value (as hereinafter defined)
exceeds $24,435,140 or less the amount, if
<PAGE> 3
any, by which Net Asset Value is less than $24,435,140, and (iii) plus the
amount of cash (the "Cash") held by the Company and its Subsidiaries
immediately prior to the Closing (whether positive or negative), determined in
accordance with generally accepted accounting principles, as shown on the Final
Balance Sheet.
(d) "Net Asset Value" means, with respect to the Company and the
Subsidiaries, on a consolidated basis, (i) the sum of current assets, deposits
(such as security deposits), downpayments for the purchase of assets, equipment
in process, property and equipment and other tangible assets, but excluding cash
(determined in accordance with generally accepted accounting principles), less
(ii) balance sheet liabilities (other than any portion of any indebtedness to be
paid pursuant to Section 2.04), determined as of immediately prior to the
Closing, as shown on the Final Balance Sheet and as finally determined in
accordance with Section 2.05. Net Asset Value shall be calculated in a manner
consistent with the calculation of net asset value as of December 31, 1996 which
is set forth on Schedule 2.02(d) hereto and, notwithstanding any generally
accepted accounting principle to the contrary, shall not reflect as a liability
or obligation the amount of the payment obligations under the Letter Agreements
referenced in footnotes 3, 4 and 5 of Schedule 4.16 hereto.
(e) "Final Balance Sheet" means a consolidated combined balance sheet
of the Company and the Subsidiaries as of immediately prior to the Closing,
prepared in accordance with generally accepted accounting principles on a basis
consistent with the procedures and principles used in the preparation of the
Balance Sheet (as hereinafter defined), as finally determined in accordance with
Section 2.05.
Section 2.03. Preparation of Pre-Closing Estimated Purchase Price
Certificate. At least three days before the Closing Date, the Sellers will
furnish to the Buyer an estimated Final Balance Sheet and the Sellers'
certificate (the "Estimated Purchase Price Certificate") setting forth
(a)_estimated Net Asset Value, (b) estimated Cash and (c) the Sellers' estimated
calculation of the Final Purchase Price.
Section 2.04. Payments at Closing. At the Closing, the Buyer shall make
the following payments from the Closing Purchase Price (up to an amount, in the
aggregate, equal to the Closing Purchase Price):
(a) to Heller Financial, Inc. ("Heller") in full satisfaction of the
Company's indebtedness thereto;
-3-
<PAGE> 4
(b) to RMLI in full satisfaction of the Company's indebtedness
thereto;
(c) to Chrisope Technologies, Inc. in full satisfaction of Chrisope
L.C.'s indebtedness thereto;
(d) to the holders of any other long-term indebtedness in full
satisfaction thereof, if applicable;
(e) $10,000,000 to a mutually acceptable escrow agent (which escrow
agent shall be a major commercial bank) to be held pursuant to an escrow
agreement in the form of Exhibit 2.04(e) hereto (the "Escrow Agreement") by and
among the Agent, the Buyer, and the escrow agent named therein; and
(f) the remainder to the Agent, as agent for the Sellers,
in each case by wire transfer of immediately available funds, and in the case
of funds wired pursuant to clause (f) above, the Agent will forward to each
Seller, such Seller's portion of the Closing Purchase Price (as set forth on
Schedule 2.04 hereto), but reduced by the amount which the Agent determines to
be necessary to pay expenses of and to reserve for any purchase price
adjustments relating to the transactions contemplated hereby, which amount will
be applied to pay such expenses and adjustments. Any excess amounts retained
by the Agent after payment of expenses will be forwarded to the Sellers who
would otherwise be entitled to receive such amounts.
Section 2.05. Determination of Final Purchase Price.
(a) Within 45 days after the Closing Date, the Sellers will deliver
to the Buyer: (i) their proposed Final Balance Sheet and (ii) a certificate (the
"Final Purchase Price Certificate"), executed by the Agent, stating that such
Final Balance Sheet was prepared as provided in Section 2.02 above and setting
forth (A) a reconciliation of the changes to the proposed Final Balance Sheet
from the estimated Final Balance Sheet, (B) Net Asset Value, (C) Cash and (D) a
computation of the Final Purchase Price.
(b) If the Buyer delivers written notice (the "Disputed Items
Notice") to the Agent within 30 days after receipt by the Buyer of the proposed
Final Balance Sheet and the Final Purchase Price Certificate, stating that the
Buyer objects to any items on the Final Purchase Price Certificate or the
proposed Final Balance Sheet, specifying the basis for such objection and
setting forth the Buyer's proposed modification to
-4-
<PAGE> 5
the Final Balance Sheet and computation of the Final Purchase Price, the Agent
and the Buyer will attempt to resolve and finally determine the Final Purchase
Price and agree on a Final Balance Sheet as promptly as practicable.
(c) If the Agent and the Buyer are unable to agree upon the Final
Purchase Price and Final Balance Sheet within 30 days after delivery of the
Disputed Items Notice, the Agent and the Buyer will select by lot an independent
"Big-6" accounting firm to resolve the disputed items and make a determination
of the Final Purchase Price and Final Balance Sheet. Such determination will be
made within 60 days after such selection and will be binding upon the parties.
The fees, costs and expenses of the accounting firm so selected will be borne by
the party whose positions generally did not prevail in such determination, or if
the accounting firm determines that neither party could be fairly found to be
the prevailing party, then such fees, costs and expenses will be borne 50% by
the Buyer and 50% by the Sellers.
(d) If the Buyer does not deliver the Disputed Items Notice to the
Agent within 30 days after receipt by the Buyer of the Final Purchase Price
Certificate, the Final Purchase Price specified in the Final Purchase Price
Certificate and the Final Balance Sheet will be conclusively presumed to be true
and correct in all respects and will be binding upon the parties.
(e) At such time as the Final Purchase Price is finally determined,
either (i) the Buyer shall pay to the Agent, for the account of the Sellers, an
aggregate amount equal to the excess of the Final Purchase Price over the
Closing Purchase Price, plus interest on such excess calculated from the Closing
Date at 8% per annum, or (ii) the Agent, on behalf of the Sellers, shall pay the
Buyer an amount equal to the excess of the Closing Purchase Price over the Final
Purchase Price, plus interest on such excess calculated from the Closing Date at
8% per annum.
(f) The Buyer shall make available to the Sellers and their
representatives at all times all books, records and personnel (including without
limitation the Company's chief financial officer) of the Company and the
Subsidiaries (including their outside auditors) in connection with the
preparation of the Final Balance Sheet and the determination of the Final
Purchase Price under this Section 2.05.
Section 2.06. Allocation. The Final Purchase Price shall be allocated
among the assets of the Company and the Subsidiaries as reflected on
Schedule 2.06. It is agreed by the parties that
-5-
<PAGE> 6
such allocation was arrived at by arm's-length negotiation and in the judgment
of the parties properly reflects the fair market value of such assets. It is
agreed that the allocations under this Section 2.06 will be binding on all
parties for federal, state, local and other tax purposes in connection with the
transactions contemplated by this Agreement, and will be consistently reflected
by each party on his or its tax returns.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
CONCERNING THE SELLERS
Each Seller hereby severally represents and warrants to the Buyer that each
of the statements contained in this Article III is true and correct as of the
date hereof:
Section 3.01. Title. Such Seller is the record and beneficial owner of
the Remel Entity Interests set forth on Schedules 4.02 and 4.03 as being owned
by such Seller. Such Seller will have at the Closing, good, marketable and
unencumbered title to the Remel Entity Interests to be sold by such Seller
hereunder and full legal right, power and authority to enter into this Agreement
and sell, transfer, assign and deliver such Remel Entity Interests as herein
agreed. Buyer will, on transfer and delivery of the Remel Entity Interests at
the Closing, acquire good and marketable title to such Remel Entity Interests,
free and clear of any liens, encumbrances, security interests, claims of other
persons or restrictions on transfer other than restrictions under generally
applicable securities laws and other than liens, encumbrances, security
interests, claims of other persons or restrictions on transfer caused by actions
of the Buyer. Such Seller has not granted any option or right, and is not a
party to any other agreement, which requires, or upon the passage of time or
payment of money, or occurrence of any other event, may require such Seller to
transfer any of the Remel Entity Interests being sold by such Seller to anyone
other than the Buyer except for security interests granted to Heller which shall
terminate at the Closing.
Section 3.02. Due Issuance. The Remel Entity Interests held by such
Seller are duly authorized, validly issued, and, in the case of the capital
stock of RMI, fully paid and nonassessable.
Section 3.03. Validity and Enforceability. This Agreement is, and each of
the other agreements and instruments of such Seller contemplated hereby will be,
the valid and binding obligations of such Seller, enforceable in accordance with
their
-6-
<PAGE> 7
respective terms. The execution and performance of this Agreement and the
other instruments and agreements contemplated hereby by such Seller will not
result in any violation of, be in conflict with or constitute a default under,
any law, statute, regulation, ordinance, or contract, agreement, instrument,
judgment, decree or order to which such Seller is a party or by which such
Seller is bound except for such violations, conflicts or defaults which are
not, individually or in the aggregate, material to the Company and its
Subsidiaries, taken as a whole.
Section 3.04. Authorizations or Approvals. No governmental
authorizations or approvals, other than those listed on Schedule 3.04, are
required to permit such Seller to fulfill all its obligations under this
Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
CONCERNING THE COMPANY, RMI AND THE SUBSIDIARIES
The Sellers hereby jointly and severally represent and warrant to the Buyer
that each of the statements contained in this Article IV is true and correct as
of the date hereof:
Section 4.01. Organization, Power and Standing.
(a) The Company is a limited partnership duly formed, validly
existing and in good standing under the laws of the State of Delaware. The
Company has full partnership power and authority to own, lease and operate its
properties and to carry on its business as such business is now conducted. True
and complete copies of the Certificate of Limited Partnership of the Company and
of the First Amended and Restated Agreement of Limited Partnership of the
Company, each as amended to date (the "Partnership Documents"), have been
delivered to the Buyer by the Sellers.
(b) RMI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. RMI has full corporate power
and authority to own, lease and operate its properties and to carry on its
business as such business is now conducted. True and complete copies of the
Certificate of Incorporation and Bylaws of RMI, each as amended to date (the
"RMI Charter Documents") have been delivered to the Buyer by the Sellers.
Section 4.02. Subsidiaries. Except as disclosed on Schedule 4.02, the
Company and RMI have no subsidiaries and do not, directly or indirectly, own or
have the right to acquire any
-7-
<PAGE> 8
equity interest in any other corporation, partnership, joint venture, trust or
other business organization, except in the ordinary course of business. The
record and beneficial owners of all of the issued and outstanding capital
stock, partnership interests and limited liability company interests, as
applicable, of each of the Subsidiaries is as listed on Schedule 4.02. Each of
the Subsidiaries is duly formed, validly existing and in good standing under
the laws of its state of organization, as set forth on Schedule 4.02. Each of
the Subsidiaries has full corporate or partnership power, as applicable, and
authority to own, lease and operate its properties and to carry on its portion
of the Business as such business is now conducted. There are no outstanding
options, warrants, convertible or exchangeable securities or other rights that
would obligate any Subsidiary to issue additional capital stock, partnership
interests or limited liability company interests, as applicable.
Section 4.03. Capitalization. Schedule 4.03 sets forth (a) a complete and
accurate list of the partners of the Company and their respective issued and
outstanding partnership interests in the Company and (b) a complete and accurate
list of the shareholders of RMI and their respective issued and outstanding
equity interests in RMI. Except as set forth on Schedule 4.03, there are no
outstanding options, warrants, convertible or exchangeable securities or other
rights that would obligate the Company or RMI to issue or purchase shares of its
partnership interests or capital stock, as applicable, or other securities.
Upon acquisition of the Remel Entity Interests hereunder, the Buyer will own,
directly or indirectly, one hundred percent (100%) of the (a) issued and
outstanding partnership interests of the Company, (b) issued and outstanding
capital stock of RMI, and (c) issued and outstanding capital stock, partnership
interests and limited liability company interests, as applicable, of the
Subsidiaries.
Section 4.04. Qualification in Foreign Jurisdictions. Schedule 4.04 sets
forth a complete and accurate list of each jurisdiction in which the Company and
each Subsidiary is duly qualified or licensed and in good standing as a foreign
corporation, limited partnership or limited liability company, as applicable,
duly authorized to do business and in which the character of the properties
owned or leased or the nature of the activities conducted by it makes such
qualification or licensing necessary, except for any jurisdiction(s) in which
the failure to so qualify would not materially and adversely affect the Company
and its Subsidiaries, taken as a whole.
-8-
<PAGE> 9
Section 4.05. Financial Statements.
(a) The Company has delivered to the Buyer audited, consolidated
balance sheets of the Company and its Subsidiaries as at December 31, 1995 and
December 31, 1996 (the "Balance Sheet Date", such consolidated balance sheet as
at the Balance Sheet Date being hereinafter referred to as the "Balance Sheet")
and audited, consolidated statements of income and changes in financial position
of the Company and its Subsidiaries for the years then ended. Such financial
statements and the notes thereto fairly present the financial condition of the
Company and its Subsidiaries at the respective dates thereof and the results of
operations for the periods then ended, and were prepared in accordance with the
books and records of the Company and its Subsidiaries in conformity with
generally accepted accounting principles consistently applied during the periods
covered thereby.
(b) To the knowledge of the Sellers, the Company and its Subsidiaries
have no material liabilities or indebtedness, contingent, absolute, accrued, or
otherwise, other than (i) as set forth on the Balance Sheet or to be set forth
on the Final Balance Sheet, (ii) as set forth on any Schedule to this Agreement,
(iii) to the extent arising in the ordinary course of the Business of the
Company and its Subsidiaries and not required to be set forth in any Schedule
hereto, (iv) taxes that are not yet due, (v) performance and payment obligations
incurred under agreements of the Company and its Subsidiaries which are not
required under generally accepted accounting principles to be set forth on the
Balance Sheet or the Final Balance Sheet, and (vi) obligations under applicable
law including Environmental Laws (as hereinafter defined).
Section 4.06. Absence of Certain Changes. Since the Balance Sheet Date,
(a) the Company and its Subsidiaries have conducted their respective businesses
only in the ordinary and usual course consistent with past practice and
(b) there has been no event, circumstance or condition relating specifically to
the Company or any Subsidiary (rather than to general economic conditions or
generally to the industries in which they operate) which materially and
adversely affects or is likely to materially and adversely affect the Company
and its Subsidiaries, taken as a whole.
Section 4.07. Taxes. The Buyer has been provided with true and correct
copies of the original and amended tax returns of the Company for all open
years. The Company and its Subsidiaries have prepared and filed when due all
federal, state and other tax and/or information returns required by law to be
filed and has
-9-
<PAGE> 10
paid when due all taxes, assessments and other governmental charges levied upon
any of its properties, assets, income or franchises shown to be due thereon,
other than those not yet delinquent. All such returns are true and correct in
all material respects. Neither the Company nor any Subsidiary has ever
executed any waiver that would have the effect of extending any applicable
statute of limitations in respect of any of its tax liabilities. The charges,
accruals and reserves on the books of the Company in respect of taxes for all
fiscal periods are adequate, and neither the Company nor any Seller knows of
any unpaid assessment or of any reasonable basis for the assessment against the
Company of any additional taxes, penalties or interest for any fiscal period or
any pending or threatened tax examination or audit by any federal, state or
local taxing authority. All taxes and other assessments and levies which the
Company is required by law to withhold or to collect for payment have been duly
withheld and collected and paid to the proper governmental entity, other than
any that if not withheld or collected or paid would not have a material adverse
effect on the Company and its Subsidiaries, taken as a whole. There are no tax
liens or claims pending or, to the knowledge of the Sellers, threatened against
the Company, its assets or property. There are no outstanding tax sharing
agreements or other such arrangements between the Sellers, the Company or any
other corporation or entity (other than the Subsidiaries).
Section 4.08. Personal Property, Etc. Except as listed on Schedule 4.08,
the Company and each Subsidiary has good and marketable title or a valid
leasehold or license interest in each item of personal property used primarily
by it in the Business, and which is material to the Company and its
Subsidiaries, taken as a whole, free and clear of any security interests or
encumbrances of every kind, nature and description, except for such as are not,
individually or in the aggregate, material to the Company and its Subsidiaries,
taken as a whole, and all material operating assets of the Company and each
Subsidiary are in good operating condition and repair, normal wear and tear
excepted. The assets and properties of the Company and its Subsidiaries are
adequate to conduct their respective operations as currently conducted. The
inventory to be included on the Final Balance Sheet will be current,
merchantable, usable, and as to finished goods, resalable at normal prices and
discounts in the ordinary course of business, excluding inventory which may
thereafter be written off in the ordinary course of business and consistent with
past practice. The quantity of said inventory on the Closing Date will be at a
level consistent with the past practice of the Business.
-10-
<PAGE> 11
Section 4.09. Real Property. The Company and/or its Subsidiaries have
good and marketable title to the real property listed on Schedule 4.09(a),
subject to liens and title imperfections shown on Schedule 4.09(a). Schedule
4.09(b) describes each interest in real property leased by the Company and its
Subsidiaries, including the lessor of such leased property, and identifies each
lease or any other arrangement under which such property is leased. The Company
and each Subsidiary enjoys peaceful and quiet possession of its leased premises
and has not received any notice asserting the existence of a default under any
such leasehold. The Company has not been informed that the lessor under any of
such leases has taken action or threatened to terminate the lease before the
expiration date specified in the lease. Except as shown on Schedule 4.09(b),
the transactions contemplated by this Agreement will not cause a default under
any such lease or entitle the lessor of any real property leased by the Company
or any Subsidiary to terminate the lease on such property prior to that
expiration date.
Section 4.10. Intellectual Property, Etc. Schedule 4.10 hereto sets forth
a list of all the material patents, trademarks, service marks, trade names,
copyrights, licenses, and royalty agreements and other rights with respect to
the foregoing (collectively, with any registrations and applications with
respect to the issuance or granting of any of the foregoing, the "Intellectual
Property") owned or used by the Company and its Subsidiaries. To the knowledge
of the Sellers, said Intellectual Property includes all material intellectual
property of the kinds specified above used in or necessary for the operation of
the Business. All Intellectual Property shown as registered in Schedule_4.10
has been properly registered, all pending registrations and applications have
been properly made and filed and all annuity, maintenance, renewal and other
fees relating to registrations or applications are current. The Company or its
Subsidiaries, as applicable, hold all interests in the Intellectual Property
purported to be owned by them, except to the extent that the failure to hold
such interests would not have a material adverse effect on the Company and the
Subsidiaries, taken as a whole. To the knowledge of the Sellers, neither the
Intellectual Property, the other assets of the Company or its Subsidiaries, nor
the Business infringes on any intellectual property rights of others, except to
the extent that any such infringement would not have a material adverse effect
on the Company and its Subsidiaries, taken as a whole. The Sellers know of no
facts which would render any of the Intellectual Property invalid or
unenforceable. Except as listed on Schedule 4.10 the Company has not been
notified of any material claim by any person that the Company or any Subsidiary
is violating any trademark,
-11-
<PAGE> 12
service mark, trade name or patent owned by any other person or that it is
using any name which is confusingly similar to that of any other person.
Section 4.11. Information Relating to Material Contracts and Commitments.
Schedule 4.11 hereto sets forth for the Company and its Subsidiaries a complete
and accurate list and compilation of all of the following contracts, agreements
(written or unwritten), and instruments, except those which will be terminated
at or before the Closing:
(a) contracts with respect to which the Company or any Subsidiary has
any liability or obligation, contingent or otherwise, involving more than
$100,000 or which place any material limitation on the method of conducting
or scope of the Company's business, including agreements containing
covenants not to compete other than purchase orders and similar commitments
and obligations for the purchase or sale of goods or services in the
ordinary course of business;
(b) contracts of the Company or any Subsidiary with partners,
officers, employees, agents and/or consultants of the Company or any
Subsidiary or the spouses or relatives of such persons involving annual
payments in excess of $75,000;
(c) agreements, contracts or instruments of the Company or any
Subsidiary relating to the borrowing of money, or the guaranty of any
obligation for the borrowing of money;
(d) agreements relating to any securities of the Company or any
Subsidiary or rights in connection therewith;
(e) contracts and other agreements for the sale of any of the
Company's or any Subsidiary's material assets or properties other than in
the ordinary course of business; and
(f) contracts otherwise material to the Company and/or its
Subsidiaries.
All of the foregoing are herein called "Material Contracts." Except as set
forth in Schedule 4.11, there have been no material amendments or side or
supplemental arrangements to or in respect of any Material Contract. The
Company has made available to the Buyer true and correct copies of all Material
Contracts. Each Material Contract is valid and in full force and effect as to
the Company and the Subsidiaries, as applicable, and, to the knowledge of the
Sellers, each other party thereto, and the Company and the Subsidiaries, as
applicable, have performed all
-12-
<PAGE> 13
material obligations required to be performed by them thereunder. Except as
set forth on Schedule 4.11, neither the Company nor any Subsidiary is in
material default under or in breach or violation of any material term of any
Material Contract, and the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not result in any
such default, breach or violation of any Material Contract or give any party
the right to terminate any Material Contract. To the knowledge of the Sellers,
no third party is in material default under any material provision of any
Material Contract.
Section 4.12. Litigation. Except as disclosed on Schedule 4.12, there is
not now nor has there been since January 1, 1995 (or, in the case of each
Subsidiary, the date (if later) on which such Subsidiary was acquired by the
Company), any litigation pending or, to the knowledge of the Sellers, threatened
against the Company or any Subsidiary, other than any which has not had or would
not have a material adverse effect on the Company and its Subsidiaries, taken as
a whole.
Section 4.13. Required Consents, Etc. Except as set forth on Schedule
4.13, no consent, order, approval, authorization, declaration or filing,
including, without limitation, any consent, approval or authorization of or
declaration or filing with any governmental authority, is required on the part
of the Company for or in connection with the execution and delivery of this
Agreement or sale of the Remel Entity Interests pursuant hereto, except for
those which, if not obtained, would not have a material adverse effect on the
Company and its Subsidiaries, taken as a whole.
Section 4.14. Licenses and Permits. Schedule 4.14 hereto sets forth a
list of all licenses, permits and authorizations of governmental authorities
held by the Company or any Subsidiary which are material to their businesses
(collectively, the "Authorizations"). The Company and its Subsidiaries are in
material compliance with all Authorizations, and all of the Authorizations are
in full force and effect.
Section 4.15. Compliance with Law. The Company, its Subsidiaries, and
their respective products and operations are in compliance with all foreign,
federal, state or local statutes, laws, ordinances, judgments, decrees, orders
or governmental rules, regulations, policies, specifications, permits,
approvals, registrations, requirements and guidelines applicable to them, except
where noncompliance would not have a material adverse effect on the Company and
its Subsidiaries, taken as a whole (and except as to Environmental Laws, which
are referred to in Section 4.21). The Company and its Subsidiaries have paid
when
-13-
<PAGE> 14
due all applicable fees, renewals, reports, and other similar obligations with
respect to their Business operations and their products. Neither the Company
nor any Subsidiary has received any deficiency notice that the Business or its
products do not satisfy any material requirements under any law, including
those relating to good manufacturing practices, device listing, establishment
registration, product and/or label registration, and product marketing
clearance.
Section 4.16. Employees and Compensation.
(a) Except as described on Schedule 4.16(a) hereto, no employees of
the Company, RMI or any Subsidiary are represented by any union; and to the
knowledge of the Sellers, there is no labor strike, slowdown, stoppage or
organizational effort pending or, threatened against the Company, RMI or any
Subsidiary.
(b) Schedule 4.16(b) sets forth (i) a true and correct list of the
name and current annual salary of each officer or employee of the Company, RMI
or any Subsidiary whose annual cash compensation exceeds $75,000 and (ii) any
other form of compensation (other than salary or customary benefits) paid or
payable by the Company, RMI or any Subsidiary to each such person for the
current fiscal year.
Section 4.17. Benefit Plans.
(a) Schedule 4.17 hereto sets forth all material employee benefit
plans, agreements and arrangements of any type (including, but not limited to,
plans described in Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA")) maintained by the Company, RMI or any Subsidiary
for the benefit of employees of the Company, RMI or any Subsidiary, or with
respect to which the Company, RMI or any Subsidiary has a material liability
(including, but not limited to, liabilities arising from affiliation under
Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended
(the "Code") or Section 4001 of ERISA) (the "Benefit Plans").
(b) With respect to each Benefit Plan, the Company has made available
to Buyer true and complete copies of: (i) any and all plan texts and
agreements; (ii) any and all summary plan descriptions and material
modifications thereto; (iii) the two most recent annual reports, if applicable;
(iv) the most recent annual and periodic accounting of plan assets, if
applicable; and (v) the most recent determination letter received from the
Internal Revenue Service (the "Service"), if applicable.
-14-
<PAGE> 15
(c) Except as set forth on Schedule 4.17, with respect to each
Benefit Plan: (i) such plan has been administered and enforced in accordance
with its terms and all applicable laws in all material respects; (ii) no breach
of fiduciary duty has occurred with respect to which the Company, RMI, any
Subsidiary, or any Benefit Plan may be liable or otherwise damaged in any
material respect; (iii) no material disputes are pending or threatened; and (iv)
no "prohibited transaction" (within the meaning of either Section 4975(c) of the
Code or Section 406 of ERISA) has occurred with respect to which the Company,
RMI, any Subsidiary, or any Benefit Plan may be liable or otherwise damaged in
any material respect.
(d) Except as set forth on Schedule 4.17, no Benefit Plan is subject
to Title IV of ERISA.
Section 4.18. Banking Relations; Powers of Attorney. All material
arrangements which the Company or any Subsidiary has with any banking
institution are described on Schedule 4.18 indicating with respect to each of
such arrangements the type of arrangement maintained and the person or persons
authorized in respect thereof. Neither the Company nor any Subsidiary has
granted a power of attorney or other banking authority to any person except as
indicated on Schedule 4.18.
Section 4.19. Insurance. The Company, its Subsidiaries and their
respective businesses, properties and/or employees are insured under the
insurance policies listed on Schedule 4.19, all of which are valid and in full
force.
Section 4.20. Brokers. Except for Goldman (whose fee will be borne by the
Sellers), the Company, its Subsidiaries and the Sellers have not dealt with any
broker, finder or similar agent with respect to the transactions contemplated by
this Agreement, and neither the Sellers, the Company nor its Subsidiaries are
under any obligation to pay any broker's fee, finder's fee or commission in
connection with the transactions contemplated by this Agreement as a result of
any agreement of the Sellers, the Company or its Subsidiaries.
Section 4.21. Compliance with Environmental Laws. Except as set forth on
Schedule 4.21:
(a) All of the Company's and its Subsidiaries' current operations
are, and have been at all times, in compliance with all Environmental Laws (as
hereinafter defined), except where any failure to comply would not have a
material adverse effect on the Company and the Subsidiaries, taken as a whole.
There are no past or present (or, to the knowledge of Sellers, future) events,
-15-
<PAGE> 16
conditions, circumstances, activities, practices, incidents, actions, omissions
or plans (i) which, in connection with the Business, may interfere with or
prevent material compliance or continued material compliance with Environmental
Laws or with any order issued, entered, promulgated or approved thereunder, or
(ii) which may subject the Company to damages (including liability under
CERCLA), penalties, injunctive relief, or cleanup costs under any Environmental
Laws or pursuant to any third-party claim, or which require or are likely to
require reporting, cleanup, removal, remedial action, or other response
pursuant to Environmental Laws or a third party claim. The Company and its
Subsidiaries have obtained all permits, licenses and authorizations required
under applicable Environmental Laws, and the Company and its Subsidiaries and
their respective operations are in compliance with the terms and conditions of
any required permits, licenses and authorizations, in each case except where
any failure would not have a material adverse effect on the Company and the
Subsidiaries, taken as a whole.
(b) None of the Company's and its Subsidiaries' operations have
involved the use, handling, manufacture, treatment, processing, storage,
generation, release, discharge dumping or disposal of any Hazardous Substances
(as hereinafter defined), except in compliance in all material respects with all
applicable Environmental Laws, in each case except where any failure to comply
would not have a material adverse effect on the Company and the Subsidiaries,
taken as a whole.
(c) There is no pending or, to the knowledge of the Sellers,
threatened Environmental Claim (as hereinafter defined) against the Company or
any Subsidiary.
(d) There has been no release by the Company or its Subsidiaries of
any Hazardous Substances at, on or under any property owned or leased by them
which would have a material adverse effect on the Company and its Subsidiaries,
taken as a whole, or would require cleanup or remedial action under
Environmental Laws.
(e) To the knowledge of the Sellers, there are no underground storage
tanks, active or abandoned, on or under any property leased or owned by the
Company or its Subsidiaries.
(f) The Company and the Subsidiaries possess all permits, licenses,
and approvals, if any, required under applicable Environmental Laws in
connection with the conduct of the Business, except those which the failure to
possess would not have a material adverse effect on the Company and its
Subsidiaries, taken as a whole.
-16-
<PAGE> 17
(g) To the knowledge of the Sellers, no off-site location at which
the Company or any Subsidiary has disposed or arranged for the disposal of any
waste is listed on the National Priorities List or on any comparable state list
and neither the Company nor any Subsidiary has received any written notice with
respect to any off-site location, or potential or actual liability or a written
request for information under or relating to CERCLA or any comparable state or
local law.
As used herein, the following terms shall have the meanings indicated
below:
"CERCLA" shall mean the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, 42 U.S.C.A. Section 9601, et seq., and
the rules, regulations and orders promulgated thereunder.
"Environmental Laws" shall mean all federal, state, local, and other
applicable statutes, regulations, rules, codes, ordinances, restrictions,
requirements, orders, decrees, or consents relating to the Environment or the
use, disposal, existence, or release of any Hazardous Substances, including but
not limited to any and all laws concerning, affecting, controlling, or directly
relating to, whether in whole or in part, air pollutants, water pollutants,
process waste water, or Hazardous Substances.
"Environment" shall mean soil, surface waters, groundwaters, land, surface
or subsurface strata and ambient air.
"Hazardous Substances" shall mean any substance which is a "hazardous
substance", "hazardous waste", "toxic substance", "toxic waste", "pollutant",
"contaminant" or words of similar import under any Environmental Law, including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. Section 9601 et seq.), the Resource Conservation and
Recovery Act (42 U.S.C. Section 6901 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act (42 U.S.C.
Section 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. 2601, et
seq.), the Hazardous Materials Transportation Act (49 U.S.C. 1801, et seq.), the
Occupational Safety and Health Act (29 U.S.C. 651 et seq.), and including
without limitation, which contains polychlorinated biphenyl, asbestos, or
gasoline, diesel fuel or other petroleum hydrocarbons or volatile organic
compounds.
"Environmental Claim" shall mean any litigation, claim, proceeding, order,
directive, summons, complaint or citation, from any governmental authority or
any third person relating to
-17-
<PAGE> 18
Environmental Laws or Hazardous Substances.
For purposes of this Section 4.21, the terms "Company" and "Subsidiaries"
include, where appropriate, the predecessors to said entities.
Section 4.22. Products.
(a) The products of the Business meet in all material respects the
product and/or process specifications (including product testing procedures)
that they purport or are required to meet.
(b) The products of the Business satisfy and possess in all material
respects applicable governmental agency requirements, including registration,
notice, and label requirements.
(c) All instances of product warranty and product liability claims
involving amounts in excess of $15,000 per occurrence (and all product recalls
regardless of amount) that have occurred and for which notice has been received
by the Company or any Subsidiary within the past three years (or, in the case of
each Subsidiary, since the date (if later) on which such Subsidiary was acquired
by the Company) are listed on Schedule 4.22(c) hereto.
(d) Sellers know of no existing facts or circumstances that would
likely cause a material product warranty claim or product liability matter to
occur prior to or after the Closing Date.
Section 4.23. Disclosure. The representations and warranties of the
Sellers contained in this Agreement and the information included in the
Schedules hereto, taken as a whole, do not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements contained herein and therein complete and not misleading as of the
dates thereof in light of the circumstances in which they were made.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
The Buyer hereby represents and warrants to the Sellers that each of the
statements contained in this Article V is true and correct:
-18-
<PAGE> 19
Section 5.01. Organization, Power and Standing. The Buyer is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Wisconsin with all requisite power and authority (corporate and
otherwise) to own its properties and to carry on its business as such business
is now conducted and presently proposed to be conducted.
Section 5.02. Power and Authority Relative to Transaction. The Buyer has
full corporate power and authority and has taken all required action necessary
to permit it to execute and deliver and to carry out the terms of this Agreement
and all other documents or instruments required hereby and none of such actions
will violate any provision of law or of the Certificate of Incorporation, as
amended, or by-laws of the Buyer or will result in any breach of any agreement,
mortgage, instrument, order or judgment to which the Buyer is a party or by
which its assets may be bound.
Section 5.03. Valid and Binding Obligation. This Agreement constitutes,
and each other instrument or agreement to be executed and delivered by the Buyer
in accordance herewith will constitute, the valid and legally binding obligation
of Buyer, enforceable against it in accordance with their respective terms.
Section 5.04. Brokers. The Buyer has not dealt with any broker, finder or
similar agent with respect to the transactions contemplated by this Agreement.
Section 5.05. Investment Representations.
(a) The Buyer is acquiring the Remel Entity Interests for its own
account for investment only, and not with a view to, or for sale in connection
with, any distribution of the Remel Entity Interests in violation of the
Securities Act of 1933, as amended (the "Securities Act"), any rule or
regulation under the Securities Act, or any state securities laws.
(b) The Buyer has had such opportunity as it has deemed adequate to
obtain from management of the Company such information about the business and
affairs of the Company as is necessary to permit the Buyer to evaluate the
merits and risks of its investment in the Company and its Subsidiaries.
(c) The Buyer has sufficient experience in business, financial and
investment matters to be able to evaluate the merits and risks involved in the
purchase of the Remel Entity Interests and to make an informed investment
decision with respect to such purchase.
-19-
<PAGE> 20
(d) The Buyer understands that the Remel Entity Interests have not
been registered under the Securities Act and are therefore "restricted
securities" within the meaning of Rule 144 under the Securities Act, and the
Remel Entity Interests cannot be sold, transferred or otherwise disposed of
unless they are subsequently registered under the Securities Act or an exemption
from registration is then available.
Section 5.06. Financing. The Buyer will have sufficient funds to
consummate the transactions contemplated by this Agreement.
ARTICLE VI
COVENANTS
Section 6.01. Access to Information; Confidentiality.
(a) The Sellers shall, and shall cause the Company and its
Subsidiaries to, permit the Buyer and its counsel, accountants and other
representatives access, upon reasonable notice and during normal business hours
throughout the period prior to the Closing, to the properties, books and records
of the Company and its Subsidiaries and to the following employees: Dale T.
Moorman, Edward Sztukowski, Mary Nichols, Daniel Clark, Robert Taylor, Darrell
Spencer and Louis Eriquez. Any such access shall be subject to such reasonable
limitations as the Sellers may require to prevent disclosure of the transactions
contemplated hereby.
(b) The confidentiality agreement between the Guarantor and the
Company dated November 13, 1996 shall remain in full force and effect and shall
be applicable to the Buyer and enforceable by the Sellers.
Section 6.02. Conduct of Business. Between the date of this Agreement and
prior to the Closing, unless the Buyer shall otherwise consent in writing:
(a) Required Actions. The Sellers shall cause the Company, RMI and
each Subsidiary to do the following:
(i) maintain their respective partnership, corporate and limited
liability company existences; and
(ii) conduct their businesses only in the ordinary course
consistent with past practice.
-20-
<PAGE> 21
(b) Prohibited Actions. The Sellers shall not permit the Company,
RMI or any Subsidiary to do any of the following:
(i) effect any material amendment to the Partnership Documents,
the RMI Charter Documents or the respective organizational
documents of the Subsidiaries;
(ii) acquire or dispose of any material properties or assets
except in the ordinary course of business consistent with
past practice; or
(iii) subject any of their properties or assets to any additional
material mortgage, pledge, security interest or lien.
Section 6.03. Consents and Approvals. The Sellers and the Buyer shall
cooperate and use all reasonable efforts to obtain all governmental and
regulatory approvals and actions necessary to consummate the transactions
contemplated hereby which are required to be obtained by applicable law or
regulations or otherwise. The Sellers and the Company shall use diligent
efforts to obtain all consents to the transactions which are subject to this
Agreement which are required by any of the agreements or leases listed on
Schedules 4.11 and 4.13. If and when reasonably requested by the Buyer, the
Sellers shall cooperate with the Buyer to assist Buyer in obtaining consents it
may need in the future in connection with a proposed reorganization of the
Buyer.
Section 6.04. HSR Act Filings. To the extent required in connection with
the transactions contemplated by this Agreement, each of the Buyer and the
Sellers shall promptly (and in any event no later than 10 days after the date
hereof) make any and all required filings under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), and will request early
termination of the waiting period required under the HSR Act. The parties agree
to cooperate and promptly respond to any inquiries or investigations initiated
by the Federal Trade Commission or the Department of Justice in connection with
any such filings.
Section 6.05. Resignations. If so requested by the Buyer at least five
(5) days prior to Closing, the Sellers shall cause each officer and member of
the Board of Directors of RMI and IDS Management, Inc. to tender his or her
resignation as such director or officer effective as of the Closing.
-21-
<PAGE> 22
Section 6.06. Reasonable Efforts. All parties hereto agree to use all
reasonable good faith efforts to obtain the satisfaction of the conditions
specified in this Agreement necessary to consummate the transactions
contemplated hereby.
Section 6.07. Publicity. All general notices, releases, statements and
communications to employees, suppliers, and customers of the Business and to the
general public and the press relating to the transactions contemplated by this
Agreement shall be made only at such times and in such manner as may be mutually
agreed upon by Buyer and Sellers; provided, however, that any party shall be
entitled to make a public announcement of the proposed transactions if, in the
opinion of its counsel, such announcement is required to comply with any law or
any rule or regulation of any securities exchange or securities quotation system
and such party shall, to the extent practicable, consult with the other party
with respect to such announcement and give reasonable prior notice of its intent
to issue such an announcement; and further provided, that no such announcement
will include information about the amount of the purchase price hereunder except
for any such announcement which (a) is made after the Closing Date or (b) if
made prior to the Closing Date, is required to be disclosed in connection with
the filing of a Form 10-Q with the Securities and Exchange Commission.
Section 6.08. Environmental Investigation. The Sellers will allow the
Buyer to conduct environmental site assessments on the Company's and the
Subsidiaries' real property under the terms of an access agreement in the form
attached hereto as Exhibit 6.08.
ARTICLE VII
CONDITIONS TO CLOSING
Section 7.01. Conditions Precedent to Buyer's Obligations. The obligation
of Buyer to purchase the Remel Entity Interests is expressly subject to the
fulfillment or express written waiver of the following conditions on or prior to
the Closing Date:
(a) Representations and Warranties True; Obligations Performed.
Each of the representations and warranties contained in Articles III and IV
shall be true and correct in all material respects at and as of the Closing, the
Sellers shall have performed in all material respects, on or before the Closing
Date, all obligations contained in this Agreement which by the terms hereof are
to be performed by Sellers on or before the Closing Date, and the Buyer shall
have received a certificate signed by the Sellers to such effect.
-22-
<PAGE> 23
(b) Required Consents. The Sellers will have obtained all consents
to the transactions which are the subject of this Agreement which are required
by any of the agreements or leases listed on Schedules 4.11 and 4.13 and marked
on such Schedules with an asterisk.
(c) No Injunction, etc. There will not be any order of any court
or governmental agency restraining or invalidating the transactions which are
the subject of this Agreement or any pending or threatened litigation to such
effect or seeking damages from the Buyer or the Company if the transactions
which are the subject of this Agreement are completed.
(d) Legal Opinions from Counsel for Sellers. Buyer shall have
received the written opinion of Choate, Hall & Stewart, counsel for the Company
and the Sellers, dated as of the Closing Date and in the form of Exhibit 7.01(d)
(the "Choate Hall Opinion").
(e) HSR Act. The waiting period under the HSR Act applicable to
the transactions contemplated by this Agreement shall have expired.
(f) Actions at Closing. The actions and deliveries contemplated by
Section 8.02 shall have been fulfilled.
Section 7.02. Conditions Precedent to Sellers' Obligations. The
obligation of the Sellers to sell the Remel Entity Interests is subject to the
fulfillment of the following conditions on or prior to the Closing Date:
(a) Representations and Warranties True; Obligations Performed.
Each of the representations and warranties of the Buyer contained in Article V
shall be true and correct in all material respects at and as of the Closing, the
Buyer shall have performed, on or before the date of Closing, all obligations
under this Agreement which by the terms hereof are to be performed by Buyer on
or before the date of Closing, and the Sellers shall have received a certificate
signed by an authorized officer of Buyer to such effect.
(b) Legal Opinion from Counsel for Buyer. Sellers shall have
received the written opinion of Quarles & Brady, counsel for Buyer, dated the
Closing Date, in form of Exhibit 7.02(b) hereto (the "Buyer's Counsel Opinion").
(c) No Injunction, etc. There will not be any order of any court
or governmental agency restraining or invalidating the transactions which are
the subject of this Agreement or any
-23-
<PAGE> 24
pending or threatened litigation to such effect or seeking damages from any
Seller or the Company if the transactions which are the subject of this
Agreement are completed.
(d) HSR Act. The waiting period under the HSR Act applicable to
the transactions contemplated by this Agreement shall have expired.
(e) Actions at Closing. The actions and deliveries contemplated by
Section 8.03 shall have been fulfilled.
ARTICLE VIII
CLOSING
Section 8.01. Date and Place of Closing. The consummation of the
transactions contemplated hereby (the "Closing") shall be held at 10:00 a.m. on
April 30, 1997 or such later date as is seven (7) days after all conditions to
Closing contemplated by this Agreement have been satisfied or waived, at the
offices of Choate, Hall & Stewart, Exchange Place, 53 State Street, Boston,
Massachusetts or at such other time and place as the parties may mutually agree
in writing (the "Closing Date").
Section 8.02. Deliveries at Closing by the Sellers. At the Closing,
provided the Buyer has fully performed its obligations hereunder, Sellers shall
deliver or cause to be delivered to Buyer the following:
(a) amendments to the Partnership Documents whereby the Remel
Partnership Interests are transferred to Buyer;
(b) certificates representing all of the issued and outstanding
shares of capital stock of RMI, duly endorsed for transfer or with duly
executed stock powers attached, together with a new certificate or
certificates duly issued in the name of the Buyer representing all of the
shares of such capital stock;
(c) amendments to the Agreement of Limited Partnership of IDS L.P.
whereby all of such Subsidiary's issued and outstanding partnership
interests held by Eriquez L.P. are transferred to the Buyer;
(d) amendments to the Operating Agreement of Chrisope L.C. whereby
all of such Subsidiary's issued and outstanding limited liability company
interests held by RMLI are transferred to the Buyer;
-24-
<PAGE> 25
(e) the Choate Hall Opinion;
(f) a release and waiver from Dale T. Moorman with respect to his
employment and employment agreement with the Company;
(g) a release and waiver from Edward Sztukowski with respect to
options to acquire partnership interests in the Company;
(h) a five year noncompetition agreement, in form and substance
reasonably acceptable to Buyer, from Dale T. Moorman (it being agreed that
the form set forth in his employment agreement with the Company qualified
by the proviso set forth in Section 12.12 would be acceptable);
(i) the Escrow Agreement; and
(j) such other instruments of transfer or other ancillary closing
documents as the Buyer or its counsel may reasonably request.
Section 8.03. Deliveries at Closing by Buyer. At the Closing, provided
Sellers have fully performed all of their obligations hereunder, Buyer shall
deliver or cause to be delivered to Sellers the following:
(a) payment of the Closing Purchase Price as provided in
Section 2.02;
(b) certified copies of resolutions duly adopted by the Buyer's
Board of Directors approving and authorizing the transactions provided for
in this Agreement, the execution hereof and the performance of all acts
required herein, accompanied by an appropriate certificate of incumbency;
(c) the Buyer's Counsel Opinion;
(d) the Escrow Agreement; and
(e) such ancillary closing documents as the Sellers or their counsel
may reasonably request.
-25-
<PAGE> 26
ARTICLE IX
FURTHER ASSURANCES
Section 9.01. Further Assurances. Following the Closing, the Sellers
shall execute and deliver to the Buyer such documents and take such other
actions as the Buyer may reasonably request in order to consummate more
effectively the transactions contemplated hereby and to vest in the Buyer good
title to the Remel Entity Interests being transferred hereunder.
ARTICLE X
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
Section 10.01. Survival. The Sellers and the Buyer agree that the
representations and warranties contained in this Agreement shall survive the
Closing for a period of twelve (12) months, and no claim for indemnification
resulting from the breach of any representation, warranty, covenant or agreement
set forth herein or in any certificate delivered pursuant hereto shall be made
more than twelve (12) months after the Closing Date.
Section 10.02. Indemnification of Buyer. Subject to Section 10.01, the
Sellers agree to indemnify the Buyer and hold it harmless against and in respect
of any and all payments, damages, claims, demands, losses, expenses, costs,
obligations and liabilities, including without limitation reasonable attorneys'
fees (collectively, "Losses") which arise or result from any breach of any of
the Sellers' representations or warranties contained herein or in any
certificate delivered pursuant hereto or the failure of the Sellers to perform
any of their covenants or agreements contained herein or in any certificate
delivered pursuant hereto. Notwithstanding the foregoing,
(a) the Sellers shall have no obligation to make indemnification
payments hereunder that exceed in the aggregate (i) $10,000,000;
(b) the Sellers shall have no obligation to indemnify or hold harmless
the Buyer with respect to any single Loss which is less than $100,000 (it being
agreed upon that notwithstanding the terms "material" and "material taken as a
whole", any Loss in excess of $100,000 shall be an indemnifiable Loss, subject
to the other limitations contained herein);
-26-
<PAGE> 27
(c) the Sellers shall have no obligation to indemnify or hold harmless
the Buyer except to the extent that the aggregate amount of Losses incurred by
the Buyer (excluding Losses for which indemnification would not be available as
a result of clause (b) above) exceeds $1.5 million (subject to the other
limitations contained in this Article X);
(d) each Seller shall be liable severally, and not jointly, for all
Losses arising out of any breach of such Seller's representations and warranties
contained in Article III, for an amount not to exceed such Seller's pro rata
share of the aggregate indemnification obligation set forth in
Subsection 10.02(a), provided that each Seller shall be liable severally, and
not jointly, for all Losses arising out of any breach of the representations and
warranties contained in Section 3.01 and the first sentence of Section 3.03 for
an amount not to exceed such Seller's pro rata share of the Final Purchase
Price;
(e) the Sellers shall not be obligated to indemnify or hold harmless
the Buyer with respect to Losses relating to Environmental Laws, Environmental
Claims or any breach of the representations and warranties contained in Section
4.21, except to the extent such Losses represent amounts actually incurred by
the Buyer for the performance of remedial action or the payment of any fine,
penalty or damage award in each case ordered by any court or governmental agency
or in reasonable settlement of a claim of noncompliance with any Environmental
Laws asserted by any governmental agency or other third party (and related
out-of-pocket fees and expenses);
(f) the Sellers shall not be obligated to indemnify or hold harmless
the Buyer with respect to Losses arising out of breaches of the representations
or warranties of the Sellers known by the Buyer at or prior to the date of this
Agreement;
(g) except for amounts referred to in the proviso to Subsection
10.02(d), the sole source for payment of any amounts payable by the Sellers in
respect of indemnifiable Losses shall be the amount held by the Escrow Agent
under the Escrow Agreement.
In determining the foregoing thresholds and in otherwise determining the amount
of any Losses for which the Buyer is entitled to assert a claim for
indemnification, the amount of any such Losses shall be determined after
deducting therefrom the amount of any insurance proceeds or other third party
recoveries received by the Buyer, the Company or any Subsidiary in respect of
such Losses (which recoveries the Buyer agrees to use diligent
-27-
<PAGE> 28
efforts to obtain) and the amount of any net tax benefit related thereto. If
an indemnification payment is received by the Buyer, and the Buyer, the Company
or any Subsidiary later receives insurance proceeds, other third party
recoveries, or net tax benefits in respect of the related Losses, the Buyer
shall immediately pay to the Agent, for the account of the Sellers that made
such indemnification payment, a sum equal to the lesser of (i) the actual
amount of insurance proceeds, other third party recoveries, or net tax benefit
or (ii) the actual amount of the indemnification payment previously paid by the
Sellers with respect to such Losses.
Section 10.03. Indemnification of Sellers. Subject to Section 10.01,
Buyer agrees to indemnify the Sellers and hold the Sellers harmless against and
in respect of any and all damages, claims, losses, expenses, costs, obligations
and liabilities (including reasonable attorneys' fees) which arise or result
from or are related to any breach or inaccuracy of any of Buyer's
representations and warranties, or the failure of the Buyer to perform any of
its commitments, obligations, covenants or conditions hereunder.
Section 10.04. Procedure for Indemnification. Any party making a claim
for indemnification hereunder shall notify the indemnifying party of the claim
in writing, describing the claim, the amount thereof, and the basis therefor.
The party from whom indemnification is sought shall respond to each such claim
within 30 days of receipt of such notice. No action shall be taken pursuant to
the provisions of this Agreement or otherwise by the party seeking
indemnification until the later of (a) the expiration of the 30-day response
period (unless reasonably necessary to protect the rights of the party seeking
indemnification), or (b) 30 days following the termination of the 30-day
response period if a response received within such 30-day period by the party
seeking indemnification requested an opportunity to cure the matter giving rise
to indemnification (and, in such event, the amount of such claim for
indemnification shall be reduced to the extent so cured within such 30-day cure
period). If such demand is based on a claim by a third party, the indemnifying
party shall have the right to assume the entire control of the defense thereof,
including at its own expense, employment of counsel reasonably satisfactory to
the indemnified party, and, in connection therewith, the party claiming
indemnification shall cooperate fully to make available to the defending party
all pertinent information under its control and shall not thereafter be
indemnified for the cost of any counsel retained by it in connection with such
claim. No such third party claim, demand, action, or proceeding shall be
settled without the prior written consent of Buyer and Sellers. If a
-28-
<PAGE> 29
firm written offer is made to settle any such third party claim, demand,
action, or proceeding and Buyer or Sellers refuse to consent to such
settlement, then: (i) the "consenting party" shall be excused from, and the
"nonconsenting party" shall be solely responsible for, all further defense of
such third party claim, demand, action, or proceeding; and (ii) the maximum
liability of the "consenting party" relating to such third party claim, demand,
action, or proceeding shall be the amount for which said party would have been
liable had both parties consented to the settlement (subject to the limits
contained in Section 10.02 hereof).
Section 10.05. Remedies Exclusive. The remedies provided in this Article
X shall be the exclusive remedies of the parties hereto after the Closing in
connection with, arising out of, or related to this Agreement and the
transactions contemplated hereby, including without limitation the purchase and
sale hereunder of the Remel Entity Interests.
ARTICLE IX
TERMINATION
Section 11.01. Termination. Notwithstanding anything contained in this
Agreement to the contrary, this Agreement may be terminated:
(a) by mutual written consent of Buyer and Sellers;
(b) by the Buyer, if the Sellers shall have breached or failed to
perform in any material respect any of the their obligations, covenants or
agreements under this Agreement, or if any of the representations and warranties
of the Sellers set forth in this Agreement shall not be true in any material
respect, and such breach, failure or misrepresentation is not cured to the
Buyer's reasonable satisfaction within thirty (30) days after the Buyer gives
the Sellers written notice identifying such breach, failure or
misrepresentation;
(c) by the Sellers, if the Buyer shall have breached or failed to
perform in any material respect any of its obligations, covenants or agreements
under this Agreement, or if any of the representations and warranties of the
Buyer set forth in this Agreement shall not be true in any material respect, and
any such breach, failure or misrepresentation is not cured to the Sellers'
reasonable satisfaction within ten (10) days after Sellers give the Buyer
written notice identifying such breach, failure or misrepresentation;
-29-
<PAGE> 30
(d) by the Buyer, if the conditions set forth in Section 7.01
become incapable of satisfaction;
(e) by the Sellers, if the conditions set forth in Section 7.02
become incapable of satisfaction; or
(f) by either the Buyer or the Sellers if the Closing has not
occurred by July 31, 1997, or such other date, if any, as the Buyer and the
Sellers may agree in writing.
Section 11.02. Effect of Termination.
(a) If this Agreement is terminated (i) under Section 11.01(a) or
(ii) under Sections 11.01(d), (e) or (f) at a time when no party is in breach of
a representation or warranty or in violation of a covenant or agreement
contained herein, all further obligations of the Sellers to the Buyer and of the
Buyer to the Sellers will terminate without further liability of any party
hereto.
(b) If this Agreement is terminated under Section 11.01(b), (c),
(d), (e) or (f) at a time when one or more parties is in breach of a
representation or warranty or in violation of a covenant or agreement contained
in this Agreement, the liabilities and obligations of the parties not in breach
or violation of this Agreement shall terminate, and the party or parties which
are in breach or violation of this Agreement shall remain liable for such
breaches and violations, and nothing contained herein shall be deemed to
restrict the remedies available against such party or parties.
(c) The obligations of the Buyer under Section 6.01(b) shall
survive the termination of this Agreement.
ARTICLE XII
MISCELLANEOUS
Section 12.01. Notices. All notices to a party hereunder shall be deemed
to have been adequately given if delivered in person (in a manner through which
delivery may be verified) or sent by nationally recognized overnight delivery
service or mailed, certified mail, return receipt requested, to such party at
its address set forth below (or such other address as it may from time to time
designate in writing to the other parties hereto):
To the Sellers:
-30-
<PAGE> 31
c/o Riverside Partners, Inc.
One Exeter Plaza, 8th Floor
Boston, Massachusetts 02116
with a copy to:
Stephen M. L. Cohen, Esq.
Choate, Hall & Stewart
Exchange Place
53 State Street
Boston, Massachusetts 02109
To the Buyer:
Remel Acquisition Co.
c/o Sybron International Corporation
411 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attn: R. Jeffrey Harris, Esq.
with a copy to:
Michael K. Bresson, Esq.
Quarles & Brady
411 E. Wisconsin Avenue
Milwaukee, WI 53202
Section 12.02. No Waiver. No failure to exercise and no delay in
exercising, on the part of the Buyer or the Sellers, any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. Except as
otherwise expressly provided herein, the rights provided are cumulative and not
exclusive of any rights provided by law.
Section 12.03. Amendments and Waivers. This Agreement may be modified or
amended only by a writing signed by the Buyer and the Sellers. No waiver of any
term or provision hereof shall be effective unless in writing signed by the
party waiving such term or provision.
Section 12.04. Choice of Law. This Agreement shall be governed by and
construed in accordance with the Delaware Revised Uniform Limited Partnership
Act and the internal laws of The Commonwealth of Massachusetts, without regard
to the choice of law provisions thereof.
-31-
<PAGE> 32
Section 12.05. Binding Effect and Benefits. This Agreement shall be
binding upon and shall inure to the benefit of the parties and their respective
heirs, successors and assigns but may not be assigned by any party without the
written consent of the Buyer and the Sellers.
Section 12.06. Integration. This writing, together with the Exhibits and
Schedules attached hereto, embodies the entire agreement and understanding
between the parties with respect to this transaction and supersedes all prior
discussions, understandings and agreements concerning the matters covered
hereby, except as set forth in Section 6.02.
Section 12.07. Counterparts. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart. One or more counterparts may be delivered via telecopier,
and any such telecopied counterpart shall have the same force and effect as an
original counterpart hereof.
Section 12.08. Limitation on Scope of Agreement. If any provision of this
Agreement is unenforceable or illegal, such provision shall be enforced to the
fullest extent permitted by law and the remainder of the Agreement shall remain
in full force and effect.
Section 12.09. Appointment of Agent. The Sellers hereby appoint Riverside
Partners, Inc. as their sole and exclusive agent with respect to this Agreement
and the Escrow Agreement to be executed in connection herewith. In its capacity
as agent, the Agent shall be authorized, in its discretion, to consent to such
amendments, modifications, waivers and revisions to this Agreement and the
Escrow Agreement on behalf of the Sellers as it shall deem appropriate, and to
take any and all actions on behalf of the Sellers, including without limitation
executing closing certificates and documents, as it shall deem appropriate, and
the signature of an authorized agent of the Agent shall be sufficient to
evidence the approval of the Seller(s) thereto. No Seller shall take any action
hereunder without the approval of the Agent. The Agent shall not be liable to
any Seller for any action taken by it in good faith pursuant to this Agreement,
and the Sellers shall jointly and severally indemnify the Agent from any losses,
claims, damages and expenses arising out of its serving as agent hereunder.
Section 12.10. Headings. The headings of Articles and Sections herein are
inserted for convenience of reference only and shall be ignored in the
construction or interpretation
-32-
<PAGE> 33
hereof.
Section 12.11. Sales Tax; Expenses. Notwithstanding any provisions of law
imposing the burden of such taxes on the Sellers or the Buyer, as the case may
be, Buyer shall be responsible for and shall pay (a) all sales, use, recording,
ad valorem, excise, transfer and all other federal, state, local or other taxes
(other than taxes on income to the Sellers) and recording fees, if any, which
arise out of the sale by the Sellers of the Remel Entity Interests and other
transactions contemplated by this Agreement, and (b) all governmental charges,
if any, upon the sale or transfer of any of the Remel Entity Interests. All
legal and other costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party incurring
such costs and expenses, except as otherwise expressly provided herein.
Section 12.12. Termination of Contracts. Concurrent with the Closing and
without any further action required by any party, the following agreements shall
terminate: that certain employment agreement dated as of September 18, 1992
between the Company and Dale T. Moorman (except that all of Section 6 thereof
shall survive and the non-competition period set forth in subsections 6 (f) and
(g) thereof shall be for a period of five years after the Closing; provided,
however, that Dale T. Moorman may, as a passive investor, own not more than a
five percent (5%) equity interest in an investment fund or partnership which
holds an equity interest in a company which would otherwise cause him to violate
the terms of subsection 6(f) or (g).
Section 12.13. Books and Records. The Buyer will retain after the Closing
Date all books and records pertaining to the Company, RMI and the Subsidiaries.
After the Closing, the Sellers' duly authorized representatives shall be
entitled at all reasonable times to have access to and to make copies of all
such books and records as necessary in connection with Sellers' tax returns. If
the Buyer desires to destroy within five (5) years after the Closing Date any of
such books and records that may be required in connection with the preparation
or audit of any of the Sellers' tax returns, the Buyer shall first give the
Sellers ninety (90) days' written notice and the Seller shall within ninety (90)
days of such notice have the right to remove and retain such books and records,
and any books and records not so removed by the Sellers may thereafter be
destroyed by the Buyer. For purposes of this Section and Section 12.14, the
Sellers shall include any person or entity that holds a direct or indirect
beneficial interest in any Seller and that is responsible for any tax liability
relating to the Company or any Subsidiary prior to the Closing or arising out of
the sale of the Remel Entity
-33-
<PAGE> 34
Interests.
Section 12.14. Tax Audits. The Buyer will allow the Sellers and their
counsel to control (at their expense) all audits of the Company's and the
Subsidiaries' tax returns to the extent that any tax items in dispute could
result in an increased tax liability to any Seller for any period ending on or
prior to the Closing. The Sellers will not settle any such audit in a manner
which could result in an increased tax liability to the Buyer for a period
ending after the Closing without the consent of the Buyer, which consent will
not be unreasonably withheld.
Section 12.15. Other Obligations. The Buyer hereby agrees that: (a) at
and after the Closing the Company shall be responsible for and shall pay any and
all obligations of the Company, Riverside Partners, Inc., Dale T. Moorman and/or
the Sellers arising out of or relating to indemnification obligations under
Annex A to that certain letter agreement among Goldman, Sachs & Co., the
Company, Riverside Partners, Inc. and Dale T. Moorman; and (b) with respect to
the Letter Agreements referenced in footnotes 3, 4 and 5 to Schedule 4.16
hereto, the sale of the Remel Entity Interests contemplated hereunder shall be
deemed to be a "Sale" thereunder and each of the applicable employees shall be
deemed to have fully performed under his or her respective Letter Agreement, if
he or she agrees, if requested, to continue employment for 90 days following the
Closing, unless the Agent notifies the Buyer that any such employee has failed
to satisfy such employee's obligations under paragraph 2 of such Letter
Agreement. Sellers shall pay the following: (a) the Goldman, Sachs & Co. fee
due in connection with the purchase and sale contemplated and consummated
hereunder; and (b) any payments to Dale T. Moorman due as a result of the
termination of his employment agreement with the Company.
Section 12.16. Definitions. The following terms, as used in this
Agreement, have the meanings given to them in the section indicated:
Term Section or Place Where Defined
Agent First Paragraph
Authorizations Section 4.14
Balance Sheet Section 4.05
Balance Sheet Date Section 4.05
Bankruptcy Limitation Section 3.03
Base Purchase Price Section 2.02
Benefit Plans Section 4.17
Business Introduction
Buyer First Paragraph
Buyer's Counsel Opinion Section 7.02
-34-
<PAGE> 35
Cash Section 2.02
Choate Hall Opinion Section 7.01
Chrisope L.C. First Paragraph
Closing Section 8.01
Closing Date Section 8.01
Closing Purchase Price Section 2.02
Code Section 4.17
Company First Paragraph
Disputed Items Notice Section 2.05
ERISA Section 4.17
Environment Section 4.21
Environmental Claim Section 4.21
Environmental Laws Section 4.21
Eriquez L.P. First Paragraph
Escrow Agreement Section 2.04(e)
Estimated Purchase Price
Certificate Section 2.03
Final Balance Sheet Section 2.02
Final Purchase Price Section 2.02
Final Purchase Price Certificate Section 2.03
Guarantor First Paragraph
HSR Act Section 6.04
Hazardous Substances Section 4.21
Heller Section 2.02
IDS, Inc. Introduction
IDS L.P. First Paragraph
Intellectual Property Section 4.10
Losses Section 10.02
Material Contracts Section 4.11
Moorman Children Trusts First Paragraph
Net Asset Value Section 2.02
Operating Subsidiaries Introduction
Partnership Documents Section 4.01
RMI First Paragraph
RMI Charter Documents Section 4.01
RMLI First Paragraph
R/RLP Introduction
Remel Entity Interests Section 1.01
Remel Partners Introduction
Remel Partnership Interests Section 1.01
Securities Act Section 5.05
Sellers First Paragraph
Service Section 4.17
Subsidiaries Introduction
[Signatures appear on the following page.]
-35-
<PAGE> 36
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as a sealed instrument under the laws of The Commonwealth of
Massachusetts as of the date first above written.
BUYER:
REMEL ACQUISITION CO.
By /s/ Dennis Brown
--------------------------------
Vice President/Treasurer (Title)
SELLERS:
REGIONAL MEDIA LABORATORIES, INC. RIVERSIDE/REMEL LIMITED PARTNERSHIP
By: Riverside Fund I, L.P.,
its general partner
By: RPI Limited Partnership I, its By
/s/ Dale T. Moorman managing general partner
- -----------------------------------
Dale T. Moorman, President
By /s/ Brian Guthrie
---------------------------------
/s/ Robert V. Taylor General Partner
- -----------------------------------
Robert V. Taylor, as Trustee
of the Ruth Ann Moorman Trust,
dated November 10, 1992, and not ERIQUEZ FAMILY PARTNERSHIP, L.P.
individually
By /s/ Louis A. Eriquez
----------------------------------
/s/ Robert V. Taylor Louis A. Eriquez, General Partner
- -----------------------------------
Robert V. Taylor, as Trustee
of the Megan Dale Moorman Trust,
dated November 10, 1992, and not RIVERSIDE PARTNERS, INC.,
individually as agent for the Sellers
By /s/ Brian Guthrie
----------------------------------
/s/ Robert V. Taylor Vice President (Title)
- ------------------------------------
Robert V. Taylor, as Trustee
of the Marsha Kay Moorman Trust,
dated November 10, 1992, and not
individually /s/ Robert V. Taylor
----------------------------------
Robert V. Taylor, as Trustee
of the Mary Beth Moorman Trust,
dated November 10, 1992, and not
individually
/s/ Dale T. Moorman
-----------------------------------
Dale T. Moorman, for purposes
of Section 12.12 only
-36-
<PAGE> 37
GUARANTY OF PARENT
The undersigned, as the ultimate parent corporation of Remel Acquisition
Co. (the "Buyer"), hereby absolutely and unconditionally guarantees to the
Sellers the prompt payment and performance of all liabilities and obligations to
the Sellers ("Buyer Obligations") of the Buyer under the foregoing Purchase
Agreement. This guaranty is an absolute, unconditional and continuing guaranty
of the full and punctual payment and performance by the Buyer of the Buyer
Obligations and not of collectability, and is in no way conditioned upon any
requirement that the Sellers first attempt to collect any of the Buyer
Obligations from the Buyer or any other contingency whatsoever. The undersigned
acknowledges that the Sellers are relying upon this guaranty in entering into
the Purchase Agreement.
SYBRON INTERNATIONAL CORPORATION
By: /s/ Kenneth F. Yontz
------------------------------------
Chairman, President and
Chief Executive Officer (Title)
-37-
<PAGE> 1
EXHIBIT 2.2
ESCROW AGREEMENT
This Escrow Agreement is entered into as of April 25, 1997 by and among
Riverside Partners, Inc. (the "Agent"), Remel Acquisition Co. (the "Buyer") and
State Street Bank and Trust Company, as escrow agent (the "Escrow Agent").
Introduction
The Agent, the Buyer, and the other signatories thereto have entered into a
Purchase Agreement dated as of March 14, 1997 (the "Purchase Agreement"). The
execution and delivery of this Agreement is a condition to the consummation of
the transactions contemplated by the Purchase Agreement.
The parties to this Agreement wish to set aside in escrow a portion of the
consideration to be paid to the escrow participants identified on the attached
Schedule A (the "Escrow Participants") pursuant to the Purchase Agreement to
secure the indemnification obligations of the Sellers under the Purchase
Agreement.
The Agent is a party to this Agreement as agent of the Sellers, appointed
under the Purchase Agreement.
Capitalized terms used herein and not defined shall have the meanings given
to them in the Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
Section 1. Appointment of Escrow Agent. State Street Bank and Trust
Company is hereby appointed as Escrow Agent under this Agreement, and the Escrow
Agent hereby accepts such appointment.
Section 2. Deposit of Escrow Fund. On the date hereof, pursuant to
Section 2.04(e) of the Purchase Agreement, the Buyer has deposited with the
Escrow Agent the sum of $10,000,000. The amount so deposited, less payments
made pursuant hereto, is referred to herein as the "Escrow Fund". The Escrow
Fund will be held, invested, and disbursed by the Escrow Agent in accordance
with the terms hereof.
Section 3. Satisfaction of Claims with Escrow Fund. The Escrow Fund will
be retained by the Escrow Agent and shall be distributed at any time, or from
time to time, for the purpose of paying claims for Losses incurred by the Buyer
for which it is entitled to indemnification under Article X of the Purchase
Agreement, pursuant to the following terms:
(a) If the Buyer believes that it is entitled to
<PAGE> 2
indemnification under Article X of the Purchase Agreement and desires to have
funds from the Escrow Fund applied thereto pursuant to this Escrow Agreement,
the Buyer shall notify the Agent and the Escrow Agent of such assertion,
describing the basis for its claim for indemnification (an "Asserted Claim") in
reasonable detail, and specifying the amount of the Escrow Fund that the Buyer
believes should be delivered to it to satisfy the Asserted Claim (the "Asserted
Amount").
(b) On the 30th day following receipt of notice of an Asserted Claim,
the Asserted Amount shall be distributed to the Buyer in respect of such
Asserted Claim; provided, however, that if, prior to such 30th day, the Agent
notifies the Buyer and the Escrow Agent that it does not agree that some or all
of the Asserted Amount is due the Buyer with respect to the Asserted Claim, and
specifying the amount that it does not believe should be distributed to the
Buyer (the "Contested Amount"), then the Contested Amount shall remain in escrow
with the Escrow Agent until such time as the Escrow Agent receives (i) joint
written instructions from the Agent and the Buyer, or (ii) an order from any
court of competent jurisdiction as to the disposition of such amount (such
amount being referred to herein as the "Resolved Amount"), and the Escrow Agent
shall distribute and/or retain the Resolved Amount in accordance with such joint
written instructions or such court order.
(c) If there should arise circumstances which the Buyer believes
constitutes, or may upon final resolution constitute, a basis for an Asserted
Claim hereunder, then the Buyer shall certify such matter to the Escrow Agent
and the Agent as an Asserted Claim, with specific reference to this subsection
of this Agreement, even though such claim is at the time uncertain or unresolved
and even though the exact amount of any Losses may be unknown at the time of
such certification. In making such certification, the Buyer may estimate the
maximum amount of exposure with respect thereto and such estimated amount shall
constitute the Contested Amount for purposes of such Asserted Claim.
Section 4. Procedures for Application of Remaining Escrow Fund.
(a) On the first anniversary of the Closing Date, the remaining
balance of the Escrow Fund, if any, less (i) all unpaid Asserted Amounts (other
than Contested Amounts), (ii) all unresolved Contested Amounts, and (iii) 50% of
all expenses to be paid or reasonably expected to be incurred by the Escrow
Agent in connection with this Agreement pursuant to Section 8 hereof, shall be
distributed by the Escrow Agent to the Escrow
-2-
<PAGE> 3
Participants, in proportion to their respective percentages specified on
Schedule A.
(b) Any amounts held after the first anniversary of the Closing Date,
on account of the existence of unpaid Asserted Claims or unresolved Contested
Amounts, shall be distributed to the Buyer or to the Escrow Participants in
proportion to their respective percentages specified on Schedule A, in
accordance with Section 3, as such Asserted Claims or Contested Amounts are
resolved.
Section 5. Investment of Escrow Fund. The Escrow Agent shall invest the
Escrow Fund in money market or other similar short term investments, as directed
from time to time in writing by the Agent. Investments pursuant to such
investment instructions described above shall in all instances be subject to
availability (including any time-of-day requirements). In no instance shall the
Escrow Agent have any obligation to provide investment advice of any kind. The
Escrow Agent shall not be required to invest any funds held hereafter except as
expressly provided in this Section 5, and shall not be obligated to pay interest
on uninvested funds. All amounts received by the Escrow Agent (and any credits
to the Escrow Account) shall be conditional upon collection (and actual receipt
by the Escrow Agent of final payment). In no event shall the Escrow Agent have
any obligation to advance funds.
The Escrow Agent shall be authorized at all times and from time to time to
liquidate any investment of the Escrow Funds as may be necessary to provide
available cash to make any release, disbursement or payment called for under the
terms of this Agreement. The Escrow Agent shall have no responsibility or
liability for any losses resulting from liquidation of the Escrow Funds (such as
liquidation prior to maturity). All income earned on the Escrow Fund, after
payment of expenses incurred in connection therewith, will be distributed
quarterly to the Escrow Participants, and in accordance with the percentages
specified on Schedule A and for tax purposes shall be allocated and reported as
income to the Escrow Participants. No party hereto shall be liable or
responsible for any loss resulting from any investment or reinvestment made
pursuant to this Section 5, other than as a result of the gross negligence or
willful misconduct of such party.
Section 6. Provisions Regarding Escrow Agent.
(a) The duties of the Escrow Agent hereunder will be limited to the
observance of the express provisions of this Agreement. The Escrow Agent will
not be subject to, or be obliged to recognize, any other agreement between the
parties
-3-
<PAGE> 4
hereto (including the Purchase Agreement) or directions or instructions not
specifically set forth as provided for herein, other than any joint written
instructions of the Buyer and the Agent. The Escrow Agent will not make any
payment or disbursement from or out of the Escrow Fund that is not expressly
authorized pursuant to this Agreement. The Escrow Agent may rely upon and act
upon any written notice, certificate or other instrument received by it
pursuant to the provisions of this Agreement that it reasonably believes to be
genuine. The Escrow Agent will use the same degree of care and skill in
performing its services hereunder as an ordinary prudent person would do or use
under the circumstances in the conduct of his or her own affairs. The Escrow
Agent will not be liable for any error of judgment or any act done or any step
taken by it in good faith or for any mistake of fact or law or for anything
that it might do or refrain from doing in connection with this Agreement,
except that the Escrow Agent will be liable for its own gross negligence or
willful misconduct. In no event shall the Escrow Agent be liable for any
indirect, punitive, special or consequential damages, or any amount in excess
of the value of the Escrow Fund.
(b) The Escrow Agent, upon prior notice to the Buyer and the Agent,
may consult with and obtain advice from legal counsel in the event of any
dispute or question as to the construction of any of the provisions hereof or
the Escrow Agent's duties hereunder, and the Escrow Agent shall incur no
liability and shall be fully protected in acting in accordance with the opinion
of its legal counsel. The Escrow Agent shall not be responsible in any manner
whatsoever for any failure or inability of any of the other parties hereto, or
anyone else, to perform or comply with any provisions of this Agreement.
(c) If at any time the Escrow Agent shall be in doubt as to the party
or parties entitled to receive any or all of the Escrow Fund, the Escrow Agent
may apply to a court for a determination of the party or parties entitled to
receive the same, and the Escrow Agent shall incur no liability therefor.
(d) If at any time the Escrow Agent shall receive conflicting
notices, claims, demands or instructions with respect to any disbursement from
the Escrow Fund, or if for any other reason it shall be unable in good faith to
determine the party or parties entitled to receive a disbursement from the
Escrow Fund, the Escrow Agent may refuse to make such disbursement until the
Escrow Agent shall have received instructions in writing signed by each of the
Agent and the Buyer, or until directed by a final order of a court (in an action
brought by the Escrow Agent pursuant to paragraph (c) of this Section 6 or by
any other person), whereupon the Escrow Agent shall make such disbursement
-4-
<PAGE> 5
in accordance with such instructions or order.
Section 7. Indemnification of Escrow Agent. The Escrow Participants and
the Buyer, jointly and severally, will indemnify and hold the Escrow Agent
harmless from and against any and all losses, costs, damages or expenses
(including, but not limited to, reasonable attorneys' fees) it may sustain by
reason of its service as Escrow Agent hereunder but only to the extent such
losses, costs, damages or expenses are properly payable from, but exceed the
amount of the funds available in, the Escrow Fund, and except such losses,
costs, damages or expenses (including, but not limited to, reasonable attorneys'
fees) incurred by reason of such acts or omissions for which the Escrow Agent is
found liable or responsible under the penultimate sentence of Section 6(a)
hereof. Buyer and the Escrow Participants, jointly and severally, agree to
assume any and all obligations imposed now or hereafter by any applicable tax
law with respect to the payment of Escrow Funds under this Agreement, and,
without limiting the generality of the preceding paragraph, hereby agree to
indemnify and hold the Escrow Agent harmless from and against any taxes,
additions for late payment, interest, penalties and other expenses, that may be
assessed against the Escrow Agent on any such payment or other activities under
this Agreement. Buyer and the Escrow Participants undertake to instruct the
Escrow Agent in writing with respect to the Escrow Agent's responsibility for
withholding and other taxes, assessments or other governmental charges,
certifications and governmental reporting in connection with its acting as
Escrow Agent under this Agreement. Buyer and the Escrow Participants, jointly
and severally, agree to indemnify and hold the Escrow Agent harmless from any
liability on account of taxes, assessments or other governmental charges,
including without limitation the withholding or deduction or the failure to
withhold or deduct same, and any liability for failure to obtain proper
certifications or to properly report to governmental authorities, to which the
Escrow Agent may be or become subject in connection with or which arises out of
this Agreement, including costs and expenses (including reasonable legal fees),
interest and penalties. Buyer and the Escrow Participants shall each promptly
provide to Escrow Agent with appropriate IRS Forms W-9 for taxpayer
identification number certifications, or Forms W-8 for non-resident alien
certifications. As between themselves, the Buyer on the one hand and the Escrow
Participants on the other agree to bear responsibility for such indemnifications
50% by the Buyer and 50% by the Escrow Participants. The foregoing
indemnifications shall survive the resignation of the Escrow Agent or the
termination of this Escrow Agreement.
Section 8. Fees and Expenses of the Escrow Agent. Except
-5-
<PAGE> 6
as otherwise expressly provided in this Agreement, all fees of the Escrow Agent
for its service hereunder shall be borne 50% by the Buyer and 50% by the Escrow
Participants, and shall be promptly paid within 30 days of invoice. The Escrow
Agent shall be entitled to an annual fee of $2,500 payable for the first year
(together with its reasonable attorneys fees in the review and acceptance of
its appointment hereunder) upon execution of this Agreement, and for any
additional fees or expenses thereafter, within 30 days of invoice. Additional
terms regarding the escrow services and fees hereunder shall be as set forth on
Schedule B hereto. If the Escrow Agent does not receive such fees and expenses
upon execution of this Agreement or within such 30-day period, as applicable,
the Escrow Agent will be authorized to pay the Escrow Participants' portion
(50%) of such fees and expenses from the Escrow Fund.
Section 9. Resignation of Escrow Agent. The Escrow Agent may resign from
its duties hereunder by giving each of the parties hereto not less than 30 days
prior written notice of the effective date of such resignation (which effective
date shall be at least 30 days after the date such notice is given). If on or
before the effective date of such resignation, the Escrow Agent has not received
joint written instructions from the Buyer and the Agent regarding the transfer
of the Escrow Fund, it will thereupon deposit the Escrow Fund into the registry
of a court of competent jurisdiction. The parties hereto intend that a
substitute Escrow Agent will be appointed to fulfill the duties of the Escrow
Agent hereunder for the remaining term of this Agreement in the event of the
Escrow Agent's resignation.
Section 10. Tax Treatment. The Escrow Fund shall be treated for tax
purposes as payments made on the installment basis.
Section 11. Notices. Any notices or other communications required or
permitted to be given hereunder must be in writing and shall be deemed to have
been duly given when (a) delivered in person or (b) when received by or on
behalf of the addressee, if sent by nationally recognized overnight courier
service or mailed by registered or certified mail, return receipt requested, in
each case addressed as follows (or to such other address as any party may direct
by notice):
-6-
<PAGE> 7
To the Buyer:
Remel Acquisition Co.
c/o Sybron International Corporation
411 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attn: R. Jeffrey Harris, Esq.
with a copy to:
Michael K. Bresson, Esq.
Quarles & Brady
411 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
To the Agent:
Riverside Partners, Inc.
One Exeter Plaza, 8th Floor
Boston, Massachusetts 02116
Attn: Brian Guthrie
with a copy to:
Stephen M. L. Cohen, Esq.
Choate, Hall & Stewart
Exchange Place
Boston, Massachusetts 02109
To the Escrow Agent:
State Street Bank and Trust Company
Two International Place - Fourth Floor
Boston, MA 02ll0
Attention: Corporate Trust Department
Section 12. Binding Effect. This Agreement will be binding upon and inure
to the benefit of the parties hereto and their permitted assigns.
Section 13. Escrow Fund Sole Source for Losses. It is expressly
understood that, to the extent specified in the Purchase Agreement, the Escrow
Fund is the sole source for satisfying Losses.
Section 14. Force Majeure. The Escrow Agent shall not be responsible or
liable for delays or failures in performance resulting from acts beyond its
control. Such acts shall include
-7-
<PAGE> 8
but not be limited to acts of God, strikes, lockouts, riots, acts of war,
epidemics, laws or governmental regulations changed or superimposed after the
fact, fire, communication line failures, power failures, computer viruses,
earthquakes or other disasters, or to unavailability of Federal Reserve Bank
wire or telex facilities.
Section 15. Amendment and Termination. This Agreement may be amended,
modified or canceled by agreement of (a) the Buyer, (b) the Agent and (c) the
Escrow Agent. This Agreement will terminate on the date on which no amounts
remain in the Escrow Fund; provided that this Agreement shall not terminate
until the final resolution of all Asserted Claims.
Section 16. Governing Law. This agreement will be governed by and
construed in accordance with the internal laws of The Commonwealth of
Massachusetts, without giving effect to conflicts of law principles.
Section 17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same Agreement.
[Signatures appear on the following page.]
-8-
<PAGE> 9
EXECUTED as a sealed instrument as of the date first above written.
REMEL ACQUISITION CO.
By /s/ Frank Jellinek, Jr.
------------------------------------
President (Title)
RIVERSIDE PARTNERS, INC.
By /s/ Brian Guthrie
------------------------------------
Vice President (Title)
STATE STREET BANK AND TRUST COMPANY
By /s/ Donald E. Smith
------------------------------------
Vice President (Title)
-9-
<PAGE> 10
SCHEDULE A
Escrow Participant Percentage Soc.
Sec./Fed.
ID Number
Eriquez Family Partnership 1.95637% 58-2148459
c/o Louis Eriquez
3164 Weymouth Drive
Marietta, GA 30062
Buzz Sztukowski 0.98044% 499-603236
11116 West 122nd Terrace
Overland Park, KS 66213
Regional Media Laboratories, Inc. 2.44619% 48-0816498
Mary Beth Moorman Trust 11.49709% 48-6321390
Megan Dale Moorman Trust 11.49709% 48-6321391
Marsha Kay Moorman Trust 11.49709% 48-6321393
Ruth Ann Moorman Trust 11.49709% 48-6321392
c/o Thomas J. McMahon
Lathrop & Gage LC
2345 Grand Blvd. Suite 2700
Kansas City, MO 64l08
Mark K. Schmidt 0.12157% ###-##-####
Marcus Schloss & Co.
One Whitehall Street
New York, NY l0004
Hugh H. Aiken 0.02431% ###-##-####
823 North 5th St.
Atchison, KS 66002
Riverside Fund I, L.P. 48.48277% 04-3029833
c/o Riverside Partners, Inc.
One Exeter Plaza, 699 Boylston St.
Boston, MA 02116 ---------
Total 100.00000%
-10-
<PAGE> 11
SCHEDULE B
Additional Terms Regarding Escrow
Services and Fees
Legal Fees: At cost.
Out-of-Pocket Expenses At cost.
Investment Fee $65 per investment for Non-State
Street Products; no additional charge
for State Street Products.
Wire Fee $20 per wire.
Annual Administration Fee $2,500 paid in advance with
(after first year) reimbursement for a mid-year
termination, pro rata
on a quarterly basis.
-11-
<PAGE> 1
EXHIBIT 4.1
[CONFORMED COPY]
================================================================================
SYBRON INTERNATIONAL CORPORATION,
ORMCO CORPORATION,
KERR CORPORATION,
NALGE NUNC INTERNATIONAL CORPORATION,
ERIE SCIENTIFIC COMPANY
and
BARNSTEAD THERMOLYNE CORPORATION
------------------------------
$900,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of April 25, 1997
(Amending and Restating the $550,000,000 Amended and
Restated Credit Agreement, dated as of July 31, 1995, as
amended by the First Amendment, dated as of July 9, 1996)
------------------------------
CHASE SECURITIES INC.,
as Arranger
THE CHASE MANHATTAN BANK,
as Administrative Agent
================================================================================
<PAGE> 2
SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
April 25, 1997 (amending and restating the $550,000,000 Amended and Restated
Credit Agreement, dated as of July 31, 1995, as amended by the First Amendment,
dated as of July 9, 1996 (the "First Amendment")), among Sybron International
Corporation, a Wisconsin corporation (the "Parent"), Ormco Corporation, a
Delaware corporation ("Ormco"), Kerr Corporation, a Delaware corporation
("Kerr"), Nalge Nunc International Corporation, a Delaware corporation ("NNI"),
Erie Scientific Company, a Delaware corporation ("Erie"), Barnstead Thermolyne
Corporation, a Delaware corporation ("Barnstead"; Ormco, Kerr, NNI, Erie and
Barnstead are collectively referred to herein as the "Subsidiary Borrowers" and
together with the Parent, the "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
The Chase Manhattan Bank (formerly known as 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 $550,000,000 Amended and Restated
Credit Agreement, dated as of July 31, 1995 (as amended by the First Amendment,
the "Existing Credit Agreement"), among the Borrowers, the Lenders, the
Arranger and the Administrative Agent, the Lenders parties thereto have agreed
to extend credit to the Borrowers;
WHEREAS, the Borrowers have requested that the Existing Credit
Agreement be amended and restated as hereinafter provided to, inter alia,
extend new Term Loans to the Subsidiary Borrowers in an aggregate principal
amount equal to the principal amount of the Term Loans extended under the
Existing Credit Agreement that has amortized to date and to increase the
Aggregate Revolving Credit Commitment from $300,000,000 to $600,000,000;
WHEREAS, the Subsidiary Borrowers will use the proceeds of the
Term Loans to finance the general corporate needs of the Parent and its
Subsidiaries, including permitted acquisitions (including the Remel
Acquisition, as defined herein), to refinance existing indebtedness and to pay
fees and other expenses related thereto;
WHEREAS the Revolving Credit Borrowers will use the proceeds
of the Revolving Credit Loans and the Swing Line Loans to finance the working
capital needs of the Parent and its Subsidiaries and for general corporate
purposes, including permitted acquisitions (including the Remel Acquisition);
and
WHEREAS, the Lenders, the Arranger and the Administrative
Agent are willing to agree to such amendment and restatement;
<PAGE> 3
2
NOW, THEREFORE, the parties hereto hereby agree that on the
Amendment and Restatement Effective Date (as defined below) the Existing Credit
Agreement will be amended and restated in its entirety as follows:
SUBSECTIONS 1.1 THROUGH 11.8
Subsections 1.1 through 11.8 of the Existing Credit Agreement,
in each case with their respective existing subsection and Section
designations, are hereby incorporated herein by reference as if set forth in
full herein, except that, for purposes of such incorporation by reference:
1. Amendments to Section 1. Subsection 1.1 of the Existing Credit
Agreement shall be deemed amended by deleting the definitions of "Acquisition
Documentation", "Aggregate Revolving Credit Commitment", "Agreement",
"Applicable Level", "Applicable Margin", "Consolidated Adjusted Operating
Profit", "Excepted Indebtedness", "Leverage Ratio", "Parent Pledge Agreement",
"QFL Notes", "QFL Revolving Credit Note", "QFL Term Note", "Revolving Credit
Note", "Subsidiaries Guarantee", "Subsidiaries Pledge Agreement" and "Term
Note" in their entirety and inserting the following definitions in alphabetical
order:
"`Acquisition Documentation': (i) the Purchase Agreement
dated as of March 14, 1997 among Remel, Regional Media Laboratories,
Inc., Riverside/Remel Limited Partnership, Eriquez Family Partnership,
L.P., Riverside Partners, Inc. and Robert V. Taylor, as Trustee of the
Mary Beth Moorman Trust, Ruth Ann Moorman Trust, Megan Dayl Moorman
Trust and Marsha Kay Moorman Trust, as the same may be amended,
supplemented or otherwise modified from time to time and (ii) all
other material documentation executed and delivered in connection
therewith.
`Aggregate Revolving Credit Commitment': shall mean
$600,000,000, as such amount may be reduced from time to time pursuant
to the terms of this Agreement.
`Agreement': this Second Amended and Restated Credit
Agreement, as amended, supplemented or modified from time to time.
`Amendment and Restatement Effective Date': the date on which
each of the conditions precedent specified in subsection 5.3 shall
have been satisfied.
`Applicable Level': means, as of any day, Level 1, Level 2,
Level 3 or Level 4 as set forth below, whichever is applicable on such
day, with each new Level to take effect when the Parent delivers (i)
in the case of the first three fiscal quarters of the Parent in any
fiscal year, the certificate of a Responsible Officer required by
subsection 6.2(d) indicating the Parent's Leverage Ratio for the
period of four full fiscal quarters of the Parent ending on the last
day of such quarter and the quarterly financial statements of the
Parent and its consolidated Subsidiaries for such quarter pursuant to
subsection 6.1(b) and (ii) in the case of the last fiscal quarter of
the Parent
<PAGE> 4
3
in any fiscal year, the certificate of a Responsible Officer required
by subsection 6.2(d) indicating the Parent's Leverage Ratio for the
period of four full fiscal quarters of the Parent ending on the last
day of such quarter and the financial statements of the Parent and its
consolidated Subsidiaries pursuant to subsection 6.1(a) (provided that
in no event shall a change in the Applicable Level become effective
earlier than 30 days after the last day of such period of four full
fiscal quarters of the Parent):
<TABLE>
<CAPTION>
Leverage Ratio
--------------
<S> <C>
Level 1 Less than or equal to
2.0 to 1.0
Level 2 Equal to or less than
2.5 to 1.0, but greater
than 2.0 to 1.0
Level 3 Equal to or less than
3.25 to 1.0, but greater
than 2.5 to 1.0
Level 4 Greater than 3.25
to 1.0
</TABLE>
provided, however, that, (x) in the event that the financial
statements required to be delivered pursuant to subsection 6.1(a) or
6.1(b) or the certificate required by subsection 6.2(d) are not
delivered when due, then during the period from the date upon which
such financial statements and certificate were required to be
delivered until the date upon which they actually are delivered, the
Applicable Level shall be deemed to be Level 4 and (y) in the event
that the financial statements required to be delivered pursuant to
subsection 6.1(a), when delivered pursuant to such subsection,
indicate an Applicable Level that is lower or higher than the
Applicable Level determined in accordance with the Responsible
Officer's certificate delivered following the period of four full
fiscal quarters of the Parent immediately preceding such day, then the
Applicable Level shall be deemed to have been the Level determined in
accordance with such financial statements for the period from the date
of delivery of such Responsible Officer's certificate until the date
of delivery of such financial statements and, thereafter until the
next determination of an Applicable Level, shall be the Applicable
Level determined in accordance with such financial statements.
`Applicable Margin': for each Eurodollar Loan (a) during the
period from the Amendment and Restatement Effective Date to the date
on which the financial statements of the Parent and its Subsidiaries
are delivered to each Lender pursuant to subsection 6.1(b) with
respect to the fiscal quarter of the Parent ending June 30,
<PAGE> 5
4
1997, .75% per annum or, at any time after such financial statements
are required to be delivered pursuant to such subsection and are not
so delivered, .875% per annum and (b) for each day after such
delivery, the rate per annum set forth below opposite the Applicable
Level in effect on such day:
<TABLE>
<CAPTION>
Applicable Level Rate
---------------- ----
<S> <C>
Level 1 .5%
Level 2 .625%
Level 3 .75%
Level 4 .875%
</TABLE>
`Consolidated Adjusted Operating Profit': for any period,
Consolidated Net Income for such period before deduction of any
applicable income taxes and excluding (i) any extraordinary items of
gain or loss and (ii) gain or loss from discontinued operations
(classified under GAAP), plus Consolidated Interest Expense for such
period, plus depreciation and amortization expenses for such period,
to the extent the same are deducted from net revenues in determining
Consolidated Net Income for such period.
`Excepted Indebtedness': the Indebtedness of the Parent or
any of its Subsidiaries permitted to exist pursuant to subsection 7.2
(other than subsection 7.2(g)).
`Leverage Ratio': on the date of any determination thereof,
the ratio of Consolidated Funded Indebtedness on such date to
Consolidated Adjusted Operating Profit for the four full fiscal
quarters ending on such date; provided that for purposes of
calculating Consolidated Adjusted Operating Profit for any period of
four full fiscal quarters, the Consolidated Adjusted Operating Profit
of any Person acquired during such period shall be included on a pro
forma basis for such period of four full fiscal quarters (assuming the
consummation of each such acquisition and the incurrence or assumption
of any Indebtedness in connection therewith occurred on the first day
of such period of four full fiscal quarters and assuming only such
cost reductions as are related to such acquisition and are immediately
realizable as of the date of such acquisition). For purposes of this
calculation, Consolidated Adjusted Operating Profit of any such Person
acquired during such period shall be derived from a certificate, in
form and substance satisfactory to the Administrative Agent, of a duly
authorized financial officer of the Parent setting forth such
Consolidated Adjusted Operating Profit.
`NNI': as defined in the preamble to this Agreement.
`Parent Pledge Agreement': the Second Amended and Restated
Parent Pledge Agreement to be executed and delivered by the Parent,
substantially in the form of Exhibit D to this Agreement, as the same
may be amended, supplemented or otherwise modified from time to time.
<PAGE> 6
5
`Remel': Remel Inc. (formerly known as Remel Acquisition
Co.), a Wisconsin corporation and a direct Subsidiary of Erie.
`Remel Acquisition': the acquisition of all of the ownership
interests of Remel Limited Partnership and affiliates by Remel.
`Revolving Credit Note': as defined in subsection 2.2.
`Subordinated Indebtedness': any unsecured Indebtedness of
the Parent or any of its Subsidiaries (a) no part of the principal of
which is stated to be payable or is required to be paid (whether by
way of mandatory sinking fund, mandatory redemption, mandatory
prepayment or otherwise) prior to the Termination Date, and the
payment of the principal of and any interest on which and other
obligations of the Parent and the Subsidiary Borrowers in respect
thereof are subordinated to the prior payment in full of the principal
of and interest (including post-petition interest) on the Notes and
all other obligations and liabilities of the Parent and the Subsidiary
Borrowers to the Agent and the Lenders hereunder on terms and
conditions first approved in writing by the Majority Lenders and (b)
otherwise containing terms, covenants and conditions satisfactory in
form and substance to the Majority Lenders, as evidenced by their
prior written approval thereof.
`Subsidiaries Guarantee': the Second Amended and Restated
Subsidiaries Guarantee to be executed and delivered by each Subsidiary
Guarantor, substantially in the form of Exhibit E to this Agreement,
as the same may be amended, supplemented or otherwise modified from
time to time.
`Subsidiaries Pledge Agreement': the Second Amended and
Restated Subsidiaries Pledge Agreement, substantially in the form of
Exhibit F to this Agreement, as the same may be amended, supplemented
or otherwise modified from time to time.
`Subsidiary Guarantors': the Subsidiaries of the Parent
listed as such on Schedule IV to this Agreement together with any new
Subsidiaries which execute a Subsidiaries Guarantee subsequent to the
Amendment and Restatement Effective Date.
`Term Note': as defined in subsection 2.12 (as renumbered in
accordance with the First Amendment)."
2. Amendments to Section 2. Section 2 of the Existing Credit
Agreement shall be deemed amended by:
(a) deleting in its entirety subsection 2.2 thereof and
substituting in lieu thereof the following new subsection 2.2:
"2.2 Revolving Credit Notes. Each Revolving Credit Borrower
shall issue a promissory note to evidence the Revolving Credit Loans
made by each Lender to such
<PAGE> 7
6
Revolving Credit Borrower, substantially in the form of Exhibit A to
this Agreement, with appropriate insertions as to payee, date and
principal amount (a "Revolving Credit Note"), payable to the order of
such Lender and in a principal amount equal to the lesser of (a) the
amount of the initial Revolving Credit Commitment of such Lender and
(b) the aggregate unpaid principal amount of all Revolving Credit
Loans made by such Lender to such Revolving Credit Borrower. A
Revolving Credit Note and the Obligation evidenced thereby may be
assigned or otherwise transferred in whole or in part only by
registration of such assignment or transfer of such Revolving Credit
Note and the Obligation evidenced thereby in the Register (and each
Revolving Credit Note shall expressly so provide). Any assignment or
transfer of all or part of an Obligation evidenced by a Revolving
Credit Note shall be registered in the Register only upon surrender
for registration of assignment or transfer of the Revolving Credit
Note evidencing such Obligation, accompanied by an Assignment and
Acceptance substantially in the form of Exhibit I duly executed by the
Assignor thereof, and thereupon one or more new Revolving Credit Notes
shall be issued to the designated Assignee and the old Revolving
Credit Note shall be returned by the Administrative Agent to the
Borrower marked "cancelled." No assignment of a Revolving Credit Note
and the Obligation evidenced thereby shall be effective unless it
shall have been recorded in the Register by the Administrative Agent
as provided in this subsection 2.2. Each Lender is hereby authorized
to record the date, Type and amount of each Revolving Credit Loan made
by such Lender to a Revolving Credit Borrower, each continuation
thereof, each conversion of all or a portion thereof to another Type,
the date and amount of each payment or prepayment of principal thereof
and, in the case of Eurodollar Loans, the length of each Interest
Period and the Eurodollar Rate with respect thereto, on the
appropriate schedule annexed to and constituting a part of its
Revolving Credit Note (or any continuation thereof), and any such
recordation shall constitute prima facie evidence of the accuracy of
the information so recorded. Each Revolving Credit Note shall (x) be
dated the Amendment and Restatement Effective Date, (y) be stated to
mature on the Termination Date and (z) provide for the payment of
interest in accordance with subsection 2.19."
(b) adding at the end of the first parenthetical contained in
the proviso to subsection 2.3 thereof, after the words, "one Business Day prior
to the requested Borrowing Date, otherwise", the following:
"(except that notice may be given on the actual date of
borrowing for ABR Loans to be borrowed on the Amendment and
Restatement Effective Date pursuant to the Second Amendment
and Restatement hereof)".
(c) adding at the end of paragraph (a) of subsection 2.5
thereof the following:
"Offers for CAF Advances can be accepted in amounts of $5,000,000 and
integral multiples of $1,000,000 in excess thereof, provided that for
each CAF Advance Request the total of the offers accepted may amount
to no less than $10,000,000."
<PAGE> 8
7
(d) deleting in its entirety the first sentence of subsection
2.7 thereof and substituting in lieu thereof the following:
"2.7 CAF Advance Notes. Each Revolving Credit Borrower shall
issue a promissory note to evidence the CAF Advances made by each
Lender to such Revolving Credit Borrower, substantially in the form of
Exhibit H to this Agreement, with appropriate insertions as to payee,
date and principal amount (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)."
(e) deleting in its entirety the third sentence of subsection
2.7 thereof and substituting in lieu thereof the following:
"Each CAF Advance Note shall be dated the Amendment and
Restatement 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)."
(f) deleting in its entirety subsection 2.9 thereof (as
renumbered in accordance with the First Amendment) and substituting in lieu
thereof the following new subsection 2.9:
"2.9 Commitment Fees. The Parent agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee
(a) during the period from the Amendment and Restatement Effective
Date to the date on which the financial statements of the Parent and
its Subsidiaries are delivered to each Lender pursuant to subsection
6.1(b) with respect to the fiscal quarter of the Parent ending June
30, 1997, computed at the rate of .20% per annum on the Available
Revolving Credit Commitments of such Lender on such day or, at any
time after such financial statements are required to be delivered by
such subsection and are not so delivered, .225% per annum on the
Available Revolving Credit Commitments of such Lender and (b) for each
day after such delivery to but excluding the Termination Date, the
rate per annum set forth in the column labeled "Rate" below opposite
the category below which describes the Applicable Level in effect on
such day on the Available Revolving Credit Commitments of such Lender
on such day:
<PAGE> 9
8
<TABLE>
<CAPTION>
Applicable Level Rate
---------------- ----
<S> <C>
Level 1 .15%
Level 2 .1875%
Level 3 .20%
Level 4 .225%
</TABLE>
(g) deleting in its entirety subsection 2.11 (as renumbered
in accordance with the First Amendment) thereof and substituting in lieu
thereof the following:
"2.11 Term Loans. Subject to the terms and conditions
hereof, each Lender severally agrees to make term loans to the
Subsidiary Borrowers on the Amendment and Restatement Effective Date
in an aggregate principal amount equal to such Lender's Term Loan
Commitment Percentage of the difference of (a) $300,000,000 (a " Term
Loan") minus (b) the Term Loans outstanding on the Amendment and
Restatement Effective Date after giving effect to subsection 11.19,
and in an aggregate principal amount for each Subsidiary Borrower
(after giving effect to the Term Loans outstanding on the Amendment
and Restatement Effective Date and the Term Loans made on the
Amendment and Restatement Effective Date) as follows: (a)
$45,000,000, in the case of each of Ormco, Erie and Barnstead, (b)
$75,000,000, in the case of Kerr and (c) $90,000,000, in the case of
NNI. The Term Loans may from time to time be (i) Eurodollar Loans,
(ii) ABR Loans or (iii) a combination thereof, as determined by the
Parent and notified to the Administrative Agent in accordance with
subsections 2.13 and 2.17."
(h) deleting in its entirety subsection 2.12 thereof (as
renumbered in accordance with the First Amendment) and substituting in lieu
thereof the following:
"2.12 Term Notes. Each Subsidiary Borrower shall issue a
promissory note to evidence the Term Loans made by each Lender to such
Subsidiary Borrower, substantially in the form of Exhibit B to this
Agreement (a " Term Note"), with appropriate insertions therein as to
payee, date and principal amount, payable to the order of such Lender
and in a principal amount equal to the lesser of such Lender's Term
Loan Commitment Percentage of the amount set forth opposite such
Subsidiary Borrower's name on the signature pages hereto and the
aggregate amount of the Term Loan (or portions thereof) made by such
Lender to such Subsidiary Borrower. A Term Note and the Obligation
evidenced thereby may be assigned or otherwise transferred in whole or
in part only by registration of such assignment or transfer of such
Term Note and the Obligation evidenced thereby in the Register (and
each Term Note shall expressly so provide). Any assignment or
transfer of all or part of an Obligation evidenced by a Term Note
shall be registered in the Register only upon surrender for
registration of assignment or transfer of the Term Note evidencing
such Obligation, accompanied by an Assignment and Acceptance
substantially in the form of Exhibit I duly executed by the Assignor
thereof, and thereupon one or more new Term Notes shall be issued to
the designated Assignee and the old Term Note shall be returned by the
Administrative Agent to the Borrower marked "cancelled." No
<PAGE> 10
9
assignment of a Term Note and the Obligation evidenced thereby shall
be effective unless it shall have been recorded in the Register by the
Administrative Agent as provided in this subsection 2.12. Each Lender
is hereby authorized to record the date and amount of each payment or
prepayment of principal of its Term Loan made to such Subsidiary
Borrower, 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 with respect thereto, on the
appropriate schedule annexed to and constituting a part of its Term
Note (or any continuation thereof), and any such recordation shall
constitute prima facie evidence of the accuracy of the information so
recorded. The Term Note of each Lender shall (a) be dated the
Amendment and Restatement Effective Date, (b) be stated to mature in
21 consecutive quarterly installments, payable on the last day of each
October, January, April and July, commencing on July 31, 1997, each of
which shall be in an amount equal to such Lender's Term Loan
Commitment Percentage of the respective amounts set forth in
accordance with the following schedule multiplied by a fraction the
numerator of which is equal to (i) $45,000,000 in the case of
installments payable by Ormco, Erie or Barnstead, (ii) $75,000,000 in
the case of installments payable by Kerr or (iii) $90,000,000 in the
case of installments payable by NNI and the denominator of which is
equal in each case to $300,000,000.
<TABLE>
<CAPTION>
Date Principal Amount
---- ----------------
<S> <C>
July 31, 1997 $ 8,750,000
October 31, 1997 $ 8,750,000
January 31, 1998 $ 8,750,000
April 30, 1998 $ 8,750,000
July 31, 1998 $ 8,750,000
October 31, 1998 $ 8,750,000
January 31, 1999 $ 8,750,000
April 30, 1999 $ 8,750,000
July 31, 1999 $10,000,000
October 31, 1999 $10,000,000
January 31, 2000 $10,000,000
April 30, 2000 $10,000,000
July 31, 2000 $12,500,000
October 31, 2000 $12,500,000
January 31, 2001 $12,500,000
April 30, 2001 $12,500,000
July 31, 2001 $16,250,000
October 31, 2001 $16,250,000
January 31, 2002 $16,250,000
April 30, 2002 $16,250,000
July 31, 2002 $75,000,000
</TABLE>
and (c) provide for the payment of interest in accordance with
subsection 2.19."
<PAGE> 11
10
(i) deleting in its entirety paragraph (c) of subsection 2.15
thereof (as renumbered in accordance with the First Amendment) and substituting
in lieu thereof the following:
"(c) Any prepayment required by the terms of this subsection
2.15 shall be applied first to the reduction of the Term Loans in
accordance with the following sentence until such Term Loans shall
have been satisfied in full and second to the permanent reduction of
the Aggregate Revolving Credit Commitment. Prepayments of the Term
Loans pursuant to this subsection 2.15 shall be applied equally
between (i) the outstanding installments of principal scheduled to be
paid pursuant to subsection 2.12 immediately succeeding the date of
such prepayment and (ii) the last outstanding scheduled installments
of principal pursuant to subsection 2.12. Amounts prepaid on account
of the Term Loans may not be reborrowed."
(j) deleting the reference to "$5,000,000" in the first
sentence of paragraph (a) of subsection 2.16 thereof (as renumbered in
accordance with the First Amendment) and substituting in lieu thereof a
reference to "$15,000,000."
(k) deleting in its entirety paragraph (b) of subsection 2.16
thereof (as renumbered in accordance with the First Amendment) and substituting
in lieu thereof the following new paragraph (b):
"(b) The Parent shall issue a promissory note to evidence the
Swing Line Loans made by Chase to the Parent, substantially in the
form of Exhibit C to this Agreement (the " Swing Line Note"), payable
to the order of Chase and representing the obligation of the Parent to
pay the unpaid principal amount of the Swing Line Loans made to the
Parent, with interest thereon as prescribed in subsection 2.19. Chase
is hereby authorized to record the Borrowing Date, the amount of each
Swing Line Loan made to the Parent and the date and amount of each
payment or prepayment of principal thereof, on the appropriate
schedule annexed to and constituting a part of the Swing Line Note (or
any continuation thereof) and any such recordation shall constitute
prima facie evidence of the accuracy of the information so recorded.
The Swing Line Note shall (a) be dated the Amendment and Restatement
Effective Date, (b) be stated to mature on the Termination Date and
(c) bear interest for the period from the date thereof to the
Termination Date on the unpaid principal amount thereof from time to
time outstanding at the applicable interest rate per annum determined
as provided in, and payable as specified in, subsection 2.19."
(l) deleting in its entirety paragraph (a) of subsection 2.25
thereof (as renumbered in accordance with the First Amendment) and substituting
in lieu thereof the following new paragraph (a):
"(a) All payments made by the Borrowers under this Agreement
and the Notes to any Lender not organized under the laws of the United
States of America or any state thereof (a " Foreign Lender") shall be
made free and clear of, and without deduction or withholding for or on
account of, any future income, stamp or other
<PAGE> 12
11
taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any United States Governmental Authority, excluding net
income taxes and franchise taxes (imposed in lieu of net income taxes)
imposed on the Administrative Agent or any Foreign Lender as a result
of a present or former connection between the Administrative Agent or
such Foreign Lender and the jurisdiction of the United States
Governmental Authority imposing such tax or any political subdivision
or taxing authority thereof or therein (other than any such connection
arising solely from the Agent or such Foreign Lender having executed,
delivered or performed its obligations or received a payment under, or
enforced, this Agreement or the Notes). If any such non-excluded
taxes, levies, imposts, duties, charges, fees deductions or
withholdings (" Non-Excluded Taxes") are required to be withheld from
any amounts payable to the Administrative Agent or any such Foreign
Lender hereunder or under the Notes, the amounts so payable to the
Administrative Agent or such Foreign Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Foreign
Lender (after payment of all Non-Excluded Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts
specified in this Agreement and the Notes, provided, however, that the
Borrowers shall not be required to increase any such amounts payable
to any Foreign Lender if such Foreign Lender fails to comply with the
requirements of paragraph (b) of this subsection. Whenever any
Non-Excluded Taxes are payable by the Borrowers, as promptly as
possible thereafter the Parent shall send to the Administrative Agent
for its own account or for the account of such Foreign Lender, as the
case may be, a certified copy of an original official receipt received
by the relevant Borrower showing payment thereof. If any Borrower
fails to pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required
receipts or other required documentary evidence, the Borrowers shall
indemnify the Administrative Agent and the Lenders for any incremental
taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure.
The agreements in this subsection shall survive the termination of
this Agreement and the payment of the Notes and all other amounts
payable hereunder for a period of one year."
3. Amendments to Section 4. Section 4 of the Existing Credit
Agreement shall be deemed amended by:
(a) deleting in its entirety subsection 4.1 thereof
and substituting in lieu thereof the following:
"4.1 Financial Condition. (a) The consolidated balance
sheets of the Parent and its consolidated Subsidiaries as at September
30, 1995 and September 30, 1996 and the related consolidated
statements of income and of cash flows for the fiscal year ended on
each such date, reported on by KPMG Peat Marwick, copies of which have
heretofore been furnished to each Lender, are complete and present
fairly in all material respects the consolidated financial condition
of the Parent and its consolidated Subsidiaries as at each such date,
and the consolidated results of their operations and their
consolidated cash flows for the relevant fiscal year then ended. The
unaudited
<PAGE> 13
12
consolidated balance sheet of the Parent and its consolidated
Subsidiaries as at December 31, 1996 and the related unaudited
consolidated statements of income and of cash flows for the
three-month period ended on such December date, certified in each case
by a Responsible Officer, copies of which have heretofore been
furnished to each Lender, are complete and present fairly in all
material respects the consolidated financial condition of the Parent
and its consolidated Subsidiaries as at such date, and the
consolidated results of their operations and their consolidated cash
flows for the three month period then ended (subject in each case to
normal year-end audit adjustments). All such financial statements,
including the related schedules and notes thereto, have been prepared
in accordance with GAAP (provided that interim statements may be
condensed and exclude footnotes) applied consistently throughout the
periods involved (except as approved by such accountants or
Responsible Officer, as the case may be, and as disclosed therein).
Neither the Parent nor any of its consolidated Subsidiaries had, at
the date of the most recent balance sheet referred to above, any
material Guarantee Obligation, contingent liability or liability for
taxes, or any long-term lease or unusual forward or long-term
commitment, including, without limitation, any interest rate or
foreign currency swap or exchange transaction, which is not reflected
in the foregoing statements or in the notes thereto. During the
period from December 31, 1996 to and including the date hereof there
has been no sale, transfer or other disposition by the Parent or any
of its consolidated Subsidiaries of any material part of its business
or property and no purchase or other acquisition of any business or
property other than the Remel Acquisition (including any Capital Stock
of any other Person) material in relation to the consolidated
financial condition of the Parent and its consolidated Subsidiaries at
December 31, 1996.
(b) The unaudited pro forma consolidated balance
sheet of the Parent and its Subsidiaries as at December 31, 1996, a
copy of which has been furnished to each Lender, has been prepared from
the unaudited consolidated balance sheet of the Parent and its
Subsidiaries as of December 31, 1996, and presents fairly in all
material respects what the consolidated financial position of the
Parent and its Subsidiaries would have been as at December 31, 1996
after giving effect to the consummation of the Remel Acquisition and
the incurrence of the Loans on the Amendment and Restatement Effective
Date. Such pro forma balance sheet presents fairly on a pro forma
basis the consolidated financial condition of the Parent and its
Subsidiaries as at such date assuming that the events specified in the
preceding sentence had occurred on that date."
(c) deleting in its entirety subsection 4.2 thereof
and substituting in lieu thereof the following:
"4.2 No Change. Since September 30, 1996 there has been no
development or event which has had or could reasonably be expected to
have a Material Adverse Effect."
(d) adding before the period at the end of
subsection 4.6 thereof the following:
<PAGE> 14
13
", except as set forth on Schedule 4.6".
(e) deleting in its entirety subsection 4.16 thereof
and substituting in lieu thereof the following:
"4.16 Purpose of Loans. (i) The proceeds of the Term Loans
shall be used to finance the general corporate purposes of the Parent
and its Subsidiaries, including acquisitions (including the Remel
Acquisition) permitted hereunder and to refinance existing
indebtedness (as set forth on Schedule 4.16 to this 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 working capital needs of the Parent and
its Subsidiaries and for general corporate purposes, including
acquisitions (including the Remel Acquisition) permitted hereunder;
provided that no more than $160,000,000 (subject to any post-closing
purchase price adjustments in accordance with the Acquisition
Documents) of the proceeds of the Loans may be used to finance the
Remel Acquisition."
(f) deleting in its entirety subsection 4.23 thereof
and substituting in lieu thereof the following:
"4.23 Remel Acquisition. The representations and warranties
contained in the Acquisition Documentation of Remel, and, to the best
of the Parent's knowledge, of the other parties to the Acquisition
Documentation, are true and correct in all material respects as of the
Amendment and Restatement Effective Date. On the Amendment and
Restatement Effective Date, the Remel Acquisition will have been
consummated in accordance with the Acquisition Documentation without
any material waiver or other material modification thereof other than
any such waiver or modification that has been approved by the Majority
Lenders."
(g) adding thereto the following new subsection 4.25:
"4.25 Representations and Warranties on Amendment and
Restatement Effective Date. The representations and warranties made
by the Parent and the other Loan Parties in subsections 4.1 through
4.24 are true and correct in all material respects on and as of the
Amendment and Restatement Effective Date, as if made on and as of the
Amendment and Restatement Effective Date, except to the extent such
representations and warranties expressly relate to an earlier date."
4. Amendments to Section 5. Section 5 of the Existing Credit
Agreement shall be deemed amended by adding thereto the following new
subsection 5.3:
"5.3 Conditions to Amendment and Restatement Effective Date.
The Amendment and Restatement Effective Date shall be the date of
satisfaction of the following conditions precedent:
<PAGE> 15
14
(a) Loan Documents. The Administrative Agent shall
have received (i) this Agreement, executed and delivered by a
duly authorized officer of the Parent and each Subsidiary
Borrower, with a counterpart or a conformed copy for each
Lender, (ii) for the account of each Lender, in exchange for
any Term Loan Note previously issued to such Lender, a Term
Note conforming to the requirements hereof and executed by a
duly authorized officer of each Subsidiary Borrower, (iii) for
the account of each Lender, in exchange for any Revolving
Credit Note previously issued to such Lender, a Revolving
Credit Note conforming to the requirements hereof and executed
by a duly authorized officer of each Revolving Credit
Borrower, (iv) for the account of each Lender, in exchange for
any CAF Advance Note previously issued to such Lender, a CAF
Advance Note conforming to the requirements hereof and
executed by a duly authorized officer of each Revolving Credit
Borrower, (v) for the account of Chase, in exchange for any
Swing Line Note previously issued to Chase, a Swing Line Note
conforming to the requirements hereof and executed by a duly
authorized officer of the Parent, (vi) each of the Pledge
Agreements, each executed and delivered by a duly authorized
officer of the Loan Party or Loan Parties, as the case may be,
party thereto, with a counterpart or a conformed copy for each
Lender and (vii) the Subsidiaries Guarantee, executed and
delivered by a duly authorized officer of each of the Loan
Parties thereto, with a counterpart or a conformed copy for
each Lender.
(b) Other Agreements. The Administrative Agent
shall have received, with a copy for each Lender, true and
correct copies, certified as to authenticity by the Parent, of
the Acquisition Documentation and, if reasonably requested by
the Administrative Agent, such other material documents or
instruments to which the Parent or any of its Subsidiaries may
be a party.
(c) Corporate Documents. The Administrative Agent
shall have received true and complete copies of the
certificate of incorporation and by-laws of each new
Subsidiary acquired since the closing date for the Existing
Credit Agreement, certified as of the Amendment and
Restatement Effective Date as complete and correct copies
thereof by the Secretary or an Assistant Secretary of such
Subsidiary.
(d) Resolutions. 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, the Subsidiary Borrowers and
each new Subsidiary formed or acquired since the closing date
for the Existing Credit Agreement (but excluding any
Subsidiary acquired before July 9, 1996 provided that such
Subsidiary has previously delivered resolutions that comply
with the requirements of this sentence) authorizing the
execution, delivery and performance of this Agreement, and, in
the case of the new Subsidiaries, the Loan Documents to be
entered into on the Amendment and Restatement Effective Date,
certified by the Secretary or an Assistant Secretary of such
party as of the Amendment and Restatement Effective Date,
<PAGE> 16
15
which certificate shall state that the resolutions thereby
certified have not been amended, modified, revoked or
rescinded as of the date of such certificate.
(e) Incumbency Certificate. The Administrative
Agent shall have received, to the extent that it has not
theretofore received, a certificate of the Secretary or
Assistant Secretary of each of the Parent, the Subsidiary
Borrowers and each new Subsidiary formed or acquired since
July 9, 1996, dated the Amendment and Restatement Effective
Date, as to the incumbency and signature of each of the
officers signing this Agreement, and, in the case of the new
Subsidiaries, the Loan Documents to be entered into on the
Amendment and Restatement Effective Date, 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.
(f) Pledged Stock; Stock Powers; Pledged Notes. The
Administrative Agent shall have received the stock
certificates representing the shares (or other indicia of
ownership interests to the extent applicable) pledged pursuant
to each of the Pledge Agreements, together with, if
applicable, an undated stock power for each such certificate
executed in blank by a duly authorized officer of the pledgor
thereof, and the notes pledged pursuant to each of the Pledge
Agreements, each endorsed in blank by a duly authorized
officer of the pledgor thereof.
(g) Acknowledgement and Consent. The Administrative
Agent shall have received from each issuer referred to in the
Pledge Agreements an executed acknowledgement and consent
which in each case shall be substantially in the form of Annex
I to each Pledge Agreement.
(h) Legal Opinions. The Administrative Agent shall
have received, with a counterpart for each Lender, written
legal opinions of counsel to each of the Parent, the
Subsidiary Borrowers and each material Subsidiary executing a
security document since the closing date of the Existing
Credit Agreement, dated the Amendment and Restatement
Effective Date and addressed to the Administrative Agent and
the Lenders, substantially in the form of the opinions of
counsel rendered on the closing date for the Existing Credit
Agreement and on July 9, 1996 with changes therein to reflect
that such opinion is in respect of this Agreement and the
amended Loan Documents.
(i) Fees. The Administrative Agent and the Lenders
shall have received all fees and expenses due from the Loan
Parties.
(j) Pay Proceeds Letter. The Administrative Agent
shall have received a letter from the Parent containing wire
transfer instructions relating to the funds to be made
available to the Borrowers on the Amendment and Restatement
Effective Date.
<PAGE> 17
16
(k) Remel Acquisition. All conditions precedent to
the execution and delivery of the Acquisition Documentation
shall have been satisfied (or, with the prior written consent
of the Administrative Agent, waived) and the Remel Acquisition
shall have been consummated in accordance with the terms of
the Acquisition Documentation.
(l) Good Standing Certificates. The Administrative
Agent shall have received a certificate from the Secretary of
State, or other appropriate authority of such jurisdiction,
evidencing the good standing (or similar concept under
applicable law) of each of the Borrowers and each new
Subsidiary formed or acquired since July 9, 1996 (other than
any Subsidiaries organized under the laws of a jurisdiction in
which the concept of "good standing" is inapplicable) in the
jurisdiction of its incorporation or organization and each
jurisdiction in which a failure to so qualify could reasonably
be expected to have a Material Adverse Effect.
(m) Financial Statements of Remel. The
Administrative Agent and each Lender shall have received, and
be satisfied with, a copy of the audited consolidated balance
sheet of Remel as at December 31, 1996 and the related audited
consolidated statements of income and retained earnings and of
cash flows for such year, setting forth in each case in
comparative form the figures for the previous year.
(n) Additional Matters. All corporate and other
proceedings, and all documents, instruments and other legal
matters in connection with the transactions contemplated by
this Agreement and the other Loan Documents shall be
reasonably satisfactory in form and substance to the
Administrative Agent, and the Administrative Agent shall have
received such other documents and legal opinions in respect of
any aspect or consequence of the transactions contemplated
hereby or thereby as it shall reasonably request."
5. Amendments to Section 6. Section 6 of the Existing Credit
Agreement shall be deemed amended by:
(a) deleting the word "and" at the end of paragraph (e) of
subsection 6.2 thereof;
(b) deleting the entirety of paragraph (f) of subsection 6.2
thereof and substituting in lieu thereof the following:
"(f) concurrently with the delivery of the financial
statements referred to in subsections 6.1(a) and 6.1(b)(i),
(i) a presentation, in reasonable detail, of the financial
data relied upon in arriving at any figure for cost reductions
assumed in the calculation of the Leverage Ratio and (ii) a
certificate of a Responsible Officer of the Parent stating
that such officer reasonably believes that any such cost
reductions (as certified pursuant to subsection 6.2(d)) are
<PAGE> 18
17
related to the applicable acquisition and are immediately
realizable as of the date of such acquisition and that such
officer has no reason to believe such cost reductions are
incorrect in any material respect; and
(g) promptly, such additional financial and other
information as any Lender may from time to time reasonably
request."
(c) deleting all references to "$1,000,000" contained in
subsection 6.7(c) thereof and substituting in lieu thereof references to
"$2,000,000".
(d) deleting the reference in subsection 6.9(a) thereof to
the "Closing Date" and substituting in lieu thereof a reference to the
"Amendment and Restatement Effective Date".
(e) inserting in subsection 6.9(a), after the words,
"becomes a Subsidiary of the Parent after the Closing Date", the following
parenthetical:
"(except LMD Laboratories, Inc., an indirect subsidiary of
Erie with tangible assets of less than $1,000,000 and total
assets of less than $2,000,000, and Lab Acquisition Co., a
direct subsidiary of Barnstead having no assets)".
6. Amendments to Section 7. Section 7 of the Existing Credit
Agreement shall be deemed amended by:
(a) deleting paragraph (c) of subsection 7.1 thereof in its
entirety and substituting in lieu thereof the following:
"(c) Leverage Ratio. Permit the Leverage Ratio for
any period of four consecutive fiscal quarters ending during
any period set forth below to be greater than the ratio
set forth opposite such period below:
<TABLE>
<CAPTION>
"Date Ratio
---- -----
<S> <C>
Amendment and Restatement
Effective Date - 9/29/98 3.75
9/30/98 - 9/29/99 3.25
9/30/99 - 9/29/00 2.75
9/30/00 - thereafter 2.50."
</TABLE>
(b) deleting in its entirety paragraph (c) of subsection 7.2
thereof and substituting in lieu thereof the following:
"(c) Interest Rate Agreements and foreign exchange
contracts not to exceed an aggregate notional amount of
$500,000,000 entered into for non-speculative purposes or
entered into in the ordinary course of business;
<PAGE> 19
18
provided that a Lender shall be an account party to each such
Interest Rate Agreement or foreign exchange contract;"
(c) adding the following paragraph (h) to subsection 7.2
thereof and relettering the current paragraph (h) as paragraph (i):
"(h) any additional Subordinated Indebtedness
permitted under subsections 7.1(b) and (c) hereof; provided
that 100% of the Net Proceeds of such Subordinated
Indebtedness are applied to prepay the Loans, reduce the
Aggregate Revolving Credit Commitment and/or cash
collateralize the outstanding Letters of Credit in accordance
with subsection 2.15; and"
(d) deleting the reference to "$10,000,000" contained in
subsection 7.7 thereof and substituting in lieu thereof a reference to
"$20,000,000".
(e) deleting in its entirety subsection 7.9 thereof.
(f) deleting the word "and" at the end of paragraph (g) of
subsection 7.10 thereof.
(g) deleting in its entirety paragraph (h) of subsection 7.10
thereof and substituting in lieu thereof the following:
"(h) investments in Interest Rate Agreements and
foreign exchange contracts not to exceed an aggregate notional
amount of $500,000,000 entered into for non-speculative
purposes, provided that a Lender shall be an account party to
each such Interest Rate Agreement or foreign exchange
contract; and"
(h) adding the following as paragraph (i) of subsection 7.10
thereof:
"(i) loans in an aggregate principal amount not to
exceed $500,000 individually and $2,500,000 in the aggregate
at any time outstanding with terms not to exceed ninety (90)
days, which terms may not be extended or refinanced beyond the
original maturity thereof."
7. Amendments to Section 11. Section 11 of the Existing
Credit Agreement shall be deemed amended by:
(a) adding at the end of the first sentence of paragraph (d)
of subsection 11.6 thereof the following:
"and the registered owners of the Obligation(s) evidenced by the
Note(s). Notes and the Obligations evidenced thereby may be assigned
or otherwise transferred in whole or in part only by registration of
such assignment or transfer on the Register (and each Note shall
expressly so provide). Any assignment or transfer of all or part of
such Obligation(s) and the Note(s) evidencing the same shall be
registered on the
<PAGE> 20
19
Register only upon surrender for registration of assignment or
transfer of the Note(s) evidencing such Obligation(s), duly endorsed
by (or accompanied by a written instrument of assignment or transfer
duly executed by) the holder thereof, and thereupon one or more new
Note(s) in the same aggregate principal amount shall be issued to the
designated Assignee(s) and the old Note(s) shall be returned by the
Administrative Agent to the applicable Borrower marked "cancelled".
No assignment of any Note or obligations shall be effective unless it
has been recorded in the Register as provided in this subsection
11.6(d)".
(ii) by deleting in its entirety subsection 11.7
thereof.
(iii) by renumbering subsection 11.8 as subsection
11.7.
SUBSECTIONS 11.8 THROUGH 11.19
11.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Parent and the
Administrative Agent.
11.9 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.
11.10 Integration. This Agreement and the other Loan
Documents represent the entire agreement of the Parent, the Subsidiary
Borrowers, the Administrative Agent and the Lenders with respect to the subject
matter hereof, and there are no promises, undertakings, representations or
warranties by the Administrative Agent or any Lender relative to subject matter
hereof not expressly set forth or referred to herein or in the other Loan
Documents.
11.11 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.
11.12 Submission To Jurisdiction; Waivers. Each of the
Borrowers hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action
or proceeding relating to this Agreement and the other Loan Documents
to which it is a party, or for
<PAGE> 21
20
recognition and enforcement of any judgement in respect thereof, to
the non-exclusive general jurisdiction of the Courts of the State of
New York, 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 plead 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 Borrower at its address set forth in subsection 11.2
or at such other address of which the Administrative Agent shall have
been notified pursuant thereto;
(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.
11.13 Effect of Amendment and Restatement of the Existing
Credit Agreement. On the Amendment and Restatement Effective Date, the
Existing Credit Agreement shall be amended, restated and superseded in its
entirety. The parties hereto acknowledge and agree that (a) this Agreement and
the other Loan Documents executed and delivered in connection herewith do not
constitute a novation, payment and reborrowing, or termination of the
"Obligations" (as defined in the Existing Credit Agreement) under the Existing
Credit Agreement as in effect prior to the Amendment and Restatement Effective
Date; (b) such "Obligations" are in all respects continuing (as amended and
restated hereby) with only the terms thereof being modified as provided in this
Agreement; and (c) the Liens and security interests as granted under the
Security Documents securing payment of such "Obligations" are in all respects
continuing and in full force and effect and secure the payment of the
Obligations.
11.14 Acknowledgements. Each Borrower hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the Notes and the other
Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to such Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between the
<PAGE> 22
21
Administrative Agent and the Lenders, on one hand, and the Borrowers,
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 Borrowers and the
Lenders.
11.15 WAIVERS OF JURY TRIAL. THE BORROWERS, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR THE NOTES OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
11.16 Parent as Agent of Subsidiary Borrowers. Each
Subsidiary Borrower hereby irrevocably authorizes the Parent to file and
receive all notices, requests and demands for such Subsidiary Borrower as set
forth in this Agreement and as otherwise contemplated hereby and ratifies the
prepayment allocations referred to in subsection 2.15(e) and acknowledges that
each such specification by the Parent is being undertaken pursuant to specific
instructions by such Subsidiary Borrower to the Parent.
11.17 Confidentiality. Each Lender agrees to keep the
information obtained by it pursuant hereto and the other Loan Documents
identified as confidential in writing at the time of delivery to such Lender
confidential in accordance with such Lender's customary practices and agrees
that it will only use such information in connection with the transactions
contemplated by this Agreement and not disclose any of such information other
than (a) to such Lender's directors, employees, representatives, attorneys,
accountants, agents or Affiliates who are advised of the confidential nature of
such information, (b) to the extent such information presently is or hereafter
becomes available to such Lender on a non-confidential basis from any source or
such information that is in the public domain at the time of disclosure, (c) to
the extent disclosure is required by law, regulation, subpoena or judicial
order or process (provided that notice of such requirement or order shall be
promptly furnished to the Parent unless such notice is legally prohibited) or
requested or required by bank regulators or auditors or any administrative body
or commission to whose jurisdiction such Lender may be subject, (d) to
Transferees or potential Transferees who agree to be bound by the provisions of
this subsection 11.17, (e) to the extent required in connection with any
litigation between the Borrowers and any Lender with respect to the Loans or
this Agreement or any other Loan Document, (f) to the Administrative Agent or
any other Lender, (g) in connection with the exercise of any remedy hereunder
or under the other Loan Documents or (h) with the Parent's prior written
consent. The agreements in this subsection shall survive repayment of the
Notes and all other amounts payable hereunder.
11.18 Schedules and Exhibits. Schedules I through 7.4(e) of
the Existing Credit Agreement are hereby deleted and replaced in their entirety
by Schedules I through 7.4(e) hereto and Schedules 4.6 and 4.16 are added
hereto. Exhibits A-1 through M-2 of the Existing Credit Agreement are hereby
deleted in their entirety and are hereby replaced by
<PAGE> 23
22
Exhibits A through I hereto and this Agreement shall be deemed modified to
reflect such revised Exhibit lettering.
11.20 Non-Extending Lenders. The Commitment of each Lender
under (and as defined in) the Existing Credit Agreement which after the
Amendment and Restatement Effective Date no longer holds a Commitment (a
"Non-Extending Lender") will terminate on the Amendment and Restatement
Effective Date upon repayment in full of all amounts owing to it under the
Existing Credit Agreement on the Amendment and Restatement Effective Date. The
modifications effected by this Agreement are being approved by Lenders holding
100% of the Commitments after giving effect to termination of the Commitments
of the Non-Extending Lenders on the Amendment and Restatement Effective Date.
11.21 Name Changes. References in the Existing Credit
Agreement (a) to Chemical Bank and Chemical Securities Inc. shall be deemed to
be references to The Chase Manhattan Bank and Chase Securities Inc.,
respectively and (b) to Nalge shall be deemed to be references to NNI.
<PAGE> 24
23
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
SYBRON INTERNATIONAL CORPORATION
By: /s/ John J. Buono
--------------------------------------
Title: Assistant Treasurer
ORMCO CORPORATION
By: /s/ John J. Buono
--------------------------------------
Title: Assistant Treasurer
KERR CORPORATION
By: /s/ John J. Buono
--------------------------------------
Title: Assistant Treasurer
NALGE NUNC INTERNATIONAL CORPORATION
By: /s/ John J. Buono
--------------------------------------
Title: Assistant Treasurer
ERIE SCIENTIFIC COMPANY
By: /s/ John J. Buono
--------------------------------------
Title: Assistant Treasurer
<PAGE> 25
24
BARNSTEAD THERMOLYNE CORPORATION
By: /s/ John J. Buono
--------------------------------------
Title: Assistant Treasurer
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By: /s/ Mary E. Gherty
--------------------------------------
Title: Managing Director
ABN AMRO BANK N.V., CHICAGO BRANCH
By: /s/ Nancy L. Capecci
--------------------------------------
Title: Assistant Vice President
By: /s/ Douglas R. Elliot
--------------------------------------
Title: Vice President
BANK OF AMERICA ILLINOIS
By: /s/ M. H. Claggett
--------------------------------------
Title: Vice President
BANK OF MONTREAL
By: /s/ Irene M. Geller
--------------------------------------
Title: Director
<PAGE> 26
25
BANK ONE, COLUMBUS, NA
By: /s/ Douglas H. Klamfoth
--------------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F. C. H. Ashby
--------------------------------------
Title: Senior Managed Loan
Operations
BANK OF SCOTLAND
By: /s/ Annie Chin Tat
--------------------------------------
Title: Assistant Vice President
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By: /s/ Brian J. Cumberland
--------------------------------------
Title: Assistant Treasurer
By: /s/ Frederick K. Kammler
--------------------------------------
Title: Vice President
<PAGE> 27
26
BANQUE PARIBAS
By: /s/ Karen E. Coons
--------------------------------------
Title: Vice President
By: /s/ Nicholas C. Mast
--------------------------------------
Title: Vice President
CAISSE NATIONALE DE CREDIT AGRICOLE
By: /s/ David Bouhl
--------------------------------------
Title: Head of Corporate Banking
Chicago
COMERICA BANK
By: /s/ Harve Light
--------------------------------------
Title: Assistant Vice President
CREDIT LYONNAIS CHICAGO BRANCH
By: /s/ Mary Ann Klemm
--------------------------------------
Title: Vice President and Group Head
DG BANK, DEUTSCHE GENOSSENSCHAFTSBANK
CAYMAN ISLAND BRANCH
By: /s/ Norah E. McCann
--------------------------------------
Title: Senior Vice President
<PAGE> 28
27
By: /s/ Karen Brinkman
--------------------------------------
Title: Vice President
FIRST BANK NATIONAL ASSOCIATION
By: /s/ Mark R. Olmon
--------------------------------------
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Robert C. Robino
--------------------------------------
Title: Vice President
THE FUJI BANK, LIMITED
By: /s/ Peter L. Chinnici
--------------------------------------
Title: Joint General Manager
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD. CHICAGO BRANCH
By: /s/ Armand J. Schoen Jr.
--------------------------------------
Title: Vice President & Deputy
General Manager
MELLON BANK, N.A.
By: /s/ Jeffrey M. Anderson
--------------------------------------
Title: Vice President
<PAGE> 29
28
THE BANK OF TOKYO-MITSUBISHI, Ltd.,
CHICAGO BRANCH
By: /s/ Hajime Watanabe
--------------------------------------
Title: Deputy General Manager
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/ Patricia Loret de Mole
--------------------------------------
Title: Senior Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Jerry J. Kane
--------------------------------------
Title: Senior Vice President
THE SAKURA BANK, LIMITED
By: /s/ Shunji Sakurai
--------------------------------------
Title: Joint General Manager
SOCIETE GENERALE
By: /s/ Susan C. Hummel
--------------------------------------
Title: Assistant Vice President
By: /s/ Joseph Philbin
--------------------------------------
Title: Vice President
<PAGE> 30
29
THE SUMITOMO BANK, LTD., CHICAGO
BRANCH
By: /s/ John H. Kemper
--------------------------------------
Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/ Mark T. Famile
--------------------------------------
Title: Assistant Vice President
SANWA BANK LTD. (CHICAGO)
By: /s/ Joseph P. Howard
--------------------------------------
Title: Vice President
BANQUE NATIONALE DE PARIS
By: /s/ Jo Ellen Bender
--------------------------------------
Title: Vice President & Manager
BHF BANK AKTIENGESELLSCHAFT
GRAND CAYMAN BRANCH
By: /s/ John Sykes
--------------------------------------
Title: Assistant Vice President
By: /s/ Thomas J. Scifo
--------------------------------------
Title: Assistant Vice President
<PAGE> 31
30
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA
By: /s/ Tom Cambern
--------------------------------------
Title: Vice President
FIRSTAR BANK MILWAUKEE, N.A.
By: /s/ James A. Meyer
--------------------------------------
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED CHICAGO BRANCH
By: /s/ Hiroaki Nakamura
--------------------------------------
Title: Joint General Manager
BANCA COMMERCIALE ITALIANA
(CHICAGO)
By: /s/ Julian M. Teodori
--------------------------------------
Title: Senior Vice President &
Branch Manager
By: /s/ Diana R. Lamb
--------------------------------------
Title: Vice President
YASUDA TRUST & BANKING COMPANY,
LIMITED (CHICAGO)
By: /s/ Joseph C. Meek
--------------------------------------
Title:
<PAGE> 1
EXHIBIT 4.2
EXHIBIT A TO
CREDIT AGREEMENT
FORM OF REVOLVING CREDIT NOTE
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND
PROVISIONS OF THE SECOND AMENDED AND RESTATED CREDIT AGREEMENT REFERRED TO
BELOW. TRANSFERS OF THIS NOTE MUST BE RECORDED IN THE REGISTER MAINTAINED BY
THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH SECOND AMENDED AND
RESTATED CREDIT AGREEMENT.
$___________ New York, New York
April 25, 1997
FOR VALUE RECEIVED, each of the undersigned, Sybron International
Corporation ("Parent"), a Wisconsin corporation, Kerr Corporation ("Kerr"), a
Delaware Corporation, and Nalge Nunc International Corporation ("NNI"), a
Delaware Company (each, a "Revolving Credit Borrower"), severally, hereby
unconditionally promises to pay to the order of ________________ (the "Lender")
at the office of The Chase Manhattan Bank, located at 270 Park Avenue, New
York, New York 10017, in lawful money of the United States of America and in
immediately available funds, on the Termination Date the lesser of (a) the
principal amount of ________________ DOLLARS ($_______), 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.
<PAGE> 2
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
Second Amended and Restated Credit Agreement dated as of April 25, 1997 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Parent, Kerr, NNI, 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, Chase Securities
Inc., as arranger, and The Chase Manhattan Bank, as 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:
---------------------------------
<PAGE> 3
3
KERR CORPORATION
By:
-----------------------------------
Name:
----------------------------------
Title:
----------------------------------
NALGE NUNC INTERNATIONAL CORPORATION
By:
-----------------------------------
Name:
----------------------------------
Title:
----------------------------------
<PAGE> 4
Schedule A-1
to Revolving Credit Note
PARENT
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount Amount of ABR Loans
Converted to Amount of Principal of Converted to Unpaid Principal Notation
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 5
Schedule A-2
to Revolving Credit Note
KERR
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount Amount of ABR Loans
Converted to Amount of Principal of Converted to Unpaid Principal Notation
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 6
Schedule A-3
to Revolving Credit Note
NNI
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount Amount of ABR Loans
Converted to Amount of Principal of Converted to Unpaid Principal Notation
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans 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>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount Interest Period Amount of Amount of Unpaid
Converted to and Eurodollar Principal of Eurodollar Loans Principal
Amount of Eurodollar Rate with Respect Eurodollar Converted to ABR Balance of Notation
Date Eurodollar Loans Loans Thereto Loans 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>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount Interest Period Amount of Amount of Unpaid
Converted to and Eurodollar Principal of Eurodollar Loans Principal
Amount of Eurodollar Rate with Respect Eurodollar Converted to ABR Balance of Notation
Date Eurodollar Loans Loans Thereto Loans Repaid Loans Eurodollar Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 9
Schedule B-3
to Revolving Credit Note
NNI
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount Interest Period Amount of Amount of Unpaid
Converted to and Eurodollar Principal of Eurodollar Loans Principal
Amount of Eurodollar Rate with Respect Eurodollar Converted to ABR Balance of Notation
Date Eurodollar Loans Loans Thereto Loans Repaid Loans Eurodollar Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 1
EXHIBIT 4.3
EXHIBIT B
TO THE CREDIT AGREEMENT
FORM OF TERM NOTE
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND
PROVISIONS OF THE SECOND AMENDED AND RESTATED CREDIT AGREEMENT REFERRED TO
BELOW. TRANSFERS OF THIS NOTE MUST BE RECORDED IN THE REGISTER MAINTAINED BY
THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH SECOND AMENDED AND
RESTATED CREDIT AGREEMENT.
$__________ New York, New York
April 25, 1997
FOR VALUE RECEIVED, each of the undersigned, Ormco Corporation
("Ormco"), a Delaware corporation, Kerr Corporation ("Kerr"), a Delaware
corporation, Nalge Nunc International Corporation ("NNI"), a Delaware
corporation, Erie Scientific Company ("Erie"), a Delaware corporation and
Barnstead Thermolyne Corporation ("Barnstead"), a Delaware corporation (each, a
"Borrower"), severally, hereby unconditionally promises to pay to the order of
_____________________(the "Lender") at the office of The Chase Manhattan Bank,
located at 270 Park Avenue, New York, New York 10017, in lawful money of the
United States of America and in immediately available funds, in accordance with
subsection 2.7 of the Credit Agreement, the lesser of (a) the principal amount
of (i) in the case of each of Ormco, Erie and Barnstead individually,
_____________________ DOLLARS ($_______), (ii) in the case of Kerr,
_____________________ DOLLARS ($_______), and (iii) in the case of NNI,
___________________ DOLLARS ($______), and (b) the aggregate unpaid principal
amount of the Term Loan (or portion thereof) made by the Lender to such Borrower
pursuant to subsection 2.6 of the Credit Agreement, as hereinafter defined. The
principal amount of such Term Loan shall be paid in consecutive quarterly
installments, payable on the last day of each October, January, April and July
commencing on July 31, 1997 in accordance with subsection 2.7 of the Credit
Agreement. Each Borrower, severally, further agrees to pay interest in like
money at such office on the unpaid principal amount of Term Loans of such
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 the Term Loan made by the holder to each Borrower and the date and amount of
each payment or prepayment of principal with respect thereto, each conversion
of all or a portion thereof to another Type, each continuation of all or a
portion thereof as the same 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
<PAGE> 2
2
endorsed. The failure to make any such endorsement shall not affect the
obligations of the Borrower in respect of such Term Loan.
This Note (a) is one of the Term Notes referred to in the Second
Amended and Restated Credit Agreement dated as of April 25, 1997 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among Sybron International Corporation, a Wisconsin corporation, Ormco, Kerr,
NNI, Erie, Barnstead, the Lender, the other banks and financial institutions
from time to time parties thereto, Chase Securities Inc., as arranger, and The
Chase Manhattan Bank, as 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.
ORMCO CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
KERR CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
<PAGE> 3
3
NALGE NUNC INTERNATIONAL CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ERIE SCIENTIFIC COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BARNSTEAD THERMOLYNE
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
<PAGE> 4
Schedule A-1
to Term Note
ORMCO
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount Amount of ABR Loans
Converted to Amount of Principal of Converted to Unpaid Principal Notation
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 5
Schedule A-2
to Term Note
KERR
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount Amount of ABR Loans
Converted to Amount of Principal of Converted to Unpaid Principal Notation
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 6
Schedule A-3
to Term Note
NNI
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount Amount of ABR Loans
Converted to Amount of Principal of Converted to Unpaid Principal Notation
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 7
Schedule A-4
to Term Note
ERIE
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount Amount of ABR Loans
Converted to Amount of Principal of Converted to Unpaid Principal Notation
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 8
Schedule A-5
to Term Note
BARNSTEAD
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount Amount of ABR Loans
Converted to Amount of Principal of Converted to Unpaid Principal Notation
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 9
Schedule B-1
to Term Note
ORMCO
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount Interest Period Amount of Amount of Unpaid
Converted to and Eurodollar Principal of Eurodollar Loans Principal
Amount of Eurodollar Rate with Respect Eurodollar Converted to ABR Balance of Notation
Date Eurodollar Loans Loans Thereto Loans Repaid Loans Eurodollar Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 10
Schedule B-2
to Term Note
KERR
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount Interest Period Amount of Amount of Unpaid
Converted to and Eurodollar Principal of Eurodollar Loans Principal
Amount of Eurodollar Rate with Respect Eurodollar Converted to ABR Balance of Notation
Date Eurodollar Loans Loans Thereto Loans Repaid Loans Eurodollar Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 11
Schedule B-3
to Term Note
NNI
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount Interest Period Amount of Amount of Unpaid
Converted to and Eurodollar Principal of Eurodollar Loans Principal
Amount of Eurodollar Rate with Respect Eurodollar Converted to ABR Balance of Notation
Date Eurodollar Loans Loans Thereto Loans Repaid Loans Eurodollar Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 12
Schedule B-4
to Term Note
ERIE
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount Interest Period Amount of Amount of Unpaid
Converted to and Eurodollar Principal of Eurodollar Loans Principal
Amount of Eurodollar Rate with Respect Eurodollar Converted to ABR Balance of Notation
Date Eurodollar Loans Loans Thereto Loans Repaid Loans Eurodollar Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 13
Schedule B-5
to Term Note
BARNSTEAD
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount Interest Period Amount of Amount of Unpaid
Converted to and Eurodollar Principal of Eurodollar Loans Principal
Amount of Eurodollar Rate with Respect Eurodollar Converted to ABR Balance of Notation
Date Eurodollar Loans Loans Thereto Loans Repaid Loans Eurodollar Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 1
EXHIBIT 4.4
EXHIBIT C
TO THE CREDIT AGREEMENT
FORM OF SWING LINE NOTE
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND
PROVISIONS OF THE SECOND AMENDED AND RESTATED CREDIT AGREEMENT REFERRED TO
BELOW. TRANSFERS OF THIS NOTE MUST BE RECORDED IN THE REGISTER MAINTAINED BY
THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH SECOND AMENDED AND
RESTATED CREDIT AGREEMENT.
$___________ New York, New York
April 25, 1997
FOR VALUE RECEIVED, the undersigned, Sybron International Corporation,
a Wisconsin corporation (the " Borrower"), hereby unconditionally promises to
pay to the order of The Chase Manhattan Bank (the "Lender") at the office of
The Chase Manhattan Bank, located at 270 Park Avenue, New York, New York 10017,
in lawful money of the United States of America and in immediately available
funds, on the Termination Date the lesser of (a) the principal amount of
__________ DOLLARS ($__________), and (b) the aggregate unpaid principal amount
of all Swing Line Loans made by the Lender to the Borrower pursuant to
subsection 2.16 of the Credit Agreement, as hereinafter defined. The Borrower
further agrees to pay interest in like money at such office on the unpaid
principal amount hereof 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 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 and amount of each Swing
Line Loan made pursuant to the Credit Agreement and the date and amount of each
payment or prepayment of principal thereof. 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 Swing Line Loan.
This Note (a) is one of the Swing Line Notes referred to in the Second
Amended and Restated Credit Agreement dated as of April 25, 1997 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among the Borrower, Ormco Corporation, a Delaware corporation, Kerr
Corporation, a Delaware corporation, Nalge Nunc International 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, Chase
Securities Inc., as arranger, and The Chase Manhattan Bank, as administrative
agent, (b)
<PAGE> 2
2
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:
----------------------------------
<PAGE> 3
SCHEDULE A
TO SWING LINE NOTES
LOANS AND REPAYMENTS OF SWING LINE LOANS
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
Amount of Swing Line Amount of Principal of Unpaid Principal Balance
Date Loans Swing Line Loans Repaid of Swing Lien Loans Nation Made By
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 1
EXHIBIT 4.5
EXHIBIT H
TO THE CREDIT AGREEMENT
FORM OF CAF ADVANCE NOTE
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND
PROVISIONS OF THE SECOND AMENDED AND RESTATED CREDIT AGREEMENT REFERRED TO
BELOW. TRANSFERS OF THIS NOTE MUST BE RECORDED IN THE REGISTER MAINTAINED BY
THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH SECOND AMENDED AND
RESTATED CREDIT AGREEMENT.
New York, New York
$_______________ April 25, 1997
FOR VALUE RECEIVED, each of the undersigned, Sybron International
Corporation ("Parent"), a Wisconsin corporation, Kerr Corporation ("Kerr"), a
Delaware Corporation, and Nalge Nunc International Corporation ("NNI"), a
Delaware Company (each, a "Revolving Credit Borrower"), severally, hereby
unconditionally promises to pay to the order of
_________________________________ (the "Lender") at the office of The Chase
Manhattan Bank located at 270 Park Avenue, New York, New York 10017, in lawful
money of the United States of America and in immediately available funds, the
principal amount of (a) ____________________________________________ DOLLARS
($___________), 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
<PAGE> 2
2
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 Second
Amended and Restated Credit Agreement dated as of April 25, 1997 (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, Chase Securities Inc.,
as Arranger, and The Chase Manhattan 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:
<PAGE> 3
3
NALGE NUNC INTERNATIONAL CORPORATION
By
--------------------------------------
Title:
<PAGE> 4
SCHEDULE OF CAF ADVANCES
_________________, Lender
Sybron International Corporation, Revolving Credit Borrower
Second Amended and Restated Credit Agreement dated as of April 25, 1997
<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
Kerr Corporation, Revolving Credit Borrower
Second Amended and Restated Credit Agreement dated as of April 25, 1997
<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> 6
SCHEDULE OF CAF ADVANCES
_________________, Lender
Nalge Nunc International Corporation, Revolving Credit Borrower
Second Amended and Restated Credit Agreement dated as of April 25, 1997
<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 4.6
[Conformed Copy]
SECOND AMENDED AND RESTATED PARENT PLEDGE AGREEMENT
SECOND AMENDED AND RESTATED PLEDGE AGREEMENT, dated as of April
25, 1997, made by Sybron International Corporation, a Wisconsin corporation
(the "Parent"), in favor of The Chase Manhattan 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 Second
Amended and Restated Credit Agreement, dated as of April 25, 1997 (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 Nunc International
Corporation, a Delaware corporation ("NNI"), Erie Scientific Company, a
Delaware corporation ("Erie"), Barnstead Thermolyne Corporation, a Delaware
corporation ("Barnstead"; Ormco, Kerr, NNI, Erie and Barnstead are collectively
referred to herein as the "Subsidiary Borrowers"), the Lenders, the
Administrative Agent and 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 The Chase Manhattan Bank,
as agent for such banks, are parties to that certain Amended and Restated
Credit Agreement, dated as of July 31, 1995 (as amended by the First Amendment,
the "Existing Credit Agreement") providing for certain Loans (as defined
therein) and other extensions of credit described therein;
WHEREAS, the Borrowers have requested that the Existing Credit
Agreement be amended and restated as hereinafter provided to, inter alia,
extend new Term Loans to the Subsidiary Borrowers in an aggregate principal
amount equal to the principal amount of the Term Loans extended under the
Existing Credit Agreement that has amortized to date and to increase the
Aggregate Revolving Credit Commitment from $300,000,000 to $600,000,000;
WHEREAS, the Subsidiary Borrowers will use the proceeds of the
Term Loans to finance the general corporate needs of the Parent and its
Subsidiaries, including permitted acquisitions (including the Remel
Acquisition, as defined in the Credit Agreement), to refinance existing
indebtedness and to pay fees and other expenses related thereto;
WHEREAS the Revolving Credit Borrowers will use the proceeds of
the Revolving Credit Loans and the Swing Line Loans to finance the working
capital needs of the Parent and its Subsidiaries and for general corporate
purposes, including permitted acquisitions (including the Remel Acquisition);
and
<PAGE> 2
WHEREAS, the Lenders, the Arranger and the Administrative Agent
are willing to agree to such amendment and restatement of the Existing Credit
Agreement;
WHEREAS, the Parent is the legal and beneficial owner of the
shares of Pledged Stock (as hereinafter defined) hereby pledged by the Parent;
WHEREAS, the Parent is the legal and beneficial owner of each of
the Pledged Notes (as hereinafter defined) hereby pledged by the Parent; 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 Second Amended and Restated Parent Pledge Agreement
(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. (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) The following terms shall have the following meanings:
"Agreement": this Second 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 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
<PAGE> 3
3
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.
(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
<PAGE> 4
4
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 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
<PAGE> 5
5
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 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
<PAGE> 6
6
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 (1) 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, (2) sell, assign, transfer,
exchange, or otherwise dispose of, or grant any option with respect to,
the Collateral, or (3) 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, 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
<PAGE> 7
7
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
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 7 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,
(1) 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, (2) 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 (A) 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 (B) 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 upon the exercise by the Parent or the
Administrative Agent of any right, privilege or option pertaining to such
shares
<PAGE> 8
8
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.
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,
<PAGE> 9
9
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 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 (1) 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, (2) 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 (3) 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
<PAGE> 10
10
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.
(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.
<PAGE> 11
11
(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 11.(a). 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
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 (1) when
delivered by hand or (2) if given by mail, three days after being deposited in
the mail, postage prepaid, or (3) 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
<PAGE> 12
12
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 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 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 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> 13
13
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: /s/ John J. Buono
-----------------------
Title: Assistant Treasurer
<PAGE> 14
SCHEDULE 1
TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
<TABLE>
<CAPTION>
No. of Total No. of
Class of Stock Shares Shares
Issuer Stock Certificate No. Pledged Outstanding
- -------------------------------- ---------- ----------------- --------------- -------------
<S> <C> <C> <C> <C>
</TABLE>
<PAGE> 15
SCHEDULE 2
TO PLEDGE AGREEMENT
PLEDGED NOTES
<TABLE>
<CAPTION>
Original
Date of Principal
Obligor Note Amount
------- ------- ---------
<S> <C> <C>
$
--------
</TABLE>
<PAGE> 16
ANNEX A
ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned is an Issuer referred to in the foregoing
Pledge Agreement, and each of the undersigned hereby acknowledges receipt of a
copy of the Pledge Agreement, dated April 25, 1997, made by Sybron
International Corporation for the benefit of The Chase Manhattan 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:
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
5.(a) of the Pledge Agreement.
3. The terms of paragraph 9.(c) 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 9 of the
Pledge Agreement.
SAC/THERMO-BARN, INC.
SAC/ERIE, INC.
SYBRON DENTAL SPECIALTIES, INC.
NALGE NUNC INTERNATIONAL
HOLDINGS, INC.
SYBRON TRANSITION CORP.
MEXOSERV COMPANY
-------------------------------------
By: John J. Buono, Assistant
Treasurer
Address for Notices:
c/o Sybron International Corporation
411 East Wisconsin Avenue, 24th Floor
Milwaukee, Wisconsin 53202
Fax: (414) 274-6561
<PAGE> 1
EXHIBIT 4.7
[Conformed Copy]
SECOND AMENDED AND RESTATED SUBSIDIARIES GUARANTEE
SECOND AMENDED AND RESTATED GUARANTEE, dated as of April 25,
1997, made by each of the corporations that are signatories hereto (the
"Guarantors"), in favor of THE CHASE MANHATTAN 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 Second
Amended and Restated Credit Agreement, dated as of April 25, 1997 (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 Nunc International Corporation, a Delaware
corporation ("NNI"), Erie Scientific Company, a Delaware corporation ("Erie"),
Barnstead Thermolyne Corporation, a Delaware corporation ("Barnstead"; Ormco,
Kerr, NNI, 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 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 The Chase Manhattan Bank,
as agent for such banks, are parties to that certain Amended and Restated
Credit Agreement, dated as of July 31, 1995 (as amended by the First Amendment,
the "Existing Credit Agreement") providing for certain Loans (as defined
therein) and other extensions of credit described therein;
WHEREAS, the Borrowers have requested that the Existing Credit
Agreement be amended and restated as hereinafter provided to, inter alia,
extend new Term Loans to the Subsidiary Borrowers in an aggregate principal
amount equal to the principal amount of the Term Loans extended under the
Existing Credit Agreement that has amortized to date and to increase the
Aggregate Revolving Credit Commitment from $300,000,000 to $600,000,000;
WHEREAS, the Subsidiary Borrowers will use the proceeds of the
Term Loans to finance the general corporate needs of the Parent and its
Subsidiaries, including permitted acquisitions (including the Remel
Acquisition, as defined in the Credit Agreement), to refinance existing
indebtedness and to pay fees and other expenses related thereto;
WHEREAS the Revolving Credit Borrowers will use the proceeds of
the Revolving Credit Loans and the Swing Line Loans to finance the working
capital needs of the
<PAGE> 2
2
Parent and its Subsidiaries and for general corporate purposes, including
permitted acquisitions (including the Remel Acquisition); and
WHEREAS, the Lenders, the Arranger and the Administrative Agent
are willing to agree to such amendment and restatement of the Existing 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 (as defined in
the Credit Agreement); 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. 1.1 Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given
to them in the Credit Agreement.
1.2 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 or in connection with any Interest Rate Agreement or foreign
exchange contract.
1.3 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
<PAGE> 3
3
provision of this Guarantee, and Section and paragraph references are to this
Guarantee unless otherwise specified.
1.4 The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Guarantee. 2.1 Subject to the provisions of paragraph 2(b),
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).
2.2 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.
2.3 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.
2.4 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.
2.5 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 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.
2.6 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
<PAGE> 4
4
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 5 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 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
<PAGE> 5
5
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 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
<PAGE> 6
6
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 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:
10.1 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
<PAGE> 7
7
operate its property, to lease the property it operates and to conduct
the business in which it is currently engaged;
10.2 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 necessary corporate action to authorize its
execution, delivery and performance of this Guarantee;
10.3 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;
10.4 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;
10.5 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;
10.6 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 (a) with respect to this Guarantee or any
of the transactions contemplated hereby or (b) which could reasonably be
expected to have a Material Adverse Effect; and
10.7 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 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
<PAGE> 8
8
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 (a) when delivered by hand
or (b) if given by mail, three days after deposited in the mails, postage
prepaid, or (c) if by telex, fax or similar electronic transfer, when sent and
receipt has been confirmed, addressed as follows:
12.1 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
12.2 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 Administrative Agent or any Lender relative
to the subject matter hereof not reflected herein.
16. Amendments in Writing; No Waiver; Cumulative Remedies.
16.1 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 (other than supplements, in form
and substance acceptable to the Administrative Agent, for the purpose of adding
new Guarantors), provided that any provision of this Guarantee may be waived by
the Administrative Agent and the Lenders in a letter or
<PAGE> 9
9
agreement executed by the Administrative Agent or by telex or facsimile
transmission from the Administrative Agent.
16.2 Neither the Administrative Agent nor any Lender shall by
any act (except by a written instrument pursuant to paragraph 16(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.
16.3 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 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
<PAGE> 10
10
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 LEGAL ACTION OR
PROCEEDING RELATING TO THIS GUARANTEE OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
<PAGE> 11
11
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.
RICHARD-ALLAN SCIENTIFIC COMPANY
NEW ENGLAND REAGENT LABORATORY, INC.
CASCO STANDARDS, INC.
THE NAUGATUCK GLASS COMPANY
METAVAC, INC.
BEDFORD MIRROR, INC.
NALGE NUNC INTERNATIONAL HOLDINGS, INC.
NALGE NUNC INTERNATIONAL CORPORATION
SANI-TECH, INC.
SYBRON DENTAL SPECIALTIES INC.
SAC/ORMCO, INC.
ORMCO CORPORATION
ALLESEE ORTHODONTIC APPLIANCES, INC.
SAC/KERR, INC.
KERR CORPORATION
METREX RESEARCH CORPORATION
BELLE DE ST. CLAIRE, INC.
SAC/COMMONWEALTH, INC.
SYBRON COMMONWEALTH HOLDINGS, INC.
SYBRON TRANSITION CORP.
MEXOSERV COMPANY
FLEXIBLE COMPONENTS, INC.
PURE FIT, INC.
TREND SCIENTIFIC, INC.
PRECISION ROTARY INSTRUMENTS, INC.
REMEL INC.
ALEXON BIOMEDICAL, INC.
HARVEY ACQUISITION CO.
By: /s/ John J. Buono
-----------------------------------
Assistant Treasurer
<PAGE> 12
12
Address for Notices:
c/o Sybron International Corporation
411 East Wisconsin Avenue, 24th Floor
Milwaukee, Wisconsin 53202
Fax: (414) 274-6561
<PAGE> 1
EXHIBIT 4.8
[Conformed Copy]
SECOND AMENDED AND RESTATED
SUBSIDIARIES PLEDGE AGREEMENT
SECOND AMENDED AND RESTATED PLEDGE AGREEMENT, dated as of
April 25, 1997, made by each of the undersigned corporations (each, a
"Pledgor", and collectively, the "Pledgors") in favor of The Chase Manhattan
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 Second Amended and Restated Credit Agreement, dated as of
April 25, 1997 (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 Nunc
International Corporation, a Delaware corporation ("NNI"), Erie Scientific
Company, a Delaware corporation ("Erie"), Barnstead Thermolyne Corporation, a
Delaware corporation ("Barnstead"; Ormco, Kerr, NNI, Erie and Barnstead are
collectively referred to herein as the "Subsidiary Borrowers"), the Lenders,
the Administrative Agent and 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 The Chase Manhattan
Bank, as agent for such banks, are parties to that certain Amended and Restated
Credit Agreement, dated as of July 31, 1995 (as amended by the First Amendment,
the "Existing Credit Agreement") providing for certain Loans (as defined
therein) and other extensions of credit described therein;
WHEREAS, the Borrowers have requested that the Existing Credit
Agreement be amended and restated as hereinafter provided to, inter alia,
extend new Term Loans to the Subsidiary Borrowers in an aggregate principal
amount equal to the principal amount of the Term Loans extended under the
Existing Credit Agreement that has amortized to date and to increase the
Aggregate Revolving Credit Commitment from $300,000,000 to $600,000,000;
WHEREAS, the Subsidiary Borrowers will use the proceeds of the
Term Loans to finance the general corporate needs of the Parent and its
Subsidiaries, including permitted acquisitions (including the Remel
Acquisition, as defined in the Credit Agreement), to refinance existing
indebtedness and to pay fees and other expenses related thereto;
WHEREAS the Revolving Credit Borrowers will use the proceeds
of the Revolving Credit Loans and the Swing Line Loans to finance the working
capital needs of the
<PAGE> 2
2
Parent and its Subsidiaries and for general corporate purposes, including
permitted acquisitions (including the Remel Acquisition); and
WHEREAS, the Lenders, the Arranger and the Administrative
Agent are willing to agree to such amendment and restatement of the Existing
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 Second Amended and Restated Subsidiaries Pledge
Agreement (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. (a) 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 Second 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 which is a Subsidiary Borrower,
the unpaid principal of and interest on (including, without
limitation,
<PAGE> 3
3
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 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
<PAGE> 4
4
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; provided, however, that the parties acknowledge that the
capital stock of LMD Laboratories, Inc., an indirect subsidiary of
Erie with tangible assets of less than $1,000,000 and total assets of
less than $2,000,000, and of Lab Acquisition Co., a direct subsidiary
of Barnstead having no assets, have not been pledged hereunder.
(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, 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;
<PAGE> 5
5
(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 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
<PAGE> 6
6
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 (1) 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 (2) sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with
respect to, the Collateral, or (3) 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. 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
<PAGE> 7
7
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.
(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 7 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, (1) 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
<PAGE> 8
8
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 (2)
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 (A) all voting, corporate and other rights pertaining to
such Pledged Stock at any meeting of shareholders of any Issuer or otherwise and
(B) any and all rights of 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 shall the Administrative Agent be under any obligation
to sell or otherwise dispose of any Collateral
<PAGE> 9
9
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 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
<PAGE> 10
10
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 (1) 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, (2) 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 (3) 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 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
<PAGE> 11
11
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 11.(a). 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 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
<PAGE> 12
12
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 (1)
when delivered by hand or (2) if given by mail, three days after being
deposited in the mail, postage prepaid, or (3) 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 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.
<PAGE> 13
13
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.
20. Governing Law. This Agreement shall be governed by,
and construed and interpreted in accordance with, the law of the State of New
York.
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 HOLDINGS,
INC.
NALGE NUNC INTERNATIONAL
CORPORATION
SYBRON DENTAL SPECIALTIES, INC.
SAC/ORMCO, INC.
ORMCO CORPORATION
SAC/KERR, INC.
KERR CORPORATION
SAC/COMMONWEALTH, INC.
SYBRON COMMONWEALTH HOLDINGS,
INC.
NUNC U.K. LIMITED
RICHARD-ALLAN SCIENTIFIC COMPANY
By: /s/ John J. Buono
----------------------------------
Assistant Treasurer
<PAGE> 14
SCHEDULE 1
TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
[NAME OF PLEDGOR]
<TABLE>
<CAPTION>
Total No. of
Stock Certificate No. of Shares Shares
Issuer Class of Stock No. Pledged Outstanding
- --------------------------- -------------- ---------------------- ------------------- ------------------
<S> <C> <C> <C> <C>
</TABLE>
<PAGE> 15
SCHEDULE 2
TO PLEDGE AGREEMENT
PLEDGED NOTES
[NAME OF PLEDGOR]
<TABLE>
<CAPTION>
Original
Date of Principal
Obligor Note Amount
--------------------- ------------ ------------
<S> <C> <C>
$
-----------
</TABLE>
<PAGE> 16
ANNEX A
To Pledge Agreement
ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned is an Issuer referred to in the
foregoing Pledge Agreement, and each of the undersigned hereby acknowledges
receipt of a copy of the Pledge Agreement, dated as of April 25, 1997, made by
the Pledgors (as defined therein) in favor of The Chase Manhattan 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 5.(a) of the Pledge Agreement.
3. The terms of paragraph 9.(c) 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 9 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.
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
SANI-TECH, INC.
SAC/ORMCO, INC.
ORMCO CORPORATION
ORMCO (EUROPE) A.G.
ORMEX, S.A. DE C.V.
<PAGE> 17
2
ORMCO PTY. LTD.
ORMCO DE MEXICO SA de CV
ALLESEE ORTHODONTIC APPLICANCES,
INC.
S.D.S. DE MEXICO, SA de CV
SAC/KERR, INC.
KERR CORPORATION
KERR AUSTRALIA PTY. LIMITED
KERR ITALIA S.P.A.
KERR (EUROPE) A.G.
METREX RESEARCH CORPORATION
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
HARVEY ACQUISITION CO.
ALEXON BIOMEDICAL, INC.
REMEL INC.
TREND SCIENTIFIC, INC.
FLEXIBLE COMPONENTS, INC.
PURE FIT, INC.
PRECISION ROTARY INSTRUMENTS, INC.
SYBRON DENTAL SPECIALTIES JAPAN, INC.
By: /s/ John J. Buono
----------------------------------
Assistant Secretary or
Authorized Agent
Address for Notices:
c/o Sybron International Corporation
411 East Wisconsin Avenue, 24th Floor
Milwaukee, Wisconsin 53202
Fax: (414) 274-6561
