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EXHIBIT 4.8
[Conformed Copy]
SECOND AMENDED AND RESTATED
SUBSIDIARIES PLEDGE AGREEMENT
SECOND AMENDED AND RESTATED PLEDGE AGREEMENT, dated as of
April 25, 1997, made by each of the undersigned corporations (each, a
"Pledgor", and collectively, the "Pledgors") in favor of The Chase Manhattan
Bank, as Administrative Agent (in such capacity, the "Administrative Agent"),
for the banks and other financial institutions (the "Lenders") from time to
time parties to the Second Amended and Restated Credit Agreement, dated as of
April 25, 1997 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among Sybron International Corporation, a
Wisconsin corporation ("the Parent"), Ormco Corporation, a Delaware corporation
("Ormco"), Xxxx Corporation, a Delaware corporation ("Xxxx"), Nalge Nunc
International Corporation, a Delaware corporation ("NNI"), Erie Scientific
Company, a Delaware corporation ("Erie"), Barnstead Thermolyne Corporation, a
Delaware corporation ("Barnstead"; Ormco, Xxxx, NNI, Erie and Barnstead are
collectively referred to herein as the "Subsidiary Borrowers"), the Lenders,
the Administrative Agent and Chase Securities Inc., as arranger.
W I T N E S S E T H:
WHEREAS, the Parent (formerly known as Sybron Corporation),
the Subsidiary Borrowers, the banks parties thereto and The Chase Manhattan
Bank, as agent for such banks, are parties to that certain Amended and Restated
Credit Agreement, dated as of July 31, 1995 (as amended by the First Amendment,
the "Existing Credit Agreement") providing for certain Loans (as defined
therein) and other extensions of credit described therein;
WHEREAS, the Borrowers have requested that the Existing Credit
Agreement be amended and restated as hereinafter provided to, inter alia,
extend new Term Loans to the Subsidiary Borrowers in an aggregate principal
amount equal to the principal amount of the Term Loans extended under the
Existing Credit Agreement that has amortized to date and to increase the
Aggregate Revolving Credit Commitment from $300,000,000 to $600,000,000;
WHEREAS, the Subsidiary Borrowers will use the proceeds of the
Term Loans to finance the general corporate needs of the Parent and its
Subsidiaries, including permitted acquisitions (including the Remel
Acquisition, as defined in the Credit Agreement), to refinance existing
indebtedness and to pay fees and other expenses related thereto;
WHEREAS the Revolving Credit Borrowers will use the proceeds
of the Revolving Credit Loans and the Swing Line Loans to finance the working
capital needs of the
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Parent and its Subsidiaries and for general corporate purposes, including
permitted acquisitions (including the Remel Acquisition); and
WHEREAS, the Lenders, the Arranger and the Administrative
Agent are willing to agree to such amendment and restatement of the Existing
Credit Agreement;
WHEREAS, each Pledgor is the legal and beneficial owner of the
shares of Pledged Stock (as hereinafter defined) hereby pledged by such
Pledgor;
WHEREAS, each Pledgor is the legal and beneficial owner of
each of the Pledged Notes (as hereinafter defined) hereby pledged by such
Pledgor; and
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective extensions of credit to the Parent and the
Subsidiary Borrowers under the Credit Agreement that each Pledgor shall have
executed and delivered this Second Amended and Restated Subsidiaries Pledge
Agreement (this "Pledge Agreement") to the Administrative Agent for the ratable
benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent and the Lenders to enter into the Credit Agreement and
to induce the Lenders to make their respective extensions of credit to the
Parent and Subsidiary Borrowers under the Credit Agreement, each Pledgor hereby
agrees with the Administrative Agent, for the ratable benefit of the Lenders,
as follows:
1. Defined Terms. (a) Unless otherwise defined
herein, terms defined in the Credit Agreement or the Subsidiaries Guarantee and
used herein are so used as so defined.
(b) The following terms shall have the following
meanings:
"Agreement": this Second Amended and Restated Pledge
Agreement, as the same may be amended, modified or otherwise
supplemented from time to time.
"Code": the Uniform Commercial Code from time to time in
effect in the State of New York.
"Collateral": the Pledged Stock, the Pledged Notes and all
Proceeds.
"Issuers": the collective reference to the companies
identified on Schedule 1 hereto as the issuers of the Pledged Stock.
"Obligations" means (a) as to any Pledgor, all of its
obligations and liabilities (i) under the Subsidiaries Guarantee,
subject to the limitations on liability contained therein and (ii) to
any Lender or an Affiliate of any Lender under or in connection with
any Interest Rate Agreement or foreign exchange contract and (b)
without duplication, as to any Pledgor which is a Subsidiary Borrower,
the unpaid principal of and interest on (including, without
limitation,
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interest accruing after the maturity of the Loans made to such Pledgor
and interest accruing on or after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to such Pledgor, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding)
the Notes of such Pledgor and all other obligations and liabilities of
such Pledgor to the Administrative Agent or to the Lenders, whether
direct or indirect, absolute or contingent, due or to become due, or
now existing or hereafter incurred, which may arise under, out of, or
in connection with, the Credit Agreement, the Notes, any other Loan
Document and any other document made, delivered or given in connection
herewith or therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all fees and disbursements of counsel
to the Administrative Agent or to the Lenders) or otherwise; where the
context requires, "Obligations" refers to the Obligations (as defined
herein) of each and every Pledgor.
"Obligors": the collective reference to the companies
identified on Schedule 2 hereto, as such Schedule may be amended from
time to time.
"Pledged Notes": the promissory note or notes of the Obligors
identified on Schedule 2, together with all substitutes, replacements
or refinancings thereto that may be issued or granted by any Obligor
to any Pledgor while this Agreement is in effect.
"Pledged Stock": the shares of capital stock or other equity
interests listed on Schedule 1 hereto, together with all stock
certificates, options or rights of any nature whatsoever that may be
issued or granted by any Issuer to any Pledgor in respect of the
Pledged Stock while this Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the State of New
York on the date hereof and, in any event, shall include, without
limitation, all dividends or other income from the Pledged Stock and
the Pledged Notes, collections thereon or distributions with respect
thereto.
"Securities Act": the Securities Act of 1933, as amended.
(c) The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section and paragraph references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Pledge; Grant of Security Interest. Each Pledgor
hereby delivers to the Administrative Agent, for the ratable benefit of the
Lenders, all of the Pledged Stock (except
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such Pledged Stock which is not certificated) and the Pledged Notes listed with
its name on Schedule 1 or Schedule 2 hereto, as the case may be, and hereby
grants to the Administrative Agent, for the ratable benefit of the Lenders, a
first security interest in the Collateral granted by such Pledgor, as
collateral security for the prompt and complete payment and performance when
due (whether at the stated maturity, by acceleration or otherwise) of the
Obligations of such Pledgor.
3. Stock Powers and Allonges. (a) Concurrently with
the delivery to the Administrative Agent of each certificate representing one
or more shares of Pledged Stock to the Administrative Agent, the relevant
Pledgor shall deliver an undated stock power covering such certificate, duly
executed in blank by such Pledgor with, if the Administrative Agent so
requests, signature guaranteed.
(b) Concurrently with the delivery to the Administrative
Agent of each note representing one of the Pledged Notes, the relevant Pledgor
shall deliver executed allonges endorsing such notes to "Bearer" with, if the
Administrative Agent so requests, signature guaranteed.
4. Representations and Warranties. Each Pledgor
represents and warrants that:
(a) except as set forth on Schedule 1 hereto, the shares
of Pledged Stock of such Pledgor constitute all the issued and
outstanding shares of all classes of the capital stock of the Issuers
thereof; provided, however, that the parties acknowledge that the
capital stock of LMD Laboratories, Inc., an indirect subsidiary of
Erie with tangible assets of less than $1,000,000 and total assets of
less than $2,000,000, and of Lab Acquisition Co., a direct subsidiary
of Barnstead having no assets, have not been pledged hereunder.
(b) the Pledged Notes of such Pledgor constitute all of
the issued and outstanding promissory notes payable by the Parent and
the direct and indirect Subsidiaries of the Parent (other than such
Pledgor) to such Pledgor;
(c) all the shares of such Pledged Stock have been duly and
validly issued and are fully paid and nonassessable; and each of such
Pledged Notes has been duly and validly issued and is the legal, valid
and binding obligation of the maker thereof, enforceable in accordance
with its terms, except as affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing;
(d) such Pledgor is the record and beneficial owner of,
and has good and marketable title to, such Pledged Stock and Pledged
Notes, free of any and all Liens or options in favor of, or claims of,
any other Person, except the security interest created by this
Agreement;
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(e) upon delivery to the Administrative Agent of the
stock certificates evidencing such Pledged Stock (or in the case of
certain Issuers organized under foreign jurisdictions, the deed or
other document evidencing such Pledged Stock) and upon delivery to the
Administrative Agent of such Pledged Notes, the security interest
created by this Agreement will constitute a valid, perfected first
priority security interest in the Collateral granted by such Pledgor,
enforceable in accordance with its terms against all creditors of such
Pledgor and any Persons purporting to purchase any Collateral from
such Pledgor, except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing;
(f) such Pledgor has obtained from each Issuer and has
delivered to the Administrative Agent an Acknowledgement and Consent,
substantially in the form attached hereto as Annex A, executed by each
such Issuer; and
(g) no consent or authorization of, filing with or other
act by or in respect of any Person is required in connection with the
execution, delivery, performance, validity or enforceability of such
Pledged Notes, and such Pledgor has fully performed all its
obligations under such Pledged Notes.
5. Covenants. Each Pledgor covenants and agrees with
the Administrative Agent and the Lenders that, from and after the date of this
Agreement until the Obligations are paid in full and the Commitments are
terminated:
(a) If such Pledgor shall, as a result of its ownership
of any Pledged Stock, become entitled to receive or shall receive any
stock certificate (including, without limitation, any certificate
representing a stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), option or rights,
whether in addition to, in substitution of, as a conversion of, or in
exchange for any shares of any Pledged Stock, or otherwise in respect
thereof, such Pledgor shall accept the same as the agent of the
Administrative Agent and the Lenders, hold the same in trust for the
Administrative Agent and the Lenders and deliver the same forthwith to
the Administrative Agent in the exact form received, duly indorsed by
such Pledgor to the Administrative Agent, if required, together with
an undated stock power covering such certificate duly executed in
blank by such Pledgor and with, if the Administrative Agent so
requests, signature guaranteed, to be held by the Administrative
Agent, subject to the terms hereof, as additional collateral security
for the Obligations of such Pledgor. Any sums paid to such Pledgor
upon or in respect of any Pledged Stock or any Pledged Notes upon the
liquidation or dissolution of any Issuer or any Obligor, as the case
may be, shall be paid over to the Administrative Agent to be held by
it hereunder as additional collateral security for the Obligations of
such Pledgor, and in case any distribution of capital or payment of
principal shall be made to such Pledgor on or in respect of any
Pledged Stock or any Pledged Notes or any property shall be
distributed upon or with respect to any Pledged Stock or any Pledged
Notes pursuant
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to the recapitalization or reclassification of the capital of any
Issuer or any Obligor, as the case may be, or pursuant to the
reorganization thereof, the property so distributed to such Pledgor
shall be delivered to the Administrative Agent to be held by it
hereunder as additional collateral security for the Obligations of
such Pledgor. If any sums of money or property so paid or distributed
in respect of any Pledged Stock or any Pledged Notes shall be received
by such Pledgor, such Pledgor shall, until such money or property is
paid or delivered to the Administrative Agent, hold such money or
property in trust for the Lenders, segregated from other funds of such
Pledgor, as additional collateral security for the Obligations such
Pledgor. Notwithstanding the foregoing, in no event shall more than
65% of the issued and outstanding shares of stock, or any property
distributed in respect thereof, of any Issuer which is a Controlled
Foreign Corporation constitute collateral security for the
Obligations.
(b) Without the prior written consent of the
Administrative Agent, no Pledgor shall (1) vote to enable, or take any
other action to permit, any Issuer to issue any stock or other equity
securities of any nature or to issue any other securities convertible
into or granting the right to purchase or exchange for any stock or
other equity securities of any nature of such Issuer (2) sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with
respect to, the Collateral, or (3) create, incur or permit to exist
any Lien or option in favor of, or any claim of any Person with
respect to, any of the Collateral, or any interest therein, except for
the security interests created by this Agreement and Liens permitted
by the Credit Agreement. Each Pledgor will defend the right, title
and interest of the Administrative Agent and the Lenders in and to the
Collateral against the claims and demands of all Persons whomsoever.
(c) At any time and from time to time, upon the written
request of the Administrative Agent to a Pledgor, and at the sole
expense of such Pledgor, such Pledgor will promptly and duly execute
and deliver such further instruments and documents and take such
further actions as the Administrative Agent may reasonably request for
the purposes of obtaining or preserving the full benefits of this
Agreement and of the rights and powers herein granted. If any amount
payable under or in connection with any of the Collateral shall be or
become evidenced by any promissory note, other instrument or chattel
paper, such note, instrument or chattel paper shall be immediately
delivered to the Administrative Agent, duly endorsed in a manner
satisfactory to the Administrative Agent, to be held as Collateral
pursuant to this Agreement.
(d) Each Pledgor shall pay, and save the Administrative
Agent and the Lenders harmless from, any and all liabilities with
respect to, or resulting from any delay in paying, any and all stamp,
excise, sales or other taxes which may be payable or determined to be
payable with respect to any of the Collateral granted by such Pledgor
or in connection with any of the transactions contemplated by this
Agreement.
(e) Each Pledgor will not (i) amend, modify, terminate or
waive any provision of any Pledged Note in any manner materially
adverse to the interests of the
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Administrative Agent or the Lenders, (ii) fail to exercise promptly
and diligently each and every material right which it may have under
any Pledged Note where such failure could reasonably be expected to
have an adverse affect on the interests of the Administrative Agent or
the Lenders or (iii) fail to deliver to the Administrative Agent a
copy of each material demand, notice or document received by it
relating in any way to any Pledged Note.
(f) Without the prior written consent of the
Administrative Agent, no Pledgor will grant any extension (other than,
so long as no Default or Event of Default shall exist, extensions
granted in accordance with prudent business judgment) of the time of
payment of any Pledged Note, compromise, compound or settle the same
for less than the full amount thereof, release, wholly or partially,
any Person liable for the payment thereof, or allow any credit or
discount whatsoever thereon.
(g) Each Pledgor shall deliver to the Administrative
Agent, in the exact form received, to be held by the Administrative
Agent, subject to the terms hereof, as additional collateral security
for the Obligations of such Pledgor any additional promissory notes
made by any Obligor for the benefit of such Pledgor or other
securities, options or rights received by it in substitution or
exchange for, or as a conversion of, or in addition to, any of the
Pledged Notes, or otherwise in respect thereof, together with an
undated endorsement or power, as the case may be, duly executed to the
order of "Bearer" or in blank, as the case may be, by such Pledgor and
with, if the Administrative Agent reasonably requests, signature
guaranteed.
6. Cash Dividends; Voting Rights; Interest and Principal
Payments. (a) Unless an Event of Default shall have occurred and be
continuing and the Administrative Agent shall have given notice to a Pledgor of
the Administrative Agent's intent to exercise its corresponding rights pursuant
to Section 7 below, such Pledgor shall be permitted to receive all cash
dividends paid in the normal course of business and consistent with past
practice, to the extent permitted in the Credit Agreement, in respect of the
Pledged Stock of such Pledgor and to exercise all voting and corporate rights
with respect to such Pledged Stock; provided, however, that no vote shall be
cast or corporate right exercised or other action taken which, in the
Administrative Agent's reasonable judgment, would impair the Collateral or
which would be inconsistent with or result in any violation of any provision of
the Credit Agreement, the Notes, this Agreement or any other Loan Document.
(b) Unless an Event of Default shall have occurred and be
continuing and the Administrative Agent shall have given notice to a Pledgor of
the Administrative Agent's intent to exercise its corresponding rights pursuant
to Section 7 hereof, such Pledgor shall be permitted to receive and retain all
scheduled interest and principal payments on account of the Pledged Notes of
such Pledgor.
7. Rights of the Lenders and the Administrative Agent.
(a) If an Event of Default shall occur and be continuing and the
Administrative Agent shall give notice of its intent to exercise such rights to
a Pledgor, (1) the Administrative Agent shall have the right to receive any and
all cash dividends paid in respect of the Pledged Stock of such Pledgor and
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any and all interest, principal or other payments paid in respect of the
Pledged Notes of such Pledgor and make application thereof to the Obligations of
such Pledgor in such order as the Administrative Agent may determine, and (2)
all shares of such Pledged Stock shall be registered in the name of the
Administrative Agent or its nominee, and the Administrative Agent or its nominee
may thereafter exercise (A) all voting, corporate and other rights pertaining to
such Pledged Stock at any meeting of shareholders of any Issuer or otherwise and
(B) any and all rights of conversion, exchange, subscription and any other
rights, privileges or options pertaining to such Pledged Stock as if it were the
absolute owner thereof (including, without limitation, the right to exchange at
its discretion any and all of such Pledged Stock upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the corporate
structure of any Issuer, or upon the exercise by such Pledgor or the
Administrative Agent of any right, privilege or option pertaining to such
Pledged Stock, and in connection therewith, the right to deposit and deliver any
and all of such Pledged Stock with any committee, depositary, transfer agent,
registrar or other designated agency upon such terms and conditions as the
Administrative Agent may determine) and (3) the Administrative Agent or its
nominee may thereafter exercise all rights pertaining to such Pledged Notes
(including without limitation, any and all rights of conversion, exchange,
subscription and any other rights, privileges or options pertaining thereto) as
if it were the absolute owner thereof, all without liability except to account
for property actually received by it, but the Administrative Agent shall have no
duty to such Pledgor to exercise any such right, privilege or option and shall
not be responsible for any failure to do so or delay in so doing.
(b) Anything herein to the contrary notwithstanding, each
Pledgor shall remain liable under the Pledged Notes of such Pledgor to observe
and perform all the conditions and obligations to be observed and performed by
it thereunder all in accordance with the terms and provisions of such Pledged
Notes. Neither the Administrative Agent nor the Lenders shall have any
obligation or liability under any Pledged Note by reason of or arising out of
this Agreement or the receipt by the Administrative Agent or the Lenders of any
payment relating to such Pledged Note pursuant hereto (other than to account
for monies actually received by it), nor shall the Administrative Agent or any
of the Lenders be obligated in any manner to perform any of the obligations of
any Pledgor under or pursuant to any Pledged Note, to make any payment, to make
any inquiry as to the nature or the sufficiency of any payment received by it
or as to the sufficiency of any performance by any party under any Pledged
Note, to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
(c) The rights of the Administrative Agent and the
Lenders hereunder shall not be conditioned or contingent upon the pursuit by
the Administrative Agent or any Lender of any right or remedy against any
Issuer or any Obligor or against any other Person which may be or become liable
in respect of all or any part of the Obligations or against any collateral
security therefor, guarantee thereof or right of offset with respect thereto.
Neither the Administrative Agent nor any Lender shall be liable for any failure
to demand, collect or realize upon all or any part of the Collateral or for any
delay in doing so, nor shall the Administrative Agent be under any obligation
to sell or otherwise dispose of any Collateral
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upon the request of a Pledgor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof.
8. Remedies. If an Event of Default shall occur and be
continuing, the Administrative Agent, on behalf of the Lenders, may exercise,
in addition to all other rights and remedies granted in this Agreement and in
any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the Code.
Without limiting the generality of the foregoing, the Administrative Agent,
without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon any Pledgor, any Issuer, any Obligor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
assign, give option or options to purchase or otherwise dispose of and deliver
the Collateral or any part thereof (or contract to do any of the foregoing), in
one or more parcels at public or private sale or sales, in the over-the-counter
market, at any exchange, broker's board or office of the Administrative Agent
or any Lender or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or for
future delivery without assumption of any credit risk. The Administrative
Agent or any Lender shall have the right upon any such public sale or sales,
and, to the extent permitted by law, upon any such private sale or sales, to
purchase the whole or any part of the Collateral so sold, free of any right or
equity of redemption in any Pledgor, which right or equity is hereby waived or
released. The Administrative Agent shall apply any Proceeds from time to time
held by it and the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs and
expenses of every kind incurred in respect thereof or incidental to the care or
safekeeping of any of the Collateral or in any way relating to the Collateral
or the rights of the Administrative Agent and the Lenders hereunder, including,
without limitation, reasonable attorneys' fees and disbursements of counsel to
the Administrative Agent, to the payment in whole or in part of the
Obligations, in such order as the Administrative Agent may elect, and only
after such application and after the payment by the Administrative Agent of any
other amount required by any provision of law, including, without limitation,
Section 9-504(1)(c) of the Code, need the Administrative Agent account for the
surplus, if any, to any Pledgor. To the extent permitted by applicable law,
each Pledgor waives all claims, damages and demands it may acquire against the
Administrative Agent or any Lender arising out of the exercise by them of any
rights hereunder, except such claims and damages arising out of the gross
negligence or willful misconduct of the Administrative Agent or any such
Lender. If any notice of a proposed sale or other disposition of Collateral
shall be required by law, such notice shall be deemed reasonable and proper if
given at least 10 days before such sale or other disposition. Each Pledgor
shall remain liable for any deficiency if the proceeds of any sale or other
disposition of Collateral are insufficient to pay the Obligations of such
Pledgor and the fees and disbursements of any attorneys employed by the
Administrative Agent or any Lender to collect such deficiency.
9. Registration Rights; Private Sales. (a) If the
Administrative Agent shall determine to exercise its right to sell any or all
of the Pledged Stock of any Pledgor pursuant to paragraph 8 hereof, and if in
the opinion of the Administrative Agent it is necessary or
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advisable to have such Pledged Stock, or that portion thereof to be sold,
registered under the provisions of the Securities Act, such Pledgor will cause
the Issuer thereof to (1) execute and deliver, and cause the directors and
officers of such Issuer to execute and deliver, all such instruments and
documents, and do or cause to be done all such other acts as may be, in the
opinion of the Administrative Agent, necessary or advisable to register such
Pledged Stock, or that portion thereof to be sold, under the provisions of the
Securities Act, (2) to use its best efforts to cause the registration statement
relating thereto to become effective and to remain effective for a period of
one year from the date of the first public offering of such Pledged Stock, or
that portion thereof to be sold and (3) to make all amendments thereto and/or
to the related prospectus which, in the opinion of the Administrative Agent,
are necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and Exchange
Commission applicable thereto. Such Pledgor agrees to cause such Issuer to
comply with the provisions of the securities or "Blue Sky" laws of any and all
jurisdictions which the Administrative Agent shall designate and to make
available to its security holders, as soon as practicable, an earnings
statement (which need not be audited) which will satisfy the provisions of
Section 11(a) of the Securities Act.
(b) Each Pledgor recognizes that the Administrative Agent
may be unable to effect a public sale of any or all the Pledged Stock, by
reason of certain prohibitions contained in the Securities Act and applicable
state securities laws or otherwise, and may be compelled to resort to one or
more private sales thereof to a restricted group of purchasers which will be
obliged to agree, among other things, to acquire such securities for their own
account for investment and not with a view to the distribution or resale
thereof. Such Pledgor acknowledges and agrees that any such private sale may
result in prices and other terms less favorable than if such sale were a public
sale and, notwithstanding such circumstances, agrees that any such private sale
shall be deemed to have been made in a commercially reasonable manner. The
Administrative Agent shall be under no obligation to delay a sale of any of the
Pledged Stock for the period of time necessary to permit the Issuer thereof to
register such securities for public sale under the Securities Act, or under
applicable state securities laws, even if such Issuer would agree to do so.
(c) Each Pledgor further agrees to use its best efforts
to do or cause to be done all such other acts as may be necessary to make such
sale or sales of all or any portion of the Pledged Stock pursuant to this
Section valid and binding and in compliance with any and all other applicable
Requirements of Law. Such Pledgor further agrees that a breach of any of the
covenants contained in this Section will cause irreparable injury to the
Administrative Agent and the Lenders, that the Administrative Agent and the
Lenders have no adequate remedy at law in respect of such breach and, as a
consequence, that each and every covenant contained in this Section 9 shall be
specifically enforceable against such Pledgor, and such Pledgor hereby waives
and agrees not to assert any defenses against an action for specific
performance of such covenants except for a defense that no Event of Default has
occurred under the Credit Agreement.
10. Irrevocable Authorization and Instruction to Issuer
and Obligor. Each Pledgor hereby authorizes and instructs each Issuer of its
Pledged Stock and each Obligor of its Pledged Notes to comply with any
instruction received by it from the Administrative
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Agent in writing that (a) states that an Event of Default has occurred and (b)
is otherwise in accordance with the terms of this Agreement, without any other
or further instructions from such Pledgor, and such Pledgor agrees that each
such Issuer and each such Obligor shall be fully protected in so complying.
11. Administrative Agent's Appointment as
Attorney-in-Fact. (a) Each Pledgor hereby irrevocably constitutes and
appoints the Administrative Agent and any officer or agent of the
Administrative Agent, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of such Pledgor and in the name of such Pledgor or in the Administrative
Agent's own name, from time to time in the Administrative Agent's discretion,
for the purpose of carrying out the terms of this Agreement, to take any and
all appropriate action and to execute any and all documents and instruments
which may be necessary or desirable to accomplish the purposes of this
Agreement, including, without limitation, any financing statements,
endorsements, assignments or other instruments of transfer.
(b) Each Pledgor hereby ratifies all that said attorneys
shall lawfully do or cause to be done pursuant to the power of attorney granted
in paragraph 11.(a). All powers, authorizations and agencies contained in this
Agreement are coupled with an interest and are irrevocable until the
Obligations are paid in full and the Commitments are terminated.
12. Duty of Administrative Agent. The Administrative
Agent's sole duty with respect to the custody, safekeeping and physical
preservation of the Collateral in its possession, under Section 9-207 of the
Code or otherwise, shall be to deal with it in the same manner as the
Administrative Agent deals with similar securities and property for its own
account. Neither the Administrative Agent, any Lender nor any of their
respective directors, officers, employees or agents shall be liable for failure
to demand, collect or realize upon any of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of any Pledgor or any other Person or to take any
other action whatsoever with regard to the Collateral or any part thereof.
13. Execution of Financing Statements. Pursuant to
Section 9-402 of the Code, each Pledgor authorizes the Administrative Agent to
file financing statements with respect to the Collateral without the signature
of such Pledgor in such form and in such filing offices as the Administrative
Agent reasonably determines appropriate to perfect the security interests of
the Administrative Agent under this Agreement.
14. Authority of Administrative Agent. Each Pledgor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Agreement with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any
option, voting right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Agreement shall, as between the
Administrative Agent and the Lenders, be governed by the Credit Agreement and
by such other agreements with respect thereto as may exist from time to time
among them, but, as between the Administrative Agent and a Pledgor, the
Administrative Agent shall be conclusively presumed to be acting as agent for
the Lenders with full and valid authority so to
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act or refrain from acting, and neither any Pledgor, any Issuer nor any Obligor
shall be under any obligation, or entitlement, to make any inquiry respecting
such authority.
15. Notices. All notices, requests and demands to or
upon the Administrative Agent, any Pledgor, any Issuer or any Obligor to be
effective shall be in writing (or by telex, fax or similar electronic transfer
confirmed in writing) and shall be deemed to have been duly given or made (1)
when delivered by hand or (2) if given by mail, three days after being
deposited in the mail, postage prepaid, or (3) if by telex, fax or similar
electronic transfer, when sent and receipt has been confirmed, addressed to the
Administrative Agent at its address or transmission number for notices provided
in the Credit Agreement, to each Pledgor at its address or transmission number
for notices provided in the Subsidiaries Guarantee and to each Issuer and each
Obligor at its address set forth in its Acknowledgment and Consent. Any
Pledgor, any Issuer and any Obligor may change their addresses and transmission
numbers for notices by written notice to the Administrative Agent.
16. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
17. Amendments in Writing; No Waiver; Cumulative
Remedies. (a) None of the terms or provisions of this Agreement as it affects
any Pledgor may be waived, amended, supplemented or otherwise modified except
by a written instrument executed by such Pledgor and the Administrative Agent,
provided that any provision of this Agreement may be waived by the
Administrative Agent and the Lenders in a letter or agreement executed by the
Administrative Agent or by telex or facsimile transmission from the
Administrative Agent.
(b) Neither the Administrative Agent nor any Lender shall
by any act (except by a written instrument pursuant to paragraph 17.(a)
hereof), delay, indulgence, omission or otherwise be deemed to have waived any
right or remedy hereunder or to have acquiesced in any Default or Event of
Default or in any breach of any of the terms and conditions hereof. No failure
to exercise, nor any delay in exercising, on the part of the Administrative
Agent or any Lender, any right, power or privilege hereunder shall operate as a
waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Administrative Agent
or any Lender of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Administrative Agent or
such Lender would otherwise have on any future occasion.
(c) The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.
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18. Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation
hereof.
19. Successors and Assigns. This Agreement shall be
binding upon the successors and assigns of each Pledgor and shall inure to the
benefit of the Administrative Agent and the Lenders and their successors and
assigns.
20. Governing Law. This Agreement shall be governed by,
and construed and interpreted in accordance with, the law of the State of New
York.
IN WITNESS WHEREOF, the undersigned has caused this Agreement
to be duly executed and delivered as of the date first above written.
SAC/THERMO-BARN, INC.
BARNSTEAD THERMOLYNE CORPORATION
SAC/ERIE, INC.
ERIE SCIENTIFIC COMPANY
NAUGATUCK GLASS COMPANY
METAVAC, INC.
NALGE NUNC INTERNATIONAL HOLDINGS,
INC.
NALGE NUNC INTERNATIONAL
CORPORATION
SYBRON DENTAL SPECIALTIES, INC.
SAC/ORMCO, INC.
ORMCO CORPORATION
SAC/XXXX, INC.
XXXX CORPORATION
SAC/COMMONWEALTH, INC.
SYBRON COMMONWEALTH HOLDINGS,
INC.
NUNC U.K. LIMITED
XXXXXXX-XXXXX SCIENTIFIC COMPANY
By: /s/ Xxxx X. Xxxxx
----------------------------------
Assistant Treasurer
14
SCHEDULE 1
TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
[NAME OF PLEDGOR]
Total No. of
Stock Certificate No. of Shares Shares
Issuer Class of Stock No. Pledged Outstanding
--------------------------- -------------- ---------------------- ------------------- ------------------
15
SCHEDULE 2
TO PLEDGE AGREEMENT
PLEDGED NOTES
[NAME OF PLEDGOR]
Original
Date of Principal
Obligor Note Amount
--------------------- ------------ ------------
$
-----------
16
ANNEX A
To Pledge Agreement
ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned is an Issuer referred to in the
foregoing Pledge Agreement, and each of the undersigned hereby acknowledges
receipt of a copy of the Pledge Agreement, dated as of April 25, 1997, made by
the Pledgors (as defined therein) in favor of The Chase Manhattan Bank, as
Administrative Agent (as amended, supplemented or otherwise modified from time
to time, the "Pledge Agreement"). The undersigned agree for the benefit of the
Administrative Agent and the Lenders as follows:
1. The undersigned will be bound by the terms of the
Pledge Agreement and will comply with such terms insofar as such terms are
applicable to the undersigned.
2. The undersigned will notify the Administrative Agent
promptly in writing of the occurrence of any of the events described in
paragraph 5.(a) of the Pledge Agreement.
3. The terms of paragraph 9.(c) of the Pledge Agreement shall
apply to it, mutatis mutandis, with respect to all actions that may be required
of it under or pursuant to or arising out of Section 9 of the Pledge Agreement.
BARNSTEAD THERMOLYNE CORPORATION
BIOMOLECULAR, INC.
ERIE SCIENTIFIC COMPANY
ERIE ELECTROVERRE S.A.
ERIE SCIENTIFIC COMPANY OF
PUERTO RICO
ERIE-WATALA GLASS COMPANY LIMITED
ERIE SCIENTIFIC HUNGARY KFT.
EVER READY THERMOMETER CO., INC.
XXXXXXX-XXXXX SCIENTIFIC COMPANY
NEW ENGLAND REAGENT LABORATORY,
INC.
CASCO STANDARDS, INC.
THE NAUGATUCK GLASS COMPANY
METAVAC, INC.
BEDFORD MIRROR, INC.
NALGE NUNC INTERNATIONAL
CORPORATION
SANI-TECH, INC.
SAC/ORMCO, INC.
ORMCO CORPORATION
ORMCO (EUROPE) A.G.
ORMEX, S.A. DE C.V.
17
2
ORMCO PTY. LTD.
ORMCO DE MEXICO SA de XX
XXXXXXX ORTHODONTIC APPLICANCES,
INC.
S.D.S. DE MEXICO, SA de CV
SAC/XXXX, INC.
XXXX CORPORATION
XXXX AUSTRALIA PTY. LIMITED
XXXX ITALIA S.P.A.
XXXX (EUROPE) A.G.
METREX RESEARCH CORPORATION
BELLE DE ST. CLAIRE, INC.
SYBRON DEUTSCHLAND GMBH
SAC/COMMONWEALTH, INC.
SYBRON COMMONWEALTH HOLDINGS,
INC.
SYBRON CANADA LIMITED
SYBRON U.K. LIMITED
SYBRON HOLDINGS A/S
XXXXXX ACQUISITION CO.
ALEXON BIOMEDICAL, INC.
REMEL INC.
TREND SCIENTIFIC, INC.
FLEXIBLE COMPONENTS, INC.
PURE FIT, INC.
PRECISION ROTARY INSTRUMENTS, INC.
SYBRON DENTAL SPECIALTIES JAPAN, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Assistant Secretary or
Authorized Agent
Address for Notices:
c/o Sybron International Corporation
000 Xxxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
