EXHIBIT 4.6
WAIVER TO CREDIT AGREEMENT
AND GUARANTEE AND COLLATERAL AGREEMENT
WAIVER (this "WAIVER"), dated as of February 11, 1998, to the Credit
Agreement, dated as of March 4, 1997 (as the same may be 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"), BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (formerly known as BancAmerica
Securities, Inc.) and CIBC ▇▇▇▇▇▇▇▇▇▇▇ 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 NATIONAL TRUST AND SAVINGS
ASSOCIATION, as administrative agent (in such capacity, the "ADMINISTRATIVE
AGENT"), and to the Guarantee and Collateral Agreement, dated as of March 4,
1997 (as the same may be amended, supplemented or otherwise modified from time
to time the "GUARANTEE AND COLLATERAL AGREEMENT"), made by Packard and certain
of its subsidiaries in favor of the Administrative Agent for the benefit of the
Lenders.
WITNESSETH:
WHEREAS, Packard has requested that the Administrative Agent and the
Lenders agree to waive compliance with certain provisions of the Credit
Agreement and the Guarantee and Collateral Agreement upon the terms and subject
to the conditions set forth herein; and
WHEREAS, the Administrative Agent and the Lenders have agreed to such
waivers 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:
15. DEFINED TERMS. Capitalized terms not otherwise defined herein
have the meanings ascribed to such terms in the Credit Agreement.
16. GENERAL WAIVER OF VIOLATION. To the extent that the failure of
Packard to create a valid and binding first priority security interest in the
stock of Canberra Packard Ges. m.b.h. (Austria), a wholly-owned subsidiary of
Packard ("PACKARD AUSTRIA"), in favor of the Administrative Agent and the
Lenders has resulted in a violation of any of the terms of the Credit Agreement
or the Guarantee and Collateral Agreement, such violation is hereby waived;
PROVIDED that Packard shall take all actions necessary, or cause all actions
necessary to be taken, to create a first priority security interest in the
stock of Packard Austria in favor of the Administrative Agent and the Lenders
as soon as practicable.
17. WAIVER OF SECTION 9.1(A) OF THE CREDIT AGREEMENT. Compliance with
Section 9.1(a) of the Credit Agreement on December 31, 1997 is hereby waived;
PROVIDED that the Consolidated Leverage Ratio of Packard as of such date does
not exceed 6.15:1.00.
18. CONDITIONS TO EFFECTIVENESS. This Waiver shall become effective
(the actual date of such effectiveness, the "WAIVER EFFECTIVE DATE") as of the
date first above written when (a) counterparts hereof shall have been duly
executed and delivered by the Required Lenders, each Borrower and each
Subsidiary Guarantor and (b) the Administrative Agent shall have received a
Share Pledge Agreement executed by Packard whereby Packard grants the Lenders
and the Administrative Agent a valid, first priority security interest in the
shares of Packard Austria.
19. COMPANY REPRESENTATIONS. The Company represents and warrants that:
(a) this Waiver has been duly authorized, executed and delivered by
each of Packard and Packard Instrument Company,
Inc. (the "SUBSIDIARY GUARANTOR");
(b) each of this Waiver, the Credit Agreement and the Guarantee and
Collateral Agreement constitutes the legal, valid and binding
obligation of Packard;
(c) each of the Waiver and the Guarantee and Collateral Agreement
constitutes the legal, valid and binding obligation of the
Subsidiary Guarantor;
(d) each of the representations and warranties set forth in each of
Section 6 of the Credit Agreement and Section 4 of the Guarantee
and Collateral Agreement are true and correct as of the Waiver
Effective Date; PROVIDED that (i) references in the Credit
Agreement to this "Agreement" shall be deemed references to the
Credit Agreement after giving effect to this Waiver and (ii)
references in the Guarantee and Collateral Agreement to this
"Agreement" shall be deemed references to the Guarantee and
Collateral Agreement after giving effect to this Waiver; and
(e) after giving effect to this Waiver, there does not exist any
Default or Event of Default.
20. CONTINUING EFFECTS. Except as expressly waived hereby, each of the
Credit Agreement and the Guarantee and Collateral 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 Waiver,
including the reasonable fees and expenses of counsel to the Administrative
Agent.
22. COUNTERPARTS. This Waiver 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 WAIVER 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 Waiver 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:
PACKARD INSTRUMENT COMPANY, INC.
By:
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Administrative Agent
By:
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE, as
Documentation Agent and as a Lender
By:
Name:
Title:
CIBC ▇▇▇▇▇▇▇▇▇▇▇ CORP. (formerly known as
CIBC-Wood Gundy Securities Corp.), as a Co-
Arranger and a Co-Syndication Agent
By:
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION (as successor by merger with
Bank of America Illinois), as a Lender
By:
Name:
Title:
ABN AMRO BANK N.V., as a Lender
By:
Name:
Title:
By:
Name:
Title:
BANKBOSTON, N.A. (formerly known as The
First National Bank of Boston), as a Lender
By:
Name:
Title:
BANK OF SCOTLAND, as a Lender
By:
Name:
Title:
FLEET NATIONAL BANK, as a Lender
By:
Name:
Title:
IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST COMPANY, as a
Lender
By:
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH, as a Lender
By:
Name:
Title:
STATE STREET BANK AND TRUST COMPANY, as a
Lender
By:
Name:
Title:
ALLSTATE LIFE INSURANCE COMPANY, as a
Lender
By:
Name:
Title:
THE ING CAPITAL SENIOR SECURED HIGH INCOME
FUND, L.P., as a Lender
By:
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE FUND,
INC., as a Lender
By:
Name:
Title:
THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY, as a Lender
By:
Name:
Title:
SENIOR DEBT PORTFOLIO, as a Lender
By: Boston Management & Research, as
Investement Advisor
By:
Name:
Title:
COMMERCIAL LOAN FUNDING TRUST I, as a
Lender
By: ▇▇▇▇▇▇ Commercial Paper Inc., not in
its individual capacity but solely as
Administrative Agent
By:
Name:
Title:
PAMCO CAYMAN LTD., as a Lender
By: Protective Asset Management Company, as
Collateral Manager
By:
Name:
Title:
ML CBO IV (CAYMAN) LTD., as a Lender
By: Protective Asset Management Company, as
Collateral Manager
By:
Name:
Title:
FEDERAL STREET PARTNERS, as a Lender
By:
Name:
Title: