EXHIBIT 4.9
THIRD AMENDMENT
THIRD AMENDMENT (this "Third Amendment"), dated as of October 8, 1999,
to the Credit Agreement, dated as of March 4, 1997, as modified by the Waiver
and First Amendment dated as of November 25, 1997, the Waiver dated as of
February 11, 1998, the Waiver and Second Amendment dated as of May 27, 1998 and
the Waiver dated as of November 13, 1998 (as the same may be further amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among PACKARD BIOSCIENCE COMPANY, a Delaware corporation ("Packard"), the
Subsidiary Borrowers party thereto, the lenders from time to time parties
thereto (the "Lenders"), BANC OF AMERICA SECURITIES LLC (formerly known as
NATIONSBANC MONTGOMERY SECURITIES LLC) and CIBC OPPENHEIMER CORP. (formerly
known as CIBC-WOOD GUNDY SECURITIES CORP.), as co-arrangers and co-syndication
agents (in such capacities, the "Co-Arrangers" and the "Co-Syndication Agents"),
CANADIAN IMPERIAL BANK OF COMMERCE, as documentation agent (in such capacity,
the "Documentation Agent"), and BANK OF AMERICA, N.A. (formerly known as BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION), as administrative agent.
W I T N E S S E T H :
WHEREAS, Packard has requested that the Lenders agree to amend the
Credit Agreement upon the terms and subject to the conditions set forth herein;
and
WHEREAS, the Lenders have agreed to such amendment only upon the terms
and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms not otherwise defined herein have
the meanings ascribed to such terms in the Credit Agreement.
2. Section 1.1--Consolidated EBITDA. The definition of Consolidated
EBITDA contained in Section 1.1 of the Credit Agreement is hereby amended by
adding the following new clause (g) immediately after clause (f) thereof:
"and (g) up to $2,000,000 of professional fees paid in connection
with the Foreign Subsidiary Corporate Reorganization"
3. Section 1.1--Consolidated Interest Expense. The definition of
Consolidated Interest Expense contained in Section 1.1 of the Credit Agreement
is hereby amended by adding the words ", but excluding the Amendment Fee
referred to in the Third Amendment hereto" at the end of the last parenthetical
contained therein.
4. Section 1.1--Consolidated Total Debt. The definition of Consolidated
Total Debt contained in Section 1.1 of the Credit Agreement is hereby amended
and restated in its entirety as follows:
"Consolidated Total Debt": at any date, the aggregate principal
amount of all Indebtedness of Packard and its Subsidiaries at such
date (other than the principal amount of the Japan Debt to the extent
Packard Japan KK has an equivalent amount of cash ("Equivalent
Japanese Cash") on hand on such date), determined on a consolidated
basis in accordance with GAAP; provided, that, except for calculations
of the Consolidated Leverage Ratio pursuant to the Pricing Grid, such
amount shall be reduced by the aggregate amount of cash on hand (other
than Equivalent Japanese Cash) held by the Borrower or any of its
Subsidiaries (not to exceed $8,000,000).
5. Section 1.1--Fronted Offshore Revolving Credit Loan Sublimit. The
definition of Fronted Offshore Revolving Credit Loan Sublimit contained in
Section 1.1 of the Credit Agreement is hereby amended by changing the amount
"$35,000,000" to the amount "$50,000,000".
6. Section 1.1--New Definition. Section 1.1 of the Credit Agreement is
hereby amended by adding the following new definition in the appropriate
alphabetical order:
"Foreign Subsidiary Corporate Reorganization": a corporate
reorganization pursuant to which certain of Packard's Foreign
Subsidiaries shall become Subsidiaries of one or more Wholly Owned
Subsidiaries organized under the laws of countries that are members of
the European Union or the laws of Switzerland. Packard hereby agrees
to give the Administrative Agent at least 30 days' advance notice of
the Foreign Subsidiary Corporate Reorganization, which notice shall be
accompanied by a substantially final description, in reasonable
detail, of such reorganization.
7. Section 8.9(d). Section 8.9(d) of the Credit Agreement is hereby
amended by changing the phrase "Packard or any of its Subsidiaries" (which
appears twice in said Section) to the phrase "Packard or any of its Domestic
Subsidiaries".
8. Section 9.1(a). The third, fourth and fifth rows of the table set
forth in Section 9.1(a) are hereby amended and restated in their entirety as
follows:
December 31, 1998 - September 29, 1999 5.50:1.00
September 30, 1999 - December 30, 1999 5.85:1.00
December 31, 1999 - June 29, 2000 5.35:1.00
June 30, 2000 - December 30, 2000 5.15:1.00
December 31, 2000 - March 30, 2001 4.80:1.00
March 31, 2001 - December 30, 2001 4.50:1.00
9. Section 9.1(c). The first row of the table set forth in Section
9.1(c) is hereby amended and restated in its entirety as follows:
June 30, 1997 - September 29, 1999 1.00:1.00
September 30, 1999 - December 30, 1999 0.90:1.00
December 31, 1999 - March 30, 2000 1.00:1.00
10. Section 9.2 (d). Section 9.2(d) of the Credit Agreement is hereby
amended and restated in its entirety as follows:
"(d) Indebtedness of any Wholly Owned Foreign Subsidiary to
Packard or any Wholly Owned Subsidiary Guarantor in an aggregate
amount not to exceed $25,000,000 at any one time outstanding, provided
that (i) such Indebtedness is evidenced by a note that is pledged as
collateral under the Guarantee and Collateral Agreement, (ii) no more
than $5,000,000 of such Indebtedness shall result from cash loans to
any such Foreign Subsidiary (with any such Indebtedness not resulting
from cash loans being referred to herein as "Non-Cash Indebtedness")
and (iii) in the case of any such Indebtedness issued in connection
with a transfer of property (other than cash) to a Foreign Subsidiary,
such transfer constitutes a Disposition expressly permitted by Section
9.5;"
11. Section 9.6.
(a) Section 9.6 of the Credit Agreement is hereby amended by changing
the amount "$2,000,000" to the amount "$5,000,000".
(b) Section 9.6 of the Credit Agreement is hereby amended by adding
the following new clause (C) to the end thereof:
"and (C) Packard may make cash payments in respect of tax
obligations of employees or directors of Packard or any of its
Subsidiaries resulting from the exercise by such Persons of options to
purchase common stock of Packard in exchange for a corresponding
reduction in the number of shares obtainable upon such exercise"
12. Section 9.7. Section 9.7 of the Credit Agreement is hereby amended
by changing the amounts "$10,000,000" and "$3,000,000" to the amounts
"$15,000,000" and "$5,000,000", respectively.
13. Section 9.8(f). Section 9.8(f) of the Credit Agreement is hereby
amended and restated in its entirety as follows:
"(f) (i) investments by Packard or any of its Subsidiaries in
Packard or any Person that, prior to such investment, is a Wholly
Owned Subsidiary Guarantor, (ii) any investment resulting from
intercompany reorganizations to the extent expressly permitted by
Section 9.5(d) or (e) and (iii) any investment resulting from the
issuance of Non-Cash Indebtedness (as defined in Section 9.2(d));"
14. Section 9.8(g).
(a) The second parenthetical contained in Section 9.8(g) of the
Credit Agreement is hereby amended and restated in its entirety as follows:
"(or, (x) in the case of investments in CCS Packard Inc.,
$27,000,000 and (y) in the case of one other investment during the
term of this Agreement, $40,000,000)"
(b) Clause (ii) of the proviso to Section 9.8(g) of the Credit
Agreement is hereby amended by changing the amount "$20,000,000" to the amount
"$23,000,000".
15. Section 9.9(b). Section 9.9(b) of the Credit Agreement is hereby
amended by changing the amount "$2,000,000" to the amount "$5,000,000".
16. Standby Letters of Credit in Offshore Currencies. The Credit
Agreement is hereby amended to the extent necessary to permit standby Letters of
Credit in Offshore Currencies ("Offshore Letters of Credit") to be issued on
terms and conditions comparable to those applicable to Letters of Credit under
the Credit Agreement and, to the extent relevant, the Fronted Offshore Revolving
Credit Subfacility. Without limiting the generality of the foregoing, the
following terms and conditions shall be applicable to Offshore Letters of
Credit: (1) the account party must be a Borrower (and, accordingly, all
obligations of the type applicable to Packard under Section 3 of the Credit
Agreement shall, in the case of Offshore Letters of Credit, be obligations of
such Borrower), (2) each L/C Participant will be obligated to make payments to
the Issuing Lender in respect of Offshore Letters of Credit in the relevant
Offshore Currency (or, at the option of the Issuing Lender, in Dollars based
upon the Dollar Equivalent of the relevant Reimbursement Obligation) under the
circumstances described in Section 3.4 of the Credit Agreement, (3) the limits
described in clauses (a), (b) and (c) of Section 4.1 of the Credit Agreement
shall apply to each issuance of an Offshore Letter of Credit, (4) the procedures
specified in Section 4.5 of the Credit Agreement shall apply to each Offshore
Currency utilized for the Offshore Letters of Credit, (5) Offshore Letters of
Credit shall count as utilization of the Revolving Credit Commitments, the
Fronted Offshore Revolving Credit Sublimit and the L/C Commitment (determined on
the basis of the Dollar Equivalent thereof), including, without limitation, for
the purposes of Section 5.4(g) of the Credit Agreement, (6) references to
Fronted Offshore Revolving Credit Loans shall, to the extent relevant, be deemed
to include the L/C Obligations in respect of Offshore Letters of Credit for the
purposes of interpreting provisions relating to the administration of Offshore
Currency matters, including, without limitation, (I) the definitions of "Banking
Day", "Calculation Date" and "Cost of Funds" and (II) Section 5.10(e) of the
Credit Agreement, (7) relevant determinations to be made by the Fronting Lender
in respect of Offshore Currency matters shall, in the case of Offshore Letters
of Credit, be made by the Issuing Lender, (8) the Offshore Currencies for which
Offshore Letters of Credit are available, as well as administrative matters
relating to Offshore Letters of Credit, shall be determined pursuant to a
separate agreement between the Issuing Lender and the relevant Borrowers.
17. Release of Liens. The parties hereto (a) acknowledge that the
Foreign Subsidiary Corporate Reorganization may result in certain direct Foreign
Subsidiaries of the Loan Parties becoming indirect Foreign Subsidiaries of the
Loan Parties and (b) confirm the authority of the Administrative Agent, as
provided in Section 11.10 of the Credit Agreement, to release any Liens on the
Capital Stock of such formerly direct Foreign Subsidiaries created pursuant to
the Security Documents.
18. Conditions to Effectiveness. This Third Amendment shall become
effective (the actual date of such effectiveness, the "Third Amendment Effective
Date") as of the date first above written when (a) counterparts hereof shall
have been duly executed and delivered by the Required Lenders, Packard and the
Administrative Agent and acknowledged by each Subsidiary Guarantor and (b)
Packard shall have paid to the Administrative Agent for distribution to the
relevant Lenders an amendment fee (the "Amendment Fee") equal to 0.25% of the
sum of the Revolving Credit Commitment and Term Loans of each Lender that has
submitted an executed signature page to this Amendment by facsimile transmission
to the Administrative Agent or its counsel prior to 12:00 Noon, New York City
time, on October 8, 1999.
19. Representations. Packard represents and warrants that:
(a) this Third Amendment has been duly authorized, executed and
delivered by Packard;
(b) each of this Third Amendment, and the Credit Agreement as amended
by this Third Amendment, constitutes the legal, valid and binding
obligation of Packard;
(c) each of the representations and warranties set forth in
Section 6 of the Credit Agreement are true and correct as of the Third Amendment
Effective Date; provided that references in the Credit Agreement to this
"Agreement" shall be deemed references to the Credit Agreement as amended by
this Third Amendment; and
(d) after giving effect to this Third Amendment, there does not exist
any Default or Event of Default.
20. Continuing Effect. Except as expressly amended or waived hereby,
the Credit Agreement shall continue to be and shall remain in full force and
effect in accordance with its terms.
21. Expenses. Packard agrees to pay and reimburse the Administrative
Agent for all of its out-of-pocket costs and expenses incurred in connection
with the negotiation, preparation, execution, and delivery of this Third
Amendment, including the reasonable fees and expenses of counsel to the
Administrative Agent.
22. Counterparts. This Third Amendment may be executed on any number
of separate counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
23. GOVERNING LAW. THIS THIRD AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
PACKARD BIOSCIENCE COMPANY
By:
Name:
Title:
ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned does hereby acknowledge and consent to
the foregoing Third Amendment. Each of the undersigned does hereby confirm and
agree that, after giving effect to such Third Amendment, the Guarantee and
Collateral Agreement and the other Security Documents in favor of the
Administrative Agent to which it is a party are and shall continue to be in full
force and effect and are hereby confirmed and ratified in all respects.
PACKARD INSTRUMENT COMPANY, INC.
By:
Name:
Title:
AQUILA TECHNOLOGIES GROUP, INC.
By:
Name:
Title:
CCS PACKARD, INC.
By:
Name:
Title:
HARWELL INSTRUMENTS LIMITED
By:
Name:
Title:
TENNELEC, INC.
By:
Name:
Title: