<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(MARK ONE)
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
For the quarterly period ended June 30, 1999
or
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
For the transition period from to
Commission File Number: 1-11091
SYBRON INTERNATIONAL CORPORATION
--------------------------------
(Exact name of registrant as specified in its charter)
Wisconsin 22-2849508
--------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
411 East Wisconsin Avenue, Milwaukee, Wisconsin 53202
- ----------------------------------------------- -----
(Address of principal executive offices) (Zip Code)
(414) 274-6600
--------------
(Registrant's telephone number, including area code)
- --------------------------------------------------------------------------
(Former name, former address and former fiscal year, if changed since last
report.)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
--- ---
At August 9, 1999 there were 103,763,566 shares of the Registrant's
Common Stock, par value $0.01 per share, outstanding.
<PAGE> 2
SYBRON INTERNATIONAL CORPORATION AND SUBSIDIARIES
Index Page
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
Consolidated Balance Sheets, June 30, 1999
and September 30, 1998 (unaudited) 2
Consolidated Statements of Income for the three and nine months
ended June 30, 1999 and 1998 (unaudited) 3
Consolidated Statements of Shareholders' Equity for the year
ended September 30, 1998 and the nine months ended
June 30, 1999 (unaudited) 4
Consolidated Statements of Cash Flows for the nine months ended
June 30, 1999 and 1998 (unaudited) 5
Notes to Unaudited Consolidated Financial Statements 7
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS 13
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK 30
PART II - OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K 33
SIGNATURES 34
1
<PAGE> 3
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
SYBRON INTERNATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
ASSETS
<TABLE>
<CAPTION>
June 30, September 30,
1999 1998
---------- -------------
<S> <C> <C>
Current assets:
Cash and cash equivalents....................................... $ 14,270 $ 23,891
Accounts receivable (less allowance for doubtful
receivables of $4,427 and $5,693, respectively)............... 211,361 192,657
Inventories (note 2)............................................ 198,907 167,944
Deferred income taxes........................................... 18,608 30,305
Net assets held for sale (note 7)............................... - 51,562
Prepaid expenses and other current assets....................... 18,077 17,429
---------- ----------
Total current assets....................................... 461,223 483,788
---------- ----------
Property, plant and equipment net of accumulated depreciation
of $207,732 and $178,087, respectively........................ 227,706 222,759
Intangible assets................................................. 947,426 814,907
Deferred income taxes............................................. 12,951 15,242
Other assets...................................................... 7,598 8,848
---------- ----------
Total assets............................................... $1,656,904 $1,545,544
========== ==========
</TABLE>
LIABILITIES AND SHAREHOLDERS' EQUITY
<TABLE>
<S> <C> <C>
Current liabilities:
Accounts payable................................................ $ 51,516 $ 49,713
Current portion of long-term debt............................... 8,560 39,396
Income taxes payable............................................ 15,325 19,997
Accrued payroll and employee benefits........................... 41,785 39,950
Restructuring reserve (note 5).................................. 3,209 7,609
Reserve for discontinued operations............................. 5,411 12,201
Deferred income taxes........................................... 18,330 9,072
Other current liabilities....................................... 29,124 37,785
---------- -----------
Total current liabilities................................... 173,260 215,723
---------- -----------
Long-term debt.................................................... 843,907 790,089
Deferred income taxes............................................. 47,215 50,564
Other liabilities................................................. 11,384 13,912
Commitments and contingent liabilities:
Shareholders' equity:
Preferred Stock, $.01 par value; authorized 20,000,000 shares... -- --
Common Stock, $.01 par value; authorized 250,000,000
shares, issued 103,637,880 and 102,902,496 shares,
respectively.................................................. 1,036 1,029
Equity Rights, 50 rights at $1.09 per right..................... -- --
Additional paid-in capital...................................... 245,317 234,070
Retained earnings............................................... 368,098 260,845
Accumulated other comprehensive income.......................... (33,313) (20,688)
Treasury common stock, 220 shares at cost ...................... -- --
---------- ----------
Total shareholders' equity................................. 581,138 475,256
---------- ----------
Total liabilities and shareholders' equity................. $1,656,904 $1,545,544
========== ==========
</TABLE>
See accompanying notes to unaudited consolidated financial statements.
2
<PAGE> 4
SYBRON INTERNATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
June 30, June 30,
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net sales............................................... $ 280,051 $ 226,993 $ 800,398 $ 667,815
Cost of sales:
Cost of product sold................................. 134,476 107,083 387,322 317,725
Restructuring charge................................. -- 6,140 -- 6,140
Depreciation of purchase accounting adjustments...... 160 162 496 492
--------- --------- --------- ---------
Total cost of sales..................................... 134,636 113,385 387,818 324,357
--------- --------- --------- ---------
Gross profit............................................ 145,415 113,608 412,580 343,458
Selling, general and administrative expenses............ 70,045 56,334 198,280 172,378
Merger, transaction and integration expenses (note 6)... (122) 9,886 2,569 9,886
Restructuring charge.................................... (932) 16,281 (932) 16,281
Depreciation and amortization of purchase
accounting adjustments................................. 7,793 6,423 22,653 18,815
--------- --------- --------- ---------
Operating income........................................ 68,631 24,684 190,010 126,098
--------- --------- --------- ---------
Other income (expense):
Interest expense..................................... (13,749) (13,374) (41,898) (40,082)
Amortization of deferred financing fees.............. (87) (64) (247) (172)
Other, net........................................... 40 118 (593) 43
--------- --------- --------- ---------
Income before income taxes, discontinued
operations and extraordinary item ..................... 54,835 11,364 147,272 85,887
Income taxes............................................ 21,491 6,617 58,098 35,559
--------- --------- --------- ---------
Income from continuing operations before
extraordinary item..................................... 33,344 4,747 89,174 50,328
Discontinued Operations: Income from discontinued
operations (net of income taxes of $327, $80
and $1,908, respectively) (note 7).................... -- 450 121 3,133
Extraordinary Item: Gain (loss) on sale of discontinued
operations (net of income taxes expense/(credit) of
($2,696) and $15,955, respectively (note 7)............ (838) -- 17,958 --
--------- --------- ---------- ---------
Net income.............................................. $ 32,506 $ 5,197 $ 107,253 $ 53,461
========= ========= ========== =========
Basic earnings per common share from continuing
operations before extraordinary item................... $ .32 $ .05 $ .86 $ .49
Discontinued operations................................. -- -- -- .03
Extraordinary item...................................... (.01) -- .18 --
--------- --------- ---------- ---------
Basic earnings per common share......................... $ .31 $ .05 $ 1.04 $ .52
========= ========= ========== =========
Diluted earnings per common share from continuing
operations before extraordinary item................... $ .31 $ .04 $ .84 $ .48
Discontinued operations................................. -- -- -- .02
Extraordinary item...................................... (.01) .01 .17 --
--------- --------- ---------- ---------
Diluted earnings per common share....................... $ .30 $ .05 $ 1.01 $ .50
========= ========= ========== =========
</TABLE>
See accompanying notes to unaudited consolidated financial statements.
3
<PAGE> 5
SYBRON INTERNATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
FOR THE YEAR ENDED SEPTEMBER 30, 1998
AND THE NINE MONTHS ENDED JUNE 30, 1999
(UNAUDITED)
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
ADDITIONAL
COMMON EQUITY PAID-IN RETAINED
STOCK RIGHTS CAPITAL EARNINGS
-------- ------ ---------- --------
<S> <C> <C> <C> <C>
Balance at September 30, 1997................. $ 1,014 $ -- $ 212,665 $ 189,963
Shares issued in connection
with the exercise of 1,445,760
stock options................................. 15 -- 12,970 --
Conversion of 200 equity rights to 872
shares of common stock ....................... -- -- -- (1)
Tax benefits related to stock options -- -- 7,291 --
Dividends paid by LRS Acquisition Corp.
prior to the merger.......................... -- -- 314 (479)
Dividends paid by Pinnacle Products of
Wisconsin prior to the merger................ -- -- -- (4,682)
Shares issued related to a deferred
compensation plan of LRS..................... -- -- 830 --
Net income .................................... -- -- -- 76,044
Accumulated other comprehensive
income........................................ -- -- -- --
--------- ------ ---------- ---------
Balance at September 30, 1998.................. $ 1,029 $ -- $ 234,070 $ 260,845
========= ====== ========== =========
Shares issued in connection
with the exercise of 735,384
stock options................................. 7 -- 7,199 --
Tax benefits related to stock options -- -- 4,048 --
Net income .................................... -- -- -- 107,253
Accumulated other comprehensive
income........................................ -- -- -- --
--------- ------ ---------- ---------
Balance at June 30, 1999....................... $ 1,036 $ -- $ 245,317 $ 368,098
========= ====== ========== =========
<CAPTION>
ACCUMULATED
OTHER TREASURY TOTAL
COMPREHENSIVE COMMON SHAREHOLDERS'
INCOME STOCK EQUITY
------ -------- -------------
<S> <C> <C> <C>
Balance at September 30, 1997................. $ (24,981) $ (1) $ 378,660
Shares issued in connection
with the exercise of 1,445,760
stock options................................. -- -- 12,985
Conversion of 200 equity rights to 872
shares of common stock ....................... -- 1 --
Tax benefits related to stock options -- -- 7,291
Dividends paid by LRS Acquisition Corp.
prior to the merger.......................... -- -- (165)
Dividends paid by Pinnacle Products of
Wisconsin prior to the merger................ -- -- (4,682)
Shares issued related to a deferred
compensation plan of LRS..................... -- -- 830
Net income .................................... -- -- 76,044
Accumulated other comprehensive
income........................................ 4,293 -- 4,293
--------- ------ ----------
Balance at September 30, 1998.................. $ (20,688) $ -- $ 475,256
========= ====== ==========
Shares issued in connection
with the exercise of 735,384
stock options................................. -- -- 7,206
Tax benefits related to stock options -- -- 4,048
Net income .................................... -- -- 107,253
Accumulated other comprehensive
income........................................ (12,625) -- (12,625)
--------- ------ ---------
Balance at June 30, 1999....................... $ (33,313) $ -- $ 581,138
========= ====== ==========
</TABLE>
See accompanying notes to unaudited consolidated financial statements.
4
<PAGE> 6
SYBRON INTERNATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
Nine Months Ended
June 30,
1999 1998
---- ----
Cash flows from operating activities:
<S> <C> <C>
Net income................................................................ $107,253 $ 53,461
Adjustments to reconcile net income to net cash provided by operating
activities:
Gain on sale of NPT...................................................... (17,958) --
Depreciation............................................................. 26,893 22,340
Amortization............................................................. 22,805 19,274
Provision for losses on doubtful accounts................................ 108 1,203
Inventory provisions..................................................... 255 (900)
Deferred income taxes.................................................... 19,897 3,743
Changes in assets and liabilities:
Decrease (increase) in accounts receivable............................... (3,457) 470
Increase in inventories.................................................. (15,341) (3,721)
Decrease (increase) in prepaid expenses and other current assets......... 1,908 (10,673)
Decrease in accounts payable............................................. (3,395) (2,266)
Decrease in income taxes payable......................................... (18,969) (3,431)
Increase (decrease) in accrued payroll and employee benefits............. 537 (1,104)
Decrease in reserve for discontinued operations.......................... (6,790) --
Increase (decrease) in restructuring reserve............................. (4,400) 11,356
Decrease in other current liabilities................................... (4,603) (4,871)
Net change in other assets and liabilities............................... (7,201) 13,602
--------- --------
Net cash provided by operating activities................................ 97,542 98,483
Cash flows from investing activities:
Capital expenditures..................................................... (23,576) (26,299)
Proceeds from sales of property, plant, and equipment.................... 918 4,436
Proceeds from the sale of NPT net of sale expenses...................... 85,877 --
Payments for businesses acquired......................................... (188,121) (166,083)
-------- --------
Net cash used in investing activities................................... (124,902) (187,946)
Cash flows from financing activities:
Proceeds - revolving credit facility...................................... 422,900 333,100
Principal payments - revolving credit facility............................ (328,000) (211,800)
Principal payments on long-term debt...................................... (87,878) (26,533)
Proceeds from the exercise of common stock options........................ 7,207 10,720
Dividends paid by Pinnacle and LRS prior to the mergers................... - (3,911)
Deferred financing fees................................................... (146) (276)
Other..................................................................... 4,133 629
-------- --------
Net cash provided from financing activities............................... 18,216 101,929
Effect of exchange rate changes on cash.................................... (477) (2,251)
Net increase (decrease) in cash and cash equivalents....................... (9,621) 10,215
Cash and cash equivalents at beginning of year............................. 23,891 18,003
-------- --------
Cash and cash equivalents at end of period................................. $ 14,270 $ 28,218
======== ========
</TABLE>
See accompanying notes to unaudited consolidated financial statements.
5
<PAGE> 7
SYBRON INTERNATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS - CONTINUED
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
Nine Months Ended
June 30,
1999 1998
---- ----
<S> <C> <C>
Supplemental disclosures of cash flow information:
Cash paid during the period for interest.................................. $ 43,974 $ 40,252
Cash paid during the period for income taxes.............................. 50,280 30,376
Capital lease obligations incurred........................................ 277 249
</TABLE>
See accompanying notes to unaudited consolidated financial statements.
6
<PAGE> 8
SYBRON INTERNATIONAL CORPORATION AND SUBSIDIARIES
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
1. In the opinion of management, all adjustments which are necessary for a
fair statement of the results for the interim periods presented have been
included. Except as described below, all such adjustments were of a normal
recurring nature. The results for the three and nine month periods ended
June 30, 1999 are not necessarily indicative of the results to be expected
for the full year. Certain amounts from the three and nine month periods
ended June 30, 1998, as originally reported, have been reclassified to
conform with the three and nine month periods ended June 30, 1999
presentation.
All prior period data has been adjusted to reflect the results of Pinnacle
Products of Wisconsin, Inc. ("Pinnacle"), which merged with a subsidiary of
the Company on October 29, 1998 (the "Pinnacle Merger"). The results of
Pinnacle, whose merger was accounted for as a pooling of interests, were
combined with the Company's previously reported results as if the merger
occurred as of the beginning of all reported periods.
In addition, all prior period data has been adjusted to reflect the March
31, 1999 sale of Nalge Process Technologies Group, Inc. ("NPT"). NPT has
been classified as a discontinued operation and the results have been
reported accordingly. The gain on the sale of NPT has been reported as an
extraordinary item. (See note 7)
The following table reconciles sales and net income for the three and nine
months ended June 30, 1998 as previously reported to sales and net income
for the three and nine months ended June 30, 1998 after restatement for the
Pinnacle Merger and the reclassification of NPT to discontinued operations.
<TABLE>
<CAPTION>
Three months ended Nine months ended
June 30, 1998 June 30, 1998
(In thousands) (In thousands)
(Unaudited) (Unaudited)
------------------ -----------------
<S> <C> <C>
Net sales:
The Company $ 235,502 $ 695,638
Pinnacle 2,970 8,752
NPT (11,479) (36,575)
--------- ---------
Total $ 226,993 $ 667,815
========= =========
Net income (loss):
The Company $ 3,815 $ 49,353
Pinnacle 1,382 4,108
Pinnacle pro forma income tax expense (a) (553) (1,643)
--------- ---------
Pro forma net income $ 4,644 $ 51,818
Pinnacle pro forma income tax expense (a) 553 1,643
--------- ---------
Net income reported $ 5,197 $ 53,461
========= =========
</TABLE>
7
<PAGE> 9
<TABLE>
<CAPTION>
Three months ended Nine months ended
June 30, 1998 June 30, 1998
(In thousands) (In thousands)
(Unaudited) (Unaudited)
------------------ ------------------
<S> <C> <C>
Basic shares outstanding:
The Company 100,742 100,242
Shares issued in Pinnacle Merger 1,897 1,897
---------- --------
Basic shares reported 102,639 102,139
Diluted shares outstanding:
The Company 104,350 104,035
Shares issued in Pinnacle Merger 1,897 1,897
---------- --------
Diluted shares reported 106,247 105,932
Basic earnings per share:
Reported $ .05 $ .52
Pro forma $ .05 $ .51
Diluted earnings per share
Reported $ .05 $ .50
Pro forma $ .04 $ .49
</TABLE>
- ----------------
(a) Prior to the merger, Pinnacle was an S corporation and, therefore,
income tax expense was not reflected in its historical net income.
2. Inventories at June 30, 1999 and September 30, 1998 consist of the following:
<TABLE>
<CAPTION>
June 30, September 30,
1999 1998
---- ----
<S> <C> <C>
Raw materials $ 70,601 $ 54,465
Work-in-process 38,293 32,502
Finished goods 94,311 84,759
LIFO Reserve (4,298) (3,782)
-------- --------
$198,907 $167,944
======== ========
</TABLE>
3. Effective October 1, 1998, the Company adopted Statement of Financial
Accounting Standards No. 130, Reporting Comprehensive Income ("SFAS 130").
SFAS 130 requires the reporting of comprehensive income in addition to net
income from operations. Comprehensive income is a more inclusive financial
reporting methodology that includes disclosure of certain financial
information that historically has not been recognized in the calculation of
income.
8
<PAGE> 10
Comprehensive income and the components of comprehensive income (loss) for
the three and nine month periods ended June 30, 1999 and 1998 are as follows:
(In thousands)
<TABLE>
<CAPTION>
Three months ended Nine months ended
June 30, June 30,
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net income $ 32,506 $ 5,197 $107,253 $ 53,461
Other comprehensive income (loss)
Foreign currency translation (4,793) 1,470 (12,625) (2,493)
-------- -------- -------- --------
Comprehensive income $ 27,713 $ 6,667 $ 94,628 $ 50,968
======== ======== ======== ========
</TABLE>
4. Acquisitions completed in the third quarter of fiscal 1999 are as follows:
(a) On June 3, 1999, the Company acquired Microgenics Corporation
("Microgenics") located in Pleasanton, California. Microgenics
manufacturers and sells diagnostic reagents for use in drugs of abuse
screening, therapeutic drug monitoring, thyroid function testing and
anemia testing. Microgenics' annual sales are approximately $35 million.
Acquisitions completed after the third quarter of fiscal 1999 are a follows:
(a) On July 1, 1999, a subsidiary of Sybron Laboratory Products Corporation
("SLPC") acquired the assets of Micro Test, Inc. ("Micro Test") located
in Lilburn, Georgia. Micro Test, with annual revenues of approximately
$1.6 million, is a manufacturer of transport media for various infectious
organisms.
(b) On July 1, 1999, a subsidiary of SLPC acquired the bioreagent and ELISA
immunochemistry product lines of Genzyme Diagnostics, a business unit of
Genzyme General (Nasdaq:GENZ). These product lines generate approximately
$3.1 million in annual sales.
(c) On July 12, 1999, a subsidiary of Sybron Dental Specialties, Inc.
("SDS"), completed the acquisition of Alden Scientific, Inc. ("Alden")
and its sister corporation Gulfstream Medical, Inc. The companies,
located in Winthrop, Massachusetts with manufacturing facilities in
Springfield, Massachusetts, manufacture reagents and related infection
control products used to disinfect kidney dialysis machines. Alden also
manufactures chemical detecting and hematology reagents, calibrating
solutions and osmomerty standards. Combined annual sales are
approximately $3.5 million.
(d) On July 30, 1999, a subsidiary of SDS completed the acquisition of Endo
Direct Ltd., located close to London, England. Endo Direct has been the
exclusive importer and reseller of Tycom Dental endodontic products,
product lines acquired by SDS in 1998. Endo Direct's annual sales are
approximately $0.5 million.
(e) On August 9, 1999, a subsidiary of SLPC completed the acquisition of STEM
Corporation LTD., located in Tollesbury Essex, England. STEM designs,
manufactures and markets
9
<PAGE> 11
heating, cooling, stirring and shaking equipment for laboratory
applications. STEM's annual sales are approximately $1.6 million.
All of the acquisitions were made for cash at an aggregate purchase price of
approximately $94.2 million and are being accounted for as purchase
business combinations with the results of the acquired entity being
included in the Company's financial statements from the date of the
acquisition.
5. In June 1998, the Company recorded a restructuring charge of approximately
$24.0 million (approximately $16.7 million after tax or $.16 per share on a
diluted basis) for the rationalization of certain acquired companies,
combination of certain production facilities, movement of certain customer
service and marketing functions, and the exiting of several product lines.
The restructuring charge was originally classified as components of cost of
sales (approximately $6.4 million relating entirely to the write-off of
inventory), selling, general and administrative expenses (approximately $16.9
million) and income tax expense (approximately $0.7 million). Upon
reclassifying NPT to a discontinued operation in December, 1998,
approximately $0.3 million and $0.6 million were reclassified from cost of
sales and selling, general and administrative expenses to discontinued
operations. In addition in the September 30, 1998 balance sheet,
approximately $0.4 million of the remaining restructuring reserve at NPT was
reclassified from restructuring reserve to net assets held for sale. Activity
with respect to the restructuring charge since June 1998 is as follows:
<TABLE>
<CAPTION>
Shut- Inventory
Lease down Write- Fixed Contractual
Severance(a) Pymts.(b) Costs(b) off(c) Assets(c) Tax(d) Goodwill(e) Obligations(f) Other Total
----------- --------- ------- --------- --------- ------ ----------- -------------- ----- -----
(In thousands)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1998 Initial
Accrual $ 8,500 $ 400 $ 500 $6,400 $2,300 $ 700 $2,100 $1,000 $2,100 $24,000
1998 cash
payments 3,300 100 100 -- -- -- -- 400 700 4,600
Non-cash 1998
charges -- -- -- 6,400 2,300 -- 2,100 -- 600 11,400
-------- ----- ----- ------ ------ ------ ------ ------ ------ -------
Balance 9/30/98 5,200 300 400 -- -- 700 -- 600 800 8,000
1999 cash
payments 2,900 100 200 -- -- -- -- 300 -- 3,500
Adjustments (g) 900 -- -- -- -- -- -- -- 400 1,300
-------- ----- ----- ------ ------ ------ ------ ------ ------ -------
Balance 6/30/99 $ 1,400 $ 200 $ 200 $ -- $ -- $ 700 $ -- $ 300 $ 400 $ 3,200
======== ===== ===== ====== ====== ====== ====== ====== ====== =======
</TABLE>
(a) Amount represents severance and termination costs for approximately 165
terminated employees (primarily sales and marketing personnel). As of
June 30, 1999, 152 employees have been terminated as a result of the
restructuring plan. An adjustment of approximately $0.9 million was made
in the third quarter of fiscal 1999 to adjust the accrual primarily
representing over accruals for anticipated costs associated with
outplacement services, accrued fringe benefits, and severance associated
with employees who were previously notified of termination and
subsequently filled other Company positions.
(b) Amount represents lease payments and shutdown costs on exited facilities.
(c) Amount represents write-offs of inventory and fixed assets associated
with discontinued product lines.
(d) Amount represents a statutory tax relating to assets
transferred from an exited sales facility in Switzerland.
(e) Amount represents goodwill associated with exited product lines at SLPC.
(f) Amount represents certain terminated contractual obligations primarily
associated with Sybron Dental Specialties Corporation.
(g) Amount represents reserves transferred from NPT (approximately $0.4
million relating to "other") which were reclassified to discontinued
operations and approximately $0.9 million relating to unused severance as
described in (a) above.
The Company expects to make further cash payments of approximately $0.8
million in the fourth quarter of fiscal 1999, approximately $0.4 million and
$0.2 million in the first and second quarters of
10
<PAGE> 12
fiscal 2000, respectively and approximately $1.8 million in the third quarter
of fiscal 2000 and beyond. The actions associated with the restructuring are
expected to eliminate annual costs of $16.0 million. In the third quarter of
fiscal 1999, the Company estimates it saved approximately $4.0 million (or
$16.0 million on an annualized basis). We do not anticipate any additional
adjustments to the savings estimates.
6. For the nine months ended June 30, 1999, the Company incurred approximately
$2.6 million ($1.6 million after tax or $.02 per share on a diluted basis) of
costs associated with the Pinnacle Merger and the integration of "A" Company
Orthodontics (`"A" Company'), a subsidiary of LRS Acquisition Corp. ("LRS"),
with SDS. LRS was merged with a subsidiary of the Company on April 9, 1998
(the "LRS" Merger) and accounted for as a pooling of interests. The actual
and anticipated costs associated with the Pinnacle Merger and the integration
of "A" Company were primarily from Pinnacle Merger non-shareholder
compensation (approximately $1.9 million). The remaining $0.7 million related
to miscellaneous expenses primarily related to completing the "A" Company
integration including customer announcements, professional fees, and
relocation expenses. The Company does not anticipate incurring any further
merger, transaction and integration expenses associated with the LRS and
Pinnacle Mergers.
7. On March 31, 1999, Sybron completed the sale of NPT to Norton Performance
Plastics Corporation, a subsidiary of Saint-Gobain - France. Net proceeds
from the sale, net of $3.7 million of selling expenses and estimated
adjustments, amounted to approximately $84.0 million. The sales price and
final gain calculation are subject to further adjustments based upon the
finalization of the audited book value of NPT at March 31, 1999 and the
related tax impact. In the quarter ended June 30, 1999, the Company reduced
the gain on the sale of NPT to reflect a reduction to the purchase price for
estimated audit adjustments to NPT's balance sheet (approximately $1.9
million), an adjustment in the tax basis of NPT (approximately $1.3 million)
and additional expenses incurred in the transaction (approximately $0.2
million), partially offset by a reduction to tax expense (approximately $2.6
million). The Company does not expect a significant change to the purchase
price or gain as a result of the finalization of the audit of NPT's March 31,
1999 balance sheet and tax calculation. The proceeds of the sale net of tax
and expenses were used to repay approximately $67.9 million previously owed
under the Company's credit facilities.
Sales from NPT were $11.5 million in the quarter ended June 30, 1998, and
because NPT was sold on March 31, 1999, there were no sales in the quarter
ended June 30, 1999. Sales from NPT were $21.0 million and $36.6 million for
the year to date period in fiscal 1999 through NPT's sale date of March 31,
1999 and the nine months ended June 30, 1998, respectively. Certain expenses
were allocated to discontinued operations in 1998 and the first two quarters
ended March 31, 1999, including interest expense which was allocated based
upon the historical purchase prices and cash flows of the companies
comprising NPT.
11
<PAGE> 13
The components of net assets held for sale of discontinued operations
included in the Consolidated Balance Sheet at September 30, 1998 are as
follows: (In thousands)
<TABLE>
<CAPTION>
September 30,
1998
----
(Unaudited)
<S> <C>
Cash $ 317
Net account receivables 8,977
Net inventories 10,152
Other current assets 158
Intangible assets 33,607
Property plant and equipment - net 2,930
Current portion of long term debt (25)
Accounts payable (2,339)
Accrued liabilities (1,012)
Deferred income taxes- net (1,195)
Long term debt (8)
--------
$ 51,562
========
</TABLE>
12
<PAGE> 14
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
GENERAL
The subsidiaries of the Company are leading manufacturers of value-added
products for the laboratory and professional dental and orthodontic markets in
the United States and abroad. The laboratory businesses are grouped under Sybron
Laboratory Products Corporation ("SLPC"), and the dental and orthodontic
businesses are grouped under Sybron Dental Specialties, Inc. ("SDS"). Their
major product categories and their primary subsidiaries in each category are as
follows:
SLPC
Labware and Life Sciences Diagnostics and Microbiology
Nalge Nunc International Corporation Applied Biotech, Inc.
National Scientific Company CASCO-NERL Diagnostics Corporation
Nunc A/S Diagnostic Reagents, Inc.
Nalge (Europe), Ltd. Alexon-Trend, Inc.
Molecular BioProducts, Inc. Remel Inc.
Clinical and Industrial Laboratory Equipment
Erie Scientific Company Barnstead Thermolyne Corporation
Chase Scientific Glass, Inc. Lab-Line Instruments, Inc.
The Naugatuck Glass Company
Richard-Allan Scientific Company
Samco Scientific Corporation
Gerhard Menzel Glasbearbeitungswerk
GmbH & Co. K.G.
SDS
Professional Dental Orthodontics
Kerr Corporation Ormco Corporation
Beavers Dental Company Allesee Orthodontic Appliances, Inc
Metrex Research Corporation
Pinnacle Products, Inc
Over the past several years the Company has been pursuing a growth strategy
designed to increase sales and enhance operating margins. Elements of that
strategy include emphasis on acquisitions, product line extensions, new product
introductions, international growth and rationalization of existing businesses
and product lines.
When we use the terms "we" or "our" in this report, we are referring to
Sybron International Corporation and its subsidiaries. Our fiscal year ends on
September 30 and, accordingly, all references to quarters refer to the Company's
fiscal quarters.
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<PAGE> 15
Our results for the nine months ended June 30, 1999 include charges relating
to integration costs associated with the merger with LRS Acquisition Corp.
("LRS") (the "LRS Merger"), the parent of "A" Company, and transaction costs
associated with the merger with Pinnacle Products of Wisconsin, Inc.
("Pinnacle") (the "Pinnacle Merger") (See Note 6 to the Unaudited Consolidated
Financial Statements). In addition, because the LRS and Pinnacle Mergers are
each accounted for as a pooling of interests, all prior period data have been
adjusted to reflect the historical results of LRS and Pinnacle as if the Mergers
took place on the first day of the reporting period. In addition, historical
financial data relating to Nalge Process Technologies Group, Inc. ("NPT") have
been reclassified to discontinued operations. (See Note 7 to the Unaudited
Consolidated Financial Statements)
All results referred to below include the adjustments to the historical
results for the pooling of interest transactions and the discontinued operation.
Both our sales and operating income for the quarter and nine months ended
June 30, 1999 grew over the corresponding prior year period. Net sales for the
quarter and nine months ended June 30, 1999 increased by 23.4% and 19.9%,
respectively, over the corresponding fiscal 1998 periods. Operating income for
the quarter and nine months increased by 178.0% and 50.7%, respectively, over
the corresponding fiscal 1998 periods. Excluding the restructuring charges and
acquisition related expenses in both 1998 and 1999, operating income for the
quarter and nine months increased by 18.6% and 21.0%, respectively, over the
corresponding fiscal 1998 periods.
Sales growth in the quarter and the nine months ended June 30, 1999 was
strong both domestically and internationally. Domestic and international sales
increased by 26.9% and by 15.6%, respectively, over the corresponding fiscal
1998 quarter and by 21.2% and by 17.0%, respectively, over the corresponding
fiscal 1998 nine month period.
Acquisitions aided sales growth significantly during the quarter and nine
month periods, accounting for $30.7 million and $7.3 million of the domestic and
international sales increase, respectively, for the quarter and $83.9 million
and $22.9 million of the domestic and international sales increase,
respectively, for the nine month period. Internal growth for the quarter and
nine months ended June 30, 1999 was 6.8% and 5.1%, respectively.
We continue to maintain an active program of developing and marketing new
products and product line extensions, as well as pursuing growth through
acquisitions. We completed one acquisition in the third quarter of fiscal 1999
and five in the fourth quarter through August 9, 1999. (See Note 4 to the
Unaudited Consolidated Financial Statements.)
Our results of operations include goodwill amortization, other amortization,
and depreciation. These non-cash charges totaled $17.1 million and $14.2 million
for the quarters ended June 30, 1999 and 1998, respectively, and $49.7 million
and $41.6 million for the nine months ended June 30, 1999 and 1998,
respectively. Because our operating results reflect significant depreciation and
amortization expense largely associated with stepped-up assets and goodwill from
our acquisition program and the leveraged buyout in 1987 of a company known at
that time as Sybron Corporation (the "Acquisition"), we believe our "Adjusted
EBITDA" is a useful measure of our ability to internally fund our liquidity
requirements.
14
<PAGE> 16
"Adjusted EBITDA" (while not a measure under generally accepted accounting
principles ("GAAP"), and not a substitute for GAAP measured earnings or cash
flows or an indication of operating performance or a measure of liquidity)
represents, for any relevant period, net income from continuing operations plus
(i) interest expense, (ii) provision for income taxes, (iii) acquisition related
expenses, (iv) restructuring charges and (v) depreciation and amortization, all
determined on a consolidated basis and in accordance with GAAP. Our "Adjusted
EBITDA" amounted to $84.6 million and $71.3 million for the quarters ended June
30, 1999 and 1998, respectively, and $240.5 million and $199.9 million for the
nine months ended June 30, 1999 and 1998, respectively.
Substantial portions of our sales, income and cash flows are derived
internationally. The financial position and the results of operations from
substantially all of our international operations, other than most U.S. export
sales, are measured using the local currency of the countries in which such
operations are conducted and are then translated into U.S. dollars. While the
reported income of foreign subsidiaries will be impacted by a weakening or
strengthening of the U.S. dollar in relation to a particular local currency, the
effects of foreign currency fluctuations are partially mitigated by the fact
that manufacturing costs and other expenses of foreign subsidiaries are
generally incurred in the same currencies in which sales are generated. Such
effects of foreign currency fluctuations are also mitigated by the fact that
such subsidiaries' operations are conducted in numerous foreign countries and,
therefore, in numerous foreign currencies. In addition, our U.S. export sales
may be impacted by foreign currency fluctuations relative to the value of the
U.S. dollar as foreign customers may adjust their level of purchases upward or
downward according to the weakness or strength of their respective currencies
versus the U.S. dollar.
From time to time we may employ currency hedges to mitigate the impact of
foreign currency fluctuations. If currency hedges are not employed, we may be
exposed to earnings volatility as a result of foreign currency fluctuations. In
October 1997, we decided to employ a series of foreign currency options with a
U.S. dollar notional amount of approximately $13.6 million at a cost of
approximately $0.4 million. Two of these options were sold in the third quarter
of fiscal 1998 for $0.4 million. The remaining options expired worthless in the
fourth quarter of 1998. These options were designed to protect the Company from
potential detrimental effects of currency movements associated with the U.S.
dollar versus the German mark and the French franc as compared to the third and
fourth quarters of 1997. In October 1998, we again decided to employ a series of
foreign currency options with a U.S. dollar notional amount of approximately
$45.7 million at a cost of approximately $0.3 million. These options are
designed to protect the Company from potential detrimental effects of currency
movements associated with the U.S. dollar versus the German mark, French franc,
Swiss franc, and Japanese yen in the second, third and fourth quarters of fiscal
1999. The options, designed to protect the Company from detrimental effects of
foreign currency fluctuations in the second and third quarters, were sold or
expired worthless in their respective quarters of fiscal 1999 at a net gain of
$0.1 million and $0.5 million, respectively. The remaining contracts with a
notional value of $15.2 million remained in place at June 30, 1999.
15
<PAGE> 17
RESULTS OF OPERATIONS
QUARTER ENDED JUNE 30, 1999 COMPARED TO THE QUARTER ENDED JUNE 30, 1998
NET SALES. Net sales for the three months ended June 30, 1999 were $280.1
million, an increase of $53.1 million (23.4%) from net sales of $227.0 million
for the corresponding three months ended June 30, 1998. Sales in the laboratory
segment were $183.8 million for the three months ended June 30, 1999, an
increase of 32.6% from the corresponding 1998 fiscal period. Increased sales in
the laboratory segment resulted primarily from (i) sales of products of acquired
companies, net of discontinued product lines (approximately $34.7 million), (ii)
increased volume from sales of existing products (approximately $5.6 million),
(iii) price increases (approximately $2.9 million), (iv) increased volume from
sales of new products (approximately $1.1 million) and (v) an improved product
mix (approximately $0.9 million). In the dental segment, net sales were $96.3
million for the three months ended June 30, 1999, an increase of 8.9% from the
corresponding fiscal 1998 period. Increased sales in the dental segment resulted
primarily from (i) sales of products of acquired companies, net of discontinued
product lines (approximately $3.3 million), (ii) increased volume from sales of
existing products (approximately $2.5 million) and (iii) increased volume from
sales of new products (approximately $2.2 million).
GROSS PROFIT. Gross profit for the three months ended June 30, 1999 was
$145.4 million, an increase of 28.0% from gross profit of $113.6 million for the
corresponding fiscal 1998 period. Excluding the restructuring charges in the
prior year period, gross profit for the three months ended June 30, 1999
increased 21.4% from gross profit of $119.7 million for the corresponding fiscal
1998 period. Gross profit in the laboratory segment was $88.4 million (48.1% of
net segment sales), an increase of 31.8% from gross profit of $67.1 million
(48.4% of net segment sales) during the corresponding fiscal 1998 period.
Excluding the restructuring charges in the prior year period, gross profit in
the laboratory segment increased 28.8% from gross profit of $68.6 million (49.5%
of net segment sales) during the corresponding fiscal 1998 period. The decrease
in gross margin percentage resulted primarily from purchased businesses in the
laboratory segment with lower gross margins than our existing laboratory
businesses. Gross profit in the laboratory segment increased primarily as a
result of (i) the effects of acquired companies (approximately $15.8 million),
(ii) increased volume (approximately $2.9 million), (iii) price increases
(approximately $2.9 million), (iv) the effect of prior period restructuring
charges (approximately $1.5 million), (v) favorable manufacturing overhead
application (approximately $0.7 million) and (vi) favorable foreign currency
impacts (approximately $0.4 million). Increased gross profit in the laboratory
segment was partially offset by an unfavorable product mix (approximately $3.2
million). In the dental segment, gross profit was $57.0 million (59.2% of net
segment sales) for the three months ended June 30, 1999, an increase of 22.6%
from gross profit of $46.5 million (52.6% of net segment sales) during the
corresponding fiscal 1998 period. Excluding the restructuring charges in the
prior year period, gross profit increased 11.5% from gross profit of $51.1
million (57.9% of net segment sales) during the corresponding fiscal 1998
period. Increased gross profit in the dental segment resulted primarily from (i)
the effect of prior period restructuring charges (approximately $4.6 million),
(ii) favorable manufacturing overhead application (approximately $2.4 million),
(iii) increased volume (approximately $2.0 million), (iv) the effects of
acquired companies (approximately $1.8 million) and (v) an improved product mix
(approximately $0.5 million) partially offset by inventory adjustments
(approximately $0.7 million).
16
<PAGE> 18
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. Selling, general and
administrative expenses for the three months ended June 30, 1999 were $76.8
million (27.4% of net sales) as compared to $88.9 million (39.2% of net sales)
in the corresponding fiscal 1998 period. Excluding the restructuring charges and
acquisition related expenses from both periods, selling, general and
administrative expenses for the three months ended June 30, 1999 were $77.8
million (27.8% of net sales) as compared to $62.8 million (27.6% of net sales)
in the corresponding fiscal 1998 period. General and administrative expenses at
the corporate level, including amortization of purchase accounting adjustments
and goodwill associated with acquisitions, were $6.7 million, representing an
increase of 17.7% from $5.7 million in the corresponding fiscal 1998 period. The
increase at the corporate level was primarily due to increased professional
service and legal expenses. Selling, general and administrative expenses at the
subsidiary level, including amortization of intangibles, were $70.1 million
(25.0% of net sales), representing a decrease of 15.8% from $83.2 million (36.7%
of net sales) in the corresponding fiscal 1998 period. The decrease at the
subsidiary level was primarily due to (i) prior period restructuring and
acquisition expenses related expenses (approximately $27.3 million) and (ii)
favorable foreign currency impacts (approximately $0.2 million) offset by (i)
expenses related to newly acquired businesses (approximately $6.6 million), (ii)
increased general and administrative expenses (approximately $3.0 million),
(iii) increased marketing expenses (approximately $2.0 million), (iv) increased
amortization of intangible assets related to acquired businesses (approximately
$1.4 million) and (iv) increased research and development expenditures
(approximately $1.3 million).
OPERATING INCOME. Operating income was $68.6 million (24.5% of net sales)
for the three months ended June 30, 1999 compared to $24.7 million (10.9% of net
sales) in the corresponding fiscal 1998 period. Excluding the restructuring
charges and acquisition related expenses from both periods, operating income was
$67.6 million (24.1% of net sales) for the three months ended June 30, 1999
compared to $57.0 million (25.1% of net sales) in the corresponding fiscal 1998
period. Operating income in the laboratory segment was $44.5 million (24.2% of
net segment sales) compared to $25.5 million (18.4% of net segment sales) in the
corresponding fiscal 1998 period. Excluding the restructuring charges from both
periods, operating income was $44.7 million (24.3% of net sales) for the three
months ended June 30, 1999 compared to $36.4 million (26.2% of net sales) in the
corresponding fiscal 1998 period. Operating income in the dental segment was
$24.1 million (25.1% of net segment sales) compared to an operating loss of $0.8
million in the corresponding fiscal 1998 period. Excluding the restructuring
charges and acquisition related expenses from both periods, operating income was
$22.9 million (23.8% of net sales) for the three months ended June 30, 1999
compared to $20.6 million (23.4% of net sales) in the corresponding fiscal 1998
period.
INTEREST EXPENSE. Interest expense was $13.7 million for the three months
ended June 30, 1999 compared to $13.4 million in the corresponding fiscal 1998
period. This increase resulted from a higher debt balance primarily from our
acquisition activity, partially offset by the proceeds from the sale of NPT.
Interest expense for the three months ended June 30, 1999 and 1998 included
additional non-cash interest expense of $0.3 million resulting from the adoption
of SFAS No. 106.
INCOME TAXES. Taxes on income increased $14.9 million when compared to the
fiscal 1998 period primarily as a result of increased earnings.
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<PAGE> 19
INCOME FROM CONTINUING OPERATIONS. As a result of the foregoing, we had net
income from continuing operations of $33.3 million for the three months ended
June 30, 1999 compared to $4.7 million in the corresponding fiscal 1998 period.
INCOME FROM DISCONTINUED OPERATIONS. Income from discontinued operations for
the three months ended June 30, 1998 was $0.5 million. The fiscal 1999 period
contains no comparative results since the business was sold on March 31,1999.
EXTRAORDINARY ITEM. On March 31, 1999, Sybron completed the sale of NPT to
Norton Performance Plastics Corporation, a subsidiary of Saint-Gobain - France.
Net proceeds from the sale, net of $3.7 million of selling expenses and
estimated adjustments, amounted to $84.0 million. The Company realized a gain on
this sale of $18.0 million (net of tax $16.0 million). For the quarter ended
June 30, 1999, the Company reduced the gain on the sale of NPT to reflect a
reduction to the purchase price for estimated audit adjustments to NPT's March
31,1999 balance sheet (approximately $1.9 million), an adjustment to the tax
basis of NPT (approximately $1.3 million) and additional expenses incurred in
the transaction (approximately $0.2 million), partially offset by a reduction to
tax expense (approximately $2.6 million). The sales price and final gain
calculation are subject to further adjustments based upon finalization of the
audited book value of NPT at March 31, 1999 and the related tax impact. The
Company does not expect a significant change to the purchase price or gain as a
result of the finalization of the audit of NPT's March 31, 1999 balance sheet
and tax calculation. The proceeds of the sale, net of tax and expenses, were
used to repay approximately $67.9 million previously owed under the Company's
credit facilities.
NET INCOME. We had net income of $32.5 million for the three months ended
June 30, 1999 compared to $5.2 million in the corresponding fiscal 1998 period.
DEPRECIATION AND AMORTIZATION. Depreciation and amortization expense is
allocated among cost of sales, selling, general and administrative expenses and
other expense. Depreciation and amortization increased $2.9 million when
compared to the prior year three month period. This increase was primarily due
to the amortization of intangible assets and depreciation of property, plant and
equipment related to acquired companies.
NINE MONTHS ENDED JUNE 30, 1999 COMPARED TO THE NINE MONTHS ENDED JUNE 30, 1998
NET SALES. Net sales for the nine months ended June 30, 1999 were $800.4
million, an increase of $132.6 million (19.9%) from net sales of $667.8 million
for the corresponding nine months ended June 30, 1998. Sales in the laboratory
segment were $515.7 million for the nine months ended June 30, 1999, an increase
of 29.8% from the corresponding 1998 fiscal period. Increased sales in the
laboratory segment resulted primarily from (i) sales of products of acquired
companies, net of discontinued product lines (approximately $97.2 million), (ii)
increased volume from sales of existing products (approximately $5.8 million),
(iii) price increases (approximately $5.9 million), (iv) increased volume from
sales of new products (approximately $5.4 million), (v) a favorable product mix
(approximately $2.2 million) and (vi) favorable foreign currency impacts
(approximately $1.9 million). In the dental segment, net sales were $284.7
million for the nine months ended June 30, 1999, an increase of 5.3% from the
corresponding
18
<PAGE> 20
fiscal 1998 period. Increased sales in the dental segment resulted primarily
from (i) sales of products of acquired companies, net of discontinued product
lines (approximately $9.6 million), (ii) increased volume from sales of new
products (approximately $5.9 million) and (iii) favorable foreign currency
movements (approximately $0.5 million). Increased sales in the dental segment
were partially offset by reduced volume from sales of existing products
(approximately $1.7 million).
GROSS PROFIT. Gross profit for the nine months ended June 30, 1999 was
$412.6 million, an increase of 20.1% from gross profit of $343.5 million for the
corresponding fiscal 1998 period. Excluding the restructuring charges in the
prior year period, gross profit for the nine months ended June 30, 1999
increased 18.0% from gross profit of $349.6 million for the corresponding fiscal
1998 period. Gross profit in the laboratory segment was $245.2 million (47.6% of
net segment sales), an increase of 28.1% from gross profit of $191.4 million
(48.2% of net segment sales) during the corresponding fiscal 1998 period.
Excluding the restructuring charges in the prior year period, gross profit in
the laboratory segment increased 27.1% from gross profit of $192.9 million
(48.5% of net segment sales) during the corresponding fiscal 1998 period. Gross
profit in the laboratory segment increased primarily as a result of (i) the
effects of acquired companies (approximately $44.0 million), (ii) price
increases (approximately $5.9 million), (iii) increased volume (approximately
$5.3 million), (iv) the effect of prior period restructuring charges
(approximately $1.5 million), (v) favorable foreign currency movements
(approximately $0.7 million) and (vi) inventory adjustments (approximately $0.2
million). Increased gross profit was partially offset by (i) increased
manufacturing overhead (approximately $3.0 million) and (ii) an unfavorable
product mix (approximately $0.9 million). In the dental segment, gross profit
was $167.4 million (58.8% of net segment sales) for the nine months ended June
30, 1999, an increase of 10.1% from gross profit of $152.1 million (56.2% of net
segment sales) during the corresponding fiscal 1998 period. . Excluding the
restructuring charges in the prior year period, gross profit increased 6.8% from
gross profit of $156.7 million (57.9% of net segment sales) during the
corresponding fiscal 1998 period. Increased gross profit in the dental segment
resulted primarily from (i) the effect of prior period restructuring charges
(approximately $4.6 million), (ii) decreased manufacturing overhead
(approximately $4.2 million), (iii) the effects of acquired companies
(approximately $3.7 million), (iv) increased volume (approximately $2.9
million), (v) an improved product mix (approximately $1.2 million) and (vi)
favorable foreign currency impacts (approximately $0.4 million). Increased gross
profit was partially offset by inventory adjustments (approximately $1.8
million).
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. Selling, general and
administrative expenses for the nine months ended June 30, 1999 were $222.6
million (27.8% of net sales) as compared to $217.4 million (32.5% of net sales)
in the corresponding fiscal 1998 period. Excluding the restructuring charges and
acquisition related expenses from both periods, selling, general and
administrative expenses for the nine months ended June 30, 1999 were $220.9
million (27.6% of net sales) as compared to $191.2 million (28.6% of net sales)
in the corresponding fiscal 1998 period. General and administrative expenses at
the corporate level, including amortization of purchase accounting adjustments
and goodwill associated with acquisitions, were $17.8 million, representing an
increase of 10.2% from $16.2 million in the corresponding fiscal 1998 period.
The increase at the corporate level was primarily due to increased professional
service and legal expenses. Selling, general and administrative expenses at the
subsidiary level, including amortization of intangibles, were $204.8 million
(25.6% of net sales), representing an increase of 1.8% from $201.2 million
(30.1% of net
19
<PAGE> 21
sales) in the corresponding fiscal 1998 period. Increases at the subsidiary
level were primarily due to (i) expenses related to newly acquired businesses
(approximately $18.3 million), (ii) increased amortization of intangible assets
related to acquired businesses (approximately $3.8 million), (iii) increased
marketing expense (approximately $2.4 million, (iv) increased general and
administrative expenses (approximately $2.2 million) and (v) increased research
and development expenditures (approximately $1.8 million). Increases in selling,
general and administrative expenses were partially offset by (i) prior period
restructuring and acquisition expenses related expenses (approximately $24.4
million) and (ii) favorable foreign currency impacts (approximately $0.7
million).
OPERATING INCOME. Operating income was $190.0 million (23.7% of net sales)
for the nine months ended June 30, 1999 compared to $126.1 million (18.9% of net
sales) in the corresponding fiscal 1998 period. Excluding the restructuring
charges and acquisition related expenses from both periods, operating income was
$191.6 million (23.9% of net sales) for the nine months ended June 30, 1999
compared to $158.4 million (23.7% of net sales) in the corresponding fiscal 1998
period. Operating income in the laboratory segment was $122.5 million (23.8% of
net segment sales) compared to $87.2 million (21.9% of net segment sales) in the
corresponding fiscal 1998 period. Excluding the restructuring charges from both
periods, operating income was $122.8 million (23.8% of net sales) for the nine
months ended June 30, 1999 compared to $97.0 million (24.4% of net sales) in the
corresponding fiscal 1998 period. Operating income in the dental segment was
$67.5 million (23.7% of net segment sales) compared to $38.9 million (14.4% of
net segment sales) in the corresponding fiscal 1998 period. Excluding the
restructuring charges and acquisition related expenses from both periods,
operating income was $68.8 million (24.2% of net sales) for the nine months
ended June 30, 1999 compared to $61.4 million (22.7% of net sales) in the
corresponding fiscal 1998 period.
INTEREST EXPENSE. Interest expense was $41.9 million for the nine months
ended June 30, 1999 compared to $40.1 million in the corresponding fiscal 1998
period. This increase resulted from a higher debt balance primarily from our
acquisition activity, partially offset by the proceeds from the sale of NPT.
Interest expense for the nine months ended June 30, 1999 and 1998 included
additional non-cash interest expense of $0.9 million resulting from the adoption
of SFAS No. 106.
INCOME TAXES. Taxes on income increased $22.5 million when compared to the
fiscal 1998 period primarily as a result of increased earnings.
INCOME FROM CONTINUING OPERATIONS. As a result of the foregoing, we had net
income from continuing operations of $89.2 million for the nine months ended
June 30, 1999 compared to $50.3 million in the corresponding fiscal 1998 period.
INCOME FROM DISCONTINUED OPERATIONS. Income from discontinued operations for
the nine months ended June 30, 1999 was $0.1 million compared to $3.1 million in
the corresponding fiscal 1998 period. The fiscal 1999 period includes operating
results of NPT for the period October 1, 1999 through the sale date of March 31,
1999, while the 1998 period includes a full nine months of operating results. As
a result, comparative analysis would not be meaningful.
20
<PAGE> 22
EXTRAORDINARY ITEM. On March 31, 1999, Sybron completed the sale of NPT to
Norton Performance Plastics Corporation, a subsidiary of Saint-Gobain - France.
Net proceeds from the sale, net of $3.7 million of selling expenses and
estimated adjustments, amounted to $84.0 million. The Company realized a gain on
this sale of $18.0 million (net of tax $16.0 million). The sales price and final
gain calculation are subject to further adjustments based upon finalization of
the audited book value of NPT at March 31, 1999 and the related tax impact. The
Company does not expect a significant change to the purchase price or gain as a
result of the finalization of the audit and tax calculation. The proceeds of the
sale net of tax and expenses were used to repay approximately $67.9 million
previously owed under the Company's credit facilities.
NET INCOME. We had net income of $107.3 million for the nine months ended
June 30, 1999 compared to $53.5 million in the corresponding fiscal 1998 period.
DEPRECIATION AND AMORTIZATION. Depreciation and amortization expense is
allocated among cost of sales, selling, general and administrative expenses and
other expense. Depreciation and amortization increased $8.1 million when
compared to the prior year nine month period. This increase was primarily due to
the amortization of intangible assets and depreciation of property, plant and
equipment related to acquired companies.
LIQUIDITY AND CAPITAL RESOURCES
As a result of a 1987 leveraged buyout transaction (the "Acquisition") and
the acquisitions we have completed since 1987, we have increased the carrying
value of certain tangible and intangible assets consistent with GAAP.
Accordingly, our results of operations include a significant level of non-cash
expenses related to the depreciation of fixed assets and the amortization of
intangible assets, including goodwill. Goodwill and intangible assets increased
by approximately $59.4 million in the third quarter and by approximately $153.2
million in the nine months of fiscal 1999, primarily as a result of continued
acquisition activity. We believe, therefore, that although it is not a GAAP
measure and it is not a substitute for GAAP measured earnings and cash flows or
an indication of operating performance or a measure of liquidity, "Adjusted
EBITDA" represents a useful measure of our ability to internally fund our
capital requirements.
Our capital requirements arise principally from indebtedness incurred in
connection with the permanent financing for the Acquisition, our subsequent
refinancings, our working capital needs, primarily related to inventory and
accounts receivable, our capital expenditures, primarily related to purchases of
machinery and molds, the purchase of various businesses and product lines in
execution of our acquisition strategy, payments to be made in connection with
our June 1998 restructuring, and the periodic expansion of physical facilities.
It is currently our intent to pursue our acquisition strategy. If acquisitions
continue at our historical pace, of which there can be no assurance, we may
require financing beyond the capacity of our current credit facilities. In
addition, certain acquisitions previously completed contain "earnout provisions"
requiring further payments in the future if certain financial results are
achieved by the acquired companies. With respect to the restructuring charge of
approximately $24.0 million which was recorded in June, 1998, of which
approximately $12.6 million represented expected cash expenditures, as of June
30, 1999, we have made cash payments of approximately $8.1 million, reclassified
approximately $0.4 million to discontinued operations and made
21
<PAGE> 23
an adjustment of $0.9 million. Approximately $3.2 million remains to be paid of
which an estimated $2.5 million will be paid over the next twelve months.
The statement contained in the immediately preceding paragraph concerning
our intent to continue to pursue our acquisition strategy is a forward-looking
statement. Our ability to continue our acquisition strategy is subject to a
number of uncertainties, including, but not limited to, our ability to raise
capital beyond the capacity of our current credit facilities and the
availability of suitable acquisition candidates at reasonable prices. See
"Cautionary Factors" below.
On July 31, 1995, we entered into a credit agreement (as amended to date,
the "Credit Agreement") with Chemical Bank (now known as The Chase Manhattan
Bank ("Chase")) and certain other lenders providing for a term loan facility of
$300 million (the "Tranche A Term Loan Facility"), and a revolving credit
facility of $250 million (the "Revolving Credit Facility"). On the same day, we
borrowed $300 million under the Tranche A Term Loan Facility and approximately
$122.5 million under the Revolving Credit Facility. Approximately $158.5 million
of the borrowed funds were used to finance the acquisition of the Nunc group of
companies (approximately $9.1 million of the acquisition price for Nunc was
borrowed under our previous credit facilities). The remaining borrowed funds of
approximately $264.0 million were used to repay outstanding amounts, including
accrued interest, under our previous credit facilities and to pay certain fees
in connection with such refinancing. On July 9, 1996, under the First Amendment
to the Credit Agreement (the "First Amendment"), the capacity of the Revolving
Credit Facility was increased to $300 million, and a competitive bid process was
established as an additional option for us in setting interest rates. On April
25, 1997, we entered into the Second Amended and Restated Credit Agreement (the
"Second Amendment"). The Second Amendment was an expansion of the credit
facilities. The Tranche A Term Loan Facility was restored to $300 million by
increasing it by $52.5 million (equal to the amount previously repaid through
April 24, 1997) and the Revolving Credit Facility was expanded from $300 million
to $600 million. On April 25, 1997, we borrowed a total of $622.9 million under
the credit facilities. The proceeds were used to repay $466.3 million of
previously existing Eurodollar Rate and Tranche A ABR loans (as defined below)
(including accrued interest and certain fees and expenses) under the credit
facilities and to pay $156.6 million with respect to the purchase of Remel
Limited Partnership which includes both the purchase price and payment of
assumed debt. The $72 million of CAF borrowings (as defined below) remained in
place. On July 1, 1998, we completed the First Amendment to the Second Amended
Credit Agreement (the "Additional Amendment"). The Additional Amendment provided
for an increase in the Tranche A Term Loan Facility of $100 million. On July 1,
1998, we used the $100 million of proceeds from the Additional Amendment to pay
$100 million of existing debt balances under the Revolving Credit Facility. The
Additional Amendment also provided us with the ability to use proceeds from the
issuance of additional unsecured, subordinated indebtedness of up to $300
million, to pay amounts outstanding under the Revolving Credit Facility without
reducing our ability to borrow under the Revolving Credit Facility in the
future. On July 29, 1999, we entered into the Third Amended and Restated Credit
Agreement (the "Third Amendment"), and borrowed an additional $300 million under
a new term loan facility (the "Tranche B Term Loan Facility"). On July 29, 1999,
we used the $300 million of proceeds from the Tranche B Term Loan Facility
(after a reduction for fees of approximately $1.6 million) to repay $298.4
million of outstanding amounts under the Revolving Credit Facility.
22
<PAGE> 24
Payment of principal and interest with respect to the credit facilities and
the Sale/Leaseback (as defined later herein) are anticipated to be our largest
use of operating funds in the future. The Tranche A Term Loan Facility and
Revolving Credit Facility provide for an annual interest rate, at our option,
equal to (a) the higher of (i) the rate from time to time publicly announced by
Chase in New York City as its prime rate, (ii) the federal funds rate plus 1/2
of 1%, and (iii) the base CD rate plus 1%, (collectively referred to as "Tranche
A ABR") or (b) the adjusted interbank offered rate for eurodollar deposits
("Eurodollar Rate") plus 1/2% to 7/8% (the "Tranche A Eurodollar Rate Margin")
depending upon the ratio of our total debt to Consolidated Adjusted Operating
Profit (as defined in the Third Amendment), or (c) with respect to certain
advances under Revolving Credit Facility, the rate set by the competitive bid
process among the parties to the Revolving Credit Facility ("CAF"). The Tranche
B Term Loan Facility provides for an annual interest rate, at our option, equal
to (a) the higher of (i) the rate from time to time publicly announced by Chase
in New York City as its prime rate plus 1% to 1 1/4%, (ii) the federal funds
rate plus of 1 1/2% to 1 3/4%, and (iii) the base CD rate plus 2% to 2 1/4%,
depending upon the ratio of our total debt to Consolidated Adjusted Operating
Profit or (b) the Eurodollar Rate plus 2% to 2 1/4% depending upon the ratio of
our total debt to Consolidated Adjusted Operating Profit. The average interest
rate on the Tranche A Term Loan Facility (inclusive of the swap agreements
described below) in the third quarter and first three quarters of fiscal 1999
was 6.8% and 6.5%, respectively. The average interest rate on the Revolving
Credit Facility in the third quarter and first three quarters of fiscal 1999 was
6.1% and 6.0%, respectively. The Company will pay an interest rate of 7.67% on
the Tranche B Term Loan Facility through January 2000.
As a result of the terms of our credit facilities, we are sensitive to a
rise in interest rates. In order to reduce our sensitivity to interest rate
increases, from time to time we enter into interest rate swap agreements. As of
June 30, 1999, the Company has seven interest rate swaps outstanding aggregating
a notional amount of $375 million. Under the terms of the swap agreements, the
Company is required to pay a fixed rate amount equal to the swap agreement rate
listed below. In exchange for the payment of the fixed rate amount, the Company
receives a floating rate amount equal to the three-month LIBOR rate in effect on
the date of the swap agreements and the subsequent reset dates. For each of the
swap agreements the rate resets on each quarterly anniversary of the swap
agreement date until the swap expiration date. The net interest rate paid by the
Company is approximately equal to the sum of the swap agreement rate plus the
applicable Tranche A Eurodollar Rate Margin. For the quarter and first
nine-months of fiscal 1999, the Tranche A Eurodollar Rate Margin was .75%. The
swap agreement rates and duration as of June 30, 1999 are as follows:
23
<PAGE> 25
<TABLE>
<CAPTION>
SWAP AGREEMENT SWAP AGREEMENT
EXPIRATION DATE NOTIONAL AMOUNT DATE RATE
- --------------- --------------- ---- ----
<S> <C> <C> <C>
August 13, 1999 $50 million August 13, 1993 5.540%
June 8, 2002 $50 million December 8, 1995 5.500%
February 7, 2001 $50 million August 7, 1997 5.910%
August 7, 2001 $50 million August 7, 1997 5.897%
September 10, 2001 $50 million December 8, 1995 5.623%
July 31, 2002 $75 million May 7, 1997 6.385%
July 31, 2002 $50 million October 23, 1998 4.733%
</TABLE>
Also as part of the permanent financing for the Acquisition, on December 22,
1988, we entered into the sale and leaseback of what were our principal domestic
facilities at that time (the "Sale/Leaseback"). In January 1999, the annual
obligation under the Sale/Leaseback increased from $3.3 million to $3.6 million,
payable monthly. On the fifth anniversary of the leases and every five years
thereafter (including renewal terms), the rent will be increased by the
percentage equal to 75% of the percentage increase in the Consumer Price Index
over the preceding five years. The percentage increase to the rent in any
five-year period is capped at 15%. The next adjustment will occur on January 1,
2004.
We intend to fund our acquisitions, working capital requirements, capital
expenditure requirements, principal and interest payments, obligations under the
Sale/Leaseback, restructuring expenditures, other liabilities and periodic
expansion of facilities, to the extent available, with funds provided by
operations and short-term borrowings under the Revolving Credit Facility. To the
extent that funds are not available from those sources, particularly with
respect to our acquisition strategy, we intend to raise additional capital.
The Revolving Credit Facility provides up to $600 million in available
credit. At June 30, 1999, there was approximately $56.5 million of available
credit under the Revolving Credit Facility. After completion of the Third
Amendment to the Credit Agreement on July 29, 1999 the proceeds of $300 million
(after reduction for approximately $1.6 million of fees) were used to repay
outstanding borrowings under the Revolving Credit Facility, increasing our
available credit by $298.4 million. On July 29, 1999, after completion of the
Third Amendment, the Company had available credit of $337.6 million. Under the
Tranche A Term Loan Facility, on July 31, 1997 we began to repay principal in 21
consecutive quarterly installments by paying the $8.75 million due in fiscal
1997, $35.0 million due in fiscal 1998 and $17.5 million of the $36.25 million
due in fiscal 1999. On March 31, 1999, as a result of the sale of NPT, the
Company received approximately $87.7 million (approximately $86.0 million net of
fees and expenses). Net proceeds of the sale, after a reduction for estimated
applicable income taxes, were required to be used to repay amounts owed by the
Company under the Tranche A Term Loan Facility. On March 31, 1999, the Company
paid principal of approximately $67.9 million due under the Tranche A Term Loan
Facility. The following table shows how the payments were applied, and the
resulting revised schedule of principal payments under the Tranche A Term Loan
Facility.
24
<PAGE> 26
<TABLE>
<CAPTION>
Payments Previously Principal Due
Applied from Scheduled After Application
NPT Sale Principal of NPT Proceeds
-------- --------- ---------------
(In Millions)
<S> <C> <C> <C>
Remaining payments
due in fiscal 1999 $ 18.75 $ 18.75 $ --
Payments due in 2000 42.50 42.50 --
Payments due in 2001 1.29 53.75 52.46
Payments due in 2002 5.37 223.75 218.38
------- -------- -------
Total $ 67.91 $ 338.75 $270.84
======= ======== =======
</TABLE>
In addition, under the terms of the Tranche B Term Loan Facility, the
Company will be required to repay principal in consecutive quarterly
installments beginning on January 31, 2000 as follows: $0.75 million due in
fiscal 2000, $1.0 million due in fiscal 2001, $1.0 million due in fiscal 2002,
$120.25 million due in fiscal 2003 and $177 million due in fiscal 2004, with the
final payment due on July 31, 2004.
The Credit Agreement contains numerous financial and operating covenants,
including, among other things, restrictions on investments; requirements that we
maintain certain financial ratios; restrictions on our ability to incur
indebtedness or to create or permit liens or to pay cash dividends in excess of
$50.0 million plus 50% of our consolidated net income for each fiscal quarter
ending after June 30, 1995, less any dividends paid after June 22, 1994; and
limitations on incurrence of additional indebtedness. The Credit Agreement
permits us to make acquisitions provided we continue to satisfy all covenants
upon any such acquisition. Our ability to meet our debt service requirements and
to comply with such covenants is dependent upon our future performance, which is
subject to financial, economic, competitive and other factors affecting us, many
of which are beyond our control.
YEAR 2000
Historically, certain computer programs were written using two digits rather
than four to identify the applicable year. Accordingly, software used by the
Company and others with whom it does business may be unable to interpret dates
in the calendar year 2000. This situation, commonly referred to as the Year 2000
("Y2K") issue, could result in computer failures or miscalculations, causing
disruption of normal business activities. The Y2K issue could arise at any point
in our supply, manufacturing, distribution, administration, information,
accounting and financial systems. Incomplete or untimely resolution of the Y2K
issue by the Company, key suppliers, customers and other parties, could have a
material adverse effect on the Company's results of operations, financial
condition and cash flow.
We have been addressing the Y2K issue with a corporate-wide initiative
sponsored by Sybron's Vice President-Finance and Chief Financial Officer and its
Vice President-General Counsel and Secretary, and led at the subsidiary level by
the Executive Vice President and Chief Financial Officer of SLPC and the Vice
President and Chief Information Officer of SDS. The four main phases of the
25
<PAGE> 27
initiative include (1) identification of affected mission critical software
utilized by both information and non-information technology systems, (2)
assessment of the risk associated with such affected software and development of
a plan for modifying or replacing the software, (3) implementation of solutions
under the plan, and (4) testing of the solutions. The initiative also includes
communication with our significant suppliers, vendors and customers to determine
the extent to which we are vulnerable to any failures by them to address the Y2K
issue. The program contemplates the development of contingency plans where
needed to deal with Company systems and third party issues.
We have substantially completed the identification, risk-assessment and plan
development phases (phases (1) and (2)) of our initiative with respect to our
internal systems. Our work in these phases has included both information
technology ("IT") and non-information technology ("non-IT") systems. The IT
systems include accounting, financial, budgeting, invoicing and other business
systems. Non-IT systems include manufacturing production lines and equipment,
elevators, heating, ventilation and air conditioning systems, and telephone
systems. Although we believe we have substantially completed these phases, we
recognize that because of the nature of the Year 2000 problem, work in these
phases will continue up to the Year 2000 as new equipment, software, product
lines and businesses are added in the normal course of our operations, including
our acquisition program.
We have completed in excess of 95% of our implementation phase (phase (3))
with respect to our internal systems. In most cases, we are upgrading existing
software to versions which are Y2K compliant. In other cases entire software
platforms are being replaced with more current, compliant systems, internally
developed software is being reprogrammed, and hardware is being replaced.
Although we have work remaining in this area, we believe all of our critical Y2K
implementations have been made.
The testing phase (phase (4)) is also well along, as we have completed in
excess of 95% of the testing required for systems that have been remediated or
replaced to date. Our efforts in this phase include testing by end users and
determination by appropriate local Y2K project managers that the remediated or
replaced systems are Y2K compliant. In those cases where testing cannot be
conducted by Company personnel, as in the case of certain imbedded logic
components, we rely on vendor certifications. Again, although we have some work
remaining in this area, we believe we have completed the testing of all of the
critical systems.
The Company and each of its subsidiaries have project schedules which
include the task of corresponding with critical vendors, customers, suppliers
and other third parties to inquire about their Y2K readiness. The Company and
it's subsidiaries have sent Y2K inquires to substantially all critical third
parties. Based on the responses or lack of responses to date, the Company has
determined there is a risk that some critical suppliers (i.e. those that are key
to a product line or which represent a sole source of supply), will not be Y2K
compliant. The Company's subsidiaries are developing contingency plans to deal
with this risk. Depending on the vendor and product at issue, the Company will
establish an alternative source, build inventory, or identify substitute
products. Based upon the information we have to date, we believe our contingency
plans will enable our subsidiaries to continue to operate without any
significant disruption.
26
<PAGE> 28
Our Year 2000 initiative contemplates the development of contingency plans
as we test our software solutions and complete our risk assessments with respect
to third parties. Based upon the testing of our internal systems to date, we
believe that significant operational problems and costs (including loss of
revenue) are not reasonably likely to result from the failure of such systems as
a result of the Y2K issue. We believe our most reasonably likely worst case
scenarios would be the failure of an important supplier to deliver requested
materials, parts or products or the failure of a significant distributor to get
our products to end users. With respect to suppliers, as set forth in the
previous paragraph, the Company's subsidiaries are developing contingency plans
to deal with this risk. Based on our analysis to date, we believe that the
operational problems that would reasonably likely result from the failure of
critical suppliers would not be significant. The associated costs relating to
supplier problems and the cost of associated contingency planning (including the
cost of building inventory, qualifying alternative suppliers, and potential lost
revenue) have not been fully analyzed, but at this time are believed to be
insignificant. Although we have not done an analysis to determine the effect of
the failure of a significant distributor to be able to ship our products to end
users as a result of Y2K issues, our review to date has not identified any
significant distributor to be reasonably likely to have significant Y2K
compliance issues.
Because of the nature of the Y2K problem, we expect to continue all phases
of our initiative until the Year 2000, and expect to have to continue to develop
contingency plans for Y2K issues arising between now and the Year 2000. In
addition, even though phases (1) through (4) of our initiative are substantially
completed for our core businesses, we will have to establish appropriate Y2K
compliance goals for businesses we acquire in the future pursuant to our
acquisition program.
The historical and estimated future costs to the Company of Y2K compliance
are contained in the following table. The primary components of the reported
costs are external consulting and hardware and software upgrades. We do not
separately track internal costs of the Y2K initiative. Internal costs are
principally payroll costs of employees involved in the initiative. Our Year 2000
remediation efforts are funded from the Company's cash flow and from borrowings
under the Revolving Credit Facility. The Company has not deferred any
significant information technology projects due to its Year 2000 efforts.
<TABLE>
<CAPTION>
Year 2000 Fiscal 1999 Fiscal 1999
(in thousands)(est.) Fiscal 1998 9 months Last 3 months (est.)
===================================================================================
<S> <C> <C> <C>
Capital Costs $1,657 $ 774 $ 426
- -----------------------------------------------------------------------------------
Expenses 914 391 160
- -----------------------------------------------------------------------------------
Total $2,571 $ 1,165 $ 586
- -----------------------------------------------------------------------------------
</TABLE>
The foregoing statements about our beliefs regarding the potential effects
of the Y2K issue on our businesses, and the foregoing estimates of our Y2K costs
are forward looking statements. These statements and estimates are based upon
management's best estimates, which were derived using numerous assumptions
regarding future events, including the continued availability of certain
resources, third-party remediation plans, and other factors. There can be no
assurance that these
27
<PAGE> 29
estimates will prove to be accurate, and actual results could differ materially
from those currently anticipated. Specific factors that could cause such
material differences include, but are not limited to, the availability and cost
of personnel trained in Y2K issues, the ability to identify, assess, remediate
and test all relevant computer codes and embedded technology, the indirect
impact of third parties with whom we do business and who do not mitigate their
Y2K compliance problems, and similar uncertainties.
EUROPEAN ECONOMIC MONETARY UNIT
On January 1, 1999, eleven of the European Union countries (including four
countries in which we have operations) adopted the Euro as their single
currency. At that time, a fixed exchange rate was established between the Euro
and the individual countries' existing currencies (the "legacy currencies"). The
Euro trades on currency exchanges and is available for non-cash transactions.
Following the introduction of the Euro, the legacy currencies will remain legal
tender in the participating countries during a transition period from January 1,
1999 through January 1, 2002. Beginning on January 1, 2002, the European Central
Bank will issue Euro-denominated bills and coins for use in cash transactions.
On or before July 1, 2002, the participating countries will withdraw all legacy
bills and coins and use the Euro as their legal currency.
Our operating units located in European countries affected by the Euro
conversion intend to keep their books in their respective legacy currencies
through a portion of the transition period. At this time, we do not expect
reasonably foreseeable consequences of the Euro conversion to have a material
adverse effect on our business operations or financial condition.
CAUTIONARY FACTORS
This report contains various forward-looking statements concerning our
prospects that are based on the current expectations and beliefs of management.
Forward-looking statements may also be made by us from time to time in other
reports and documents as well as oral presentations. When used in written
documents or oral statements, the words "anticipate", "believe", "estimate",
"expect", "objective" and similar expressions are intended to identify
forward-looking statements. The statements contained herein and such future
statements involve or may involve certain assumptions, risks and uncertainties,
many of which are beyond our control, that could cause our actual results and
performance to differ materially from what is expected. In addition to the
assumptions and other factors referenced specifically in connection with such
statements, the following factors could impact our business and financial
prospects:
- - Factors affecting our international operations, including relevant foreign
currency exchange rates, which can affect the cost to produce our products
or the ability to sell our products in foreign markets, and the value in
U.S. dollars of sales made in foreign currencies. Other factors include our
ability to obtain effective hedges against fluctuations in currency
exchange rates; foreign trade, monetary and fiscal policies; laws,
regulations and other activities of foreign governments, agencies and
similar organizations; and risks associated with having major manufacturing
facilities located in countries, such as Mexico, Hungary and Italy, which
have historically been less stable than the United States in several
respects, including fiscal and political stability; and
28
<PAGE> 30
risks associated with the economic downturn in Japan, Russia, other Asian
countries and Latin America.
- - Factors affecting our ability to continue pursuing our current acquisition
strategy, including our ability to raise capital beyond the capacity of our
existing credit facilities or to use our stock for acquisitions, the cost
of the capital required to effect our acquisition strategy, the
availability of suitable acquisition candidates at reasonable prices, our
ability to realize the synergies expected to result from acquisitions, and
the ability of our existing personnel to efficiently handle increased
transitional responsibilities resulting from acquisitions.
- - Factors affecting our ability to profitably distribute and sell our
products, including any changes in our business relationships with our
principal distributors, primarily in the laboratory segment, competitive
factors such as the entrance of additional competitors into our markets,
pricing and technological competition, and risks associated with the
development and marketing of new products in order to remain competitive by
keeping pace with advancing dental, orthodontic and laboratory
technologies.
- - With respect to Erie, factors affecting its Erie Electroverre S.A.
subsidiary's ability to manufacture the glass used by Erie's worldwide
manufacturing operations, including delays encountered in connection with
the periodic rebuild of the sheet glass furnace and furnace malfunctions at
a time when inventory levels are not sufficient to sustain Erie's flat
glass operations.
- - Factors affecting our ability to hire and retain competent employees,
including unionization of our non-union employees and changes in
relationships with our unionized employees.
- - The risk of strikes or other labor disputes at those locations which are
unionized which could affect our operations.
- - Factors affecting our ability to continue manufacturing and selling those
of our products that are subject to regulation by the United States Food
and Drug Administration or other domestic or foreign governments or
agencies, including the promulgation of stricter laws or regulations,
reclassification of our products into categories subject to more stringent
requirements, or the withdrawal of the approval needed to sell one or more
of our products.
- - Factors affecting the economy generally, including a rise in interest
rates, the financial and business conditions of our customers and the
demand for customers' products and services that utilize Company products.
- - Factors relating to the impact of changing public and private health care
budgets which could affect demand for or pricing of our products.
29
<PAGE> 31
- - Factors affecting our financial performance or condition, including tax
legislation, unanticipated restrictions on our ability to transfer funds
from our subsidiaries and changes in applicable accounting principles or
environmental laws and regulations.
- - The cost and other effects of claims involving our products and other legal
and administrative proceedings, including the expense of investigating,
litigating and settling any claims.
- - Factors affecting our ability to produce products on a competitive basis,
including the availability of raw materials at reasonable prices.
- - Unanticipated technological developments that result in competitive
disadvantages and create the potential for impairment of our existing
assets.
- - Unanticipated developments while implementing the modifications necessary
to mitigate Year 2000 compliance problems, including the availability and
cost of personnel trained in this area, the ability to locate and correct
all relevant computer codes, the indirect impacts of third parties with
whom we do business and who do not mitigate their Year 2000 compliance
problems, and similar uncertainties, and unforeseen consequences of the
Year 2000 problem.
- - Factors affecting our operations in European countries related to the
conversion from local legacy currencies to the Euro.
- - Other business and investment considerations that may be disclosed from
time to time in our Securities and Exchange Commission filings or in other
publicly available written documents.
We undertake no obligation to publicly update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
RISK MANAGEMENT
We are exposed to market risk from changes in foreign currency exchange
rates and interest rates. To reduce our risk from these foreign currency rate
and interest rate fluctuations, we occasionally enter into various hedging
transactions. We do not anticipate material changes to our primary market risks
other than fluctuations in magnitude from increased or decreased foreign
currency denominated business activity or floating rate debt levels. We do not
use financial instruments for trading purposes and are not a party to any
leveraged derivatives.
FOREIGN EXCHANGE
We have, from time to time, used foreign currency options to hedge our
exposure from adverse changes in foreign currency rates. Our foreign currency
exposure exists primarily in the French Franc, German Mark, Swiss Franc and the
Japanese Yen values versus the U.S. dollar. Hedging is accomplished by the use
of foreign currency options, and the gain or loss on these options is used to
offset gains or losses in the foreign currencies to which they pertain. Hedges
of anticipated
30
<PAGE> 32
transactions are accomplished with options that expire on or near the maturity
date of the anticipated transactions. In October 1998 we entered into twelve
foreign currency options to hedge our exposure to each of the aforementioned
currencies. During the third quarter of fiscal 1999, three of the option
contracts were sold and a fourth expired worthless resulting in a gain of $0.5
million. As of June 30, 1999 four foreign currency options remain with a
notional value of $15.1 million and a cost of $0.1 million which at June 30,
1999, approximates fair market value. These options are designed to protect us
from potential detrimental effects of a strengthening U.S. dollar in our fourth
quarter of fiscal 1999.
In fiscal 1999, we expect our exposure from our primary foreign currencies
to approximate the following:
<TABLE>
<CAPTION>
ESTIMATED
EXPOSURE DENOMINATED ESTIMATED
IN THE RESPECTIVE EXPOSURE
CURRENCY FOREIGN CURRENCY IN U.S. DOLLARS
- -------- -------------------- ---------------
(IN THOUSANDS)
<S> <C> <C>
French Franc (FRF) 157,453 FRF $25,712
German Mark (DEM) 26,450 DEM $14,171
Swiss Franc (CHF) 19,396 CHF $12,887
Japanese Yen (JPY) 886,358 JPY $ 6,754
</TABLE>
As a result of these anticipated exposures, we entered into a series of
options expiring at the end of the second, third and fourth quarters of fiscal
1999 to protect ourselves from possible detrimental effects of foreign currency
fluctuations as compared to the second, third and fourth quarters of 1998. We
accomplished this by taking approximately one-fourth of the exposure in each of
the foreign currencies listed above and purchasing a put option on that currency
(giving us the right but not the obligation to sell the foreign currency at a
predetermined rate). We purchased put options on the foreign currencies at
amounts approximately equal to our quarterly exposure. These options expire on a
quarterly basis, at an exchange rate approximately equal to the prior year's
corresponding quarter's actual exchange rate. In the second quarter, three of
the options were sold and a fourth expired worthless, in aggregate, netting a
gain of $0.5 million to the Company. In October 1998, we acquired the following
put options:
31
<PAGE> 33
<TABLE>
<CAPTION>
NOTIONAL OPTION STRIKE
CURRENCY AMOUNT(A) EXPIRATION DATE PRICE PRICE(B)
- -------- --------- --------------- ------ --------
(IN THOUSANDS, EXCEPT STRIKE PRICES)
<S> <C> <C> <C> <C>
FRF (c) 40,000 March 26, 1999 $ 22 6.00
FRF (d) 40,000 June 28, 1999 $ 40 6.00
FRF 40,000 September 28, 1999 $ 69 5.95
DEM (c) 6,500 March 26, 1999 $ 9 1.80
DEM (d) 6,500 June 28, 1999 $ 17 1.80
DEM 6,500 September 28, 1999 $ 24 1.80
CHF (c) 4,800 March 26, 1999 $ 11 1.46
CHF (d) 4,800 June 28, 1999 $ 12 1.49
CHF 4,800 September 28, 1999 $ 21 1.48
JPY (c) 220,000 March 30, 1999 $ 39 128.00
JPY (d) 220,000 June 30, 1999 $ 28 134.00
JPY 220,000 September 30, 1999 $ 21 140.00
</TABLE>
- -------------
(a) Amounts expressed in units of foreign currency
(b) Amounts expressed in foreign currency per U.S. dollar
(c) Options sold or expired in the second quarter of fiscal 1999 at a net gain
of $0.1 million.
(d) Options sold or expired in the third quarter of fiscal 1999
at a net gain of $0.5 million.
Our exposure in terms of these options is limited to the purchase price. As
an example, using the French Franc contract due to expire at September 28, 1999:
<TABLE>
<CAPTION>
FRF EXCHANGE GAIN/(LOSS) GAIN/(LOSS) NET GAIN/
RATE ON OPTION (A) FROM PRIOR YEAR RATE (B) (LOSS)
- ------------ ------------ ----------------------- --------
(IN THOUSANDS, EXCEPT EXCHANGE RATE)
<C> <C> <C> <C>
5.5 $ (69) $ 550 $ 481
6.0 (13) (56) (69)
6.5 500 (569) (69)
</TABLE>
(a) Calculated as (notional amount/strike price)-(notional amount/exchange
rate)-premium paid, with losses limited to the premium paid on the contract.
(b) Calculated as (notional amount/exchange rate) - (notional amount/strike
price).
INTEREST RATES
We use interest rate swaps to reduce our exposure to interest rate
movements. Our net exposure to interest rate risk consists of floating rate
instruments whose interest rates are determined by the Eurodollar Rate. Interest
rate risk management is accomplished by the use of swaps to create fixed debt
amounts by resetting Eurodollar Rate loans concurrently with the rates applying
to the swap agreements. At June 30, 1999, we had floating rate debt of
approximately $810.7 million of which a
32
<PAGE> 34
total of $375 million was swapped to fixed rates. The net interest rate paid by
us is approximately equal to the sum of the swap agreement rate plus the
applicable Tranche A Eurodollar Rate Margin. During the second quarter and year
to date of fiscal 1999, the Tranche A Eurodollar Rate Margin was .75%. The swap
agreement rates and duration as of June 30, 1999 are as follows:
<TABLE>
<CAPTION>
SWAP AGREEMENT SWAP AGREEMENT
EXPIRATION DATE NOTIONAL AMOUNT DATE RATE
- --------------- --------------- ---- ----
<S> <C> <C> <C>
August 13, 1999 $50 million August 13, 1993 5.540%
June 8, 2002 $50 million December 8, 1995 5.500%
February 7, 2001 $50 million August 7, 1997 5.910%
August 7, 2001 $50 million August 7, 1997 5.897%
September 10, 2001 $50 million December 8, 1995 5.623%
July 31, 2002 $75 million May 7, 1997 6.385%
July 31, 2002 $50 million October 23,1998 4.733%
</TABLE>
The model below quantifies the Company's sensitivity to interest rate
movements as determined by the Eurodollar Rate and the effect of the interest
rate swaps which reduce that risk. The model assumes i) a base Eurodollar Rate
of 5.1% (the "Eurodollar Base Rate") which approximates the June 30, 1999 three
month Eurodollar Rate), ii) the Company's floating rate debt is equal to it's
June 30, 1999 floating rate debt balance of $810.7 million, iii) the Company
pays interest on floating rate debt equal to the Eurodollar Rate + 75 basis
points, iv) that the Company has interest rate swaps with a notional amount of
$375.0 million (equal to the notional amount of the Company's interest rate
swaps at June 30, 1999) and v) that the Eurodollar Rate varies by 10% of the
Base Rate.
<TABLE>
<CAPTION>
Interest expense Interest expense
increase from a decrease from a
10% increase in the 10% decrease in the
Interest rate exposure Eurodollar Base Rate Eurodollar Base Rate
- ---------------------- -------------------- --------------------
<S> <C> <C>
Without interest rate swaps: $4.1 million ($4.1 million)
With interest rate swaps: $2.2 million ($2.2 million)
</TABLE>
PART II - OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS:
See the Exhibit Index following the Signature page in this report,
which is incorporated herein by reference.
(b) REPORTS ON FORM 8-K:
No reports on Form 8-K were filed during the quarter for which this
report is filed.
33
<PAGE> 35
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
SYBRON INTERNATIONAL CORPORATION
(Registrant)
Date August 16, 1999 /s/ Dennis Brown
--------------- --------------------------------
Dennis Brown
Vice President - Finance, Chief
Financial Officer & Treasurer*
* executing as both the principal financial
officer and the duly authorized officer
of the Company.
34
<PAGE> 36
SYBRON INTERNATIONAL CORPORATION
(THE "REGISTRANT")
(COMMISSION FILE NO. 1-11091)
EXHIBIT INDEX
TO
QUARTERLY REPORT ON FORM 10-Q FOR THE QUARTER ENDED JUNE 30, 1999
INCORPORATED
EXHIBIT HEREIN BY FILED
NUMBER DESCRIPTION REFERENCE TO HEREWITH
4.1 Third Amended and Restated Credit X
Agreement, dated as of July 29, 1999
(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, dated
July 29, 1999, pursuant to the
Credit Agreement X
4.3 Form of Tranche A Term Note, dated
July 29, 1999, pursuant to the
Credit Agreement X
4.4 Form of Additional Tranche A Term Note,
dated July 29, 1999, pursuant to the
Credit Agreement X
4.5 Form of Tranche B Term Note, dated
July 29, 1999, pursuant to the
Credit Agreement X
4.6 Form of Swing Line Note, dated
July 29, 1999, pursuant to the
Credit Agreement X
4.7 Fourth Amended and Restated X
Parent Pledge Agreement, dated as of
July 29, 1999, executed pursuant to the
Credit Agreement
4.8 Fourth Amended and Restated X
Subsidiaries Guarantee, dated as of
July 29, 1999, executed pursuant to the
Credit Agreement
EI-1
<PAGE> 37
INCORPORATED
EXHIBIT HEREIN BY FILED
NUMBER DESCRIPTION REFERENCE TO HEREWITH
4.9 Fourth Amended and Restated X
Subsidiaries Pledge Agreement, dated
as of July 29, 1999, executed pursuant
to the Credit Agreement
27.1 Financial Data Schedule X
27.2 Restated Financial Data Schedule (nine
month period ended June 30, 1998) X
EI-2
<PAGE> 1
EXHIBIT 4.1
EXECUTION COPY
- --------------------------------------------------------------------------------
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
among
SYBRON INTERNATIONAL CORPORATION,
ORMCO CORPORATION,
KERR CORPORATION,
NALGE NUNC INTERNATIONAL CORPORATION,
ERIE SCIENTIFIC COMPANY,
BARNSTEAD THERMOLYNE CORPORATION,
REMEL INC.
The Several Lenders
from Time to Time Parties Hereto
CHASE SECURITIES INC.,
as Arranger
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of July 29, 1999
- -------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
Page
------
SECTION 1. DEFINITIONS.......................................................2
1.1 Defined Terms.................................................2
1.2 Other Definitional Provisions................................24
SECTION 2. AMOUNT AND TERMS OF LOANS........................................24
2.1 Revolving Credit Commitments.................................24
2.2 Revolving Credit Notes.......................................25
2.3 Procedure for Revolving Credit Borrowing.....................26
2.4 CAF Advances.................................................26
2.5 Procedure for CAF Advance Borrowing..........................27
2.6 CAF Advance Payments.........................................30
2.7 CAF Advance Notes............................................30
2.8 Certain Restrictions.........................................31
2.9 Commitment Fees..............................................31
2.10 Optional Termination or Reduction of Revolving Credit
Commitments................................................31
2.11 Tranche A Term Loans........................................32
2.12 Tranche A Term Notes; Repayment.............................32
2.13 [Reserved]..................................................33
2.14 Optional Prepayments........................................33
2.15 Mandatory Prepayments and Commitment Reductions.............34
2.16 Swing Line Commitments......................................35
2.17 Conversion and Continuation Options.........................37
2.18 Maximum Number of Tranches..................................38
2.19 Interest Rates and Payment Dates............................38
2.20 Computation of Interest and Fees............................39
2.21 Inability to Determine Interest Rate........................39
2.22 Pro Rata Treatment and Payments.............................39
2.23 Illegality..................................................40
2.24 Requirements of Law.........................................41
2.25 Taxes.......................................................42
2.26 Indemnity...................................................44
2.27 Replacement of Lenders......................................44
2.28 Additional Tranche A Term Loans.............................45
2.29 Additional Tranche A Term Notes.............................45
2.30 Tranche B Term Loans........................................45
2.31 Procedure for Tranche B Term Loan Borrowing.................46
2.32 Tranche B Term Notes........................................46
SECTION 3. LETTERS OF CREDIT................................................48
3.1 L/C Commitment...............................................48
3.2 Procedure for Issuance of Letters of Credit..................48
3.3 Fees, Commissions and Other Charges..........................49
<PAGE> 3
3.4 L/C Participations...........................................49
3.5 Reimbursement Obligation of the Parent.......................50
3.6 Obligations Absolute.........................................51
3.7 Letter of Credit Payments....................................51
3.8 Application..................................................51
3.9 Currency Adjustments.........................................51
SECTION 4. REPRESENTATIONS AND WARRANTIES...................................52
4.1 Financial Condition..........................................52
4.2 No Change....................................................53
4.3 Corporate Existence; Compliance with Law.....................53
4.4 Corporate Power; Authorization; Enforceable
Obligations.................................................53
4.5 No Legal Bar.................................................53
4.6 No Material Litigation.......................................54
4.7 No Default...................................................54
4.8 Ownership of Property; Liens.................................54
4.9 Intellectual Property........................................54
4.10 No Burdensome Restrictions..................................54
4.11 Taxes.......................................................54
4.12 Federal Regulations.........................................55
4.13 ERISA.......................................................55
4.14 Investment Company Act; Other Regulations...................55
4.15 Subsidiaries................................................56
4.16 Purpose of Loans............................................56
4.17 Environmental Matters.......................................56
4.18 Domestic Real Property......................................57
4.19 Corporate Structure.........................................57
4.20 Accuracy and Completeness of Information....................57
4.21 Solvency....................................................57
4.22 Labor Matters...............................................58
4.23 Pledge Agreements; Subsidiary Guarantors....................58
4.24 Representations and Warranties on Restatement
Effective Date.............................................58
4.25 Year 2000 Matters...........................................58
SECTION 5. CONDITIONS PRECEDENT.............................................59
5.1 Conditions to Restatement Effective Date.....................59
5.2 Conditions to Each Extension of Credit.......................61
SECTION 6. AFFIRMATIVE COVENANTS............................................62
6.1 Financial Statements.........................................62
6.2 Certificates; Other Information..............................63
6.3 Payment of Obligations.......................................64
6.4 Conduct of Business and Maintenance of Existence.............64
6.5 Maintenance of Property; Insurance...........................64
6.6 Inspection of Property; Books and Records;
Discussions.................................................65
6.7 Notices......................................................65
<PAGE> 4
6.8 Environmental Laws...........................................66
6.9 Security Documents Delivered by New Subsidiaries.............66
6.10 Foreign Counsel Opinions....................................66
SECTION 7. NEGATIVE COVENANTS...............................................66
7.1 Financial Condition Covenants................................66
7.2 Limitation on Indebtedness...................................67
7.3 Limitation on Liens..........................................68
7.4 Limitation on Guarantee Obligations..........................70
7.5 Limitations on Fundamental Changes...........................70
7.6 Limitation on Sale of Assets.................................71
7.7 Limitation on Leases.........................................71
7.8 Limitation on Dividends......................................71
7.9 [Reserved]...................................................72
7.10 Limitation on Investments, Loans and Advances...............72
7.11 Limitation on Optional Payments and Modifications
of Debt Instruments........................................73
7.12 Limitation on Transactions with Affiliates..................73
7.13 Limitation on Sales and Leasebacks..........................73
7.14 Limitation on Changes in Fiscal Year........................73
7.15 Limitation on Negative Pledge Clauses.......................73
7.16 Limitation on Lines of Business.............................74
7.17 Restrictions Affecting Subsidiaries.........................74
7.18 Modification of Capitalization Documents....................74
SECTION 8. EVENTS OF DEFAULT................................................74
SECTION 9. GUARANTEE........................................................77
9.1 Guarantee....................................................77
9.2 No Subrogation...............................................78
9.3 Amendments, etc., with respect to the Obligations............78
9.4 Guarantee Absolute and Unconditional.........................78
9.5 Reinstatement................................................79
9.6 Payments.....................................................79
SECTION 10. THE ADMINISTRATIVE AGENT; THE ARRANGER..........................80
10.1 Appointment.................................................80
10.2 Delegation of Duties........................................80
10.3 Exculpatory Provisions......................................80
10.4 Reliance by Administrative Agent............................80
10.5 Notice of Default...........................................81
10.6 Non-Reliance on Administrative Agent and Other
Lenders....................................................81
10.7 Indemnification.............................................82
10.8 Administrative Agent in Its Individual Capacity.............82
10.9 Successor Administrative Agent..............................82
10.10 The Arranger...............................................83
<PAGE> 5
SECTION 11. MISCELLANEOUS...................................................83
11.1 Amendments and Waivers......................................83
11.2 Notices.....................................................83
11.3 No Waiver; Cumulative Remedies..............................85
11.4 Survival of Representations and Warranties..................85
11.5 Payment of Expenses and Taxes...............................85
11.6 Successors and Assigns; Participations and Assignments......86
11.7 Adjustments; Set-off........................................90
11.8 Counterparts................................................90
11.9 Severability................................................90
11.10 Integration................................................91
11.11 GOVERNING LAW..............................................91
11.12 Submission To Jurisdiction; Waivers........................91
11.13 Effect of Amendment and Restatement of the Existing
Credit Agreement..........................................91
11.14 Acknowledgements...........................................92
11.15 WAIVERS OF JURY TRIAL......................................92
11.16 Parent as Agent of Subsidiary Borrowers....................92
11.17 Confidentiality............................................92
<PAGE> 6
ANNEXES
ANNEX A Pricing Grid
SCHEDULES
SCHEDULE I Commitments
SCHEDULE II Existing Letters of Credit
SCHEDULE III Sale Leaseback Agreements
SCHEDULE IV Subsidiary Guarantors
SCHEDULE 4.10 Certain Requirements of Law and Contractual Obligations
SCHEDULE 4.15A Subsidiaries
SCHEDULE 4.15B Organizational Structure
SCHEDULE 4.18 Domestic Real Property
SCHEDULE 4.19 Certain Subsidiaries Not Owned Directly or Indirectly
by the Parent
SCHEDULE 5.1(f) Certain Foreign Subsidiaries to Deliver Corporate
Proceedings
SCHEDULE 7.2(e) Indebtedness
SCHEDULE 7.3(f) Existing Liens
SCHEDULE 7.4(a) Existing Guarantee Obligations
EXHIBITS
EXHIBIT A Form of Revolving Credit Note
EXHIBIT B-1 Form of Tranche A Term Credit Note
EXHIBIT B-2 Form of Additional Tranche A Term Note
EXHIBIT B-3 Form of Tranche B Term Note
EXHIBIT C Form of Swing Line Note
EXHIBIT D Form of Fourth Amended and Restated Parent Pledge
Agreement
EXHIBIT E Form of Fourth Amended and Restated Subsidiaries Guarantee
EXHIBIT F Form of Fourth Amended and Restated Subsidiaries Pledge
Agreement
EXHIBIT G Form of Borrowing Certificate
EXHIBIT H Form of Opinion of Quarles & Brady
EXHIBIT I Form of Assignment and Acceptance
EXHIBIT J Form of CAF Advance Confirmation
EXHIBIT K Form of CAF Advance Offer
EXHIBIT L Form of CAF Advance Request
EXHIBIT M Form of CAF Advance Note
<PAGE> 7
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July
29, 1999 (as the same may be amended, supplemented or modified from time to
time, this "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"), Remel Inc., a Wisconsin corporation ("Remel"; Ormco, Kerr, NNI,
Erie, Barnstead and Remel 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 to this Agreement (the
"Lenders"), Chase Securities Inc., as Arranger (in such capacity, the
"Arranger") and The Chase Manhattan Bank, a New York banking corporation, as
administrative agent for the Lenders hereunder (in such capacity, the
"Administrative Agent").
W I T N E S S E T H :
WHEREAS, pursuant to the Second Amended and Restated Credit
Agreement, dated as of April 25, 1997 (as amended, supplemented or otherwise
modified prior to the date hereof, including by the First Amendment, dated as of
July 1, 1998, and the Second Amendment, dated as of August 13, 1998, the
"Existing Credit Agreement"), among certain 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 Tranche B Term Loans (as defined hereinafter) to the Borrowers;
WHEREAS, the Borrowers will use the credit facility made
available hereby (a) to repay Revolving Credit Loans outstanding under the
Existing Credit Agreement (but not reduce Revolving Credit Commitments) and
continue as outstanding other indebtedness of the Borrowers under the Existing
Credit Agreement and (b) to finance the working capital and general corporate
needs, including acquisitions, of the Parent and the Subsidiary Borrowers; and
WHEREAS, the Lenders are willing to extend credit to the
Borrowers on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto hereby agree that, on the
Restatement Effective Date, the Existing Credit Agreement will be amended and
restated in its entirety as follows:
SECTION 1. DEFINITIONS
<PAGE> 8
2
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on
such day plus 1% and (c) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean
the rate of interest per annum publicly announced from time to time by
Chase as its prime rate in effect at its principal office in New York
City (the Prime Rate not being intended to be the lowest rate of
interest charged by Chase in connection with extensions of credit to
debtors); "Base CD Rate" shall mean the sum of (a) the product of (i)
the Three-Month Secondary CD Rate and (ii) a fraction, the numerator of
which is one and the denominator of which is one minus the C/D Reserve
Percentage and (b) the C/D Assessment Rate; "Three-Month Secondary CD
Rate" shall mean, for any day, the secondary market rate for
three-month certificates of deposit reported as being in effect on such
day (or, if such day shall not be a Business Day, the next preceding
Business Day) by the Board of Governors of the Federal Reserve System
(the "Board") through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day), or, if such rate
shall not be so reported on such day or such next preceding Business
Day, the average of the secondary market quotations for three-month
certificates of deposit of major money center banks in New York City
received at approximately 10:00 A.M., New York City time, on such day
(or, if such day shall not be a Business Day, on the next preceding
Business Day) by Chase from three New York City negotiable certificate
of deposit dealers of recognized standing selected by it; and "Federal
Funds Effective Rate" shall mean, for any day, the weighted average of
the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published
on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for the day of such
transactions received by Chase from three federal funds brokers of
recognized standing selected by it. Any change in the ABR due to a
change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate shall be effective as of the opening of
business on the effective day of such change in the Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate,
respectively.
"ABR Loans": Loans the rate of interest applicable to which is
based upon the ABR.
"Accounting Changes": as defined in the definition of "GAAP"
in subsection 1.1 of this Agreement.
"Additional Tranche A Term Loans": as defined in subsection
2.28.
<PAGE> 9
3
"Additional Tranche A Term Loan Commitment": with respect to
each Lender, the amount set forth under the heading "Additional Tranche
A Term Loan Commitment" opposite such Lender's name on Schedule I, as
such amount may be reduced from time to time pursuant to this
Agreement.
"Additional Tranche A Term Loan Commitment Percentage": as to
any Lender at any time, the percentage which such Lender's Additional
Tranche A Term Loan Commitment then constitutes of the Aggregate
Additional Tranche A Term Loan Commitment.
"Additional Tranche A Term Notes": as defined in subsection
2.29.
"Administrative Agent": as defined in the preamble to this
Agreement.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (a) vote 15% or more of the
securities having ordinary voting power for the election of directors
of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.
"Aggregate Additional Tranche A Term Loan Commitment": an
amount equal to $97,163,014, as such amount may be reduced from time to
time pursuant to the terms of this Agreement.
"Aggregate Commitment": an amount equal to (a) prior to the
Restatement Effective Date, the sum of the aggregate principal amount
of the TA Loans outstanding, the Tranche B Term Loan Commitment and the
Aggregate Revolving Credit Commitment, and (b) following the
Restatement Effective Date, the sum of (i) the aggregate principal
amount of the Term Loans outstanding and (ii) the Aggregate Revolving
Credit Commitment (or if the Aggregate Revolving Credit Commitment has
been terminated, an amount equal to the Aggregate Outstanding Revolving
Extensions of Credit of each Lender).
"Aggregate Outstanding Revolving Extensions of Credit": as to
any Revolving Credit Lender at any time, an amount equal to the sum of
(a) the aggregate principal amount of all Revolving Credit Loans made
by such Revolving Credit Lender then outstanding, (b) such Revolving
Credit Lender's Revolving Credit Commitment Percentage of the L/C
Obligations then outstanding, and (c) for all purposes other than the
calculation of the commitment fees pursuant to subsection 2.9, such
Revolving Credit Lender's Revolving Credit Commitment Percentage of the
aggregate principal amount of all (i) CAF Advances then outstanding and
(ii) Swing Line Loans then outstanding.
<PAGE> 10
4
"Aggregate Revolving Credit Commitment": an amount equal to
$600,000,000, as such amount may be reduced from time to time pursuant
to the terms of this Agreement.
"Aggregate Tranche A Term Loan Commitment": an amount equal to
$173,678,889, as such amount may be reduced from time to time pursuant
to the terms of this Agreement.
"Aggregate Tranche B Term Loan Commitment": an amount equal to
$300,000,000, as such amount may be reduced from time to time pursuant
to the terms of this Agreement.
"Agreement": as defined in the preamble hereto.
"Applicable Level": 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 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):
Leverage Ratio
Level 1 Less than or equal to
2.0 to 1.0
Level 2 Less than or Equal to
2.50 but Greater than
2.00 to 1
Level 3 Less than or Equal to
3.25 but Greater than
2.50 to 1
Level 4 Greater than 3.25 to
1.0
<PAGE> 11
5
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": as set forth on Annex A attached hereto.
"Application": an application, in the Issuing Bank's then
customary form as the Issuing Bank may promulgate from time to time,
requesting the Issuing Bank to open a Letter of Credit.
"Asset Disposition": the sale, sale leaseback, exchange or
similar disposition (including by means of a merger, consolidation or
amalgamation) of any property, business or assets of the Parent or its
Subsidiaries (other than such dispositions set forth in subsections
7.6(a) through 7.6(d)) to any Person or Persons other than the Parent
or any of its Subsidiaries.
"Assignee": as defined in subsection 11.6(c).
"Available Revolving Credit Commitment": as to any Lender at
any time, an amount equal to the excess, if any, of (a) the amount of
such Lender's Revolving Credit Commitment over (b) such Lender's
Aggregate Outstanding Revolving Extensions of Credit.
"Barnstead": as defined in the preamble to this Agreement.
"Base CD Rate": as defined in the definition of ABR.
"Borrowers": the collective reference to the Parent and the
Subsidiary Borrowers.
"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.3, 2.5(a), 2.16, 2.31 or 3.2 as a date on
which the Parent either on behalf of itself or any
<PAGE> 12
6
of the Subsidiary Borrowers requests (a) the Lenders to make Loans or
CAF Advances, as the case may be, hereunder and/or (b) the Issuing Bank
to issue a Letter of Credit hereunder.
"Business": as defined in subsection 4.17(b).
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close; provided, that when such term is used to
describe a day on which a borrowing, payment or interest rate
determination is to be made in respect of a Eurodollar Rate CAF
Advance, such day shall also be a day on which dealings in foreign
currencies and exchange between banks may be carried on in London,
England.
"CAF Advance": each CAF Advance made pursuant to subsection
2.4.
"CAF Advance Availability Period": the period from and
including the Restatement Effective Date to and including the date
which is 7 days prior to the Termination Date.
"CAF Advance Confirmation": each confirmation by the Parent,
on behalf of itself or any other Revolving Credit Borrower, of its
acceptance of CAF Advance Offers, which confirmation shall be
substantially in the form of Exhibit J and shall be delivered to the
Administrative Agent by facsimile transmission.
"CAF Advance Interest Payment Date": as to each CAF Advance,
each interest payment date specified for such CAF Advance in the
related CAF Advance Request.
"CAF Advance Maturity Date": as to any CAF Advance, the date
specified by the Parent, on behalf of itself or any other Revolving
Credit Borrower, as the case may be, pursuant to paragraph 2.5(d)(ii)
in its acceptance of the related CAF Advance Offer.
"CAF Advance Note": as defined in subsection 2.7.
"CAF Advance Offer": each offer by a Lender to make CAF
Advances pursuant to a CAF Advance Request, which offer shall contain
the information specified in Exhibit K and shall be delivered to the
Administrative Agent by telephone, immediately confirmed by facsimile
transmission.
"CAF Advance Request": each request by the Parent, on behalf
of itself or any other Revolving Credit Borrower, for Lenders to submit
bids to make CAF Advances, which request shall contain the information
in respect of such requested CAF Advances specified in Exhibit L and
shall be delivered to the Administrative Agent in writing, by facsimile
transmission, or by telephone, immediately confirmed by facsimile
transmission.
<PAGE> 13
7
"Capital Expenditure": for any period, the amount equal to the
sum (without duplication) of all expenditures (by the expenditure of
cash or the incurrence of Indebtedness) made by the Parent and its
Subsidiaries during such period in respect of the purchase or other
acquisition or improvement of any fixed or capital asset and any other
amounts which would, in accordance with GAAP, be set forth as capital
expenditures on the consolidated statement of cash flows of the Parent
and its Subsidiaries for such period.
"Capitalization Documents": the collective reference to (a)
the articles or certificate of incorporation and by-laws and other
organizational or governing documents of each of the Parent and its
Subsidiaries and (b) the certificates of designation and other
agreements governing the issuance of or setting forth the terms of any
Capital Stock issued or to be issued by the Parent or any of its
Subsidiaries.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"Cash Equivalents": (a) securities issued or directly and
fully guaranteed or insured by the United States Government or any
agency or instrumentality thereof having maturities of not more than
twelve months from the date of acquisition, (b) securities issued or
directly and fully guaranteed or insured by any state of the United
States of America or any agency or instrumentality thereof having
maturities of not more than twelve months from the date of acquisition
and, at the time of acquisition, having the highest rating generally
obtainable from either S&P or Moody's, (c) time deposits and
certificates of deposit of any domestic commercial bank having capital
and surplus in excess of $300,000,000 having maturities of not more
than twelve months from the date of acquisition, (d) repurchase
obligations with a term of not more than seven days for underlying
securities of the types described in clauses (a), (b), and (c) entered
into with any bank meeting the qualifications specified in clause (c)
above and (e) commercial paper rated at least A-2 or the equivalent
thereof by S&P or P-2 or the equivalent thereof by Moody's or any short
term, money market type obligations of a corporation, the commercial
paper of which has the above-specified rating, in either case maturing
within twelve months after the date of acquisition.
"C/D Assessment Rate": for any day as applied to any ABR Loan,
the annual assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund classified as well-capitalized and
within supervisory subgroup "B" (or a comparable successor assessment
risk classification) within the meaning of 12 C.F.R. ss. 327.3(d) (or
any successor provision) to the Federal Deposit Insurance Corporation
(or any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the United
States.
<PAGE> 14
8
"C/D Reserve Percentage": for any day as applied to any ABR
Loan, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) (the "Board"), for determining the
maximum reserve requirement for a Depositary Institution (as defined in
Regulation D of the Board) in respect of new non-personal time deposits
in Dollars having a maturity of 30 days or more.
"Chase": The Chase Manhattan Bank, a New York banking
corporation.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": all assets of the Loan Parties, now owned or
hereinafter acquired, upon which a Lien is purported to be created by
any Security Document.
"Commercial Letter of Credit": as defined in subsection 3.1.
"Commitment Percentage": as to any Lender at any time, such
Lender's Tranche A Term Loan Commitment Percentage, Additional Tranche
A Term Loan Commitment Percentage, Tranche B Term Loan Commitment
Percentage or Revolving Credit Commitment Percentage, as the context
may require.
"Commitments": the collective reference to the Tranche A Term
Loan Commitments, the Additional Tranche A Term Loan Commitments, the
Tranche B Term Loan Commitments and the Revolving Credit Commitments;
each as the context may require, a "Commitment".
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Parent or any of
the Subsidiary Borrowers within the meaning of Section 4001 of ERISA or
is part of a group which includes the Parent or any of the Subsidiary
Borrowers and which is treated as a single employer under Section 414
of the Code.
"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.
"Consolidated Funded Indebtedness": as of the date of
determination, all Indebtedness of the Parent and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP, which by
its terms matures more than one year after the date of calculation, and
any such Indebtedness maturing within one year from such date which is
<PAGE> 15
9
renewable or extendable at the option of the obligor to a date more
than one year from such date including, in any event, the Loans.
"Consolidated Interest Expense": for any period, the amount of
interest expense, both expensed and capitalized, of the Parent and its
Subsidiaries, determined on a consolidated basis in accordance with
GAAP, for such period on the aggregate principal amount of their
Indebtedness, determined on a consolidated basis in accordance with
GAAP.
"Consolidated Lease Expense": for any period, the aggregate
rental obligations of the Parent and its Subsidiaries determined on a
consolidated basis payable in respect of such period under leases of
real and/or personal property (net of income from sub-leases thereof,
but including taxes, insurance, maintenance and similar expenses which
the lessee is obligated to pay under the terms of said leases), whether
or not such obligations are reflected as liabilities or commitments on
a consolidated balance sheet of the Parent and its Subsidiaries or in
the notes thereto, excluding, however, obligations under Financing
Leases.
"Consolidated Net Income": for any period, net income of the
Parent and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Worth": as of the date of determination, all
items which in conformity with GAAP would be included under
shareholders' equity on a consolidated balance sheet of the Parent and
its Subsidiaries at such date.
"Consolidated Senior Debt": as of the date of determination,
the sum of (a) all Indebtedness of the Parent and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP (including
the Loans) minus (b) the aggregate principal amount of all outstanding
Subordinated Indebtedness and all outstanding Permitted Indebtedness.
"Continuing Directors": as defined in Section 8(k).
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its property is bound.
"Controlled Foreign Corporation": a "controlled foreign
corporation" within the meaning of Section 956(c) of the Code.
"Default": any of the events specified in Section 8, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
<PAGE> 16
10
"Domestic Subsidiary": any Subsidiary of the Parent organized
under the laws of any jurisdiction within the United States of America.
"Environmental Laws": any and all applicable foreign, Federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority
or other Requirements of Law (including common law) regulating,
relating to or imposing liability or standards of conduct concerning
pollution or protection of the environment, as now or may at any time
hereafter be in effect.
"Erie": as defined in the preamble to this Agreement.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to
a Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal
and emergency reserves under any regulations of the Board of Governors
of the Federal Reserve System or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of such Board) maintained by
a member bank of such System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
equal to the rate at which Chase is offered Dollar deposits at or about
10:00 A.M., New York City time, two Business Days prior to the
beginning of such Interest Period in the interbank eurodollar market
where the eurodollar and foreign currency and exchange operations in
respect of its Eurodollar Loans are then being conducted for delivery
on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of its
Eurodollar Loan to be outstanding during such Interest Period.
"Eurodollar Loans": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
-----------------------------------------
1.00 - Eurocurrency Reserve Requirements
<PAGE> 17
11
"Eurodollar Rate CAF Advance": any CAF Advance made pursuant
to a Eurodollar Rate CAF Advance Request.
"Eurodollar Rate CAF Advance Request": any CAF Advance Request
requesting the Lenders to offer to make CAF Advances at an interest
rate equal to the Eurodollar Rate plus (or minus) a margin.
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"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(h) thereof).
"Existing Credit Agreement": as defined in the recitals
hereto.
"Existing Letters of Credit": the collective reference to the
outstanding letters of credit originally issued for the account of any
of the Borrowers pursuant to the terms of the Existing Credit Agreement
as more specifically described on Schedule II hereto.
"Federal Funds Effective Rate": as defined in the definition
of ABR.
"Financing Lease": any lease of property, real or personal,
the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee.
"Fixed Rate CAF Advance": any CAF Advance made pursuant to a
Fixed Rate CAF Advance Request.
"Fixed Rate CAF Advance Request": any CAF Advance Request
requesting the Lenders to offer to make CAF Advances at a fixed rate
(as opposed to a rate composed of the Eurodollar Rate plus (or minus) a
margin).
"Foreign Currency": any currency, other than Dollars, which
may be requested by the Parent and which is available to Chase in the
ordinary course of business, in which a Letter of Credit may be
denominated.
"Foreign Lender": as defined in subsection 2.25.
"GAAP": generally accepted accounting principles in the United
States of America as in effect from time to time set forth in the
opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and the statements
and pronouncements of the Financial Accounting Standards Board and the
rules and regulations of the Securities and Exchange
<PAGE> 18
12
Commission, or in such other statements by such other entity as may be
in general use by significant segments of the accounting profession,
which are applicable to the circumstances of the Parent and its
consolidated Subsidiaries as of the date of determination except that
for purposes of subsection 7.1, GAAP shall be determined on the basis
of such principles in effect on the date hereof and consistent with
those used in the preparation of the audited financial statements
referred to in subsection 4.1. In the event that any Accounting Changes
(as defined below) shall occur and such change results in a change in
the method of calculation of financial covenants, standards or terms in
this Agreement, then the Parent and the Lenders agree to enter into
negotiations in order to amend such provisions of this Agreement so as
to equitably reflect such Accounting Changes with the desired result
that the criteria for evaluating the financial condition of the Parent
and its consolidated Subsidiaries shall be the same after such
Accounting Changes as if such Accounting Changes had not been made.
Until such time as such an amendment shall have been executed and
delivered by the parties thereto, all financial covenants, standards
and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Changes had not occurred. "Accounting
Changes" means: changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the
Financial Accounting Standards Board of the American Institute of
Certified Public Accountants or, if applicable, the Securities and
Exchange Commission (or successors thereto or agencies with similar
functions).
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counter indemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation
of the guaranteeing person, whether or not contingent, (i) to purchase
any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the
purchase or payment of any such primary obligation or (2) to maintain
working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated
<PAGE> 19
13
or determinable amount of the primary obligation in respect of which
such Guarantee Obligation is made and (b) the maximum amount for which
such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person
may be liable are not stated or determinable, in which case the amount
of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as
determined by the Parent in good faith.
"Guarantees": the collective reference to the Parent Guarantee
and the Subsidiaries Guarantee.
"Guarantors": the collective reference to the Subsidiary
Guarantors and the Parent.
"Indebtedness": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), (b) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar
instrument, (c) all obligations of such Person under Financing Leases,
(d) all obligations of such Person in respect of acceptances issued or
created for the account of such Person, (e) all obligations and
liabilities of such Person in connection with Interest Rate Agreements
and foreign exchange contracts and (f) all liabilities secured by any
Lien on any property owned by such Person (but only to the extent of
the value of the property so securing such liability) even though such
Person has not assumed or otherwise become liable for the payment
thereof.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": as defined in subsection 4.9.
"Interest Coverage Ratio": for any period of determination,
the ratio of Consolidated Adjusted Operating Profit less Capital
Expenditures for such period to Consolidated Interest Expense for such
period.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December to occur while such Loan is
outstanding and the date of the final principal payment in respect
thereof, as applicable, (b) as to any Eurodollar Loan having an
Interest Period of three months or less, the last day of such Interest
Period and (c) as to any Eurodollar Loan having an Interest Period
longer than three months, each
<PAGE> 20
14
day which is three months or a whole multiple thereof after the first
day of such Interest Period and the last day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing
or conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Parent in its notice of
borrowing or notice of conversion, as the case may be, given
with respect thereto; and
(b) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Parent by irrevocable notice to
the Administrative Agent not less than three Business Days
prior to the last day of the then current Interest Period with
respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period pertaining to a Eurodollar
Loan would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately
preceding Business Day;
(2) any Interest Period in respect of Revolving
Credit Loans that would otherwise extend beyond the
Termination Date shall end on the Termination Date, and any
Interest Period in respect of any of the Term Loans that would
otherwise extend beyond the date final payment is due on such
Term Loans shall end on such due date;
(3) any Interest Period pertaining to a Eurodollar
Loan that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month; and
(4) the Parent shall select Interest Periods so as
not to require a payment or prepayment of any Eurodollar Loan
during an Interest Period for such Loan.
"Interest Rate Agreement": any interest rate protection
agreement, interest rate future, interest rate option, interest rate
swap, interest rate cap or other interest rate hedge arrangement, to or
under which the Parent or any of its Subsidiaries is a party or a
beneficiary.
<PAGE> 21
15
"Issuing Bank": Chase, in its capacity as issuer of any Letter
of Credit (including, without limitation, any Existing Letter of
Credit).
"Kerr": as defined in the preamble to this Agreement.
"L/C Commitment": $75,000,000.
"L/C Fee Payment Date": the last day of each March, June,
September and December.
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit (including, without limitation, any
Existing Letters of Credit) and (b) the aggregate amount of drawings
under Letters of Credit (including, without limitation, any Existing
Letters of Credit) which have not then been reimbursed pursuant to
subsection 3.5.
"L/C Participants": the collective reference to all the
Revolving Credit Lenders other than the Issuing Bank.
"Lenders": as defined in the preamble to this Agreement.
"Lesser Swing Line Loans": as defined in subsection 2.11(c).
"Letters of Credit": as defined in subsection 3.1(a).
"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.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention
<PAGE> 22
16
agreement and any Financing Lease having substantially the same
economic effect as any of the foregoing).
"Loan": any loan (including any CAF Advance) made by any
Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Notes, the Parent
Guarantee, the Subsidiaries Guarantee, the Security Documents and the
Applications.
"Loan Parties": the Parent, the Subsidiary Borrowers and each
other Subsidiary of the Parent which is a party to a Loan Document.
"Majority Lenders": at any time, shall mean the holders of
more than 50% of the Aggregate Commitment in effect at such time.
"Material Adverse Effect": a material adverse effect on (a)
the business, operations, property, condition (financial or otherwise)
or prospects of the Parent and its Subsidiaries taken as a whole or (b)
the validity or enforceability of this Agreement, any of the Notes or
any of the other Loan Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Law,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Moody's": Moody's Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NNI": as defined in the preamble to this Agreement.
"Net Proceeds": (a) with respect to any Asset Disposition, the
net amount equal to the aggregate amount received in cash (including
any cash received by way of deferred payment pursuant to a note
receivable, other non-cash consideration or otherwise, but only as and
when such cash is so received) in connection with such Asset
Disposition minus the sum of (i) the reasonable fees (including,
without limitation, reasonable attorneys' fees), commissions and other
out-of-pocket expenses (as evidenced by supporting documentation
provided to the Administrative Agent) incurred by the Parent or any
Subsidiary in connection with such Asset Disposition and (ii) federal,
state and local taxes incurred in connection with such sale, whether
payable at such time or thereafter; or
<PAGE> 23
17
(b) with respect to the incurrence of any Indebtedness by the
Parent or any of its Subsidiaries, the net amount equal to the
aggregate amount received in cash in connection with such incurrence
minus the reasonable fees (including, without limitation, reasonable
attorneys' fees), commissions and other out-of-pocket expenses (as
evidenced by supporting documentation provided to the Administrative
Agent) incurred by the Parent or such Subsidiary in connection with
such incurrence of Indebtedness.
"Non-Excluded Taxes": as defined in subsection 2.25.
"Notes": the collective reference to the Revolving Credit
Notes, the CAF Advance Notes, the Swing Line Notes, the Tranche A Term
Notes, the Additional Tranche A Term Notes and the Tranche B Term
Notes.
"Nunc": collectively, Nunc Inc., a Delaware corporation, Nunc
GmbH, a German company, and Nunc AS, a Danish company.
"Nunc Acquisition": the acquisition of all of the Capital
Stock of Nunc.
"Nunc Acquisition Indebtedness": the promissory notes issued
by Nunc Holding AS, a Danish company, and by Sybron Deutschland GmbH, a
German company, to the Parent or it Subsidiaries in connection with the
Nunc Acquisition.
"Obligations": (a) 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 (other than 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, this 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
reasonable fees and disbursements of counsel to the Administrative
Agent or to the Lenders) or otherwise and (b) all obligations of the
Borrowers to any Lender or an Affiliate of any Lender under or in
connection with any Interest Rate Agreement or foreign exchange
contract.
"Ormco": as defined in the preamble to this Agreement.
"Parent": as defined in the preamble to this Agreement.
"Parent Guarantee": the guarantee obligations of the Parent
set forth in Section 9.
<PAGE> 24
18
"Parent Pledge Agreement": the Fourth 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.
"Participant": as defined in subsection 11.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any successor thereto.
"Permitted 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 Tranche B 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 Administrative Agent and the Lenders hereunder on terms and
conditions first approved (such approval not to be unreasonably
withheld) in writing by the Administrative Agent and (b) otherwise
containing terms, covenants and conditions reasonably satisfactory in
form and substance to the Administrative Agent, as evidenced by its
prior written approval.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Parent, any of the
Subsidiary Borrowers or a Commonly Controlled Entity is (or, if such
plan were terminated at such time, would under Section 4069 of ERISA be
deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pledge Agreements": the collective reference to the Parent
Pledge Agreement, the Subsidiaries Pledge Agreement and any other
pledge or similar agreement delivered on or after the date hereof
granting a security interest in the stock (or other indicia of
ownership interest) of any Subsidiary of the Parent which is a
Controlled Foreign Corporation.
"Pledged Assets": the notes, capital stock and other assets
listed on the Schedules to the Pledge Agreements.
<PAGE> 25
19
"Pledge Guidelines": the Parent and its Subsidiaries shall
pledge to the Administrative Agent for the benefit of the Lenders (i)
all promissory notes evidencing the Nunc Acquisition Indebtedness and
(ii) all shares of Capital Stock or other equity interests owned
directly by the Parent or any Domestic Subsidiary of the Parent in (a)
any Domestic Subsidiary of the Parent and (b) any Controlled Foreign
Corporation of the Parent (provided that (I) not more than 65% of the
Capital Stock of any Controlled Foreign Corporation shall be pledged to
the Administrative Agent and (II) the Parent shall not pledge its
shares of Nunc U.K. Limited ("Nunc U.K."), an English company, to the
Administrative Agent, but Nunc U.K. shall pledge its shares of Sybron
Holdings A/S, a Danish company, to the Administrative Agent), other
than, in the case of clauses (a) and (b), a Specified Entity.
"Prime Rate": as defined in the definition of ABR.
"Properties": as defined in subsection 4.17(a).
"Refinancing": as defined in the recitals to this Agreement.
"Refunded Swing Line Loans": as defined in subsection
2.11(c).
"Register": as defined in subsection 11.6(d).
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Reimbursement Obligation": the obligation of any Borrower to
reimburse the Issuing Bank pursuant to subsection 3.5 for amounts drawn
under Letters of Credit issued for the account of such Borrower
(including, without limitation, Existing Letters of Credit).
"Related Fund": with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by
an Affiliate of such investment advisor.
"Remel": as defined in the preamble to this Agreement.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .13, .14, .16, .18, .19 or
.20 of PBGC Reg. ss. 2615.
<PAGE> 26
20
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": the chief executive officer, the
president or any vice president of the Parent or, with respect to
financial matters, the chief financial officer, the treasurer or
assistant treasurer of the Parent.
"Restatement Effective Date": the date on which the conditions
precedent set forth in subsection 5.1 shall have been satisfied.
"Restricted Payment Allowance": at any time of determination,
an amount equal to $50,000,000 less the amount of Restricted Payments
made on or subsequent to June 30, 1995, provided, however, that such
amount shall be increased on each date when financial statements are
delivered to each Lender pursuant to subsection 6.1(a) or 6.1(b), as
the case may be, by an amount equal to 50% of Consolidated Net Income
for the fiscal quarter ending immediately preceding each such date,
commencing with the fiscal quarter ending September 30, 1995, and,
provided, further, that such amount shall not be decreased at any time
of determination as a result of Consolidated Net Income being less than
zero for the immediately preceding fiscal quarter.
"Restricted Payments": as defined in subsection 7.8.
"Revolving Credit Borrowers": collectively, the Parent, Kerr
and NNI.
"Revolving Credit Commitment": as to any Revolving Credit
Lender, the obligation of such Revolving Credit Lender to (a) make
Revolving Credit Loans to the Revolving Credit Borrowers, (b) issue
and/or participate in Letters of Credit (including, without limitation,
Existing Letters of Credit) issued on behalf of the Parent and (c)
participate in Swing Line Loans made to the Parent, in an aggregate
principal and/or face amount at any one time outstanding not to exceed
the amount set forth under the heading "Revolving Credit Commitments"
opposite such Revolving Credit Lender's name on Schedule I, as such
amount may be reduced from time to time pursuant to this Agreement.
"Revolving Credit Commitment Percentage": as to any Revolving
Credit Lender at any time, the percentage which such Revolving Credit
Lender's Revolving Credit Commitment then constitutes of the Aggregate
Revolving Credit Commitment.
"Revolving Credit Commitment Period": the period from and
including the Restatement Effective Date to but not including the
Termination Date or such earlier date on which the Revolving Credit
Commitments shall terminate as provided herein.
<PAGE> 27
21
"Revolving Credit Lender": each Lender having a Revolving
Credit Commitment or holding Revolving Credit Loans.
"Revolving Credit Loans": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 2.2.
"S&P": Standard & Poor's Ratings Group.
"Sale Leaseback Agreement": the collective reference to the
various sale leaseback agreements, each dated as of December 22, 1988,
which agreements are more particularly described on Schedule III
hereto.
"Security Documents": the collective reference to the Pledge
Agreements and all other security documents hereafter delivered to the
Administrative Agent granting a Lien on any asset or assets of any
Person to secure the obligations and liabilities of any Borrower
hereunder, under any Note and/or under any of the other Loan Documents
or to secure any guarantee of any such obligations and liabilities.
"Senior Debt Ratio": on the date of any determination thereof,
the ratio of Consolidated Senior Debt 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.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Smaller Sale": any Asset Disposition (whether made pursuant
to a single transaction or series of related transactions) having Net
Proceeds of less than $20,000,000.
"Specified Acquisition": any acquisition by the Parent or a
Wholly Owned Subsidiary of the Parent of all of the Capital Stock or
substantially all of the assets of any
<PAGE> 28
22
Person having Consolidated Adjusted Operating Profit in excess of
$10,000,000 for the period of four consecutive fiscal quarters
preceding the date of such acquisition.
"Specified Entity": any Subsidiary of the Parent (a) that owns
less than $1,000,000 in assets, (b) is inactive or (c) is in the
process of liquidation.
"Standby Letter of Credit": as defined in subsection 3.1.
"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 Tranche B 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 Fourth 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 Fourth 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": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Parent.
"Subsidiary Borrowers": as defined in the preamble to this
Agreement.
<PAGE> 29
23
"Subsidiary Guarantors": the Subsidiaries of the Parent listed
as such on Schedule IV hereto together with any new Subsidiaries which
execute a Subsidiary Guarantee subsequent to the Restatement Effective
Date.
"Swing Line Loan": as defined in subsection 2.16(a).
"Swing Line Note": as defined in subsection 2.16(b).
"TA Loan": the collective reference to the Tranche A Term
Loans and the Additional Tranche A Term Loans.
"Termination Date": July 31, 2002.
"Term Loan": the collective reference to the Tranche A Term
Loans, the Additional Tranche A Term Loans and the Tranche B Term
Loans.
"Term Note": the collective reference to the Tranche A Term
Notes, the Additional Tranche A Term Notes and the Tranche B Term
Notes.
"Three-Month Secondary CD Rate": as defined in the definition
of ABR.
"Tranche": the collective reference to Eurodollar Loans the
then current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such
Eurodollar Loans shall originally have been made on the same day and
whether such Eurodollar Loans are to one Borrower or more than one
Borrower).
"Tranche A Term Loan Borrowers": collectively, Ormco, Kerr,
NNI, Erie and Barnstead.
"Tranche A Term Loan Commitment": with respect to each Lender,
the amount set forth under the heading "Tranche A Term Loan
Commitments" opposite such Lender's name on Schedule I, as such amount
may be reduced from time to time pursuant to this Agreement.
"Tranche A Term Loan Commitment Percentage": as to any Lender
at any time, the percentage which such Lender's Tranche A Term Loan
Commitment then constitutes of the Aggregate Tranche A Term Loan
Commitment.
"Tranche A Term Loans": as defined in subsection 2.11.
"Tranche A Term Notes": as defined in subsection 2.12.
"Tranche B Term Loan Borrowers": collectively, Ormco, Kerr,
NNI, Barnstead and Remel.
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24
"Tranche B Term Loan Commitment": with respect to each Lender,
the amount set forth under the heading "Tranche B Term Loan
Commitments" opposite such Lender's name on Schedule I, as such amount
may be reduced from time to time pursuant to this Agreement.
"Tranche B Term Loan Commitment Percentage": as to any Lender
at any time, the percentage which such Lender's Tranche B Term Loan
Commitment then constitutes of the Aggregate Tranche B Term Loan
Commitment.
"Tranche B Term Loans": as defined in subsection 2.30.
"Tranche B Term Notes": as defined in subsection 2.32.
"Tranche B Termination Date": July 31, 2004.
"Transferee": as defined in subsection 11.6(f).
"Type": as to any Loan made hereunder, its nature as an ABR
Loan or a Eurodollar Loan.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.
"Wholly Owned Subsidiary": with respect to any Person, a
Subsidiary, all of the stock ordinarily having the power to vote for
the election of directors of which is owned directly or indirectly by
such Person, other than directors' qualifying shares and shares issued
to other Persons to comply with local law (provided, however, that such
directors' qualifying and other shares shall not constitute more than
3% of all of the stock ordinarily having the power to vote for the
election of directors).
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the Notes or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in the Notes, and any certificate or
other document made or delivered pursuant hereto, accounting terms relating to
the Parent and its Subsidiaries not defined in subsection 1.1 and accounting
terms partly defined in subsection 1.1, to the extent not defined, shall have
the respective meanings given to them under GAAP.
(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,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
<PAGE> 31
25
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF LOANS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Revolving Credit Lender severally agrees to make
revolving credit loans ("Revolving Credit Loans") to the Revolving Credit
Borrowers from time to time during the Revolving Credit Commitment Period in an
aggregate principal amount at any one time outstanding to all Revolving Credit
Borrowers, when added to such Revolving Credit Lender's Revolving Credit
Commitment Percentage of (i) the then outstanding L/C Obligations, (ii) the
aggregate principal amount of all Swing Line Loans then outstanding and (iii)
the aggregate principal amount of all CAF Advances then outstanding, will not
exceed the amount of such Revolving Credit Lender's Revolving Credit Commitment,
provided that nothing contained herein shall be deemed to prohibit the making
of, or relieve any Revolving Credit Lender of its obligation to make, Revolving
Credit Loans the proceeds of which are to be applied solely to the repayment of
principal of Refunded Swing Line Loans pursuant to subsection 2.16(c) except
that in no event shall any Revolving Credit Lender be obligated to make
Revolving Credit Loans in excess of its Revolving Credit Commitment. During the
Revolving Credit Commitment Period the Revolving Credit Borrowers may use the
Revolving Credit Commitments by borrowing, prepaying the Revolving Credit Loans
in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof, provided that each of Kerr and NNI shall be permitted to
request a Revolving Credit Loan not more frequently than one time each calendar
month and each of Kerr and NNI shall be permitted to prepay Revolving Credit
Loans not more frequently than one time each calendar month.
(b) The Revolving Credit 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 2.3 and 2.17, provided that no Revolving Credit Loan shall be made
as a Eurodollar Loan after the day that is one month prior to the Termination
Date.
(c) Revolving Credit Loans made under the Existing Credit
Agreement prior to the Restatement Effective Date will continue to constitute
Revolving Credit Loans hereunder from and after the Restatement Effective Date,
except to the extent repaid on the Restatement Effective Date as contemplated by
subsection 5.1(l).
2.2 Revolving Credit Notes. Pursuant to the Existing Credit
Agreement, each Revolving Credit Borrower issued a promissory note to evidence
the Revolving Credit Loans made by each Revolving Credit Lender to such
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 Revolving Credit Lender
and in a principal amount equal to the lesser of (a) the amount of the initial
Revolving Credit
<PAGE> 32
26
Commitment of such Revolving Credit Lender and (b) the aggregate unpaid
principal amount of all Revolving Credit Loans made by such Revolving Credit
Lender to such Revolving Credit Borrower. Such Revolving Credit Notes shall
continue to be outstanding after the Restatement Effective Date and shall
continue to evidence the Revolving Credit Loans. In the event that any Revolving
Credit Lender shall become a party to this Agreement on the Restatement
Effective Date, each Revolving Credit Borrower shall issue a Revolving Credit
Note to such Revolving Credit Lender on the Restatement Effective Date. 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 Revolving Credit
Lender is hereby authorized to record the date, Type and amount of each
Revolving Credit Loan made by such Revolving Credit 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 mature on the Termination Date and provide for the payment of
interest in accordance with subsection 2.19.
2.3 Procedure for Revolving Credit Borrowing. Subject to the
limitations contained in subsection 2.1, the Revolving Credit Borrowers may
borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day, provided that the Parent shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 10:00 A.M., New York City time, (a) three Business
Days prior to the requested Borrowing Date, if all or any part of the requested
Revolving Credit Loans are to be initially Eurodollar Loans, or (b) one Business
Day prior to the requested Borrowing Date, otherwise), specifying (i) the
aggregate amount to be borrowed, (ii) the requested Borrowing Date, (iii) the
identity of the Revolving Credit Borrower, (iv) whether the borrowing is to be
of Eurodollar Loans, ABR Loans or a combination thereof and (v) if the borrowing
is to be entirely or partly of Eurodollar Loans, the amounts of such Type of
Loan and the lengths of the initial Interest Periods therefor. Each borrowing
under the Revolving Credit Commitments shall be in an amount equal to (x) in the
case of ABR Loans, $1,000,000 or a whole multiple of $100,000 in excess thereof
(or, if the then Available Revolving Credit Commitments of all the Revolving
Credit Lenders are less than $1,000,000, such lesser amount)
<PAGE> 33
27
and (y) in the case of Eurodollar Loans, $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Upon receipt of any such notice from the Parent,
the Administrative Agent shall promptly notify each Revolving Credit Lender
thereof. Each Revolving Credit Lender will make the amount of its pro rata share
of each borrowing available to the Administrative Agent for the account of the
relevant Revolving Credit Borrower at the office of the Administrative Agent
specified in subsection 11.2 prior to 11:00 A.M., New York City time, on the
Borrowing Date requested by the Parent in funds immediately available to such
Administrative Agent. Such borrowing will then be made available to such
Revolving Credit Borrower by the Administrative Agent crediting the account of
such Revolving Credit Borrower on the books of such office with the aggregate of
the amounts made available to the Administrative Agent by the Revolving Credit
Lenders for such Revolving Credit Borrower and in like funds as received by the
Administrative Agent.
2.4 CAF Advances. (a) Any CAF Advances outstanding under the
Existing Credit Agreement on the Restatement Effective Date shall continue to be
outstanding as CAF Advances hereunder from and after the Restatement Effective
Date.
(b) Subject to the terms and conditions of this Agreement, the
Revolving Credit Borrowers may borrow CAF Advances from the Revolving Credit
Lenders from time to time on any Business Day during the CAF Advance
Availability Period. CAF Advances may be borrowed in amounts such that the
aggregate amount of (i) Revolving Credit Loans, (ii) L/C Obligations, (iii)
Swing Line Loans and (iv) CAF Advances outstanding at any time shall not exceed
the Aggregate Revolving Credit Commitment at such time. Within the limits and on
the conditions hereinafter set forth with respect to CAF Advances, the Revolving
Credit Borrowers from time to time may borrow, repay and reborrow CAF Advances.
2.5 Procedure for CAF Advance Borrowing. (a) The Parent, on
behalf of itself or any other Revolving Credit Borrower, shall request CAF
Advances by delivering a CAF Advance Request to the Administrative Agent, not
later than 12:00 Noon (New York City time) four Business Days prior to the
proposed Borrowing Date (in the case of a Eurodollar Rate CAF Advance Request),
and not later than 10:00 A.M. (New York City time) one Business Day prior to the
proposed Borrowing Date (in the case of a Fixed Rate CAF Advance Request). Each
CAF Advance Request in respect of any Borrowing Date may solicit bids for CAF
Advances on such Borrowing Date in an aggregate principal amount of $10,000,000
or an integral multiple of $1,000,000 in excess thereof and having not more than
three alternative CAF Advance Maturity Dates. The CAF Advance Maturity Date for
each CAF Advance shall be the date set forth therefor in the relevant CAF
Advance Request, which date shall be (i) not less than 7 days nor more than 180
days after the Borrowing Date therefor, in the case of a Fixed Rate CAF Advance,
(ii) one, two, three or six months after the Borrowing Date therefor, in the
case of a Eurodollar CAF Advance and (iii) not later than the Termination Date,
in the case of any CAF Advance. The Administrative Agent shall notify each
Revolving Credit Lender promptly by facsimile transmission of the contents of
each CAF Advance Request received by the Administrative Agent. Offers for CAF
Advances can be accepted in amounts of $5,000,000 and integral
<PAGE> 34
28
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.
(b) In the case of a Eurodollar Rate CAF Advance Request,
upon receipt of notice from the Administrative Agent of the contents of such CAF
Advance Request, each Revolving Credit Lender may elect, in its sole discretion,
to offer irrevocably to make one or more CAF Advances at the applicable
Eurodollar Rate plus (or minus) a margin determined by such Revolving Credit
Lender in its sole discretion for each such CAF Advance. Any such irrevocable
offer shall be made by delivering a CAF Advance Offer to the Administrative
Agent, before 10:30 A.M. (New York City time) on the day that is three Business
Days before the proposed Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance
Maturity Date and the aggregate maximum amount of CAF Advances for all
CAF Advance Maturity Dates which such Revolving Credit Lender would be
willing to make (which amounts may, subject to subsection 2.4, exceed
such Revolving Credit Lender's Revolving Credit Commitment); and
(ii) the margin above or below the appropriate Eurodollar
Rate at which such Revolving Credit Lender is willing to make each such
CAF Advance.
The Administrative Agent shall advise the Parent, on behalf of itself
or the relevant Revolving Credit Borrower, as the case may be, before
11:00 A.M. (New York City time) on the date which is three Business
Days before the proposed Borrowing Date of the contents of each such
CAF Advance Offer received by it. If the Administrative Agent, in its
capacity as a Revolving Credit Lender, shall elect, in its sole
discretion, to make any such CAF Advance Offer, it shall advise the
Revolving Credit Borrower of the contents of its CAF Advance Offer
before 10:15 A.M. (New York City time) on the date which is three
Business Days before the proposed Borrowing Date.
(c) In the case of a Fixed Rate CAF Advance Request, upon
receipt of notice from the Administrative Agent of the contents of such CAF
Advance Request, each Revolving Credit Lender may elect, in its sole discretion,
to offer irrevocably to make one or more CAF Advances at a rate of interest
determined by such Revolving Credit Lender in its sole discretion for each such
CAF Advance. Any such irrevocable offer shall be made by delivering a CAF
Advance Offer to the Administrative Agent before 9:30 A.M. (New York City time)
on the proposed Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance
Maturity Date, and the aggregate maximum amount for all CAF Advance
Maturity Dates, which such Revolving Credit Lender would be willing to
make (which amounts may, subject to subsection 2.4, exceed such
Revolving Credit Lender's Revolving Credit Commitment); and
<PAGE> 35
29
(ii) the rate of interest at which such Revolving Credit
Lender is willing to make each such CAF Advance.
The Administrative Agent shall advise the Parent, on behalf of itself
or the relevant Revolving Credit Borrower, as the case may be, before
10:00 A.M. (New York City time) on the proposed Borrowing Date of the
contents of each such CAF Advance Offer received by it. If the
Administrative Agent, in its capacity as a Revolving Credit Lender,
shall elect, in its sole discretion, to make any such CAF Advance
Offer, it shall advise such Revolving Credit Borrower of the contents
of its CAF Advance Offer before 9:15 A.M. (New York City time) on the
proposed Borrowing Date.
(d) Before 11:30 A.M. (New York City time) three Business
Days before the proposed Borrowing Date (in the case of CAF Advances requested
by a Eurodollar Rate CAF Advance Request) and before 10:30 A.M. (New York City
time) on the proposed Borrowing Date (in the case of CAF Advances requested by a
Fixed Rate CAF Advance Request), the Parent, on behalf of itself or the relevant
Revolving Credit Borrower, as the case may be, in its absolute discretion,
shall:
(i) cancel such CAF Advance Request by giving the
Administrative Agent telephone notice to that effect, or
(ii) by giving telephone notice to the Administrative Agent
(immediately confirmed by delivery to the Administrative Agent of a CAF
Advance Confirmation by facsimile transmission) (A) subject to the
provisions of subsection 2.5(e), accept one or more of the offers made
by any Revolving Credit Lender or Revolving Credit Lenders pursuant to
subsection 2.5(b) or subsection 2.5(c), as the case may be, and (B)
reject any remaining offers made by Revolving Credit Lenders pursuant
to subsection 2.5(b) or subsection 2.5(c), as the case may be.
(e) The Parent's acceptance of CAF Advances in response to
any CAF Advance Offers shall be subject to the following limitations:
(i) the amount of CAF Advances accepted for each CAF Advance
Maturity Date specified by any Revolving Credit Lender in its CAF
Advance Offer shall not exceed the maximum amount for such CAF Advance
Maturity Date specified in such CAF Advance Offer;
(ii) the aggregate amount of CAF Advances accepted for all
CAF Advance Maturity Dates specified by any Revolving Credit Lender in
its CAF Advance Offer shall not exceed the aggregate maximum amount
specified in such CAF Advance Offer for all such CAF Advance Maturity
Dates;
<PAGE> 36
30
(iii) the Parent may not accept offers for CAF Advances for
any CAF Advance Maturity Date in an aggregate principal amount in
excess of the maximum principal amount requested in the related CAF
Advance Request; and
(iv) if the Parent accepts any of such offers, it must accept
offers based solely upon pricing for each relevant CAF Advance Maturity
Date and upon no other criteria whatsoever, and if two or more
Revolving Credit Lenders submit offers for any CAF Advance Maturity
Date with identical pricing and the Parent accepts any of such offers
but does not wish to (or, by reason of the limitations set forth in
subsection 2.4, cannot) borrow the total amount offered by such
Revolving Credit Lenders with such identical pricing, the Parent shall
accept offers from all of such Revolving Credit Lenders in amounts
allocated among them pro rata according to the amounts offered by such
Revolving Credit Lenders (with appropriate rounding, in the sole
discretion of the Parent, to assure that each accepted CAF Advance is
an integral multiple of $1,000,000); provided that if the number of
Revolving Credit Lenders that submit offers for any CAF Advance
Maturity Date at identical pricing is such that, after the Parent
accepts such offers pro rata in accordance with the foregoing
provisions of this paragraph, the CAF Advance to be made by any such
Revolving Credit Lender would be less than $5,000,000 principal amount,
the number of such Revolving Credit Lenders shall be reduced by the
Administrative Agent by lot until the CAF Advances to be made by each
such remaining Revolving Credit Lender would be in a principal amount
of $5,000,000 or an integral multiple of $1,000,000 in excess thereof.
(f) If the Parent notifies the Administrative Agent that a
CAF Advance Request is cancelled pursuant to subsection 2.5(d)(i), the
Administrative Agent shall give prompt telephone or fax notice thereof to the
Revolving Credit Lenders.
(g) If the Parent accepts pursuant to subsection 2.5(d)(ii)
one or more of the offers made by any Revolving Credit Lender or Revolving
Credit Lenders, the Administrative Agent promptly shall notify each Revolving
Credit Lender which has made such an offer of (i) the aggregate amount of such
CAF Advances to be made on such Borrowing Date for each CAF Advance Maturity
Date and (ii) the acceptance or rejection of any offers to make such CAF
Advances made by such Revolving Credit Lender. Before 12:00 Noon (New York City
time) on the Borrowing Date specified in the applicable CAF Advance Request,
each Revolving Credit Lender whose CAF Advance Offer has been accepted shall
make available to the Administrative Agent at its office set forth in subsection
11.2 the amount of CAF Advances to be made by such Revolving Credit Lender, in
immediately available funds. The Administrative Agent will make such funds
available to the relevant Revolving Credit Borrower as soon as practicable on
such date at such office of the Administrative Agent. As soon as practicable
after each Borrowing Date, the Administrative Agent shall notify each Revolving
Credit Lender of the aggregate amount of CAF Advances advanced on such Borrowing
Date and the respective CAF Advance Maturity Dates thereof.
<PAGE> 37
31
2.6 CAF Advance Payments. (a) The Revolving Credit Borrower
in respect of each CAF Advance shall pay to the Administrative Agent, for the
account of the Revolving Credit Lender which has made such CAF Advance, on the
applicable CAF Advance Maturity Date the then unpaid principal amount of such
CAF Advance. The Revolving Credit Borrowers shall not have the right to prepay
any principal amount of any CAF Advance without the consent of the Revolving
Credit Lender to which such CAF Advance is owed.
(b) The Revolving Credit Borrower in respect of each CAF
Advance shall pay interest on the unpaid principal amount of such CAF Advance
made to such Revolving Credit Borrower from the Borrowing Date to the applicable
CAF Advance Maturity Date at the rate of interest specified in the CAF Advance
Offer accepted by the Revolving Credit Borrower in connection with such CAF
Advance (calculated on the basis of a 360-day year for actual days elapsed),
payable on each applicable CAF Advance Interest Payment Date.
(c) If any principal of, or interest on, any CAF Advance
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such CAF Advance shall, without limiting any rights of any Revolving
Credit Lender under this Agreement, bear interest from the date on which such
payment was due at a rate per annum which is 2% above the rate which would
otherwise be applicable to such CAF Advance until the stated CAF Advance
Maturity Date of such CAF Advance, and for each day thereafter at a rate per
annum which is 2% above the ABR, in each case until paid in full (as well after
as before judgment). Interest accruing pursuant to this paragraph (c) shall be
payable from time to time on demand.
2.7 CAF Advance Notes. Pursuant to the Existing Credit
Agreement, each Revolving Credit Borrower issued a promissory note to evidence
the CAF Advances made by each Revolving Credit Lender to such Revolving Credit
Borrower, substantially in the form of Exhibit M to this Agreement, with
appropriate insertions as to payee, date and principal amount (a "CAF Advance
Note"), payable to the order of such Revolving Credit 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 Revolving Credit 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). Such CAF Advance Notes shall continue to be outstanding after
the Restatement Effective Date and still continue to evidence the CAF Advances.
In the event that any Revolving Credit Lender shall become a party to this
Agreement on the Restatement Effective Date, each Revolving Credit Borrower
shall issue a CAF Advance Note to such Revolving Credit Lender on the
Restatement Effective Date. Each Revolving Credit Lender is hereby authorized to
record, with respect to the appropriate Revolving Credit Borrower, the date and
amount of each CAF Advance made by such Revolving Credit Lender, the CAF Advance
Maturity Date thereof, the date and amount of each payment of principal thereof
and the interest rate with respect thereto on the schedule attached to and
constituting part of its CAF Advance Note, and any such recordation shall
constitute prima facie evidence of the accuracy of the information so recorded;
provided, however, that the failure to make any such recordation shall not
affect the obligations of the Revolving Credit Borrowers hereunder or under
<PAGE> 38
32
any CAF Advance Note. Each CAF Advance shall bear interest for the period from
and including the Borrowing Date of such CAF Advance on the unpaid principal
amount thereof from time to time outstanding at the applicable rate per annum
determined as provided in, and such interest shall be payable as specified in,
subsection 2.6(b).
2.8 Certain Restrictions. A CAF Advance Request may request
offers for CAF Advances to be made on not more than one Borrowing Date and to
mature on not more than three CAF Advance Maturity Dates. No CAF Advance Request
may be submitted earlier than five Business Days after submission of any other
CAF Advance Request.
2.9 Commitment Fees. (a) The Parent agrees to pay to the
Administrative Agent for the account of each Revolving Credit Lender a
commitment fee during the period from the last date prior to the Restatement
Effective Date on which commitment fees were paid under the Existing Credit
Agreement to but excluding the Termination Date, computed at 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 Commitment of such Revolving Credit Lender on such day:
<TABLE>
<CAPTION>
Applicable Level Rate
---------------- ----
<S> <C>
Level 1 .15%
Level 2 .1875%
Level 3 .20%
Level 4 .225%
</TABLE>
(b) Commitment fees shall be payable on the last day of each
calendar quarter, commencing on September 30, 1999.
2.10 Optional Termination or Reduction of Revolving Credit
Commitments. The Parent shall have the right, upon not less than five Business
Days' notice from the Parent to the Administrative Agent to terminate the
Aggregate Revolving Credit Commitment or, from time to time, to reduce the
amount of the Aggregate Revolving Credit Commitment; provided that no such
termination or reduction shall be permitted if, after giving effect thereto and
to any prepayments of the Revolving Credit Loans, the Swing Line Loans and the
CAF Advances (to the extent permitted by subsection 2.6) made on the effective
date thereof, the aggregate principal amount of the Revolving Credit Loans, the
Swing Line Loans and the CAF Advances then outstanding, when added to the then
outstanding L/C Obligations, would exceed the Aggregate Revolving Credit
Commitment then in effect. Any such reduction shall be in an amount equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof and shall reduce
permanently the Aggregate Revolving Credit Commitment then in effect.
2.11 Tranche A Term Loans. Pursuant to the Existing Credit
Agreement, term loans ("Tranche A Term Loans") were made to the Tranche A Term
Loan Borrowers in the aggregate principal amount for each Tranche A Term Loan
Borrower as follows: (a) $45,000,000, in the case of each of Ormco, Erie and
Barnstead (of which $26,051,833.35 is
<PAGE> 39
33
outstanding on the Restatement Effective Date), (b) $75,000,000, in the case of
Kerr (of which $43,419,722.25 is outstanding on the Restatement Effective Date)
and (c) $90,000,000, in the case of NNI (of which $52,103,666.70 is outstanding
on the Restatement Effective Date); the Tranche A Term Loans shall continue to
be outstanding hereunder from and after the Restatement Effective Date. The
Tranche A 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 subsection 2.17. The Tranche A
Term Loans shall mature and be payable as provided in subsection 2.12.
2.12 Tranche A Term Notes; Repayment. (a) Pursuant to the
Existing Credit Agreement, each Tranche A Term Loan Borrower issued a promissory
note to evidence the Tranche A Term Loans made by each Lender to such Tranche A
Term Loan Borrower, substantially in the form of Exhibit B-1 to this Agreement
(a "Tranche A Term Note"), with appropriate insertions therein as to payee, date
and principal amount, payable to the order of such Lender. Such Tranche A Term
Notes shall continue to be outstanding after the Restatement Effective Date and
still continue to evidence the Tranche A Term Loans. A Tranche 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
Tranche A Term Note and the Obligation evidenced thereby in the Register (and
each Tranche A Term Note shall expressly so provide). Any assignment or transfer
of all or part of an Obligation evidenced by a Tranche A Term Note shall be
registered in the Register only upon surrender for registration of assignment or
transfer of the Tranche A 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 Tranche A Term
Notes shall be issued to the designated Assignee and the old Tranche A Term Note
shall be returned by the Administrative Agent to the Borrower marked
"cancelled." No assignment of a Tranche 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 Tranche A Term Loan made to such Tranche A Term Loan 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 Tranche A Term Note (or any continuation thereof),
and any such recordation shall constitute prima facie evidence of the accuracy
of the information so recorded.
(b) The Tranche A Term Note of each Lender shall provide for
the payment of interest in accordance with subsection 2.19, and shall mature in
8 consecutive quarterly installments, payable on the last day of each October,
January, April and July, commencing on October 31, 2000, each of which shall be
in an amount equal to such Lender's Tranche A 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.
<PAGE> 40
34
<TABLE>
<CAPTION>
Date Principal Amount
---- ----------------
<S> <C>
October 31, 2000 $11,214,444
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 $72,464,445
</TABLE>
2.13 [Reserved]
2.14 Optional Prepayments. Subject to the limitations
contained in subsections 2.1 and 2.6 in respect of prepayments of Revolving
Credit Loans, each Borrower may on the last day of any Interest Period with
respect thereto, in the case of Eurodollar Loans, or at any time and from time
to time, in the case of ABR Loans, prepay the Loans made to such Borrower, in
whole or in part, without premium or penalty, upon at least four Business Days'
irrevocable notice in the case of Eurodollar Loans, and upon irrevocable notice
received by the Administrative Agent prior to 11:00 A.M. (New York City time) on
the requested prepayment date in the case of ABR Loans, or upon irrevocable
notice received by the Administrative Agent prior to 11:00 A.M. on the requested
prepayment date in the case of Swing Line Loans, specifying the Borrower making
the prepayment, the date and amount of prepayment, whether the prepayment is of
Term Loans, Swing Line Loans, Revolving Credit Loans or a combination thereof,
and, if a combination thereof, the amount allocable to each and whether the
prepayment is of Eurodollar Loans, ABR Loans or a combination thereof, and, if
of a combination thereof, the amount allocable to each. Upon receipt of any such
notice the Administrative Agent shall promptly notify each relevant Lender
thereof. If any such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein, together with any amounts
payable pursuant to subsection 2.26 and, in the case of prepayments of the Term
Loans only, accrued interest to such date on the amount prepaid. Partial
prepayments of the Term Loans shall be applied to the Tranche A Term Loans, the
Additional Tranche A Term Loans and the Tranche B Term Loans, pro rata according
to the respective outstanding amounts thereof, and with respect to the Tranche A
Term Loans and the Tranche B Term Loans, equally between (i) the outstanding
installment of principal scheduled to be paid pursuant to subsections 2.12 or
2.32, as the case may be, immediately succeeding the date of such prepayment and
(ii) the last outstanding scheduled installment of principal pursuant to
subsections 2.12 or 2.32, as the case may be. Amounts prepaid on account of the
Term Loans may not be reborrowed. Partial prepayments shall be in an aggregate
principal amount of $1,000,000 (or $100,000 in the case of Swing Line Loans) or,
in any case, a whole multiple of $100,000 in excess thereof.
2.15 Mandatory Prepayments and Commitment Reductions. (a)
Upon receipt by the Parent or any of its Subsidiaries of any Net Proceeds with
respect to an Asset Disposition, (i)
<PAGE> 41
35
if such Net Proceeds are not attributable to a Smaller Sale or (ii) if such Net
Proceeds are attributable to a Smaller Sale and such Net Proceeds, together with
all other Net Proceeds of Smaller Sales exceed $50,000,000, then on the first
Business Day after receipt of the Net Proceeds from such Asset Disposition, the
Borrowers shall prepay the Loans, reduce the Aggregate Revolving Credit
Commitment and/or cash collateralize the outstanding Letters of Credit as
provided for herein in an amount equal to 100% of such Net Proceeds (or in the
case of Net Proceeds described in clause (ii) of this paragraph (a), if less,
the amount by which such Net Proceeds, together with all other Net Proceeds
attributable to Smaller Sales, exceed $50,000,000).
(b) Upon receipt by the Parent or any of its Subsidiaries of
any Net Proceeds in connection with the incurrence of any Indebtedness by the
Parent or such Subsidiary (other than Excepted Indebtedness), then on the first
Business Day after such incurrence, the Borrowers shall prepay the Loans, reduce
the Aggregate Revolving Credit Commitment and/or cash collateralize the
outstanding Letters of Credit as provided for herein in an amount equal to 100%
of such Net Proceeds.
(c) Any prepayment required by the terms of this subsection
2.15 shall be applied first to the prepayment of the Term Loans in accordance
with the following sentence until the 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 shall be made pro rata among Tranche A
Term Loans, Additional Tranche A Term Loans and the Tranche B Term Loans based
on the outstanding aggregate principal amounts thereof, and prepayment of the
Tranche A Term Loans and the Tranche B 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 subsections 2.12 or 2.32, as the case
may be, immediately succeeding the date of such prepayment and (ii) the last
outstanding scheduled installments of principal pursuant to subsections 2.12 or
2.32, as the case may be. Amounts prepaid on account of the Term Loans may not
be reborrowed.
(d) Each prepayment of the Loans pursuant to this subsection
2.15 shall be accompanied by payment in full of all accrued interest thereon to
and including the date of such prepayment, together with any additional amounts
owing pursuant to subsection 2.26. Each reduction of the Aggregate Revolving
Credit Commitment pursuant to this subsection 2.15 shall be accompanied by a
prepayment of the Revolving Credit Loans, the Swing Line Loans and the CAF
Advances (if permitted by subsection 2.6) then outstanding in an amount equal to
the excess, if any, of the sum of (i) the Revolving Credit Loans, (ii) the Swing
Line Loans, (iii) the CAF Advances and (iv) the L/C Obligations then
outstanding, over the Aggregate Revolving Credit Commitment, as so reduced. Any
prepayment required by the immediately preceding sentence shall be applied first
to the outstanding Swing Line Loans until they are paid in full, second to the
Revolving Credit Loans and third to the CAF Advances (if permitted by subsection
2.6). To the extent that in connection with the requirements hereof the
Revolving Credit Loans, the Swing Line Loans and the CAF Advances have been
reduced to zero and the L/C Obligations then outstanding exceed the Aggregate
Revolving Credit Commitment, as so reduced, the Parent
<PAGE> 42
36
shall, simultaneously with such reduction, deposit in a cash collateral account
with the Administrative Agent having terms and conditions reasonably acceptable
to the Administrative Agent, an amount equal to the sum of (i) the amount by
which such outstanding L/C Obligations exceed the Aggregate Revolving Credit
Commitment, as reduced and (ii) an amount equal to the commissions, fees and
estimated expenses (in each case as determined pursuant to subsection 3.3)
expected to be incurred by the Parent with respect to such L/C Obligations over
a one year period.
(e) The Parent may allocate any prepayment of the Term Loans
pursuant to this subsection 2.15 among the Tranche A Term Notes, Additional
Tranche A Term Notes and Tranche B Term Notes, as the case may be, of the
Subsidiary Borrowers as the Parent may determine; provided that the Parent shall
give the Administrative Agent prior written notice of such allocation not less
than three Business Days prior to such prepayment; and provided, further, that
in the event that the Parent does not so notify the Administrative Agent, the
Administrative Agent shall allocate such payments to the Subsidiary Borrowers as
it determines in its sole discretion.
(f) If at any time the Aggregate Outstanding Revolving
Extensions of Credit of all the Revolving Credit Lenders shall exceed the
Aggregate Revolving Credit Commitments by as much as $5,000,000 (by virtue of
any change in the exchange rate of any Foreign Currency in which a Letter of
Credit is denominated or otherwise), the Parent shall immediately prepay the
Revolving Credit Loans and/or cash collateralize the then outstanding L/C
Obligations by an amount equal to such excess within three Business Days. Any
such cash collateralization of L/C Obligations shall be accomplished in the
manner contemplated in the penultimate paragraph of Section 8 concerning the
acceleration of the obligations hereunder.
2.16 Swing Line Commitments. (a) Subject to the terms and
conditions hereof and provided no Default or Event of Default shall have
occurred and be continuing, Chase agrees to make swing line loans to the Parent
(individually, a "Swing Line Loan"; collectively the "Swing Line Loans") from
time to time during the Revolving Credit Commitment Period in an aggregate
principal amount at any one time outstanding not to exceed $15,000,000, provided
that at no time shall the aggregate principal amount of Swing Line Loans
outstanding, when added to Chase's then Aggregate Outstanding Revolving
Extensions of Credit, exceed Chase's Revolving Credit Commitment. Amounts
borrowed under this subsection 2.16 may be repaid and, through but excluding the
Termination Date, reborrowed. All Swing Line Loans shall be made as ABR Loans
and shall not be entitled to be converted into Eurodollar Loans. Each borrowing
of Swing Line Loans shall be in an amount equal to $100,000 or a whole multiple
of $100,000 in excess thereof. The Parent shall give Chase irrevocable notice
(which notice must be received by Chase prior to 11:00 A.M., New York City time)
on the requested Borrowing Date specifying the amount of the requested Swing
Line Loan. The proceeds of the Swing Line Loan will be made available by Chase
to the Parent at the office of Chase by crediting the account of the Parent at
such office with such proceeds.
<PAGE> 43
37
(b) Prior to the Restatement Effective Date, the Parent
issued 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. The Swing
Line Note shall continue to be outstanding on the Restatement Effective Date and
shall continue to evidence the Swing Line Loans. 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 Loans shall mature on the Termination Date and 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.
(c) Chase at any time in its sole and absolute discretion,
may, and on each Monday (or if such day is not a Business Day, the next Business
Day) shall, on behalf of the Parent (which hereby irrevocably directs Chase to
act on its behalf) request prior to 11:00 A.M. (New York City time) each
Revolving Credit Lender, including Chase, to make a Revolving Credit Loan to the
Parent in an amount equal to such Revolving Credit Lender's Revolving Credit
Commitment Percentage of the amount of the Swing Line Loans made to the Parent
(the "Refunded Swing Line Loans") outstanding on the date such notice is given;
provided, that no such request shall be made at any time when the aggregate
principal amount of the Swing Line Loans at such time does not exceed $1,000,000
(such Swing Line Loans which in the aggregate do not exceed $1,000,000 are
referred to herein as the "Lesser Swing Line Loans"). Unless any of the events
described in paragraph (f) of Section 8 shall have occurred (in which event the
procedures of paragraph (d) of this subsection 2.16 shall apply) each Revolving
Credit Lender shall make the proceeds of its Revolving Credit Loan to the Parent
available to Chase for the account of Chase at the office of Chase specified in
subsection 11.2 prior to 2:00 P.M. (New York City time) in funds immediately
available on the date such notice is given. The proceeds of such Revolving
Credit Loans shall be immediately applied to repay the Refunded Swing Line Loans
of the Parent. Each Revolving Credit Loan made pursuant to this subsection
2.16(c) shall be an ABR Loan.
(d) If prior to the making of a Revolving Credit Loan to any
Revolving Credit Borrower pursuant to paragraph (c) of this subsection 2.16 one
of the events described in paragraph (f) of Section 8 shall have occurred, each
Revolving Credit Lender will on the date such Revolving Credit Loan was to have
been made or the date such Revolving Credit Loan would have otherwise been made
had the Swing Line Loans then outstanding not been Lesser Swing Line Loans,
purchase an undivided participating interest in the Refunded Swing Line Loans or
Lesser Swing Line Loans, as the case may be, in an amount equal to its Revolving
Credit Commitment Percentage of such Refunded Swing Line Loans or Lesser Swing
Line Loans, as the case may be. Each Revolving Credit Lender will immediately
transfer to Chase, in
<PAGE> 44
38
immediately available funds, the amount of its participation and upon receipt
thereof Chase will deliver to such Revolving Credit Lender a Swing Line Loan
participation certificate dated the date of receipt of such funds and in such
amount.
(e) Whenever, at any time after Chase has received from any
Revolving Credit Lender such Revolving Credit Lender's participating interest in
a Refunded Swing Line Loan or Lesser Swing Line Loan, as the case may be, Chase
receives any payment on account thereof, Chase will distribute to such Revolving
Credit Lender its participating interest in such amount (appropriately adjusted
in the case of interest payments, to reflect the period of time during which
such Revolving Credit Lender's participating interest was outstanding and
funded); provided, however, that in the event that such payment received by
Chase is required to be returned, such Revolving Credit Lender will return to
Chase any portion thereof previously distributed by Chase to it.
(f) Each Revolving Credit Lender's obligation to purchase
participating interests pursuant to this subsection 2.16 shall not be affected
by any circumstance (except for any circumstance resulting solely from the gross
negligence on willful misconduct of Chase), including, without limitation, (i)
any set-off, counterclaim, recoupment, defense or other right which such
Revolving Credit Lender or any Borrower may have against Chase, any Borrower or
any other Person for any reason whatsoever; (ii) any adverse change in the
condition (financial or otherwise) of the Parent or any Subsidiary Borrower;
(iv) any breach of this Agreement by any Borrower or any other Revolving Credit
Lender; or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing.
2.17 Conversion and Continuation Options. (a) Any Borrower
may elect from time to time to convert Eurodollar Loans to ABR Loans by the
Parent giving the Administrative Agent at least two Business Days' prior
irrevocable notice of such election, provided that any such conversion of
Eurodollar Loans may only be made on the last day of an Interest Period with
respect thereto. Any Borrower may elect from time to time to convert ABR Loans
to Eurodollar Loans by the Parent giving the Administrative Agent at least three
Business Days' prior irrevocable notice of such election. Any such notice of
conversion to Eurodollar Loans shall specify the length of the initial Interest
Period or Interest Periods therefor. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof. All or
any part of outstanding Eurodollar Loans and ABR Loans may be converted as
provided herein, provided that (i) no Loan may be converted into a Eurodollar
Loan when any Event of Default has occurred and is continuing and the
Administrative Agent has or the Majority Lenders have determined that such a
conversion is not appropriate, (ii) no Loan may be converted into a Eurodollar
Loan after the date that is one month prior to the Termination Date (in the case
of conversions of Revolving Credit Loans) or the due date of the final
installment of principal (in the case of conversions of Term Loans) and (iii) no
Swing Line Loan may be converted into a Eurodollar Loan.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Parent giving notice to the Administrative
<PAGE> 45
39
Agent, in accordance with the applicable provisions of the term "Interest
Period" set forth in subsection 1.1, of the length of the next Interest Period
to be applicable to such Loans, provided that no Eurodollar Loan may be
continued as such (i) when any Event of Default has occurred and is continuing
and the Administrative Agent has or the Majority Lenders have determined that
such a continuation is not appropriate or (ii) after the date that is one month
prior to the Termination Date (in the case of continuations of Revolving Credit
Loans) or the due date of the final installment of principal (in the case of
continuations of Term Loans) and provided, further, that if the Parent shall
fail to give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Loans shall
be automatically converted to ABR Loans on the last day of such then expiring
Interest Period.
2.18 Maximum Number of Tranches. All borrowings, conversions
and continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be done in such a manner so that, after giving effect thereto,
there shall never be more than 12 Tranches of Term Loans or 12 Tranches of
Revolving Credit Loans outstanding at one time.
2.19 Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin then in effect.
(b) Each ABR Loan shall bear interest at a rate per annum
equal to the ABR plus the Applicable Margin then in effect.
(c) If all or a portion of (i) the principal amount of any
Loan, (ii) any interest payable thereon or (iii) any commitment fee or other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum which is (x) in the case of overdue principal, the rate that
would otherwise be applicable thereto pursuant to the foregoing provisions of
this subsection plus 2% or (y) in the case of overdue interest, commitment fees
or other amounts, the rate described in paragraph (b) of this subsection plus
2%, in each case from the date of such non-payment until such amount is paid in
full (as well after as before judgment).
(d) Except as otherwise expressly provided herein, interest
shall be payable in arrears on each Interest Payment Date, provided that
interest accruing pursuant to paragraph (c) of this subsection shall be payable
from time to time on demand.
2.20 Computation of Interest and Fees. (a) Commitment fees
and letter of credit fees and, whenever it is calculated on the basis of the
Prime Rate, interest shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed; and, otherwise, interest
shall be calculated on the basis of a 360-day year for the actual days elapsed.
The Administrative Agent shall as soon as practicable notify the Parent and the
relevant Lenders of each determination of a Eurodollar Rate. Any change in the
interest rate on a Loan resulting from a change in the ABR, the Eurocurrency
Reserve Requirements, the C/D Assessment Rate or the C/D Reserve Percentage
shall become effective as of the opening of business on the day on
<PAGE> 46
40
which such change becomes effective. The Administrative Agent shall as soon as
practicable notify the Parent and the Lenders of the effective date and the
amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrowers and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Parent,
deliver to the Parent a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to subsection
2.19(a).
2.21 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined in good
faith (which determination shall be conclusive and binding upon the Borrowers)
that, by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, or
(b) the Administrative Agent shall have received notice from
the Majority Lenders that the Eurodollar Rate determined or to be determined for
such Interest Period will not adequately and fairly reflect the cost to such
Lenders (as conclusively certified by such Lenders in good faith) of making or
maintaining their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Parent and the Lenders as soon as practicable thereafter. If such notice is
given (x) any Eurodollar Loans, requested to be made on the first day of such
Interest Period shall be made as ABR Loans, (y) any Loans that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
continued as ABR Loans and (z) any outstanding Eurodollar Loans that were to
have been continued on the first day of such Interest Period shall be converted,
on the first day of such Interest Period, to ABR Loans. Until such notice has
been withdrawn by the Administrative Agent, no further Eurodollar Loans shall be
made or continued as such, nor shall any Borrower have the right to convert
Loans to Eurodollar Loans.
2.22 Pro Rata Treatment and Payments. (a) Each borrowing by
any Borrower from the Lenders hereunder (other than any borrowing of Swing Line
Loans or CAF Advances), each payment by any Borrower on account of any
commitment fee hereunder (except as otherwise specifically provided herein) and
any reduction of the Commitments of the Lenders shall be made pro rata according
to the respective relevant Commitment Percentages of the Lenders. Each payment
(including each prepayment) by any Borrower on account of principal of and
interest on the Loans made to such Borrower shall be made pro rata according to
the respective principal or interest, as the case may be, in respect of such
Loans then due and owing to the Lenders. All payments (including prepayments) to
be made by the Borrowers hereunder and under the Notes, whether on account of
principal, interest, fees or otherwise, shall be made without set off or
counterclaim and shall be made prior to 12:00 Noon, New York City time, on
<PAGE> 47
41
the due date thereof to the Administrative Agent, for the account of the
Lenders, at the Administrative Agent's office specified in subsection 11.2, in
Dollars and in immediately available funds. The Administrative Agent shall
distribute such payments to the relevant Lenders promptly upon receipt in like
funds as received. If any payment hereunder (other than payments on the
Eurodollar Loans) becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day, and, with
respect to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension. If any payment on a Eurodollar Loan
becomes due and payable on a day other than a Business Day, the maturity thereof
shall be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day.
(b) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its relevant Commitment Percentage of such
borrowing available to the Administrative Agent, the Administrative Agent may
assume that such Lender is making such amount available to the Administrative
Agent, and the Administrative Agent may, in reliance upon such assumption, make
available to the relevant Borrower a corresponding amount. If such amount is not
made available to the Administrative Agent by the required time on the Borrowing
Date therefor, such Lender shall pay to the Administrative Agent, on demand,
such amount with interest thereon at a rate equal to the daily average Federal
Funds Effective Rate for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this subsection shall be conclusive in the absence of manifest error. If
such Lender's relevant Commitment Percentage of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
ABR Loans hereunder, on demand, from the relevant Borrower. The failure of any
Lender to make any Loan to be made by it shall not, in and of itself, relieve
any other Lender of its obligation hereunder to make its Loan on such Borrowing
Date.
2.23 Illegality. Notwithstanding any other provision herein,
if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof subsequent to the date hereof shall make
it unlawful for any Lender to make or maintain Eurodollar Loans as contemplated
by this Agreement, (a) the commitment of such Lender hereunder to make
Eurodollar Loans, continue Eurodollar Loans as such and convert ABR Loans to
Eurodollar Loans shall forthwith be cancelled and (b) such Lender's Loans then
outstanding as Eurodollar Loans, if any, shall be converted automatically to ABR
Loans on the respective last days of the then current Interest Periods with
respect to such Loans or within such earlier period as required by law. If any
such conversion of a Eurodollar Loan occurs on a day which is not the last day
of the then current Interest Period with respect thereto, the relevant Borrower
shall pay to such Lender such amounts, if any, as may be required pursuant to
subsection 2.26.
<PAGE> 48
42
2.24 Requirements of Law. (a) If the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
or compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note, any Letter of
Credit, any Application or any Eurodollar Loan made by it, or change
the basis of taxation of payments to such Lender in respect thereof
(except for Non-Excluded Taxes covered by subsection 2.25, net income
or franchise taxes (imposed in lieu of net income taxes) and changes in
the rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in any
Letter of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the relevant Borrower shall promptly pay such
Lender, upon its demand, any additional amounts necessary to compensate such
Lender for such increased cost or reduced amount receivable; provided that
before making any such demand, each Lender agrees to use its reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate an alternative applicable lending office if the making of such
designation would allow the Lender or its applicable lending office to continue
to perform its obligations to make Eurodollar Loans or to continue to fund or
maintain Eurodollar Loans and avoid the need for, or materially reduce the
amount of, such increased costs; provided further, that no Lender will be
required to make any such designation if to do so would result in any material
costs to such Lender, as determined by such Lender in its reasonable discretion.
If any Lender becomes entitled to claim any additional amounts pursuant to this
subsection, it shall promptly notify the Parent, through the Administrative
Agent, of the event by reason of which it has become so entitled. A certificate
as to any additional amounts payable pursuant to this subsection submitted by
such Lender in good faith, through the Administrative Agent, to the Parent shall
be conclusive in the absence of manifest error. If the Parent notifies the
Administrative Agent within five Business Days after any Lender notifies the
Parent of any increased cost pursuant to the foregoing provisions of this
subsection 2.24, the relevant Borrower may convert all Eurodollar Loans of such
Lender then outstanding into ABR Loans in accordance with subsection 2.17 and,
additionally reimburse such Lender for any cost in accordance with subsection
2.26. This covenant 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.
<PAGE> 49
43
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof does or shall have the effect of
reducing the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under any Letter of Credit to a
level below that which such Lender or such corporation could have achieved but
for such change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount reasonably
deemed by such Lender to be material, then from time to time, after submission
by such Lender to the Parent in good faith (with a copy to the Administrative
Agent) of a written request therefor, the Borrowers shall pay to such Lender
such additional amount or amounts as will compensate such Lender for such
reduction.
2.25 Taxes. (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 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
<PAGE> 50
44
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.
(b) Each Foreign Lender shall:
(i) deliver to the Parent and the Administrative Agent (A)
two duly completed copies of United States Internal Revenue Service
Form 1001 or 4224, or successor applicable form, as the case may be,
and an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be, or (B) in the case of a Lender
claiming exemption from U.S. Federal withholding tax under Section
871(h) or 881(c) of the Code with respect to payments of "portfolio
interest," a Form W-8, or successor applicable form, and a statement
under the penalties of perjury that such Lender (i) is not a "bank"
under Section 881(c)(3)(A) of the Code, is not subject to regulatory or
other legal requirements as a bank in any jurisdiction, and has not
been treated as a bank for purposes of any tax, securities law or other
filing or submission made to any Governmental Authority, any
application made to a rating agency or qualification for any exemption
from tax, securities law or other legal requirements, (ii) is not a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of
the Code) of any of the Borrowers and (iii) is not a controlled foreign
corporation related to any of the Borrowers (within the meaning of
Section 864(d)(4) of the Code), certifying in each case that such
Lender is entitled to receive all payments under this Agreement and the
Notes payable to it, without deduction or withholding of any United
States Federal income taxes;
(ii) deliver to the Parent and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Parent; and
(iii) obtain such extensions of time for filing and completing
such forms or certifications as may reasonably be requested by the
Parent or the Administrative Agent;
unless in any such case a change in treaty, law or regulation has occurred prior
to the date on which any such delivery would otherwise be required which renders
all such forms inapplicable or which would prevent such Foreign Lender from duly
completing and delivering any such form with respect to it and such Foreign
Lender so advises the Parent and the Administrative Agent. Such Foreign Lender
shall certify (i) in the case of a Form 1001 or 4224, that it is entitled to
receive payments under this Agreement without deduction or withholding of any
United States federal income taxes and (ii) in the case of a Form W-8 or W-9,
that it is entitled to an exemption from United States backup withholding tax.
Each Person that shall become a Lender or a Participant pursuant to subsection
11.6 shall, upon the effectiveness of the related transfer, be required to
provide all of the forms and statements required pursuant to this subsection,
provided that in the case of a Participant such Participant shall furnish all
such required forms and statements to the Lender from which the related
participation shall have been purchased.
<PAGE> 51
45
(c) Each Lender which becomes entitled to claim any amounts
pursuant to this subsection 2.25 agrees, upon the request of the Parent, to use
its reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate an alternative applicable lending office
if by doing so any such additional amounts will be avoided, provided that such
designation results in no material additional costs to such Lender, as
determined by such Lender in its reasonable discretion.
2.26 Indemnity. Each Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by such Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Parent has given a notice requesting the same in accordance with the provisions
of this Agreement, (b) default by such Borrower in making any prepayment after
the Parent has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment of Eurodollar Loans on a day which
is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. This covenant 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.
2.27 Replacement of Lenders. If (a) a Borrower is obligated
to pay any additional amounts pursuant to subsection 2.24 or 2.25 and the Lender
making any such claim chooses not to designate an alternative lending office, if
applicable, or (b) any of the events described in subsection 2.23 shall occur
and any Lender is thereby prohibited from making or maintaining Eurodollar Loans
as contemplated by this Agreement, the Parent may, so long as at such time there
does not exist any Default or Event of Default, request one or more replacement
financial institutions to take over all or the affected portion of any such
Lender's then outstanding Loans and to assume all or the affected portion of any
such Lender's Commitments and obligations hereunder. If one or more such
replacement financial institutions shall so agree, the Loans and Commitments of
any such affected Lender may, at the discretion of the Parent, be (subject to
the next succeeding sentence) automatically assigned to such replacement
financial institutions in accordance with subsection 11.6, in such amounts that
the Parent may designate; provided that prior to any such assignment, the Parent
shall have paid to any such affected Lender all amounts owing to it under
subsections 2.24, 2.25, 2.26 and 11.5. It is understood that (i) the
Administrative Agent shall have no obligation to identify or locate such a
replacement financial institution and (ii) no such replaced Lender shall be
required to sell to such replacement financial institution its Loans at less
than their par value.
<PAGE> 52
46
2.28 Additional Tranche A Term Loans. Pursuant to the
Existing Credit Agreement, term loans ("Additional Tranche A Term Loans") were
made to NNI in an aggregate principal amount equal to $100,000,000 (of which
$97,163,014 is outstanding on the Restatement Effective Date). The Additional
Tranche A 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 subsection 2.17. The Additional
Tranche A Term Loans shall mature on the Termination Date.
2.29 Additional Tranche A Term Notes. NNI, upon the request
of an applicable Lender, shall issue a promissory note to evidence the
Additional Tranche A Term Loans made by each Lender, substantially in the form
of Exhibit B-2 to this Agreement (an "Additional Tranche 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 Additional Tranche A Term Loan Commitment Percentage of the
Aggregate Additional Tranche A Term Loan Commitment and the aggregate amount of
the Additional Tranche A Term Loan (or portions thereof) made by such Lender.
Any Additional Tranche A Term Notes outstanding on the Restatement Effective
Date shall continue to be outstanding and to evidence the Additional Tranche A
Term Loans. An Additional Tranche 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 Additional Tranche A Term
Note and the Obligation evidenced thereby in the Register (and each Additional
Tranche A Term Note shall expressly so provide). Any assignment or transfer of
all or part of an Obligation evidenced by an Additional Tranche A Term Note
shall be registered in the Register only upon surrender for registration of
assignment or transfer of the Additional Tranche A 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 Additional Tranche A Term Notes shall be issued to the designated
Assignee and the old Additional Tranche A Term Note shall be returned by the
Administrative Agent to the Borrower marked "cancelled." No assignment of an
Additional Tranche 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 2.29. Each Lender is hereby
authorized to record the date and amount of each payment or prepayment of
principal of its Additional Tranche A Term Loan, 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 Additional
Tranche A Term Note (or any continuation thereof), and any such recordation
shall constitute prima facie evidence of the accuracy of the information so
recorded. The Additional Tranche A Term Note of each Lender shall mature on the
Termination Date and shall provide for the payment of interest in accordance
with subsection 2.19.
2.30 Tranche B Term Loans. Subject to the terms and
conditions hereof, each Lender severally agrees to make a term loan to the
Tranche B Term Loan Borrowers on the Restatement Effective Date in a principal
amount equal to such Lender's Tranche B Term Loan
<PAGE> 53
47
Commitment Percentage of the Aggregate Tranche B Term Loan Commitment (a
"Tranche B Term Loan"), and in an aggregate principal amount for each Tranche B
Term Loan Borrower as follows: (a) $45,000,000, in the case of each of Ormco,
Barnstead and Remel, (b) $75,000,000, in the case of Kerr and (c) $90,000,000,
in the case of NNI. The Tranche B 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 2.17 and 2.31. The Tranche B Term Loans shall mature on the Tranche
B Termination Date.
2.31 Procedure for Tranche B Term Loan Borrowing. The Parent
shall give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 10:00 A.M., New York City time, on
the Business Day prior to the proposed Borrowing Date, if the Tranche B Term
Loans are to be initially ABR Loans, or three Business Days prior to the
proposed Borrowing Date, if the Tranche B Term Loans are to be initially
Eurodollar Loans, in whole or in part) requesting that the Lenders make their
portions of the Tranche B Term Loans on the proposed Borrowing Date and
specifying the Tranche B Term Loan Borrower or Tranche B Term Loan Borrowers to
which such Tranche B Term Loans are to be made. Upon receipt of such notice the
Administrative Agent shall promptly notify each Lender thereof. Not later than
11:00 A.M., New York City time, on the proposed Borrowing Date each Lender shall
make available to the Administrative Agent at its office specified in subsection
11.2 the amount of its relevant portion of its Tranche B Term Loans in
immediately available funds. The Administrative Agent shall on such date credit
the account of the relevant Tranche B Term Loan Borrowers on the books of such
office of the Administrative Agent with the aggregate of the amounts made
available to the Administrative Agent for the relevant Tranche B Term Loan
Borrowers by the Lenders and in like funds as received by the Administrative
Agent.
2.32 Tranche B Term Notes. Each Tranche B Term Loan Borrower
to which a Tranche B Term Loan is made, upon the request of an applicable
Lender, shall issue a promissory note to evidence the Tranche B Term Loans made
by such Lender to such Tranche B Term Loan Borrower, substantially in the form
of Exhibit B-3 to this Agreement (a "Tranche B 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
Tranche B Term Loan Commitment Percentage of the amount set forth opposite such
Tranche B Term Loan Borrower's name on the signature pages hereto and the
aggregate amount of the Tranche B Term Loan (or portions thereof) made by such
Lender to such Tranche B Term Loan Borrower. A Tranche B 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 Tranche B
Term Note and the Obligation evidenced thereby in the Register (and each Tranche
B Term Note shall expressly so provide). Any assignment or transfer of all or
part of an Obligation evidenced by a Tranche B Term Note shall be registered in
the Register only upon surrender for registration of assignment or transfer of
the Tranche B 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 Tranche B Term Notes
<PAGE> 54
48
shall be issued to the designated Assignee and the old Tranche B Term Note shall
be returned by the Administrative Agent to the Borrower marked "cancelled." No
assignment of a Tranche B 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 2.32. Each Lender is hereby
authorized to record the date and amount of each payment or prepayment of
principal of its Tranche B Term Loan made to such 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
Tranche B Term Note (or any continuation thereof), and any such recordation
shall constitute prima facie evidence of the accuracy of the information so
recorded. The Tranche B Term Note of each Lender shall (a) be dated the
Restatement Effective Date, (b) be stated to mature in 19 consecutive quarterly
installments, payable on the last day of each January, April, July and October,
commencing on January 31, 2000, each of which shall be in an amount equal to
such Lender's Tranche B Term Loan Commitment Percentage of the respective
amounts set forth in accordance with the following schedule multiplied by a
fraction of the numerator which is equal to (i) $45,000,000 in the case of
installments payable by each of Ormco, Barnstead or Remel, (ii) $75,000,000 in
the case of installments payable or 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>
January 31, 2000 $250,000
April 30, 2000 $250,000
July 31, 2000 $250,000
October 31, 2000 $250,000
January 31, 2001 $250,000
April 30, 2001 $250,000
July 31, 2001 $250,000
October 31, 2001 $250,000
January 31, 2002 $250,000
April 30, 2002 $250,000
July 31, 2002 $250,000
October 31, 2002 $250,000
January 31, 2003 $40,000,000
April 30, 2003 $40,000,000
July 31, 2003 $40,000,000
October 31, 2003 $40,000,000
January 31, 2004 $45,000,000
April 30, 2004 $45,000,000
July 31, 2004 $47,000,000
</TABLE>
and (c) provide for the payment of interest in accordance with
subsection 2.19.
<PAGE> 55
49
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, the Issuing Bank, in reliance on the agreements of the other Lenders set
forth in subsection 3.4(a), agrees to continue to hold outstanding Existing
Letters of Credit issued prior to the date hereof and originally for the account
of one of the Borrowers and to issue letters of credit (collectively, whether
Existing Letters of Credit or letters of credit to be issued pursuant to the
terms hereof, "Letters of Credit") for the account of the Parent on any Business
Day during the Revolving Credit Commitment Period in such form as may be
approved from time to time by the Issuing Bank; provided that the Issuing Bank
shall not, and shall have no obligation to, issue any Letter of Credit if, after
giving effect to such issuance, (i) the L/C Obligations would exceed the L/C
Commitment or (ii) the Available Revolving Credit Commitment of all the Lenders
would be less than zero. Each Letter of Credit shall (i) be denominated in
Dollars or in a Foreign Currency, provided that the aggregate face amount of all
Letters of Credit denominated in such Foreign Currencies (as determined at the
time of issuance of any Letter of Credit) shall not exceed $20,000,000 and shall
be either (x) a standby letter of credit issued to support obligations of the
Parent or its Subsidiaries, contingent or otherwise for general corporate needs
(a "Standby Letter of Credit"), or (y) a documentary letter of credit in respect
of the purchase of goods or services by the Parent or its Subsidiaries in the
ordinary course of business (a "Commercial Letter of Credit") and (ii) expire no
later than the earlier of (x) one year from the date of issuance thereof or (y)
the Termination Date.
(b) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York.
(c) The Issuing Bank shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Bank or any L/C Participant to exceed any limits imposed by,
any applicable Requirement of Law.
3.2 Procedure for Issuance of Letters of Credit. The Parent
may from time to time request that the Issuing Bank issue a Letter of Credit by
delivering to the Issuing Bank at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Bank, and
such other certificates, documents and other papers and information as may be
customary for letters of credit of the kind being requested and as the Issuing
Bank may reasonably request. Upon receipt of any Application, the Issuing Bank
will process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Bank be required to issue any Letter
of Credit earlier than three Business Days after its receipt of the Application
therefor and all such other certificates, documents and other papers and
information relating thereto) by issuing the original of such Letter of Credit
to the beneficiary thereof or as otherwise may be agreed by the Issuing Bank and
the Parent. The Issuing Bank shall furnish a copy of such Letter of Credit to
the Parent promptly following the issuance thereof.
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3.3 Fees, Commissions and Other Charges. (a) The Parent
shall (i) pay to the Administrative Agent for the account of the L/C
Participants, and for the account of the Issuing Bank in respect of the portion
of such Letter of Credit in respect of which L/C Participants do not hold
participating interests, a fee with respect to each Letter of Credit (including,
without limitation, Existing Letters of Credit) issued for the account of the
Parent for each day such Letter of Credit is outstanding, in an amount equal to
a percentage per annum (which percentage shall equal the Applicable Margin in
effect on such day) of the full amount of such Letter of Credit, accruing from
the date of issuance in respect of each Letter of Credit and (ii) pay to the
Issuing Bank an additional fee to be determined by the Parent and the Issuing
Bank. Unless the Parent and the Issuing Bank shall agree otherwise, such fees
shall be payable in arrears on each L/C Fee Payment Date to occur.
(b) In addition to the foregoing fees the Parent shall pay
or reimburse the Issuing Bank for such normal and customary costs and expenses
as are incurred or charged by the Issuing Bank in issuing, effecting payment
under, amending or otherwise administering any Letter of Credit.
(c) The Administrative Agent shall, promptly following its
receipt thereof, distribute to the Issuing Bank and the L/C Participants all
fees and commissions received by the Administrative Agent for their respective
accounts pursuant to this subsection.
3.4 L/C Participations. (a) The Issuing Bank irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce the
Issuing Bank to continue to hold outstanding Existing Letters of Credit and to
issue Letters of Credit hereunder, each L/C Participant irrevocably agrees to
accept and purchase and hereby accepts and purchases from the Issuing Bank, on
the terms and conditions hereinafter stated, for such L/C Participant's own
account and risk an undivided interest equal to such L/C Participant's Revolving
Credit Commitment Percentage in the Issuing Bank's obligations and rights under
each Letter of Credit issued hereunder (including, without limitation, each
Existing Letter of Credit) and the amount of each draft paid by the Issuing Bank
thereunder. Each L/C Participant unconditionally and irrevocably agrees with the
Issuing Bank that, if a draft is paid under any Letter of Credit for which the
Issuing Bank is not reimbursed in full by the Parent in accordance with the
terms of this Agreement otherwise than as a result of the gross negligence or
willful misconduct of the Issuing Bank, such L/C Participant shall pay to the
Issuing Bank upon demand at the Issuing Bank's address for notices specified
herein an amount equal to such L/C Participant's Revolving Credit Commitment
Percentage of the amount of such draft, or any part thereof, which is not so
reimbursed.
(b) If any amount required to be paid by any L/C Participant
to the Issuing Bank pursuant to subsection 3.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Bank under any Letter of Credit is
paid to the Issuing Bank within three Business Days after the date such payment
is due, such L/C Participant shall pay to the Issuing Bank on demand an amount
equal to the product of (i) such amount, times (ii) the daily average Federal
funds rate,
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as quoted by the Issuing Bank, during the period from and including the date
such payment is required to the date on which such payment is immediately
available to the Issuing Bank, times (iii) a fraction the numerator of which is
the number of days that elapse during such period and the denominator of which
is 360. If any such amount required to be paid by any L/C Participant pursuant
to subsection 3.4(a) is not in fact made available to the Issuing Bank by such
L/C Participant within three Business Days after the date such payment is due,
the Issuing Bank shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to ABR Loans hereunder. A certificate of the Issuing
Bank submitted to any L/C Participant with respect to any amounts owing under
this subsection shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Bank has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with subsection 3.4(a), the Issuing
Bank receives any payment related to such Letter of Credit (whether directly
from the Parent or otherwise, including proceeds of collateral applied thereto
by the Issuing Bank), or any payment of interest on account thereof, the Issuing
Bank will distribute to such L/C Participant its pro rata share thereof;
provided, however, that in the event that any such payment received by the
Issuing Bank shall be required to be returned by the Issuing Bank, such L/C
Participant shall return to the Issuing Bank the portion thereof previously
distributed by the Issuing Bank to it.
3.5 Reimbursement Obligation of the Parent. The Parent
agrees to reimburse the Issuing Bank on each date on which the Issuing Bank
notifies the Parent of the date and amount of a draft presented under any Letter
of Credit (including, without limitation, any Existing Letter of Credit) and
paid by the Issuing Bank for the amount of (a) such draft so paid and (b) any
taxes (excluding net income taxes and franchise taxes), fees, charges or other
costs or expenses incurred by the Issuing Bank in connection with such payment.
Each such payment shall be made to the Issuing Bank at its address for notices
specified herein in lawful money of (x) the United States of America (in the
case of payments made on Dollar-denominated Letters of Credit and payments on
Foreign Currency-denominated Letters of Credit made after any conversion
pursuant to subsection 3.9(b)) or (y) the applicable foreign jurisdiction (in
the case of payments on Foreign Currency-denominated Letters of Credit made
before any conversion pursuant to subsection 3.9(b)) and in immediately
available funds. Interest shall be payable on any and all amounts remaining
unpaid by the Parent under this subsection from the date such amounts become
payable (whether at stated maturity, by acceleration or otherwise) until payment
in full at (i) the rate which would be payable on any overdue Revolving Credit
Loans that are ABR Loans which were then overdue (in the case of the
Dollar-denominated Letters of Credit and, commencing with the date of any
conversion pursuant to subsection 3.9(b), in the case of Foreign
Currency-denominated Letters of Credit) or (ii) the rate which would reasonably
and customarily be charged by the Issuing Bank on outstanding Foreign Currency
loans which were overdue (in the case of Foreign Currency-denominated Letters of
Credit prior to the date of any conversion pursuant to subsection 3.9(b)). Each
drawing under any Letter of Credit shall constitute a request by the Parent to
the Administrative Agent for a borrowing pursuant to subsection 2.1 of ABR
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Loans in the amount of such drawing. The Borrowing Date with respect to such
borrowing shall be the date of such drawing.
3.6 Obligations Absolute. The Parent's obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which the Parent may have or have had against the Issuing Bank, any
beneficiary of a Letter of Credit or any other Person. The Parent also agrees
with the Issuing Bank that the Issuing Bank shall not be responsible for, and
the Parent's Reimbursement Obligations under subsection 3.5 shall not be
affected by, among other things, the validity or genuineness of documents or of
any endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the Parent and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of the Parent against any
beneficiary of such Letter of Credit or any such transferee. The Issuing Bank
shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions caused by the Issuing Bank's gross negligence or willful misconduct.
The Parent agrees that any action taken or omitted by the Issuing Bank under or
in connection with any Letter of Credit or the related drafts or documents, if
done in the absence of gross negligence or willful misconduct and in accordance
with the standards or care specified in the Uniform Commercial Code of the State
of New York, shall be binding on the Parent with respect to any obligations
(including, without limitation, any Reimbursement Obligations) owing to the
Lenders hereunder in connection with any Letter of Credit and shall not result
in any liability of the Issuing Bank to the Parent.
3.7 Letter of Credit Payments. If any draft shall be
presented for payment under any Letter of Credit, the Issuing Bank shall
promptly notify the Parent of the date and amount thereof. The responsibility of
the Issuing Bank to the Parent in connection with any draft presented for
payment under any Letter of Credit shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining that
the documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of Credit.
3.8 Application. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
3.9 Currency Adjustments. (a) Notwithstanding anything to
the contrary contained in this Agreement, for purposes of calculating any letter
of credit commission or commitment fee payable in respect of any Business Day,
the Administrative Agent shall convert the amount available to be drawn under
any Letter of Credit denominated in Foreign Currency into an amount of Dollars
based upon the relevant exchange rate (depending upon the Foreign Currency used)
determined by the Administrative Agent to be in effect for such day (which
determination shall be conclusive absent manifest error).
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(b) Notwithstanding anything to the contrary contained in
this Section 3, the Issuing Bank may at any time prior to the time of
reimbursement (taking into consideration the Issuing Bank's need to eliminate
currency exchange risks associated with any such transaction), convert the
Parent's obligation to reimburse the Issuing Bank in Foreign Currency pursuant
to subsection 3.5 into an obligation to reimburse the Issuing Bank in Dollars.
The amount of any such converted obligation shall be computed by the Issuing
Bank based upon the Dollar/relevant Foreign Currency exchange rate determined by
the Issuing Bank to be in effect for the day on which such conversion occurs
(which determination shall be conclusive absent manifest error).
(c) Notwithstanding anything to the contrary contained in
this Section 3, prior to demanding any reimbursement from the L/C Participants
pursuant to subsection 3.4(a) in respect of any Letter of Credit denominated in
a Foreign Currency, the Issuing Bank shall convert the Parent's obligation under
subsection 3.5 to reimburse the Issuing Bank in such Foreign Currency into an
obligation to reimburse the Issuing Bank in Dollars. The Dollar amount of the
reimbursement obligation of the Parent and the L/C Participants shall be
computed by the Issuing Bank in the manner contemplated in clause (b) above.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans and issue and/or participate in the
Letters of Credit, the Borrowers hereby represent and warrant to the
Administrative Agent and each Lender that:
4.1 Financial Condition. The consolidated balance sheets of
the Parent and its consolidated Subsidiaries as at September 30, 1997 and
September 30, 1998 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 consolidated
balance sheet of the Parent and its consolidated Subsidiaries as at March 31,
1999 and the related unaudited consolidated statements of income and of cash
flows for the six-month period ended on such March 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 six-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,
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54
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 or disclosed on a supplemental
basis. During the period from September 30, 1998 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
(including any Capital Stock of any other Person) material in relation to the
consolidated financial condition of the Parent and its consolidated Subsidiaries
at September 30, 1998, except as disclosed in the Parent's Form 10-Q filed with
the Securities and Exchange Commission.
4.2 No Change. Since September 30, 1998 there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
4.3 Corporate Existence; Compliance with Law. Each of the
Parent and its Subsidiaries (a) is duly organized, validly existing and in good
standing (or similar concept under applicable law) under the laws of the
jurisdiction of its organization (except for any Subsidiaries organized under
the laws of a foreign jurisdiction in which the concept of good standing is
inapplicable, as to which no representation or warranty regarding good standing
is made), (b) has the corporate power and authority, and the legal right, to own
and operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly qualified as
a foreign corporation and in good standing (or similar concept under applicable
law) under the laws of each jurisdiction where its ownership, lease or operation
of property or the conduct of its business requires such qualification except to
the extent that the failure to so qualify could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect and (d) is in
compliance with all Requirements of Law except to the extent that the failure to
comply therewith could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations.
Each of the Parent and its Subsidiaries has the corporate power and authority,
and the legal right, to make, deliver and perform the Loan Documents to which it
is a party and, in the case of the Borrowers, to borrow hereunder and has taken
all necessary corporate action to authorize the borrowings on the terms and
conditions of this Agreement and the Notes and to authorize the execution,
delivery and performance of the Loan Documents to which it is a party. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or the continuing operations of the
Parent and its Subsidiaries or with the execution, delivery, performance,
validity or enforceability of the Loan Documents to which the Parent or any of
its Subsidiaries is a party. This Agreement has been, and each other Loan
Document to which the Parent or any Subsidiary is a party will be, duly executed
and delivered on behalf of the Parent or such Subsidiary. This Agreement
constitutes, and each other Loan Document to which the Parent or any Subsidiary
is a party when executed and delivered will constitute, a legal, valid and
binding obligation of such Loan Party enforceable against such Loan Party in
accordance with its terms, except as affected
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by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws affecting creditors' rights generally, general equitable principles
(whether in equity or at law) and an implied covenant of good faith and fair
dealing.
4.5 No Legal Bar. The execution, delivery and performance of
the Loan Documents to which any Loan Party is a party, the borrowings hereunder
and the use of the proceeds thereof will not violate any Requirement of Law or
Contractual Obligation of the Parent or of any of its Subsidiaries and will not
result in, or require, the creation or imposition of any Lien on any of its or
their respective properties or revenues pursuant to any such Requirement of Law
or Contractual Obligation (other than as required by the Loan Documents) in each
case, which could reasonably be expected to have a Material Adverse Effect.
4.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Parent, threatened by or against the Parent or any of
its Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby, or (b) which could reasonably be
expected to have a Material Adverse Effect, except as set forth on Schedule 4.6.
4.7 No Default. Neither the Parent nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of the Parent and its
Subsidiaries has good record and indefeasible title in fee simple to, or a valid
leasehold interest in, all its material real property, and good title to, or a
valid leasehold interest in, all its other material property, and none of such
property is subject to any Lien except as permitted by subsection 7.3.
4.9 Intellectual Property. The Parent and each of its
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted except for those the failure to own or license
which could not reasonably be expected to have a Material Adverse Effect (the
"Intellectual Property"). No claim is pending and to the knowledge of the Parent
no claim has been asserted by any Person challenging or questioning the use of
any such Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does the Parent know of any valid basis for any such
claim which could reasonably be expected to have a Material Adverse Effect. The
use of such Intellectual Property by the Parent and its Subsidiaries does not
infringe on the rights of any Person, except for such claims and infringements
that, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
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4.10 No Burdensome Restrictions. Except as set forth on
Schedule 4.10 hereto, no Requirement of Law or Contractual Obligation of the
Parent or any of its Subsidiaries could reasonably be expected to have a
Material Adverse Effect.
4.11 Taxes. Each of the Parent and its Subsidiaries has filed
or caused to be filed all material tax returns which, to the knowledge of the
Parent, are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any taxes, assessments, fees
or other changes the amount or validity of which are currently being contested
in good faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the Parent or its
Subsidiaries, as the case may be); no tax Lien has been filed, and, to the
knowledge of the Parent, no claim is being asserted, with respect to any such
tax, fee or other charge which could reasonably be expected to have a Material
Adverse Effect.
4.12 Federal Regulations. No part of the proceeds of any
Loans will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U of the Board
of Governors of the Federal Reserve System as now and from time to time
hereafter in effect or for any purpose which violates the provisions of the
Regulations of such Board of Governors. If requested by any Lender or the
Administrative Agent, each Borrower will furnish to the Administrative Agent and
each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U.
4.13 ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Single
Employer Plan, and each Plan has complied in all respects with the applicable
provisions of ERISA and the Code except where the failure to comply could not
reasonably be expected to have a Material Adverse Effect. No termination of a
Single Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan
has arisen, during such five-year period which could reasonably be expected to
have a Material Adverse Effect. The present value of all accrued benefits under
each Single Employer Plan (based on those assumptions used to fund such Plans)
did not, as of the last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the assets of such
Plans allocable to such accrued benefits by more than $20,000,000 in the
aggregate taking into account only those Single Employer Plans whose accrued
benefits exceed such assets. Neither the Parent, any Subsidiary Borrower nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, and neither the Parent, any Subsidiary Borrower nor any
Commonly Controlled Entity would become subject to any liability under ERISA if
the Parent, any Subsidiary Borrower or any such Commonly Controlled Entity were
to withdraw completely from all Multiemployer Plans as of the valuation date
most closely preceding the date on which this representation is made or deemed
made. No such Multiemployer Plan is in Reorganization or Insolvent. The present
value (determined using
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actuarial and other assumptions which are reasonable in respect of the benefits
provided and the employees participating) of the liability of the Parent and
each of the Subsidiary Borrowers for post retirement benefits to be provided to
their current and former employees under Plans which are welfare benefit plans
(as defined in Section 3(1) of ERISA) does not, in the aggregate, exceed the
assets under all such Plans allocable to such benefits by an amount which could
reasonably be expected to have a Material Adverse Effect.
4.14 Investment Company Act; Other Regulations. None of the
Borrowers is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended. None of the Borrowers is subject to any regulation under any Federal
or State statute or regulation which limits its ability to incur Indebtedness.
4.15 Subsidiaries. (i) The Subsidiaries listed on Schedule
4.15(a) constitute all the Subsidiaries of the Parent as of the date hereof and
(ii) the organizational structure of the Parent and its Subsidiaries is as
specified on Schedule 4.15(b).
4.16 Purpose of Loans. (i) The proceeds of the Loans
outstanding on the Restatement Effective Date were used as permitted by the
Existing Credit Agreement, (ii) the proceeds of the Tranche B Term Loans shall
be used to finance the general corporate purposes of the Parent and its
Subsidiaries, including for permitted acquisitions and refinancing existing
indebtedness and (iii) 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 permitted hereunder.
4.17 Environmental Matters. (a) To the best knowledge of the
Parent, the facilities and properties owned, leased or operated by the Parent or
any of its Subsidiaries (the "Properties") do not contain, and have not
previously contained, any Materials of Environmental Concern in amounts or
concentrations which (i) constitute or constituted a violation of, or (ii) could
reasonably be expected to give rise to liability under, any Environmental Law
except in either case insofar as such violation or liability, or any aggregation
thereof, is not reasonably likely to result in a Material Adverse Effect.
(b) To the best knowledge of the Parent, the Properties and
all operations at the Properties are in compliance, and have in the last five
years been in compliance, in all material respects with all applicable
Environmental Laws, and there is no contamination at, under or about the
Properties or violation of any Environmental Law with respect to the Properties
or the business operated by the Parent or any of its Subsidiaries (the
"Business") which could materially interfere with the continued operation of the
Properties or materially impair the fair saleable value thereof.
(c) Neither the Parent nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the
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Properties or the Business, nor does the Parent have knowledge or reason to
believe that any such notice will be received or is being threatened except
insofar as such notice or threatened notice, or any aggregation thereof, does
not involve a matter or matters that is or are reasonably likely to result in a
Material Adverse Effect.
(d) To the best knowledge of the Parent, Materials of
Environmental Concern have not been transported or disposed of from the
Properties in violation of, or in a manner or to a location which could
reasonably be expected to give rise to liability under, any Environmental Law,
nor have any Materials of Environmental Concern been generated, treated, stored
or disposed of at, on or under any of the Properties in violation of, or in a
manner that could reasonably be expected to give rise to liability under, any
applicable Environmental Law except insofar as any such violation or liability
referred to in this paragraph, or any aggregation thereof, is not reasonably
likely to result in a Material Adverse Effect.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Parent, threatened, under any
Environmental Law to which the Parent or any Subsidiary is or will be named as a
party with respect to the Properties or the Business, nor are there any consent
decrees or other decrees, consent orders, administrative orders or other orders,
or other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties or the Business except insofar
as such proceeding, action, decree, order or other requirement, or any
aggregation thereof, is not reasonably likely to result in a Material Adverse
Effect.
(f) To the best knowledge of the Parent, there has been no
release or threat of release of Materials of Environmental Concern at or from
the Properties, or arising from or related to the current or past operations of
the Parent or any Subsidiary in violation of or in amounts or in a manner that
could reasonably give rise to liability under Environmental Laws except insofar
as any such violation or liability referred to in this paragraph, or any
aggregation thereof, is not reasonably likely to result in a Material Adverse
Effect.
4.18 Domestic Real Property. As of the Restatement Effective
Date, Schedule 4.18 hereto contains a list (accurate and complete in all
material respects) of all real property located in the United States of America
directly or indirectly owned by the Parent and its Subsidiaries or in which any
of them directly or indirectly has a leasehold interest.
4.19 Corporate Structure. Except as set forth on Schedule
4.19 hereto and other than qualifying shares held by directors and qualifying
shareholders in certain Subsidiaries which are Controlled Foreign Corporations,
all of the outstanding shares of capital stock or other indicia of ownership
interests of each Subsidiary of the Parent are owned directly or indirectly by
the Parent.
4.20 Accuracy and Completeness of Information. No fact is
known to the Parent or any of its Subsidiaries which has had or could reasonably
be expected to have a Material Adverse Effect, which has not been disclosed to
the Lenders by the Parent or such Subsidiary in
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writing prior to the date hereof. No document furnished or statement made in
writing to the Lenders by the Parent or such Subsidiary in connection with the
negotiation, preparation or execution of this Agreement or any of the other Loan
Documents contains any untrue statement of a material fact or omits to state any
such material fact necessary in order to make the statements contained therein
not misleading, in either case which has not been corrected, supplemented or
remedied by subsequent documents furnished or statements made in writing to the
Lenders prior to the date hereof.
4.21 Solvency. On the Restatement Effective Date and after
giving effect to the borrowings hereunder on such date and to all other
Indebtedness and Guarantee Obligations being incurred on such date, (a) the
property, at a fair valuation, of each Borrower will exceed such Borrower's
debts, (b) each Borrower will be able to pay its liability on its debts as such
debts become absolute and matured, and (c) each Borrower will have, as of such
date, sufficient capital with which to conduct its business. For purposes of
this subsection, "debt" means "liability on a claim", "claim" means any (i)
right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured or (ii) right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured,
or unsecured.
4.22 Labor Matters. There are no strikes pending or, to the
Parent's knowledge, threatened against the Parent or any of its Subsidiaries
which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. The hours worked and payments made to employees of the
Parent and each of its Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Requirement of Law, except to the extent
such violations could not, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect. All material payments due from the
Parent or any of its Subsidiaries, on account of wages and employee health and
welfare insurance and other benefits have been paid or accrued as a liability on
the books of the Parent or such Subsidiary.
4.23 Pledge Agreements; Subsidiary Guarantors. (a) Each
Pledge Agreement is effective to create in favor of the Administrative Agent,
for the ratable benefit of the Lenders, a legal, valid and enforceable security
interest in the Pledged Assets described therein. Such Pledge Agreement
constitutes a fully perfected first Lien on, and security interest in, all
right, title and interest of the Loan Party thereto in the Pledged Assets
described therein. The Parent and its Subsidiaries are in compliance with the
Pledge Guidelines (except with respect to Microgenics Corporation, which shall
execute and deliver documents in compliance with the Pledge Guidelines within 30
days from the date hereof).
(b) The Subsidiary Guarantors include each Subsidiary of the
Parent other than (i) a Controlled Foreign Corporation and (ii) a Specified
Entity.
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4.24 Representations and Warranties on Restatement Effective
Date. The representations and warranties made by the Parent and the other Loan
Parties in subsections 4.1 through 4.23 are true and correct in all material
respects on and as of the Restatement Effective Date, as if made on and as of
the Restatement Effective Date, except to the extent such representations and
warranties expressly relate to an earlier date.
4.25 Year 2000 Matters. The Borrowers have conducted a review
of their computer systems and equipment containing embedded microchips to
determine whether any reprogramming is required to permit proper functioning of
these systems and equipment in and following the year 2000. In respect of the
year 2000, the Borrowers have substantially completed system upgrades or
reprogramming, and testing thereof, and have communicated with critical vendors,
suppliers and customers to identify any potential issues which may affect the
Borrowers. Based upon the information the Borrowers have developed to date, the
cost to the Borrowers of such reprogramming, upgrading and testing, and the
reasonably foreseeable consequences of year 2000 computer system issues relevant
to the Borrowers, will not result in a Default or a Material Adverse Effect. The
computer and management information systems of the Borrowers are, and with
ordinary course upgrading and maintenance will continue for the term of the
Agreement to be, sufficient to permit the Borrowers to conduct their business
without Material Adverse Effect.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Restatement Effective Date. The occurrence
of the Restatement Effective Date and the agreement of each Lender to make the
initial extension of credit requested to be made by it on or after the
Restatement Effective Date are subject to the satisfaction of the following
conditions precedent:
(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 for each Lender,
(ii) 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 (iii) the
Subsidiary 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 such other material documents or instruments to
which the Parent or any of its Subsidiaries may be a party.
(c) Borrowing Certificate. The Administrative Agent shall
have received with a counterpart for each Lender, a certificate of the Parent
and the Subsidiary Borrowers, dated the Restatement Effective Date,
substantially in the form of Exhibit G, with appropriate insertions
<PAGE> 67
61
and attachments, satisfactory in form and substance to the Administrative Agent,
executed by a duly authorized officer and the Secretary or any Assistant
Secretary of the Parent and each such Subsidiary Borrower.
(d) Corporate Proceedings of the Parent. The Administrative
Agent shall have received, with a counterpart for each Lender, a copy of the
resolutions, in form and substance reasonably satisfactory to the Administrative
Agent, of the Board of Directors of the Parent authorizing (i) the execution,
delivery and performance of this Agreement, the Notes and the other Loan
Documents to which it is a party, (ii) the borrowings contemplated hereunder and
(iii) the granting by it of the Liens created pursuant to the Parent Pledge
Agreement, certified by the Secretary or an Assistant Secretary of the Parent as
of the Restatement Effective Date, which certificate shall be in form and
substance satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded.
(e) Parent Incumbency Certificate. The Administrative Agent
shall have received, with a counterpart for each Lender, a certificate of the
Parent, dated the Restatement Effective Date, as to the incumbency and signature
of the officers of the Parent executing any Loan Document, satisfactory in form
and substance to the Administrative Agent, executed by the President or any Vice
President and the Secretary or any Assistant Secretary of the Parent.
(f) Corporate Proceedings of Subsidiaries. The
Administrative Agent shall have received, except in the case of certain foreign
Subsidiaries set forth on Schedule 5.1(f), which shall be received within 60
days from the date hereof, with a counterpart for each Lender, a copy of the
resolutions, in form and substance reasonably satisfactory to the Administrative
Agent, of the Board of Directors of each Subsidiary of the Parent which is a
party to a Loan Document authorizing (i) the execution, delivery and performance
of the Loan Documents (including, without limitation, in the case of any
Subsidiary Borrower, this Agreement and the Notes to which it is a party), (ii)
in the case of each Subsidiary Borrower, the borrowings contemplated hereunder
and (iii) the granting by it of the Liens created pursuant to the Subsidiaries
Pledge Agreement, certified by the Secretary or an Assistant Secretary of each
such Subsidiary as of the Restatement Effective Date, which certificate shall be
in form and substance satisfactory to the Administrative Agent and shall state
that the resolutions thereby certified have not been amended, modified, revoked
or rescinded.
(g) Subsidiary Incumbency Certificates. The Administrative
Agent shall have received, with a counterpart for each Lender, a certificate of
each Subsidiary of the Parent which is a Loan Party, dated the Restatement
Effective Date, as to the incumbency and signature of the officers of such
Subsidiaries executing any Loan Document, satisfactory in form and substance to
the Administrative Agent, executed by the President or any Vice President and
the Secretary or any Assistant Secretary of each such Subsidiary.
(h) Corporate Documents. The Administrative Agent shall have
received, with a counterpart for each Lender, true and complete copies of the
certificate of incorporation and by-laws of each Loan Party which is not a
Controlled Foreign Corporation, certified as of the
<PAGE> 68
62
Restatement Effective Date as complete and correct copies thereof by the
Secretary or an Assistant Secretary of such Loan Party.
(i) Fees. The Administrative Agent shall have received the
fees to be received on the Restatement Effective Date referred to in the Fee
Letter, dated June 25, 1999, between the Parent and the Administrative Agent.
(j) Legal Opinion. The Administrative Agent shall have
received, with a counterpart for each Lender, the executed legal opinion of
Quarles & Brady, special counsel of the Parent and its relevant Subsidiaries,
substantially in the form of Exhibit H, which opinion the Parent and such
Subsidiaries expressly instruct Quarles & Brady to prepare and deliver. Such
legal opinion shall cover such other matters incident to the transactions
contemplated by this Agreement as the Administrative Agent may reasonably
require.
(k) Pledged Stock; Stock Powers; Pledged Notes; Financing
Statements. 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. The Administrative Agent shall have
reviewed such executed UCC Financing Statements in respect of the stock pledged
pursuant to the Pledge Agreements as it shall reasonably request.
(l) 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 Restatement Effective
Date, specifying that the proceeds of the Tranche B Term Loans shall be used, to
the extent necessary, to repay Revolving Credit Loans outstanding on the
Restatement Effective Date.
(m) 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.
(n) 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 Loan Parties (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.
<PAGE> 69
63
(o) 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.
5.2 Conditions to Each Extension of Credit. The agreement of
each Lender to make any extension of credit requested to be made by it on any
date (including, without limitation, the extensions of credit to be made on the
Restatement Effective Date) is subject to the satisfaction of the following
conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Parent and the other Loan Parties in
or pursuant to the Loan Documents shall be true and correct in all material
respects on and as of such date as if made on and as of such date except for any
representation and warranty which is expressly made as of an earlier date, which
representation and warranty shall have been true and correct in all material
respects as of such earlier date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the extension
of credit requested to be made on such date.
Each borrowing by and Letter of Credit issued on behalf of any Borrower
hereunder shall constitute a representation and warranty by the Borrowers as of
the date of such extension of credit that the conditions contained in this
subsection 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Parent hereby agrees that, so long as the Commitments
remain in effect, any Note or any Letter of Credit remains outstanding and
unpaid or any other amount is owing to any Lender or the Administrative Agent
hereunder, the Parent shall and (except in the case of delivery of financial
information, reports and notices) shall cause each of its Subsidiaries to:
<PAGE> 70
64
6.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Parent, a copy of (i) the consolidated
balance sheet of the Parent and its consolidated Subsidiaries as at the end of
such year and the related consolidated statements of income and stockholders'
equity and of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, reported on without a "going
concern" or like qualification or exception, or qualification arising out of the
scope of the audit, by independent certified public accountants of nationally
recognized standing and (ii) the consolidating balance sheet of the Parent and
its consolidated Subsidiaries as at the end of such fiscal year, showing
inter-company eliminations, and the related consolidating statements of income
and stockholders' equity and changes in financial position of the Parent and its
consolidated Subsidiaries for such year, showing inter-company eliminations,
setting forth in comparative form the figures for the previous year, certified
by a Responsible Officer as being fairly stated in all material respects when
considered in relation to the consolidated financial statements of the Parent
and its consolidated Subsidiaries taken as a whole;
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of each fiscal
year of the Parent, the unaudited consolidated balance sheet of the Parent and
its consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and stockholders' equity and of cash
flows of the Parent and its consolidated Subsidiaries for such quarter and the
portion of the fiscal year through the end of such quarter and the related
unaudited consolidating financial statements of the Parent and its Subsidiaries
for such quarter and the portion of the fiscal year through such quarter,
setting forth in each case in comparative form the figures for the previous
year, certified by a Responsible Officer as being, with respect to the
consolidated financial statements referred to above, fairly stated in all
material respects and, with respect to the consolidating financial statements
referred to above, fairly stated in all material respects when considered in
relation to the consolidated financial statements of the Parent and its
consolidated Subsidiaries taken as a whole (subject to normal year-end audit
adjustments);
(c) as soon as available, but in any event not later than 45
days after the end of each calendar month (other than the third, sixth, ninth
and twelfth months of each fiscal year) of each year, the unaudited consolidated
balance sheet of the Parent and its consolidated Subsidiaries as at the end of
each such month and the related unaudited consolidated statements of income and
of cash flows of the Parent and its consolidated Subsidiaries as at the end of
such month in form and detail similar to those customarily prepared by
management of the Parent for internal use, setting forth in each case in
comparative form the figures for the corresponding period of the previous year,
certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments); and
(d) concurrently with the delivery of the financial
statements referred to in subsections 6.1(a), 6.1(b) and 6.1(c), a summary for
each of the Subsidiary Borrowers, setting forth such Subsidiary Borrower's sales
and operating profits for the period to which each
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65
accompanying financial statements relate and comparing such sales and operating
profits to the most recent budget delivered to the Lender's pursuant to
subsection 6.2(c);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
(provided that interim statements may be condensed and exclude footnotes)
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial
statements referred to in subsections 6.1(a) and 6.1(b), a certificate of a
Responsible Officer (i) stating that, to the best of such Officer's knowledge,
each of the Parent and the Subsidiary Borrowers during such period has observed
or performed all of its covenants and other agreements, and satisfied every
condition, contained in this Agreement, in the Notes and the other Loan
Documents to which it is a party to be observed, performed or satisfied by it,
and that such Officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate, and (ii) showing in detail the
calculations supporting such statement in respect of subsection 7.1;
(b) not later than thirty days after the end of each fiscal
year of the Parent, a copy of the projections by the Parent of the operating
budget and cash flow budget of the Parent and its Subsidiaries for the
succeeding fiscal year, such projections to be accompanied by a certificate of a
Responsible Officer to the effect that such projections have been prepared on
the basis of sound financial planning practice and that such officer has no
reason to believe they are incorrect or misleading in any material respect;
(c) within five days after the same are sent, copies of all
financial statements and reports which the Parent sends to its stockholders, and
within five days after the same are filed, copies of all financial statements
and reports which the Parent may make to, or file with, the Securities and
Exchange Commission or any successor or analogous Governmental Authority;
(d) concurrently with the delivery of the financial
statements referred to in subsections 6.1(a) and 6.1(b), a certificate of a
Responsible Officer of the Parent indicating the Parent's Interest Coverage
Ratio and Leverage Ratio for such period of four fiscal quarters of the Parent;
(e) concurrently with the delivery of the financial
statements referred to in subsection 6.1(a), a certificate of the independent
certified public accountants reporting on such financial statements stating that
in making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default relating to the covenants contained in subsections
7.1, 7.2, 7.4 and 7.7, except as specified in such certificate;
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(f) concurrently with the delivery of the financial
statements referred to in subsections 6.1(a) and 6.1(b), (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 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.
6.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Parent or its Subsidiaries, as the case may be.
6.4 Conduct of Business and Maintenance of Existence.
Continue to engage in business of the same general type as now conducted by it
and preserve, renew and keep in full force and effect its corporate existence
and take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business except as otherwise
permitted pursuant to subsection 7.5; comply with all Contractual Obligations
and Requirements of Law except to the extent that failure to comply therewith
could not, in the aggregate, be reasonably expected to have a Material Adverse
Effect.
6.5 Maintenance of Property; Insurance. Keep all property
useful and necessary in its business in good working order and condition;
maintain with financially sound and reputable insurance companies insurance on
all its property in at least such amounts and against at least such risks (but
including in any event public liability, product liability and business
interruption) as are usually insured against in the same general area by
companies engaged in the same or a similar business; and furnish to each Lender,
upon written request, full information as to the insurance carried.
6.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Parent and its
Subsidiaries with officers and employees of the Parent and its Subsidiaries and
with its independent certified public accountants.
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6.7 Notices. Promptly give notice to the Administrative
Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any
Contractual Obligation of the Parent or any of its Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time between the
Parent or any of its Subsidiaries and any Governmental Authority, which in
either case, if not cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Parent or any
of its Subsidiaries in which there is a reasonable probability that damages
against the Parent or any of its Subsidiaries will be recovered in the amount of
$4,000,000 or more and such damages will not be covered by insurance, or any
litigation or proceeding in which the amount is $4,000,000 or more and in which
injunctive or similar relief is sought;
(d) the following events, as soon as possible and in any
event within 30 days after the Parent or any Subsidiary Borrower knows or has
reason to know thereof: (i) the occurrence or expected occurrence of any
Reportable Event with respect to any Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC or a Plan
or any withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of any
other action by the PBGC, the Parent or any Subsidiary Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal from,
or the terminating, Reorganization or Insolvency of, any Plan; and
(e) any development or event which has had or could
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Parent proposes to take with respect thereto.
6.8 Environmental Laws. (a) Comply with, and ensure
compliance by all tenants and subtenants, if any, with, all applicable
Environmental Laws and obtain and comply with and maintain, and ensure that all
tenants and subtenants obtain and comply with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws except to the extent that failure to do so could
not be reasonably expected to have a Material Adverse Effect.
(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and directives of
all Governmental Authorities regarding Environmental Laws except to the extent
that the same are being contested in good faith by appropriate
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proceedings and the pendency of such proceedings could not be reasonably
expected to have a Material Adverse Effect.
6.9 Security Documents Delivered by New Subsidiaries. Cause
any Person (other than any Person which is a Controlled Foreign Corporation or
Specified Entity) which becomes a Subsidiary of the Parent after the Restatement
Effective Date to execute and deliver a subsidiaries guarantee, substantially in
the form of Exhibit E to this Agreement, and a subsidiaries pledge agreement,
substantially in the form of Exhibit F to this Agreement and cause the stock of
such Subsidiary to be pledged pursuant to a Pledge Agreement.
6.10 Foreign Counsel Opinions. Cause to be delivered to the
Administrative Agent and the Lenders within 60 days after the Restatement
Effective Date legal opinions, in form and substance reasonably acceptable to
the Administrative Agent, from counsel in the jurisdiction of incorporation of
certain Controlled Foreign Corporations whose shares are pledged pursuant to a
Pledge Agreement.
SECTION 7. NEGATIVE COVENANTS
The Parent hereby agrees that, so long as the Commitments
remain in effect, any Note or any Letter of Credit remains outstanding and
unpaid or any other amount is owing to any Lender or the Administrative Agent
hereunder, the Parent shall not, and (except with respect to subsection 7.1)
shall not permit any of its Subsidiaries to, directly or indirectly:
7.1 Financial Condition Covenants.
(a) Maintenance of Net Worth. Permit Consolidated Net Worth
at any time during any period set forth below to be less than the amount set
forth opposite such period below:
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
Restatement Effective Date - 9/29/99 $300,000,000
9/30/99 - 9/29/00 $330,000,000
9/30/00 - 9/29/01 $360,000,000
9/30/01 - thereafter $390,000,000
</TABLE>
(b) Interest Coverage Ratio. Permit the Interest Coverage
Ratio for any period of four consecutive fiscal quarters to be less than 4.0 to
1.0.
(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:
<PAGE> 75
69
<TABLE>
<CAPTION>
Date Ratio
---- -----
<S> <C>
Restatement Effective Date - 9/29/99 4.00
9/30/99 - 9/29/00 3.50
9/30/00 - 9/29/01 3.25
9/30/01 - thereafter 3.00
</TABLE>
(d) Senior Debt Ratio. Permit the Senior Debt 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>
Restatement Effective Date - 9/29/99 3.50
9/30/99 - 9/29/00 3.00
9/30/00 - 9/29/01 2.75
9/30/01 - thereafter 2.50
</TABLE>
7.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrowers under this Agreement and
the other Loan Documents;
(b) Indebtedness of the Parent to any Subsidiary and of any
Subsidiary to the Parent or any other Subsidiary, provided that all such
Indebtedness (other than the Nunc Acquisition Indebtedness) owed by a Subsidiary
which is not a Subsidiary Guarantor to a Subsidiary Guarantor or to the Parent
shall not exceed $30,000,000 in the aggregate at any time;
(c) Interest Rate Agreements and foreign exchange contracts
not to exceed an aggregate notional amount of $600,000,000 entered into for
non-speculative purposes or entered into in the ordinary course of business;
provided that a Lender shall be an account party to each such Interest Rate
Agreement or foreign exchange contract;
(d) Indebtedness of the Parent and any of its Subsidiaries
incurred to finance the acquisition of fixed or capital assets (whether pursuant
to a loan, a Financing Lease or otherwise) in an aggregate principal amount not
exceeding as to the Parent and its Subsidiaries $10,000,000 at any one time
outstanding;
(e) Indebtedness outstanding on the date hereof and listed
on Schedule 7.2(e);
(f) Indebtedness of a corporation which becomes a Subsidiary
after the date hereof, provided that (i) such indebtedness existed at the time
such corporation became a Subsidiary and was not created in anticipation thereof
and (ii) immediately after giving effect to
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the acquisition of such corporation by the Parent or any Subsidiary no Default
or Event of Default shall have occurred and be continuing;
(g) additional Indebtedness of the Parent and its
Subsidiaries not exceeding, when added to the amount of Guarantee Obligations
permitted by subsection 7.4(b), $50,000,000 in aggregate principal amount at any
one time outstanding;
(h) any additional Subordinated Indebtedness permitted
hereunder; 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;
(i) additional Permitted Indebtedness in an aggregate
principal amount not to exceed $300,000,000 (excluding accrued interest on such
additional Permitted Indebtedness in the form of accretion of original issue
discount), so long as at the time of incurrence of such Permitted Indebtedness
no Default or Event of Default shall have occurred or would result therefrom;
and
(j) refinancings, renewals or extensions of Indebtedness
permitted by subsections 7.2(e) or 7.2(f) in an amount not greater than the
amount required to refinance the Indebtedness so refinanced.
7.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Parent or its Subsidiaries,
as the case may be, in conformity with GAAP (or, in the case of foreign
Subsidiaries, generally accepted accounting principles in effect from time to
time in their respective jurisdictions of incorporation);
(b) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or which are
being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not material in amount
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and which do not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of the
business of the Parent or such Subsidiary;
(f) Liens in existence on the date hereof listed on Schedule
7.3(f), securing Indebtedness permitted by subsection 7.2(e) (including
extensions, renewals and refinancings of such Indebtedness to the extent
permitted under subsection 7.2(j)), provided that no such Lien is spread to
cover any additional property (other than proceeds of the collateral originally
subject to such Lien in accordance with the instrument creating such Lien) and
that the amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness of the Parent and its
Subsidiaries permitted by subsection 7.2(d) incurred to finance the acquisition
of fixed or capital assets, provided that (i) such Liens shall be created
substantially simultaneously with the acquisition of such fixed or capital
assets, (ii) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness and the proceeds of such property in
accordance with the instrument creating such Lien, (iii) the amount of
Indebtedness secured thereby is not increased and (iv) the principal amount of
Indebtedness secured by any such Lien shall at no time exceed 100% of the
original purchase price of such property;
(h) Liens on the property or assets of a corporation which
becomes a Subsidiary after the date hereof securing Indebtedness permitted by
subsection 7.2(f), provided that (i) such Liens existed at the time such
corporation became a Subsidiary and were not created in anticipation thereof,
(ii) any such Lien is not spread to cover any property or assets of such
corporation after the time such corporation becomes a Subsidiary (other than
proceeds of the collateral originally subject to such Lien in accordance with
the instrument creating such Lien) and (iii) the amount of Indebtedness secured
thereby is not increased;
(i) Liens securing Indebtedness and/or Guarantee Obligations
permitted by subsection 7.2(g) and 7.4(b), respectively, provided that the Liens
permitted by this clause (i) shall not in the aggregate secure obligations in
excess of $15,000,000.
(j) Liens in the nature of licenses that arise in the
ordinary course of business and consistent with past practice;
(k) Liens in connection with the Sale Leaseback Agreement;
(l) Liens created pursuant to the Security Documents;
(m) Liens in favor of any Lender which is party to foreign
exchange contracts and Interest Rate Agreements securing Indebtedness permitted
by subsection 7.2(c);
(n) leases and subleases otherwise permitted hereunder
granted to others not interfering in any material respect in the business of the
Parent or any of its Subsidiaries; and
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(o) attachment or judgment Liens in an aggregate amount
outstanding at any one time not in excess of $1,500,000; provided that the
attachment or judgment related thereto is discharged, vacated, stayed, or bonded
pending appeal within 60 days from the entry thereof.
7.4 Limitation on Guarantee Obligations. Create, incur,
assume or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the date hereof
and listed on Schedule 7.4(a);
(b) Guarantee Obligations incurred after the date hereof in
an aggregate amount not to exceed, when added to the amount of Indebtedness then
outstanding and permitted by subsection 7.2(g), $50,000,000 at any one time
outstanding;
(c) guarantees by the Parent or its Subsidiaries of
Indebtedness permitted by subsection 7.2;
(d) the Guarantees or other Guarantee Obligations arising
under the Loan Documents;
(e) surety bonds issued in respect of the type of
obligations described in subsection 7.3(d); and
(f) indemnities made in the ordinary course of business
provided that such indemnities could not individually or in the aggregate have a
Material Adverse Effect.
7.5 Limitations on Fundamental Changes. Except as otherwise
permitted by subsection 7.6 or subsection 7.10(e), enter into any transaction of
acquisition or merger or consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease, assign, transfer or otherwise dispose of, all or substantially all of its
property, business or assets, or make any material change in its present method
of conducting business, except that any Wholly Owned Subsidiary of the Parent
may be merged or consolidated with, or may convey, sell, lease, assign, transfer
or otherwise dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to, any other Wholly Owned Subsidiary of the Parent or the Parent;
provided that (a) in any merger or consolidation involving the Parent, the
Parent shall be the continuing or surviving entity, (b) if any such merger or
consolidation shall involve at least one entity of which less than 100% of the
Capital Stock has been pledged to the Administrative Agent for the benefit of
the Lenders, then the continuing or surviving entity shall be that entity in
which the greater percentage of Capital Stock has been so pledged, (c) no such
merger or consolidation shall be permitted if such merger or consolidation would
create a conflict between or among any of clauses (a) or (b) of this proviso,
and (d) no Subsidiary (for purposes of this clause (d), the "first Subsidiary")
may convey, sell, lease, assign, transfer or otherwise dispose of any or all of
its assets (other than sales and transfers of assets in the ordinary course or
of assets immaterial to the value of the first Subsidiary) or issue equity
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securities of any type to any Subsidiary of which less than 100% of the Capital
Stock has been pledged to the Administrative Agent for the benefit of the
Lenders (for purposes of this clause (d), the "second Subsidiary"), unless the
first Subsidiary is a Controlled Foreign Corporation and the second Subsidiary
is a Subsidiary of the first Subsidiary or of another Controlled Foreign
Corporation.
7.6 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock to any Person other than the
Parent or any Wholly Owned Subsidiary of the Parent, except:
(a) the sale or other disposition of obsolete or worn out
property in the ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) the sale or discount without recourse of accounts
receivable arising in the ordinary course of business in connection with the
compromise or collection thereof;
(d) as permitted by subsection 7.5; and
(e) any other sales or other dispositions not otherwise
permitted hereunder to the extent the aggregate Net Proceeds of all such sales
and other dispositions do not exceed $50,000,000; provided that the Net Proceeds
of each such disposition are applied to the prepayment of the Loans to the
extent and as provided for in subsection 2.15.
7.7 Limitation on Leases. Permit Consolidated Lease Expense
for any fiscal year of the Parent and its Subsidiaries to exceed $20,000,000.
7.8 Limitation on Dividends. Declare or pay any dividend
(other than dividends payable solely in common stock of the Parent) on, or make
any payment on account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, defeasance, retirement or other acquisition
of, any shares of any class of Capital Stock of the Parent or any warrants or
options to purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Parent or
any Subsidiary (such declarations, payments, setting apart, purchases,
redemptions, defeasances, retirements, acquisitions and distributions being
herein called "Restricted Payments"), except that, so long as no Default or
Event of Default has occurred and is continuing or would result therefrom, any
Restricted Payment may be made if, after giving effect thereto, the sum of the
Restricted Payments made from and after July 31, 1995 is not greater than the
Restricted Payment Allowance as of such date.
7.9 [Reserved]
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7.10 Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person,
except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) loans and advances to employees of the Parent or its
Subsidiaries for travel, entertainment and relocation expenses in the ordinary
course of business;
(d) investments by the Parent in or loans or advances by the
Parent to its Subsidiaries and investments by such Subsidiaries in or loans or
advances by such subsidiaries to the Parent and in or to other Subsidiaries
(including the investment for creation of such Subsidiary); provided, however,
that any such investment, loan or advance by or to a Subsidiary of which less
than 100% of the Capital Stock has been pledged to the Administrative Agent for
the benefit of the Lenders shall be (i) in an amount immaterial in relation to
the value of the transferor, (ii) in the ordinary course of business of each
party thereto and (iii) upon fair and reasonable terms no less favorable to each
party than each party could obtain in a comparable arm's length transaction with
a Person not an Affiliate, and provided, further, that any such investment
constituting Indebtedness of any Subsidiary shall be permitted only if such
Indebtedness is permitted by subsection 7.2(b);
(e) so long as no Event of Default has occurred and is
continuing or would occur as a result therefrom, the Borrower and its
Subsidiaries may purchase securities or any assets constituting a business unit
or product line of, or make any other investment in, another Person; provided
that any such purchase or investment does not violate any other agreement
contained herein; and provided, further, that upon acquisition of control of
such Person, the acquiror shall pledge, on terms reasonably satisfactory to the
Administrative Agent, such securities (other than 35% of the Capital Stock of
any Controlled Foreign Corporation) to the Administrative Agent for the benefit
of the Lenders;
(f) extensions or renewals of existing investments on
substantially identical terms;
(g) investments in the ordinary course of business not to
exceed $100,000;
(h) investments in Interest Rate Agreements and foreign
exchange contracts not to exceed an aggregate notional amount of $600,000,000
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
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(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.
7.11 Limitation on Optional Payments and Modifications of Debt
Instruments. (a) Make any optional payment or prepayment on or redemption of any
Indebtedness (other than the Loans or intercompany indebtedness to the extent
such indebtedness is permitted hereunder or in connection with any refinancing
of the Indebtedness governed by the Sale Leaseback Agreement to the extent
permitted by subsection 7.2(h)) or (b) amend, modify or change, or consent or
agree to any amendment, modification or change to any of the terms relating to
the payment or prepayment of principal of or interest on, any such Indebtedness
existing on the date hereof (other than any such amendment, modification or
change which would extend the maturity or reduce the amount of any payment of
principal thereof or which would reduce the rate or extend the date for payment
of interest thereon).
7.12 Limitation on Transactions with Affiliates. Enter into
any transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) otherwise permitted under this Agreement, (b) in the
ordinary course of the Parent's or such Subsidiary's business and (c) upon fair
and reasonable terms no less favorable to the Parent or such Subsidiary, as the
case may be, than it would obtain in a comparable arm's length transaction with
a Person which is not an Affiliate; provided that any transaction which
repatriates the earnings of a foreign Subsidiary to a domestic Subsidiary shall
be deemed to be permitted under this Agreement.
7.13 Limitation on Sales and Leasebacks. Except in connection
with the Sale Leaseback Agreement, enter into any arrangement with any Person
providing for the leasing by the Parent or any Subsidiary of real or personal
property which has been or is to be sold or transferred by the Parent or such
Subsidiary to such Person or to any other Person to whom funds have been or are
to be advanced by such Person on the security of such property or rental
obligations of the Parent or such Subsidiary.
7.14 Limitation on Changes in Fiscal Year. Permit the fiscal
year of the Parent to end on a day other than September 30.
7.15 Limitation on Negative Pledge Clauses. Enter into with
any Person any agreement, other than (a) this Agreement, (b) the Capitalization
Documents, (c) agreements in connection with any Indebtedness or Guarantee
Obligation secured by assets to the extent permitted by subsection 7.3(i) (in
which case, any prohibition or limitation shall only be effective against such
assets) and (d) any purchase money mortgages or Financing Leases permitted by
this Agreement (in which cases, any prohibition or limitation shall only be
effective against the assets financed thereby), which prohibits or limits the
ability of the Parent or any of its Subsidiaries to create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired.
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7.16 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary by acquisition or otherwise, except
for those businesses in which the Parent and its Subsidiaries are engaged on the
date of this Agreement or which are related thereto.
7.17 Restrictions Affecting Subsidiaries. Enter into, or
suffer to exist, any Contractual Obligation with any Person other than the
Parent, which prohibits or limits the ability of any Subsidiary to (a) pay
dividends or make other distributions or pay any Indebtedness owed to the Parent
or any other Subsidiary, (b) make loans or advances to the Parent or any other
Subsidiary or (c) transfer any of its properties or assets to the Parent or any
other Subsidiary.
7.18 Modification of Capitalization Documents. Amend,
supplement or otherwise modify any of the Capitalization Documents without
giving the Administrative Agent at least ten days prior notice of such
amendment, supplement or modification and in any event in such a manner which
shall not be deemed by the Majority Lenders to be adverse to their interests
hereunder.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Note
when due in accordance with the terms thereof or hereof; or any Borrower shall
fail to pay any interest on any Note, or any other amount payable hereunder,
within five days after any such interest or other amount becomes due in
accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by any
Borrower or any other Loan Party herein or in any other Loan Document or which
is contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or any
such other Loan Document shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) Any Borrower or any other Loan Party shall default in the
observance or performance of any agreement contained in Section 7 of this
Agreement, Sections 5(b), 5(e) or 5(f) of the Parent Pledge Agreement or
Sections 5(b), 5(e) or 5(f) of the Subsidiaries Pledge Agreement; or
(d) Any Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this Agreement or
any other Loan Document (other than as provided in paragraphs (a) through (c) of
this Section), and such default shall continue unremedied for a period of 30
days; or
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(e) The Parent or any of its Subsidiaries shall (i) default in
any payment of principal of or interest (regardless of amount) of any
Indebtedness (other than the Notes) having an aggregate principal amount in
excess of $5,000,000 or in the payment (regardless of amount) of any Guarantee
Obligation (other than the Guarantees) in excess of $5,000,000, beyond the
period of grace (not to exceed 30 days), if any, provided in the instrument or
agreement under which such Indebtedness or Guarantee Obligation was created; or
(ii) default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or Guarantee Obligation or contained
in any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable; or
(f) (i) The Parent or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets, or the
Parent or any of its Subsidiaries shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the Parent or
any of its Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against the Parent or any of its Subsidiaries any case, proceeding or
other action seeking issuance of a warrant of attachment, execution, distraint
or similar process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Parent or any of its Subsidiaries shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above;
or (v) the Parent or any of its Subsidiaries shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as they
become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Parent, any Subsidiary Borrower or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall commence to
have a trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the
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reasonable opinion of the Majority Lenders, likely to result in the termination
of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, (v) the Parent, any
Subsidiary Borrower or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Majority Lenders is likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or exist
with respect to a Plan; and in each case in clauses (i) through (vi) above, such
event or condition, together with all other such events or conditions, if any,
could reasonably be expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against
the Parent or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance) of $1,500,000 or more, and all such
judgments or decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 60 days from the entry thereof; or
(i) (i) Any of the Security Documents shall cease, for any
reason, to be in full force and effect, or the Parent or any other Loan Party
which is a party to any of the Security Documents shall so assert or (ii) the
Lien created by any of the Security Documents shall cease to be enforceable and
of the same effect and priority purported to be created thereby; or
(j) Any Guarantee shall cease, for any reason, to be in full
force and effect or any Guarantor shall so assert; or
(k) (i) Any Person or "group" (within the meaning of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended) (other than
any Person which is an Affiliate of the Parent as of the date hereof) (A) shall
have acquired beneficial ownership of more than 35% of any outstanding class of
Capital Stock having ordinary voting power in the election of directors of the
Parent or (B) shall obtain the power (whether or not exercised) to elect a
majority of the Parent's directors or (ii) the Board of Directors of the Parent
shall not consist of a majority of Continuing Directors; as used in this
paragraph "Continuing Directors" shall mean the directors of the Parent on the
Restatement Effective Date and each other director, if such other director's
nomination for election to the Board of Directors of the Parent is recommended
by a majority of the then Continuing Directors;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to any Borrower,
automatically the Commitments to such Borrower shall immediately terminate and
the Loans made to such Borrower hereunder (with accrued interest thereon) and
all other amounts owing by such Borrower under this Agreement (including,
without limitation, all amounts of L/C Obligations owing by the Parent, whether
or not the beneficiaries of the then outstanding relevant Letters of Credit
shall have presented the documents required thereunder) and the Notes of such
Borrower shall immediately become due and payable, and (B) if such event is any
other Event of Default, either or both of the following actions may be taken:
(i) with the consent of the Majority Lenders, the Administrative Agent may, or
upon the request of the Majority Lenders, the Administrative Agent shall, by
notice to the Parent declare the Commitments of any or all of the Borrowers to
be terminated forthwith,
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whereupon such Commitments shall immediately terminate; and (ii) with the
consent of the Majority Lenders, the Administrative Agent may, or upon the
request of the Majority Lenders, the Administrative Agent shall, by notice to
the Parent, declare the Loans made to any or all of the Borrowers hereunder
(with accrued interest thereon) and all other amounts owing by such Borrowers
under this Agreement (including, without limitation, all amounts of L/C
Obligations owing hereunder, whether or not the beneficiaries of the then
outstanding relevant Letters of Credit shall have presented the documents
required thereunder) and the Notes of such Borrowers to be due and payable
forthwith, whereupon the same shall immediately become due and payable.
With respect to all Letters of Credit, if the Indebtedness
hereunder has been accelerated pursuant to the preceding paragraph with respect
to which presentment for honor shall not have occurred at the time of such
acceleration, the Borrowers shall at such time deposit in a cash collateral
account opened by the Administrative Agent an amount equal to the sum of (i) the
aggregate then undrawn and unexpired amount of such Letters of Credit and (ii)
commissions, fees and estimated expenses (in each case as determined pursuant to
subsection 3.3) expected to be incurred hereunder over a one year period.
Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrowers hereunder and under the Notes. After all the
Letters of Credit issued pursuant to the terms hereof shall have expired or been
fully drawn upon, all Reimbursement Obligations shall have been satisfied and
all other obligations of the Borrowers hereunder and under the Notes shall have
been paid in full, the balance, if any, in such cash collateral account shall be
returned to the Parent. The Parent shall execute and deliver to the
Administrative Agent, for the account of the Issuing Bank and the L/C
Participants, such further documents and instruments as the Administrative Agent
may request to evidence the creation and perfection of the security interest in
such cash collateral account.
Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
SECTION 9. GUARANTEE
9.1 Guarantee. The Parent hereby unconditionally and
irrevocably guarantees to the Administrative Agent and the Lenders, the prompt
and complete payment and performance by each of the Subsidiary Borrowers when
due (whether at the stated maturity, by acceleration or otherwise) of the
Obligations. This Parent 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 any Subsidiary Borrower may
be free from any Obligations. The Parent 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 under this Parent Guarantee, it will notify
the Administrative Agent and such Lender in writing that such payment is made
under this Parent Guarantee for such purpose. No payment or payments made by any
Subsidiary
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Borrower or any other Person or received or collected by the Administrative
Agent or any Lender from any Subsidiary Borrower or any other Person by virtue
of any action or proceeding or any offset 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
the Parent under this Parent Guarantee, which shall remain obligated under this
Parent Guarantee, notwithstanding any such payment or payments until the
Obligations are paid in full and the Commitments are terminated.
9.2 No Subrogation. Notwithstanding any payment or payments
made by the Parent under this Parent Guarantee or any set-off or application of
funds of the Parent by any Lender, the Parent shall not be entitled to be
subrogated to any of the rights of the Administrative Agent or any Lender
against any Subsidiary Borrower or any other guarantor or any collateral
security or guarantee or right of set-off held by the Administrative Agent or
any Lender for the payment of the Obligations, nor shall the Parent seek or be
entitled to seek any contribution or reimbursement from any Subsidiary Borrower
or any other guarantor in respect of payments made by the Parent hereunder,
until all amounts owing to the Administrative Agent and the Lenders by the
Subsidiary Borrowers on account of the Obligations are paid in full and the
Commitments are terminated. If any amount shall be paid to the Parent 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 the Parent in trust for the
Administrative Agent and the Lenders, segregated from other funds of the Parent,
and shall, forthwith upon receipt by the Parent, be turned over to the
Administrative Agent in the exact form received by the Parent (duly indorsed by
the Parent 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.
9.3 Amendments, etc., with respect to the Obligations. The
Parent shall remain obligated under this Parent Guarantee notwithstanding that,
without any reservation of rights against the Parent, and without notice to or
further assent by the Parent, any demand for payment of any of the Obligations
made by the Administrative Agent or any Lender may be rescinded by the
Administrative Agent or such Lender, 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 this Agreement, the
Notes and the other Loan Documents may be amended, modified, supplemented or
terminated, in whole or in part, as the Administrative Agent or the Lenders (or
the Majority Lenders, as the case may be) may deem advisable from time to time
in accordance with the provisions of subsection 11.1, and any collateral
security, guarantee or right of set-off 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 the obligations of the
Parent under this Parent Guarantee or any property subject thereto.
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9.4 Guarantee Absolute and Unconditional. The Parent 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 Parent Guarantee or acceptance of this Parent Guarantee;
the Obligations, and any of them, shall conclusively be deemed to have been
created, contracted or incurred in reliance upon this Parent Guarantee; and all
dealings between the Subsidiary Borrowers or the Parent, on the one hand, and
the Administrative Agent and the Lenders, on the other, shall likewise be
conclusively presumed to have been had or consummated in reliance upon this
Parent Guarantee. The Parent waives diligence, presentment, protest, notice of
intent to accelerate, notice of acceleration, demand for payment and notice of
default or nonpayment to or upon any of the Subsidiary Borrowers or the Parent
with respect to the Obligations. This Parent Guarantee shall be construed as a
continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity or enforceability of this Agreement, any Note, any other Loan
Document, any of the Obligations or any collateral security therefor or
guarantee or right of set-off with respect thereto at any time or from time to
time held by the Administrative Agent or any Lender, (b) any defense, offset or
counterclaim (other than a defense of payment or performance) which may at any
time be available to or be asserted by any of the Subsidiary Borrowers against
the Administrative Agent or any Lender or (c) any other circumstance whatsoever
(with or without notice to or knowledge of any of the Subsidiary Borrowers or
the Parent) which constitutes, or might be construed to constitute, an equitable
or legal discharge of any of the Subsidiary Borrowers for the Obligations of
such Subsidiary Borrower, or of the Parent under this Parent Guarantee, in
bankruptcy or in any other instance. When the Administrative Agent is pursuing
its rights and remedies hereunder against the Parent, the Administrative Agent
or any Lender may, but shall be under no obligation to, pursue such rights and
remedies as it may have against any Subsidiary 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 Subsidiary 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 Subsidiary Borrower or any such other Person or of any such
collateral security, guarantee or right of offset, shall not relieve the Parent
of any liability under this Parent Guarantee, 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 the Parent.
9.5 Reinstatement. This Parent 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
Subsidiary Borrower or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, such Subsidiary
Borrower or any substantial part of any of its property, or otherwise, all as
though such payments had not been made.
9.6 Payments. The Parent hereby agrees that the Obligations
will be paid to the Administrative Agent for the benefit of the Administrative
Agent and the Lenders, as the case
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may be, without set-off or counterclaim in Dollars in immediately available
funds at the office of the Administrative Agent located at 270 Park Avenue, New
York, New York 10017.
SECTION 10. THE ADMINISTRATIVE AGENT; THE ARRANGER
10.1 Appointment. Each Lender hereby irrevocably designates
and appoints The Chase Manhattan Bank as the Administrative Agent of such Lender
under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes The Chase Manhattan Bank, as the Administrative Agent for
such Lender, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Administrative Agent by the terms
of this Agreement and the other Loan Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
10.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
10.3 Exculpatory Provisions. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by any Borrower or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or the Notes or any
other Loan Document (except as the effectiveness or enforceability of any Loan
Document may be affected by the due execution or delivery thereof by the
Administrative Agent) or for any failure of any Borrower to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of the Parent or any of its Subsidiaries (including, without limitation,
any Subsidiary Borrower).
10.4 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice,
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consent, certificate, affidavit, letter, telecopy, telex or teletype message,
statement, order or other document or conversation reasonably and in good faith
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrowers), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Lenders (or as otherwise
required by subsection 11.1) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement and the Notes and
the other Loan Documents in accordance with a request of the Majority Lenders
(or as otherwise required by subsection 11.1), and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders
and all future holders of the Notes.
10.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Parent referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give prompt notice thereof to the Lenders. The Administrative Agent
shall take such action with respect to such Default or Event of Default as shall
be reasonably directed by the Majority Lenders (except as otherwise required by
subsection 11.1); provided that unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
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10.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates
has made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Parent or any of its Subsidiaries, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Parent, the Subsidiary
Borrowers and the other Subsidiaries of the Parent and made its own decision to
make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Parent and its
Subsidiaries. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Parent and its Subsidiaries which may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
10.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Parent and without limiting the obligation of the Parent to do so), ratably
according to their pro rata shares of the Aggregate Commitment in effect on the
date on which indemnification is sought under this subsection (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with their pro rata shares of the Aggregate Commitment immediately prior to such
date), from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Notes) be imposed on, incurred by or asserted
against the Administrative Agent in its capacity as such in any way relating to
or arising out of this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the Administrative
Agent's gross negligence or willful misconduct. The agreements in this
subsection shall survive the payment of the Notes and all other amounts payable
hereunder.
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10.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with any of the Borrowers as though
the Administrative Agent were not the Administrative Agent hereunder and under
the other Loan Documents. With respect to its Loans made or renewed by it and
any Note issued to it, the Administrative Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not the Administrative Agent, and the terms
"Lender" and "Lenders" shall include the Administrative Agent in its individual
capacity.
10.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 20 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Majority Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent shall be
approved by the Parent, whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Notes. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this subsection shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the
other Loan Documents.
10.10 The Arranger. The Arranger shall have no duties or
responsibilities, and shall incur no liability, under this Agreement or the
other Loan Documents.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. Neither this Agreement, any Note
or any other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. With the written consent of the Majority Lenders, the Administrative
Agent may, from time to time, (a) enter into with the Borrowers (and, in the
case of any Loan Document other than this Agreement, the Parent or any
Subsidiary, as the case may be, party thereto) written amendments, supplements
or modifications hereto and to the Notes and the other Loan Documents for the
purpose of adding any provisions to this Agreement, the Notes or the other Loan
Documents or changing in any manner the rights of the Lenders or any of the
Borrowers hereunder or thereunder or (b) waive any of the requirements of this
Agreement, the Notes or the other Loan Documents or any Default or Event of
Default and its consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall (i) reduce the amount or extend the
scheduled date of maturity of any Note or of any installment thereof, or reduce
the stated rate of any interest or fee payable hereunder or extend the scheduled
date of any payment thereof or increase the
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amount or extend the expiration date of any Lender's Commitment, in each case
without the consent of each Lender directly affected thereby, or (ii) amend,
modify or waive any provision of this subsection or reduce the percentage
specified in the definition of Majority Lenders, or consent to the assignment or
transfer by the Parent or any of the Subsidiary Borrowers, of any of its rights
and obligations under this Agreement and the other Loan Documents or release all
or substantially all of the Collateral or release the Parent Guarantee or
Subsidiaries Guarantee, in each case without the written consent of all the
Lenders, or (iii) amend, modify or waive any provision of Section 10 without the
written consent of the then Administrative Agent. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Lenders
and shall be binding upon the Parent, the Subsidiary Borrowers, the Lenders, the
Administrative Agent and all future holders of the Notes. In the case of any
waiver, the relevant Borrowers, the Lenders and the Administrative Agent shall
be restored to their former position and rights hereunder and under the
outstanding Notes and any other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
11.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or 3 days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Parent, the Subsidiary
Borrowers and the Administrative Agent, and as set forth in Schedule I in the
case of the other parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto and any future holders of the Notes:
The Parent: Sybron International Corporation
411 East Wisconsin Avenue, 24th Floor
Milwaukee, Wisconsin 53202
Attention: Secretary
Telecopy: (414) 274-6561
Ormco: Ormco Corporation
c/o Sybron International Corporation
411 East Wisconsin Avenue, 24th Floor
Milwaukee, Wisconsin 53202
Attention: Assistant Secretary
Telecopy: (414) 274-6561
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Kerr: Kerr Corporation
c/o Sybron International Corporation
411 East Wisconsin Avenue, 24th Floor
Milwaukee, Wisconsin 53202
Attention: Assistant Secretary
Telecopy: (414) 274-6561
NNI: Nalge Nunc International Corporation
c/o Sybron International Corporation
411 East Wisconsin Avenue, 24th Floor
Milwaukee, Wisconsin 53202
Attention: Assistant Secretary
Telecopy: (414) 274-6561
Erie: Erie Scientific Company
c/o Sybron International Corporation
411 East Wisconsin Avenue, 24th Floor
Milwaukee, Wisconsin 53202
Attention: Assistant Secretary
Telecopy: (414) 274-6561
Barnstead: Barnstead Thermolyne Corporation
c/o Sybron International Corporation
411 East Wisconsin Avenue, 24th Floor
Milwaukee, Wisconsin 53202
Attention: Assistant Secretary
Telecopy: (414) 274-6561
Remel: Remel Inc.
c/o Sybron International Corporation
411 East Wisconsin Avenue, 24th Floor
Milwaukee, Wisconsin 53202
Attention: Assistant Secretary
Telecopy: (414) 274-6561
The Administrative
Agent: The Chase Manhattan Bank
Loan and Agency Services Group
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention: Patricia Ciocco
Telecopy: (212) 552-5662
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provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.3, 2.5, 2.10, 2.14, 2.16, 2.17 or 2.31
shall not be effective until received.
11.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
11.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the Notes and the making of the Loans hereunder.
11.5 Payment of Expenses and Taxes. The Parent agrees (a) to
pay or reimburse the Administrative Agent for all its reasonable out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement,
the Notes and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
fees and disbursements of counsel to the Administrative Agent, (b) to pay or
reimburse each Lender and the Administrative Agent for all its reasonable costs
and expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the Notes, the other Loan Documents and any such
other documents, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent and to the several Lenders
(including the reasonable allocated fees and expenses of in-house counsel), and
(c) to pay, indemnify, and hold each Lender and the Administrative Agent
harmless from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
taxes similar in nature, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the Notes, the other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender and the
Administrative Agent (and their respective directors, officers, employees and
agents) harmless from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement, the
Notes, the other Loan Documents and any such other documents, including, without
limitation, any of the foregoing relating to the violation of, noncompliance
with or liability under, any Environmental Law applicable to the operations of
the Parent, any of its Subsidiaries or any of the Properties (all the foregoing
in this clause (d), collectively, the "indemnified liabilities"), provided, that
the Parent shall have no obligation
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hereunder to the Administrative Agent or any Lender with respect to indemnified
liabilities arising from the gross negligence or willful misconduct of the
Administrative Agent or any such Lender, respectively. The agreements in this
subsection shall survive repayment of the Notes and all other amounts payable
hereunder.
11.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the Parent,
Subsidiary Borrowers, the Lenders, the Administrative Agent, all future holders
of the Notes and their respective successors and assigns, except that (subject
to subsection 7.5) neither the Parent nor any Subsidiary Borrower may assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
(b) Any Lender may, in the ordinary course of its business and
in accordance with applicable law, at any time sell to one or more banks or
other entities ("Participants") with the consent of the Parent (which shall not
be unreasonably withheld or delayed), provided that no such consent of the
Parent shall be required if an Event of Default has occurred and is continuing,
participating interests in any Loan owing to such Lender, any Note held by such
Lender, any Commitment of such Lender or any other interest of such Lender
hereunder and under the other Loan Documents. In the event of any such sale by a
Lender of a participating interest to a Participant, such Lender's obligations
under this Agreement to the other parties to this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the performance
thereof, such Lender shall remain the holder of any such Note for all purposes
under this Agreement and the other Loan Documents, and the Parent, the
Subsidiary Borrowers and the Administrative Agent shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. Each of the
Borrowers agrees that if amounts outstanding under this Agreement and the Notes
are due or unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall be
deemed to have the right of setoff in respect of its participating interest in
amounts owing under this Agreement and any Note to the same extent as if the
amount of its participating interest were owing directly to it as a Lender under
this Agreement or any Note, provided that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in subsection 11.8(a) as fully as if it
were a Lender hereunder. Each Borrower also agrees that each Participant shall
be entitled to the benefits of subsections 2.24, 2.25 and 2.26 with respect to
its participation in the Commitments and the Loans outstanding from time to time
as if it were a Lender; provided that, in the case of subsection 2.25 such
Participant shall have complied with the requirements of said subsection and
provided, further, that no Participant shall be entitled to receive any greater
amount pursuant to any such subsection than the transferor Lender would have
been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such transfer
occurred.
(c) Any Lender may, in the ordinary course of its business and
in accordance with applicable law, at any time and from time to time assign to
any Lender or any Affiliate or Related Fund thereof or, with the consent of the
Administrative Agent and the Parent (which
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shall not be unreasonably withheld or delayed), provided that no such consent of
the Parent shall be required if an Event of Default has occurred and is
continuing, to an additional bank, financial institution or other entity
approved by the Administrative Agent and the Parent ("an Assignee") all or any
part of its rights and obligations under this Agreement and any Note (provided
that any such assignment must be in a minimum amount of the lesser of (A)
$10,000,000, (B) the full amount of the assigning Lender's applicable Commitment
or (C) such lesser amount agreed to by the Administrative Agent and the Parent)
pursuant to an Assignment and Acceptance, substantially in the form of Exhibit
I, executed by such Assignee, such assigning Lender (and, in the case of an
Assignee that is not then a Lender or an Affiliate or Related Fund thereof, by
the Administrative Agent and the Borrower) and delivered to the Administrative
Agent for its acceptance and recording in the Register. Upon such execution,
delivery, acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder with a Commitment as set
forth therein, and (y) the assigning Lender thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such assigning Lender shall cease to be a party hereto).
(d) The Administrative Agent, as agent for the Borrowers,
shall maintain at its address referred to in subsection 11.2 a copy of each
Assignment and Acceptance delivered to it and a register (the "Register") for
the recordation of the names and addresses of the Lenders and the Commitments
and the Commitment Percentages of, and principal amount of the Revolving Credit
Loans and/or Term Loans owing to, each Lender from time to time 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 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). The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrowers, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register as the owner of the
Loan recorded therein for all purposes of this Agreement. The Register shall be
available for inspection by any Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an Affiliate
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thereof, by the Administrative Agent and the Borrower) together with payment to
the Administrative Agent by the assigning Lender or such Assignee of a
registration and processing fee of $4,000 (or $1,000 in the case of an Assignee
that is already a Lender), the Administrative Agent shall (i) promptly accept
such Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register and
give notice of such acceptance and recordation to the Lenders and the Parent. On
or prior to such effective date, each of the Borrowers, at its own expense,
shall execute and deliver to the Administrative Agent (in exchange for the
Revolving Credit Note, CAF Advance Note, Tranche A Term Note, Additional Tranche
A Term Note or Tranche B Term Note, if any, of the assigning Lender) a new
Revolving Credit Note, CAF Advance Note, Tranche A Term Note, Additional Tranche
A Term Note or Tranche B Term Note, as the case may be, to the order of such
Assignee in amounts reflecting the Revolving Credit Commitment or applicable
Term Loan, as the case may be, assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained a Revolving Credit
Commitment or Term Loan hereunder, a new Revolving Credit Note or applicable
Term Note, as the case may be, to the order of the assigning Lender in amounts
reflecting the Revolving Credit Commitment or applicable Term Loan, as the case
may be, retained by it hereunder. Such new Notes shall be dated the Restatement
Effective Date, and shall otherwise be in the form of the Note replaced thereby.
(f) Subject to the provisions of subsection 11.17, each
Borrower authorizes each Lender to disclose to any Participant or Assignee
(each, a "Transferee") and any prospective Transferee any and all financial
information in such Lender's possession concerning the Borrowers and their
Affiliates which has been delivered to such Lender by or on behalf of the
Borrowers pursuant to this Agreement or which has been delivered to such Lender
by or on behalf of the Borrowers in connection with such Lender's credit
evaluation of the Borrowers and their Affiliates prior to becoming a party to
this Agreement.
(g) Nothing herein shall prohibit any Lender from pledging or
assigning any Note to any Federal Reserve Bank in accordance with applicable law
and any Lender that is a fund that invests in bank loans may, without the
consent of the Administrative Agent or the Parent, assign or pledge all or any
portion of its Loans and its Notes to any holders of obligations owed, or
securities issued, by such fund as security for such obligations or securities,
or to any trustee for, or any other representative of, such holders; provided
that any foreclosure or similar action by such trustee shall be subject to the
provisions of this subsection 11.6.
(h) Notwithstanding anything to the contrary contained herein,
any Lender, (a "Granting Lender") may grant to a special purpose funding vehicle
(an "SPC") of such Granting Lender, identified as such in writing from time to
time by the Granting Lender to the Administrative Agent, the option to provide
to the Borrowers all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to such Borrower pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by any SPC to
make any Loan, (ii) if an SPC elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof and (iii) no SPC or
Granting Lender shall be entitled to receive any greater amount pursuant to
subsection 2.23, 2.24 or 2.25 than the Granting Lender would have been entitled
to
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received had the Granting Lender not otherwise granted such SPC the option to
provide any Loan to the Borrowers. The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement for which a Lender would otherwise be liable for so long
as, and to the extent that, the related Granting Lender makes such payment. In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any SPC, it will not institute against, or
join any other person in instituting against, such SPC any bankruptcy,
reorganization, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof.
Notwithstanding the foregoing, the Granting Lender unconditionally agrees to
indemnify the Borrowers, the Administrative Agent and each Lender against all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
incurred by or asserted against such Borrower, the Administrative Agent or such
Lender, as the case may be, in any way relating to or arising as a consequence
of any such forbearance or delay in the initiation of any such proceeding
against its SPC. Each party hereto hereby acknowledges and agrees that no SPC
shall have any voting rights hereunder and that the voting rights attributable
to any extensions of credit made by an SPC shall be exercised only by the
relevant Granting Lender. Each Granting Lender shall serve as the administrative
agent and attorney in fact for its SPC and shall on behalf of its SPC receive
any and all payments made for the benefit of such SPC and take all actions
hereunder to the extent, if any, such SPC shall have any rights hereunder. The
Borrowers, the Administrative Agent and the Lenders may rely thereon without any
requirement that the SPC sign or acknowledge the same. In addition,
notwithstanding anything to the contrary contained in this Section, any SPC may
(i) with notice to, but without the prior written consent of, the Borrowers and
the Administrative Agent, assign all or a portion of its interest in any Loans
to the Granting Lender and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer
or provider of any surety, guarantee or credit or liquidity enhancement to such
SPC.
11.7 Adjustments; Set-off. (a) If any Lender (a "benefitted
Lender") shall at any time receive any payment of all or part of the Loans owing
to it, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 8(f) or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans then due and owing, or
interest thereon then due and owing, such benefitted Lender shall purchase for
cash from such other Lender a participating interest in such portion of each
such other Lender's Revolving Credit Loans, Term Loans or CAF Advances, as the
case may be, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from
<PAGE> 99
93
such benefitted Lender, such purchase shall be rescinded, and the purchase price
and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrowers, any such notice being expressly waived by the Borrowers to the extent
permitted by applicable law, upon any amount becoming due and payable by any
Borrower hereunder or under the Notes (whether at the stated maturity, by
acceleration or otherwise) to set-off and appropriate and apply against such
amount 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 or any branch or
agency thereof to or for the credit or the account of such Borrower. Each Lender
agrees promptly to notify the Parent and the Administrative Agent after any such
set-off and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such set-off and application.
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:
<PAGE> 100
94
(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 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 Restatement Effective Date, the Existing Credit
Agreement shall be amended, restated and superseded in its entirety as provided
herein. 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 Restatement Effective Date; (b) such
"Obligations" are in all respects continuing (as amended and restated hereby)
with only the terms thereof being modified to the extent 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 Administrative Agent and the
<PAGE> 101
95
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.
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) to the National Association of Insurance Commissioners or any similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's investment portfolio in connection with ratings
issued with respect to such Lender, (h) to any direct or indirect contractual
counterparty in swap agreements or such contractual counterparty's professional
advisor (so long as such contractual counterparty or professional advisor to
such contractual counterparty agrees to be bound by the provisions of this
subsection 11.17), (i) in connection with the exercise of any remedy hereunder
or under the other Loan Documents or (j) with the Parent's prior written
consent. The agreements in this subsection shall survive repayment of the Notes
and all other amounts payable hereunder.
<PAGE> 102
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:
--------------------------------------
Title:
ORMCO CORPORATION
By:
--------------------------------------
Title:
KERR CORPORATION
By:
--------------------------------------
Title:
NALGE NUNC INTERNATIONAL CORPORATION
By:
--------------------------------------
Title:
ERIE SCIENTIFIC COMPANY
By:
--------------------------------------
Title:
<PAGE> 103
BARNSTEAD THERMOLYNE CORPORATION
By:
--------------------------------------
Title:
REMEL INC.
By:
--------------------------------------
Title:
<PAGE> 104
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a
Lender
By:
-----------------------
Title:
<PAGE> 105
ABN AMRO BANK N.V.
By:
-----------------------
Title:
By:
-----------------------
Title:
<PAGE> 106
BANK OF AMERICA, N.A., formerly known as
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:
-----------------------
Title:
<PAGE> 107
BANK OF MONTREAL
By:
--------------------------------------
Title:
<PAGE> 108
BANK ONE, WISCONSIN
By:
---------------------------------
Title:
<PAGE> 109
THE BANK OF NOVA SCOTIA
By:
--------------------------------------
Title:
<PAGE> 110
BANK OF SCOTLAND
By:
---------------------------------
Title:
<PAGE> 111
NATEXIS BANQUE/ BFCE
By:
--------------------------------------
Title:
By:
--------------------------------------
Title:
<PAGE> 112
PARIBAS
By:
---------------------------------
Title:
By:
---------------------------------
Title:
<PAGE> 113
CREDIT AGRICOLE INDOSUEZ
By:
--------------------------------------
Title:
By:
--------------------------------------
Title:
<PAGE> 114
COMERICA BANK
By:
--------------------------------
Title:
<PAGE> 115
CREDIT LYONNAIS CHICAGO BRANCH
By:
--------------------------------------
Title:
<PAGE> 116
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK CAYMAN
ISLAND BRANCH
By:
--------------------------------
Title:
By:
--------------------------------
Title:
<PAGE> 117
U.S. BANK NATIONAL ASSOCIATION
By:
-------------------------------------
Title:
<PAGE> 118
FLEET NATIONAL BANK
By:
-------------------------------
Title:
<PAGE> 119
THE FUJI BANK, LIMITED
By:
--------------------------------------
Title:
<PAGE> 120
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By:
-------------------------------------
Title:
<PAGE> 121
MELLON BANK, N.A.
By:
--------------------------------------
Title:
<PAGE> 122
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By:
------------------------------------
Title:
<PAGE> 123
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:
--------------------------------------
Title:
<PAGE> 124
THE FIRST NATIONAL BANK OF CHICAGO
By:
--------------------------------
Title:
<PAGE> 125
SOCIETE GENERALE
By:
--------------------------------------
Title:
By:
--------------------------------------
Title:
<PAGE> 126
THE SUMITOMO BANK, LTD.
CHICAGO BRANCH
By:
-------------------------------
Title:
<PAGE> 127
THE BANK OF NEW YORK
By:
--------------------------------------
Title:
<PAGE> 128
THE SANWA BANK, LIMITED
By:
---------------------------------
Title:
<PAGE> 129
BANQUE NATIONALE DE PARIS
By:
--------------------------------------
Title:
By:
--------------------------------------
Title:
<PAGE> 130
BHF (USA) CAPITAL CORPORATION
By:
-----------------------------------
Title:
By:
-----------------------------------
Title:
<PAGE> 131
FIRST UNION NATIONAL BANK
By:
--------------------------------------
Title:
<PAGE> 132
FIRSTAR BANK MILWAUKEE, N.A.
By:
-----------------------------------
Title:
<PAGE> 133
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
--------------------------------------
Title:
<PAGE> 134
BANCA COMMERCIALE ITALIANA CHICAGO
BRANCH
By:
----------------------------------
Title:
By:
----------------------------------
Title:
<PAGE> 135
BANK HAPOALIM, B.M.
By:
--------------------------------------
Title:
By:
--------------------------------------
Title:
<PAGE> 136
M&I MARSHALL & ILSLEY BANK
By:
-----------------------------------
Title:
By:
-----------------------------------
Title:
<PAGE> 137
MICHIGAN NATIONAL BANK
By:
--------------------------------------
Title:
<PAGE> 138
NATIONAL CITY BANK
By:
----------------------------------
Title:
<PAGE> 139
IKB DEUTSCHE INDUSTRIEBANK AG
LUXEMBOURG BRANCH
By:
-------------------------------------
Title:
<PAGE> 140
BAYERISCHE HYPO- UND VEREINSBANK
AG, NEW YORK BRANCH
By:
---------------------------------
Title:
By:
---------------------------------
Title:
<PAGE> 141
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN
By:
-------------------------------------
Title:
By:
-------------------------------------
Title:
<PAGE> 142
APPALOOSA
By:
---------------------------------
Title:
<PAGE> 143
BALANCED HIGH YIELD FUND I LTD.
By:
-------------------------------------
Title:
<PAGE> 144
CONSECO CAPITAL MANAGEMENT, INC.
By:
---------------------------------
Title:
<PAGE> 145
FC CBO
By:
-------------------------------------
Title:
<PAGE> 146
INDOSUEZ CAPITAL FUNDING
By:
----------------------------------
Title:
<PAGE> 147
PENDRAGON CAPITAL LTD.
By:
-------------------------------------
Title:
<PAGE> 148
PPM AMERICA, INC.,
as attorney in fact, on behalf of
Jackson National Life Insurance Company
By:
-------------------------------------
Title:
<PAGE> 149
KEMPER FLOATING RATE FUND
By:
-------------------------------------
Title:
<PAGE> 150
STANFIELD CAPITAL
By:
-------------------------------------
Title:
<PAGE> 151
TRUST COMPANY OF THE WEST
By:
-------------------------------------
Title:
<PAGE> 152
KZH CRESCENT LLC
By:
-------------------------------------
Title:
<PAGE> 153
KZH CRESCENT-3 LLC
By:
-------------------------------------
Title:
<PAGE> 154
UNITED OF OMAHA LIFE INSURANCE
COMPANY
By: TCW Asset Management Company,
its Investment Advisor
By:
-------------------------------------
Title:
<PAGE> 155
SEQUILS I, LTD.
By: TCW Advisors, Inc. as its Collateral
Manager
By:
-------------------------------------
Title:
<PAGE> 156
TYLER TRADING, INC.
By:
-------------------------------------
Title:
<PAGE> 157
OLYMPIC FUNDING TRUST, SERIES 1999-1
By:
-------------------------------------
Title:
<PAGE> 158
GENERAL ELECTRIC CAPITAL
CORPORATION
By:
-------------------------------------
Title:
<PAGE> 159
ANNEX A
PRICING GRID
<TABLE>
<CAPTION>
------------------------------------------- ----------------------------------
REVOLVING CREDIT LOANS,
TRANCHE A TERM LOANS AND TRANCHE B TERM LOANS
ADDITIONAL TRANCHE A TERM LOANS
------------------------------------------- ----------------------------------
ABR LOANS EURODOLLAR LOANS ABR LOANS EURODOLLAR LOANS
<S> <C> <C> <C> <C>
0% 0.500% 1.00% 2.00%
LEVEL 1
LEVEL 2 0% 0.625% 1.00% 2.00%
LEVEL 3 0% 0.750% 1.00% 2.00%
LEVEL 4 0% 0.875% 1.25% 2.25%
</TABLE>
<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 THIRD 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 THIRD AMENDED AND RESTATED
CREDIT AGREEMENT.
$ New York, New York
-----
-----------
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
The 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 2.19 of such
Credit Agreement.
The holder of this Note is authorized to endorse on the appropriate
schedules annexed hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof the date, Type and amount
of each Revolving Credit Loan made by such holder to each Revolving Credit
Borrower pursuant to the Credit Agreement and the date and amount of each
payment or prepayment of principal thereof, each continuation thereof, each
conversion of all or a portion thereof to another Type and, in the case of
Eurodollar Loans, the length of each Interest Period and the Eurodollar Rate
with respect thereto. Each such endorsement shall constitute prima facie
evidence of the accuracy of the information endorsed. The failure to make any
such endorsement shall not affect the obligations of the Revolving Credit
Borrower in respect of such Revolving Credit Loan.
This Note (a) is one of the Revolving Credit Notes referred to in the
Third Amended and Restated Credit Agreement dated as of July , 1999 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Parent, Kerr, NNI, Ormco
<PAGE> 2
2
Corporation, a Delaware corporation, Erie Scientific Company, a Delaware
corporation, Barnstead Thermolyne Corporation, a Delaware corporation, Remel,
Inc., a Wisconsin 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:
KERR CORPORATION
By:
---------------------------------------
Name:
Title:
<PAGE> 3
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
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans Notation Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 5
Schedule A-2
to Revolving Credit Note
KERR
OANS, CONVERSIONS AND REPAMENTS OF ABR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount Amount of ABR Loans
Converted to Amount of Principal of Converted to Unpaid Principal
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans Notation Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 6
Schedule A-3
to Revolving Credit Note
NNI
OANS, CONVERSIONS AND REPAMENTS OF ABR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount Amount of ABR Loans
Converted to Amount of Principal of Converted to Unpaid Principal
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans Notation Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 7
Schedule B-1
to Revolving Credit Note
PARENT
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount of Amount of Unpaid Principal
Interest Period and Principal of Eurodollar Balance of
Amount of Amount Converted Eurodollar Rate with Eurodollar Loans Loans Converted to Eurodollar Notation
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid ABR Loans 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 of Amount of Unpaid Principal
Interest Period and Principal of Eurodollar Balance of
Amount of Amount Converted Eurodollar Rate with Eurodollar Loans Loans Converted to Eurodollar Notation
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid ABR Loans 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 of Amount of Unpaid Principal
Interest Period and Principal of Eurodollar Balance of
Amount of Amount Converted Eurodollar Rate with Eurodollar Loans Loans Converted to Eurodollar Notation
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid ABR Loans Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 1
EXHIBIT 4.3
EXHIBIT B-1
TO CREDIT AGREEMENT
FORM OF TRANCHE A TERM NOTE
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND
PROVISIONS OF THE THIRD 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 THIRD AMENDED AND RESTATED
CREDIT AGREEMENT.
$ New York, New York
-----
------------
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 2.12 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 Tranche A Term Loan (or portion thereof) made by the
Lender to such Borrower pursuant to subsection 2.11 of the Credit Agreement, as
hereinafter defined. The principal amount of such Tranche A Term Loan shall be
paid in consecutive quarterly installments, payable on the last day of each
October, January, April and July commencing on October 31, 2000 in accordance
with subsection 2.12 of the Credit Agreement. Each Borrower, severally, further
agrees to pay interest in like money at such office on the unpaid principal
amount of Tranche A Term Loans of such Borrower from time to time outstanding at
the rates and on the dates specified in subsection 2.19 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 Tranche A 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 endorsed. The failure to make any such endorsement shall not
affect the obligations of the Borrower in respect of such Tranche A Term Loan.
<PAGE> 2
This Note (a) is one of the Tranche A Term Notes referred to in the
Third Amended and Restated Credit Agreement dated as of July , 1999 (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, Remel Inc., a Wisconsin 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.
ORMCO CORPORATION
By:
---------------------------------------
Name:
Title:
KERR CORPORATION
By:
---------------------------------------
Name:
Title:
<PAGE> 3
NALGE NUNC INTERNATIONAL CORPORATION
By:
---------------------------------------
Name:
Title:
ERIE SCIENTIFIC COMPANY
By:
---------------------------------------
Name:
Title:
BARNSTEAD THERMOLYNE CORPORATION
By:
---------------------------------------
Name:
Title:
<PAGE> 4
Schedule A-1
to Tranche A 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
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans Notation Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 5
Schedule A-2
to Tranche A 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
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans Notation Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 6
Schedule A-3
to Tranche A 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
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans Notation Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 7
Schedule A-4
to Tranche A 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
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans Notation Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 8
Schedule A-5
to Tranche A 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
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans Notation Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 9
Schedule B-1
to Tranche A Term Note
ORMCO
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Interest Period and Amount of Amount of
Eurodollar Rate Principal of Eurodollar Unpaid Principal
Amount of Amount Converted with Eurodollar Loans Converted to Balance of Eurodollar Notation
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid ABR Loans Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 10
Schedule B-2
to Tranche A Term Note
KERR
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Interest Period and Amount of Amount of
Eurodollar Rate Principal of Eurodollar Unpaid Principal
Amount of Amount Converted with Eurodollar Loans Converted to Balance of Eurodollar Notation
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid ABR Loans Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 11
Schedule B-3
to Tranche A Term Note
NNI
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Interest Period and Amount of Amount of
Eurodollar Rate Principal of Eurodollar Unpaid Principal
Amount of Amount Converted with Eurodollar Loans Converted to Balance of Eurodollar Notation
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid ABR Loans Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 12
Schedule B-4
to Tranche A Term Note
ERIE
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Interest Period and Amount of Amount of
Eurodollar Rate Principal of Eurodollar Unpaid Principal
Amount of Amount Converted with Eurodollar Loans Converted to Balance of Eurodollar Notation
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid ABR Loans Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 13
Schedule B-5
to Tranche A Term Note
BARNSTEAD
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Interest Period and Amount of Amount of
Eurodollar Rate Principal of Eurodollar Unpaid Principal
Amount of Amount Converted with Eurodollar Loans Converted to Balance of Eurodollar Notation
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid ABR Loans Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 1
EXHIBIT 4.4
EXHIBIT B-2
TO CREDIT AGREEMENT
FORM OF ADDITIONAL TRANCHE A TERM NOTE
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND
PROVISIONS OF THE THIRD 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 THIRD AMENDED AND RESTATED
CREDIT AGREEMENT.
$ New York, New York
-----
-------------
FOR VALUE RECEIVED, Nalge Nunc International Corporation ("NNI"), a
Delaware corporation (the "Borrower"), 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 2.29 of the Credit Agreement, the lesser of (a) the principal
amount of DOLLARS ($ ), and (b) the aggregate unpaid principal amount
of the Additional Tranche A Term Loan (or portion thereof) made by the Lender to
the Borrower pursuant to subsection 2.28 of the Credit Agreement, as hereinafter
defined. The principal amount of such Additional Tranche A Term Loan shall be
paid in accordance with subsection 2.29 of the Credit Agreement. The Borrower
further agrees to pay interest in like money at such office on the unpaid
principal amount of Additional Tranche A Term Loans of the Borrower from time to
time outstanding at the rates and on the dates specified in subsection 2.19 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 Additional Tranche A Term Loan made by the holder to the 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 endorsed. The failure to make any such endorsement
shall not affect the obligations of the Borrower in respect of such Additional
Tranche A Term Loan.
This Note (a) is one of the Additional Tranche A Term Notes referred to
in the Third Amended and Restated Credit Agreement dated as of July __, 1999 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Sybron International Corporation, a Wisconsin corporation,
Ormco Corporation, a Delaware corporation, Kerr Corporation, a Delaware
corporation, NNI, Erie Scientific Company, a Delaware corporation, Barnstead
Thermolyne
<PAGE> 2
2
Corporation, a Delaware corporation, Remel Inc., a Wisconsin 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.
NALGE NUNC INTERNATIONAL CORPORATION
By:
---------------------------------------
Name:
Title:
<PAGE> 3
Schedule A
to Additional Tranche A 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
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans Notation Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 4
Schedule B
to Additional Tranche A Term Note
NNI
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount of Amount of Unpaid Principal
Interest Period and Principal of Eurodollar Balance of
Amount of Amount Converted Eurodollar Rate with Eurodollar Loans Loans Converted to Eurodollar Notation
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid ABR Loans Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 1
EXHIBIT 4.5
EXHIBIT B-3
TO CREDIT AGREEMENT
FORM OF TRANCHE B TERM NOTE
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND
PROVISIONS OF THE THIRD 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 THIRD AMENDED AND RESTATED
CREDIT AGREEMENT.
$ New York, New York
----- July __, 1999
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, Barnstead Thermolyne Corporation ("Barnstead"), a Delaware
corporation, and Remel Inc. ("Remel"), a Wisconsin 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 2.32 of the Credit Agreement, the lesser of (a) the principal amount
of (i) in the case of each of Ormco, Barnstead and Remel individually,
FORTY-FIVE MILLION DOLLARS ($45,000,000), (ii) in the case of Kerr, SEVENTY-FIVE
MILLION DOLLARS ($75,000,000), and (iii) in the case of NNI, NINETY MILLION
DOLLARS ($90,000,000), and (b) the aggregate unpaid principal amount of the
Tranche B Term Loan (or portion thereof) made by the Lender to such Borrower
pursuant to subsection 2.30 of the Credit Agreement, as hereinafter defined. The
principal amount of such Tranche B Term Loan shall be paid in consecutive
quarterly installments, payable on the last day of each October, January, April
and July commencing on January 31, 2000 in accordance with subsection 2.32 of
the Credit Agreement. Each Borrower, severally, further agrees to pay interest
in like money at such office on the unpaid principal amount of Tranche B Term
Loans of such Borrower from time to time outstanding at the rates and on the
dates specified in subsection 2.19 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 Tranche B 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 endorsed. The failure to make any such endorsement shall not
affect the obligations of the Borrower in respect of such Tranche B Term Loan.
<PAGE> 2
2
This Note (a) is one of the Tranche B Term Notes referred to in the
Third Amended and Restated Credit Agreement dated as of July , 1999 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Sybron International Corporation, a Wisconsin corporation,
Ormco, Kerr, NNI, Erie Scientific Company, a Delaware corporation, Barnstead,
Remel, 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
NALGE NUNC INTERNATIONAL
CORPORATION
By:
---------------------------------------
Name:
Title:
BARNSTEAD THERMOLYNE
By:
---------------------------------------
Name:
Title:
REMEL INC.
By:
---------------------------------------
Name:
Title:
<PAGE> 4
Schedule A-1
to Tranche B 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
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans Notation Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 5
Schedule A-2
to Tranche B 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
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans Notation Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 6
Schedule A-3
to Tranche B 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
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans Notation Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 7
Schedule A-4
to Tranche B 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
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans Notation Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 8
Schedule A-5
to Tranche B Term Note
REMEL
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount Amount of ABR Loans
Converted to Amount of Principal of Converted to Unpaid Principal
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans Notation Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 9
Schedule B-1
to Tranche B Term Note
ORMCO
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount of Amount of Unpaid Principal
Interest Period and Principal of Eurodollar Balance of
Amount of Amount Converted Eurodollar Rate with Eurodollar Loans Loans Converted to Eurodollar Notation
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid ABR Loans Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 10
Schedule B-2
to Tranche B Term Note
KERR
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount of Amount of Unpaid Principal
Interest Period and Principal of Eurodollar Balance of
Amount of Amount Converted Eurodollar Rate with Eurodollar Loans Loans Converted to Eurodollar Notation
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid ABR Loans Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE> 11
Schedule B-3
to Tranche B Term Note
NNI
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount of Amount of Unpaid Principal
Interest Period and Principal of Eurodollar Balance of
Amount of Amount Converted Eurodollar Rate with Eurodollar Loans Loans Converted to Eurodollar Notation
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid ABR Loans Loans Made By
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<S> <C> <C> <C> <C> <C> <C> <C>
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</TABLE>
<PAGE> 12
Schedule B-4
to Tranche B Term Note
BARNSTEAD
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount of Amount of Unpaid Principal
Interest Period and Principal of Eurodollar Balance of
Amount of Amount Converted Eurodollar Rate with Eurodollar Loans Loans Converted to Eurodollar Notation
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid ABR Loans Loans Made By
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<S> <C> <C> <C> <C> <C> <C> <C>
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</TABLE>
<PAGE> 13
Schedule B-5
to Tranche B Term Note
REMEL
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Amount of Amount of Unpaid Principal
Interest Period and Principal of Eurodollar Balance of
Amount of Amount Converted Eurodollar Rate with Eurodollar Loans Loans Converted to Eurodollar Notation
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid ABR Loans Loans Made By
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<S> <C> <C> <C> <C> <C> <C> <C>
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</TABLE>
<PAGE> 1
EXHIBIT 4.6
EXHIBIT C
TO CREDIT AGREEMENT
FORM OF SWING LINE NOTE
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND
PROVISIONS OF THE THIRD 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 THIRD AMENDED AND RESTATED
CREDIT AGREEMENT.
$ New York, New York
----
--------------
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
2.19 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 Third
Amended and Restated Credit Agreement dated as of July __, 1999 (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, Remel Inc., a Wisconsin
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
<PAGE> 2
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 Note
LOANS AND REPAYMENTS OF SWING LINE LOANS
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------
Unpaid Principal
Amount of Swing Line Amount of Principal of Balance of Swing Line
Date Loans Swing Line Loans Repaid Loans Notation Made By
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
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</TABLE>
<PAGE> 1
EXHIBIT 4.7
EXHIBIT D
FORM OF
FOURTH AMENDED AND RESTATED PARENT PLEDGE AGREEMENT
FOURTH AMENDED AND RESTATED PLEDGE AGREEMENT, dated as of July
, 1999, 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 Third Amended and
Restated Credit Agreement, dated as of July , 1999 (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"), Remel
Inc., a Wisconsin corporation ("Remel"; Ormco, Kerr, NNI, Erie, Barnstead and
Remel 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 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
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 Fourth 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.
<PAGE> 2
"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 of the Parent under Section
9 of the Credit Agreement), the Notes, the other Loan Documents and any
other document made, delivered or given in connection therewith or
herewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including, without
limitation, all fees and disbursements of counsel to the Administrative
Agent or to the Lenders that are required to be paid by the Parent
pursuant to the terms of the Credit Agreement) or otherwise and (b) all
obligations of the Parent to any Lender or an Affiliate of any Lender
under or in connection with any Interest Rate Agreement or foreign
exchange contract.
"Obligors": the collective reference to the companies
identified on Schedule 2 hereto, as such Schedule may be amended from
time to time.
"Pledged Notes": the promissory note or notes of the Obligors
identified on Schedule 2, together with all substitutes, replacements
or refinancings thereto that may be issued by any Obligor to the Parent
while this Agreement is in effect.
"Pledged Stock": the shares of capital stock listed on
Schedule 1 hereto, together with all stock certificates, options or
rights of any nature whatsoever that may be issued or granted by any
Issuer to the Parent in respect of the Pledged Stock while this
Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the State of New
York on the date hereof and, in any event, shall include, without
limitation, all dividends or other income from the Pledged Stock and
the Pledged Notes, collections thereon or distributions with respect
thereto.
"Securities Act": the Securities Act of 1933, as amended.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section and
paragraph references are to this Agreement unless otherwise specified.
<PAGE> 3
3
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Pledge; Grant of Security Interest. The Parent hereby
delivers to the Administrative Agent, for the ratable benefit of the Lenders,
all the Pledged Stock and the Pledged Notes and hereby grants to the
Administrative Agent, for the ratable benefit of the Lenders, a first security
interest in the Collateral, as collateral security for the prompt and complete
payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations.
3. Stock Powers and Allonges. (a) Concurrently with the
delivery to the Administrative Agent of each certificate representing one or
more shares of Pledged Stock to the Administrative Agent, the Parent shall
deliver an undated stock power covering such certificate, duly executed in blank
by the Parent with, if the Administrative Agent so requests, signature
guaranteed.
(b) Concurrently with the delivery to the Administrative Agent
of each note representing one of the Pledged Notes, the Parent shall deliver
executed allonges endorsing such notes to "Bearer" with, if the Administrative
Agent so requests, signature guaranteed.
4. Representations and Warranties. The Parent represents and
warrants that:
(1) 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;
(2) 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;
(3) all the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable (except as provided in Wis.
Stat. ss.180.0622(2)); 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;
(4) 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;
(5) 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
<PAGE> 4
4
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;
(6) on the Restatement Effective 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 (i) the
capital stock of entities which do not meet the criteria set forth in the
definition of Pledge Guidelines or which otherwise constitute the capital stock
of a Specified Entity and (ii) the capital stock of Microgenics Corporation;
(7) 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
(8) 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:
(1) 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
<PAGE> 5
5
delivered to the Administrative Agent to be held by it hereunder as additional
collateral security for the Obligations. If any sums of money or property so
paid or distributed in respect of the Pledged Stock or the Pledged Notes shall
be received by the Parent, the Parent shall, until such money or property is
paid or delivered to the Administrative Agent, hold such money or property in
trust for the Lenders, segregated from other funds of the Parent, as additional
collateral security for the Obligations. Notwithstanding the foregoing, in no
event shall more than 65% of the issued and outstanding shares of stock, or any
property distributed in respect thereof, of any Issuer which is a Controlled
Foreign Corporation constitute collateral security for the Obligations of the
Parent.
(2) 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.
(3) 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.
(4) 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.
(5) 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.
<PAGE> 6
6
(6) Without the prior written consent of the Administrative
Agent, the Parent will not grant any extension (other than, so long as no
Default or Event of Default shall exist, extensions granted in accordance with
prudent business judgment) of the time of payment of any Pledged Note,
compromise, compound or settle the same for less than the full amount thereof,
release, wholly or partially, any Person liable for the payment thereof, or
allow any credit or discount whatsoever thereon.
(7) 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
<PAGE> 7
7
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 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
<PAGE> 8
8
Obligor or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, assign, give option or options to
purchase or otherwise dispose of and deliver the Collateral or any part thereof
(or contract to do any of the foregoing), in one or more parcels at public or
private sale or sales, in the over-the-counter market, at any exchange, broker's
board or office of the Administrative Agent or any Lender or elsewhere upon such
terms and conditions as it may deem advisable and at such prices as it may deem
best, for cash or on credit or for future delivery without assumption of any
credit risk. The Administrative Agent or any Lender shall have the right upon
any such public sale or sales, and, to the extent permitted by law, upon any
such private sale or sales, to purchase the whole or any part of the Collateral
so sold, free of any right or equity of redemption in the Parent, which right or
equity is hereby waived or released. The Administrative Agent shall apply any
Proceeds from time to time held by it and the net proceeds of any such
collection, recovery, receipt, appropriation, realization or sale, after
deducting all reasonable costs and expenses of every kind incurred in respect
thereof or incidental to the care or safekeeping of any of the Collateral or in
any way relating to the Collateral or the rights of the Administrative Agent and
the Lenders hereunder, including, without limitation, reasonable attorneys' fees
and disbursements of counsel to the Administrative Agent, to the payment in
whole or in part of the Obligations, in such order as the Administrative Agent
may elect, and only after such application and after the payment by the
Administrative Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the Code, need the
Administrative Agent account for the surplus, if any, to the Parent. To the
extent permitted by applicable law, the Parent waives all claims, damages and
demands it may acquire against the Administrative Agent or any Lender arising
out of the exercise by them of any rights hereunder, except such claims and
damages arising out of the gross negligence or willful misconduct of the
Administrative Agent or any such Lender. If any notice of a proposed sale or
other disposition of Collateral shall be required by law, such notice shall be
deemed reasonable and proper if given at least 10 days before such sale or other
disposition. The Parent shall remain liable for any deficiency if the proceeds
of any sale or 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
<PAGE> 9
9
Securities Act and the rules and regulations of the Securities and Exchange
Commission applicable thereto. The Parent agrees to cause such Issuer to comply
with the provisions of the securities or "Blue Sky" laws of any and all
jurisdictions which the Administrative Agent shall designate and to make
available to its security holders, as soon as practicable, an earnings statement
(which need not be audited) which will satisfy the provisions of Section 11(a)
of the Securities Act.
(b) The Parent recognizes that the Administrative Agent may be
unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. The
Parent acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Administrative
Agent shall be under no obligation to delay a sale of any of the Pledged Stock
for the period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
(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.
<PAGE> 10
10
11. Administrative Agent's Appointment as Attorney-in-Fact.
(a) The Parent hereby irrevocably constitutes and appoints the Administrative
Agent and any officer or agent of the Administrative Agent, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Parent and in the name of the
Parent or in the Administrative Agent's own name, from time to time in the
Administrative Agent's discretion, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement, including, without limitation, any financing
statements, endorsements, assignments or other instruments of transfer.
(b) The Parent hereby ratifies all that said attorneys shall
lawfully do or cause to be done pursuant to the power of attorney granted in
paragraph 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.
<PAGE> 11
11
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 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.
<PAGE> 12
12
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:
-------------------------------
Title:
<PAGE> 14
SCHEDULE 1
TO PLEDGE AGREEMENT
<TABLE>
<CAPTION>
DESCRIPTION OF PLEDGED STOCK
- ------------------------------------- -------------- --------------------- ----------------- -----------------------
No. of Shares Total No. of Shares
Class of Stock Certificate Pledged Outstanding
Issuer Stock No.
<S> <C> <C> <C> <C>
</TABLE>
[Attached]
<PAGE> 15
SCHEDULE 2
TO PLEDGE AGREEMENT
PLEDGED NOTES
Original
Date of Principal
Obligor Note Amount
- ------- ---- ------
$
------
<PAGE> 16
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 July , 1999, 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.
SYBRON DENTAL SPECIALTIES, INC.
SYBRON TRANSITION CORP.
MEXOSERV COMPANY
SYBRON LABORATORY PRODUCTS
CORPORATION
NATIONAL SCIENTIFIC COMPANY
PINNACLE PRODUCTS, INC.
-------------------------------------
By: John Buono
Title: 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 4.8
EXHIBIT E
FORM OF
FOURTH AMENDED AND RESTATED SUBSIDIARIES GUARANTEE
FOURTH AMENDED AND RESTATED GUARANTEE, dated as of July ,
1999, 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 Third Amended and
Restated Credit Agreement, dated as of July , 1999 (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"), Remel
Inc., a Wisconsin corporation ("Remel"; Ormco, Kerr, NNI, Erie, Barnstead and
Remel 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 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. (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.
<PAGE> 2
2
(b) As used herein "Obligations" means (i) the unpaid
principal of and interest on (including, without limitation, interest accruing
after the maturity of the Loans and interest accruing on or after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Parent or any of the
Subsidiary Borrowers, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the Notes and all other obligations and
liabilities of the Loan Parties to the Administrative Agent or to the Lenders,
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, the Credit Agreement, the Notes, any other Loan Document and any other
document made, delivered or given in connection herewith or therewith, whether
on account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all fees and disbursements of
counsel to the Administrative Agent or to the Lenders) or otherwise and (ii) all
obligations of any of the Borrowers to any Lender or any Affiliate of any Lender
under or in connection with any Interest Rate Agreement or foreign exchange
contract.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Guarantee shall refer to this Guarantee as a
whole and not to any particular provision of this Guarantee, and Section and
paragraph references are to this Guarantee unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Guarantee. (a) 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).
(b) Anything herein or in any other Loan Document to the
contrary notwithstanding, the maximum liability of each Guarantor hereunder and
under the other Loan Documents shall in no event exceed the amount which can be
guaranteed by such Guarantor under applicable federal and state laws relating to
the insolvency of debtors.
(c) Each Guarantor further agrees to pay any and all expenses
(including, without limitation, all fees and disbursements of counsel) which may
be paid or incurred by the Administrative Agent or any Lender in enforcing, or
obtaining advice of counsel in respect of, any rights with respect to, or
collecting, any or all of the Obligations and/or enforcing any rights with
respect to, or collecting against, such Guarantor under this Guarantee. This
Guarantee shall remain in full force and effect until the Obligations are paid
in full and the Commitments are terminated, notwithstanding that from time to
time prior thereto the Borrowers may be free from any Obligations.
<PAGE> 3
3
(d) Each Guarantor agrees that the Obligations may at any time
and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing this Guarantee or affecting the rights and remedies
of the Administrative Agent or any Lender hereunder.
(e) No payment or payments made by any of the Borrowers, any
of the Guarantors, any other guarantor or any other Person or received or
collected by the Administrative Agent or any Lender from any of the Borrowers,
any of the Guarantors, any other guarantor or any other Person by virtue of any
action or proceeding or any set-off or appropriation or application at any time
or from time to time in reduction of or in payment of the Obligations shall be
deemed to modify, reduce, release or otherwise affect the liability of any
Guarantor hereunder which shall, notwithstanding any such payment or payments
other than payments made by such Guarantor in respect of the Obligations or
payments received or collected from such Guarantor in respect of the
Obligations, remain liable for the Obligations up to the maximum liability of
such Guarantor hereunder until the Obligations are paid in full and the
Commitments are terminated.
(f) Each Guarantor agrees that whenever, at any time, or from
time to time, it shall make any payment to the Administrative Agent or any
Lender on account of its liability hereunder, it will notify the Administrative
Agent in writing that such payment is made under this Guarantee for such
purpose.
3. Right of Contribution. Each Guarantor hereby agrees that to
the extent that a Guarantor shall have paid more than its proportionate share of
any payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder who has not paid its
proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 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
<PAGE> 4
4
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 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
<PAGE> 5
5
or to collect any payments from any such Borrower or any such other Guarantor or
guarantor or any release of any such Borrower or such other Guarantor or
guarantor shall not relieve any of the Guarantors in respect of which a demand
or collection is not made or any of the Guarantors not so released of their
several obligations or liabilities hereunder, and shall not impair or affect the
rights and remedies, express or implied, or as a matter of law, of the
Administrative Agent or any Lender against any of the Guarantors. For the
purposes hereof "demand" shall include the commencement and continuance of any
legal proceedings.
7. Guarantee Absolute and Unconditional. Each Guarantor waives
any and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent or
any Lender upon this Guarantee or acceptance of this Guarantee, the Obligations,
and any of them, shall conclusively be deemed to have been created, contracted
or incurred, or renewed, extended, amended or waived, in reliance upon this
Guarantee; and all dealings between any of the Borrowers and any of the
Guarantors, on the one hand, and the Administrative Agent and the Lenders, on
the other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon this Guarantee. Each Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon any of the Borrowers or any of the Guarantors with respect to the
Obligations. Each Guarantor understands and agrees that this Guarantee shall be
construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity, regularity or enforceability of the Credit
Agreement, any Note or any other Loan Document, any of the Obligations or any
other collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Administrative Agent or any
Lender, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
any Borrower against the Administrative Agent or any Lender, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of any Borrower
or such Guarantor) which constitutes, or might be construed to constitute, an
equitable or legal discharge of any of the Borrowers for the Obligations, or of
such Guarantor under this Guarantee, in bankruptcy or in any other instance.
When pursuing its rights and remedies hereunder against any Guarantor, the
Administrative Agent and any Lender may, but shall be under no obligation to,
pursue such rights and remedies as it may have against the Borrower or any other
Person or against any collateral security or guarantee for the Obligations or
any right of offset with respect thereto, and any 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
<PAGE> 6
6
Commitments shall be terminated, notwithstanding that from time to time during
the term of the Credit Agreement the Borrowers may be free from any Obligations.
8. Reinstatement. This Guarantee shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by the Administrative Agent or any Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Borrower or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrower or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
9. Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Administrative Agent without set-off or
counterclaim in U.S. Dollars at the office of the Administrative Agent located
at 270 Park Avenue, New York, New York 10017.
10. Representations and Warranties. Each Guarantor hereby
represents and warrants that:
(a) it is a corporation duly organized, validly existing and
in good standing (or similar concept under applicable law) under the laws of the
jurisdiction of its incorporation and has the corporate power and authority and
the legal right to own and operate its property, to lease the property it
operates and to conduct the business in which it is currently engaged;
(b) it has the corporate power and authority and the legal
right to execute and deliver, and to perform its obligations under, this
Guarantee, and has taken all necessary corporate action to authorize its
execution, delivery and performance of this Guarantee;
(c) this Guarantee constitutes a legal, valid and binding
obligation of such Guarantor enforceable in accordance with its terms, except as
affected by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting the enforcement of
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing;
(d) the execution, delivery and performance of this Guarantee
will not violate any provision of any Requirement of Law or Contractual
Obligation of such Guarantor and will not result in or require the creation or
imposition of any Lien on any of the properties or revenues of such Guarantor
pursuant to any Requirement of Law or Contractual Obligation of the Guarantor;
(e) no consent or authorization of, filing with, or other act
by or in respect of, any arbitrator or Governmental Authority and no consent of
any other Person (including, without limitation, any stockholder or creditor of
such Guarantor) is required in connection with the execution, delivery,
performance, validity or enforceability of this Guarantee;
<PAGE> 7
7
(f) no litigation, investigation or proceeding of or before
any arbitrator or Governmental Authority is pending or, to the knowledge of such
Guarantor, threatened by or against such Guarantor or against any of its
properties or revenues (1) with respect to this Guarantee or any of the
transactions contemplated hereby or (2) which could reasonably be expected to
have a Material Adverse Effect; and
(g) it has good record and marketable title in fee simple to,
or a valid leasehold interest in, all its real property, and good title to, or a
valid leasehold interest in, all its other property, and none of such property
is subject to any Lien of any nature whatsoever except as permitted by
subsection 7.3 of the Credit Agreement.
Each Guarantor agrees that the foregoing representations and
warranties shall be deemed to have been made by such Guarantor on the date of
each borrowing by any Borrower under the Credit Agreement on and as of the
relevant Borrowing Date as though made hereunder on and as of such date.
11. Authority of Administrative Agent. Each Guarantor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Guarantee with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any option,
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Guarantee shall, as between the Administrative
Agent and the Lenders, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Administrative Agent and such Guarantor, the Administrative Agent
shall be conclusively presumed to be acting as agent for the Lenders with full
and valid authority so to act or refrain from acting, and no Guarantor shall be
under any obligation, or entitlement, to make any inquiry respecting such
authority.
12. Notices. All notices, requests and demands to or upon the
Administrative Agent, any Lender or any Guarantor to be effective shall be in
writing (or by telex, fax or similar electronic transfer confirmed in writing)
and shall be deemed to have been duly given or made (1) when delivered by hand
or (2) if given by mail, three days after deposited in the mails, postage
prepaid, or (3) if by telex, fax or similar electronic transfer, when sent and
receipt has been confirmed, addressed as follows:
(a) if to the Administrative Agent or any Lender, at its
address or transmission number for notices provided in or referred to in
subsection 11.2 of the Credit Agreement; and
(b) if to any Guarantor, at its address or transmission number
for notices set forth under its name below.
The Administrative Agent, each Lender and each Guarantor may
change its address and transmission numbers for notices by notice in the manner
provided in this Section.
13. Counterparts. This Guarantee may be executed by one or
more of the Guarantors on any number of separate counterparts, and all of said
counterparts taken together
<PAGE> 8
8
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. (a)
None of the terms or provisions of this Guarantee may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
each Guarantor and the Administrative Agent (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 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 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.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
17. Section Headings. The Section headings used in this
Guarantee are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
18. Successors and Assigns. This Guarantee shall be binding
upon the successors and assigns of each Guarantor and shall inure to the benefit
of the Administrative Agent and the Lenders and their successors and assigns.
<PAGE> 9
9
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 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.
<PAGE> 10
11
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
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.
ALEXON TREND, INC.
ALLESEE ORTHODONTIC APPLIANCES, INC.
APPLIED BIOTECH, INC.
BELLE DE ST. CLARE, INC.
CASCO-NERL DIAGNOSTICS CORPORATION
CHASE SCIENTIFIC GLASS, INC.
DIAGNOSTIC REAGENTS, INC.
ERIE SCIENTIFIC COMPANY (only with respect to
the Tranche B Term Loan)
EVER READY THERMOMETER CO., INC.
LAB-LINE INSTRUMENTS, INC.
LRS ACQUISITION CORP.
METREX RESEARCH CORPORATION
MEXOSERV COMPANY
MICROGENICS CORPORATION
MICROGENICS HOLDING CORPORATION
MOLECULAR BIOPRODUCTS, INC.
NALGE NUNC INTERNATIONAL CORPORATION
NATIONAL SCIENTIFIC COMPANY
THE NAUGATUCK GLASS COMPANY
OWL SEPARATION SYSTEMS, INC.
RICHARD-ALLAN SCIENTIFIC COMPANY
REMEL INC. (other than with respect to Tranche B
Term Loan)
SAC/COMMONWEALTH, INC.
SAC/KERR, INC.
SAMCO SCIENTIFIC CORPORATION
SUMMIT BIOTECHNOLOGY, INC.
SYBRON COMMONWEALTH HOLDINGS, INC.
SYBRON DENTAL SPECIALTIES, INC.
SYBRON LABORATORY PRODUCTS CORPORATION
SYBRON TRANSITION CORP.
------------------------------------------------
By: John Buono
Title: Treasurer
<PAGE> 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 4.9
EXHIBIT F
FORM OF
FOURTH AMENDED AND RESTATED SUBSIDIARIES PLEDGE AGREEMENT
FOURTH AMENDED AND RESTATED PLEDGE AGREEMENT, dated as of July
, 1999, 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 Third Amended and Restated Credit Agreement, dated as of July , 1999
(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
aCorporation, 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"), Remel Inc., a Wisconsin corporation ("Remel"; Ormco, Kerr, NNI,
Erie, Barnstead and Remel 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, 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
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 Fourth 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.
<PAGE> 2
"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,
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
<PAGE> 3
3
provision of this Agreement, and Section and paragraph references are to this
Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Pledge; Grant of Security Interest. Each Pledgor hereby
delivers to the Administrative Agent, for the ratable benefit of the Lenders,
all of the Pledged Stock (except such Pledged Stock which is not certificated)
and the Pledged Notes listed with its name on Schedule 1 or Schedule 2 hereto,
as the case may be, and hereby grants to the Administrative Agent, for the
ratable benefit of the Lenders, a first security interest in the Collateral
granted by such Pledgor, as collateral security for the prompt and complete
payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations of such Pledgor.
3. Stock Powers and Allonges. (a) Concurrently with the
delivery to the Administrative Agent of each certificate representing one or
more shares of Pledged Stock to the Administrative Agent, the relevant Pledgor
shall deliver an undated stock power covering such certificate, duly executed in
blank by such Pledgor with, if the Administrative Agent so requests, signature
guaranteed.
(b) Concurrently with the delivery to the Administrative Agent
of each note representing one of the Pledged Notes, the relevant Pledgor shall
deliver executed allonges endorsing such notes to "Bearer" with, if the
Administrative Agent so requests, signature guaranteed.
4. Representations and Warranties. Each Pledgor represents and
warrants that:
(a) except as set forth on Schedule 1 hereto, the shares of
Pledged Stock of such Pledgor constitute all the issued and outstanding shares
of all classes of the capital stock of the Issuers thereof; provided, however,
that the parties acknowledge that the capital stock of Microgenics Corporation
has not been pledged hereunder nor have the shares of capital stock of entities
which do not meet the criteria set forth in the definition of Pledge Guidelines
or which otherwise constitute the capital stock of a Specified Entity.
(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 (except as provided in Wis.
Stat. ss.180.0622(2)); 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
<PAGE> 4
4
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing;
(d) such Pledgor is the record and beneficial owner of, and
has good and marketable title to, such Pledged Stock and Pledged Notes, free of
any and all Liens or options in favor of, or claims of, any other Person, except
the security interest created by this Agreement;
(e) upon delivery to the Administrative Agent of the stock
certificates evidencing such Pledged Stock (or in the case of certain Issuers
organized under foreign jurisdictions, the deed or other document evidencing
such Pledged Stock) and upon delivery to the Administrative Agent of such
Pledged Notes, the security interest created by this Agreement will constitute a
valid, perfected first priority security interest in the Collateral granted by
such Pledgor, enforceable in accordance with its terms against all creditors of
such Pledgor and any Persons purporting to purchase any Collateral from such
Pledgor, except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing;
(f) such Pledgor has obtained from each Issuer and has
delivered to the Administrative Agent an Acknowledgement and Consent,
substantially in the form attached hereto as Annex A, executed by each such
Issuer; and
(g) no consent or authorization of, filing with or other act
by or in respect of any Person is required in connection with the execution,
delivery, performance, validity or enforceability of such Pledged Notes, and
such Pledgor has fully performed all its obligations under such Pledged Notes.
5. Covenants. Each Pledgor covenants and agrees with the
Administrative Agent and the Lenders that, from and after the date of this
Agreement until the Obligations are paid in full and the Commitments are
terminated:
(a) If such Pledgor shall, as a result of its ownership of any
Pledged Stock, become entitled to receive or shall receive any stock certificate
(including, without limitation, any certificate representing a stock dividend or
a distribution in connection with any reclassification, increase or reduction of
capital or any certificate issued in connection with any reorganization), option
or rights, whether in addition to, in substitution of, as a conversion 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
<PAGE> 5
5
additional collateral security for the Obligations of such Pledgor. Any sums
paid to such Pledgor upon or in respect of any Pledged Stock or any Pledged
Notes upon the liquidation or dissolution of any Issuer or any Obligor, as the
case may be, shall be paid over to the Administrative Agent to be held by it
hereunder as additional collateral security for the Obligations of such Pledgor,
and in case any distribution of capital or payment of principal shall be made to
such Pledgor on or in respect of any Pledged Stock or any Pledged Notes or any
property shall be distributed upon or with respect to any Pledged Stock or any
Pledged Notes pursuant to the recapitalization or reclassification of the
capital of any Issuer or any Obligor, as the case may be, or pursuant to the
reorganization thereof, the property so distributed to such Pledgor shall be
delivered to the Administrative Agent to be held by it hereunder as additional
collateral security for the Obligations of such Pledgor. If any sums of money or
property so paid or distributed in respect of any Pledged Stock or any Pledged
Notes shall be received by such Pledgor, such Pledgor shall, until such money or
property is paid or delivered to the Administrative Agent, hold such money or
property in trust for the Lenders, segregated from other funds of such Pledgor,
as additional collateral security for the Obligations such Pledgor.
Notwithstanding the foregoing, in no event shall more than 65% of the issued and
outstanding shares of stock, or any property distributed in respect thereof, of
any Issuer which is a Controlled Foreign Corporation constitute collateral
security for the Obligations.
(b) Without the prior written consent of the Administrative
Agent, no Pledgor shall (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
<PAGE> 6
6
payable with respect to any of the Collateral granted by such Pledgor or in
connection with any of the transactions contemplated by this Agreement.
(e) Each Pledgor will not (i) amend, modify, terminate or
waive any provision of any Pledged Note in any manner materially adverse to the
interests of the Administrative Agent or the Lenders, (ii) fail to exercise
promptly and diligently each and every material right which it may have under
any Pledged Note where such failure could reasonably be expected to have an
adverse affect on the interests of the Administrative Agent or the Lenders or
(iii) fail to deliver to the Administrative Agent a copy of each material
demand, notice or document received by it relating in any way to any Pledged
Note.
(f) Without the prior written consent of the Administrative
Agent, no Pledgor will grant any extension (other than, so long as no Default or
Event of Default shall exist, extensions granted in accordance with prudent
business judgment) of the time of payment of any Pledged Note, compromise,
compound or settle the same for less than the full amount thereof, release,
wholly or partially, any Person liable for the payment thereof, or allow any
credit or discount whatsoever thereon.
(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.
<PAGE> 7
7
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 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
<PAGE> 8
8
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 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.
<PAGE> 9
9
9. Registration Rights; Private Sales. (a) If the
Administrative Agent shall determine to exercise its right to sell any or all of
the Pledged Stock of any Pledgor pursuant to paragraph 8 hereof, and if in the
opinion of the Administrative Agent it is necessary or advisable to have such
Pledged Stock, or that portion thereof to be sold, registered under the
provisions of the Securities Act, such Pledgor will cause the Issuer thereof to
(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.
<PAGE> 10
10
10. Irrevocable Authorization and Instruction to Issuer and
Obligor. Each Pledgor hereby authorizes and instructs each Issuer of its Pledged
Stock and each Obligor of its Pledged Notes to comply with any instruction
received by it from the Administrative Agent in writing that (a) states that an
Event of Default has occurred and (b) is otherwise in accordance with the terms
of this Agreement, without any other or further instructions from such Pledgor,
and such Pledgor agrees that each such Issuer and each such Obligor shall be
fully protected in so complying.
11. Administrative Agent's Appointment as Attorney-in-Fact.
(a) Each Pledgor hereby irrevocably constitutes and appoints the Administrative
Agent and any officer or agent of the Administrative Agent, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Pledgor and in the name of
such Pledgor or in the Administrative Agent's own name, from time to time in the
Administrative Agent's discretion, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement, including, without limitation, any financing
statements, endorsements, assignments or other instruments of transfer.
(b) Each Pledgor hereby ratifies all that said attorneys shall
lawfully do or cause to be done pursuant to the power of attorney granted in
paragraph 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
<PAGE> 11
11
as may exist from time to time among them, but, as between the Administrative
Agent and a Pledgor, the Administrative Agent shall be conclusively presumed to
be acting as agent for the Lenders with full and valid authority so to act or
refrain from acting, and neither any Pledgor, any Issuer nor any Obligor shall
be under any obligation, or entitlement, to make any inquiry respecting such
authority.
15. Notices. All notices, requests and demands to or upon the
Administrative Agent, any Pledgor, any Issuer or any Obligor to be effective
shall be in writing (or by telex, fax or similar electronic transfer confirmed
in writing) and shall be deemed to have been duly given or made (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> 12
12
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.
<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.
ERIE SCIENTIFIC COMPANY
NALGE NUNC INTERNATIONAL CORPORATION
SYBRON DENTAL SPECIALTIES, INC.
ORMCO CORPORATION
SAC/KERR, INC.
KERR CORPORATION
SAC/COMMONWEALTH, INC.
SYBRON COMMONWEALTH HOLDINGS, INC.
NUNC U.K. LIMITED
SYBRON LABORATORY PRODUCTS CORPORATION
LRS ACQUISITION CORP.
DIAGNOSTIC REAGENTS, INC.
CASCO-NERL DIAGNOSTICS CORPORATION
BARNSTEAD THERMOLYNE CORPORATION
-----------------------------------------
By: John Buono
Title: Assistant Treasurer
<PAGE> 14
SCHEDULE 1
TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
[NAME OF PLEDGOR]
<TABLE>
<CAPTION>
- ----------------- ------------------- ---------------------------- --------------- ------------------
Total No. of
Stock Certificate No. No. of Shares Shares Outstanding
Issuer Class of Stock Pledged
<S> <C> <C> <C> <C>
</TABLE>
[Attached]
<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
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 July , 1999, 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
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
CASCO-NERL DIAGNOSTICS CORPORATION
THE NAUGATUCK GLASS COMPANY
NALGE NUNC INTERNATIONAL CORPORATION
ORMCO CORPORATION
ORMCO (EUROPE) A.G.
ORMEX, S.A. DE C.V.
ORMCO PTY. LTD.
ORMCO DE MEXICO SA de CV
ALLESEE ORTHODONTIC APPLIANCES, INC.
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
<PAGE> 17
SAC/COMMONWEALTH, INC.
SYBRON COMMONWEALTH HOLDINGS, INC.
SYBRON CANADA LIMITED
SYBRON U.K. LIMITED
SYBRON HOLDINGS A/S
REMEL INC.
SYBRON DENTAL SPECIALTIES JAPAN, INC.
DIAGNOSTIC REAGENTS, INC.
ALEXON-TREND, INC.
CHASE SCIENTIFIC GLASS, INC.
OWL SEPARATION SYSTEMS INC.
NALGE NUNC INTERNATIONAL K.K.
SUMMIT BIOTECHNOLOGY, INC.
SOCODENT S.A.
SYBRON HOLDINGS A/S
MAQUILADORA ACI - MEX S.A. de C.V.
APPLIED BIOTECH, INC.
SAMCO SCIENTIFIC CORPORATION
MOLECULAR BIOPRODUCTS, INC.
MICROGENICS HOLDING CORPORATION
LAB-LINE INSTRUMENTS, INC.
LRS ACQUISITION CORP.
ORMCO B.V.
----------------------------------------
By: John Buono
Title: Assistant Treasurer or
Authorized Agent
Address for Notices:
c/o Sybron International Corporation
411 East Wisconsin Avenue, 24th Floor
Milwaukee, Wisconsin 53202
Fax: (414) 274-6561
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
unaudited consolidated financial statements of Sybron International Corporation
for the nine months ended June 30, 1999 and is qualified in its entirety by
reference to such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> SEP-30-1999
<PERIOD-END> JUN-30-1999
<CASH> 14,270
<SECURITIES> 0
<RECEIVABLES> 211,361
<ALLOWANCES> 4,427
<INVENTORY> 198,907
<CURRENT-ASSETS> 461,223
<PP&E> 227,706
<DEPRECIATION> 207,732
<TOTAL-ASSETS> 1,656,904
<CURRENT-LIABILITIES> 173,260
<BONDS> 843,907
0
0
<COMMON> 1,036
<OTHER-SE> 581,138
<TOTAL-LIABILITY-AND-EQUITY> 1,656,904
<SALES> 800,398
<TOTAL-REVENUES> 800,398
<CGS> 387,818
<TOTAL-COSTS> 190,010
<OTHER-EXPENSES> 840
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 41,898
<INCOME-PRETAX> 147,272
<INCOME-TAX> 58,098
<INCOME-CONTINUING> 89,174
<DISCONTINUED> 121
<EXTRAORDINARY> 17,958
<CHANGES> 0
<NET-INCOME> 107,253
<EPS-BASIC> 1.04
<EPS-DILUTED> 1.01
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains restated summary financial information extracted from the
unaudited consolidated financial statements of Sybron International Corporation
for the nine months ended June 30, 1998, as restated to reflect the merger of
Pinnacle Products of Wisconsin, Inc., which is accounted for as pooling of
interests, and the reclassification of Nalge Process Technologies Group, Inc. to
discontinued operations, and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> SEP-30-1998
<PERIOD-END> JUN-30-1998
<CASH> 28,218
<SECURITIES> 0
<RECEIVABLES> 173,326
<ALLOWANCES> 5,044
<INVENTORY> 156,650
<CURRENT-ASSETS> 454,931
<PP&E> 204,600
<DEPRECIATION> 165,835
<TOTAL-ASSETS> 1,401,461
<CURRENT-LIABILITIES> 153,852
<BONDS> 741,867
0
0
<COMMON> 1,027
<OTHER-SE> 442,853
<TOTAL-LIABILITY-AND-EQUITY> 1,401,461
<SALES> 667,815
<TOTAL-REVENUES> 667,815
<CGS> 324,357
<TOTAL-COSTS> 217,360
<OTHER-EXPENSES> 129
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 40,082
<INCOME-PRETAX> 85,887
<INCOME-TAX> 35,559
<INCOME-CONTINUING> 50,328
<DISCONTINUED> 3,133
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 53,461
<EPS-BASIC> .52
<EPS-DILUTED> .50
</TABLE>
