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EXHIBIT 4.1
[CONFORMED COPY]
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SYBRON INTERNATIONAL CORPORATION,
ORMCO CORPORATION,
XXXX CORPORATION,
NALGE NUNC INTERNATIONAL CORPORATION,
ERIE SCIENTIFIC COMPANY
and
BARNSTEAD THERMOLYNE CORPORATION
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$900,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of April 25, 1997
(Amending and Restating the $550,000,000 Amended and
Restated Credit Agreement, dated as of July 31, 1995, as
amended by the First Amendment, dated as of July 9, 1996)
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CHASE SECURITIES INC.,
as Arranger
THE CHASE MANHATTAN BANK,
as Administrative Agent
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
April 25, 1997 (amending and restating the $550,000,000 Amended and Restated
Credit Agreement, dated as of July 31, 1995, as amended by the First Amendment,
dated as of July 9, 1996 (the "First Amendment")), 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" and
together with the Parent, the "Borrowers"), the several banks and other
financial institutions from time to time parties thereto (the "Lenders"), Chase
Securities Inc. (formerly known as Chemical Securities Inc.), as Arranger, and
The Chase Manhattan Bank (formerly known as Chemical Bank), a New York banking
corporation, as administrative agent for the Lenders thereunder (in such
capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, pursuant to the $550,000,000 Amended and Restated
Credit Agreement, dated as of July 31, 1995 (as amended by the First Amendment,
the "Existing Credit Agreement"), among the Borrowers, the Lenders, the
Arranger and the Administrative Agent, the Lenders parties thereto have agreed
to extend credit to the Borrowers;
WHEREAS, the Borrowers have requested that the Existing Credit
Agreement be amended and restated as hereinafter provided to, inter alia,
extend new 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 herein), 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
WHEREAS, the Lenders, the Arranger and the Administrative
Agent are willing to agree to such amendment and restatement;
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NOW, THEREFORE, the parties hereto hereby agree that on the
Amendment and Restatement Effective Date (as defined below) the Existing Credit
Agreement will be amended and restated in its entirety as follows:
SUBSECTIONS 1.1 THROUGH 11.8
Subsections 1.1 through 11.8 of the Existing Credit Agreement,
in each case with their respective existing subsection and Section
designations, are hereby incorporated herein by reference as if set forth in
full herein, except that, for purposes of such incorporation by reference:
1. Amendments to Section 1. Subsection 1.1 of the Existing Credit
Agreement shall be deemed amended by deleting the definitions of "Acquisition
Documentation", "Aggregate Revolving Credit Commitment", "Agreement",
"Applicable Level", "Applicable Margin", "Consolidated Adjusted Operating
Profit", "Excepted Indebtedness", "Leverage Ratio", "Parent Pledge Agreement",
"QFL Notes", "QFL Revolving Credit Note", "QFL Term Note", "Revolving Credit
Note", "Subsidiaries Guarantee", "Subsidiaries Pledge Agreement" and "Term
Note" in their entirety and inserting the following definitions in alphabetical
order:
"`Acquisition Documentation': (i) the Purchase Agreement
dated as of March 14, 1997 among Remel, Regional Media Laboratories,
Inc., Riverside/Remel Limited Partnership, Xxxxxxx Family Partnership,
L.P., Riverside Partners, Inc. and Xxxxxx X. Xxxxxx, as Trustee of the
Xxxx Xxxx Xxxxxxx Trust, Xxxx Xxx Xxxxxxx Trust, Megan Xxxx Xxxxxxx
Trust and Xxxxxx Xxx Xxxxxxx Trust, as the same may be amended,
supplemented or otherwise modified from time to time and (ii) all
other material documentation executed and delivered in connection
therewith.
`Aggregate Revolving Credit Commitment': shall mean
$600,000,000, as such amount may be reduced from time to time pursuant
to the terms of this Agreement.
`Agreement': this Second Amended and Restated Credit
Agreement, as amended, supplemented or modified from time to time.
`Amendment and Restatement Effective Date': the date on which
each of the conditions precedent specified in subsection 5.3 shall
have been satisfied.
`Applicable Level': means, as of any day, Xxxxx 0, Xxxxx 0,
Xxxxx 0 or Level 4 as set forth below, whichever is applicable on such
day, with each new Level to take effect when the Parent delivers (i)
in the case of the first three fiscal quarters of the Parent in any
fiscal year, the certificate of a Responsible Officer required by
subsection 6.2(d) indicating the Parent's Leverage Ratio for the
period of four full fiscal quarters of the Parent ending on the last
day of such quarter and the quarterly financial statements of the
Parent and its consolidated Subsidiaries for such quarter pursuant to
subsection 6.1(b) and (ii) in the case of the last fiscal quarter of
the Parent
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in any fiscal year, the certificate of a Responsible Officer required
by subsection 6.2(d) indicating the Parent's Leverage Ratio for the
period of four full fiscal quarters of the Parent ending on the last
day of such quarter and the financial statements of the Parent and its
consolidated Subsidiaries pursuant to subsection 6.1(a) (provided that
in no event shall a change in the Applicable Level become effective
earlier than 30 days after the last day of such period of four full
fiscal quarters of the Parent):
Leverage Ratio
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Level 1 Less than or equal to
2.0 to 1.0
Level 2 Equal to or less than
2.5 to 1.0, but greater
than 2.0 to 1.0
Level 3 Equal to or less than
3.25 to 1.0, but greater
than 2.5 to 1.0
Level 4 Greater than 3.25
to 1.0
provided, however, that, (x) in the event that the financial
statements required to be delivered pursuant to subsection 6.1(a) or
6.1(b) or the certificate required by subsection 6.2(d) are not
delivered when due, then during the period from the date upon which
such financial statements and certificate were required to be
delivered until the date upon which they actually are delivered, the
Applicable Level shall be deemed to be Xxxxx 0 and (y) in the event
that the financial statements required to be delivered pursuant to
subsection 6.1(a), when delivered pursuant to such subsection,
indicate an Applicable Level that is lower or higher than the
Applicable Level determined in accordance with the Responsible
Officer's certificate delivered following the period of four full
fiscal quarters of the Parent immediately preceding such day, then the
Applicable Level shall be deemed to have been the Level determined in
accordance with such financial statements for the period from the date
of delivery of such Responsible Officer's certificate until the date
of delivery of such financial statements and, thereafter until the
next determination of an Applicable Level, shall be the Applicable
Level determined in accordance with such financial statements.
`Applicable Margin': for each Eurodollar Loan (a) during the
period from the Amendment and Restatement Effective Date to the date
on which the financial statements of the Parent and its Subsidiaries
are delivered to each Lender pursuant to subsection 6.1(b) with
respect to the fiscal quarter of the Parent ending June 30,
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1997, .75% per annum or, at any time after such financial statements
are required to be delivered pursuant to such subsection and are not
so delivered, .875% per annum and (b) for each day after such
delivery, the rate per annum set forth below opposite the Applicable
Level in effect on such day:
Applicable Level Rate
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Xxxxx 0 .5%
Xxxxx 0 .625%
Xxxxx 0 .75%
Xxxxx 0 .875%
`Consolidated Adjusted Operating Profit': for any period,
Consolidated Net Income for such period before deduction of any
applicable income taxes and excluding (i) any extraordinary items of
gain or loss and (ii) gain or loss from discontinued operations
(classified under GAAP), plus Consolidated Interest Expense for such
period, plus depreciation and amortization expenses for such period,
to the extent the same are deducted from net revenues in determining
Consolidated Net Income for such period.
`Excepted Indebtedness': the Indebtedness of the Parent or
any of its Subsidiaries permitted to exist pursuant to subsection 7.2
(other than subsection 7.2(g)).
`Leverage Ratio': on the date of any determination thereof,
the ratio of Consolidated Funded Indebtedness on such date to
Consolidated Adjusted Operating Profit for the four full fiscal
quarters ending on such date; provided that for purposes of
calculating Consolidated Adjusted Operating Profit for any period of
four full fiscal quarters, the Consolidated Adjusted Operating Profit
of any Person acquired during such period shall be included on a pro
forma basis for such period of four full fiscal quarters (assuming the
consummation of each such acquisition and the incurrence or assumption
of any Indebtedness in connection therewith occurred on the first day
of such period of four full fiscal quarters and assuming only such
cost reductions as are related to such acquisition and are immediately
realizable as of the date of such acquisition). For purposes of this
calculation, Consolidated Adjusted Operating Profit of any such Person
acquired during such period shall be derived from a certificate, in
form and substance satisfactory to the Administrative Agent, of a duly
authorized financial officer of the Parent setting forth such
Consolidated Adjusted Operating Profit.
`NNI': as defined in the preamble to this Agreement.
`Parent Pledge Agreement': the Second Amended and Restated
Parent Pledge Agreement to be executed and delivered by the Parent,
substantially in the form of Exhibit D to this Agreement, as the same
may be amended, supplemented or otherwise modified from time to time.
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`Remel': Remel Inc. (formerly known as Remel Acquisition
Co.), a Wisconsin corporation and a direct Subsidiary of Erie.
`Remel Acquisition': the acquisition of all of the ownership
interests of Remel Limited Partnership and affiliates by Remel.
`Revolving Credit Note': as defined in subsection 2.2.
`Subordinated Indebtedness': any unsecured Indebtedness of
the Parent or any of its Subsidiaries (a) no part of the principal of
which is stated to be payable or is required to be paid (whether by
way of mandatory sinking fund, mandatory redemption, mandatory
prepayment or otherwise) prior to the Termination Date, and the
payment of the principal of and any interest on which and other
obligations of the Parent and the Subsidiary Borrowers in respect
thereof are subordinated to the prior payment in full of the principal
of and interest (including post-petition interest) on the Notes and
all other obligations and liabilities of the Parent and the Subsidiary
Borrowers to the Agent and the Lenders hereunder on terms and
conditions first approved in writing by the Majority Lenders and (b)
otherwise containing terms, covenants and conditions satisfactory in
form and substance to the Majority Lenders, as evidenced by their
prior written approval thereof.
`Subsidiaries Guarantee': the Second Amended and Restated
Subsidiaries Guarantee to be executed and delivered by each Subsidiary
Guarantor, substantially in the form of Exhibit E to this Agreement,
as the same may be amended, supplemented or otherwise modified from
time to time.
`Subsidiaries Pledge Agreement': the Second Amended and
Restated Subsidiaries Pledge Agreement, substantially in the form of
Exhibit F to this Agreement, as the same may be amended, supplemented
or otherwise modified from time to time.
`Subsidiary Guarantors': the Subsidiaries of the Parent
listed as such on Schedule IV to this Agreement together with any new
Subsidiaries which execute a Subsidiaries Guarantee subsequent to the
Amendment and Restatement Effective Date.
`Term Note': as defined in subsection 2.12 (as renumbered in
accordance with the First Amendment)."
2. Amendments to Section 2. Section 2 of the Existing Credit
Agreement shall be deemed amended by:
(a) deleting in its entirety subsection 2.2 thereof and
substituting in lieu thereof the following new subsection 2.2:
"2.2 Revolving Credit Notes. Each Revolving Credit Borrower
shall issue a promissory note to evidence the Revolving Credit Loans
made by each Lender to such
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Revolving Credit Borrower, substantially in the form of Exhibit A to
this Agreement, with appropriate insertions as to payee, date and
principal amount (a "Revolving Credit Note"), payable to the order of
such Lender and in a principal amount equal to the lesser of (a) the
amount of the initial Revolving Credit Commitment of such Lender and
(b) the aggregate unpaid principal amount of all Revolving Credit
Loans made by such Lender to such Revolving Credit Borrower. A
Revolving Credit Note and the Obligation evidenced thereby may be
assigned or otherwise transferred in whole or in part only by
registration of such assignment or transfer of such Revolving Credit
Note and the Obligation evidenced thereby in the Register (and each
Revolving Credit Note shall expressly so provide). Any assignment or
transfer of all or part of an Obligation evidenced by a Revolving
Credit Note shall be registered in the Register only upon surrender
for registration of assignment or transfer of the Revolving Credit
Note evidencing such Obligation, accompanied by an Assignment and
Acceptance substantially in the form of Exhibit I duly executed by the
Assignor thereof, and thereupon one or more new Revolving Credit Notes
shall be issued to the designated Assignee and the old Revolving
Credit Note shall be returned by the Administrative Agent to the
Borrower marked "cancelled." No assignment of a Revolving Credit Note
and the Obligation evidenced thereby shall be effective unless it
shall have been recorded in the Register by the Administrative Agent
as provided in this subsection 2.2. Each Lender is hereby authorized
to record the date, Type and amount of each Revolving Credit Loan made
by such Lender to a Revolving Credit Borrower, each continuation
thereof, each conversion of all or a portion thereof to another Type,
the date and amount of each payment or prepayment of principal thereof
and, in the case of Eurodollar Loans, the length of each Interest
Period and the Eurodollar Rate with respect thereto, on the
appropriate schedule annexed to and constituting a part of its
Revolving Credit Note (or any continuation thereof), and any such
recordation shall constitute prima facie evidence of the accuracy of
the information so recorded. Each Revolving Credit Note shall (x) be
dated the Amendment and Restatement Effective Date, (y) be stated to
mature on the Termination Date and (z) provide for the payment of
interest in accordance with subsection 2.19."
(b) adding at the end of the first parenthetical contained in
the proviso to subsection 2.3 thereof, after the words, "one Business Day prior
to the requested Borrowing Date, otherwise", the following:
"(except that notice may be given on the actual date of
borrowing for ABR Loans to be borrowed on the Amendment and
Restatement Effective Date pursuant to the Second Amendment
and Restatement hereof)".
(c) adding at the end of paragraph (a) of subsection 2.5
thereof the following:
"Offers for CAF Advances can be accepted in amounts of $5,000,000 and
integral multiples of $1,000,000 in excess thereof, provided that for
each CAF Advance Request the total of the offers accepted may amount
to no less than $10,000,000."
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(d) deleting in its entirety the first sentence of subsection
2.7 thereof and substituting in lieu thereof the following:
"2.7 CAF Advance Notes. Each Revolving Credit Borrower shall
issue a promissory note to evidence the CAF Advances made by each
Lender to such Revolving Credit Borrower, substantially in the form of
Exhibit H to this Agreement, with appropriate insertions as to payee,
date and principal amount (a " CAF Advance Note"), payable to the
order of such Lender and representing the obligation of each Revolving
Credit Borrower to pay the lesser of (a) the amount of the Aggregate
Revolving Credit Commitment and (b) the unpaid principal amount of all
CAF Advances made by such Lender to such Revolving Credit Borrower,
with interest on the unpaid principal amount from time to time
outstanding of each CAF Advance evidenced thereby as prescribed in
subsection 2.6(b)."
(e) deleting in its entirety the third sentence of subsection
2.7 thereof and substituting in lieu thereof the following:
"Each CAF Advance Note shall be dated the Amendment and
Restatement Effective Date, and each CAF Advance evidenced thereby
shall bear interest for the period from and including the Borrowing
Date of such CAF Advance on the unpaid principal amount thereof from
time to time outstanding at the applicable rate per annum determined
as provided in, and such interest shall be payable as specified in,
subsection 2.6(b)."
(f) deleting in its entirety subsection 2.9 thereof (as
renumbered in accordance with the First Amendment) and substituting in lieu
thereof the following new subsection 2.9:
"2.9 Commitment Fees. The Parent agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee
(a) during the period from the Amendment and Restatement Effective
Date to the date on which the financial statements of the Parent and
its Subsidiaries are delivered to each Lender pursuant to subsection
6.1(b) with respect to the fiscal quarter of the Parent ending June
30, 1997, computed at the rate of .20% per annum on the Available
Revolving Credit Commitments of such Lender on such day or, at any
time after such financial statements are required to be delivered by
such subsection and are not so delivered, .225% per annum on the
Available Revolving Credit Commitments of such Lender and (b) for each
day after such delivery to but excluding the Termination Date, the
rate per annum set forth in the column labeled "Rate" below opposite
the category below which describes the Applicable Level in effect on
such day on the Available Revolving Credit Commitments of such Lender
on such day:
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Applicable Level Rate
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Xxxxx 0 .15%
Xxxxx 0 .1875%
Xxxxx 0 .20%
Xxxxx 0 .225%
(g) deleting in its entirety subsection 2.11 (as renumbered
in accordance with the First Amendment) thereof and substituting in lieu
thereof the following:
"2.11 Term Loans. Subject to the terms and conditions
hereof, each Lender severally agrees to make term loans to the
Subsidiary Borrowers on the Amendment and Restatement Effective Date
in an aggregate principal amount equal to such Lender's Term Loan
Commitment Percentage of the difference of (a) $300,000,000 (a " Term
Loan") minus (b) the Term Loans outstanding on the Amendment and
Restatement Effective Date after giving effect to subsection 11.19,
and in an aggregate principal amount for each Subsidiary Borrower
(after giving effect to the Term Loans outstanding on the Amendment
and Restatement Effective Date and the Term Loans made on the
Amendment and Restatement Effective Date) as follows: (a)
$45,000,000, in the case of each of Ormco, Erie and Barnstead, (b)
$75,000,000, in the case of Xxxx and (c) $90,000,000, in the case of
NNI. The Term Loans may from time to time be (i) Eurodollar Loans,
(ii) ABR Loans or (iii) a combination thereof, as determined by the
Parent and notified to the Administrative Agent in accordance with
subsections 2.13 and 2.17."
(h) deleting in its entirety subsection 2.12 thereof (as
renumbered in accordance with the First Amendment) and substituting in lieu
thereof the following:
"2.12 Term Notes. Each Subsidiary Borrower shall issue a
promissory note to evidence the Term Loans made by each Lender to such
Subsidiary Borrower, substantially in the form of Exhibit B to this
Agreement (a " Term Note"), with appropriate insertions therein as to
payee, date and principal amount, payable to the order of such Lender
and in a principal amount equal to the lesser of such Lender's Term
Loan Commitment Percentage of the amount set forth opposite such
Subsidiary Borrower's name on the signature pages hereto and the
aggregate amount of the Term Loan (or portions thereof) made by such
Lender to such Subsidiary Borrower. A Term Note and the Obligation
evidenced thereby may be assigned or otherwise transferred in whole or
in part only by registration of such assignment or transfer of such
Term Note and the Obligation evidenced thereby in the Register (and
each Term Note shall expressly so provide). Any assignment or
transfer of all or part of an Obligation evidenced by a Term Note
shall be registered in the Register only upon surrender for
registration of assignment or transfer of the Term Note evidencing
such Obligation, accompanied by an Assignment and Acceptance
substantially in the form of Exhibit I duly executed by the Assignor
thereof, and thereupon one or more new Term Notes shall be issued to
the designated Assignee and the old Term Note shall be returned by the
Administrative Agent to the Borrower marked "cancelled." No
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assignment of a Term Note and the Obligation evidenced thereby shall
be effective unless it shall have been recorded in the Register by the
Administrative Agent as provided in this subsection 2.12. Each Lender
is hereby authorized to record the date and amount of each payment or
prepayment of principal of its Term Loan made to such Subsidiary
Borrower, each continuation thereof, each conversion of all or a
portion thereof to another Type and, in the case of Eurodollar Loans,
the length of each Interest Period with respect thereto, on the
appropriate schedule annexed to and constituting a part of its Term
Note (or any continuation thereof), and any such recordation shall
constitute prima facie evidence of the accuracy of the information so
recorded. The Term Note of each Lender shall (a) be dated the
Amendment and Restatement Effective Date, (b) be stated to mature in
21 consecutive quarterly installments, payable on the last day of each
October, January, April and July, commencing on July 31, 1997, each of
which shall be in an amount equal to such Lender's Term Loan
Commitment Percentage of the respective amounts set forth in
accordance with the following schedule multiplied by a fraction the
numerator of which is equal to (i) $45,000,000 in the case of
installments payable by Ormco, Erie or Barnstead, (ii) $75,000,000 in
the case of installments payable by Xxxx or (iii) $90,000,000 in the
case of installments payable by NNI and the denominator of which is
equal in each case to $300,000,000.
Date Principal Amount
---- ----------------
July 31, 1997 $ 8,750,000
October 31, 1997 $ 8,750,000
January 31, 1998 $ 8,750,000
April 30, 1998 $ 8,750,000
July 31, 1998 $ 8,750,000
October 31, 1998 $ 8,750,000
January 31, 1999 $ 8,750,000
April 30, 1999 $ 8,750,000
July 31, 1999 $10,000,000
October 31, 1999 $10,000,000
January 31, 2000 $10,000,000
April 30, 2000 $10,000,000
July 31, 2000 $12,500,000
October 31, 2000 $12,500,000
January 31, 2001 $12,500,000
April 30, 2001 $12,500,000
July 31, 2001 $16,250,000
October 31, 2001 $16,250,000
January 31, 2002 $16,250,000
April 30, 2002 $16,250,000
July 31, 2002 $75,000,000
and (c) provide for the payment of interest in accordance with
subsection 2.19."
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(i) deleting in its entirety paragraph (c) of subsection 2.15
thereof (as renumbered in accordance with the First Amendment) and substituting
in lieu thereof the following:
"(c) Any prepayment required by the terms of this subsection
2.15 shall be applied first to the reduction of the Term Loans in
accordance with the following sentence until such Term Loans shall
have been satisfied in full and second to the permanent reduction of
the Aggregate Revolving Credit Commitment. Prepayments of the Term
Loans pursuant to this subsection 2.15 shall be applied equally
between (i) the outstanding installments of principal scheduled to be
paid pursuant to subsection 2.12 immediately succeeding the date of
such prepayment and (ii) the last outstanding scheduled installments
of principal pursuant to subsection 2.12. Amounts prepaid on account
of the Term Loans may not be reborrowed."
(j) deleting the reference to "$5,000,000" in the first
sentence of paragraph (a) of subsection 2.16 thereof (as renumbered in
accordance with the First Amendment) and substituting in lieu thereof a
reference to "$15,000,000."
(k) deleting in its entirety paragraph (b) of subsection 2.16
thereof (as renumbered in accordance with the First Amendment) and substituting
in lieu thereof the following new paragraph (b):
"(b) The Parent shall issue a promissory note to evidence the
Swing Line Loans made by Chase to the Parent, substantially in the
form of Exhibit C to this Agreement (the " Swing Line Note"), payable
to the order of Chase and representing the obligation of the Parent to
pay the unpaid principal amount of the Swing Line Loans made to the
Parent, with interest thereon as prescribed in subsection 2.19. Chase
is hereby authorized to record the Borrowing Date, the amount of each
Swing Line Loan made to the Parent and the date and amount of each
payment or prepayment of principal thereof, on the appropriate
schedule annexed to and constituting a part of the Swing Line Note (or
any continuation thereof) and any such recordation shall constitute
prima facie evidence of the accuracy of the information so recorded.
The Swing Line Note shall (a) be dated the Amendment and Restatement
Effective Date, (b) be stated to mature on the Termination Date and
(c) bear interest for the period from the date thereof to the
Termination Date on the unpaid principal amount thereof from time to
time outstanding at the applicable interest rate per annum determined
as provided in, and payable as specified in, subsection 2.19."
(l) deleting in its entirety paragraph (a) of subsection 2.25
thereof (as renumbered in accordance with the First Amendment) and substituting
in lieu thereof the following new paragraph (a):
"(a) All payments made by the Borrowers under this Agreement
and the Notes to any Lender not organized under the laws of the United
States of America or any state thereof (a " Foreign Lender") shall be
made free and clear of, and without deduction or withholding for or on
account of, any future income, stamp or other
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taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any United States Governmental Authority, excluding net
income taxes and franchise taxes (imposed in lieu of net income taxes)
imposed on the Administrative Agent or any Foreign Lender as a result
of a present or former connection between the Administrative Agent or
such Foreign Lender and the jurisdiction of the United States
Governmental Authority imposing such tax or any political subdivision
or taxing authority thereof or therein (other than any such connection
arising solely from the Agent or such Foreign Lender having executed,
delivered or performed its obligations or received a payment under, or
enforced, this Agreement or the Notes). If any such non-excluded
taxes, levies, imposts, duties, charges, fees deductions or
withholdings (" Non-Excluded Taxes") are required to be withheld from
any amounts payable to the Administrative Agent or any such Foreign
Lender hereunder or under the Notes, the amounts so payable to the
Administrative Agent or such Foreign Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Foreign
Lender (after payment of all Non-Excluded Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts
specified in this Agreement and the Notes, provided, however, that the
Borrowers shall not be required to increase any such amounts payable
to any Foreign Lender if such Foreign Lender fails to comply with the
requirements of paragraph (b) of this subsection. Whenever any
Non-Excluded Taxes are payable by the Borrowers, as promptly as
possible thereafter the Parent shall send to the Administrative Agent
for its own account or for the account of such Foreign Lender, as the
case may be, a certified copy of an original official receipt received
by the relevant Borrower showing payment thereof. If any Borrower
fails to pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required
receipts or other required documentary evidence, the Borrowers shall
indemnify the Administrative Agent and the Lenders for any incremental
taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure.
The agreements in this subsection shall survive the termination of
this Agreement and the payment of the Notes and all other amounts
payable hereunder for a period of one year."
3. Amendments to Section 4. Section 4 of the Existing Credit
Agreement shall be deemed amended by:
(a) deleting in its entirety subsection 4.1 thereof
and substituting in lieu thereof the following:
"4.1 Financial Condition. (a) The consolidated balance
sheets of the Parent and its consolidated Subsidiaries as at September
30, 1995 and September 30, 1996 and the related consolidated
statements of income and of cash flows for the fiscal year ended on
each such date, reported on by KPMG Peat Marwick, copies of which have
heretofore been furnished to each Lender, are complete and present
fairly in all material respects the consolidated financial condition
of the Parent and its consolidated Subsidiaries as at each such date,
and the consolidated results of their operations and their
consolidated cash flows for the relevant fiscal year then ended. The
unaudited
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consolidated balance sheet of the Parent and its consolidated
Subsidiaries as at December 31, 1996 and the related unaudited
consolidated statements of income and of cash flows for the
three-month period ended on such December date, certified in each case
by a Responsible Officer, copies of which have heretofore been
furnished to each Lender, are complete and present fairly in all
material respects the consolidated financial condition of the Parent
and its consolidated Subsidiaries as at such date, and the
consolidated results of their operations and their consolidated cash
flows for the three month period then ended (subject in each case to
normal year-end audit adjustments). All such financial statements,
including the related schedules and notes thereto, have been prepared
in accordance with GAAP (provided that interim statements may be
condensed and exclude footnotes) applied consistently throughout the
periods involved (except as approved by such accountants or
Responsible Officer, as the case may be, and as disclosed therein).
Neither the Parent nor any of its consolidated Subsidiaries had, at
the date of the most recent balance sheet referred to above, any
material Guarantee Obligation, contingent liability or liability for
taxes, or any long-term lease or unusual forward or long-term
commitment, including, without limitation, any interest rate or
foreign currency swap or exchange transaction, which is not reflected
in the foregoing statements or in the notes thereto. During the
period from December 31, 1996 to and including the date hereof there
has been no sale, transfer or other disposition by the Parent or any
of its consolidated Subsidiaries of any material part of its business
or property and no purchase or other acquisition of any business or
property other than the Remel Acquisition (including any Capital Stock
of any other Person) material in relation to the consolidated
financial condition of the Parent and its consolidated Subsidiaries at
December 31, 1996.
(b) The unaudited pro forma consolidated balance
sheet of the Parent and its Subsidiaries as at December 31, 1996, a
copy of which has been furnished to each Lender, has been prepared from
the unaudited consolidated balance sheet of the Parent and its
Subsidiaries as of December 31, 1996, and presents fairly in all
material respects what the consolidated financial position of the
Parent and its Subsidiaries would have been as at December 31, 1996
after giving effect to the consummation of the Remel Acquisition and
the incurrence of the Loans on the Amendment and Restatement Effective
Date. Such pro forma balance sheet presents fairly on a pro forma
basis the consolidated financial condition of the Parent and its
Subsidiaries as at such date assuming that the events specified in the
preceding sentence had occurred on that date."
(c) deleting in its entirety subsection 4.2 thereof
and substituting in lieu thereof the following:
"4.2 No Change. Since September 30, 1996 there has been no
development or event which has had or could reasonably be expected to
have a Material Adverse Effect."
(d) adding before the period at the end of
subsection 4.6 thereof the following:
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", except as set forth on Schedule 4.6".
(e) deleting in its entirety subsection 4.16 thereof
and substituting in lieu thereof the following:
"4.16 Purpose of Loans. (i) The proceeds of the Term Loans
shall be used to finance the general corporate purposes of the Parent
and its Subsidiaries, including acquisitions (including the Remel
Acquisition) permitted hereunder and to refinance existing
indebtedness (as set forth on Schedule 4.16 to this Agreement) and to
pay fees and other expenses related thereto and (ii) the proceeds of
the Revolving Credit Loans, the Swing Line Loans and the CAF Advances
shall be used to finance the working capital needs of the Parent and
its Subsidiaries and for general corporate purposes, including
acquisitions (including the Remel Acquisition) permitted hereunder;
provided that no more than $160,000,000 (subject to any post-closing
purchase price adjustments in accordance with the Acquisition
Documents) of the proceeds of the Loans may be used to finance the
Remel Acquisition."
(f) deleting in its entirety subsection 4.23 thereof
and substituting in lieu thereof the following:
"4.23 Remel Acquisition. The representations and warranties
contained in the Acquisition Documentation of Remel, and, to the best
of the Parent's knowledge, of the other parties to the Acquisition
Documentation, are true and correct in all material respects as of the
Amendment and Restatement Effective Date. On the Amendment and
Restatement Effective Date, the Remel Acquisition will have been
consummated in accordance with the Acquisition Documentation without
any material waiver or other material modification thereof other than
any such waiver or modification that has been approved by the Majority
Lenders."
(g) adding thereto the following new subsection 4.25:
"4.25 Representations and Warranties on Amendment and
Restatement Effective Date. The representations and warranties made
by the Parent and the other Loan Parties in subsections 4.1 through
4.24 are true and correct in all material respects on and as of the
Amendment and Restatement Effective Date, as if made on and as of the
Amendment and Restatement Effective Date, except to the extent such
representations and warranties expressly relate to an earlier date."
4. Amendments to Section 5. Section 5 of the Existing Credit
Agreement shall be deemed amended by adding thereto the following new
subsection 5.3:
"5.3 Conditions to Amendment and Restatement Effective Date.
The Amendment and Restatement Effective Date shall be the date of
satisfaction of the following conditions precedent:
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(a) Loan Documents. The Administrative Agent shall
have received (i) this Agreement, executed and delivered by a
duly authorized officer of the Parent and each Subsidiary
Borrower, with a counterpart or a conformed copy for each
Lender, (ii) for the account of each Lender, in exchange for
any Term Loan Note previously issued to such Lender, a Term
Note conforming to the requirements hereof and executed by a
duly authorized officer of each Subsidiary Borrower, (iii) for
the account of each Lender, in exchange for any Revolving
Credit Note previously issued to such Lender, a Revolving
Credit Note conforming to the requirements hereof and executed
by a duly authorized officer of each Revolving Credit
Borrower, (iv) for the account of each Lender, in exchange for
any CAF Advance Note previously issued to such Lender, a CAF
Advance Note conforming to the requirements hereof and
executed by a duly authorized officer of each Revolving Credit
Borrower, (v) for the account of Chase, in exchange for any
Swing Line Note previously issued to Chase, a Swing Line Note
conforming to the requirements hereof and executed by a duly
authorized officer of the Parent, (vi) each of the Pledge
Agreements, each executed and delivered by a duly authorized
officer of the Loan Party or Loan Parties, as the case may be,
party thereto, with a counterpart or a conformed copy for each
Lender and (vii) the Subsidiaries Guarantee, executed and
delivered by a duly authorized officer of each of the Loan
Parties thereto, with a counterpart or a conformed copy for
each Lender.
(b) Other Agreements. The Administrative Agent
shall have received, with a copy for each Lender, true and
correct copies, certified as to authenticity by the Parent, of
the Acquisition Documentation and, if reasonably requested by
the Administrative Agent, such other material documents or
instruments to which the Parent or any of its Subsidiaries may
be a party.
(c) Corporate Documents. The Administrative Agent
shall have received true and complete copies of the
certificate of incorporation and by-laws of each new
Subsidiary acquired since the closing date for the Existing
Credit Agreement, certified as of the Amendment and
Restatement Effective Date as complete and correct copies
thereof by the Secretary or an Assistant Secretary of such
Subsidiary.
(d) Resolutions. The Administrative Agent shall
have received a copy of the resolutions, in form and substance
satisfactory to the Administrative Agent, of the Board of
Directors of each of the Parent, the Subsidiary Borrowers and
each new Subsidiary formed or acquired since the closing date
for the Existing Credit Agreement (but excluding any
Subsidiary acquired before July 9, 1996 provided that such
Subsidiary has previously delivered resolutions that comply
with the requirements of this sentence) authorizing the
execution, delivery and performance of this Agreement, and, in
the case of the new Subsidiaries, the Loan Documents to be
entered into on the Amendment and Restatement Effective Date,
certified by the Secretary or an Assistant Secretary of such
party as of the Amendment and Restatement Effective Date,
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which certificate shall state that the resolutions thereby
certified have not been amended, modified, revoked or
rescinded as of the date of such certificate.
(e) Incumbency Certificate. The Administrative
Agent shall have received, to the extent that it has not
theretofore received, a certificate of the Secretary or
Assistant Secretary of each of the Parent, the Subsidiary
Borrowers and each new Subsidiary formed or acquired since
July 9, 1996, dated the Amendment and Restatement Effective
Date, as to the incumbency and signature of each of the
officers signing this Agreement, and, in the case of the new
Subsidiaries, the Loan Documents to be entered into on the
Amendment and Restatement Effective Date, and any other
instrument or document delivered by such party in connection
herewith, together with evidence of the incumbency of such
Secretary or Assistant Secretary.
(f) Pledged Stock; Stock Powers; Pledged Notes. The
Administrative Agent shall have received the stock
certificates representing the shares (or other indicia of
ownership interests to the extent applicable) pledged pursuant
to each of the Pledge Agreements, together with, if
applicable, an undated stock power for each such certificate
executed in blank by a duly authorized officer of the pledgor
thereof, and the notes pledged pursuant to each of the Pledge
Agreements, each endorsed in blank by a duly authorized
officer of the pledgor thereof.
(g) Acknowledgement and Consent. The Administrative
Agent shall have received from each issuer referred to in the
Pledge Agreements an executed acknowledgement and consent
which in each case shall be substantially in the form of Annex
I to each Pledge Agreement.
(h) Legal Opinions. The Administrative Agent shall
have received, with a counterpart for each Lender, written
legal opinions of counsel to each of the Parent, the
Subsidiary Borrowers and each material Subsidiary executing a
security document since the closing date of the Existing
Credit Agreement, dated the Amendment and Restatement
Effective Date and addressed to the Administrative Agent and
the Lenders, substantially in the form of the opinions of
counsel rendered on the closing date for the Existing Credit
Agreement and on July 9, 1996 with changes therein to reflect
that such opinion is in respect of this Agreement and the
amended Loan Documents.
(i) Fees. The Administrative Agent and the Lenders
shall have received all fees and expenses due from the Loan
Parties.
(j) Pay Proceeds Letter. The Administrative Agent
shall have received a letter from the Parent containing wire
transfer instructions relating to the funds to be made
available to the Borrowers on the Amendment and Restatement
Effective Date.
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(k) Remel Acquisition. All conditions precedent to
the execution and delivery of the Acquisition Documentation
shall have been satisfied (or, with the prior written consent
of the Administrative Agent, waived) and the Remel Acquisition
shall have been consummated in accordance with the terms of
the Acquisition Documentation.
(l) Good Standing Certificates. The Administrative
Agent shall have received a certificate from the Secretary of
State, or other appropriate authority of such jurisdiction,
evidencing the good standing (or similar concept under
applicable law) of each of the Borrowers and each new
Subsidiary formed or acquired since July 9, 1996 (other than
any Subsidiaries organized under the laws of a jurisdiction in
which the concept of "good standing" is inapplicable) in the
jurisdiction of its incorporation or organization and each
jurisdiction in which a failure to so qualify could reasonably
be expected to have a Material Adverse Effect.
(m) Financial Statements of Remel. The
Administrative Agent and each Lender shall have received, and
be satisfied with, a copy of the audited consolidated balance
sheet of Remel as at December 31, 1996 and the related audited
consolidated statements of income and retained earnings and of
cash flows for such year, setting forth in each case in
comparative form the figures for the previous year.
(n) Additional Matters. All corporate and other
proceedings, and all documents, instruments and other legal
matters in connection with the transactions contemplated by
this Agreement and the other Loan Documents shall be
reasonably satisfactory in form and substance to the
Administrative Agent, and the Administrative Agent shall have
received such other documents and legal opinions in respect of
any aspect or consequence of the transactions contemplated
hereby or thereby as it shall reasonably request."
5. Amendments to Section 6. Section 6 of the Existing Credit
Agreement shall be deemed amended by:
(a) deleting the word "and" at the end of paragraph (e) of
subsection 6.2 thereof;
(b) deleting the entirety of paragraph (f) of subsection 6.2
thereof and substituting in lieu thereof the following:
"(f) concurrently with the delivery of the financial
statements referred to in subsections 6.1(a) and 6.1(b)(i),
(i) a presentation, in reasonable detail, of the financial
data relied upon in arriving at any figure for cost reductions
assumed in the calculation of the Leverage Ratio and (ii) a
certificate of a Responsible Officer of the Parent stating
that such officer reasonably believes that any such cost
reductions (as certified pursuant to subsection 6.2(d)) are
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related to the applicable acquisition and are immediately
realizable as of the date of such acquisition and that such
officer has no reason to believe such cost reductions are
incorrect in any material respect; and
(g) promptly, such additional financial and other
information as any Lender may from time to time reasonably
request."
(c) deleting all references to "$1,000,000" contained in
subsection 6.7(c) thereof and substituting in lieu thereof references to
"$2,000,000".
(d) deleting the reference in subsection 6.9(a) thereof to
the "Closing Date" and substituting in lieu thereof a reference to the
"Amendment and Restatement Effective Date".
(e) inserting in subsection 6.9(a), after the words,
"becomes a Subsidiary of the Parent after the Closing Date", the following
parenthetical:
"(except 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 Lab Acquisition Co., a
direct subsidiary of Barnstead having no assets)".
6. Amendments to Section 7. Section 7 of the Existing Credit
Agreement shall be deemed amended by:
(a) deleting paragraph (c) of subsection 7.1 thereof in its
entirety and substituting in lieu thereof the following:
"(c) Leverage Ratio. Permit the Leverage Ratio for
any period of four consecutive fiscal quarters ending during
any period set forth below to be greater than the ratio
set forth opposite such period below:
"Date Ratio
---- -----
Amendment and Restatement
Effective Date - 9/29/98 3.75
9/30/98 - 9/29/99 3.25
9/30/99 - 9/29/00 2.75
9/30/00 - thereafter 2.50."
(b) deleting in its entirety paragraph (c) of subsection 7.2
thereof and substituting in lieu thereof the following:
"(c) Interest Rate Agreements and foreign exchange
contracts not to exceed an aggregate notional amount of
$500,000,000 entered into for non-speculative purposes or
entered into in the ordinary course of business;
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provided that a Lender shall be an account party to each such
Interest Rate Agreement or foreign exchange contract;"
(c) adding the following paragraph (h) to subsection 7.2
thereof and relettering the current paragraph (h) as paragraph (i):
"(h) any additional Subordinated Indebtedness
permitted under subsections 7.1(b) and (c) hereof; provided
that 100% of the Net Proceeds of such Subordinated
Indebtedness are applied to prepay the Loans, reduce the
Aggregate Revolving Credit Commitment and/or cash
collateralize the outstanding Letters of Credit in accordance
with subsection 2.15; and"
(d) deleting the reference to "$10,000,000" contained in
subsection 7.7 thereof and substituting in lieu thereof a reference to
"$20,000,000".
(e) deleting in its entirety subsection 7.9 thereof.
(f) deleting the word "and" at the end of paragraph (g) of
subsection 7.10 thereof.
(g) deleting in its entirety paragraph (h) of subsection 7.10
thereof and substituting in lieu thereof the following:
"(h) investments in Interest Rate Agreements and
foreign exchange contracts not to exceed an aggregate notional
amount of $500,000,000 entered into for non-speculative
purposes, provided that a Lender shall be an account party to
each such Interest Rate Agreement or foreign exchange
contract; and"
(h) adding the following as paragraph (i) of subsection 7.10
thereof:
"(i) loans in an aggregate principal amount not to
exceed $500,000 individually and $2,500,000 in the aggregate
at any time outstanding with terms not to exceed ninety (90)
days, which terms may not be extended or refinanced beyond the
original maturity thereof."
7. Amendments to Section 11. Section 11 of the Existing
Credit Agreement shall be deemed amended by:
(a) adding at the end of the first sentence of paragraph (d)
of subsection 11.6 thereof the following:
"and the registered owners of the Obligation(s) evidenced by the
Note(s). Notes and the Obligations evidenced thereby may be assigned
or otherwise transferred in whole or in part only by registration of
such assignment or transfer on the Register (and each Note shall
expressly so provide). Any assignment or transfer of all or part of
such Obligation(s) and the Note(s) evidencing the same shall be
registered on the
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Register only upon surrender for registration of assignment or
transfer of the Note(s) evidencing such Obligation(s), duly endorsed
by (or accompanied by a written instrument of assignment or transfer
duly executed by) the holder thereof, and thereupon one or more new
Note(s) in the same aggregate principal amount shall be issued to the
designated Assignee(s) and the old Note(s) shall be returned by the
Administrative Agent to the applicable Borrower marked "cancelled".
No assignment of any Note or obligations shall be effective unless it
has been recorded in the Register as provided in this subsection
11.6(d)".
(ii) by deleting in its entirety subsection 11.7
thereof.
(iii) by renumbering subsection 11.8 as subsection
11.7.
SUBSECTIONS 11.8 THROUGH 11.19
11.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Parent and the
Administrative Agent.
11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.10 Integration. This Agreement and the other Loan
Documents represent the entire agreement of the Parent, the Subsidiary
Borrowers, the Administrative Agent and the Lenders with respect to the subject
matter hereof, and there are no promises, undertakings, representations or
warranties by the Administrative Agent or any Lender relative to subject matter
hereof not expressly set forth or referred to herein or in the other Loan
Documents.
11.11 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.
11.12 Submission To Jurisdiction; Waivers. Each of the
Borrowers hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action
or proceeding relating to this Agreement and the other Loan Documents
to which it is a party, or for
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recognition and enforcement of any judgement in respect thereof, to
the non-exclusive general jurisdiction of the Courts of the State of
New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Borrower at its address set forth in subsection 11.2
or at such other address of which the Administrative Agent shall have
been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or
proceeding referred to in this subsection any special, exemplary,
punitive or consequential damages.
11.13 Effect of Amendment and Restatement of the Existing
Credit Agreement. On the Amendment and Restatement Effective Date, the
Existing Credit Agreement shall be amended, restated and superseded in its
entirety. The parties hereto acknowledge and agree that (a) this Agreement and
the other Loan Documents executed and delivered in connection herewith do not
constitute a novation, payment and reborrowing, or termination of the
"Obligations" (as defined in the Existing Credit Agreement) under the Existing
Credit Agreement as in effect prior to the Amendment and Restatement Effective
Date; (b) such "Obligations" are in all respects continuing (as amended and
restated hereby) with only the terms thereof being modified as provided in this
Agreement; and (c) the Liens and security interests as granted under the
Security Documents securing payment of such "Obligations" are in all respects
continuing and in full force and effect and secure the payment of the
Obligations.
11.14 Acknowledgements. Each Borrower hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the Notes and the other
Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to such Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between the
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Administrative Agent and the Lenders, on one hand, and the Borrowers,
on the other hand, in connection herewith or therewith is solely that
of creditor and debtor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrowers and the
Lenders.
11.15 WAIVERS OF JURY TRIAL. THE BORROWERS, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR THE NOTES OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
11.16 Parent as Agent of Subsidiary Borrowers. Each
Subsidiary Borrower hereby irrevocably authorizes the Parent to file and
receive all notices, requests and demands for such Subsidiary Borrower as set
forth in this Agreement and as otherwise contemplated hereby and ratifies the
prepayment allocations referred to in subsection 2.15(e) and acknowledges that
each such specification by the Parent is being undertaken pursuant to specific
instructions by such Subsidiary Borrower to the Parent.
11.17 Confidentiality. Each Lender agrees to keep the
information obtained by it pursuant hereto and the other Loan Documents
identified as confidential in writing at the time of delivery to such Lender
confidential in accordance with such Lender's customary practices and agrees
that it will only use such information in connection with the transactions
contemplated by this Agreement and not disclose any of such information other
than (a) to such Lender's directors, employees, representatives, attorneys,
accountants, agents or Affiliates who are advised of the confidential nature of
such information, (b) to the extent such information presently is or hereafter
becomes available to such Lender on a non-confidential basis from any source or
such information that is in the public domain at the time of disclosure, (c) to
the extent disclosure is required by law, regulation, subpoena or judicial
order or process (provided that notice of such requirement or order shall be
promptly furnished to the Parent unless such notice is legally prohibited) or
requested or required by bank regulators or auditors or any administrative body
or commission to whose jurisdiction such Lender may be subject, (d) to
Transferees or potential Transferees who agree to be bound by the provisions of
this subsection 11.17, (e) to the extent required in connection with any
litigation between the Borrowers and any Lender with respect to the Loans or
this Agreement or any other Loan Document, (f) to the Administrative Agent or
any other Lender, (g) in connection with the exercise of any remedy hereunder
or under the other Loan Documents or (h) with the Parent's prior written
consent. The agreements in this subsection shall survive repayment of the
Notes and all other amounts payable hereunder.
11.18 Schedules and Exhibits. Schedules I through 7.4(e) of
the Existing Credit Agreement are hereby deleted and replaced in their entirety
by Schedules I through 7.4(e) hereto and Schedules 4.6 and 4.16 are added
hereto. Exhibits A-1 through M-2 of the Existing Credit Agreement are hereby
deleted in their entirety and are hereby replaced by
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Exhibits A through I hereto and this Agreement shall be deemed modified to
reflect such revised Exhibit lettering.
11.20 Non-Extending Lenders. The Commitment of each Lender
under (and as defined in) the Existing Credit Agreement which after the
Amendment and Restatement Effective Date no longer holds a Commitment (a
"Non-Extending Lender") will terminate on the Amendment and Restatement
Effective Date upon repayment in full of all amounts owing to it under the
Existing Credit Agreement on the Amendment and Restatement Effective Date. The
modifications effected by this Agreement are being approved by Lenders holding
100% of the Commitments after giving effect to termination of the Commitments
of the Non-Extending Lenders on the Amendment and Restatement Effective Date.
11.21 Name Changes. References in the Existing Credit
Agreement (a) to Chemical Bank and Chemical Securities Inc. shall be deemed to
be references to The Chase Manhattan Bank and Chase Securities Inc.,
respectively and (b) to Nalge shall be deemed to be references to NNI.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
SYBRON INTERNATIONAL CORPORATION
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Title: Assistant Treasurer
ORMCO CORPORATION
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Title: Assistant Treasurer
XXXX CORPORATION
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Title: Assistant Treasurer
NALGE NUNC INTERNATIONAL CORPORATION
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Title: Assistant Treasurer
ERIE SCIENTIFIC COMPANY
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Title: Assistant Treasurer
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BARNSTEAD THERMOLYNE CORPORATION
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Title: Assistant Treasurer
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Managing Director
ABN AMRO BANK N.V., CHICAGO BRANCH
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Title: Assistant Vice President
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Title: Vice President
BANK OF AMERICA ILLINOIS
By: /s/ X. X. Xxxxxxxx
--------------------------------------
Title: Vice President
BANK OF MONTREAL
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Title: Director
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BANK ONE, COLUMBUS, NA
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F. C. H. Xxxxx
--------------------------------------
Title: Senior Managed Loan
Operations
BANK OF SCOTLAND
By: /s/ Xxxxx Xxxx Tat
--------------------------------------
Title: Assistant Vice President
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------
Title: Assistant Treasurer
By: /s/ Xxxxxxxxx X. Xxxxxxx
--------------------------------------
Title: Vice President
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BANQUE PARIBAS
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Title: Vice President
By: /s/ Xxxxxxxx X. Xxxx
--------------------------------------
Title: Vice President
CAISSE NATIONALE DE CREDIT AGRICOLE
By: /s/ Xxxxx Xxxxx
--------------------------------------
Title: Head of Corporate Banking
Chicago
COMERICA BANK
By: /s/ Xxxxx Light
--------------------------------------
Title: Assistant Vice President
CREDIT LYONNAIS CHICAGO BRANCH
By: /s/ Xxxx Xxx Xxxxx
--------------------------------------
Title: Vice President and Group Head
DG BANK, DEUTSCHE GENOSSENSCHAFTSBANK
CAYMAN ISLAND BRANCH
By: /s/ Xxxxx X. XxXxxx
--------------------------------------
Title: Senior Vice President
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By: /s/ Xxxxx Xxxxxxxx
--------------------------------------
Title: Vice President
FIRST BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Title: Vice President
THE FUJI BANK, LIMITED
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Title: Joint General Manager
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD. CHICAGO BRANCH
By: /s/ Xxxxxx X. Xxxxxx Xx.
--------------------------------------
Title: Vice President & Deputy
General Manager
MELLON BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Title: Vice President
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THE BANK OF TOKYO-MITSUBISHI, Ltd.,
CHICAGO BRANCH
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------
Title: Deputy General Manager
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/ Xxxxxxxx Xxxxx de Mole
--------------------------------------
Title: Senior Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Title: Senior Vice President
THE SAKURA BANK, LIMITED
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Title: Joint General Manager
SOCIETE GENERALE
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Title: Assistant Vice President
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Title: Vice President
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THE SUMITOMO BANK, LTD., CHICAGO
BRANCH
By: /s/ Xxxx X. Xxxxxx
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Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/ Xxxx X. Famile
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Title: Assistant Vice President
SANWA BANK LTD. (CHICAGO)
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Title: Vice President
BANQUE NATIONALE DE PARIS
By: /s/ Jo Xxxxx Xxxxxx
--------------------------------------
Title: Vice President & Manager
BHF BANK AKTIENGESELLSCHAFT
GRAND CAYMAN BRANCH
By: /s/ Xxxx Xxxxx
--------------------------------------
Title: Assistant Vice President
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Title: Assistant Vice President
31
00
XXXXX XXXXX XXXXXXXX XXXX XX XXXXX
XXXXXXXX
By: /s/ Xxx Xxxxxxx
--------------------------------------
Title: Vice President
FIRSTAR BANK MILWAUKEE, N.A.
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED CHICAGO BRANCH
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Title: Joint General Manager
BANCA COMMERCIALE ITALIANA
(CHICAGO)
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Title: Senior Vice President &
Branch Manager
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Title: Vice President
YASUDA TRUST & BANKING COMPANY,
LIMITED (CHICAGO)
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Title:
