Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Exhibit 10.2
EXECUTION COPY
AMENDMENT TO CREDIT AGREEMENT
DATED AS OF APRIL 1, 2003
AMENDMENT NO. 1 TO CREDIT AGREEMENT dated as of April 1, 2003 (this
"Amendment") to the Credit Agreement dated as of December 26, 2002 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement") by
and among PERKINELMER, INC., a Massachusetts corporation (the "Borrower"), the
several banks and other financial institutions or entities from time to time
parties to the Credit Agreement (collectively, the "Lenders"), MERRILL LYNCH &
CO., MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as sole advisor, sole
lead arranger and sole bookrunner, MERRILL LYNCH CAPITAL CORPORATION, as
syndication agent, SOCIETE GENERALE, as documentation agent and BANK OF AMERICA,
N.A., as administrative agent (in such capacity, the "Administrative Agent") for
the Lenders and as Issuing Lender and Alternate Rate Lender. Capitalized terms
not otherwise defined herein shall have the same meanings as specified therefor
in the Credit Agreement.
PRELIMINARY STATEMENTS:
(1) The Borrower has requested that the Lenders agree to amend the
Credit Agreement in order to, among other things, provide for same day
borrowings of Base Rate Revolving Credit Loans under the Revolving Credit
Commitments and amend Section 7.5(i) of the Credit Agreement.
(2) The Lenders have indicated their willingness to agree to so
amend the Credit Agreement, but only on and subject to the terms and conditions
of this Amendment.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
SECTION 1. Amendments to the Credit Agreement. The Credit Agreement
is hereby amended, effective as of the Effective Date (as defined in Section 2
below), as follows:
(a) Section 1.1 of the Credit Agreement is amended to add the
following new definitions, each in its appropriate alphabetic order:
"[**]": [**], an Illinois corporation.
"Commercial Lighting Disposition": the sale (together with the
assignment of certain liabilities) to [**] by PerkinElmer Opto of its
business for the development and manufacture (out of facilities located in
Fremont and Santa Clara, California and Shenzhen, China) of entertainment
and lithography lighting products for the cinema projection, analytical
instruments, industrial and cinema and entertainment
markets, for aggregate consideration of approximately $2,850,000, pursuant
to the terms of the Commercial Lighting Sale Agreement.
"Commercial Lighting Sale Agreement": the Asset Purchase Agreement
to be dated on or about March 28, 2003 between PerkinElmer Opto and [**]
with respect to the Commercial Lighting Disposition.
"PerkinElmer Opto": PerkinElmer Optoelectronics NC, Inc., a Delaware
corporation and a wholly-owned Subsidiary of the Borrower.
(b) The definition of "Revolving Credit Note" in Section 1.1 is
amended and restated in its entirety to read as follows:
"Revolving Credit Note": as defined in Section 2.7."
(c) Section 2.5 of the Credit Agreement is amended and restated in
it entirety to read as follows:
"2.5 Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments on any Business Day during
the Revolving Credit Commitment Period, provided that the Borrower shall
deliver to the Administrative Agent a Borrowing Notice (which Borrowing
Notice must be received by the Administrative Agent (a) prior to 12:00
Noon, New York City time, three Business Days prior to the requested
Borrowing Date, in the case of Eurodollar Loans or (b) prior to 11:00 A.M.
New York time, on the requested Borrowing Date, in the case of Base Rate
Loans), specifying (i) the amount and Type of Revolving Credit Loans to be
borrowed, (ii) the requested Borrowing Date and (iii) in the case of
Eurodollar Loans, the length of the initial Interest Period therefor. Each
borrowing of Revolving Credit Loans under the Revolving Credit Commitments
shall be in an amount equal to (x) in the case of Base Rate Loans,
$1,000,000 or a whole multiple thereof (or, if the then aggregate
Available Revolving Credit Commitments are less than $1,000,000, such
lesser amount) and (y) in the case of Eurodollar Loans, $5,000,000 or a
whole multiple of $1,000,000 in excess thereof. Upon receipt of any such
Borrowing Notice from the Borrower, the Administrative Agent shall
promptly notify each Revolving Credit Lender thereof. Each Revolving
Credit Lender will make its Revolving Credit Percentage of the amount of
each borrowing of Revolving Credit Loans available to the Administrative
Agent for the account of the Borrower at the Funding Office not later than
2:00 P.M., New York time, on the Borrowing Date requested by the Borrower
in funds immediately available to the Administrative Agent. Such borrowing
will then be made available to the Borrower by the Administrative Agent in
like funds as received by the Administrative Agent."
(d) Section 7.5(i) of the Credit Agreement is amended and restated
in its entirety to read as follows:
"(i) the Disposition of other assets having a fair market value not
to exceed $5,000,000 in the aggregate for any fiscal year of the Borrower;
provided that (i) at least 75% of the consideration for each such
Disposition (other than the Commercial Lighting
2
Disposition) shall be in the form of cash and (ii) at least [**]% of the
consideration for the Commercial Lighting Disposition shall be in the form
of cash; and"
SECTION 2. Conditions of Effectiveness. This Amendment shall become
effective (the "Effective Date") as of the date first above written when, and
only when:
(a) the Administrative Agent shall have received counterparts of this
Amendment executed by the Borrower and the Required Lenders or, as to any of
such Lenders, advice satisfactory to the Administrative Agent that such Lender
has executed this Amendment.
(b) the Administrative Agent shall have additionally received all of the
following documents, each such document (unless otherwise specified) dated the
date of receipt thereof by the Administrative Agent (unless otherwise specified)
and in sufficient copies for each Lender, in form and substance satisfactory to
the Administrative Agent (unless otherwise specified) and in sufficient copies
for each Lender:
(i) A certificate of the Secretary or an Assistant Secretary of the
Borrower certifying the names and true signatures of the officers of the
Borrower authorized to sign this Amendment and the other documents to be
delivered hereunder and thereunder; and
(ii) A certificate signed by a duly authorized officer of the
Borrower stating that:
(A) The representations and warranties contained in the Loan
Documents and in Section 3 hereof are correct on and as of the date of
such certificate as though made on and as of such date, except where such
representation and warranty is expressly made as of a specific earlier
date, in which case such representation and warranty shall be true as of
such earlier date; and
(B) No event has occurred and is continuing that constitutes a
Default or Event of Default as of the Effective Date and after giving
effect to this Amendment.
(c) All of the accrued fees and expenses of the Administrative Agent and
the Lenders (including the accrued fees and expenses of counsel for the
Administrative Agent in connection with this Amendment and for other work since
the Closing Date) shall have been paid in full.
SECTION 3. Representations and Warranties of the Borrower(a) In
order to induce the parties hereto to execute and deliver this Amendment, the
Borrower hereby restates each of the representations and warranties contained in
Sections 4.3, 4.4 and 4.5 of the Credit Agreement, with each reference therein
to the Credit Agreement being deemed to be a dual reference both to this
Amendment and the Credit Agreement as amended by this Amendment.
SECTION 4. Reference to and Effect on the Loan Documents. (a) On and
after the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the Notes and each of
the other Loan Documents to "the Credit
3
Agreement", "thereunder", "thereof" or words of like import referring to the
Credit Agreement, shall mean and be a reference to the Credit Agreement, as
amended by this Amendment.
(b) The Credit Agreement and the Notes, as specifically amended by
this Amendment, are and shall continue to be in full force and effect and are
hereby in all respects ratified and confirmed. Without limiting the generality
of the foregoing, the Security Documents and all of the Collateral described
therein do and shall continue to secure the payment of all Obligations of the
Loan Parties under the Loan Documents, in each case as amended by this
Amendment.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Lender or the Administrative Agent under the
Credit Agreement, nor constitute a waiver of any provision of the Credit
Agreement.
SECTION 5. Costs, Expenses The Borrower agrees to pay on demand all
reasonable and documented costs and expenses of the Administrative Agent in
connection with the preparation, execution, delivery and administration,
modification and amendment of this Amendment and the other instruments and
documents to be delivered hereunder (including, without limitation, the
reasonable fees and expenses of counsel for the Administrative Agent) in
accordance with the terms of Section 10.5 of the Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
PERKINELMER, INC., as Borrower
By /s/ Terrance L. Carlson
----------------------------------
Title: SVP
BANK OF AMERICA, N.A.,
as Administrative Agent and as Lender
By /s/ James W. Ford
----------------------------------
Title: Managing Director
MERRILL LYNCH CAPITAL CORPORATION,
as Syndication Agent and as Lender
By /s/ Michael E. O'Brien
----------------------------------
Title: Vice President
SOCIETE GENERALE, as Documentation
Agent and as Lender
By /s/ Elizabeth R. Peck
----------------------------------
Title: Director
5
ABN AMRO Bank N.V., as Lender
By /s/ James S. Kreitler
--------------------------------------
Name: James S. Kreitler
Title: Senior Vice President
By /s/ Henry Sosa
--------------------------------------
Name: Henry Sosa
Title: Assistant Vice President
AURUM CLO 2002-1 LTD.
BY: STEIN ROE & FARNHAM
INCORPORATED, AS INVESTMENT, as Lender
MANAGER
By /s/ James R. Fellows
--------------------------------------
Title: James R. Fellows
Sr. Vice President &
Portfolio Manager
CREDIT SUISSE FIRST
BOSTON INTERNATIONAL, as Lender
--------------------
[Type or print legal name of Lender]
By /s/ [ILLEGIBLE]
--------------------------------------
Title: [ILLEGIBLE]
[ILLEGIBLE]
DEUTSCHE BANK AG, NEW YORK BRANCH
By: DB Services New Jersey, Inc., as Lender
----------------------------
[Type or print legal name of Lender]
By: /s/ Alice L. Wagner
------------------------------------
Title: Alice L. Wagner
Vice President
By: /s/ Edward Schaffer
-------------------------------------
Edward Schaffer
Vice President
GoldenTree Loan Opportunities I, Ltd, as lender
-------------------------------------
[Type or print legal name of Lender]
By /s/ Thomas H. Shindell
--------------------------------------------
Title: Vice Pres
Harch CLO I, Ltd., as Lender
-----------------
[Type or print legal name of Lender]
By /s/ Michael E. Lewitt
-------------------------------------
Title: Michael E. Lewitt
AUTHORIZED SIGNATORY
LCM I Limited Partnership, as Lender
-------------------------
[Type or print legal name of Lender]
By: Lyon Capital Management LLC,
as Attorney-in-Fact
By /s/ F Tavangar
-------------------------------------
Title: LYON CAPITAL MANAGEMENT LLC
Farboud Tavangar
Senior Portfolio Manager
LIBERTY FLOATING RATE ADVANTAGE FUND, as Lender
------------------------------------
By: STEIN ROE & FARNHAM
INCORPORATED, AS ADVISOR
By /s/ James R. Fellows
------------------------------------------
Title: James R. Fellows
Sr. Vice President & Portfolio
Manager
Principal Life Insurance Company, as Lender
----------------------------------
[Type or print legal name of Lender]
By /s/ Dennis D. Ballard
-------------------------------------
Title: DENNIS D. BALLARD, COUNSEL
By /s/ James C. Fifield
-------------------------------------
Title: JAMES C. FIFIELD, COUNSEL
STANWICH LOAN FUNDING LLC, as Lender
--------------------------
By /s/ Diana L. Mushill
-----------------------
Title: DIANA L. MUSHILL
ASST. VICE PRESIDENT
STEIN ROE & FARNHAM CLO I LTD.
By: STEIN ROE & FARNHAM, as Lender
INCORPORATED, AS PORTFOLIO
MANAGER
By /s/ James R. Fellows
-----------------------
Title: James R. Fellows
Sr. Vice President &
Portfolio Manager
Toronto Dominion (New York), Inc., as Lender
----------------------------------
[Type or print legal name of Lender]
By /s/ [ILLEGIBLE]
---------------------------------
Title: Vice President
VENTURE CDO 2002, LIMITED, as Lender
By its investment advisor, Barclays
Capital Asset Management Limited,
By its sub-advisor, Barclays Bank PLC,
New York Branch
By: /s/ Hans L. Christensen
----------------------------------
Title: HANS L. CHRISTENSEN
DIRECTOR
VENTURE II CDO 2002, LIMITED, as Lender
By its investment advisor, Barclays Bank PLC,
New York Branch
By: /s/ Hans L. Christensen
----------------------------------
Title: HANS L. CHRISTENSEN
DIRECTOR