EXHIBIT 4.7
WAIVER AND SECOND AMENDMENT
WAIVER AND SECOND AMENDMENT (this "Second Amendment"), dated as of May 27,
1998, to the Credit Agreement, dated as of March 4, 1997, as amended by the
Waiver and First Amendment thereto dated as of November 25, 1997 (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"), Bancamerica Xxxxxxxxx
Xxxxxxxx (formerly known as BancAmerica Securities, Inc.) and Cibc Xxxxxxxxxxx
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.
W I T N E S S E T H :
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 Section 8.9. The Administrative Agent and the Lenders hereby
waive compliance with the provisions of Section 8.9 to the extent said
provisions would require (a) the Capital Stock of MCS to be pledged as
Collateral under the Guarantee and Collateral Agreement or (b) MCS to become a
party to the Guarantee and Collateral Agreement, grant a security interest in
any of its Property or become a Subsidiary Guarantor.
3. Amendment of Section 1.1. Section 1.1 of the Credit Agreement is hereby
amended by inserting in correct alphabetical order the following definition:
" "MCS": Mobile Characterization Services, LLC, a New Mexico limited
liability company."
4. Amendment of Section 1.2. Section 1.2 of the Credit Agreement is hereby
amended by adding the following new clause (e) to the end thereof:
"(e) Notwithstanding anything in this Agreement to the contrary, for
the purposes of calculating Consolidated EBITDA, the portion of
Consolidated EBITDA attributable to MCS shall appropriately reflect
the percentage economic interest in MCS held by Packard (directly or
indirectly). It is understood that no other calculations pursuant to
this Agreement shall be adjusted in such manner."
5. Amendment of Section 9.5(C). Section 9.5(c) of the Credit Agreement is
hereby amended by adding the following words to the end thereof:
"or Dispositions constituting investments in MCS expressly permitted
by Section 9.8(g)"
6. Amendment of Section 9.8(G). Section 9.8(g) of the Credit Agreement is
hereby amended by:
(a) re-numbering clause (iii) thereof as clause (iv); and
(b) inserting the following new clause (iii):
"(iii) not more than $4,500,000 of such investments (whether in the
form of contributions of cash or Property or otherwise, valued at net
book value in the case of contributions of Property) shall be made
during the term of this Agreement in MCS and its Subsidiaries,"
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7. Amendment of Section 9.14. Section 9.14 of the Credit Agreement is
hereby amended by adding a new clause (iv) to the end thereof which shall read
in its entirety as follows:
"or (iv) any restrictions with respect to MCS imposed pursuant to its
limited liability company agreement as originally in effect."
8. Conditions to Effectiveness. This Second Amendment shall become
effective (the actual date of such effectiveness, the "SECOND 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.
9. Representations. Packard represents and warrants that:
(a) this Second Amendment has been duly authorized, executed and
delivered by Packard;
(b) each of this Second Amendment, and the Credit Agreement as amended
by this Second 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 Second 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 Second Amendment; and
(d) after giving effect to this Second Amendment, there does not exist
any Default or Event of Default.
10. 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.
11. 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 Second Amendment,
including the reasonable fees and expenses of counsel to the Administrative
Agent.
12. Counterparts. This Second 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.
13. GOVERNING LAW. THIS SECOND 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 Second 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:
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Name:
Title:
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CANADIAN IMPERIAL BANK OF COMMERCE, as Documentation
Agent and as a Lender
By:
----------------------------------------------------
Name:
Title:
CIBC XXXXXXXXXXX CORP. (formerly known as CIBC-Wood
Gundy Securities Corp.), as a Co-Arranger and a
Co-Syndication Agent
By:
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Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
(as successor by merger with Bank of America Illinois,
as a Lender
By:
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Name:
Title:
ABN AMRO BANK N.V., as a Lender
By:
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Name:
Title:
By:
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Name:
Title:
BANKBOSTON, N.A. (formerly known as The First National
Bank of Boston), as a Lender
By:
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Name:
Title:
BANK OF SCOTLAND, as a Lender
By:
----------------------------------------------------
Name:
Title:
FLEET NATIONAL BANK, as a Lender
By:
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Name:
Title:
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IBJ XXXXXXXX BANK & TRUST COMPANY, as a Lender
By:
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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:
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Name:
Title:
ALLSTATE LIFE INSURANCE COMPANY, as a Lender
By:
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Name:
Title:
THE ING CAPITAL SENIOR SECURED HIGH INCOME FUND,
L.P., as a Lender
By:
----------------------------------------------------
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC.,
as a Lender
By:
----------------------------------------------------
Name:
Title:
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, as a
Lender
By:
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Name:
Title:
SENIOR DEBT PORTFOLIO, as a Lender
By:
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Name:
Title:
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COMMERCIAL LOAN TRUST I, as a Lender
By:
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Name:
Title:
FEDERAL STREET PARTNERS, as a Lender
By:
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Name:
Title:
PAMCO CAYMAN LTD., as a Lender
By:
----------------------------------------------------
Name:
Title:
ML CBO IV (CAYMAN) LTD., as a Lender
By: Protective Asset Management Company as Collateral
Manager
By:
----------------------------------------------------
Name:
Title:
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ACKNOWLEDGEMENT AND CONSENT
The undersigned does hereby acknowledge and consent to the foregoing Second
Amendment. The undersigned does hereby confirm and agree that, after giving
effect to such Second 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:
XXXX CREATIVE SYSTEMS
By:
Name:
Title:
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