Contract
EXHIBIT 10
EXECUTION COPY
SECOND AMENDMENT AND WAIVER dated as of December 7, 2007 (this
“Amendment”), to the FIVE-YEAR CREDIT AGREEMENT dated as of June
21, 2006 (as amended, supplemented or otherwise modified from time to time
the “Credit Agreement”), among PALL CORPORATION (the
“Company”), the Subsidiaries of the Company named on the signature
pages thereto, the LENDERS from time to time party thereto, JPMORGAN CHASE
BANK, N.A., as facility agent for the Lenders (the “Facility
Agent”) and X.X. XXXXXX EUROPE LIMITED, as London agent for the
Lenders (the “London Agent” and, together with the Facility Agent,
the “Agents”).
WHEREAS the Company has informed the Agents and the Lenders that (a) it has understated its
U.S. income tax payments and its provision for income taxes, (b) the understatement relates to the
taxation of certain intercompany payable balances that mainly resulted from sales of products by a
foreign subsidiary of the Company to a U.S. subsidiary of the Company, (c) as of the date of this
Amendment, the Company has paid $135,000,000 principally in respect of the foregoing, (d) the
amount of additional tax provisions required to be recorded by the Company has not been determined
as of the date of this Amendment and (e) the Company expects that it will be required to restate
some or all of its financial statements for the fiscal years 1999 through 2006 and each of the
fiscal quarters ended October 31, 2006, January 31, 2007 and April 30, 2007 and that, for its
fiscal year ended July 31, 2007, it may be required to report one or more material weaknesses in
its internal control over financial reporting (the matters referred to in this paragraph being
called the “Specified Matters”).
WHEREAS the Company has further informed the Agents and the Lenders that, as a result of the
Specified Matters, (a) certain certifications, representations and warranties of the Company
contained in or made pursuant to the Credit Agreement or other Loan Documents (or any document
delivered in connection therewith) may have been inaccurate when made or may not be accurate if
required to be made in the event of additional borrowings under the Credit Agreement, (b) the
covenants set forth in Sections 5.01, 5.02, 5.03, 5.04, 5.08 or 5.09 of the Credit Agreement may
have been violated, (c) certain defaults may have occurred under other credit agreements, debt
indentures or ISDA agreements of the Company, (d) the Company expects that it may not be able to
deliver its Annual Report on Form 10-K for the fiscal year ended July 31, 2007 (the “Affected
Annual Report”) or its Quarterly Reports on Form 10-Q for its fiscal quarters ending October
31, 2007 and January 31, 2008 (the “Affected Quarterly Reports”), to the Facility Agent as
and when it is required to do so by Section 5.01 of the Credit Agreement and (e) the foregoing
inaccuracies, violations and other matters may, if not waived by the Lenders, have resulted in or
will result in Events of Default pursuant to Section 7.01 of the Credit Agreement.
WHEREAS the Company has requested that the Lenders waive, and the Lenders have agreed to waive,
certain Defaults and failures of conditions precedent arising from the Specified Matters and the
Company has requested that the Lenders amend, and the Lenders have agreed to amend, Section 5.01 to
extend the period of time
during which the Company must deliver the Affected Annual Report and Affected Quarterly Reports on
the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the above premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. Defined Terms. Each capitalized term used and not defined herein shall
have the meaning assigned to it in the Credit Agreement (as modified hereby).
SECTION 2. Waiver. Effective as of the Second Amendment and Waiver Effective Date (as
defined below), the Lenders hereby waive (a) all breaches of representations and warranties under
the Credit Agreement, Defaults caused by violations of Sections 5.01, 5.02, 5.03, 5.04, 5.08 and
5.09 of the Credit Agreement and failures to satisfy conditions precedent set forth in Section 4.02
of the Credit Agreement (including conditions precedent to any further borrowing under the Credit
Agreement) resulting from the Specified Matters and (b) any Default that may occur pursuant to
Section 7.01(e)(i)(B) or 7.01(e)(ii)(A) of the Credit Agreement as a result of violations of the
Other Debt Agreements (as defined below) due to (i) the Specified Matters or (ii) the failure to
file with the Securities and Exchange Commission or to transmit to holders thereunder the Affected
Annual Report or the Affected Quarterly Reports as and when required by the terms thereof (A) in
the case of the Other Debt Agreements (other than the Material Debt Agreements (as defined below))
until March 31, 2008 and (B) in the case of the Material Debt Agreements, until December 31, 2007.
SECTION 3. Amendment to Section 5.01. Effective as of the Second Amendment and Waiver
Effective Date, Section 5.01 of the Credit Agreement is hereby amended by:
(a) replacing paragraph (a) of such Section with the following paragraph:
(a) (i) with respect to each Fiscal Year of the Company (other than the Fiscal Year ended July
31, 2007), as soon as available, but in any event within 90 days after the end of each such Fiscal
Year or at such earlier time as the SEC may require the Company to deliver its Form 10-K
(commencing with the Fiscal Year ended July 31, 2006) and (ii) with respect to the Fiscal Year of
the Company ended July 31, 2007, as soon as available, but in any event by March 31, 2008, a
consolidated balance sheet of the Company and the Subsidiaries as at the end of such Fiscal Year,
and the related consolidated statements of earnings, shareholders’ equity and cash flows for such
Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal
Year, all in reasonable detail and prepared in accordance with GAAP consistently applied throughout
the periods covered thereby, except as otherwise expressly noted therein, audited and accompanied
by a report and opinion of an independent certified public accountant of nationally recognized
standing reasonably acceptable to the Required Lenders, which report and opinion shall be prepared
in accordance with generally
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accepted auditing standards and shall not be subject to any “going concern” or like qualification
or exception or any qualification or exception as to the scope of such financial statement audit;
provided that (i) the requirements of this paragraph shall be deemed satisfied by delivery
within the time period specified above of (A) a copy of the Company’s Annual Report on Form 10-K
for such Fiscal Year (together with the Company’s annual report to shareholders, if any, prepared
pursuant to Rule 14a-3 under the Exchange Act) (“Form 10-K”) prepared in accordance with
the requirements therefor and filed with the SEC or (B) a notice setting forth a written reference
to a website that contains such Form 10-K (together with the Company’s annual report to
shareholders, if any, prepared pursuant to Rule 14a-3 under the Exchange Act); and
(b) replacing paragraph (b) of such Section with the following paragraph:
(b) (i) with respect to each of the first three fiscal quarters of the Company in any Fiscal
Year (other than the fiscal quarters ending October 31, 2007 and January 31, 2008), as soon as
available, but in any event within 45 days after the end of each such fiscal quarter or at such
earlier time as the SEC may require the Company to deliver its Form 10-Q (commencing with the
fiscal quarter ended October 31, 2006) and (ii) with respect to the fiscal quarters of the Company
ending October 31, 2007 and January 31, 2008, as soon as available, but in any event by March 31,
2008, (A) a consolidated balance sheet of the Company and the Subsidiaries as at the end of such
quarter and (B) consolidated statements of earnings of the Company and its Subsidiaries for such
quarter and (in the case of the second and third quarters) for the portion of the Fiscal Year
ending with such quarter, and a statement of cash flows for the portion of the Fiscal Year ending
with such quarter, setting forth in each case in comparative form the figures for the corresponding
periods in the previous Fiscal Year, all in reasonable detail, prepared in accordance with GAAP
applicable to quarterly financial statements generally consistently applied throughout the periods
covered thereby, except as otherwise expressly noted therein, and certified by a Responsible
Officer of the Company as fairly presenting, in all material respects, the financial position of
the Company and its Subsidiaries being reported on and their results of operations and cash flows,
subject to the changes resulting from year-end adjustments; provided that (i) the
requirements of this paragraph shall be deemed satisfied by delivery within the time period
specified above of (A) a copy of the Company’s Quarterly Report on Form 10-Q (“Form 10-Q”)
prepared in compliance with the requirements therefor and filed with the SEC or (B) a notice
setting forth a written reference to a website that contains such Form 10-Q, (ii) on or prior to
December 10, 2007, the Company shall deliver to the Facility Agent, in form and detail reasonably
satisfactory to the Facility Agent and the Lenders, an unaudited condensed consolidated statement
of earnings before interest and taxes, setting forth in comparative form the figures for the
corresponding period in the previous Fiscal Year, and balance sheet highlights comprised of
accounts receivable, inventory and indebtedness, in each case with respect to the Company and its
Subsidiaries as of and for the fiscal quarter ending October 31, 2007 and (iii) on or prior to
March 11, 2008, the Company shall deliver to the Facility Agent, in form and detail reasonably
satisfactory to the Facility Agent and the Lenders, an unaudited condensed consolidated statement
of earnings before interest and taxes, setting forth in comparative form the figures for the
corresponding period in the
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previous Fiscal Year, and balance sheet highlights comprised of accounts receivable, inventory and
indebtedness, in each case with respect to the Company and its Subsidiaries as of and for the
fiscal quarter ending January 31, 2008.
SECTION 4. Limitation on Waiver and Amendment. The waivers set forth in Section 2
extend only to the provisions referred to therein and shall not, directly or by implication,
constitute a waiver of any other provision of the Credit Agreement. Such waivers and the
amendments set forth in Section 3 shall automatically expire and be of no further force or effect,
with the same effect as if they had not been granted, without the necessity of any action by the
Agents or any Lender, if:
(a) at any time (i) any Default or Event of Default (other than those waived pursuant to
Section 2) occurs under the Credit Agreement, (ii) the Facility Agent, acting at the
direction of the Required Lenders, provides written notice to the Company that the Required
Lenders have become aware, after the date of this Amendment, of information that, in the
Required Lenders’ reasonable judgment, renders assertions made by the Company as of the date
of this Amendment with respect to the Specified Matters incorrect or misleading in any
material respect or indicates that the liabilities expected to be incurred by the Company and
its Subsidiaries in connection with the Specified Matters will exceed $225,000,000, (iii) the
Company shall have become aware that the Company’s counterparties under the Material Debt
Agreements or any other agreement governing Indebtedness of the Company or its Subsidiaries
(and together with the Material Debt Agreements, the “Other Debt Agreements”) (A)
shall have declared the unpaid principal amount of the notes or the loans or the other
obligations thereunder, as the case may be, immediately due and payable or (B) are unwilling
to grant a waiver of any violation or default existing under the Other Debt Agreements, as
the case may be;
(b) on or prior to December 31, 2007, the Company shall have failed to deliver to the
Facility Agent, counterparts of waivers of any violations or defaults under the Material Debt
Agreements duly executed and delivered by each of the parties thereto; or
(c) on or prior to March 31, 2008, the Company shall have failed to deliver to the
Facility Agent, counterparts of waivers of any violations or defaults under the Other Debt
Agreements, other than the Material Debt Agreements, duly executed and delivered by each of
the parties thereto.
The following agreements constitute the “Material Debt Agreements”: (i) the Second Amended
and Restated Term Note, dated as of June 20, 2007 (the “Yen Term Note”), among the Company
and Bank of America, N.A., (ii) the ISDA Master Agreement and the related Schedule thereto, each
dated as of October 15, 1997 (the “Bank of America ISDA”), between Fleet National Bank and
Pall Corporation; and (iii) the ISDA Master Agreement and the related Schedule thereto, each dated
as of September 13, 2005 (the “Wachovia ISDA”), between Wachovia Bank, National Association
and Pall Netherlands B.V., as supplemented by the Amended and Restated Cross Currency Rate Swap
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Transaction Confirmation, dated August 25, 2005, between Wachovia Bank, National Association and
Pall Netherlands B.V., and the Credit Support Document dated as of September 13, 2005, between
Wachovia Bank, National Association and the Company.
SECTION 5. Fees. The Company agrees to pay on the Second Amendment and Waiver
Effective Date to the Facility Agent, for the account of each Lender that executes and delivers a
copy of this Amendment to the Administrative Agent (or its counsel) at or prior to 2:00 p.m., New
York City time, on December 7, 2007, an amendment fee (the “Amendment Fee”) in the amount
of 0.025% on the amount of such Lender’s Commitment. All such fees shall be payable in immediately
available funds and shall not be refundable.
SECTION 6. Representations and Warranties. The Company hereby represents and warrants
to the Agents and the Lenders that, as of the Second Amendment and Waiver Effective Date and after
giving effect hereto:
(a) This Amendment has been duly authorized, executed and delivered by the Company, and
each of this Amendment and the Credit Agreement (as modified hereby) constitutes the
Company’s legal, valid and binding obligation, enforceable against it in accordance with its
terms, except to the extent enforcement may be limited by applicable bankruptcy,
reorganization, moratorium, insolvency and similar laws affecting creditors’ rights generally
or by equitable principles of general application, regardless of whether considered in a
proceeding in equity or at law.
(b) Except for the Specified Matters, all representations and warranties of each Loan
Party contained in the Loan Documents (as modified hereby) are true and correct in all
material respects on and as of the Second Amendment and Waiver Effective Date (except with
respect to representations and warranties expressly made only as of an earlier date, in which
case such representations and warranties were true and correct in all material respects as of
such earlier date).
(c) Except for the Specified Matters, no Default or Event of Default has occurred and is
continuing.
SECTION 7. Effectiveness. This Amendment shall become effective on the first date
(the “Second Amendment and Waiver Effective Date”) on which the Facility Agent shall have
received (i) counterparts hereof duly executed and delivered by the Company and the Required
Lenders and (ii) the Amendment Fees.
SECTION 8. No Amendments or Other Waivers; Confirmation. (a) Except as expressly set
forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a
waiver of, or otherwise affect the rights and remedies of the Agents or the Lenders under the
Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way
affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other
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Loan Document, all of which are ratified and affirmed in all respects and shall continue in
full force and effect. Nothing herein shall be deemed to entitle any Loan Party to a consent to,
or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or
different circumstances. This Amendment shall apply and be effective only with respect to the
provisions of the Credit Agreement specifically referred to herein. This Amendment shall
constitute a Loan Document.
(b) On and after the Second Amendment and Waiver Effective Date, each reference in the
Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like
import, and each reference to the Credit Agreement in any other Loan Document, shall be
deemed a reference to the Credit Agreement as modified hereby.
SECTION 9. Expenses. The Company agrees to reimburse the Agents for their
out-of-pocket expenses in connection with this Amendment, including the reasonable and documented
fees, charges and disbursements of counsel for the Agents.
SECTION 10. Governing Law; Counterparts. (a) This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York.
(b) This Amendment may be executed in any number of counterparts and by different
parties hereto in separate counterparts, an all such counterparts together shall constitute
one and the same instrument. Delivery of an executed counterpart of a signature page of this
Amendment by facsimile transmission or other electronic imaging means shall be as effective
as delivery of a manually executed counterpart hereof.
SECTION 11. Headings. The headings of this Amendment are for purposes of reference
only and shall not limit or otherwise affect the meaning hereof.
[Signature pages to follow]
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment and Waiver to be duly
executed by their duly authorized officers, all as of the date and year first above written.
| PALL CORPORATION, | ||||||||
| by | ||||||||
| /s/ XXXX XXXXXXXXX | ||||||||
| Name: Xxxx XxXxxxxxx | ||||||||
| Title: Chief Financial Officer | ||||||||
| JPMORGAN CHASE BANK, N.A., | ||||||||
| as Facility Agent and as a Lender, | ||||||||
| by | ||||||||
| /s/ XXXX XXXXX XXXXX | ||||||||
| Name: Xxxx Xxxxx Xxxxx | ||||||||
| Title: Vice President | ||||||||
| X.X. XXXXXX EUROPE LIMITED, | ||||||||
| as London Agent, | ||||||||
| by | ||||||||
| /s/ XXXXX XXX | ||||||||
| Name: Xxxxx Xxx | ||||||||
| Title: Associate | ||||||||
To approve the Second Amendment and Waiver:
| Name of Lender, | ||||||
| Comerica Bank | ||||||
| by | ||||||
| /s/ XXXXX X. XXXX
|
||||||
| Title: Assistant Vice President | ||||||
For any Lender requiring a second signature line:
| by | ||||||
| Title: |
To approve the Second Amendment and Waiver:
| Name of Lender, | ||||||
| The Royal Bank of Scotland plc | ||||||
| by | ||||||
| /s/ L. XXXXX XXXXXX
|
||||||
| Title: Senior Vice President | ||||||
To approve the Second Amendment and Waiver:
| Name of Lender, | ||||||
| Bank of America, N.A. | ||||||
| by | ||||||
| /s/ XXXXXX XXXXX
|
||||||
| Title: Senior Vice President | ||||||
For any Lender requiring a second signature line:
| by | ||||||
| Title: |
To approve the Second Amendment and Waiver:
| Name of Lender, | ||||||
| Wachovia Bank, N.A. | ||||||
| by | ||||||
| /s/ XXXXXX XXXXXX
|
||||||
| Title: Senior Vice President | ||||||
For any Lender requiring a second signature line:
| by | ||||||
| Title: |
To approve the Second Amendment and Waiver:
| Name of Lender, | ||||||
| BNP Paribas | ||||||
| by | ||||||
| /s/ SHAYN MARCH
|
||||||
| Title: Director | ||||||
For any Lender requiring a second signature line:
| by | ||||||
| /s/ XXXXXXXXX XXXXX
|
||||||
| Title: Vice President |
To approve the Second Amendment and Waiver:
| Name of Lender, | ||||||
| Commerzbank AG, London Branch | ||||||
| by | ||||||
| /s/ X. XXXXX
|
||||||
| Title: Director | ||||||
For any Lender requiring a second signature line:
| by | ||||||
| /s/ X. XXXXXXX
|
||||||
| Title: Associate Director |
To approve the Second Amendment and Waiver:
| Name of Lender, | ||||||
| Sumitomo Mitsui Banking Corporation | ||||||
| by | ||||||
| /s/ XXX X. XXXXXXXXX
|
||||||
| Title: General Manager | ||||||
For any Lender requiring a second signature line:
| by | ||||||
| Title: |
Lender signature page to the
Second Amendment and Waiver to the
Pall Corporation Credit Agreement
Second Amendment and Waiver to the
Pall Corporation Credit Agreement
To approve the Second Amendment and Waiver:
| Name of Lender, | ||||||
| HSBC Bank USA, NA | ||||||
| by | ||||||
| /s/ XXXXXXXXXXX XXXXXXXXXX
|
||||||
| Title: First Vice President | ||||||
For any Lender requiring a second signature line:
| by | ||||||
| Title: |
Lender signature page to the
Second Amendment and Waiver to the
Pall Corporation Credit Agreement
Second Amendment and Waiver to the
Pall Corporation Credit Agreement
To approve the Second Amendment and Waiver:
| Name of Lender, | ||||||
| Bank of Tokyo-Mitsubishi UFJ Trust Company | ||||||
| by | ||||||
| /s/ XXXXXXX XXXXXX
|
||||||
| Title: Vice President | ||||||
For any Lender requiring a second signature line:
| by | ||||||
| Title: |
Lender signature page to the
Second Amendment and Waiver to the
Pall Corporation Credit Agreement
Second Amendment and Waiver to the
Pall Corporation Credit Agreement
To approve the Second Amendment and Waiver:
| Name of Lender, | ||||||
| The Bank of New York | ||||||
| by | ||||||
| /s/ XXXXXXX X. XXXXXXX, XX.
|
||||||
| Title: Vice President | ||||||
For any Lender requiring a second signature line:
| by | ||||||
| Title: |
Lender signature page to the
Second Amendment and Waiver to the
Pall Corporation Credit Agreement
Second Amendment and Waiver to the
Pall Corporation Credit Agreement
To approve the Second Amendment and Waiver:
| Name of Lender, | ||||||||
| UBS Loan Finance LLC | ||||||||
| by | ||||||||
| /s/ XXXXX X. XXXXX | ||||||||
| Name: | Xxxxx X. Xxxxx | |||||||
| Title: | Associate Director Banking Products Services, US |
|||||||
For any Lender requiring a second signature line:
| by | ||||||||
| /s/ XXXXXXX X. XXXXXX | ||||||||
| Name: | Xxxxxxx X. Xxxxxx | |||||||
| Title: | Director Banking Products Services, US |
|||||||
Lender signature page to the
Second Amendment and Waiver to the
Pall Corporation Credit Agreement
Second Amendment and Waiver to the
Pall Corporation Credit Agreement
To approve the Second Amendment and Waiver:
| Name of Lender, | ||||||
| INTESA SANPAOLO New York Branch |
||||||
| by | ||||||
| /s/ XXXX X. XXXXXXXXXX
|
||||||
| Title: First Vice President | ||||||
For any Lender requiring a second signature line:
| by | ||||||
| /s/ FRANCESCO DI MARIO
|
||||||
| Title: FVP, Credit Manager |
