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EXHIBIT 4.6
AMENDED AND RESTATED SUBSIDIARIES PLEDGE AGREEMENT
AMENDED AND RESTATED PLEDGE AGREEMENT, dated as of July 9, 1996, made
by each of the undersigned corporations (each, a "Pledgor", and collectively,
the "Pledgors") in favor of Chemical Bank, as Administrative Agent (in such
capacity, the "Administrative Agent"), for the banks and other financial
institutions (the "Lenders") from time to time parties to the Credit Agreement,
dated as of July 31, 1995 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among Sybron International Corporation, a
Wisconsin corporation ("the Parent"), Ormco Corporation, a Delaware corporation
("Ormco"), Kerr Corporation, a Delaware corporation ("Kerr"), Nalge Company, a
Delaware corporation ("Nalge"), Erie Scientific Company, a Delaware corporation
("Erie"), Barnstead Thermolyne Corporation, a Delaware corporation ("Barnstead";
Ormco, Kerr, Nalge, Erie and Barnstead are collectively referred to herein as
the "Subsidiary Borrowers"), the Lenders, the Administrative Agent and Chemical
Securities Inc. (currently known as Chase Securities Inc)., as Arranger.
W I T N E S S E T H:
WHEREAS, the Parent (formerly known as Sybron Corporation), the
Subsidiary Borrowers, the banks parties thereto and Chemical Bank, as agent for
such banks, are parties to that certain Credit Agreement, dated as of July 1,
1993 (as amended, supplemented or otherwise modified, the "Prior Credit
Agreement") providing for certain Loans (as defined therein) and other
extensions of credit described therein;
WHEREAS, the Parent and the Subsidiary Borrowers have requested the
Lenders to provide credit facilities pursuant to which Loans will be made to,
and Letters of Credit will be issued for the account of, the Parent and certain
Subsidiary Borrowers;
WHEREAS, the Parent and the Subsidiary Borrowers will use the proceeds
of the Loans in part (i) to refinance all outstanding indebtedness of the Parent
and the Subsidiary Borrowers under the Prior Credit Agreement, (ii) to finance
the acquisition (the "Nunc Acquisition") of all of the Capital Stock of Nunc
Inc., a Delaware corporation, Nunc GmbH, a German company, and Nunc AS, a Danish
company (collectively, "Nunc") and (iii) to finance the working capital and
general corporate needs, including acquisitions, of the Parent and the
Subsidiary Borrowers; and
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hereinafter defined) on the terms and conditions set forth in the Credit
Agreement;
WHEREAS, each Pledgor is the legal and beneficial owner of the shares
of Pledged Stock (as hereinafter defined) hereby pledged by such Pledgor;
WHEREAS, each Pledgor is the legal and beneficial owner of each of the
Pledged Notes (as hereinafter defined) hereby pledged by such Pledgor; and
WHEREAS, it is a condition precedent to the obligation of the Lenders
to make their respective extensions of credit to the Parent and the Subsidiary
Borrowers under the Credit Agreement that each Pledgor shall have executed and
delivered this Pledge Agreement to the Administrative Agent for the ratable
benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective extensions of credit to the Parent
and Subsidiary Borrowers under the Credit Agreement, each Pledgor hereby agrees
with the Administrative Agent, for the ratable benefit of the Lenders, as
follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Credit Agreement or the Subsidiaries Guarantee and used herein are so used
as so defined.
(b) The following terms shall have the following meanings:
"Agreement": this Amended and Restated Pledge Agreement, as the same
may be amended, modified or otherwise supplemented from time to time.
"Code": the Uniform Commercial Code from time to time in effect in
the State of New York.
"Collateral": the Pledged Stock, the Pledged Notes and all Proceeds.
"Issuers": the collective reference to the companies identified on
Schedule 1 hereto as the issuers of the Pledged Stock.
"Obligations" means (a) as to any Pledgor, all of its obligations and
liabilities (i) under the Subsidiaries Guarantee, subject to the
limitations on liability contained therein and (ii) to any Lender or an
Affiliate of any Lender under or in connection with any Interest Rate
Agreement or foreign exchange contract and (b) without duplication, as to
any Pledgor
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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
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to this Agreement as a whole and not to any particular provision of this
Agreement, and Section and paragraph references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Pledge; Grant of Security Interest. Each Pledgor hereby delivers
to the Administrative Agent, for the ratable benefit of the Lenders, all of the
Pledged Stock (except such Pledged Stock which is not certificated) and the
Pledged Notes listed with its name on Schedule 1 or Schedule 2 hereto, as the
case may be, and hereby grants to the Administrative Agent, for the ratable
benefit of the Lenders, a first security interest in the Collateral granted by
such Pledgor, as collateral security for the prompt and complete payment and
performance when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations of such Pledgor.
3. Stock Powers and Allonges. (a) Concurrently with the delivery to
the Administrative Agent of each certificate representing one or more shares of
Pledged Stock to the Administrative Agent, the relevant Pledgor shall deliver an
undated stock power covering such certificate, duly executed in blank by such
Pledgor with, if the Administrative Agent so requests, signature guaranteed.
(b) Concurrently with the delivery to the Administrative Agent of each
note representing one of the Pledged Notes, the relevant Pledgor shall deliver
executed allonges endorsing such notes to "Bearer" with, if the Administrative
Agent so requests, signature guaranteed.
4. Representations and Warranties. Each Pledgor represents and
warrants that:
(a) except as set forth on Schedule 1 hereto, the shares of Pledged
Stock of such Pledgor constitute all the issued and outstanding shares of
all classes of the capital stock of the Issuers thereof;
(b) the Pledged Notes of such Pledgor constitute all of the issued
and outstanding promissory notes payable by the Parent and the direct and
indirect Subsidiaries of the Parent (other than such Pledgor) to such
Pledgor;
(c) all the shares of such Pledged Stock have been duly and validly
issued and are fully paid and nonassessable; and each of such Pledged Notes
has been duly and validly issued and is the legal, valid and binding
obligation of the maker thereof, enforceable in accordance with its terms,
except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization,
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moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing;
(d) such Pledgor is the record and beneficial owner of, and has good
and marketable title to, such Pledged Stock and Pledged Notes, free of any
and all Liens or options in favor of, or claims of, any other Person,
except the security interest created by this Agreement;
(e) upon delivery to the Administrative Agent of the stock
certificates evidencing such Pledged Stock (or in the case of certain
Issuers organized under foreign jurisdictions, the deed or other document
evidencing such Pledged Stock) and upon delivery to the Administrative
Agent of such Pledged Notes, the security interest created by this
Agreement will constitute a valid, perfected first priority security
interest in the Collateral granted by such Pledgor, enforceable in
accordance with its terms against all creditors of such Pledgor and any
Persons purporting to purchase any Collateral from such Pledgor, except as
affected by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing;
(f) such Pledgor has obtained from each Issuer and has delivered to
the Administrative Agent an Acknowledgement and Consent, substantially in
the form attached hereto as Annex A, executed by each such Issuer; and
(g) no consent or authorization of, filing with or other act by or in
respect of any Person is required in connection with the execution,
delivery, performance, validity or enforceability of such Pledged Notes,
and such Pledgor has fully performed all its obligations under such Pledged
Notes.
5. Covenants. Each Pledgor covenants and agrees with the
Administrative Agent and the Lenders that, from and after the date of this
Agreement until the Obligations are paid in full and the Commitments are
terminated:
(a) If such Pledgor shall, as a result of its ownership of any
Pledged Stock, become entitled to receive or shall receive any stock
certificate (including, without limitation, any certificate representing a
stock dividend or a distribution in connection with any reclassification,
increase or reduction of capital or any certificate issued in connection
with any reorganization), option or rights, whether in addition to, in
substitution of, as a conversion
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of, or in exchange for any shares of any Pledged Stock, or otherwise in
respect thereof, such Pledgor shall accept the same as the agent of the
Administrative Agent and the Lenders, hold the same in trust for the
Administrative Agent and the Lenders and deliver the same forthwith to the
Administrative Agent in the exact form received, duly indorsed by such
Pledgor to the Administrative Agent, if required, together with an undated
stock power covering such certificate duly executed in blank by such
Pledgor and with, if the Administrative Agent so requests, signature
guaranteed, to be held by the Administrative Agent, subject to the terms
hereof, as additional collateral security for the Obligations of such
Pledgor. Any sums paid to such Pledgor upon or in respect of any Pledged
Stock or any Pledged Notes upon the liquidation or dissolution of any
Issuer or any Obligor, as the case may be, shall be paid over to the
Administrative Agent to be held by it hereunder as additional collateral
security for the Obligations of such Pledgor, and in case any distribution
of capital or payment of principal shall be made to such Pledgor on or in
respect of any Pledged Stock or any Pledged Notes or any property shall be
distributed upon or with respect to any Pledged Stock or any Pledged Notes
pursuant to the recapitalization or reclassification of the capital of any
Issuer or any Obligor, as the case may be, or pursuant to the
reorganization thereof, the property so distributed to such Pledgor shall
be delivered to the Administrative Agent to be held by it hereunder as
additional collateral security for the Obligations of such Pledgor. If any
sums of money or property so paid or distributed in respect of any Pledged
Stock or any Pledged Notes shall be received by such Pledgor, such Pledgor
shall, until such money or property is paid or delivered to the
Administrative Agent, hold such money or property in trust for the Lenders,
segregated from other funds of such Pledgor, as additional collateral
security for the Obligations such Pledgor. Notwithstanding the foregoing,
in no event shall more than 65% of the issued and outstanding shares of
stock, or any property distributed in respect thereof, of any Issuer which
is a Controlled Foreign Corporation constitute collateral security for the
Obligations.
(b) Without the prior written consent of the Administrative Agent, no
Pledgor shall vote to enable, or take any other action to permit, any
Issuer to issue any stock or other equity securities of any nature or to
issue any other securities convertible into or granting the right to
purchase or exchange for any stock or other equity securities of any nature
of such Issuer sell, assign, transfer, exchange, or otherwise dispose of,
or grant any option with respect to, the Collateral, or create, incur or
permit to exist any Lien or option in favor of, or any claim of any Person
with respect to, any of the Collateral, or any interest therein, except for
the security interests
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created by this Agreement and Liens permitted by the Credit Agreement.
Each Pledgor will defend the right, title and interest of the
Administrative Agent and the Lenders in and to the Collateral against the
claims and demands of all Persons whomsoever.
(c) At any time and from time to time, upon the written request of
the Administrative Agent to a Pledgor, and at the sole expense of such
Pledgor, such Pledgor will promptly and duly execute and deliver such
further instruments and documents and take such further actions as the
Administrative Agent may reasonably request for the purposes of obtaining
or preserving the full benefits of this Agreement and of the rights and
powers herein granted. If any amount payable under or in connection with
any of the Collateral shall be or become evidenced by any promissory note,
other instrument or chattel paper, such note, instrument or chattel paper
shall be immediately delivered to the Administrative Agent, duly endorsed
in a manner satisfactory to the Administrative Agent, to be held as
Collateral pursuant to this Agreement.
(d) Each Pledgor shall pay, and save the Administrative Agent and the
Lenders harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or
other taxes which may be payable or determined to be payable with respect
to any of the Collateral granted by such Pledgor or in connection with any
of the transactions contemplated by this Agreement.
(e) Each Pledgor will not (i) amend, modify, terminate or waive any
provision of any Pledged Note in any manner materially adverse to the
interests of the Administrative Agent or the Lenders, (ii) fail to exercise
promptly and diligently each and every material right which it may have
under any Pledged Note where such failure could reasonably be expected to
have an adverse affect on the interests of the Administrative Agent or the
Lenders or (iii) fail to deliver to the Administrative Agent a copy of each
material demand, notice or document received by it relating in any way to
any Pledged Note.
(f) Without the prior written consent of the Administrative Agent, no
Pledgor will grant any extension (other than, so long as no Default or
Event of Default shall exist, extensions granted in accordance with prudent
business judgment) of the time of payment of any Pledged Note, compromise,
compound or settle the same for less than the full amount thereof, release,
wholly or partially, any Person liable for the payment thereof, or allow
any credit or discount whatsoever thereon.
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(g) Each Pledgor shall deliver to the Administrative Agent, in the
exact form received, to be held by the Administrative Agent, subject to the
terms hereof, as additional collateral security for the Obligations of such
Pledgor any additional promissory notes made by any Obligor for the benefit
of such Pledgor or other securities, options or rights received by it in
substitution or exchange for, or as a conversion of, or in addition to, any
of the Pledged Notes, or otherwise in respect thereof, together with an
undated endorsement or power, as the case may be, duly executed to the
order of "Bearer" or in blank, as the case may be, by such Pledgor and
with, if the Administrative Agent reasonably requests, signature
guaranteed.
6. Cash Dividends; Voting Rights; Interest and Principal Payments.
(a) Unless an Event of Default shall have occurred and be continuing and the
Administrative Agent shall have given notice to a Pledgor of the Administrative
Agent's intent to exercise its corresponding rights pursuant to Section below,
such Pledgor shall be permitted to receive all cash dividends paid in the normal
course of business and consistent with past practice, to the extent permitted in
the Credit Agreement, in respect of the Pledged Stock of such Pledgor and to
exercise all voting and corporate rights with respect to such Pledged Stock;
provided, however, that no vote shall be cast or corporate right exercised or
other action taken which, in the Administrative Agent's reasonable judgment,
would impair the Collateral or which would be inconsistent with or result in any
violation of any provision of the Credit Agreement, the Notes, this Agreement or
any other Loan Document.
(b) Unless an Event of Default shall have occurred and be continuing
and the Administrative Agent shall have given notice to a Pledgor of the
Administrative Agent's intent to exercise its corresponding rights pursuant to
Section 7 hereof, such Pledgor shall be permitted to receive and retain all
scheduled interest and principal payments on account of the Pledged Notes of
such Pledgor.
7. Rights of the Lenders and the Administrative Agent. (a) If an
Event of Default shall occur and be continuing and the Administrative Agent
shall give notice of its intent to exercise such rights to a Pledgor, the
Administrative Agent shall have the right to receive any and all cash dividends
paid in respect of the Pledged Stock of such Pledgor and any and all interest,
principal or other payments paid in respect of the Pledged Notes of such
Pledgor and make application thereof to the Obligations of such Pledgor in such
order as the Administrative Agent may determine, and all shares of such
Pledged Stock shall be registered in the name of the Administrative Agent or
its nominee, and the Administrative Agent or its nominee may thereafter
exercise all voting, corporate and other rights pertaining to such Pledged
Stock at any meeting of shareholders of any Issuer or otherwise and any and
all rights of
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conversion, exchange, subscription and any other rights, privileges or options
pertaining to such Pledged Stock as if it were the absolute owner thereof
(including, without limitation, the right to exchange at its discretion any and
all of such Pledged Stock upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate structure of any
Issuer, or upon the exercise by such Pledgor or the Administrative Agent of any
right, privilege or option pertaining to such Pledged Stock, and in connection
therewith, the right to deposit and deliver any and all of such Pledged Stock
with any committee, depositary, transfer agent, registrar or other designated
agency upon such terms and conditions as the Administrative Agent may
determine) and (3) the Administrative Agent or its nominee may thereafter
exercise all rights pertaining to such Pledged Notes (including without
limitation, any and all rights of conversion, exchange, subscription and any
other rights, privileges or options pertaining thereto) as if it were the
absolute owner thereof, all without liability except to account for property
actually received by it, but the Administrative Agent shall have no duty to
such Pledgor to exercise any such right, privilege or option and shall not be
responsible for any failure to do so or delay in so doing.
(b) Anything herein to the contrary notwithstanding, each Pledgor shall
remain liable under the Pledged Notes of such Pledgor to observe and perform
all the conditions and obligations to be observed and performed by it
thereunder all in accordance with the terms and provisions of such Pledged
Notes. Neither the Administrative Agent nor the Lenders shall have any
obligation or liability under any Pledged Note by reason of or arising out of
this Agreement or the receipt by the Administrative Agent or the Lenders of
any payment relating to such Pledged Note pursuant hereto (other than to
account for monies actually received by it), nor shall the Administrative Agent
or any of the Lenders be obligated in any manner to perform any of the
obligations of any Pledgor under or pursuant to any Pledged Note, to make any
payment, to make any inquiry as to the nature or the sufficiency of any payment
received by it or as to the sufficiency of any performance by any party under
any Pledged Note, to present or file any claim, to take any action to enforce
any performance or to collect the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
(c) The rights of the Administrative Agent and the Lenders hereunder
shall not be conditioned or contingent upon the pursuit by the Administrative
Agent or any Lender of any right or remedy against any Issuer or any Obligor
or against any other Person which may be or become liable in respect of all or
any part of the Obligations or against any collateral security therefor,
guarantee thereof or right of offset with respect thereto. Neither the
Administrative Agent nor any Lender shall be liable for any failure to demand,
collect or realize upon all or any part of the Collateral or for any delay in
doing so, nor
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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
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Agent or any such Lender. If any notice of a proposed sale or other
disposition of Collateral shall be required by law, such notice shall be deemed
reasonable and proper if given at least 10 days before such sale or other
disposition. Each Pledgor shall remain liable for any deficiency if the
proceeds of any sale or other disposition of Collateral are insufficient to pay
the Obligations of such Pledgor and the fees and disbursements of any attorneys
employed by the Administrative Agent or any Lender to collect such deficiency.
9. Registration Rights; Private Sales. (a) If the Administrative Agent
shall determine to exercise its right to sell any or all of the Pledged Stock
of any Pledgor pursuant to paragraph 8 hereof, and if in the opinion of the
Administrative Agent it is necessary or advisable to have such Pledged Stock,
or that portion thereof to be sold, registered under the provisions of the
Securities Act, such Pledgor will cause the Issuer thereof to execute and
deliver, and cause the directors and officers of such Issuer to execute and
deliver, all such instruments and documents, and do or cause to be done all
such other acts as may be, in the opinion of the Administrative Agent,
necessary or advisable to register such Pledged Stock, or that portion thereof
to be sold, under the provisions of the Securities Act, to use its best
efforts to cause the registration statement relating thereto to become
effective and to remain effective for a period of one year from the date of the
first public offering of such Pledged Stock, or that portion thereof to be sold
and to make all amendments thereto and/or to the related prospectus which, in
the opinion of the Administrative Agent, are necessary or advisable, all in
conformity with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto. Such
Pledgor agrees to cause such Issuer to comply with the provisions of the
securities or "Blue Sky" laws of any and all jurisdictions which the
Administrative Agent shall designate and to make available to its security
holders, as soon as practicable, an earnings statement (which need not be
audited) which will satisfy the provisions of Section 11(a) of the Securities
Act.
(b) Each Pledgor recognizes that the Administrative Agent may be unable to
effect a public sale of any or all the Pledged Stock, by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws or otherwise, and may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers which will be obliged to agree,
among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. Such
Pledgor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The
Administrative Agent shall be under no obligation to delay a sale of any of the
Pledged Stock for the
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period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
(c) Each Pledgor further agrees to use its best efforts to do or cause to
be done all such other acts as may be necessary to make such sale or sales of
all or any portion of the Pledged Stock pursuant to this Section valid and
binding and in compliance with any and all other applicable Requirements of
Law. Such Pledgor further agrees that a breach of any of the covenants
contained in this Section will cause irreparable injury to the Administrative
Agent and the Lenders, that the Administrative Agent and the Lenders have no
adequate remedy at law in respect of such breach and, as a consequence, that
each and every covenant contained in this Section 9 shall be specifically
enforceable against such Pledgor, and such Pledgor hereby waives and agrees not
to assert any defenses against an action for specific performance of such
covenants except for a defense that no Event of Default has occurred under the
Credit Agreement.
10. Irrevocable Authorization and Instruction to Issuer and Obligor. Each
Pledgor hereby authorizes and instructs each Issuer of its Pledged Stock and
each Obligor of its Pledged Notes to comply with any instruction received by it
from the Administrative Agent in writing that (a) states that an Event of
Default has occurred and (b) is otherwise in accordance with the terms of this
Agreement, without any other or further instructions from such Pledgor, and
such Pledgor agrees that each such Issuer and each such Obligor shall be fully
protected in so complying.
11. Administrative Agent's Appointment as Attorney-in-Fact.
(a) Each Pledgor hereby irrevocably constitutes and appoints the
Administrative Agent and any officer or agent of the Administrative Agent, with
full power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of such Pledgor and in
the name of such Pledgor or in the Administrative Agent's own name, from time
to time in the Administrative Agent's discretion, for the purpose of carrying
out the terms of this Agreement, to take any and all appropriate action and to
execute any and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this Agreement, including, without
limitation, any financing statements, endorsements, assignments or other
instruments of transfer.
(b) Each Pledgor hereby ratifies all that said attorneys shall lawfully
do or cause to be done pursuant to the power of attorney granted in paragraph.
All powers, authorizations and agencies contained in this Agreement are coupled
with an interest and are irrevocable until the Obligations are paid in full and
the Commitments are terminated.
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12. Duty of Administrative Agent. The Administrative Agent's sole
duty with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Code or otherwise,
shall be to deal with it in the same manner as the Administrative Agent deals
with similar securities and property for its own account. Neither the
Administrative Agent, any Lender nor any of their respective directors,
officers, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of any Pledgor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof.
13. Execution of Financing Statements. Pursuant to Section 9-402 of the
Code, each Pledgor authorizes the Administrative Agent to file financing
statements with respect to the Collateral without the signature of such Pledgor
in such form and in such filing offices as the Administrative Agent reasonably
determines appropriate to perfect the security interests of the Administrative
Agent under this Agreement.
14. Authority of Administrative Agent. Each Pledgor acknowledges that
the rights and responsibilities of the Administrative Agent under this
Agreement with respect to any action taken by the Administrative Agent or the
exercise or non-exercise by the Administrative Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the Administrative
Agent and the Lenders, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Administrative Agent and a Pledgor, the Administrative Agent
shall be conclusively presumed to be acting as agent for the Lenders with full
and valid authority so to act or refrain from acting, and neither any Pledgor,
any Issuer nor any Obligor shall be under any obligation, or entitlement, to
make any inquiry respecting such authority.
15. Notices. All notices, requests and demands to or upon the
Administrative Agent, any Pledgor, any Issuer or any Obligor to be effective
shall be in writing (or by telex, fax or similar electronic transfer confirmed
in writing) and shall be deemed to have been duly given or made when delivered
by hand or if given by mail, three days after being deposited in the mail,
postage prepaid, or if by telex, fax or similar electronic transfer, when sent
and receipt has been confirmed, addressed to the Administrative Agent at its
address or transmission number for notices provided in the Credit Agreement, to
each Pledgor at its address or transmission number for notices provided in the
Subsidiaries Guarantee and to each Issuer and each Obligor at its address set
forth in its Acknowledgment and Consent. Any Pledgor, any Issuer and any
Obligor may change
14
14
their addresses and transmission numbers for notices by written notice to the
Administrative Agent.
16. Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
17. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None
of the terms or provisions of this Agreement as it affects any Pledgor may be
waived, amended, supplemented or otherwise modified except by a written
instrument executed by such Pledgor and the Administrative Agent, provided that
any provision of this Agreement may be waived by the Administrative Agent and
the Lenders in a letter or agreement executed by the Administrative Agent or by
telex or facsimile transmission from the Administrative Agent.
(b) Neither the Administrative Agent nor any Lender shall by any act
(except by a written instrument pursuant to paragraph 17. (a) hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default or in any
breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Administrative Agent or any Lender,
any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Administrative Agent or any Lender
of any right or remedy hereunder on any one occasion shall not be construed as
a bar to any right or remedy which the Administrative Agent or such Lender
would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
18. Section Headings. The Section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
19. Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of each Pledgor and shall inure to the benefit of the
Administrative Agent and the Lenders and their successors and assigns.
15
15
20. Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
16
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be duly
executed and delivered as of the date first above written.
SAC/THERMO-BARN, INC.
BARNSTEAD THERMOLYNE CORPORATION
SAC/ERIE, INC.
ERIE SCIENTIFIC COMPANY
NAUGATUCK GLASS COMPANY
METAVAC, INC.
NALGE NUNC INTERNATIONAL
CORPORATION
NALGE COMPANY
SYBRON DENTAL SPECIALTIES, INC.
SAC/ORMCO, INC.
ORMCO CORPORATION
E.T.M. CORPORATION
EXCELLENCE IN ENDODONTICS, INC.
SAC/KERR, INC.
KERR CORPORATION
SAC/COMMONWEALTH, INC.
SYBRON COMMONWEALTH HOLDINGS, INC.
NUNC U.K. LIMITED
__________________________________
By:
Title:
17
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
SAC/THERMO-BARN, INC.
Class Stock No. of Total No.
of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ------------------------ -------- ------------ ------- -----------
Barnstead Thermolyne Common 2 100 100
Corporation
18
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
BARNSTEAD/THERMOLYNE CORPORATION
Class Stock No. of Total No.
of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ------------------------ -------- ------------ ------- -----------
Biomolecular, Inc. Common 85 100 100
19
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
SAC/ERIE, INC.
Class Stock No. of Total No.
of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ------------------------ -------- ------------ ------- -----------
Erie Scientific Common 1 100 100
Company
20
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
ERIE SCIENTIFIC COMPANY
Class Stock No. of Total No.
of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ---------------------- ----- ----------- ------- -----------
Erie Scientific Common 001 1,000 1,000
Company of Puerto Rico
- ------------------------------------------------------------------------------
Erie Electroverre SA Common 9 325 500
- ------------------------------------------------------------------------------
Erie-Watala Glass Voting 5 42 84
Company Limited
Nonvoting 6 16 16
- ------------------------------------------------------------------------------
Erie Scientific 65% equity 363,880,000
Hungary Kft. interest
- ------------------------------------------------------------------------------
Ever Ready Thermometer Common 2 100 100
Co., Inc.
- ------------------------------------------------------------------------------
Owl Scientific, Inc. Common 2 100 100
- ------------------------------------------------------------------------------
Richard-Allan Common 1 100 100
Scientific Company
- ------------------------------------------------------------------------------
New England Reagent Common 1 100 100
Laboratory, Inc.
- ------------------------------------------------------------------------------
Casco Standards, Inc. Common 2 100 100
- ------------------------------------------------------------------------------
Naugatuck Glass Common 234 179,280 179,280
Company
- ------------------------------------------------------------------------------
21
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
NAUGATUCK GLASS COMPANY
Stock No. of Total No.
Class of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ----------- ---------- ----------- ------- -----------
Metavac, Common 1 1,000 1,000
Inc.
22
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
METAVAC, INC.
Stock No. of Total No.
Class of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ----------- ---------- ----------- ----------- ------------
Bedford Common 1 1,000 1,000
Mirror, Inc.
23
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
NALGE NUNC INTERNATIONAL CORPORATION
Stock No. of Total No.
Class of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ----------- ---------- ----------- ----------- ------------
Nalge Company Common 2 100 100
Nunc
Incorporated Common 5 100 100
24
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
NALGE COMPANY
Class Stock No. of Total No.
of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ------------------------ -------- ------------ ------- -----------
Nalge (Europe) Common 1 100 100
Incorporated
- ------------------------------------------------------------------------------
I-Chem Company Common 2 1,000 1,000
- ------------------------------------------------------------------------------
Sani-Tech, Inc. Common 2 100 100
- ------------------------------------------------------------------------------
Acutech Plastics, Common 9 4,500 4,500
Inc.
25
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
SYBRON DENTAL SPECIALTIES, INC.
Class Stock No. of Total No.
of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ------------------------ -------- ------------ ------- -----------
SAC/Kerr, Inc. Common 1 1,000 2,000
2 1,000
- ------------------------------------------------------------------------------
SAC/Commonwealth, Inc. Common 1 600 2,000
2 350
3 650
4 350
- ------------------------------------------------------------------------------
SAC/Ormco Common 1 1,000 2,000
2 1,000
26
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
SAC/ORMCO, INC.
Class Stock No. of Total No.
of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ------------------------ -------- ------------ ------- -----------
Ormco Corporation Common 1 100 100
27
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
ORMCO CORPORATION
Stock No. of Total No. of
Class of Certificate Shares Shares
Issuer Stock No. Pledged Outstanding
- ---------------- -------- ----------- ------- -------------
Ormco Common 1 65 100
(Europe) AG
- ------------------------------------------------------------------------------
Ormex, SA Common 15 128,677 196,964 variable
de CV 1,000 fixed
- ------------------------------------------------------------------------------
Ormco Pty Common 4 30,550 47,000
Limited
- ------------------------------------------------------------------------------
Ormco de "B" Series 6 6,500 10,000 "B"
Mexico, SA "B-V" Series 1 244,801 386,617 "B-V"
de CV
- ------------------------------------------------------------------------------
Allesee Common 12 1,840 1,840
Orthodontic
Appliances,
Inc.
- ------------------------------------------------------------------------------
E.T.M. Common 199 100 100
Corporation
- ------------------------------------------------------------------------------
Excellence Common 4 100 100
in Endo-
dontics,
Inc.
28
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
E.T.M. CORPORATION
Stock No. of Total No.
Class of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ----------- ---------- ----------- ----------- ------------
E.T.M. Series A 6 32,500 50,000
Corporation Capital
de Mexico, Stock
SA de CV
29
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
EXCELLENCE IN ENDODONTICS, INC.
Stock No. of Total No.
Class of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ----------- ---------- ----------- ----------- ------------
Analytic Common 2 100 100
Technology
Corporation
30
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
SAC/KERR, INC.
Stock No. of Total No.
Class of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ----------- ---------- ----------- ----------- ------------
Kerr Common 2 100 100
Corporation
- ------------------------------------------------------------------------------
Kerr Ordinary 3 600,202 923,389
Australia Pty
Limited
31
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
ERIE SCIENTIFIC COMPANY
Class Stock No. of Total No.
of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ---------------------- ----- ----------- ------- -----------
Kerr Italia S.p.A. 11 13,988 21,520
- ------------------------------------------------------------------------------
Kerr (Europe) AG Common 7 163 250
- ------------------------------------------------------------------------------
Sybron Asia Ltd A-001 1,000 1,800
B-009 100
C-001 50
F-004 10
F-005 10
- ------------------------------------------------------------------------------
Demetron Research Common 28 640,020 640,020
Corp.
- ------------------------------------------------------------------------------
Sybron Deutschland Quotas Deed DM 845,000 DM 1,300,000
GmbH
- ------------------------------------------------------------------------------
Belle De St. Common 2 100 100
Claire, Inc.
- ------------------------------------------------------------------------------
Metrex Research Common 4 100 100
Corporation
32
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
SAC/COMMONWEALTH, INC.
Stock No. of Total No.
Class of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ----------- ---------- ----------- ------- -----------
Sybron Commonwealth Common 2 65 100
Holdings, Inc. 1 35
________________________________________________________________________________
Sybron Canada Limited Common 3 651 1000
33
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
SYBRON COMMONWEALTH HOLDINGS, INC.
Stock No. of Total No.
Class of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ----------- ---------- ----------- ----------- ------------
Sybron UK 0 [5 or 6] 1 500,000
Limited 7 324,999
34
SCHEDULE 1
TO SUBSIDIARIES PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
NUNC U.K. LIMITED
Stock No. of Total No.
Class of Certificate Shares of Shares
Issuer Stock No. Pledged Outstanding
- ----------- ---------- ----------- ----------- ------------
Sybron Common 1 65,000 100,000
Holdings A/S (no classi-
fication)
35
SCHEDULE 2
TO SUBSIDIARIES PLEDGE AGREEMENT
PLEDGED NOTES
[NAME OF PLEDGOR]
Original
Date of Principal
Obligor Note Amount
- ------- ------- ---------
$___________
36
ANNEX A
To Subsidiaries Pledge Agreement
ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned is an Issuer referred to in the foregoing Amended
and Restated Subsidiaries Pledge Agreement, and each of the undersigned hereby
acknowledges receipt of a copy of the Amended and Restated Subsidiaries Pledge
Agreement, dated as of July 9, 1996, made by the Pledgors (as defined therein)
in favor of Chemical Bank, as Administrative Agent (as amended, supplemented or
otherwise modified from time to time, the "Pledge Agreement"). The undersigned
agree for the benefit of the Administrative Agent and the Lenders as follows:
1. The undersigned will be bound by the terms of the Pledge Agreement and
will comply with such terms insofar as such terms are applicable to the
undersigned.
2. The undersigned will notify the Administrative Agent promptly in writing
of the occurrence of any of the events described in paragraph of the Pledge
Agreement.
3. The terms of paragraph of the Pledge Agreement shall apply to it,
mutatis mutandis, with respect to all actions that may be required of it under
or pursuant to or arising out of Section of the Pledge Agreement.
BARNSTEAD THERMOLYNE CORPORATION
BIOMOLECULAR, INC.
ERIE SCIENTIFIC COMPANY
ERIE ELECTROVERRE S.A.
ERIE SCIENTIFIC COMPANY OF
PUERTO RICO
ERIE-WATALA GLASS COMPANY LIMITED
ERIE SCIENTIFIC HUNGARY KFT.
EVER READY THERMOMETER CO., INC.
OWL SCIENTIFIC, INC.
RICHARD-ALLAN SCIENTIFIC COMPANY
NEW ENGLAND REAGENT LABORATORY,
INC.
CASCO STANDARDS, INC.
THE NAUGATUCK GLASS COMPANY
METAVAC, INC.
BEDFORD MIRROR, INC.
NALGE COMPANY
NUNC INCORPORATED
NALGE (EUROPE) INCORPORATED
I-CHEM COMPANY
SANI-TECH, INC.
ACUTECH PLASTICS, INC.
37
SAC/ORMCO, INC.
ORMCO CORPORATION
ORMCO (EUROPE) A.G.
ORMEX, S.A. DE C.V.
ORMCO PTY. LTD.
ORMCO DE MEXICO SA de CV
ALLESEE ORTHODONTIC APPLIANCES,
INC.
E.T.M. CORPORATION
E.T.M. CORPORATION DE MEXICO,
SA de CV
EXCELLENCE IN ENDODONTICS, INC.
ANALYTIC TECHNOLOGY CORPORATION
SAC/KERR, INC.
KERR CORPORATION
KERR AUSTRALIA PTY. LIMITED
KERR ITALIA S.p.A.
KERR (EUROPE) A.G.
METREX RESEARCH CORPORATION
DEMETRON RESEARCH CORP.
BELLE DE ST. CLAIRE, INC.
SYBRON DEUTSCHLAND GMBH
SAC/COMMONWEALTH, INC.
SYBRON COMMONWEALTH HOLDINGS, INC.
SYBRON CANADA LIMITED
SYBRON U.K. LIMITED
SYBRON HOLDINGS A/S
--------------------------------------
By:
Title:
Address for Notices:
c/o Sybron International Corporation
411 East Wisconsin Avenue, 24th Floor
Milwaukee, Wisconsin 53202
Fax: (414) 274-6561