EXHIBIT 4.5
WAIVER AND FIRST AMENDMENT
WAIVER AND FIRST AMENDMENT (this "FIRST AMENDMENT"), dated as of November
25, 1997, 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 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.
WITNESSETH:
WHEREAS, Packard has requested that the Lenders agree to waive compliance
with certain provisions of the Credit Agreement and amend certain provisions of
the Credit Agreement upon the terms and subject to the conditions set forth
herein; and
WHEREAS, the Lenders have agreed to such waivers and amendments 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. WAIVER OF SECTIONS 8.1(C) AND (D). The Administrative Agent and
the Lenders hereby waive compliance with the provisions of Sections 8.1(c)(ii)
and (d) of the Credit Agreement for the months of October and November of 1997;
PROVIDED that in lieu of the financial statements otherwise required to be
provided for these months pursuant to Sections 8.1(c)(ii) and (d), Packard
shall furnish to the Administrative Agent and the Lenders financial statements
satisfying the requirements of clauses (A) and (B ) of Section 8.1(c)(i) for
such months within the time period stated in Section 8.1(c)(ii).
3. AMENDMENT OF SECTION 1.1. Section 1.1 of the Credit Agreement is
hereby amended by:
(a) inserting in correct alphabetical order the following definition:
" "AURORA ASSET SALE": the Disposition by Packard or its
Subsidiaries of any or all of its or their interest in Aurora
BioScience Company.";
(b) amending clause (a) of the definition of the term "Asset Sale" by
changing the reference to "(f)" therein to a reference to "(g)";
(c) amending clause (a) of the definition of the term "Interest Period"
by inserting after the words "PROVIDED that," in the tenth line
thereof the following:
"in order to match amortization payment requirements when due in
accordance with Section 2.3, Packard may select, in addition to
those specified above, interest periods of not less than 14 days;
PROVIDED FURTHER that,";
(d) amending the definition of the term "Reinvestment Prepayment Date"
by inserting after the words "nine months" in the second line
thereof the following:
"(or, in the case of an Aurora Asset Sale, 18 months)"; and
(e) amending clause (d) of the definition of "Consolidated Fixed
Charges" by deleting the parenthetical language therein and
substituting in lieu thereof the following:
"(excluding (i) Capital Expenditures directly utilizing the
proceeds from the Aurora Asset Sale for the upgrade or replacement
of Packard's management information systems, including hardware,
software and related consultant's fees, and (ii) the principal
amount of Indebtedness incurred in connection with such
expenditures)".
4. AMENDMENT OF SECTION 5.5(A). Section 5.5(a) of the Credit
Agreement is hereby amended by adding at the end thereof the following:
"All Term Loans hereunder may be converted into, or continued as,
Base Rate Loans without reference to minimum principal amount
requirements for Base Rate Loans."
5. AMENDMENT OF SECTION 9.5. Section 9.5 of the Credit Agreement is
hereby amended by
(a) deleting the word "and" after clause (e) thereof;
(b) relettering the current clause "(f)" to be "(g)", and changing the
references therein to "Section 9.5(f)" and "paragraph (f)" to
"Section 9.5(g)" and "paragraph (g)", respectively; and
(c) inserting the following new clause (f):
"(f) the Aurora Asset Sale(s); and".
6. AMENDMENT OF SECTION 9.6. Section 9.6 of the Credit Agreement is
hereby amended by deleting clause (iii)(A) therefrom and substituting therefor
the following:
"(A) (1) repurchase shares of its Capital Stock from employees,
former employees, directors or former directors of Packard or any
of its Subsidiaries pursuant to the terms of the agreements
(including employment agreements) or plans (or amendments thereto)
approved by the Board of Directors of Packard under which such
individuals purchase or sell or are granted the option to purchase
or sell, shares of such Capital Stock and (2) in addition to any
other repurchases expressly permitted by the foregoing provisions
of this Section 9.6, repurchase shares of its Capital Stock from
any Person, PROVIDED, in each case, that the aggregate amount of
such repurchases in any calendar year (excluding any such
repurchases made through the issuance of Management Notes)
permitted by clause (1) (collectively, "MANAGEMENT STOCK PAYMENTS")
and clause (2) above, when added to the amount of any Management
Note Payments made during such calendar year, shall not exceed
$2,000,000;".
7. AMENDMENT OF SECTION 9.7. Section 9.7 of the Credit Agreement is
hereby amended by inserting after the word "Capital Expenditure" as it first
appears in the third line thereof the following:
"(other than Capital Expenditures directly utilizing the proceeds
from the Aurora Asset Sale(s) for the upgrading or replacement of
Packard's management information systems, including hardware,
software and related consultant's fees)".
8. AMENDMENT OF SECTION 9.8. Section 9.8 of the Credit Agreement is
hereby amended by deleting the word "and" after clause (f) thereof and
inserting after the amount "$10,000,000" as it appears at the end of clause (g)
thereof the following:
";
(h) the Japan Acquisition; provided that the aggregate
consideration for such acquisition does not exceed 900,000,000
Japanese Yen"; and
(i) the investment account, established on terms previously
disclosed to the Agent, for the benefit of and managed by ▇▇.
▇▇▇▇▇▇▇▇▇ in connection with the Japan Acquisition".
9. CONDITIONS TO EFFECTIVENESS. This First Amendment shall become
effective (the actual date of such effectiveness, the "FIRST AMENDMENT
EFFECTIVE DATE") as of the date first above written when counterparts hereof
shall have been duly executed and delivered by each of the parties hereto and
acknowledged by each Subsidiary Guarantor.
10. COMPANY REPRESENTATIONS. The Company represents and warrants that:
(a) this First Amendment has been duly authorized, executed and
delivered by Packard;
(b) each of this First Amendment, and the Credit Agreement as amended
by this First 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 First
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 First Amendment; and
(d) after giving effect to this First Amendment, there does not exist
any Default or Event of Default.
11. CONTINUING EFFECTS. Except as expressly waived hereby, the Credit
Agreement shall continue to be and shall remain in full force and effect in
accordance with its terms.
12. EXPENSES. The Company 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 First Amendment, including the reasonable fees and expenses of counsel to
the Administrative Agent.
13. COUNTERPARTS. This First 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.
14. GOVERNING LAW. THIS FIRST 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 First 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:
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 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:
PILGRIM AMERICAN PRIME RATE TRUST, as a
Lender
By:
Name:
Title:
SENIOR DEBT PORFOLIO, as a Lender
By:
Name:
Title:
COMMERCIAL LOAN TRUST I, as a Lender
By:
Name:
Title:
FEDERAL STREET PARTNERS, as a Lender
By:
Name:
Title:
PAMCO CAYMAN LTD., as a Lender
By:
Name:
Title:
ACKNOWLEDGEMENT AND CONSENT
The undersigned does hereby acknowledge and consent to the foregoing
First Amendment. The undersigned does hereby confirm and agree that, after
giving effect to such First 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: