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EXHIBIT 4.4
AMENDED AND RESTATED PARENT PLEDGE AGREEMENT
AMENDED AND RESTATED PLEDGE AGREEMENT, dated as of July 9, 1996, made by
Sybron International Corporation, a Wisconsin corporation (the "Parent"), in
favor of Chemical Bank, as Administrative Agent (in such capacity, the
"Administrative Agent"), for the banks and other financial institutions (the
"Lenders") from time to time parties to the Credit Agreement, dated as of July
31, 1995 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Parent, Ormco Corporation, a Delaware
corporation ("Ormco"), Kerr Corporation, a Delaware corporation ("Kerr"), Nalge
Company, a Delaware corporation ("Nalge"), Erie Scientific Company, a Delaware
corporation ("Erie"), Barnstead Thermolyne Corporation, a Delaware corporation
("Barnstead"; Ormco, Kerr, Nalge, Erie and Barnstead are collectively referred
to herein as the "Subsidiary Borrowers"), the Lenders, the Administrative Agent
and Chemical Securities Inc. (currently known as Chase Securities Inc.), as
Arranger.
W I T N E S S E T H :
WHEREAS, the Parent (formerly known as Sybron Corporation), the Subsidiary
Borrowers, the banks parties thereto and Chemical Bank, as agent for such
banks, are parties to that certain Credit Agreement, dated as of July 1, 1993
(as amended, supplemented or otherwise modified, the "Prior Credit Agreement")
providing for certain Loans (as defined therein) and other extensions of credit
described therein;
WHEREAS, the Parent and the Subsidiary Borrowers have requested the
Lenders to provide credit facilities pursuant to which Loans will be made to,
and Letters of Credit will be issued for the account of, the Parent and certain
Subsidiary Borrowers;
WHEREAS, the Parent and the Subsidiary Borrowers will use the proceeds of
the Loans in part (i) to refinance all outstanding indebtedness of the Parent
and the Subsidiary Borrowers under the Prior Credit Agreement, (ii) to finance
the acquisition (the "Nunc Acquisition") of all of the Capital Stock of Nunc
Inc., a Delaware corporation, Nunc GmbH, a German company, and Nunc AS, a
Danish company (collectively, "Nunc") and (iii) to finance the working capital
and general corporate needs, including acquisitions, of the Parent and the
Subsidiary Borrowers; and
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WHEREAS, the Lenders are willing to make the Loans and issue and/or
participate in the Letters of Credit (as hereinafter defined) on the terms and
conditions set forth in the Credit Agreement;
WHEREAS, the Parent is the legal and beneficial owner of the shares of
Pledged Stock (as hereinafter defined);
WHEREAS, the Parent is the legal and beneficial owner of each of the
Pledged Notes (as hereinafter defined); and
WHEREAS, it is a condition precedent to the obligation of the Lenders
to make their respective extensions of credit to the Parent and the Subsidiary
Borrowers under the Credit Agreement that the Parent shall have executed and
delivered this Pledge Agreement to the Administrative Agent for the ratable
benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective extensions of credit to the Parent
and Subsidiary Borrowers under the Credit Agreement, the Parent hereby agrees
with the Administrative Agent, for the ratable benefit of the Lenders, as
follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
(b) The following terms shall have the following meanings:
"Agreement": this Amended and Restated Pledge Agreement, as
the same may be amended, modified or otherwise supplemented from time to
time.
"Code": the Uniform Commercial Code from time to time in effect
in the State of New York.
"Collateral": the Pledged Stock, the Pledged Notes and all
Proceeds.
"Issuers": the collective reference to the companies identified
on Schedule 1 hereto as the issuers of the Pledged Stock.
"Obligations": (a) the unpaid principal amount of, and interest on
(including, without limitation, interest accruing after the maturity of
the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Parent, whether or not a claim for post-filing
or post-petition interest is allowed in such
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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.
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(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Pledge; Grant of Security Interest. The Parent hereby delivers
to the Administrative Agent, for the ratable benefit of the Lenders, all the
Pledged Stock and the Pledged Notes and hereby grants to the Administrative
Agent, for the ratable benefit of the Lenders, a first security interest in the
Collateral, as collateral security for the prompt and complete payment and
performance when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations.
3. Stock Powers and Allonges. (a) Concurrently with the delivery to
the Administrative Agent of each certificate representing one or more shares of
Pledged Stock to the Administrative Agent, the Parent shall deliver an undated
stock power covering such certificate, duly executed in blank by the Parent
with, if the Administrative Agent so requests, signature guaranteed.
(b) Concurrently with the delivery to the Administrative Agent of each
note representing one of the Pledged Notes, the Parent shall deliver executed
allonges endorsing such notes to "Bearer" with, if the Administrative Agent so
requests, signature guaranteed.
4. Representations and Warranties. The Parent represents and
warrants that:
(a) except as set forth on Schedule 1, the shares of Pledged Stock
constitute all the issued and outstanding shares of all classes of
the capital stock of each Issuer;
(b) the Pledged Notes listed on Schedule 2, as such Schedule may be
amended from time to time in accordance with the terms hereof,
constitute all of the issued and outstanding promissory notes
payable by the Subsidiaries of the Parent to the Parent;
(c) all the shares of the Pledged Stock have been duly and validly
issued and are fully paid and nonassessable; and each of the Pledged
Notes has been duly and validly issued and is the legal, valid and
binding obligation of the maker thereof, enforceable in accordance
with its terms, except as affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity
or at law) and an implied covenant of good faith and fair dealing;
(d) the Parent is the record and beneficial owner of, and has good
and marketable title to, the Pledged Stock and
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the Pledged Notes, free of any and all Liens or options in favor of,
or claims of, any other Person, except the security interest created
by this Agreement;
(e) upon delivery to the Administrative Agent of the stock
certificates evidencing the Pledged Stock and upon delivery to the
Administrative Agent of the Pledged Notes, the security interest
created by this Agreement will constitute a valid, perfected first
priority security interest in the Collateral, enforceable in
accordance with its terms against all creditors of the Parent and
any Persons purporting to purchase any Collateral from the Parent,
except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing;
(f) on the Closing Date, all of the stock owned by the Parent or
any of its Subsidiaries in any of their respective Subsidiaries will
be pledged pursuant to one of the Pledge Agreements, other than 35%
of the stock of any Controlled Foreign Corporation (or other than
all of the stock of any Controlled Foreign Corporation which is
owned directly by another Controlled Foreign Corporation) or other
than the stock of an inactive corporation or a corporation in the
process of liquidation;
(g) the Parent has obtained from each Issuer and has delivered to
the Administrative Agent an Acknowledgement and Consent,
substantially in the form attached hereto as Annex A, executed by
each such Issuer; and
(h) no consent or authorization of, filing with or other act by or
in respect of any Person is required in connection with the
execution, delivery, performance, validity or enforceability of the
Pledged Notes, and the Parent has fully performed all its
obligations under the Pledged Notes.
5. Covenants. The Parent covenants and agrees with the
Administrative Agent and the Lenders that, from and after the date of this
Agreement until the Obligations are paid in full and the Commitments are
terminated:
(a) If the Parent shall, as a result of its ownership of the
Pledged Stock, become entitled to receive or shall receive any stock
certificate (including, without limitation, any certificate representing a
stock dividend or a distribution in connection with any reclassification,
increase or reduction of capital or any certificate issued in connection
with any reorganization), option or rights, whether in addition to, in
substitution of, as a conversion
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of, or in exchange for any shares of the Pledged Stock, or otherwise in
respect thereof, the Parent shall accept the same as the agent of the
Administrative Agent and the Lenders, hold the same in trust for the
Administrative Agent and the Lenders and deliver the same forthwith to the
Administrative Agent in the exact form received, duly indorsed by the
Parent to the Administrative Agent, if required, together with an undated
stock power covering such certificate duly executed in blank by the Parent
and with, if the Administrative Agent so requests, signature guaranteed,
to be held by the Administrative Agent, subject to the terms hereof, as
additional collateral security for the Obligations. Any sums paid upon or
in respect of the Pledged Stock or the Pledged Notes upon the liquidation
or dissolution of any Issuer or any Obligor, as the case may be, shall be
paid over to the Administrative Agent to be held by it hereunder as
additional collateral security for the Obligations, and in case any
distribution of capital or payment of principal shall be made on or in
respect of the Pledged Stock or the Pledged Notes or any property shall be
distributed upon or with respect to the Pledged Stock or the Pledged Notes
pursuant to the recapitalization or reclassification of the capital of any
Issuer or any Obligor, as the case may be, or pursuant to the
reorganization thereof, the property so distributed shall be delivered to
the Administrative Agent to be held by it hereunder as additional
collateral security for the Obligations. If any sums of money or property
so paid or distributed in respect of the Pledged Stock or the Pledged
Notes shall be received by the Parent, the Parent shall, until such money
or property is paid or delivered to the Administrative Agent, hold such
money or property in trust for the Lenders, segregated from other funds of
the Parent, as additional collateral security for the Obligations.
Notwithstanding the foregoing, in no event shall more than 65% of the
issued and outstanding shares of stock, or any property distributed in
respect thereof, of any Issuer which is a Controlled Foreign Corporation
constitute collateral security for the Obligations of the Parent.
(b) Without the prior written consent of the Administrative Agent,
the Parent will not vote to enable, or take any other action to permit,
any Issuer to issue any stock or other equity securities of any nature or
to issue any other securities convertible into or granting the right to
purchase or exchange for any stock or other equity securities of any
nature of such Issuer, sell, assign, transfer, exchange, or otherwise
dispose of, or grant any option with respect to, the Collateral, or
create, incur or permit to exist any Lien or option in favor of, or any
claim of any Person with respect to, any of the Collateral, or any
interest therein, except for the security interests created by this
Agreement and Liens permitted by the Credit Agreement. The Parent will
defend the right,
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title and interest of the Administrative Agent and the Lenders in and to
the Collateral against the claims and demands of all Persons whomsoever.
(c) At any time and from time to time, upon the written request of
the Administrative Agent, and at the sole expense of the Parent, the
Parent will promptly and duly execute and deliver such further instruments
and documents and take such further actions as the Administrative Agent
may reasonably request for the purposes of obtaining or preserving the
full benefits of this Agreement and of the rights and powers herein
granted. If any amount payable under or in connection with any of the
Collateral shall be or become evidenced by any promissory note, other
instrument or chattel paper, such note, instrument or chattel paper shall
be immediately delivered to the Administrative Agent, duly endorsed in a
manner satisfactory to the Administrative Agent, to be held as Collateral
pursuant to this Agreement.
(d) The Parent shall pay, and save the Administrative Agent and the
Lenders harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or
other taxes which may be payable or determined to be payable with respect
to any of the Collateral or in connection with any of the transactions
contemplated by this Agreement.
(e) The Parent will not (i) amend, modify, terminate or waive any
provision of any Pledged Note in any manner materially adverse to the
interests of the Administrative Agent or the Lenders, (ii) fail to
exercise promptly and diligently each and every material right which it
may have under any Pledged Note where such failure could reasonably be
expected to have an adverse affect on the interests of the Administrative
Agent or the Lenders or (iii) fail to deliver to the Administrative Agent
a copy of each material demand, notice or document received by it relating
in any way to any Pledged Note.
(f) Without the prior written consent of the Administrative Agent,
the Parent will not grant any extension (other than, so long as no Default
or Event of Default shall exist, extensions granted in accordance with
prudent business judgment) of the time of payment of any Pledged Note,
compromise, compound or settle the same for less than the full amount
thereof, release, wholly or partially, any Person liable for the payment
thereof, or allow any credit or discount whatsoever thereon.
(g) The Parent shall deliver to the Administrative Agent, in the
exact form received, to be held by the Administrative Agent, subject to
the terms hereof, as additional collateral security for the Obligations
any additional promissory notes made by any Obligor for the
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benefit of the Parent or other securities, options or rights
received by it in substitution or exchange for, or as a conversion
of, or in addition to, any of the Pledged Notes, or otherwise in
respect thereof, together with an undated endorsement or power, as
the case may be, duly executed to the order of "Bearer" or in blank,
as the case may be, by the Parent and with, if the Administrative
Agent reasonably requests, signature guaranteed.
6. Cash Dividends; Voting Rights; Interest and Principal
Payments. (a) Unless an Event of Default shall have occurred and be continuing
and the Administrative Agent shall have given notice to the Parent of the
Administrative Agent's intent to exercise its corresponding rights pursuant to
Section below, the Parent shall be permitted to receive all cash dividends paid
in the normal course of business and consistent with past practice, to the
extent permitted in the Credit Agreement, in respect of the Pledged Stock and to
exercise all voting and corporate rights with respect to the Pledged Stock;
provided, however, that no vote shall be cast or corporate right exercised or
other action taken which, in the Administrative Agent's reasonable judgment,
would impair the Collateral or which would be inconsistent with or result in any
violation of any provision of the Credit Agreement, the Notes, this Agreement or
any other Loan Document.
(b) Unless an Event of Default shall have occurred and be
continuing and the Administrative Agent shall have given notice to the Parent of
the Administrative Agent's intent to exercise its corresponding rights pursuant
to Section 7 hereof, the Parent shall be permitted to receive and retain all
scheduled interest and principal payments on account of the Pledged Notes.
7. Rights of the Lenders and the Administrative Agent. (a) If
an Event of Default shall occur and be continuing and the Administrative Agent
shall give notice of its intent to exercise such rights to the Parent, the
Administrative Agent shall have the right to receive any and all cash dividends
paid in respect of the Pledged Stock and any and all interest, principal or
other payments paid in respect of the Pledged Notes and make application thereof
to the Obligations in such order as the Administrative Agent may determine, all
shares of the Pledged Stock shall be registered in the name of the
Administrative Agent or its nominee, and the Administrative Agent or its nominee
may thereafter exercise all voting, corporate and other rights pertaining to
such shares of the Pledged Stock at any meeting of shareholders of any Issuer or
otherwise and any and all rights of conversion, exchange, subscription and any
other rights, privileges or options pertaining to such shares of the Pledged
Stock as if it were the absolute owner thereof (including, without limitation,
the right to exchange at its discretion any and all of the Pledged Stock upon
the merger, consolidation, reorganization, recapitalization or other fundamental
change in the corporate structure of any Issuer, or
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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.
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8. Remedies. If an Event of Default shall occur and be continuing,
the Administrative Agent, on behalf of the Lenders, may exercise, in addition to
all other rights and remedies granted in this Agreement and in any other
instrument or agreement securing, evidencing or relating to the Obligations, all
rights and remedies of a secured party under the Code. Without limiting the
generality of the foregoing, the Administrative Agent, without demand of
performance or other demand, presentment, protest, advertisement or notice of
any kind (except any notice required by law referred to below) to or upon the
Parent, any Issuer, any Obligor or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, assign, give option
or options to purchase or otherwise dispose of and deliver the Collateral or any
part thereof (or contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, in the over-the-counter market, at any
exchange, broker's board or office of the Administrative Agent or any Lender or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Administrative Agent or any Lender shall
have the right upon any such public sale or sales, and, to the extent permitted
by law, upon any such private sale or sales, to purchase the whole or any part
of the Collateral so sold, free of any right or equity of redemption in the
Parent, which right or equity is hereby waived or released. The Administrative
Agent shall apply any Proceeds from time to time held by it and the net proceeds
of any such collection, recovery, receipt, appropriation, realization or sale,
after deducting all reasonable costs and expenses of every kind incurred in
respect thereof or incidental to the care or safekeeping of any of the
Collateral or in any way relating to the Collateral or the rights of the
Administrative Agent and the Lenders hereunder, including, without limitation,
reasonable attorneys' fees and disbursements of counsel to the Administrative
Agent, to the payment in whole or in part of the Obligations, in such order as
the Administrative Agent may elect, and only after such application and after
the payment by the Administrative Agent of any other amount required by any
provision of law, including, without limitation, Section 9-504(1)(c) of the
Code, need the Administrative Agent account for the surplus, if any, to the
Parent. To the extent permitted by applicable law, the Parent waives all
claims, damages and demands it may acquire against the Administrative Agent or
any Lender arising out of the exercise by them of any rights hereunder, except
such claims and damages arising out of the gross negligence or willful
misconduct of the Administrative Agent or any such Lender. If any notice of a
proposed sale or other disposition of Collateral shall be required by law, such
notice shall be deemed reasonable and proper if given at least 10 days before
such sale or other disposition. The Parent shall remain liable for any
deficiency if the proceeds of any sale or
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other disposition of Collateral are insufficient to pay the Obligations and the
fees and disbursements of any attorneys employed by the Administrative Agent or
any Lender to collect such deficiency.
9. Registration Rights; Private Sales. (a) If the Administrative
Agent shall determine to exercise its right to sell any or all of the Pledged
Stock pursuant to paragraph 8 hereof, and if in the opinion of the
Administrative Agent it is necessary or advisable to have the Pledged Stock, or
that portion thereof to be sold, registered under the provisions of the
Securities Act, the Parent will cause the Issuer thereof to execute and
deliver, and cause the directors and officers of such Issuer to execute and
deliver, all such instruments and documents, and do or cause to be done all such
other acts as may be, in the opinion of the Administrative Agent, necessary or
advisable to register the Pledged Stock, or that portion thereof to be sold,
under the provisions of the Securities Act, to use its best efforts to cause
the registration statement relating thereto to become effective and to remain
effective for a period of one year from the date of the first public offering of
the Pledged Stock, or that portion thereof to be sold and to make all
amendments thereto and/or to the related prospectus which, in the opinion of the
Administrative Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. The Parent agrees to
cause such Issuer to comply with the provisions of the securities or "Blue Sky"
laws of any and all jurisdictions which the Administrative Agent shall designate
and to make available to its security holders, as soon as practicable, an
earnings statement (which need not be audited) which will satisfy the provisions
of Section 11(a) of the Securities Act.
(b) The Parent recognizes that the Administrative Agent may be
unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. The
Parent acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The
Administrative Agent shall be under no obligation to delay a sale of any of the
Pledged Stock for the period of time necessary to permit the Issuer thereof to
register such securities for public sale under the Securities Act, or under
applicable state securities laws, even if such Issuer would agree to do so.
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(c) The Parent further agrees to use its best efforts to do or cause
to be done all such other acts as may be necessary to make such sale or sales of
all or any portion of the Pledged Stock pursuant to this Section valid and
binding and in compliance with any and all other applicable Requirements of Law.
The Parent further agrees that a breach of any of the covenants contained in
this Section will cause irreparable injury to the Administrative Agent and the
Lenders, that the Administrative Agent and the Lenders have no adequate remedy
at law in respect of such breach and, as a consequence, that each and every
covenant contained in this Section 9 shall be specifically enforceable against
the Parent, and the Parent hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants except for a
defense that no Event of Default has occurred under the Credit Agreement.
10. Irrevocable Authorization and Instruction to Issuer and Obligor.
The Parent hereby authorizes and instructs each Issuer and Obligor to comply
with any instruction received by it from the Administrative Agent in writing
that (a) states that an Event of Default has occurred and (b) is otherwise in
accordance with the terms of this Agreement, without any other or further
instructions from the Parent, and the Parent agrees that each Issuer and each
Obligor shall be fully protected in so complying.
11. Administrative Agent's Appointment as Attorney-in-Fact. (a)
The Parent hereby irrevocably constitutes and appoints the Administrative
Agent and any officer or agent of the Administrative Agent, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Parent and in the name of the
Parent or in the Administrative Agent's own name, from time to time in the
Administrative Agent's discretion, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Agreement, including, without limitation, any
financing statements, endorsements, assignments or other instruments of
transfer.
(b) The Parent hereby ratifies all that said attorneys shall
lawfully do or cause to be done pursuant to the power of attorney granted in
paragraph . All powers, authorizations and agencies contained in this Agreement
are coupled with an interest and are irrevocable until the Obligations are paid
in full and the Commitments are terminated.
12. Duty of Administrative Agent. The Administrative Agent's sole
duty with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Code or otherwise,
shall be to deal with it in the same manner as the Administrative Agent deals
with similar securities and property for its own account. Neither the
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Administrative Agent, any Lender nor any of their respective directors,
officers, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of the Parent or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof.
13. Execution of Financing Statements. Pursuant to Section 9-402 of
the Code, the Parent authorizes the Administrative Agent to file financing
statements with respect to the Collateral without the signature of the Parent in
such form and in such filing offices as the Administrative Agent reasonably
determines appropriate to perfect the security interests of the Administrative
Agent under this Agreement.
14. Authority of Administrative Agent. The Parent acknowledges that
the rights and responsibilities of the Administrative Agent under this Agreement
with respect to any action taken by the Administrative Agent or the exercise or
non-exercise by the Administrative Agent of any option, voting right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Agreement shall, as between the Administrative Agent and the
Lenders, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Administrative Agent and the Parent, the Administrative Agent shall be
conclusively presumed to be acting as agent for the Lenders with full and valid
authority so to act or refrain from acting, and neither the Parent, any Issuer
nor any Obligor shall be under any obligation, or entitlement, to make any
inquiry respecting such authority.
15. Notices. All notices, requests and demands to or upon the
Administrative Agent, the Parent, any Issuer or any Obligor to be effective
shall be in writing (or by telex, fax or similar electronic transfer confirmed
in writing) and shall be deemed to have been duly given or made when delivered
by hand or if given by mail, three days after being deposited in the mail,
postage prepaid, or if by telex, fax or similar electronic transfer, when sent
and receipt has been confirmed, addressed to the Administrative Agent or the
Parent at its address or transmission number for notices provided in the Credit
Agreement and to each Issuer and each Obligor at its address set forth in its
Acknowledgment and Consent. The Parent, any Issuer and any Obligor may change
their addresses and transmission numbers for notices by written notice to the
Administrative Agent.
16. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
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unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
17. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None of the
terms or provisions of this Agreement may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by the Parent and
the Administrative Agent, provided that any provision of this Agreement may be
waived by the Administrative Agent and the Lenders in a letter or agreement
executed by the Administrative Agent or by telex or facsimile transmission from
the Administrative Agent.
(b) Neither the Administrative Agent nor any Lender shall by any act
(except by a written instrument pursuant to paragraph hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default or in any
breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Administrative Agent or any Lender,
any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Administrative Agent or any Lender
of any right or remedy hereunder on any one occasion shall not be construed as
a bar to any right or remedy which the Administrative Agent or such Lender
would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
18. Section Headings. The Section headings used in this Agreement are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
19. Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of the Parent and shall inure to the benefit of the
Administrative Agent and the Lenders and their successors and assigns.
20. Governing Law. This Agreement shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
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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:
--------------------------
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SCHEDULE 1
TO PARENT PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
Class Stock No. of Total No.
of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ------ ----- ----------- ------- -----------
SAC/Thermo-Barn, Inc. Common 001 2,000 4,000
002 2,000
SAC/Erie, Inc. Common 001 1,000 2,000
002 1,000
Malge Nunc Common 003 2,000 2,000
International
Corporation
Sybron Dental Common 003 2,000 4,000
Specialties, Inc. 004 2,000
Sybron Transition Common 001 100 100
Corp.
Mexoserv Company Common 003 100 100
17
SCHEDULE 2
TO PARENT PLEDGE AGREEMENT
PLEDGED NOTES
Original
Date of Principal
Obligor Note Amount
- ------- ------- ---------
$________
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ANNEX A
ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned is an Issuer referred to in the foregoing Amended
and Restated Parent Pledge Agreement and each of the undersigned hereby
acknowledges receipt of a copy of the Amended and Restated Parent Pledge
Agreement, dated July 9, 1996, made by Sybron International Corporation for the
benefit of Chemical Bank, as Administrative Agent (as amended, supplemented or
otherwise modified from time to time, the "Pledge Agreement"). The undersigned
agrees for the benefit of the Administrative Agent and the Lenders as follows:
The undersigned will be bound by the terms of the Pledge Agreement
and will comply with such terms insofar as such terms are applicable to
the undersigned.
The undersigned will notify the Administrative Agent promptly in
writing of the occurrence of any of the events described in paragraph of
the Pledge Agreement.
The terms of paragraph of the Pledge Agreement shall apply to it,
mutatis mutandis, with respect to all actions that may be required of it
under or pursuant to or arising out of Section of the Pledge Agreement.
SAC/THERMO-BARN, INC.
SAC/ERIE, INC.
NALGE NUNC INTERNATIONAL
CORPORATION
SYBRON DENTAL SPECIALTIES, INC.
SYBRON TRANSITION CORP.
MEXOSERV COMPANY
-------------------------------------
By:
Address for Notices:
c/o Sybron International Corporation
411 East Wisconsin Avenue, 24th Floor
Milwaukee, Wisconsin 53202
Fax: (414) 274-6561