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EXHIBIT 4.6
[Conformed Copy]
SECOND AMENDED AND RESTATED PARENT PLEDGE AGREEMENT
SECOND AMENDED AND RESTATED PLEDGE AGREEMENT, dated as of April
25, 1997, made by Sybron International Corporation, a Wisconsin corporation
(the "Parent"), in favor of The Chase Manhattan Bank, as Administrative Agent
(in such capacity, the "Administrative Agent"), for the banks and other
financial institutions (the "Lenders") from time to time parties to the Second
Amended and Restated Credit Agreement, dated as of April 25, 1997 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among the Parent, Ormco Corporation, a Delaware corporation ("Ormco"), 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 Parent and its Subsidiaries and for general corporate
purposes, including permitted acquisitions (including the Remel Acquisition);
and
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WHEREAS, the Lenders, the Arranger and the Administrative Agent
are willing to agree to such amendment and restatement of the Existing Credit
Agreement;
WHEREAS, the Parent is the legal and beneficial owner of the
shares of Pledged Stock (as hereinafter defined) hereby pledged by the Parent;
WHEREAS, the Parent is the legal and beneficial owner of each of
the Pledged Notes (as hereinafter defined) hereby pledged by the Parent; and
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective extensions of credit to the Parent and the
Subsidiary Borrowers under the Credit Agreement that the Parent shall have
executed and delivered this Second Amended and Restated Parent Pledge Agreement
(this "Pledge Agreement") to the Administrative Agent for the ratable benefit
of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent and the Lenders to enter into the Credit Agreement
and to induce the Lenders to make their respective extensions of credit to the
Parent and Subsidiary Borrowers under the Credit Agreement, the Parent hereby
agrees with the Administrative Agent, for the ratable benefit of the Lenders,
as follows:
1. Defined Terms. (a) Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
(b) The following terms shall have the following meanings:
"Agreement": this Second Amended and Restated Pledge Agreement,
as the same may be amended, modified or otherwise supplemented from time
to time.
"Code": the Uniform Commercial Code from time to time in effect
in the State of New York.
"Collateral": the Pledged Stock, the Pledged Notes and all
Proceeds.
"Issuers": the collective reference to the companies identified
on Schedule 1 hereto as the issuers of the Pledged Stock.
"Obligations": (a) the unpaid principal amount of, and interest
on (including, without limitation, interest accruing after the maturity
of the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to the Parent, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the
Notes and all other obligations and liabilities of the Parent to the
Administrative Agent or to the Lenders, whether direct or indirect,
absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection
with, the Credit Agreement (including, without limitation, all
obligations and liabilities
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of the Parent under Section 9 of the Credit Agreement), the Notes, the
other Loan Documents and any other document made, delivered or given in
connection therewith or herewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all fees and disbursements of counsel to
the Administrative Agent or to the Lenders that are required to be paid
by the Parent pursuant to the terms of the Credit Agreement) or
otherwise and (b) all obligations of the Parent to any Lender or an
Affiliate of any Lender under or in connection with any Interest Rate
Agreement or foreign exchange contract.
"Obligors": the collective reference to the companies identified
on Schedule 2 hereto, as such Schedule may be amended from time to time.
"Pledged Notes": the promissory note or notes of the Obligors
identified on Schedule 2, together with all substitutes, replacements or
refinancings thereto that may be issued by any Obligor to the Parent
while this Agreement is in effect.
"Pledged Stock": the shares of capital stock listed on Schedule
1 hereto, together with all stock certificates, options or rights of any
nature whatsoever that may be issued or granted by any Issuer to the
Parent in respect of the Pledged Stock while this Agreement is in
effect.
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the State of New
York on the date hereof and, in any event, shall include, without
limitation, all dividends or other income from the Pledged Stock and the
Pledged Notes, collections thereon or distributions with respect
thereto.
"Securities Act": the Securities Act of 1933, as amended.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section and
paragraph references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Pledge; Grant of Security Interest. The Parent hereby
delivers to the Administrative Agent, for the ratable benefit of the Lenders,
all the Pledged Stock and the Pledged Notes and hereby grants to the
Administrative Agent, for the ratable benefit of the Lenders, a first security
interest in the Collateral, as collateral security for the prompt and complete
payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations.
3. Stock Powers and Allonges. (a) Concurrently with the
delivery to the Administrative Agent of each certificate representing one or
more shares of Pledged Stock to the Administrative Agent, the Parent shall
deliver an undated stock power covering such
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certificate, duly executed in blank by the Parent with, if the Administrative
Agent so requests, signature guaranteed.
(b) Concurrently with the delivery to the Administrative Agent
of each note representing one of the Pledged Notes, the Parent shall deliver
executed allonges endorsing such notes to "Bearer" with, if the Administrative
Agent so requests, signature guaranteed.
4. Representations and Warranties. The Parent represents and
warrants that:
(a) except as set forth on Schedule 1, the shares of Pledged
Stock constitute all the issued and outstanding shares of all classes of
the capital stock of each Issuer;
(b) the Pledged Notes listed on Schedule 2, as such Schedule
may be amended from time to time in accordance with the terms hereof,
constitute all of the issued and outstanding promissory notes payable by
the Subsidiaries of the Parent to the Parent;
(c) all the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable; and each of the
Pledged Notes has been duly and validly issued and is the legal, valid
and binding obligation of the maker thereof, enforceable in accordance
with its terms, except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and
an implied covenant of good faith and fair dealing;
(d) the Parent is the record and beneficial owner of, and has
good and marketable title to, the Pledged Stock and the Pledged Notes,
free of any and all Liens or options in favor of, or claims of, any
other Person, except the security interest created by this Agreement;
(e) upon delivery to the Administrative Agent of the stock
certificates evidencing the Pledged Stock and upon delivery to the
Administrative Agent of the Pledged Notes, the security interest created
by this Agreement will constitute a valid, perfected first priority
security interest in the Collateral, enforceable in accordance with its
terms against all creditors of the Parent and any Persons purporting to
purchase any Collateral from the Parent, except as affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing;
(f) on the Closing Date, all of the stock owned by the Parent
or any of its Subsidiaries in any of their respective Subsidiaries will
be pledged pursuant to one of the Pledge Agreements, other than 35% of
the stock of any Controlled Foreign Corporation (or other than all of
the stock of any Controlled Foreign Corporation
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which is owned directly by another Controlled Foreign Corporation) or
other than the stock of an inactive corporation or a corporation in the
process of liquidation;
(g) the Parent has obtained from each Issuer and has delivered
to the Administrative Agent an Acknowledgement and Consent,
substantially in the form attached hereto as Annex A, executed by each
such Issuer; and
(h) no consent or authorization of, filing with or other act
by or in respect of any Person is required in connection with the
execution, delivery, performance, validity or enforceability of the
Pledged Notes, and the Parent has fully performed all its obligations
under the Pledged Notes.
5. Covenants. The Parent covenants and agrees with the
Administrative Agent and the Lenders that, from and after the date of this
Agreement until the Obligations are paid in full and the Commitments are
terminated:
(a) If the Parent shall, as a result of its ownership of the
Pledged Stock, become entitled to receive or shall receive any stock
certificate (including, without limitation, any certificate representing
a stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), option or rights, whether
in addition to, in substitution of, as a conversion of, or in exchange
for any shares of the Pledged Stock, or otherwise in respect thereof,
the Parent shall accept the same as the agent of the Administrative
Agent and the Lenders, hold the same in trust for the Administrative
Agent and the Lenders and deliver the same forthwith to the
Administrative Agent in the exact form received, duly indorsed by the
Parent to the Administrative Agent, if required, together with an
undated stock power covering such certificate duly executed in blank by
the Parent and with, if the Administrative Agent so requests, signature
guaranteed, to be held by the Administrative Agent, subject to the terms
hereof, as additional collateral security for the Obligations. Any sums
paid upon or in respect of the Pledged Stock or the Pledged Notes upon
the liquidation or dissolution of any Issuer or any Obligor, as the case
may be, shall be paid over to the Administrative Agent to be held by it
hereunder as additional collateral security for the Obligations, and in
case any distribution of capital or payment of principal shall be made
on or in respect of the Pledged Stock or the Pledged Notes or any
property shall be distributed upon or with respect to the Pledged Stock
or the Pledged Notes pursuant to the recapitalization or
reclassification of the capital of any Issuer or any Obligor, as the
case may be, or pursuant to the reorganization thereof, the property so
distributed shall be delivered to the Administrative Agent to be held by
it hereunder as additional collateral security for the Obligations. If
any sums of money or property so paid or distributed in respect of the
Pledged Stock or the Pledged Notes shall be received by the Parent, the
Parent shall, until such money or property is paid or delivered to the
Administrative Agent, hold such money or property in trust for the
Lenders, segregated from other funds of the Parent, as additional
collateral security for the Obligations. Notwithstanding the foregoing,
in no event shall more than 65% of the issued and outstanding shares of
stock, or any property distributed in respect thereof, of any
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Issuer which is a Controlled Foreign Corporation constitute collateral
security for the Obligations of the Parent.
(b) Without the prior written consent of the Administrative
Agent, the Parent will not (1) vote to enable, or take any other action
to permit, any Issuer to issue any stock or other equity securities of
any nature or to issue any other securities convertible into or granting
the right to purchase or exchange for any stock or other equity
securities of any nature of such Issuer, (2) sell, assign, transfer,
exchange, or otherwise dispose of, or grant any option with respect to,
the Collateral, or (3) create, incur or permit to exist any Lien or
option in favor of, or any claim of any Person with respect to, any of
the Collateral, or any interest therein, except for the security
interests created by this Agreement and Liens permitted by the Credit
Agreement. The Parent will defend the right, title and interest of the
Administrative Agent and the Lenders in and to the Collateral against
the claims and demands of all Persons whomsoever.
(c) At any time and from time to time, upon the written
request of the Administrative Agent, and at the sole expense of the
Parent, the Parent will promptly and duly execute and deliver such
further instruments and documents and take such further actions as the
Administrative Agent may reasonably request for the purposes of
obtaining or preserving the full benefits of this Agreement and of the
rights and powers herein granted. If any amount payable under or in
connection with any of the Collateral shall be or become evidenced by
any promissory note, other instrument or chattel paper, such note,
instrument or chattel paper shall be immediately delivered to the
Administrative Agent, duly endorsed in a manner satisfactory to the
Administrative Agent, to be held as Collateral pursuant to this
Agreement.
(d) The Parent shall pay, and save the Administrative Agent
and the Lenders harmless from, any and all liabilities with respect to,
or resulting from any delay in paying, any and all stamp, excise, sales
or other taxes which may be payable or determined to be payable with
respect to any of the Collateral or in connection with any of the
transactions contemplated by this Agreement.
(e) The Parent will not (i) amend, modify, terminate or waive
any provision of any Pledged Note in any manner materially adverse to
the interests of the Administrative Agent or the Lenders, (ii) fail to
exercise promptly and diligently each and every material right which it
may have under any Pledged Note where such failure could reasonably be
expected to have an adverse affect on the interests of the
Administrative Agent or the Lenders or (iii) fail to deliver to the
Administrative Agent a copy of each material demand, notice or document
received by it relating in any way to any Pledged Note.
(f) Without the prior written consent of the Administrative
Agent, the Parent will not grant any extension (other than, so long as
no Default or Event of Default shall exist, extensions granted in
accordance with prudent business judgment) of the time of payment of any
Pledged Note, compromise, compound or settle the
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same for less than the full amount thereof, release, wholly or
partially, any Person liable for the payment thereof, or allow any
credit or discount whatsoever thereon.
(g) The Parent shall deliver to the Administrative Agent, in
the exact form received, to be held by the Administrative Agent, subject
to the terms hereof, as additional collateral security for the
Obligations any additional promissory notes made by any Obligor for the
benefit of the Parent or other securities, options or rights received by
it in substitution or exchange for, or as a conversion of, or in
addition to, any of the Pledged Notes, or otherwise in respect thereof,
together with an undated endorsement or power, as the case may be, duly
executed to the order of "Bearer" or in blank, as the case may be, by
the Parent and with, if the Administrative Agent reasonably requests,
signature guaranteed.
6. Cash Dividends; Voting Rights; Interest and Principal
Payments. (a) Unless an Event of Default shall have occurred and be
continuing and the Administrative Agent shall have given notice to the Parent
of the Administrative Agent's intent to exercise its corresponding rights
pursuant to Section 7 below, the Parent shall be permitted to receive all cash
dividends paid in the normal course of business and consistent with past
practice, to the extent permitted in the Credit Agreement, in respect of the
Pledged Stock and to exercise all voting and corporate rights with respect to
the Pledged Stock; provided, however, that no vote shall be cast or corporate
right exercised or other action taken which, in the Administrative Agent's
reasonable judgment, would impair the Collateral or which would be inconsistent
with or result in any violation of any provision of the Credit Agreement, the
Notes, this Agreement or any other Loan Document.
(b) Unless an Event of Default shall have occurred and be
continuing and the Administrative Agent shall have given notice to the Parent
of the Administrative Agent's intent to exercise its corresponding rights
pursuant to Section 7 hereof, the Parent shall be permitted to receive and
retain all scheduled interest and principal payments on account of the Pledged
Notes.
7. Rights of the Lenders and the Administrative Agent. (a)
If an Event of Default shall occur and be continuing and the Administrative
Agent shall give notice of its intent to exercise such rights to the Parent,
(1) the Administrative Agent shall have the right to receive any and all cash
dividends paid in respect of the Pledged Stock and any and all interest,
principal or other payments paid in respect of the Pledged Notes and make
application thereof to the Obligations in such order as the Administrative
Agent may determine, (2) all shares of the Pledged Stock shall be registered in
the name of the Administrative Agent or its nominee, and the Administrative
Agent or its nominee may thereafter exercise (A) all voting, corporate and
other rights pertaining to such shares of the Pledged Stock at any meeting of
shareholders of any Issuer or otherwise and (B) any and all rights of
conversion, exchange, subscription and any other rights, privileges or options
pertaining to such shares of the Pledged Stock as if it were the absolute owner
thereof (including, without limitation, the right to exchange at its discretion
any and all of the Pledged Stock upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the corporate
structure of any Issuer, or upon the exercise by the Parent or the
Administrative Agent of any right, privilege or option pertaining to such
shares
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of the Pledged Stock, and in connection therewith, the right to deposit and
deliver any and all of the Pledged Stock with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions as the Administrative Agent may determine) and (3) the
Administrative Agent or its nominee may thereafter exercise all rights
pertaining to the Pledged Notes (including without limitation, any and all
rights of conversion, exchange, subscription and any other rights, privileges
or options pertaining thereto) as if it were the absolute owner thereof, all
without liability except to account for property actually received by it, but
the Administrative Agent shall have no duty to the Parent to exercise any such
right, privilege or option and shall not be responsible for any failure to do
so or delay in so doing.
(b) Anything herein to the contrary notwithstanding, the
Parent shall remain liable under the Pledged Notes to observe and perform all
the conditions and obligations to be observed and performed by it thereunder
all in accordance with the terms and provisions of the Pledged Notes. Neither
the Administrative Agent nor the Lenders shall have any obligation or liability
under any Pledged Note by reason of or arising out of this Agreement or the
receipt by the Administrative Agent or the Lenders of any payment relating to
such Pledged Note pursuant hereto (other than to account for monies actually
received by it), nor shall the Administrative Agent or any of the Lenders be
obligated in any manner to perform any of the obligations of the Parent under
or pursuant to any Pledged Note, to make any payment, to make any inquiry as to
the nature or the sufficiency of any payment received by it or as to the
sufficiency of any performance by any party under any Pledged Note, to present
or file any claim, to take any action to enforce any performance or to collect
the payment of any amounts which may have been assigned to it or to which it
may be entitled at any time or times.
(c) The rights of the Administrative Agent and the Lenders
hereunder shall not be conditioned or contingent upon the pursuit by the
Administrative Agent or any Lender of any right or remedy against any Issuer or
any Obligor or against any other Person which may be or become liable in
respect of all or any part of the Obligations or against any collateral
security therefor, guarantee thereof or right of offset with respect thereto.
Neither the Administrative Agent nor any Lender shall be liable for any failure
to demand, collect or realize upon all or any part of the Collateral or for any
delay in doing so, nor shall the Administrative Agent be under any obligation
to sell or otherwise dispose of any Collateral upon the request of the Parent
or any other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof.
8. Remedies. If an Event of Default shall occur and be
continuing, the Administrative Agent, on behalf of the Lenders, may exercise,
in addition to all other rights and remedies granted in this Agreement and in
any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the Code.
Without limiting the generality of the foregoing, the Administrative Agent,
without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon the Parent, any Issuer, any Obligor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
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assign, give option or options to purchase or otherwise dispose of and deliver
the Collateral or any part thereof (or contract to do any of the foregoing), in
one or more parcels at public or private sale or sales, in the over-the-counter
market, at any exchange, broker's board or office of the Administrative Agent
or any Lender or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or for
future delivery without assumption of any credit risk. The Administrative
Agent or any Lender shall have the right upon any such public sale or sales,
and, to the extent permitted by law, upon any such private sale or sales, to
purchase the whole or any part of the Collateral so sold, free of any right or
equity of redemption in the Parent, which right or equity is hereby waived or
released. The Administrative Agent shall apply any Proceeds from time to time
held by it and the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs and
expenses of every kind incurred in respect thereof or incidental to the care or
safekeeping of any of the Collateral or in any way relating to the Collateral
or the rights of the Administrative Agent and the Lenders hereunder, including,
without limitation, reasonable attorneys' fees and disbursements of counsel to
the Administrative Agent, to the payment in whole or in part of the
Obligations, in such order as the Administrative Agent may elect, and only
after such application and after the payment by the Administrative Agent of any
other amount required by any provision of law, including, without limitation,
Section 9-504(1)(c) of the Code, need the Administrative Agent account for the
surplus, if any, to the Parent. To the extent permitted by applicable law, the
Parent waives all claims, damages and demands it may acquire against the
Administrative Agent or any Lender arising out of the exercise by them of any
rights hereunder, except such claims and damages arising out of the gross
negligence or willful misconduct of the Administrative Agent or any such
Lender. If any notice of a proposed sale or other disposition of Collateral
shall be required by law, such notice shall be deemed reasonable and proper if
given at least 10 days before such sale or other disposition. The Parent shall
remain liable for any deficiency if the proceeds of any sale or other
disposition of Collateral are insufficient to pay the Obligations and the fees
and disbursements of any attorneys employed by the Administrative Agent or any
Lender to collect such deficiency.
9. Registration Rights; Private Sales. (a) If the
Administrative Agent shall determine to exercise its right to sell any or all
of the Pledged Stock pursuant to paragraph 8 hereof, and if in the opinion of
the Administrative Agent it is necessary or advisable to have the Pledged
Stock, or that portion thereof to be sold, registered under the provisions of
the Securities Act, the Parent will cause the Issuer thereof to (1) execute and
deliver, and cause the directors and officers of such Issuer to execute and
deliver, all such instruments and documents, and do or cause to be done all
such other acts as may be, in the opinion of the Administrative Agent,
necessary or advisable to register the Pledged Stock, or that portion thereof
to be sold, under the provisions of the Securities Act, (2) to use its best
efforts to cause the registration statement relating thereto to become
effective and to remain effective for a period of one year from the date of the
first public offering of the Pledged Stock, or that portion thereof to be sold
and (3) to make all amendments thereto and/or to the related prospectus which,
in the opinion of the Administrative Agent, are necessary or advisable, all in
conformity with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto. The
Parent agrees to cause such Issuer to comply with the provisions of the
securities or "Blue Sky" laws of any and all jurisdictions which the
Administrative Agent shall designate and to make available to its
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security holders, as soon as practicable, an earnings statement (which need not
be audited) which will satisfy the provisions of Section 11(a) of the
Securities Act.
(b) The Parent recognizes that the Administrative Agent may be
unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. The
Parent acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The
Administrative Agent shall be under no obligation to delay a sale of any of the
Pledged Stock for the period of time necessary to permit the Issuer thereof to
register such securities for public sale under the Securities Act, or under
applicable state securities laws, even if such Issuer would agree to do so.
(c) The Parent further agrees to use its best efforts to do or
cause to be done all such other acts as may be necessary to make such sale or
sales of all or any portion of the Pledged Stock pursuant to this Section valid
and binding and in compliance with any and all other applicable Requirements of
Law. The Parent further agrees that a breach of any of the covenants contained
in this Section will cause irreparable injury to the Administrative Agent and
the Lenders, that the Administrative Agent and the Lenders have no adequate
remedy at law in respect of such breach and, as a consequence, that each and
every covenant contained in this Section 9 shall be specifically enforceable
against the Parent, and the Parent hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants except
for a defense that no Event of Default has occurred under the Credit Agreement.
10. Irrevocable Authorization and Instruction to Issuer and
Obligor. The Parent hereby authorizes and instructs each Issuer and Obligor to
comply with any instruction received by it from the Administrative Agent in
writing that (a) states that an Event of Default has occurred and (b) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from the Parent, and the Parent agrees that each Issuer
and each Obligor shall be fully protected in so complying.
11. Administrative Agent's Appointment as Attorney-in-Fact.
(a) The Parent hereby irrevocably constitutes and appoints the Administrative
Agent and any officer or agent of the Administrative Agent, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Parent and in the name of the
Parent or in the Administrative Agent's own name, from time to time in the
Administrative Agent's discretion, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement, including, without limitation, any financing
statements, endorsements, assignments or other instruments of transfer.
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(b) The Parent hereby ratifies all that said attorneys shall
lawfully do or cause to be done pursuant to the power of attorney granted in
paragraph 11.(a). All powers, authorizations and agencies contained in this
Agreement are coupled with an interest and are irrevocable until the
Obligations are paid in full and the Commitments are terminated.
12. Duty of Administrative Agent. The Administrative Agent's
sole duty with respect to the custody, safekeeping and physical preservation of
the Collateral in its possession, under Section 9-207 of the Code or otherwise,
shall be to deal with it in the same manner as the Administrative Agent deals
with similar securities and property for its own account. Neither the
Administrative Agent, any Lender nor any of their respective directors,
officers, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of the Parent or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof.
13. Execution of Financing Statements. Pursuant to Section
9-402 of the Code, the Parent authorizes the Administrative Agent to file
financing statements with respect to the Collateral without the signature of
the Parent in such form and in such filing offices as the Administrative Agent
reasonably determines appropriate to perfect the security interests of the
Administrative Agent under this Agreement.
14. Authority of Administrative Agent. The Parent
acknowledges that the rights and responsibilities of the Administrative Agent
under this Agreement with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any
option, voting right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Agreement shall, as between the
Administrative Agent and the Lenders, be governed by the Credit Agreement and
by such other agreements with respect thereto as may exist from time to time
among them, but, as between the Administrative Agent and the Parent, the
Administrative Agent shall be conclusively presumed to be acting as agent for
the Lenders with full and valid authority so to act or refrain from acting, and
neither the Parent, any Issuer nor any Obligor shall be under any obligation,
or entitlement, to make any inquiry respecting such authority.
15. Notices. All notices, requests and demands to or upon the
Administrative Agent, the Parent, any Issuer or any Obligor to be effective
shall be in writing (or by telex, fax or similar electronic transfer confirmed
in writing) and shall be deemed to have been duly given or made (1) when
delivered by hand or (2) if given by mail, three days after being deposited in
the mail, postage prepaid, or (3) if by telex, fax or similar electronic
transfer, when sent and receipt has been confirmed, addressed to the
Administrative Agent or the Parent at its address or transmission number for
notices provided in the Credit Agreement and to each Issuer and each Obligor at
its address set forth in its Acknowledgment and Consent. The Parent, any
Issuer and any Obligor may change their addresses and transmission numbers for
notices by written notice to the Administrative Agent.
16. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and
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any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
17. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Parent and the Administrative Agent, provided that any provision of this
Agreement may be waived by the Administrative Agent and the Lenders in a letter
or agreement executed by the Administrative Agent or by telex or facsimile
transmission from the Administrative Agent.
(b) Neither the Administrative Agent nor any Lender shall by
any act (except by a written instrument pursuant to paragraph 17.(a) hereof),
delay, indulgence, omission or otherwise be deemed to have waived any right or
remedy hereunder or to have acquiesced in any Default or Event of Default or in
any breach of any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising, on the part of the Administrative Agent or any
Lender, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Administrative Agent
or any Lender of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Administrative Agent or
such Lender would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
18. Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation
hereof.
19. Successors and Assigns. This Agreement shall be binding
upon the successors and assigns of the Parent and shall inure to the benefit of
the Administrative Agent and the Lenders and their successors and assigns.
20. Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
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IN WITNESS WHEREOF, the undersigned has caused this Agreement to
be duly executed and delivered as of the date first above written.
SYBRON INTERNATIONAL CORPORATION
By: /s/ Xxxx X. Xxxxx
-----------------------
Title: Assistant Treasurer
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SCHEDULE 1
TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
No. of Total No. of
Class of Stock Shares Shares
Issuer Stock Certificate No. Pledged Outstanding
-------------------------------- ---------- ----------------- --------------- -------------
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SCHEDULE 2
TO PLEDGE AGREEMENT
PLEDGED NOTES
Original
Date of Principal
Obligor Note Amount
------- ------- ---------
$
--------
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ANNEX A
ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned is an Issuer referred to in the foregoing
Pledge Agreement, and each of the undersigned hereby acknowledges receipt of a
copy of the Pledge Agreement, dated April 25, 1997, made by Sybron
International Corporation for the benefit of The Chase Manhattan Bank, as
Administrative Agent (as amended, supplemented or otherwise modified from time
to time, the "Pledge Agreement"). The undersigned agrees for the benefit of
the Administrative Agent and the Lenders as follows:
1. The undersigned will be bound by the terms of the Pledge
Agreement and will comply with such terms insofar as such terms are
applicable to the undersigned.
2. The undersigned will notify the Administrative Agent promptly
in writing of the occurrence of any of the events described in paragraph
5.(a) of the Pledge Agreement.
3. The terms of paragraph 9.(c) of the Pledge Agreement shall
apply to it, mutatis mutandis, with respect to all actions that may be
required of it under or pursuant to or arising out of Section 9 of the
Pledge Agreement.
SAC/THERMO-BARN, INC.
SAC/ERIE, INC.
SYBRON DENTAL SPECIALTIES, INC.
NALGE NUNC INTERNATIONAL
HOLDINGS, INC.
SYBRON TRANSITION CORP.
MEXOSERV COMPANY
-------------------------------------
By: Xxxx X. Xxxxx, Assistant
Treasurer
Address for Notices:
c/o Sybron International Corporation
000 Xxxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
