**EXHIBIT 4.10**

 

**FIRST AMENDMENT**

**TO**

**CREDIT AGREEMENT**

 

**FIRST AMENDMENT,**dated as of September 15, 2003 (“First Amendment”), to the Credit Agreement, dated as of July 29, 2003 (as thesame may be amended, supplemented or modified from time to time, this “Credit Agreement”), among Apogent Technologies Inc., a Wisconsin corporation (the “Company”), Erie Scientific Company, a Delaware corporation,Nalge Nunc International Corporation, a Delaware corporation, and Remel Inc., a Wisconsin corporation, (each a “Subsidiary Borrower”; together with the Company, the “Borrowers” and each of them individually, a“Borrower”) the several banks and other financial institutions from time to time parties thereto (the “Lenders”), J.P. Morgan Securities Inc. and Fleet Securities, Inc., as Joint Lead Arrangers and Joint Bookrunners(in such capacity, the “Arrangers”), Fleet National Bank, as Syndication Agent (in such capacity, the “Syndication Agent”), ABN AMRO Bank N.V., Bank of America N.A. and SunTrust Bank, as Co-Documentation Agents (insuch capacity, the “Co-Documentation Agents”), and JPMorgan Chase Bank (and its successors and assigns), a New York banking corporation, as administrative agent for the Lenders hereunder (in such capacity, the“Administrative Agent”). 

 

WITNESSETH: 

 

WHEREAS, the parties to the Credit Agreement desire to amend certain definitions under the Credit Agreement to clarify the intent of the parties; and 

 

WHEREAS, the parties to the Credit Agreement desire to amend certain covenants under the Credit Agreement to enable theCompany to better achieve its operating plan during the Credit Agreement. 

 

NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged: 

 

I. Definitions. Unless otherwise defined herein, terms defined in theCredit Agreement are used herein as therein defined. 

 

II.Amendments to the Credit Agreement. The parties hereto agree that the Credit Agreement shall be amended as follows: 

 

A. Amendments to Section 1.1 (Defined Terms). Section 1.1 of the Credit Agreement is hereby amended by deleting the definition of“Consolidated Adjusted EBITDA” in its entirety and inserting in lieu thereof the following new definition: 

 

“Consolidated Adjusted EBITDA”: for any period, without duplication, Consolidated Net Income for such period beforededuction 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. As used in this definition, the phrase,“any extraordinary items of gain or 

loss”, shall in any event include no more than $60,000,000 aggregate amount of expenses incurred andpayments made by the Company in connection with its tender offer for its 8% Senior Notes due 2011 (the “Notes”), which amount represents the aggregate amount paid by the Company for the Notes in excess of the face amount paidthereof and related fees, discounts, and expenses. 

 

III.General. 

 

A. Representation andWarranties. To induce the Administrative Agent and the Lenders parties hereto to enter into this First Amendment, the Borrower hereby represents and warrants to the Administrative Agent and the Lenders parties hereto that: 

 

1. Power; Authorization; Enforceable Obligations.

 

(a) Each Borrower has the corporate powerand authority, and the legal right, to make, deliver and perform this First Amendment, and to perform the Loan Documents to which it is a party, as amended by this First Amendment, and has taken all necessary corporate action to authorize theexecution, delivery and performance of this First Amendment and the performance of such Loan Documents, as so amended. 

 

(b) No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any otherPerson is required in connection with the execution, delivery, performance, validity or enforceability of this First Amendment, or the Loan Documents to which any Loan Party is a party, as amended by this First Amendment, except for consents,authorizations, filings and notices which have been obtained or made and are in full force and effect. 

 

(c) This First Amendment has been duly executed and delivered on behalf of each Borrower and duly acknowledged and consented to by eachSubsidiary Guarantor. 

 

(d) Each of this FirstAmendment and the Loan Documents to which any Loan Party is a party, as amended by this First Amendment, constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, exceptas enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought byproceedings in equity or at law). 

 

2. NoLegal Bar. The execution, delivery and performance of this First Amendment and the performance of the Loan Documents to which any other Loan Party is a party, as amended by this First Amendment, will not violate or conflict with any Requirementof Law or any material Contractual Obligation of the Borrower or any of its Subsidiaries and will 

 

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not result in, or require, the creation or imposition of any Lien on any of their respective propertiesor revenues pursuant to any Requirement of Law or any such Contractual Obligation. 

 

3. No Change. Since June 30, 2003 and after giving effect to this First Amendment, there has been no development or event that hashad or is reasonably expected to have a Material Adverse Effect. 

 

4. Representations and Warranties in Loan Documents. The representations and warranties made by each Loan Party in each Loan Document to which it is a party or made by the Borrowers herein are true and correcton and as of the date hereof, before and after giving effect to this First Amendment, except to the extent that such representation or warranty is expressly limited by its terms to an earlier date, in which case such representation or warranty wastrue and correct as of such earlier date. 

 

B.Continuing Effect of Loan Documents. Except as expressly amended, modified and supplemented hereby, the provisions of the Credit Agreement and the other Loan Documents are and shall remain in full force and effect. 

 

C. Expenses. The Borrowers agree to reimburse theAdministrative Agent for all of its reasonable out-of-pocket costs and expenses incurred in connection with this First Amendment and any other documents prepared in connection herewith, including the reasonable fees and expenses of its counsel.

 

D. Effectiveness. This First Amendmentshall become effective upon receipt by the Administrative Agent of (i) counterparts hereby signed by the Borrowers and the Majority Lenders, and (ii) the Acknowledgment and Consent, in the form attached hereto, signed by the Subsidiary Guarantors.

 

****E**. GOVERNING LAW. THIS FIRSTAMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.**

 

F. Counterparts. This First Amendment may be executed in any number of counterparts by the parties hereto, each of whichcounterparts when so executed shall be an original, but all counterparts taken together shall constitute one and the same instrument. This First Amendment may be delivered by facsimile transmission of the relevant signature pages hereof. 

 

*[The remainder of this page is intentionally left blank.]*

 

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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly executed and deliveredby their respective duly authorized officers as of the day and year first above written. 

 
APOGENT TECHNOLOGIES INC. By: /s/    Name: Dennis B. Brown,  Title: Chief Financial OfficerERIE SCIENTIFIC COMPANYBy: /s/    Name: Dennis B. Brown  Title: Vice PresidentNALGE NUNC INTERNATIONAL CORPORATIONBy: /s/    Name: Dennis B. Brown  Title: Vice President
REMEL INC.
By: /s/    Name: Dennis B. Brown  Title: Vice PresidentJPMORGAN CHASE BANK, as Administrative Agent and as a LenderBy: /s/    Name: John A. Francis  Title: Vice President
 

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FLEET NATIONAL BANK By: /s/    Name: Gordon B. Coughlin  
Title:
 
Vice President

 

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ABN AMRO BANK N.V. By: /s/    Name: Alexander M. Blodi  
Title:
 
Director
By:                 /s/    Name: Michele R. Costello  
Title:
 
Assistant Vice President

 

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BANK OF AMERICA, N.A. By: /s/    
Name:
 
Philip S. Durand
  Title: Managing Director, Healthcare
 

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THE BANK OF NOVA SCOTIA By: /s/    Name: Carolyn A. Calloway  
Title:
 
Managing Director

 

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CITIZENS BANK OF MASSACHUSETTS

By:
 
                /s/    
    Name: Cindy Chen  Title: Vice President
 

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CREDIT SUISSE FIRST BOSTON, ACTING THROUGH ITS CAYMAN ISLANDS BRANCH
By:
 
                /s/    
    Name: William O’Daly  Title: Director
By:
 
                /s/    
    Name: Christopher Lally  Title: Vice President
 

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HBSC BANK USA

By:
 
                /s/    
    Name: John V. Raleigh  Title: Vice President
 

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LEHMAN COMMERCIAL PAPER INC.

By:
 
                /s/    
    Name: Francis Chang  Title: Vice President
 

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SUNTRUST BANK

By:
 
                /s/    
    Name: William D. Priester  Title: Director
 

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WACHOVIA BANK, NATIONAL ASSOCIATION

By:
 
                /s/    
    Name: James S. Conville  Title: Assistant Vice President
 

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**ACKNOWLEDGMENT AND CONSENT**

 

Each of the undersigned hereby acknowledges and consents to the foregoing First Amendment and hereby acknowledges andconfirms its obligations under such Subsidiary Guarantor’s Guarantee, dated as of July 29, 2003, and all other Loan Documents, including, without limitation, as such documents have been heretofore amended or modified, and, to the extentpermitted by applicable law, as may be further amended or modified from time to time. 

 

ABGENE INC.

APOGENT FINANCE COMPANY

APOGENT HOLDING COMPANY

APOGENT TRANSITION CORP.

APOGENT SERVICE CORPORATION

BARNSTEAD THERMOLYNE CORPORATION

BT CANADA HOLDINGS INC.

CAPITOL VIAL, INC.

CHASE SCIENTIFIC GLASS, INC.

CONSOLIDATED TECHNOLOGIES, INC.

ERIE SCIENTIFIC COMPANY OF PUERTO RICO

ERIE UK HOLDING COMPANY

EVER READY THERMOMETER CO., INC.

G&P LABWARE HOLDINGS INC.

GENEVAC INC.

LAB-LINE INSTRUMENTS, INC.

LAB VISION CORPORATION

MATRIX TECHNOLOGIES CORPORATION

MICROGENICS CORPORATION

MOLECULAR BIOPRODUCTS, INC.

NATIONAL SCIENTIFIC COMPANY

THE NAUGATUCK GLASS COMPANY

NEOMARKERS, INC.

NERL DIAGNOSTICS CORPORATION

OWL SEPARATION SYSTEMS, INC.

QUALITY SCIENTIFIC PLASTICS, INC.

RICHARD-ALLAN SCIENTIFIC COMPANY

ROBBINS SCIENTIFIC CORPORATION

SAMCO SCIENTIFIC CORPORATION

SEPARATION TECHNOLOGY, INC.

SERADYN INC.

By:
 
                /s/    
    Name: Dennis B. Brown  Title: Vice President
 

 

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METAVAC LLC

By:
 
THE NAUGATUCK GLASS COMPANY

Member and Manager
  
By:
 
                /s/    
        Name: Dennis B. Brown    Title: Vice President
 

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