Exhibit 10.3
EXECUTION COPY
AMENDMENT NO. 2 TO CREDIT AGREEMENT
DATED AS OF APRIL 23, 2003
AMENDMENT NO. 2 TO CREDIT AGREEMENT, dated as of April 23, 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.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower has requested that the Lenders agree to amend
the Credit Agreement; and
WHEREAS, 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. Amendment 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) As of March 28, 2003, clause (2) of the proviso to the
definition of "Consolidated EBITDA" set forth in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
"(2) in calculating Consolidated EBITDA for the fiscal quarters
ending December 31, 2002, March 30, 2003, June 29, 2003, September
28, 2003, and December 28, 2003, non-cash and cash restructuring
charges relating to the consolidation of the Life Sciences and
Analytical Instruments units that were recorded in any such fiscal
quarter, in an aggregate amount for all such fiscal quarters not
exceeding $25,000,000, shall be excluded."; and
2
(b) As of March 28, 2003, the definition of "Consolidated Interest
Expense" set forth in Section 1.1 of the Credit Agreement is hereby
amended by deleting the proviso thereto.
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:
(1) 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
(2) No event has occurred and is continuing that constitutes
a Default or Event of Default as of the Effective Date after
giving effect to this Amendment.
(iii) 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 and the Lenders in
connection with this Amendment and for other work since the Closing
Date) shall have been paid in full, including without limitation,
payment by the Borrower to the Administrative Agent, for the pro
rata benefit of the Lenders that execute this Amendment by no later
than 12:00 p.m. (New York City time) on April 23, 2003, an amendment
fee equal to 0.05% of the sum of (x) the outstanding principal
balance of the Tranche B Term Loans and (y) the aggregate amount of
the Revolving Credit Commitments and the L/C Commitments of such
Lenders under the Credit Agreement, in each case without
duplication, as of the date hereof.
3
SECTION 3. Representations and Warranties of the Borrower. 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 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 and the
Arranger 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 and the Arranger) 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 separate 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, each of the undersigned has caused this
Amendment to be duly executed and delivered as of the day first above written.
PERKINELMER, INC., as Borrower
By: /s/ Robert F. Friel
-----------------------------------------
Name: Robert F. Friel
Title: Senior Vice President and
Chief Financial Officer
BANK OF AMERICA, N.A., as
Administrative Agent and as Lender
By: /s/ James W. Ford
-----------------------------------------
Name: James W. Ford
Title: Managing Director
MERRILL LYNCH CAPITAL CORPORATION, as
Syndication Agent and as Lender
By: /s/ Nancy E. Meadows
-----------------------------------------
Name: Nancy E. Meadows
Title: Assistant Vice President
SOCIETE GENERALE, as Documentation
Agent and as Lender
By: /s/ Wormser Eric
-----------------------------------------
Name: Wormser Eric
Title: Managing Director
ABN AMRO Bank N.V., as Lender
By: /s/ Nancy W. Lanzoni
________________________________
Name: Nancy W. Lanzoni
Title: Group Vice President
By: /s/ Michele R. Costello
________________________________
Name: Michele R. Costello
Title: Assistant Vice President
ARCHIMEDES FUNDING IV, LTD.
BY: ING Capital Advisors, LLC
as Collateral Manager
By: /s/ Helen Y. Rhee
-------------------------------
Helen Y. Rhee
SVP & Portfolio Manager
NEMEAN CLO, LTD.
By: ING Capital Advisors, LLC,
(1) As Investment Manager
By: /s/ Helen Y. Rhee
-------------------------------
Helen Y. Rhee
SVP & Portfolio Manager
ENDURANCE CLO I, LTD
c/o ING Capital Advisors, LLC
As Portfolio Manager
By: /s/ Helen Y. Rhee
-------------------------------
Helen Y. Rhee
SVP & Portfolio Manager
ORYX CLO, LTD., AS A LENDER
By: ING Capital Advisors, LLC
As Collateral Manager
By: /s/ Helen Y. Rhee
-------------------------------
Helen Y. Rhee
SVP & Portfolio Manager
SEQUILS-ING (HBDGM), LTD.
By: ING Capital Advisors, LLC
As Collateral Manager
By: /s/ Helen Y. Rhee
-------------------------------
Helen Y. Rhee
SVP & Portfolio Manager
BALANCED HIGH-YIELD FUND II LTD., AS LENDER
By: ING Capital Advisors, LLC
Asset Manager
By: /s/ Helen Y. Rhee
-------------------------------
Helen Y. Rhee
SVP & Portfolio Manager
AURUM CLO 2002-1 LTD.
By: Columbia Management Advisers, Inc.
(f/k/a Stein Roe & Farnham Incorporated),
As Investment Manager
- -------------------------------------, as Lender
(Type or print legal name of Lender)
By: /s/ Kathleen A. Zarn
---------------------------------
Name: Kathleen A. Zarn
Title: Senior Vice President
BLACKROCK SENIOR LOAN TRUST, as Lender
(Type or print legal name of Lender)
By: /s/ Dennis M. Schaney
-------------------------------------
Name: Dennis M. Schaney
Title: Managing Director
for BlackRock Financial Management, Inc.,
as Investment Manager
BRYN MAWR CLO, Ltd.
By: Deerfield Capital Management LLC as its
Collateral Manager
By: /s/ Dale Burrow
-----------------------------
Name: Dale Burrow
Title: Senior Vice President
By: Callidus Debt Partners CLO Fund II, Ltd.
By: Its Collateral Manager
Callidus Capital Management, LLC, as Lender
------------------------------------
(Type or print legal name of Lender)
By: /s/ Wayne Mueller
------------------------
Name: Wayne Mueller
Title: Managing Director
CENTURION CDO II, LTD.
By: American Express Asset Management Group Inc.
as Collateral Manager, as Lender
(Type or print legal name of Lender)
By: /s/ Leanne Stavrakis
-----------------------------------
Name: Leanne Stavrakis
Title: Director - Operations
CENTURION CDO VI, Ltd.
By: American Express Asset Management Group, Inc.
as Collateral Manager
____________________________________, as Lender
(Type or print legal name of Lender)
By: /s/ Leanne Stavrakis
____________________________________________
Name: Leanne Stavrakis
Title: Director - Operations
Citadel Hill 2000, as Lender
(Type or print legal name of Lender)
By: /s/ Stephen Lockhart
----------------------------------
Name: STEPHEN LOCKHART
Title: AUTHORIZED SIGNATORY
CREDIT SUISSE FIRST BOSTON
INTERNATIONAL, as Lender
(Type or print legal name of Lender)
By: /s/ [ILLEGIBLE]
__________________________________
Name:
Title:
FOREST CREEK CLO, Ltd.
By: Deerfield Capital Management LLC as its
Collateral Manager
By: /s/ Dale Burrow
___________________________________
Name: Dale Burrow
Title: Senior Vice President
FRANKLIN FLOATING RATE TRUST, as Lender
----------------------------
(Type or print legal name of Lender)
By: /s/ Richard D'Addario
----------------------------
Name: Richard D'Addario
Title: Vice President
FRANKLIN FLOATING RATE MASTER SERIES, as Lender
------------------------------------
(Type or print legal name of Lender)
By: /s/ Richard D'Addario
-------------------------------------
Name: Richard D'Addario
Title: Vice President
Franklin Floating Rate Daily Access Fund, as Lender
----------------------------------------
(Type or print legal name of Lender)
By: /s/ Richard D'Addario
------------------------------------------------
Name: Richard D'Addario
Title: Vice President
Franklin CLO II, Limited, as Lender
------------------------
(Type or print legal name of Lender)
By: /s/ Richard D'Addario
-------------------------------------
Name: Richard D'Addario
Title: Senior Vice President
Franklin CLO III, Limited, as Lender
-------------------------
(Type or print legal name of Lender)
By: /s/ Richard D'Addario
-------------------------------------
Name: Richard D'Addario
Title: Senior Vice President
FRANKLIN CLO IV, LIMITED, as Lender
------------------------
(Type or print legal name of Lender)
By: /s/ Richard D'Addario
-------------------------------------
Name: Richard D'Addario
Title: Senior Vice President
Galaxy CLO 1999-1 Ltd., as Lender
--------------------
By: /s/ Steven S. Oh
-------------------------------------
Name: Steven S. Oh
Title: Authorized Agent
Galaxy CLO 2003-1 Ltd.
By: CIBC Inc., as Agent as Lender
By: /s/ [ILLEGIBLE]
-------------------------------------
Name:
Title:
GoldenTree Loan Opportunities I, Limited, as Lender
By: /s/ Frederick S. Haddad
-----------------------------------------------
Name: Frederick S. Haddad
Title:
Harch CLO I, Ltd., as Lender
(Type or print legal name of Lender)
By: /s/ Michael E. Lewitt
--------------------------------------
Name: Michael E. Lewitt
Title: AUTHORIZED SIGNATORY
Hewett's Island CDO, Ltd.
By: CypressTree Investment Management Company, Inc.,
as Portfolio Manager.
By: /s/ Michael Ashton
------------------------------------------------
Name: Michael Ashton
Title: Principal
IKB CAPITAL CORPORATION, as Lender
(Type or print legal name of Lender)
By: /s/ David Snyder
-------------------------------------------
Name: DAVID SNYDER
Title: PRESIDENT
IKB CAPITAL CORPORATION
INDOSUEZ CAPITAL FUNDING VI, LIMITED
By: Indosuez Capital as Collateral Manager
By: /s/ JACK C. HENRY
-------------------
Name: Jack C. Henry
Title: Principal
KZH CYPRESSTREE-1 LLC, as Lender
By: /s/ SUSAN LEE
-------------------
Name: Susan Lee
Title: Authorized Agent
KZH ING-2 LLC, as Lender
By: /s/ SUSAN LEE
-------------------
Name: Susan Lee
Title: Authorized Agent
KZH SOLEIL LLC, as Lender
By: /s/ SUSAN LEE
-------------------
Name: Susan Lee
Title: Authorized Agent
KZH SOLEIL-2 LLC, as Lender
By: /s/ Susan Lee
____________________________________
Name: Susan Lee
Title: Authorized Agent
KZH STERLING LLC, as Lender
By: /s/ Susan Lee
____________________________________
Name: Susan Lee
Title: Authorized Agent
LCMI Limited Partnership, as Lender
(Type or print legal name of Lender)
By: Lyon Capital Management LLC,
As Attorney in Fact
By: /s/ F. Tavangar
____________________________________
Name: LYON CAPITAL MANAGEMENT LLC
Title: Farboud Tavangar
Senior Portfolio Manager
LIBERTY FLOATING RATE
ADVANTAGE FUND
By: Columbia Management Advisors, Inc.
(f/k/a Stein Roe & Farnham Incorporated),
As Advisor __________________, as Lender
(Type or print legal name of Lender)
By: /s/ Kathleen A. Zarn
____________________________________
Name: Kathleen A. Zarn
Title: Senior Vice President
Magnetite Asset Inventors L.L.C.
----------------------------------------, as Lender
(Type or print legal name of Lender)
By: /s/ Dennis M. Schaney
------------------------------------
Name: Dennis M. Schaney
Title: Managing Director
for BlackRock Financial Management, Inc.,
as Managing Member
Magnetite Asset Investors III L.L.C.
----------------------------------------, as Lender
(Type or print legal name of Lender)
By: /s/ Dennis M. Schaney
------------------------------------
Name: Dennis M. Schaney
Title: Managing Director
for BlackRock Financial Management, Inc.,
as Managing Member
Magnetite IV CLO, Limited
----------------------------------------, as Lender
(Type or print legal name of Lender)
By: /s/ Dennis M. Schaney
------------------------------------
Name: Dennis M. Schaney
Title: Managing Director
for BlackRock Financial Management, Inc.,
as Collateral Manager
Magnetite IV CLO, Limited
----------------------------------------, as Lender
(Type or print legal name of Lender)
By: /s/ Dennis M. Schaney
------------------------------------
Name: Dennis M. Schaney
Title: Managing Director
for BlackRock Financial Management, Inc.,
as Collateral Manager
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY, as Lender
BILL & MELINDA GATES FOUNDATION, as
Lender
By: David L. Babson & Company Inc. as
Investment Adviser
By: /s/ Glenn Duffy
________________________________________
Name: Glenn Duffy
Title: Managing Director
BABSON CLO LTD. 2003-I, as Lender
By: David L. Babson & Company Inc. as Manager
By: /s/ Glenn Duffy
________________________________________
Name: Glenn Duffy
Title: Managing Director
APEX (IDM) CDO I, LTD., as Lender
ELC (CAYMAN) LTD., as Lender
ELC (CAYMAN) LTD. CDO SERIES 1999-I, as lender
ELC (CAYMAN) LTD. 1999-II, as Lender
ELC (CAYMAN) LTD. 1999-III, as Lender
ELC (CAYMAN) LTD. 2000-I, as Lender
TRYON CLO LTD. 2000-I, as Lender
By: David L. Babson & Company Inc. as Collateral
Manager
By: /s/ Glenn Duffy
________________________________________
Name: Glenn Duffy
Title: Managing Director
MAPLEWOOD (CAYMAN) LIMITED, as Lender
By: David L. Babson & Company Inc. under
delegated authority from Massachusetts Mutual
Life Insurance Company as Investment Manager
By: /s/ Glenn Duffy
________________________________________
Name: Glenn Duffy
Title: Managing Director
MONY Life Insurance Company, as Lender
_______________________________________
(Type or print legal name of Lender)
By: MONY Capital Management, Inc.,
as Investment Adviser
By: /s/ Suzanne E. Walton
___________________________________
Name: Suzanne E. Walton
Title: Senior Managing Director
MONY Life Insurance Company of America , as Lender
-----------------------------------
(Type or print legal name of Lender)
By: MONY Capital Management, Inc.
By: /s/ Suzanne E. Walton
---------------------------------------
Name: Suzanne E. Walton
Title: Authorized Agent
MUIRFIELD TRADING, INC., as Lender
By: /s/ Diana M. Himes
-------------------------------
Name: Diana M. Himes
Title: Assistant Vice President
New York Life Insurance Company, as
Lender
By: /s/ F. David Melka
-------------------------------------
Name: F. David Melka
Title: Investment Vice President
New York Life Insurance and Annuity
Corporation,
By: New York Life Investment Management,
LLC, its Investment Manger, as Lender
By: /s/ F. David Melka
-------------------------------------
Name: F. David Melka
Title: Vice President
ORIX Finance Corp. I, as Lender
By: /s/ S.H. Davis
------------------------------------
Name: Sheppard H.C. Davis, Jr.
Title: Authorized Representative
PRESIDENT & FELLOWS OF HARVARD
COLLEGE
By: Regiment Capital Management, LLC
as its Investment Advisor
By: Regiment Capital Advisors, LLC
its Manager and pursuant to
delegated authority
By: /s/ Timothy S. Peterson
------------------------------------
Timothy S. Peterson
President
Lender:
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC
a Delaware limited liability company,
its authorized signatory
By: /s/ Douglas A. Drees
-------------------------------------
Its: Douglas A. Drees, Counsel
By: /s/ Elizabeth D. Swanson
-------------------------------------
Its: Elizabeth D. Swanson, Counsel
REGIMENT CAPITAL LTD.
By: Regiment Capital Management, LLC
as its Investment Advisor
By: Regiment Capital Advisors, LLC
its Manager and pursuant to
delegated authority
By: /s/ Timothy S. Peterson
------------------------------------
Timothy S. Peterson
President
RIVIERA FUNDING LLC, as Lender
By: /s/ Diana M. Himes
-------------------------------
Name: Diana M. Himes
Title: Assistant Vice President
ROSEMONT CLO, Ltd.
By: Deerfield Capital Management LLC as its
Collateral Manager
By: /s/ Dale Burrow
----------------------------
Name: Dale Burrow
Title: Senior Vice President
Seaboard CLO 2000, Ltd.
By: ORIX Capital Markets, LLC, as Lender
Its Collateral Manager
By: /s/ Sheppard H.C. Davis, Jr.
-------------------------------------
Name: Sheppard H.C. Davis, Jr.
Title: Managing Director
Senior Loan Fund, as Lender
----------------
(Type or print legal name of Lender)
By: /S/ Dennis M. Schaney
---------------------------------
Name: Dennis M. Schaney
Title: Managing Director
for BlackRock Financial Management, Inc.,
as Investment Manager
SEQUILS-Cumberland I, Ltd.
By: Deerfield Capital Management LLC as its
Collateral Manager
By: /s/ Dale Burrow
------------------------
Name: Dale Burrow
Title: Senior Vice President
Sequils--Centurion V, Ltd.
By: American Express Asset Management Group Inc.
as Collateral Manager
-----------------------------, as Lender
(Type or print legal name of Lender)
By: /s/ Leanne Stavrakis
--------------------------------
Name: Leanne Stavrakis
Title: Director--Operations
STANWICH LOAN FUNDING LLC, as Lender
By: /s/ Diana M. Himes
-------------------------------
Name: DIANA M. HIMES
Title: ASSISTANT VICE PRESIDENT
STEIN ROE & FARNHAM CLO I LTD.
By: Columbia Management Advisers, Inc.
(f/k/a Stein Roe & Farnham Incorporated),
As Portfolio Manager
-----------------------, as Lender
(Type or print legal name of Lender)
By: /s/ Kathleen A. Zarn
-------------------------------
Name: Kathleen A. Zarn
Title: Senior Vice President
SunAmerica Life Insurance Company, as Lender
By: /s/ Steven S. Oh
------------------
Name: Steven S. Oh
Title: Authorized Agent
Toronto Dominion (New York), Inc., as Lender
(Type or print legal name of Lender)
By: /s/ Stacey L. Malek
----------------------
Name: Stacey L. Malek
Title: Vice President
Venture CDO 2002, Limited, as Lender
(Type or print legal name of 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
-------------------------
Name: Hans L. Christensen
Title: Director
Venture II CDO 2002, Limited, as Lender
(Type or print legal name of Lender)
By its investment advisor, Barclays Bank PLC,
New York Branch
By: /s/ Hans L. Christensen
-------------------------
Name: Hans L. Christensen
Title: Director