EX-10.3 4 b46013a1exv10w3.txt EX-10.3 AMENDMENT #2 TO CREDIT AGREEMENT Exhibit 10.3 EXECUTION COPY AMENDMENT NO. 2 TO CREDIT AGREEMENT DATED AS OF APRIL 23, 2003 AMENDMENT NO. 2 TO CREDIT AGREEMENT, dated as of April 23, 2003 (this "Amendment") to the Credit Agreement dated as of December 26, 2002 (as amended, supplemented or otherwise modified from time to time, the "Credit Agreement") by and among PERKINELMER, INC., a Massachusetts corporation (the "Borrower"), the several banks and other financial institutions or entities from time to time parties to the Credit Agreement (collectively, the "Lenders"), MERRILL LYNCH & CO., MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as sole advisor, sole lead arranger and sole bookrunner, MERRILL LYNCH CAPITAL CORPORATION, as syndication agent, SOCIETE GENERALE, as documentation agent and BANK OF AMERICA, N.A., as administrative agent (in such capacity, the "Administrative Agent") for the Lenders and as Issuing Lender and Alternate Rate Lender. Capitalized terms not otherwise defined herein shall have the same meanings as specified therefor in the Credit Agreement. W I T N E S S E T H: - - - - - - - - - - WHEREAS, the Borrower has requested that the Lenders agree to amend the Credit Agreement; and WHEREAS, the Lenders have indicated their willingness to agree to so amend the Credit Agreement, but only on and subject to the terms and conditions of this Amendment; NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements contained herein, the parties hereto hereby agree as follows: SECTION 1. Amendment to the Credit Agreement. The Credit Agreement is hereby amended, effective as of the Effective Date (as defined in Section 2 below), as follows: (a) As of March 28, 2003, clause (2) of the proviso to the definition of "Consolidated EBITDA" set forth in Section 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows: "(2) in calculating Consolidated EBITDA for the fiscal quarters ending December 31, 2002, March 30, 2003, June 29, 2003, September 28, 2003, and December 28, 2003, non-cash and cash restructuring charges relating to the consolidation of the Life Sciences and Analytical Instruments units that were recorded in any such fiscal quarter, in an aggregate amount for all such fiscal quarters not exceeding $25,000,000, shall be excluded."; and 2 (b) As of March 28, 2003, the definition of "Consolidated Interest Expense" set forth in Section 1.1 of the Credit Agreement is hereby amended by deleting the proviso thereto. SECTION 2. Conditions of Effectiveness. This Amendment shall become effective (the "Effective Date") as of the date first above written when, and only when: (a) the Administrative Agent shall have received counterparts of this Amendment executed by the Borrower and the Required Lenders or, as to any of such Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment. (b) the Administrative Agent shall have additionally received all of the following documents, each such document (unless otherwise specified) dated the date of receipt thereof by the Administrative Agent (unless otherwise specified) and in sufficient copies for each Lender, in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and in sufficient copies for each Lender (i) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and the other documents to be delivered hereunder and thereunder; and (ii) A certificate signed by a duly authorized officer of the Borrower stating that: (1) The representations and warranties contained in the Loan Documents and in Section 3 hereof are correct on and as of the date of such certificate as though made on and as of such date, except where such representation and warranty is expressly made as of a specific earlier date, in which case such representation and warranty shall be true as of such earlier date; and (2) No event has occurred and is continuing that constitutes a Default or Event of Default as of the Effective Date after giving effect to this Amendment. (iii) All of the accrued fees and expenses of the Administrative Agent and the Lenders (including the accrued fees and expenses of counsel for the Administrative Agent and the Lenders in connection with this Amendment and for other work since the Closing Date) shall have been paid in full, including without limitation, payment by the Borrower to the Administrative Agent, for the pro rata benefit of the Lenders that execute this Amendment by no later than 12:00 p.m. (New York City time) on April 23, 2003, an amendment fee equal to 0.05% of the sum of (x) the outstanding principal balance of the Tranche B Term Loans and (y) the aggregate amount of the Revolving Credit Commitments and the L/C Commitments of such Lenders under the Credit Agreement, in each case without duplication, as of the date hereof. 3 SECTION 3. Representations and Warranties of the Borrower. In order to induce the parties hereto to execute and deliver this Amendment, the Borrower hereby restates each of the representations and warranties contained in Sections 4.3, 4.4 and 4.5 of the Credit Agreement, with each reference therein to the Credit Agreement being deemed to be a dual reference both to this Amendment and the Credit Agreement as amended by this Amendment. SECTION 4. Reference to and Effect on the Loan Documents. (a) On and after the effectiveness of this Amendment, each reference in the Credit Agreement to "this Agreement," "hereunder," "hereof" or words of like import referring to the Credit Agreement, and each reference in the Notes and each of the other Loan Documents to "the Credit Agreement," "thereunder," "thereof" or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement, as amended by this Amendment. (b) The Credit Agreement and the Notes, as specifically amended by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Without limiting the generality of the foregoing, the Security Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan Documents, in each case as amended by this Amendment. (c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under the Credit Agreement, nor constitute a waiver of any provision of the Credit Agreement. SECTION 5. Costs, Expenses. The Borrower agrees to pay on demand all reasonable and documented costs and expenses of the Administrative Agent and the Arranger in connection with the preparation, execution, delivery and administration, modification and amendment of this Amendment and the other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees and expenses of counsel for the Administrative Agent and the Arranger) in accordance with the terms of Section 10.5 of the Credit Agreement. SECTION 6. Execution in Counterparts. This Amendment may be executed in any number of separate counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment. SECTION 7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. 4 IN WITNESS WHEREOF, each of the undersigned has caused this Amendment to be duly executed and delivered as of the day first above written. PERKINELMER, INC., as Borrower By: /s/ Robert F. Friel ----------------------------------------- Name: Robert F. Friel Title: Senior Vice President and Chief Financial Officer BANK OF AMERICA, N.A., as Administrative Agent and as Lender By: /s/ James W. Ford ----------------------------------------- Name: James W. Ford Title: Managing Director MERRILL LYNCH CAPITAL CORPORATION, as Syndication Agent and as Lender By: /s/ Nancy E. Meadows ----------------------------------------- Name: Nancy E. Meadows Title: Assistant Vice President SOCIETE GENERALE, as Documentation Agent and as Lender By: /s/ Wormser Eric ----------------------------------------- Name: Wormser Eric Title: Managing Director ABN AMRO Bank N.V., as Lender By: /s/ Nancy W. Lanzoni ________________________________ Name: Nancy W. Lanzoni Title: Group Vice President By: /s/ Michele R. Costello ________________________________ Name: Michele R. Costello Title: Assistant Vice President ARCHIMEDES FUNDING IV, LTD. BY: ING Capital Advisors, LLC as Collateral Manager By: /s/ Helen Y. Rhee ------------------------------- Helen Y. Rhee SVP & Portfolio Manager NEMEAN CLO, LTD. By: ING Capital Advisors, LLC, (1) As Investment Manager By: /s/ Helen Y. Rhee ------------------------------- Helen Y. Rhee SVP & Portfolio Manager ENDURANCE CLO I, LTD c/o ING Capital Advisors, LLC As Portfolio Manager By: /s/ Helen Y. Rhee ------------------------------- Helen Y. Rhee SVP & Portfolio Manager ORYX CLO, LTD., AS A LENDER By: ING Capital Advisors, LLC As Collateral Manager By: /s/ Helen Y. Rhee ------------------------------- Helen Y. Rhee SVP & Portfolio Manager SEQUILS-ING (HBDGM), LTD. By: ING Capital Advisors, LLC As Collateral Manager By: /s/ Helen Y. Rhee ------------------------------- Helen Y. Rhee SVP & Portfolio Manager BALANCED HIGH-YIELD FUND II LTD., AS LENDER By: ING Capital Advisors, LLC Asset Manager By: /s/ Helen Y. Rhee ------------------------------- Helen Y. Rhee SVP & Portfolio Manager AURUM CLO 2002-1 LTD. By: Columbia Management Advisers, Inc. (f/k/a Stein Roe & Farnham Incorporated), As Investment Manager -------------------------------------, as Lender (Type or print legal name of Lender) By: /s/ Kathleen A. Zarn --------------------------------- Name: Kathleen A. Zarn Title: Senior Vice President BLACKROCK SENIOR LOAN TRUST, as Lender (Type or print legal name of Lender) By: /s/ Dennis M. Schaney ------------------------------------- Name: Dennis M. Schaney Title: Managing Director for BlackRock Financial Management, Inc., as Investment Manager BRYN MAWR CLO, Ltd. By: Deerfield Capital Management LLC as its Collateral Manager By: /s/ Dale Burrow ----------------------------- Name: Dale Burrow Title: Senior Vice President By: Callidus Debt Partners CLO Fund II, Ltd. By: Its Collateral Manager Callidus Capital Management, LLC, as Lender ------------------------------------ (Type or print legal name of Lender) By: /s/ Wayne Mueller ------------------------ Name: Wayne Mueller Title: Managing Director CENTURION CDO II, LTD. By: American Express Asset Management Group Inc. as Collateral Manager, as Lender (Type or print legal name of Lender) By: /s/ Leanne Stavrakis ----------------------------------- Name: Leanne Stavrakis Title: Director - Operations CENTURION CDO VI, Ltd. By: American Express Asset Management Group, Inc. as Collateral Manager ____________________________________, as Lender (Type or print legal name of Lender) By: /s/ Leanne Stavrakis ____________________________________________ Name: Leanne Stavrakis Title: Director - Operations Citadel Hill 2000, as Lender (Type or print legal name of Lender) By: /s/ Stephen Lockhart ---------------------------------- Name: STEPHEN LOCKHART Title: AUTHORIZED SIGNATORY CREDIT SUISSE FIRST BOSTON INTERNATIONAL, as Lender (Type or print legal name of Lender) By: /s/ [ILLEGIBLE] __________________________________ Name: Title: FOREST CREEK CLO, Ltd. By: Deerfield Capital Management LLC as its Collateral Manager By: /s/ Dale Burrow ___________________________________ Name: Dale Burrow Title: Senior Vice President FRANKLIN FLOATING RATE TRUST, as Lender ---------------------------- (Type or print legal name of Lender) By: /s/ Richard D'Addario ---------------------------- Name: Richard D'Addario Title: Vice President FRANKLIN FLOATING RATE MASTER SERIES, as Lender ------------------------------------ (Type or print legal name of Lender) By: /s/ Richard D'Addario ------------------------------------- Name: Richard D'Addario Title: Vice President Franklin Floating Rate Daily Access Fund, as Lender ---------------------------------------- (Type or print legal name of Lender) By: /s/ Richard D'Addario ------------------------------------------------ Name: Richard D'Addario Title: Vice President Franklin CLO II, Limited, as Lender ------------------------ (Type or print legal name of Lender) By: /s/ Richard D'Addario ------------------------------------- Name: Richard D'Addario Title: Senior Vice President Franklin CLO III, Limited, as Lender ------------------------- (Type or print legal name of Lender) By: /s/ Richard D'Addario ------------------------------------- Name: Richard D'Addario Title: Senior Vice President FRANKLIN CLO IV, LIMITED, as Lender ------------------------ (Type or print legal name of Lender) By: /s/ Richard D'Addario ------------------------------------- Name: Richard D'Addario Title: Senior Vice President Galaxy CLO 1999-1 Ltd., as Lender -------------------- By: /s/ Steven S. Oh ------------------------------------- Name: Steven S. Oh Title: Authorized Agent Galaxy CLO 2003-1 Ltd. By: CIBC Inc., as Agent as Lender By: /s/ [ILLEGIBLE] ------------------------------------- Name: Title: GoldenTree Loan Opportunities I, Limited, as Lender By: /s/ Frederick S. Haddad ----------------------------------------------- Name: Frederick S. Haddad Title: Harch CLO I, Ltd., as Lender (Type or print legal name of Lender) By: /s/ Michael E. Lewitt -------------------------------------- Name: Michael E. Lewitt Title: AUTHORIZED SIGNATORY Hewett's Island CDO, Ltd. By: CypressTree Investment Management Company, Inc., as Portfolio Manager. By: /s/ Michael Ashton ------------------------------------------------ Name: Michael Ashton Title: Principal IKB CAPITAL CORPORATION, as Lender (Type or print legal name of Lender) By: /s/ David Snyder ------------------------------------------- Name: DAVID SNYDER Title: PRESIDENT IKB CAPITAL CORPORATION INDOSUEZ CAPITAL FUNDING VI, LIMITED By: Indosuez Capital as Collateral Manager By: /s/ JACK C. HENRY ------------------- Name: Jack C. Henry Title: Principal KZH CYPRESSTREE-1 LLC, as Lender By: /s/ SUSAN LEE ------------------- Name: Susan Lee Title: Authorized Agent KZH ING-2 LLC, as Lender By: /s/ SUSAN LEE ------------------- Name: Susan Lee Title: Authorized Agent KZH SOLEIL LLC, as Lender By: /s/ SUSAN LEE ------------------- Name: Susan Lee Title: Authorized Agent KZH SOLEIL-2 LLC, as Lender By: /s/ Susan Lee ____________________________________ Name: Susan Lee Title: Authorized Agent KZH STERLING LLC, as Lender By: /s/ Susan Lee ____________________________________ Name: Susan Lee Title: Authorized Agent LCMI Limited Partnership, as Lender (Type or print legal name of Lender) By: Lyon Capital Management LLC, As Attorney in Fact By: /s/ F. Tavangar ____________________________________ Name: LYON CAPITAL MANAGEMENT LLC Title: Farboud Tavangar Senior Portfolio Manager LIBERTY FLOATING RATE ADVANTAGE FUND By: Columbia Management Advisors, Inc. (f/k/a Stein Roe & Farnham Incorporated), As Advisor __________________, as Lender (Type or print legal name of Lender) By: /s/ Kathleen A. Zarn ____________________________________ Name: Kathleen A. Zarn Title: Senior Vice President Magnetite Asset Inventors L.L.C. ----------------------------------------, as Lender (Type or print legal name of Lender) By: /s/ Dennis M. Schaney ------------------------------------ Name: Dennis M. Schaney Title: Managing Director for BlackRock Financial Management, Inc., as Managing Member Magnetite Asset Investors III L.L.C. ----------------------------------------, as Lender (Type or print legal name of Lender) By: /s/ Dennis M. Schaney ------------------------------------ Name: Dennis M. Schaney Title: Managing Director for BlackRock Financial Management, Inc., as Managing Member Magnetite IV CLO, Limited ----------------------------------------, as Lender (Type or print legal name of Lender) By: /s/ Dennis M. Schaney ------------------------------------ Name: Dennis M. Schaney Title: Managing Director for BlackRock Financial Management, Inc., as Collateral Manager Magnetite IV CLO, Limited ----------------------------------------, as Lender (Type or print legal name of Lender) By: /s/ Dennis M. Schaney ------------------------------------ Name: Dennis M. Schaney Title: Managing Director for BlackRock Financial Management, Inc., as Collateral Manager MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, as Lender BILL & MELINDA GATES FOUNDATION, as Lender By: David L. Babson & Company Inc. as Investment Adviser By: /s/ Glenn Duffy ________________________________________ Name: Glenn Duffy Title: Managing Director BABSON CLO LTD. 2003-I, as Lender By: David L. Babson & Company Inc. as Manager By: /s/ Glenn Duffy ________________________________________ Name: Glenn Duffy Title: Managing Director APEX (IDM) CDO I, LTD., as Lender ELC (CAYMAN) LTD., as Lender ELC (CAYMAN) LTD. CDO SERIES 1999-I, as lender ELC (CAYMAN) LTD. 1999-II, as Lender ELC (CAYMAN) LTD. 1999-III, as Lender ELC (CAYMAN) LTD. 2000-I, as Lender TRYON CLO LTD. 2000-I, as Lender By: David L. Babson & Company Inc. as Collateral Manager By: /s/ Glenn Duffy ________________________________________ Name: Glenn Duffy Title: Managing Director MAPLEWOOD (CAYMAN) LIMITED, as Lender By: David L. Babson & Company Inc. under delegated authority from Massachusetts Mutual Life Insurance Company as Investment Manager By: /s/ Glenn Duffy ________________________________________ Name: Glenn Duffy Title: Managing Director MONY Life Insurance Company, as Lender _______________________________________ (Type or print legal name of Lender) By: MONY Capital Management, Inc., as Investment Adviser By: /s/ Suzanne E. Walton ___________________________________ Name: Suzanne E. Walton Title: Senior Managing Director MONY Life Insurance Company of America , as Lender ----------------------------------- (Type or print legal name of Lender) By: MONY Capital Management, Inc. By: /s/ Suzanne E. Walton --------------------------------------- Name: Suzanne E. Walton Title: Authorized Agent MUIRFIELD TRADING, INC., as Lender By: /s/ Diana M. Himes ------------------------------- Name: Diana M. Himes Title: Assistant Vice President New York Life Insurance Company, as Lender By: /s/ F. David Melka ------------------------------------- Name: F. David Melka Title: Investment Vice President New York Life Insurance and Annuity Corporation, By: New York Life Investment Management, LLC, its Investment Manger, as Lender By: /s/ F. David Melka ------------------------------------- Name: F. David Melka Title: Vice President ORIX Finance Corp. I, as Lender By: /s/ S.H. Davis ------------------------------------ Name: Sheppard H.C. Davis, Jr. Title: Authorized Representative PRESIDENT & FELLOWS OF HARVARD COLLEGE By: Regiment Capital Management, LLC as its Investment Advisor By: Regiment Capital Advisors, LLC its Manager and pursuant to delegated authority By: /s/ Timothy S. Peterson ------------------------------------ Timothy S. Peterson President Lender: PRINCIPAL LIFE INSURANCE COMPANY By: Principal Global Investors, LLC a Delaware limited liability company, its authorized signatory By: /s/ Douglas A. Drees ------------------------------------- Its: Douglas A. Drees, Counsel By: /s/ Elizabeth D. Swanson ------------------------------------- Its: Elizabeth D. Swanson, Counsel REGIMENT CAPITAL LTD. By: Regiment Capital Management, LLC as its Investment Advisor By: Regiment Capital Advisors, LLC its Manager and pursuant to delegated authority By: /s/ Timothy S. Peterson ------------------------------------ Timothy S. Peterson President RIVIERA FUNDING LLC, as Lender By: /s/ Diana M. Himes ------------------------------- Name: Diana M. Himes Title: Assistant Vice President ROSEMONT CLO, Ltd. By: Deerfield Capital Management LLC as its Collateral Manager By: /s/ Dale Burrow ---------------------------- Name: Dale Burrow Title: Senior Vice President Seaboard CLO 2000, Ltd. By: ORIX Capital Markets, LLC, as Lender Its Collateral Manager By: /s/ Sheppard H.C. Davis, Jr. ------------------------------------- Name: Sheppard H.C. Davis, Jr. Title: Managing Director Senior Loan Fund, as Lender ---------------- (Type or print legal name of Lender) By: /S/ Dennis M. Schaney --------------------------------- Name: Dennis M. Schaney Title: Managing Director for BlackRock Financial Management, Inc., as Investment Manager SEQUILS-Cumberland I, Ltd. By: Deerfield Capital Management LLC as its Collateral Manager By: /s/ Dale Burrow ------------------------ Name: Dale Burrow Title: Senior Vice President Sequils--Centurion V, Ltd. By: American Express Asset Management Group Inc. as Collateral Manager -----------------------------, as Lender (Type or print legal name of Lender) By: /s/ Leanne Stavrakis -------------------------------- Name: Leanne Stavrakis Title: Director--Operations STANWICH LOAN FUNDING LLC, as Lender By: /s/ Diana M. Himes ------------------------------- Name: DIANA M. HIMES Title: ASSISTANT VICE PRESIDENT STEIN ROE & FARNHAM CLO I LTD. By: Columbia Management Advisers, Inc. (f/k/a Stein Roe & Farnham Incorporated), As Portfolio Manager -----------------------, as Lender (Type or print legal name of Lender) By: /s/ Kathleen A. Zarn ------------------------------- Name: Kathleen A. Zarn Title: Senior Vice President SunAmerica Life Insurance Company, as Lender By: /s/ Steven S. Oh ------------------ Name: Steven S. Oh Title: Authorized Agent Toronto Dominion (New York), Inc., as Lender (Type or print legal name of Lender) By: /s/ Stacey L. Malek ---------------------- Name: Stacey L. Malek Title: Vice President Venture CDO 2002, Limited, as Lender (Type or print legal name of Lender) By its investment advisor, Barclays Capital Asset Management Limited, By its sub-advisor, Barclays Bank PLC, New York Branch By: /s/ Hans L. Christensen ------------------------- Name: Hans L. Christensen Title: Director Venture II CDO 2002, Limited, as Lender (Type or print legal name of Lender) By its investment advisor, Barclays Bank PLC, New York Branch By: /s/ Hans L. Christensen ------------------------- Name: Hans L. Christensen Title: Director