<PAGE> 1
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
(Mark One)
(X)Quarterly Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the quarterly period ended September 30, 1997
OR
( )Transition Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the transition period from __________ to __________
Commission File Number 001-10109
BECKMAN INSTRUMENTS, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-104-0600
(State of Incorporation) (I.R.S. Employer
Identification No.)
2500 Harbor Boulevard, Fullerton, California 92834
(Address of principal executive offices) (Zip Code)
(714) 871-4848
(Registrant's telephone number including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes (X) No ( ).
APPLICABLE ONLY TO CORPORATE ISSUERS:
Outstanding shares of common stock, $0.10 par value, as of
November 10, 1997: 28,416,208 shares.
1
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PART I
FINANCIAL INFORMATION
<TABLE>
<CAPTION>
Item 1. Financial Statements Page
<S> <C>
Condensed Consolidated Statements of
Earnings for the three and nine month periods
ended September 30, 1997 and 1996 3
Condensed Consolidated Balance Sheets
as of September 30, 1997 and December 31, 1996 4
Condensed Consolidated Statements of
Cash Flows for the nine month periods
ended September 30, 1997 and 1996 5
Notes to Condensed Consolidated
Financial Statements 6
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of
Operations 9
PART II
OTHER INFORMATION
Item 1. Legal Proceedings 11
Item 2. Changes In Securities 11
Item 3. Defaults Upon Senior Securities 11
Item 4. Submission of Matters to a Vote of 11
Security-Holders
Item 5. Other Information 11
Item 6. Exhibits and Reports on Form 8-K 12
</TABLE>
2
<PAGE> 3
PART I
FINANCIAL INFORMATION
Item 1.Financial Statements
BECKMAN INSTRUMENTS, INC.
THIRD QUARTER REPORT
CONDENSED CONSOLIDATED STATEMENTS OF EARNINGS
(Dollars in Millions, Except Amounts Per Share)
Unaudited
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
Sales $ 271.6 $252.8 $ 774.1 $ 742.8
Operating costs and
expenses:
Cost of sales 132.1 117.8 372.4 346.3
Selling, general and
administrative 82.9 77.7 237.4 234.7
Research and development 27.7 26.1 80.3 78.1
------- ------ ------- -------
242.7 221.6 690.1 659.1
------- ------ ------- -------
Operating income 28.9 31.2 84.0 83.7
Nonoperating expense:
Interest income (0.7) (1.9) (2.9) (4.6)
Interest expense 4.6 4.4 11.7 12.0
Other, net (2.7) 0.8 (4.5) (0.4)
------- ------ ------- -------
1.2 3.3 4.3 7.0
------- ------ ------- -------
Earnings before income
taxes 27.7 27.9 79.7 76.7
Income tax provision 8.3 9.2 23.9 25.3
------- ------ ------- -------
Net earnings $ 19.4 $ 18.7 $ 55.8 $ 51.4
======= ====== ======= =======
Weighted average common
shares and common share 28,649 28,706 28,745 28,999
equivalents - (thousands)
Net earnings per share $ 0.68 $ 0.65 $ 1.94 $ 1.77
Dividends declared per
share $ 0.15 $ 0.13 $ 0.45 $ 0.39
</TABLE>
See accompanying notes to condensed consolidated financial statements.
3
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BECKMAN INSTRUMENTS, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(Dollars in Millions)
Unaudited
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
---- ----
<S> <C> <C>
Assets
Current assets:
Cash and equivalents $ 20.0 $ 34.6
Short-term investments 0.4 8.1
Trade receivables and other 332.5 309.5
Inventories 223.0 190.4
Deferred income taxes 22.4 21.4
Other current assets 20.3 15.4
-------- ------
Total current assets 618.6 579.4
Property, plant and equipment, net 278.4 263.5
Deferred income taxes 51.0 50.8
Other assets 80.2 66.4
-------- ------
Total assets $1,028.2 $960.1
======== ======
Liabilities and Stockholders' Equity
Current liabilities:
Notes payable $ 88.5 $ 19.4
Accounts payable and accrued expenses 184.1 208.2
Income taxes 73.8 51.7
-------- ------
Total current liabilities 346.4 279.3
Long-term debt, less current maturities 196.9 176.6
Other liabilities 87.1 105.3
-------- ------
Total liabilities 630.4 561.2
Stockholders' equity 397.8 398.9
-------- ------
Total liabilities and stockholders' equity $1,028.2 $960.1
======== ======
</TABLE>
See accompanying notes to condensed consolidated financial statements.
4
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BECKMAN INSTRUMENTS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Dollars in Millions)
Unaudited
<TABLE>
<CAPTION>
Nine Months Ended
September 30,
1997 1996
---- ----
<S> <C> <C>
Cash Flows from Operating Activities
Net earnings $ 55.8 $ 51.4
Adjustments to reconcile net earnings to net
cash provided (used) by operating activities:
Depreciation and amortization 70.7 61.6
Net deferred income taxes (1.7) -
Changes in assets and liabilities (net
of acquisitions):
Trade receivables and other (19.7) ( 7.3)
Inventories (15.4) (40.1)
Accounts payable and accrued
expenses (33.5) 9.0
Restructuring reserve (1.1) ( 7.3)
Accrued income taxes 22.0 12.9
Other (35.1) (27.3)
------ -----
Net cash provided
by operating activities 42.0 52.9
------ -----
Cash Flows from Investing Activities
Additions to property, plant and equipment (58.4) (68.4)
Net disposals of property, plant and
equipment 11.1 8.0
Sales of short-term investments 7.7 0.5
Investments (3.2) (3.0)
Acquisition of product lines (35.0) -
------ -----
Net cash used by investing activities (77.8) (62.9)
------ -----
Cash Flows from Financing Activities
Dividends to stockholders (12.5) (11.0)
Proceeds from issuance of stock 15.2 13.0
Purchase of treasury stock (43.8) (35.1)
Notes payable borrowings, net 61.9 3.0
Long-term debt borrowings 96.0 126.8
Long-term debt reductions (96.0) (99.1)
------ -----
Net cash provided (used)
by financing activities 20.8 (2.4)
Effect of exchange rates on cash and
equivalents 0.4 -
------ -----
Decrease in cash and equivalents (14.6) (12.4)
Cash and equivalents -- beginning of period 34.6 26.2
------ -----
Cash and equivalents -- end of period $ 20.0 $13.8
====== =====
Supplemental Disclosures of Cash Flow
Information
Cash paid during the period for:
Interest $ 8.2 $ 10.9
Income taxes $ 15.3 $ 12.0
</TABLE>
See accompanying notes to condensed consolidated financial statements.
5
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BECKMAN INSTRUMENTS, INC.
Notes To
Condensed Consolidated Financial Statements
- --------------------------------------------------------------------------------
(Dollars in Millions, Except Amounts Per Share)
1 Report by Management
In the opinion of Beckman Instruments, Inc. ("Beckman" or the "Company"), the
accompanying unaudited condensed consolidated financial statements reflect all
adjustments, consisting only of normal recurring accruals, necessary for a fair
presentation of the results for the periods. The statements are prepared in
accordance with the requirements of Form 10-Q. They do not include all
disclosures required by generally accepted accounting principles or those made
in the Annual Report on Form 10-K for 1996 which is on file with the Securities
and Exchange Commission.
The results of operations for the period ended September 30, 1997 are not
necessarily indicative of the results to be expected for the year ending
December 31, 1997.
2 Use of Estimates
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities, the disclosure of
contingent assets and liabilities at the date of the financial statements, and
the reported amounts of sales and expenses during the reporting period. Actual
results could differ from those estimates.
3 Stock-Based Compensation
The Company implemented Statement of Financial Accounting Standards No. 123,
"Accounting for Stock-Based Compensation" ("SFAS 123") in 1996. As permitted by
SFAS 123, the Company continues to follow the guidance of Accounting Principles
Board Opinion No. 25, "Accounting for Stock Issued to Employees." Consequently,
compensation related to stock options is the difference between the grant price
and the fair market value of the underlying common shares at the grant date.
Generally, the Company issues stock options with a grant price equal to the fair
market value of the Company's common shares. The Company provides proforma
disclosures as required by SFAS 123 in its Annual Report on Form 10-K.
4 Net Earnings Per Share
The net earnings per share includes the effect of common share equivalents.
Common share equivalents represent the dilutive effect of outstanding stock
options. The following table summarizes the impact of the dilutive effect of
common share equivalents on net earnings per share:
<TABLE>
<CAPTION>
Nine Months ended September 30, 1997 1996
----------------- -----------------
Net Net
Earnings Earnings
Shares Per Share Shares Per Share
<S> <C> <C> <C> <C>
Weighted average shares of common
stock outstanding 27.6 $ 2.02 28.1 $ 1.83
Common share equivalents 1.1 (0.08) 0.9 (0.06)
---- ------ ---- ------
Weighted average common and common
share equivalents 28.7 $ 1.94 29.0 $ 1.77
==== ====== ==== ======
</TABLE>
6
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In February 1997, the Financial Accounting Standards Board (FASB) issued
Statement of Financial Accounting Standards No. 128 ("SFAS 128"), "Earnings Per
Share." SFAS 128 simplifies the computation of earnings per share ("EPS")
currently required in Accounting Principles Board (APB) Opinion No. 15,
"Earnings Per Share," by replacing primary and fully diluted EPS with basic and
diluted EPS. Under SFAS 128, basic EPS is calculated by dividing net earnings by
the weighted-average common shares outstanding during the period. Diluted EPS
reflects the potential dilution to basic EPS that could occur upon conversion or
exercise of securities, options, or other such items, to common shares using the
treasury stock method based upon the weighted-average fair value of the
Company's common shares during the period. SFAS 128 is required to be adopted by
the Company in its year end 1997 annual report. Had the Company been required to
adopt SFAS 128 currently, the third quarter basic EPS for 1997 and 1996, would
have been $0.71 and $0.67 respectively, and diluted EPS would have equaled the
current and historically reported net (primary) earnings per share.
5 Inventories
Inventories are comprised of the following:
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
---- ----
<S> <C> <C>
Finished products $140.5 $123.8
Raw materials, parts and assemblies 67.8 53.0
Work in-process 14.7 13.6
------ ------
$223.0 $190.4
====== ======
</TABLE>
6 Acquisitions
On April 30, 1997, the Company consummated an agreement to purchase the Access
immunoassay product line, including the related manufacturing facility, from
Sanofi Diagnostics Pasteur. The acquisition also established an ongoing alliance
in immunochemistry between Beckman and Sanofi Diagnostics Pasteur. The
acquisition purchase price was not material to the Company and the transaction
has been accounted for as a purchase.
On October 31, 1997, Beckman consummated its acquisition (the "Acquisition") of
100% of the outstanding capital stock of Coulter Corporation pursuant to a
definitive stock purchase agreement dated as of August 29, 1997. The Acquisition
is being accounted for as a purchase. The Acquisition purchase price was $875
million in cash (subject to possible post-closing adjustment), plus the
assumption of approximately $180 million of indebtedness (net of cash on hand)
and of approximately $100 million of other obligations of Coulter.
Concurrently with the Acquisition, Beckman entered into a new $1.3 billion
unsecured credit facility (the "New Credit Facility") with a syndicate of
financial institutions of which Citicorp USA, Inc. acts as agent. To finance the
Acquisition, Beckman borrowed approximately $600 million under the revolving
credit portion of the New Credit Facility and approximately $500 million under
the term loan portion of the New Credit Facility. Beckman continues to evaluate
other potential debt financing sources. If Beckman were to obtain any additional
debt financing, the proceeds therefrom would be used to pay down borrowings
under the New Credit Facility and complete its recently announced plans for
existing debt.
7 Contingencies
As previously reported, although not a named defendant, the Company is obligated
to contribute to any resolution of a lawsuit filed by one of the previous owners
and
7
<PAGE> 8
developers of property in Irvine, California formerly owned by the Company.
Earlier in the year the Company was informed that the lawsuit was settled. The
Company is currently disputing its portion of the settlement and believes that
any additional liability beyond that provided for will not have a material
adverse effect on the Company's operations or financial position.
The Company and its subsidiaries are involved in a number of lawsuits which the
Company considers normal in view of its size and the nature of its business. The
Company does not believe that any liability resulting from any such lawsuits, or
the matters described above, will have a material adverse effect on its
operations or financial position.
8
<PAGE> 9
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
(Dollars in millions, except per share amounts)
The Company experienced sales growth of 7%, 11% in constant currency, over the
third quarter of the prior year and 4%, 7% in constant currency, over the first
nine months of the prior year. Sales growth resulted from the Company's ability
to penetrate selected markets as well as three months sales from the Access
immunoassay product line, acquired during the latter half of the second quarter
1997.
Gross profit as a percentage of sales decreased slightly for the third quarter
and for the nine months ended September 30, 1997. This was due to continued
unfavorable foreign currency fluctuations and pricing pressures from market
competition.
Operating costs and expenses for the quarter increased due to planned
integration expenses relating to the acquisition (late in the second quarter) of
the Access immunoassay product line from Sanofi Diagnostics Pasteur.
Third quarter earnings and earnings per share were $19.4 and $0.68, representing
an increase of 4% and 5% over the comparable period in the prior year. Earnings
and earnings per share in the first nine months were $55.8 and $1.94,
representing an increase of 9% and 10% over the comparable period in the prior
year.
On October 31, 1997, Beckman consummated its acquisition (the "Acquisition") of
100% of the outstanding capital stock of Coulter Corporation pursuant to a
definitive stock purchase agreement dated as of August 29, 1997. The Acquisition
is being accounted for as a purchase. The Acquisition purchase price was $875
million in cash (subject to possible post-closing adjustment), plus the
assumption of approximately $180 million of indebtedness (net of cash on hand)
and of approximately $100 million of other obligations of Coulter. See further
discussion in Note 6 Acquisitions (Condensed Consolidated Financial Statements).
Financial Condition
In the first nine months of 1997, net cash provided by operating activities was
$42.0 compared with $52.9 for the comparable period in the prior year.
Contributing to the change were fluctuations in trade receivables, accounts
payable, accrued expenses and inventory levels offset by increased net earnings
and depreciation.
Net cash used by investing activities for the first nine months of 1997
increased $14.9 from the comparable period in 1996, to $77.8. The acquisition of
the Access immunoassay product line was the main contributor to this increase.
This increase was offset by decreases in the purchases of property, plant and
equipment, as well as proceeds from the sale of short term investments that did
not occur in the prior year.
Net cash provided by financing activities increased $23.2 for the first nine
months of 1997 when compared to the same period in the prior year. This was
caused by an increase in net borrowings to fund operations offset by an increase
in the purchase of treasury stock.
At September 30, 1997 the ratio of debt-to-capital was 42% compared to 33% at
December 31, 1996. The increase was driven by the Company's repurchase of
Company shares as well as the purchase of the Access immunoassay product line.
The ratio of current assets to current liabilities at September 30, 1997 was 1.8
compared to 2.1 at December 31, 1996. The decrease in the current ratio was
primarily the result of increased use of notes payable to fund operations.
9
<PAGE> 10
On September 11, 1997, the Company paid a quarterly cash dividend of $0.15 per
share of common stock for a total of $4.1. On October 2, 1997, the Board of
Directors declared a $0.15 per share dividend payable on December 4, 1997 to
shareholders of record on November 14, 1997.
Business Climate
The diagnostic and life sciences markets continue to be unfavorably impacted by
the economic weakness in Europe and cost containment initiatives in several
European governmental and healthcare systems. The life sciences market also
continues to be affected by consolidation of pharmaceutical companies and
governmental constraints on research and development spending. Attempts to lower
costs and increase efficiencies have led to consolidation among healthcare
providers in the United States, resulting in more powerful provider groups that
leverage their purchasing power with suppliers to contain costs. Cost
containment initiatives in U.S. and European healthcare systems are expected to
be continuing factors which may affect the Company's ability to maintain or
increase sales.
10
<PAGE> 11
PART II
OTHER INFORMATION
Item 1. Legal Proceedings
As previously reported, in 1995 a lawsuit was filed against the
Company in the Superior Court of Orange County, California by two of
its former employees alleging breach of contract relating to the
commercial development of certain technology (Cercek v. Beckman
Instruments, Inc.). The plaintiffs sought monetary damages of not
less than $150 million. In September 1997, prior to the beginning of
the trial scheduled for September 22, the matter was resolved and
the lawsuit was dismissed without material adverse effect on the
Company's operations or financial position.
As previously reported, since 1992 five toxic tort lawsuits have
been filed in Maricopa County Superior Court, Arizona by a number of
residents of the Phoenix/Scottsdale area against the Company and a
number of other defendants, including Motorola, Inc., Siemens
Corporation , the cities of Phoenix and Scottsdale and others. In
August, 1997 the Company and a number of other defendants, including
Motorola, Inc., Siemens Corporation, and the cities of Phoenix and
Scottsdale, were served with another toxic tort action in Maricopa
County Superior Court, Arizona (Dawson v. Motorola, Inc., et. al.)
by a number of residents of the Phoenix/Scottsdale area (different
from the plaintiffs in the previously filed actions). The suit seeks
damages for alleged personal injury, emotional distress, lost
earnings and medical expenses, as well as punitive and other damages
(no dollar amount is specified) in connection with alleged
groundwater contamination in an area in Scottsdale, Arizona close to
a former Company manufacturing facility. The Company is indemnified
by SmithKline Beecham p.l.c., the successor of its former
controlling stock holder, for any costs incurred in these matters in
excess of applicable insurance, and thus the outcome of these
litigations, even if unfavorable to the Company, should have no
effect on the Company's earnings or financial position.
Item 2. Changes In Securities
None.
Item 3. Defaults Upon Senior Securities
None.
Item 4. Submission of Matters to a Vote of Security-Holders
None.
Item 5. Other Information
None.
11
<PAGE> 12
Item 6. Exhibits and Reports on Form 8-K
a) Exhibits
2.1 Stock Purchase Agreement among Coulter Corporation, The
Stockholders of Coulter Corporation and the Company, dated as
of August 29, 1997, incorporated by reference to Exhibit 2.1
of the Company's Report on Form 8-K dated November 13, 1997,
File No. 001-10109. [Note: Confidential treatment has been
requested for portions of this document.]
10.1 Credit Agreement dated as of October 31, 1997 among the
Company as Borrower, the Initial Lenders and the Initial
Issuing Banks named therein, and Citicorp USA, Inc. as Agent.
10.2 Guaranty dated as of October 31, 1997 made by each Guarantor
Subsidiary (as defined in the Credit Agreement, Exhibit 10.1
herein) of the Company, in favor of the Lender Parties (as
defined in the Credit Agreement).
10.3 Amendment 1997-1 to the Company's Employees' Stock Purchase
Plan, adopted effective January 1, 1998 and dated October 20,
1997, filed in connection with the Form S-8 Registration
Statement filed with the Securities and Exchange Commission on
December 19, 1995, Registration No. 33-65155.
10.4 The Company's Executive Deferred Compensation Plan, effective
January 1, 1998, dated November 5, 1997.
10.5 The Company's Executive Restoration Plan, effective January 1,
1998, dated November 5, 1997.
10.6 The Company's Amended and Restated Deferred Directors' Fee
Program, amended as of June 5, 1997.
10.7 Amendment 1997-2 to the Company's Supplemental Pension Plan,
adopted as of October 31, 1997.
10.8 Stock Option Plan for Non-Employee Directors (Amended and
Restated effective as of August 7, 1997), incorporated by
reference to Exhibit 4.1 of the Company's Registration
Statement on Form S-8 filed with the Securities and Exchange
Commission on October 8, 1997, Registration No. 333-37429.
10.9 Form of Restricted Stock Award Agreement between the Company
and its non-employee Directors (effective as of October 3,
1997), incorporated by reference to Exhibit 4.2 of the
Company's Registration Statement on Form S-8 filed with the
Securities and Exchange Commission on October 8, 1997,
Registration No. 333-37429.
10.10 Form of Stock Option Grant for non-employee Directors,
incorporated by reference to Exhibit 4.3 of the Company's
Registration Statement on Form S-8 filed with the Securities
and Exchange Commission on October 8, 1997, Registration No.
333-37429.
12
<PAGE> 13
11. Statement re Computation of Per Share Earnings: This
information is set forth in Note 4 Net Earnings Per Share of
the Condensed Consolidated Financial Statements included in
Part I herein.
15. Independent Accountants' Review Report, November 13, 1997
27. Financial Data Schedule
b) Reports on Form 8-K
1. Item 5. Other Events. Beckman Instruments, Inc. Announces
Plans for Debt Offering, September 23, 1997.
2. Item 5. Other Events. Summary of the acquisition of Coulter
Corporation by Beckman Instruments, Inc. and the related
financing transactions, October 15, 1997.
3. Item 2. Acqisition of Assets. Beckman Consummates its
Acquisition of Coulter Corporation, November 13, 1997.
13
<PAGE> 14
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
BECKMAN INSTRUMENTS, INC.
(Registrant)
Date: November 14, 1997 by /s/ WILLIAM H. MAY
William H. May
Vice President, General
Counsel and Secretary
Date: November 14, 1997 by /s/ JAMES T. GLOVER
James T. Glover
Vice President and
Controller
14
<PAGE> 15
EXHIBIT INDEX
FORM 10-Q, THIRD QUARTER, 1997
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<C> <S>
2.1 Stock Purchase Agreement among Coulter Corporation, The Stockholders
of Coulter Corporation and the Company, dated as of August 29, 1997,
incorporated by reference to Exhibit 2.1 of the Company's Report on
Form 8-K dated November 13, 1997, File No. 001-10109. [Note:
Confidential treatment has been requested for portions of this
document.]
10.1 Credit Agreement dated as of October 31, 1997 among the Company as
Borrower, the Initial Lenders and the Initial Issuing Banks named
therein, and Citicorp USA, Inc. as Agent.
10.2 Guaranty dated as of October 31, 1997 made by each Guarantor
Subsidiary (as defined in the Credit Agreement, Exhibit 10.1 herein)
of the Company, in favor of the Lender Parties (as defined in the
Credit Agreement).
10.3 Amendment 1997-1 to the Company's Employees' Stock Purchase Plan,
adopted effective January 1, 1998 and dated October 20, 1997, filed
in connection with the Form S-8 Registration Statement filed with
the Securities and Exchange Commission on December 19, 1995,
Registration No. 33-65155.
10.4 The Company's Executive Deferred Compensation Plan, effective
January 1, 1998, dated November 5, 1997.
10.5 The Company's Executive Restoration Plan, effective January 1, 1998,
dated November 5, 1997.
10.6 The Company's Amended and Restated Deferred Directors' Fee Program,
amended as of June 5, 1997.
10.7 Amendment 1997-2 to the Company's Supplemental Pension Plan, adopted
as of October 31, 1997.
10.8 Stock Option Plan for Non-Employee Directors (Amended and Restated
effective as of August 7, 1997), incorporated by reference to
Exhibit 4.1 of the Company's Registration Statement on Form S-8
filed with the Securities and Exchange Commission on October 8, 1997,
Registration No. 333-37429.
10.9 Form of Restricted Stock Award Agreement between the Company and its
non-employee Directors (effective as of October 3, 1997),
incorporated by reference to Exhibit 4.2 of the Company's
Registration Statement on Form S-8 filed with the Securities and
Exchange Commission on October 8, 1997, Registration No. 333-37429.
10.10. Form of Stock Option Grant for non-employee Directors, incorporated
by reference to Exhibit 4.3 of the Company's Registration Statement
on Form
</TABLE>
15
<PAGE> 16
<TABLE>
<C> <S>
S-8 filed with the Securities and Exchange Commission on October 8,
1997, Registration No. 333-37429.
11. Statement re Computation of Per Share Earnings: This information is
set forth in Note 4 Net Earnings Per Share of the Condensed
Consolidated Financial Statements included in Part I herein.
15. Independent Accountants' Review Report, November 13, 1997
27. Financial Data Schedule
</TABLE>
16
<PAGE> 1
EXHIBIT 10.1
EXECUTION COPY
$1,300,000,000
CREDIT AGREEMENT
Dated as of October 31, 1997
Among
BECKMAN INSTRUMENTS, INC.
as Borrower
-----------
and
THE INITIAL LENDERS AND
THE INITIAL ISSUING BANKS NAMED HEREIN
as Initial Lenders and Initial Issuing Banks
--------------------------------------------
and
CITICORP USA, INC.
as Agent
--------
and
CITICORP SECURITIES, INC.
as Arranger
-----------
and
MERRILL LYNCH & CO.
as Syndication Agent
--------------------
and
BANK OF AMERICA NT & SA
THE FIRST NATIONAL BANK OF CHICAGO
as Documentation Agents
-----------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
<S> <C> <C>
1.01. Certain Defined Terms ......................................................................1
1.02. Computation of Time Periods .....................................................................25
1.03. Accounting Terms .....................................................................25
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
2.01. The Revolving Credit And Term Loan Advances......................................................26
2.02. The Competitive Bid Advances.....................................................................28
2.03. The Letters of Credit .....................................................................31
2.04. Repayment of Advances .....................................................................34
2.05. Termination or Reduction of the Commitments......................................................35
2.06. Prepayments .....................................................................36
2.07. Interest .....................................................................39
2.08. Interest Rate Determination .....................................................................40
2.09. Fees .....................................................................41
2.10. Optional Conversion of Revolving Credit Advances and Term Loan Advances..........................42
2.11. Increased Costs .....................................................................42
2.12. Illegality .....................................................................44
2.13. Payments and Computations .....................................................................44
2.14. Taxes .....................................................................46
2.15. Sharing of Payments, Etc. .....................................................................48
2.16. Use of Proceeds .....................................................................48
2.17. Defaulting Lenders .....................................................................49
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
SECTION PAGE
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCE OF LETTERS OF CREDIT
<S> <C> <C>
3.01. Conditions Precedent to Initial Extension of Credit..............................................51
3.02. Conditions Precedent to Each Revolving Credit and Term Loan Borrowing and Each Issuance..........53
3.03. Conditions Precedent to Each Competitive Bid Borrowing...........................................54
SECTION 3.04. Determinations Under Section 3.01........................................................54
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrower...................................................55
ARTICLE V
COVENANTS OF THE BORROWER
5.01. Affirmative Covenants .....................................................................60
5.02. Negative Covenants .....................................................................62
5.03. Reporting Requirements .....................................................................73
5.04. Financial Covenants .....................................................................76
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default .....................................................................77
6.02. Actions in Respect of the Letters of Credit upon Default..........................................80
ARTICLE VII
THE AGENT
7.01. Authorization and Action .....................................................................80
7.02. Agent's Reliance, Etc. .....................................................................81
7.03. CUSA and Affiliates .....................................................................81
7.04. Lender Party Credit Decision .....................................................................82
7.05. Indemnification .....................................................................82
7.06. Successor Agents .....................................................................83
</TABLE>
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<PAGE> 4
<TABLE>
<CAPTION>
SECTION PAGE
ARTICLE VIII
MISCELLANEOUS
<S> <C> <C>
8.01. Amendments, Etc. .....................................................................84
8.02. Notices, Etc. .....................................................................84
8.03. No Waiver; Remedies .....................................................................85
8.04. Costs and Expenses .....................................................................85
8.05. Right of Set-off .....................................................................87
8.06. Binding Effect .....................................................................87
8.07. Assignments and Participations...................................................................87
8.08. Execution in Counterparts .....................................................................90
8.09. No Liability of the Issuing Banks.................................................................90
8.10. Confidentiality .....................................................................91
8.11. Release of Guarantors .....................................................................91
8.12. Jurisdiction, Etc. .....................................................................91
8.13. Governing Law .....................................................................92
8.14. Waiver of Jury Trial .....................................................................92
</TABLE>
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<PAGE> 5
SCHEDULES
SCHEDULE I - COMMITMENTS AND APPLICABLE LENDING OFFICES
SCHEDULE 3.01(c) - SURVIVING DEBT
SCHEDULE 4.01(b) - SUBSIDIARIES OF LOAN PARTIES
SCHEDULE 4.01(x) - INVESTMENTS
SCHEDULE 5.02(a) - EXISTING LIENS
EXHIBITS
EXHIBIT A-1 - FORM OF REVOLVING CREDIT PROMISSORY NOTE
EXHIBIT A-2 - FORM OF COMPETITIVE BID PROMISSORY NOTE
EXHIBIT A-3 - FORM OF TERM LOAN PROMISSORY NOTE
EXHIBIT B-1 - FORM OF NOTICE OF BORROWING
EXHIBIT B-2 - FORM OF NOTICE OF COMPETITIVE BID BORROWING
EXHIBIT C - FORM OF ASSIGNMENT AND ACCEPTANCE
EXHIBIT D - FORM OF GUARANTY
EXHIBIT E-1 - FORM OF OPINION OF GENERAL COUNSEL TO
THE BORROWER
EXHIBIT E-2 - FORM OF OPINION OF GENERAL COUNSEL TO
THE COMPANY
EXHIBIT E-3 - FORM OF OPINION OF COUNSEL TO BORROWER
AND GUARANTORS
EXHIBIT F - FORM OF OPINION OF COUNSEL TO AGENT
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<PAGE> 6
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of October 31, 1997 (as amended,
supplemented, restated or otherwise modified from time to time, the "Agreement")
among Beckman Instruments, Inc., a Delaware corporation (the "Borrower"), the
banks, financial institutions and other institutional lenders listed on the
signature pages hereof as the Initial Lenders (the "Initial Lenders"), Citibank,
N.A., a national banking association, as the Initial Issuing Bank (the "Initial
Issuing Bank"), Citicorp USA, Inc., a Delaware corporation ("CUSA"), as agent
(together with any successor appointed pursuant to Article VII, the "Agent") for
the Lender Parties (as hereinafter defined), and Citicorp Securities, Inc., a
Delaware corporation, as Arranger (the "Arranger").
PRELIMINARY STATEMENTS:
(1) The Borrower has requested that the Lender Parties make available
to the Borrower the Facilities (as hereinafter defined) (a) to finance the
acquisition (the "Acquisition") by the Borrower of all of the issued and
outstanding capital stock of the Company (as hereinafter defined) pursuant to
the Stock Purchase Agreement (as hereinafter defined), (b) to pay transaction
fees and costs related to such Acquisition and the financing thereof, (c) to
refinance the Existing Credit Agreement (as hereinafter defined) and certain
other indebtedness of the Borrower and the Company, (d) to provide the Borrower
and its Domestic Subsidiaries (as hereinafter defined) with working capital and
funds for other general corporate purposes in the United States and for other
purposes to the extent expressly permitted hereby and (e) to provide for the
issuance of Letters of Credit (as hereinafter defined) for the account of the
Borrower and its Guarantor Subsidiaries (as hereinafter defined).
(2) The Lender Parties are willing to provide the Facilities upon terms
and conditions provided herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Acquisition" has the meaning specified in Preliminary Statement (1) to
this Agreement.
"Advance" means a Revolving Credit Advance, a Term Loan Advance, a
Competitive Bid Advance or a Letter of Credit Advance.
"Affected Lender" means (a) any Lender Party that has made a demand for
payment under Section 2.11 that has not been withdrawn, (b) any Lender that has
given notice
<PAGE> 7
and made demand pursuant to Section 2.12 that have not been withdrawn, (c) any
Lender that has made a demand for payment under Section 2.14 that has not been
withdrawn, and (d) any Lender that is a Defaulting Lender.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person. For purposes of this definition, the term "control" (including the terms
"controlling", "controlled by" and "under common control with") of a Person
means the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of Voting Stock, by contract or otherwise.
"Agent" has the meaning specified in the recital of parties to this
Agreement.
"Agent's Account" means the account of the Agent maintained by the
Agent with Citibank at its office at 399 Park Avenue, New York, New York 10043,
Account No. 36852248, Attention: Pia Saenganan, or such other account as the
Agent may specify from time to time by written notice to the Lender Parties and
the Borrower.
"Applicable Lending Office" means, with respect to each Lender Party,
such Lender Party's Domestic Lending Office in the case of a Base Rate Advance
(or any other payment other than a payment in respect of a Eurodollar Rate
Advance or Competitive Bid Advance) and such Lender Party's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case of a
Competitive Bid Advance, the office of such Lender Party notified by such Lender
Party to the Agent as its Applicable Lending Office with respect to such
Competitive Bid Advance.
"Applicable Margin" means, as of any date, a percentage per annum
determined by reference to either (a) the Senior Unsecured Debt Rating in effect
on such date or (b) the Debt to Earnings Ratio in effect on such date, in each
case as set forth below, whichever is more favorable to the Borrower:
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<PAGE> 8
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
Applicable Applicable Applicable
Senior Unsecured Debt Margin for Margin for Margin for Base Applicable
Rating of at least Eurodollar Rate Eurodollar Rate Rate Advances Margin for Base
two of S&P/Moody's/ Advances under Advances under under the Rate Advances
Duff & Phelps Debt to Earnings the Revolving the Term Loan Revolving Credit under the Term
Ratio Credit Facility Facility Facility Loan Facility
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Level 1 Level 1
- ------- -------
BBB/Baa2/BBB or Less than 2.50:1.00 0.225% 0.350% 0% 0.125%
above; or
- -------------------------------------------------------------------------------------------------------------------
Level 2 Level 2
- ------- -------
BBB-/Baa3/BBB- or Greater than or 0.275% 0.425% 0% 0.150%
above and below equal to 2.50:1.00,
BBB/Baa2/BBB; or but less than or
equal to 3.00:1.00
- -------------------------------------------------------------------------------------------------------------------
Level 3 Level 3
- ------- -------
BB+/Ba1/BB+ or above Greater than 0.450% 0.625% 0% 0.175%
and below 3.00:1.00, but less
BBB/Baa2/BBB; or than or equal to
3.25:1.00
- -------------------------------------------------------------------------------------------------------------------
Level 4 Level 4
- ------- -------
BB+/Ba1/BB+ or above Greater than 0.625% 0.875% 0% 0.250%
and below 3.25:1.00, but less
BBB/Baa2/BBB; or than or equal to
3.50:1.00
- -------------------------------------------------------------------------------------------------------------------
Level 5 Level 5
- ------- -------
Below BB+/Ba1/BB+ or Greater than 0.750% 1.125% 0% 0.375%
less than two ratings 3.50:1.00
in effect
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
The Borrower must meet the specified Senior Unsecured Debt Rating of at
least two of the three Rating Agencies, or meet the required Debt to Earnings
Ratio, to qualify for a certain Level (as defined in the foregoing table) in
determination of the Applicable Margin. Notwithstanding the foregoing provisions
of this definition, (i) the Applicable Margin on the Closing Date shall be Level
4, (ii) to the extent that the Applicable Margin at any date of determination is
based on the Debt to Earnings Ratio then in effect, no change in the Applicable
Margin based on such ratio shall be effective until the date on which the Agent
receives financial statements pursuant to Section 5.03(b) or (c) and a
certificate of the Chief Financial Officer, Controller or Treasurer of the
Borrower demonstrating such ratio, (iii) if the Borrower has not submitted to
the Agent the information required under clause (ii) above as and when required
under Section 5.03(b) or (c), as the case may be, the Applicable Margin (A)
shall be determined by reference to the Senior Unsecured Debt Rating if at least
two such ratings are then in effect, or (B) if at least two such ratings are not
then in effect, shall be at Level 5 for so long as such information has not been
submitted, and (iv) if the Term Loan Balloon Installment is prepaid in full
pursuant to Section 2.06 within 90 days after the Closing Date, the Applicable
Margin for Eurodollar Rate Advances at Level 4 shall, from and after the date of
such prepayment, be reduced by 0.125%.
-3-
<PAGE> 9
"Appropriate Lender" means, at any time, (a) with respect to any of the
Term Loan Facility or Revolving Credit Facility, a Lender that has a Commitment
with respect to such Facility at such time, and (b) with respect to the Letter
of Credit Facility, (i) any Issuing Bank and (ii) if any Revolving Credit Lender
has made Letter of Credit Advances pursuant to Section 2.03(b)(iii) that are
outstanding at such time, each such Revolving Credit Lender.
"Arranger" has the meaning specified in the recital of parties to this
Agreement.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender Party and an Eligible Assignee in accordance with Section 8.07
and in substantially the form of Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such time
(assuming compliance at such time with all conditions to drawing).
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the highest
of:
(a) the rate of interest announced publicly by Citibank in New York,
New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is no
nearest of 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1% per annum,
plus (ii) the rate obtained by dividing (A) the latest three-week moving average
of secondary market morning offering rates in the United States for three-month
certificates of deposit of major United States money market banks, such
three-week moving average (adjusted to the basis of a year of 360 days) being
determined weekly on each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending on the previous
Friday by Citibank on the basis of such rates reported by certificate of deposit
dealers to and published by the Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the basis of quotations for
such rates received by Citibank from three New York certificate of deposit
dealers of recognized standing selected by Citibank, by (B) a percentage equal
to 100% minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve requirement (including, but
not limited to, any emergency, supplemental or other marginal reserve
requirement) for Citibank with respect to liabilities consisting of or including
(among other liabilities) three-month U.S. dollar non-personal time deposits in
the United States, plus (iii) the average during such three-week period of the
annual assessment rates estimated by Citibank for determining the then current
annual assessment payable by Citibank to the Federal Deposit Insurance
Corporation (or any successor) for insuring U.S. dollar deposits of Citibank in
the United States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as provided in
Section 2.07(a)(i).
"Borrower" has the meaning specified in the recital of parties to this
Agreement.
-4-
<PAGE> 10
"Borrower's Account" means the account of the Borrower maintained by
the Borrower with Citibank at its office at 399 Park Avenue, New York, New York
10043, Account No. 30060047.
"Borrowing" means a Revolving Credit Borrowing, a Term Loan Borrowing
or a Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York, New York or Los Angeles, California
and, if the applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"Capital Expenditures" means, for any Person for any period, the sum,
without duplication, of (a) all expenditures made, directly or indirectly, by
such Person or any of its Subsidiaries during such period for equipment, fixed
assets, real property or improvements, or for replacements or substitutions
therefor or additions thereto, that have been or should be, in accordance with
GAAP, reflected as additions to property, plant or equipment on a Consolidated
balance sheet of such Person, plus (b) the aggregate principal amount of all
Debt (including Obligations under Capitalized Leases) assumed or incurred in
connection with any such expenditures. For purposes of this definition, the
purchase price of equipment that is purchased simultaneously with the trade-in
of existing equipment or with insurance proceeds shall be included in Capital
Expenditures only to the extent of the gross amount of such purchase price less
the credit granted by the seller of such equipment for the equipment being
traded in at such time or the amount of such proceeds, as the case may be.
Anything contained herein to the contrary notwithstanding, the term "Capital
Expenditures" shall not include expenditures for any Equipment for Resale.
"Capitalized Leases" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"Cash Equivalents" means (a) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States Government or issued by any
instrumentality or agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof; (b) marketable direct obligations issued by any state of
the United States of America or any political subdivision of any such state or
any public instrumentality or agency thereof maturing within one year from the
date of acquisition thereof and, at the time of acquisition, having one of the
two highest ratings obtainable from either S&P or Moody's; (c) commercial paper
maturing no more than one year from the date of creation thereof and, at the
time of acquisition, having a rating of at least A-1 from S&P or at least P-1
from Moody's; (d) certificates of deposit, time deposits or bankers' acceptances
(or, with respect to foreign banks, similar instruments) maturing within one
year from the date of acquisition thereof issued by (i) any Lender Party or (ii)
a commercial banking institution that is a member of the Federal Reserve System
or a commercial banking institution organized and located in a country
recognized by the United States of America, in each case having combined capital
and surplus and undivided profits in excess of $500,000,000 (or the foreign
currency equivalent thereof); (e) repurchase obligations with a term of not more
than seven days for underlying securities of the types described in clause (a)
above entered into with any bank meeting the
-5-
<PAGE> 11
qualifications specified in clause (d) above; (f) investments in money market
funds which invest substantially all their assets in securities of the types
described in clauses (a) through (e) above; and (g) other short term investments
utilized by Foreign Subsidiaries in accordance with normal investment practices
for cash management not exceeding $20,000,000 in aggregate principal amount
outstanding at any time.
"Change of Control" means, at any time:
(a) any "person" or "group" (each as used in Sections 13(d)(3)
and 14(d)(2) of the Securities Exchange Act of 1934), other than Persons wholly
owned directly or indirectly by the Borrower, becomes the "beneficial owner" (as
defined in Rule 13d-3 of the Securities Exchange Act of 1934), directly or
indirectly, of Voting Stock of the Borrower (or securities convertible into or
exchangeable for such Voting Stock) representing 35% or more of the combined
voting power of all Voting Stock of the Borrower (on a fully diluted basis);
(b) during any period of up to 24 consecutive months,
commencing on the Closing Date, individuals who at the beginning of such
24-month period constituted the board of directors of the Borrower (together
with any new directors whose election by such board of directors or whose
nomination for election by the shareholders of the Borrower was approved by a
vote of a majority of the directors still in office who were either directors at
the beginning of such period or whose election or nomination for election was
previously so approved) shall cease for any reason to constitute a majority of
the board of directors of the Borrower then in office; or
(c) any "Change of Control" as defined in the New Senior Notes
Indenture.
"Citibank" means Citibank, N.A., a national banking association
organized and existing under the laws of the United States of America.
"Class" refers to the distinction between Term Loan Advances, Revolving
Credit Advances, Letter of Credit Advances and Competitive Bid Advances, each of
which shall be a "Class" of Advances.
"Closing Date" means the date of this Agreement.
"Commitment" means a Revolving Credit Commitment or a Term Loan
Commitment.
"Company" means Coulter Corporation, a Delaware corporation.
"Competitive Bid Advance" means an advance by a Revolving Credit Lender
to the Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.02 and refers to a Fixed
Rate Advance or a LIBO Rate Advance (each of which shall be a "Type" of
Competitive Bid Advance).
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Revolving Credit Lenders
whose offer to make one
-6-
<PAGE> 12
or more Competitive Bid Advances as part of such borrowing has been accepted
under the competitive bidding procedure described in Section 2.02.
"Competitive Bid Facility" means, at any time, the availability of
Competitive Bid Advances to the Borrower pursuant to Section 2.02.
"Competitive Bid Note" means a promissory note of the Borrower payable
to the order of any Revolving Credit Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from a Competitive Bid Advance made by such Lender.
"Confidential Information" means information about the Borrower and its
Subsidiaries and their operations, affairs, products and financial condition not
generally disclosed to, or known by, the public which is furnished by the
Borrower to any Lender Party (or to the Agent for distribution to any or all of
the Lender Parties) pursuant to this Agreement.
"Confidential Information Memorandum" means the confidential
information memorandum dated October 6, 1997 used by the Agent and the Arranger
in connection with the syndication of the Commitments.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP; provided, however, that the consolidation of accounts of the Borrower
and its Subsidiaries with respect to all or any part of Fiscal Year 1997 shall
not include the accounts of the Company and its Subsidiaries for any period
prior to the Closing Date.
"Conversion", "Convert" and "Converted" each refer to a conversion of
Revolving Credit Advances or Term Loan Advances of one Type into Revolving
Credit Advances or Term Loan Advances of another Type pursuant to Section 2.08,
2.10 or 2.12.
"Current Assets" of any Person means all assets of such Person that
would, in accordance with GAAP, be classified as current assets of a company
conducting a business the same as or similar to that of such Person, after
deducting adequate reserves in each case in which a reserve is proper in
accordance with GAAP.
"Current Liabilities" of any Person means (a) all Debt of such Person
that (i) is of a type described in clause (a), (b), (c), (d) or (e) of the
definition of Debt in this Section 1.01 and (ii) by its terms is payable on
demand or matures within one year after the date of its creation (excluding any
Debt renewable or extendible, at the option of such Person, to a date more than
one year from such date or arising under a revolving credit or similar agreement
that obligates the lender or lenders to extend credit during a period of more
than one year from such date) and (b) all other items (including taxes accrued
as estimated) that in accordance with GAAP would be classified as current
liabilities of such Person.
"CUSA" has the meaning specified in the recital of parties to this
Agreement.
"Debt" of any Person means (without duplication) (a) all indebtedness
of such Person for borrowed money, (b) all Obligations of such Person for the
deferred purchase price of property or services (other than (i) trade payables
that are payable on customary terms and
-7-
<PAGE> 13
incurred in the ordinary course of business, (ii) deferred compensation to any
employee or director of the Borrower or any of its Subsidiaries, and (iii)
payments to employees of the Company pursuant to the Stock Purchase Agreement),
(c) all Obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all Obligations of such Person created or arising
under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), (e) all Obligations of such Person as
lessee under Capitalized Leases, (f) all Obligations, contingent or otherwise,
of such Person under acceptance, letter of credit or similar facilities, (g) all
Obligations of such Person in respect of any Preferred Stock or to purchase,
repurchase, redeem, retire or defease any capital stock (other than capital
stock of the Company to be acquired by the Borrower upon consummation of the
Acquisition) of or other ownership or profit interest in such Person or any
Subsidiary of such Person or any warrants, rights or options to acquire such
capital stock, valued, in the case of Redeemable Preferred Stock, at the greater
of its voluntary or involuntary liquidation preference plus accrued and unpaid
dividends, (h) all net Obligations of such Person under Hedge Agreements, (i)
all Obligations of such Person for production payments from property operated by
or on behalf of such Person and other similar arrangements with respect to
natural resources, (j) all Debt of others referred to in clauses (a) through (i)
above or clause (k) below guaranteed directly or indirectly in any manner by
such Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (i) to pay or purchase such Debt or to advance or supply
funds for the payment or purchase of such Debt, (ii) to purchase, sell or lease
(as lessee or lessor) property, or to purchase or sell services, primarily for
the purpose of enabling the debtor to make payment of such Debt or to assure the
holder of such Debt against loss, (iii) to supply funds to or in any other
manner invest in the debtor (including any agreement to pay for property or
services irrespective of whether such property is received or such services are
rendered) or (iv) otherwise to assure a creditor against loss, and (k) all Debt
referred to in clauses (a) through (j) above of another Person secured by (or
for which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person to the extent of
the value of the property, even though such Person has not assumed or become
liable for the payment of such Debt.
"Debt to Earnings Ratio" means, at any date of determination, the ratio
of Consolidated Funded Debt of the Borrower and its Subsidiaries as of the last
day of the fiscal quarter of the Borrower most recently ended to Consolidated
EBITDA of the Borrower and its Subsidiaries for the period of four consecutive
fiscal quarters of the Borrower most recently ended.
"Default" means any Event of Default or any event that would constitute
an Event of Default but for the requirement that notice be given or time elapse
or both.
"Defaulted Advance" means, with respect to any Lender Party at any
time, the portion of any Advance required to be made by such Lender Party to the
Borrower pursuant to Section 2.01 at or prior to such time which has not been
made by such Lender Party or by the Agent for the account of such Lender Party
pursuant to Section 2.01(f) as of such time. In the event that a portion of a
Defaulted Advance shall be deemed made pursuant to Section 2.17(a), the
remaining portion of such Defaulted Advance shall be considered a Defaulted
Advance originally
-8-
<PAGE> 14
required to be made pursuant to Section 2.01 on the same date as the Defaulted
Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender Party at any time,
any amount required to be paid by such Lender Party to the Agent or any other
Lender Party hereunder or under any other Loan Document at or prior to such time
which has not been so paid as of such time, including, without limitation, any
amount required to be paid by such Lender Party to (a) any Issuing Bank pursuant
to Section 2.03(b)(iii) to purchase a portion of a Letter of Credit Advance made
by such Issuing Bank, (b) the Agent pursuant to Section 2.01(f) to reimburse the
Agent for the amount of any Advance made by the Agent for the account of such
Lender Party, (c) any other Lender Party pursuant to Section 2.15 to purchase
any participation in Advances owing to such other Lender Party and (d) the Agent
or any Issuing Bank pursuant to Section 7.05 to reimburse the Agent or such
Issuing Bank for such Lender Party's ratable share of any amount required to be
paid by the Lender Parties to the Agent or such Issuing Bank as provided
therein. In the event that a portion of a Defaulted Amount shall be deemed paid
pursuant to Section 2.17(b), the remaining portion of such Defaulted Amount
shall be considered a Defaulted Amount originally required to be paid hereunder
or under any other Loan Document on the same date as the Defaulted Amount so
deemed paid in part.
"Defaulting Lender" means, at any time, any Lender Party that, at such
time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take any
action or be the subject of any action or proceeding of a type described in
Section 6.01(f).
"Domestic Lending Office" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant to
which it became a Lender Party, as the case may be, or such other office of such
Lender Party as such Lender Party may from time to time specify to the Borrower
and the Agent.
"Domestic Subsidiary" of the Borrower means any Subsidiary of the
Borrower organized under the laws of any State of the United States of America.
"Duff & Phelps" means Duff & Phelps Credit Rating Co.
"EBITDA" means, for any period, the sum of (a) net income (or net
loss), (b) Interest Expense, (c) income tax expense, (d) depreciation expense,
(e) amortization expense, and (f) extraordinary, one-time non-cash items, or
special charges associated with the Acquisition for such period (to the extent
deducted in determining net income (or net loss) during such period), in each
case of the Borrower and its Subsidiaries on a Consolidated basis, determined in
accordance with GAAP. Anything contained herein to the contrary notwithstanding,
for purposes of determining the Debt to Earnings Ratio under Section 5.04(b) and
the ratio of Consolidated EBITDA to Consolidated Interest Expense under Section
5.04(c), Consolidated EBITDA for the Borrower and its Subsidiaries for each of
the fiscal quarters set forth below shall be deemed to be the amount set forth
opposite such fiscal quarter (regardless of the actual amount of such
Consolidated EBITDA for any such fiscal quarter):
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<PAGE> 15
<TABLE>
<CAPTION>
Fiscal Quarter Ending Consolidated EBITDA
--------------------- -------------------
<S> <C>
March 31, 1997 $73,100,000
June 30, 1997 $68,900,000
September 30, 1997 $77,300,000
December 31, 1997 The sum of (i) $8,100,000 and
(ii) actual Consolidated EBITDA
for such fiscal quarter.
</TABLE>
"Effective Date" means the date upon which the conditions set forth in
Section 3.01 will have been satisfied or waived.
"Eligible Assignee" means, with respect to any Facility (a) any Lender
Party; (b) any Affiliate of any Lender Party; and (c) any other Person approved
by the Agent and, so long as no Default or Event of Default has occurred and is
continuing, the Borrower, such approval by the Borrower not to be unreasonably
withheld or delayed; provided, however, that neither the Borrower nor any
Subsidiary or Affiliate of the Borrower shall qualify as an Eligible Assignee
under this definition.
"Environmental Action" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or potential
liability, investigation, proceeding, consent order or consent agreement by, to
or against the Borrower or any Subsidiary of the Borrower or with respect to any
business or property of the Borrower or any such Subsidiary relating in any way
to any Environmental Law, any Environmental Permit or Hazardous Material or
arising from alleged injury or threat to health, safety or the environment,
including, without limitation, (a) by any governmental or regulatory authority
for enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or third party for
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief.
"Environmental Law" means any federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, writ, judgment, injunction,
decree or judicial or agency interpretation, policy or guidance relating to
pollution or protection of the environment, health, safety or natural resources,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of Hazardous
Materials, in each case as applicable to the Borrower or any of its Subsidiaries
or any business or property of the Borrower or any of its Subsidiaries.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required to be obtained by the Borrower
or any of its Subsidiaries or required in respect of any business or property of
the Borrower or any of its Subsidiaries under any Environmental Law.
"Equipment for Resale" means any instrument systems and related
accessories and components manufactured or assembled by or on behalf of the
Borrower or any of its Subsidiaries that are owned by the Borrower or such
Subsidiary and held for placement or placed (pursuant to leases, bailment
arrangements or rental agreements) in facilities of the Borrower's or such
-10-
<PAGE> 16
Subsidiary's customers (including distributors, commission representatives,
agents and their customers).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means (a) any Subsidiary of the Borrower and (b) any
trade or business (whether or not incorporated) which is a member of a group of
which the Borrower or any Subsidiary of the Borrower is a member and which is
under common control within the meaning of Section 414 of the Internal Revenue
Code.
"Eurocurrency Liabilities" has the meaning specified in Regulation D of
the Board of Governors of the Federal Reserve System, as in effect from time to
time.
"Eurodollar Lending Office" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party (or, if no such office is specified,
its Domestic Lending Office), or such other office of such Lender Party as such
Lender Party may from time to time specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, an interest rate per annum
equal to the rate per annum obtained by dividing (a) the average (rounded upward
to the nearest whole multiple of 1/16 of 1% per annum, if such average is not
such a multiple) of the rate per annum at which deposits in U.S. dollars are
offered by the principal office of each of the Reference Banks in London,
England to prime banks in the London interbank market at 11:00 A.M. (London
time) two Business Days before the first day of such Interest Period in an
amount substantially equal to such Reference Bank's Eurodollar Rate Advance (or,
in the case of Citibank, CUSA's Eurodollar Rate Advance) comprising part of such
Borrowing and for a period equal to such Interest Period by (b) a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage for such Interest
Period. The Eurodollar Rate for any Interest Period for each Eurodollar Rate
Advance comprising part of the same Borrowing shall be determined by the Agent
on the basis of applicable rates furnished to and received by the Agent from the
Reference Banks two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.08.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the reserve
percentage applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits
-11-
<PAGE> 17
by reference to which the interest rate on Eurodollar Rate Advances is
determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excess Cash Flow" means, for any period, the sum of (i) Consolidated
net income (or loss) of the Borrower and its Subsidiaries for such period plus
(ii) the aggregate amount of all non-cash charges deducted in arriving at such
Consolidated net income (or loss) plus (iii) if there was a net increase in
Consolidated Current Liabilities of the Borrower and its Subsidiaries during
such period, the amount of such net increase plus (iv) if there was a net
decrease in Consolidated Current Assets (excluding cash and Cash Equivalents) of
the Borrower and its Subsidiaries during such period, the amount of such net
decrease less (v) the aggregate amount of all non-cash credits included in
arriving at such Consolidated net income (or loss) less (vi) if there was a net
decrease in Consolidated Current Liabilities of the Borrower and its
Subsidiaries during such period, the amount of such net decrease less (vii) if
there was a net increase in Consolidated Current Assets (excluding cash and Cash
Equivalents) of the Borrower and its Subsidiaries during such period, the amount
of such net increase less (viii) cash dividends paid by the Borrower during such
period on its common stock and Qualified Preferred Stock to the extent permitted
by Section 5.02(f) less (ix) cash Capital Expenditures during such period less
(x) voluntary prepayments of the principal of any Term Loan Advances under
Section 2.06(a).
"Existing Credit Agreement" means that certain Revolving Credit
Agreement dated as of September 26, 1994 among the Borrower, the lenders named
therein and the agent thereunder, as such agreement has been amended,
supplemented or otherwise modified from time to time.
"Existing Senior Debentures" means the 7.05% Senior Debentures of the
Borrower due June 1, 2026 issued pursuant to the Existing Senior Indenture, and
any debentures issued in exchange or replacement therefor, in an aggregate
principal amount outstanding as of the Closing Date not to exceed $100,000,000.
"Existing Senior Indenture" means that certain indenture, dated as of
May 15, 1996, between the Borrower and the trustee named therein, as such
indenture may be amended, supplemented or otherwise modified from time to time.
"Extraordinary Receipt" means any cash received by or paid to or for
the account of the Borrower or any Subsidiary of the Borrower from pension plan
reversions, indemnities, warranties, proceeds of insurance (other than proceeds
of business interruption insurance to the extent such proceeds constitute
compensation for lost earnings), condemnation awards (and payments in lieu
thereof) and payments made to the Borrower or any of its Subsidiaries with
respect to the escrow provided for in Section 7.9 of the Stock Purchase
Agreement or pursuant to Section 2.5 of the Stock Purchase Agreement; provided,
however, that an Extraordinary Receipt shall not include cash receipts received
from proceeds of insurance, condemnation awards (or payments in lieu thereof) or
indemnity or warranty payments to the extent that such proceeds, awards or
payments (a) in respect of loss or damage to equipment, fixed assets or real
property are applied (or in respect of which expenditures were previously
incurred) to replace or repair the equipment, fixed assets or real property in
respect of which such proceeds were received in
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<PAGE> 18
accordance with the terms of the Loan Documents, so long as such application is
made within six months after the receipt of such proceeds or (b) are received by
any Person in respect of any third party claim against such Person and applied
to pay (or to reimburse such Person for its prior payment of) such claim and the
costs and expenses of such Person with respect thereto; and provided further
that the term "Extraordinary Receipt" shall not include any cash received by the
Borrower or any of its Subsidiaries in the ordinary course of business.
"Facility" means the Revolving Credit Facility, the Term Loan Facility,
the Competitive Bid Facility or the Letter of Credit Facility.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day for such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"First Qualified Quarter" has the meaning set forth in Section 5.04(a).
"Fiscal Year" means a fiscal year of the Borrower ending on December 31
in any calendar year.
"Fixed Rate Advances" has the meaning specified in Section 2.02(a)(i).
"Foreign Subsidiary" means each Subsidiary of the Borrower that is not
a Domestic Subsidiary.
"Funded Debt" of any Person means Debt of such Person that (a) is of a
type described in clause (a), (b), (c), (d) or (e) of the definition of Debt in
this Section 1.01, and (b) by its terms matures more than one year after the
date of its creation or matures within one year from such date but is renewable
or extendible, at the option of such Person, to a date more than one year after
such date or arises under a revolving credit or similar agreement that obligates
the lender or lenders to extend credit during a period of more than one year
after such date, including, without limitation, all amounts of Funded Debt of
such Person required to be paid or prepaid within one year after the date of its
creation.
"GAAP" has the meaning specified in Section 1.03.
"Guarantor Subsidiary" means each direct or indirect Domestic
Subsidiary of the Borrower which is a party to the Guaranty and, at the time in
question, continues to be a guarantor thereunder. Anything contained herein to
the contrary notwithstanding, any Domestic Subsidiary that becomes a party to
the Guaranty after the Closing Date shall not be a Guarantor Subsidiary
hereunder (a) unless and until the Agent shall have received an opinion of
counsel from counsel reasonably satisfactory to the Agent, and in form and
substance reasonably satisfactory to the Agent, covering such matters as the
Agent may reasonably require with respect to such Subsidiary and the
enforceability of the Guaranty against such Subsidiary, or (b) if a Default or
Event of Default would occur and be continuing or be deemed to have occurred and
be
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<PAGE> 19
continuing as a result thereof on the date on which such Subsidiary becomes a
Guarantor Subsidiary (assuming for this purpose that such Subsidiary had been a
Guarantor Subsidiary at all times from and after the Closing Date).
"Guaranty" has the meaning specified in Section 3.01(i)(vii).
"Hazardous Materials" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency or
commodity future or option contracts and other similar agreements.
"Indemnified Party" has the meaning specified in Section 8.04(b).
"Initial Extension of Credit" means the earlier to occur of the initial
Borrowing or the initial issuance of a Letter of Credit hereunder.
"Initial Issuing Bank" has the meaning specified in the recital of
parties to this Agreement.
"Initial Lenders" has the meaning specified in the recital of parties
to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount, if any, of
its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Interest Expense" means, for any period, the sum of (i) interest
expense, including, without limitation and without duplication, (a) amortization
of debt discount, (b) amortization of fees (including, without limitation, fees
payable in respect of Hedge Agreements) payable in connection with the
incurrence of Debt to the extent included in interest expense, and (c) the
portion of any liabilities incurred in connection with Capitalized Leases
allocable to interest expense, in each case of the Borrower and its Subsidiaries
on a Consolidated basis, determined in accordance with GAAP for such period, and
(ii) any dividends paid or accrued in respect of any Preferred Stock of the
Borrower during such period. Anything contained herein to the contrary
notwithstanding, for purposes of determining Consolidated Interest Expense under
Section 5.04(c), Consolidated Interest Expense for the Borrower and its
Subsidiaries for each of the fiscal quarters set forth below shall be deemed to
be the amount set forth opposite each such fiscal quarter (regardless of the
actual amount of such Consolidated Interest Expense for any such fiscal
quarter):
<TABLE>
<CAPTION>
Fiscal Quarter Ending Consolidated Interest Expense
--------------------- -----------------------------
<S> <C>
March 31, 1997 $26,300,000
June 30, 1997 $26,300,000
September 30, 1997 $26,300,000
December 31, 1997 The sum of (i) $8,790,000 and
(ii) actual Consolidated Interest
Expense for such fiscal quarter.
</TABLE>
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<PAGE> 20
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Revolving Credit Borrowing or Term Loan Borrowing and each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing, the period
commencing on the date of such Eurodollar Rate Advance or LIBO Rate Advance or
the date of the Conversion of any Base Rate Advance into such Eurodollar Rate
Advance and ending on the last day of the period selected by the Borrower
pursuant to the provisions below and, thereafter, with respect to Eurodollar
Rate Advances, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the period
selected by the Borrower pursuant to the provisions below. The duration of each
such Interest Period shall be one, two, three or six months or, in the case of
Eurodollar Rate Advances, to the extent available to all of the Lenders, nine or
twelve months, as the Borrower may, upon notice received by the Agent not later
than 11:00 A.M. (New York City time) on the third (or in the case of any LIBO
Rate Advance, fourth) Business Day prior to the first day of such Interest
Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period with respect to any
Eurodollar Rate Advance under the Term Loan Facility that ends after any
principal repayment installment date for such Facility unless, after giving
effect to such selection, the aggregate principal amount of Base Rate
Advances and of Eurodollar Rate Advances having Interest Periods that end on
or prior to such principal repayment installment date for such Facility
shall be at least equal to the aggregate principal amount of Advances under
such Facility due and payable on or prior to such date;
(ii) the Borrower may not select any Interest Period that ends after
the Termination Date;
(iii) Interest Periods commencing on the same date for Eurodollar Rate
Advances comprising part of the same Borrowing or for LIBO Rate Advances
comprising part of the same Competitive Bid Borrowing shall be of the same
duration;
(iv) whenever the last day of any Interest Period would otherwise occur
on a day other than a Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding Business Day, provided,
however, that if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day; and
(v) whenever the first day of any Interest Period occurs on a day of an
initial calendar month for which there is no numerically corresponding day
in the calendar month that succeeds such initial calendar month by the
number of months equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such succeeding
calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
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<PAGE> 21
"Inventory" has the meaning provided in the Uniform Commercial Code as
in effect in the State of New York.
"Investment" in any Person means any direct or indirect loan, advance
or other extension of credit to such Person, any direct or indirect guarantee of
any Obligations of such Person, any purchase or other acquisition of any capital
stock or other ownership or profit interest, warrants, rights, options,
obligations or other securities of such Person, or any capital contribution to
such Person, including, without limitation, any arrangement pursuant to which
the investor incurs Debt of the types referred to in clause (j) or (k) of the
definition of "Debt" in respect of such Person or the issuance of any letter of
credit (including any Letter of Credit hereunder) on behalf of such Person as to
which the investor is obligated to reimburse the issuer. The amount of any
Investment shall be the original amount thereof less any return of capital.
"Issuing Bank" means the Initial Issuing Bank and any Revolving Credit
Lender that is willing to issue Letters of Credit hereunder, in its capacity as
the issuer or proposed issuer of any such Letter of Credit.
"L/C Cash Collateral Account" means a non-interest bearing cash
collateral account established for purposes of Sections 2.06(b)(vii),
2.06(b)(viii) and 6.02 by the Agent with Citibank, in the name of the Borrower
and under the sole dominion and control of the Agent.
"L/C Related Documents" has the meaning specified in Section
2.03(b)(v).
"Lender Party" means the Agent, any Lender or any Issuing Bank.
"Lenders" means the Initial Lenders and each Person that shall become a
Lender hereunder pursuant to Section 8.07, in each case to the extent then a
party to this Agreement.
"Letter of Credit" has the meaning specified in Section 2.03(a).
"Letter of Credit Advance" means an advance made by any Issuing Bank or
any Revolving Credit Lender pursuant to Section 2.03(b)(iii).
"Letter of Credit Agreement" has the meaning specified in Section
2.03(b)(i).
"Letter of Credit Facility" means, at any time, an amount equal to
$25,000,000, as such amount may be reduced at or prior to such time pursuant to
Section 2.05(a) or (b)(iii).
"LIBO Rate" means, for any Interest Period for all LIBO Rate Advances
comprising part of the same Competitive Bid Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the average (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum, if such average is
not such a multiple) of the rate per annum at which deposits in U.S. dollars are
offered by the principal office of each of the Reference Banks in London,
England to prime banks in the London interbank market at 11:00 A.M. (London
time) two Business Days before the first day of such Interest Period in an
amount substantially equal to the amount that would be the Reference Banks' (or,
in the case of Citibank, CUSA's) respective ratable shares of such Borrowing if
such Borrowing were to be a Revolving Credit Borrowing to be outstanding during
such Interest Period and for a period equal to such Interest Period by (b) a
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<PAGE> 22
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for such
Interest Period. The LIBO Rate for any Interest Period for each LIBO Rate
Advance comprising part of the same Competitive Bid Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to and
received by the Agent from the Reference Banks two Business Days before the
first day of such Interest Period, subject, however, to the provisions of
Section 2.08.
"LIBO Rate Advances" has the meaning specified in Section 2.02(a)(i).
"Lien" means any lien, security interest or other charge or encumbrance
of any kind, or any other type of preferential arrangement, including, without
limitation, the lien or retained security title of a conditional vendor and any
easement, right of way or other encumbrance on title to real property.
"Loan Documents" means this Agreement, the Notes, the Guaranty and each
Letter of Credit Agreement, in each case as amended, supplemented or otherwise
modified from time to time.
"Loan Parties" means the Borrower and each Guarantor Subsidiary (and,
at all times prior to the consummation of the Acquisition, the Company).
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any material adverse change (or any
event or condition which, solely with the passage of time, has a substantial
likelihood of causing or resulting in a material adverse change) in the
business, financial condition, operations, performance or properties of the
Borrower and its Subsidiaries or the Borrower and its Guarantor Subsidiaries, in
either case taken as a whole. The incurrence of Debt under this Agreement and
the other Loan Documents on the Closing Date to finance the Acquisition shall
not constitute a Material Adverse Change.
"Material Adverse Effect" means a material adverse effect (or, solely
with the passage of time, a substantial likelihood of causing or resulting in a
material adverse effect) on (a) the business, financial condition, operations,
performance or properties of the Borrower and its Subsidiaries or the Borrower
and its Guarantor Subsidiaries, in either case taken as a whole, (b) the rights
and remedies of the Agent or any other Lender Party under the Loan Documents or
(c) the ability of the Borrower to perform its Obligations under the Loan
Documents.
"Mellon Facility" means that certain Promissory Note for Automated
Borrowing Service Borrowings, dated October 6, 1992, executed by the Borrower in
favor of Mellon Bank, N.A., and any replacement therefor that provides similar
automated cash management services to the Borrower.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan", as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make contributions.
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<PAGE> 23
"Multiple Employer Plan" means an employee benefit plan (other than a
Multiemployer Plan) subject to Title IV of ERISA, (a) to which the Borrower or
any ERISA Affiliate and at least one employer other than the Borrower or an
ERISA Affiliate is making or accruing an obligation to make contributions or (b)
to which the Borrower or any ERISA Affiliate made or accrued an obligation to
make contributions during any of the five plan years preceding the date of
determination and in respect of which the Borrower or any ERISA Affiliate could
reasonably be expected to have a liability under Section 4064 or 4069 of ERISA.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer or
other disposition of any asset or the sale or issuance of any Debt or capital
stock or other ownership or profit interest, any securities convertible into or
exchangeable for capital stock or other ownership or profit interest or any
warrants, rights, options or other securities to acquire capital stock or other
ownership or profit interest by any Person, or any Extraordinary Receipt
received by or paid to or for the account of any Person, the aggregate amount of
cash received from time to time (whether as initial consideration or through
payment or disposition of deferred consideration) by or on behalf of such Person
in connection with such transaction after deducting therefrom only the
following, in each case to the extent properly attributable to such transaction
and without duplication: (a) reasonable and customary brokerage commissions,
underwriting fees and discounts, legal fees, finder's fees and other similar
fees and commissions, to the extent paid to a Person which is not an Affiliate
of such Person or the Borrower or any Affiliate of the Borrower within one
Business Day following receipt of such cash, (b) the amount of taxes reasonably
estimated by the Borrower to be payable by the Borrower or any Subsidiary of the
Borrower in connection with or as a result of such transaction or of the
repatriation of funds from such transaction to the Borrower, and (c) in the case
of any sale, lease, transfer or other disposition of any asset, the amount of
any Debt (other than any Obligation under the Loan Documents or any Obligation
owed to the Borrower or any Subsidiary of the Borrower) paid in connection
therewith (including interest, fees and prepayment premiums), to the extent that
such Debt is secured by such asset and is required to be paid by the Borrower or
any Subsidiary of the Borrower in connection with such disposition. Anything
contained herein to the contrary notwithstanding, the term "Net Cash Proceeds"
shall not include (i) the first $140,000,000 that would otherwise constitute Net
Cash Proceeds during the period from the Closing Date to December 31, 1998 from
the sale, lease, transfer or other disposition by the Borrower or any of its
Subsidiaries (pursuant to Section 5.02(d)(iii), (iv), (v) or (vii)) of any
interests in real property or Equipment for Resale or leases, bailment
arrangements or rental agreements with respect thereto, or (ii) an amount that
would otherwise constitute a portion of the Net Cash Proceeds from the issuance
of New Senior Notes equal to the Tender Offer Reserve.
"New Acquisition" means the acquisition after the Closing Date by the
Borrower or any Subsidiary of the Borrower of (a) all or substantially all of
the capital stock and other ownership or equity interests of any other Person
such that such other Person becomes a Wholly-Owned Subsidiary of the Borrower,
or (b) any other assets (including, without limitation, technology, license
rights, distribution rights and marketing rights, but excluding the acquisition
of assets free and clear of Liens from any Person engaged in the business of
selling such assets in the ordinary course of such Person's business).
"New Senior Notes" means senior unsecured notes issued by the Borrower
after the Closing Date pursuant to the New Senior Notes Indenture, for Net Cash
Proceeds (without
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<PAGE> 24
regard to the provisions of clause (ii) of the definition of Net Cash Proceeds)
in an amount in excess of the principal balance of the Term Loan Balloon
Installment outstanding immediately prior to receipt of such Net Cash Proceeds,
and any notes issued in exchange or replacement therefor.
"New Senior Notes Closing Date" means the first date on which any Net
Cash Proceeds (without regard to the provisions of clause (ii) of the definition
of Net Cash Proceeds) from the issuance of New Senior Notes is paid to or for
the account of the Borrower.
"New Senior Notes Indenture" means an indenture entered into after the
Closing Date by and among the Borrower, the Guarantor Subsidiaries and the
trustee named therein, which is designated by the Borrower in a written notice
to the Agent as the New Senior Notes Indenture for purposes of this Agreement
and is in form and substance reasonably satisfactory to the Agent, as such
indenture may be amended, supplemented or otherwise modified from time to time.
"Non-Guarantor Subsidiary" means each direct or indirect Subsidiary of
the Borrower which, at the time in question, is not a guarantor under the
Guaranty.
"Note" means a Revolving Credit Note, a Term Note or a Competitive Bid
Note.
"Notice of Borrowing" has the meaning specified in Section 2.01(c).
"Notice of Competitive Bid Borrowing" has the meaning specified in
Section 2.02(a)(i).
"Notice of Issuance" has the meaning specified in Section 2.03(b)(i).
"Notice of Renewal" has the meaning specified in Section 2.03(a).
"Notice of Termination" has the meaning specified in Section 2.03(a).
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including, without
limitation, any liability of such Person on any claim, whether or not the right
of any creditor to payment in respect of such claim is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed,
legal, equitable, secured or unsecured, and whether or not such claim is
discharged, stayed or otherwise affected by any proceeding referred to in
Section 6.01(f). Without limiting the generality of the foregoing, the
Obligations of the Loan Parties under the Loan Documents include (a) the
obligation to pay principal, interest, Letter of Credit commissions, charges,
expenses, fees, attorneys' fees and disbursements, indemnities and other amounts
payable by any Loan Party under any Loan Document and (b) the obligation of any
Loan Party to reimburse any amount in respect of any of the foregoing that any
Lender Party, in its sole discretion, may elect to pay or advance on behalf of
such Loan Party.
"Other Taxes" has the meaning specified in Section 2.14(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
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<PAGE> 25
"Permitted Acquisition" means a New Acquisition that is permitted under
Section 5.02(e)(xiii).
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Plan" means an employee benefit plan (other than a Multiemployer Plan)
subject to Title IV of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate or (b) was so maintained and in respect of which
the Borrower or any ERISA Affiliate could reasonably be expected to have a
liability under Section 4069 of ERISA.
"Preferred Stock" means, with respect to any corporation, capital stock
issued by such corporation that is entitled to a preference or priority over any
other capital stock issued by such corporation upon any distribution of such
corporation's assets, whether by dividend or upon liquidation.
"Pro Rata Share" of any amount means, with respect to any Revolving
Credit Lender and the Revolving Credit Facility, Letter of Credit Facility or
Competitive Bid Facility at any time, the product of such amount times a
fraction the numerator of which is the amount of such Lender's Revolving Credit
Commitment at such time and the denominator of which is the Revolving Credit
Facility at such time.
"Qualified Preferred Stock" means Preferred Stock of the Borrower that,
by its terms or the terms of any Debt for which it is exchangeable, is not
Redeemable in whole or in part prior to the Termination Date, other than as a
result of an event which constitutes a Change of Control.
"R&D Adjustment" means (a) the amount of the write-off by the Borrower
of research and development costs as of the Closing Date minus (b) $265,000,000.
"Rating Agencies" means S&P, Moody's and Duff & Phelps.
"Redeemable" means, with respect to any capital stock or other
ownership or profit interest, Debt or other right or Obligation, any such right
or Obligation that (a) the issuer has undertaken to redeem at a fixed or
determinable date or dates, whether by operation of a sinking fund or otherwise,
or upon the occurrence of a condition not solely within the control of the
issuer or (b) is redeemable at the option of the holder.
"Reduction Amount" has the meaning set forth in Section 2.06(b)(viii).
"Reference Banks" means Citibank, Bank of America National Trust and
Savings Association, and The First National Bank of Chicago.
"Register" has the meaning specified in Section 8.07(d).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
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<PAGE> 26
"Required Lenders" means, at any time, Lenders owed or holding more
than 50% of the sum of (a) the aggregate principal amount of the Advances
outstanding at such time, (b) the aggregate Available Amount of all Letters of
Credit outstanding at such time, (c) the aggregate unused Commitments under the
Term Loan Facility at such time and (d) the aggregate Unused Revolving Credit
Commitments at such time; provided, however, that if any Lender shall be a
Defaulting Lender at such time, there shall be excluded from the determination
of Required Lenders at such time (i) the aggregate principal amount of the
Advances owing to such Lender (in its capacity as a Lender) and outstanding at
such time, (ii) such Lender's Pro Rata Share of the aggregate Available Amount
of all Letters of Credit issued by such Lender and outstanding at such time,
(iii) the aggregate unused Term Loan Commitment of such Lender at such time and
(iv) the aggregate Unused Revolving Credit Commitment of such Lender at such
time. For purposes of this definition, the aggregate principal amount of Letter
of Credit Advances and Competitive Bid Advances outstanding hereunder and the
aggregate Available Amount of Letters of Credit outstanding hereunder shall be
considered to be owed to or held by the Revolving Credit Lenders ratably in
accordance with their respective Revolving Credit Commitments.
"Responsible Officer" means, as to any Loan Party, the Chairman, Chief
Executive Officer, Chief Operating Officer, President, Chief Financial Officer,
Controller or Treasurer of such Loan Party.
"Revolving Credit Advance" means an advance by a Revolving Credit
Lender to the Borrower as part of a Revolving Credit Borrowing and refers to a
Base Rate Advance or a Eurodollar Rate Advance (each of which shall be a "Type"
of Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of the
Revolving Credit Lenders pursuant to Section 2.01.
"Revolving Credit Commitment" means, with respect to any Revolving
Credit Lender at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Revolving Credit Commitment" or, if such
Lender has entered into one or more Assignments and Acceptances, set forth for
such Lender in the Register maintained by the Agent pursuant to Section 8.07(d)
as such Lender's "Revolving Credit Commitment", as such amount may be reduced at
or prior to such time pursuant to Section 2.05(a) or (b)(i).
"Revolving Credit Facility" means, at any time, an amount equal to the
aggregate amount of the Revolving Credit Lenders' Revolving Credit Commitments
at such time.
"Revolving Credit Facility Fee Percentage" means, as of any date, a
percentage per annum determined by reference to either (a) the Senior Unsecured
Debt Rating in effect on such date or (b) the Debt to Earnings Ratio in effect
on such date, in each case as set forth below, whichever is more favorable to
the Borrower:
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<PAGE> 27
<TABLE>
<CAPTION>
======================================== ===================================== =====================================
Senior Unsecured Debt Rating Debt to Earnings Ratio Revolving Credit Facility Fee
of at least two of S&P/Moody's/ Percentage
Duff & Phelps
======================================== ===================================== =====================================
- ---------------------------------------- ------------------------------------- -------------------------------------
<S> <C> <C>
Level 1 Level 1
- ------- -------
BBB/Baa2/BBB or above; or Less than 2.50:1.00 0.125%
- ---------------------------------------- ------------------------------------- -------------------------------------
Level 2 Level 2
- ------- -------
BBB-/Baa3/BBB- or above and below Greater than or equal to 2.50:1.00, 0.150%
BBB/Baa2/BBB; or but less than or equal to 3.00:1.00
- ---------------------------------------- ------------------------------------- -------------------------------------
Level 3 Level 3
- ------- -------
BB+/Bal/BB+ or above and below Greater than 3.00:1.00, but less 0.175%
BBB/Baa2/BBB; or than or equal to 3.25:1.00
- ---------------------------------------- ------------------------------------- -------------------------------------
Level 4 Level 4
- ------- -------
BB+/Ba1/BB+ or above and below Greater than 3.25:1.00, but less 0.250%
BBB/Baa2/BBB; or than or equal to 3.50:1.00
- ---------------------------------------- ------------------------------------- -------------------------------------
Level 5 Level 5
- ------- -------
Below BB+/Ba1/BB+ or less than two Greater than 3.50:1.00 0.375%
ratings in effect
- ---------------------------------------- ------------------------------------- -------------------------------------
</TABLE>
The Borrower must meet the specified Senior Unsecured Debt Rating of at least
two of the three Rating Agencies, or meet the required Debt to Earnings Ratio,
to qualify for a certain Level (as defined in the foregoing table) in
determination of the Revolving Credit Facility Fee Percentage. Notwithstanding
the foregoing provisions of this definition, (i) the Revolving Credit Facility
Fee Percentage on the Closing Date shall be at Level 4, (ii) to the extent that
the Revolving Credit Facility Fee Percentage at any date of determination is
based on the Debt to Earnings Ratio then in effect, no change in the Revolving
Credit Facility Fee Percentage based on such ratio shall be effective until the
date on which the Agent receives financial statements pursuant to Section
5.03(b) or (c) and a certificate of the Chief Financial Officer, Controller or
Treasurer of the Borrower demonstrating such ratio, and (iii) if the Borrower
has not submitted to the Agent the information required under clause (ii) above
as and when required under Section 5.03(b) or (c), as the case may be, the
Revolving Credit Facility Fee Percentage (A) shall be determined by reference to
the Senior Unsecured Debt Rating if at least two such ratings are then in
effect, or (B) if such ratings are not then in effect, shall be at Level 5 for
so long as such information has not been submitted.
"Revolving Credit Lender" means any Lender that has a Revolving Credit
Commitment.
"Revolving Credit Note" means a promissory note of the Borrower payable
to the order of any Revolving Credit Lender, in substantially the form of
Exhibit A-1 hereto, evidencing the aggregate indebtedness of the Borrower to
such Lender resulting from the Revolving Credit Advances made by such Lender.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.
"Senior Notes" means, collectively, the Existing Senior Debentures and
the New Senior Notes.
"Senior Unsecured Debt Rating" means a rating of the Borrower's
long-term senior unsecured debt either (a) publicly announced or published by a
Rating Agency as in effect from time to time or (b) pursuant to a private letter
rating or similar privately issued rating by a Rating Agency as in effect from
time to time.
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<PAGE> 28
"Solvent" means, with respect to any Person on a particular date, that
on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such
Person, (b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person does
not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person's ability to pay such debts and liabilities as they mature
and (d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person's property
constitutes an unreasonably small capital. The amount of contingent liabilities
at any time shall be computed as the amount that, in the light of all the facts
and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"Special Prepayment Date" has the meaning set forth in Section
2.06(b)(i).
"Standby Letter of Credit" means any Letter of Credit issued under the
Letter of Credit Facility, other than a Trade Letter of Credit.
"Stock Purchase Agreement" means that certain Stock Purchase Agreement
dated as of August 29, 1997 by and among the Company, the stockholders of the
Company and the Borrower.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such partnership,
joint venture or limited liability company or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or controlled
by such Person, by such Person and one or more of its other Subsidiaries or by
one or more of such Person's other Subsidiaries. For purposes of this Agreement
and the other Loan Documents, the Company shall be deemed to be a Subsidiary of
the Borrower both before and after the consummation of the Acquisition.
"Surviving Debt" has the meaning set forth in Section 3.01(c).
"Taxes" has the meaning specified in Section 2.14(a).
"Tender Offer Termination Date" means the date which is 30 days after
the New Senior Notes Closing Date, or such earlier date as the Borrower may
specify in writing to the Agent.
"Tender Offer Reserve" means the lesser of (a) $100,000,000 and (b) the
amount, if any, by which the Net Cash Proceeds (without regard to the provisions
of clause (ii) of the definition of Net Cash Proceeds) from the issuance of the
New Senior Notes exceeds the principal balance of the Term Loan Balloon
Installment outstanding immediately prior to receipt of such Net Cash Proceeds.
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<PAGE> 29
"Term Loan Advance" means an advance by a Lender to the Borrower as
part of a Term Loan Borrowing and refers to a Base Rate Advance or a Eurodollar
Rate Advance (each of which shall be a "Type" of Term Loan Advance).
"Term Loan Balloon Installment" means that portion of the principal of
the Term Loan Advances due on the Termination Date that exceeds $25,000,000.
"Term Loan Borrowing" means a borrowing consisting of simultaneous Term
Loan Advances of the same Type made by each of the Term Loan Lenders pursuant to
Section 2.01(b).
"Term Loan Commitment" means, with respect to any Term Loan Lender at
any time, the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "Term Loan Commitment" or, if such Lender has entered into one
or more Assignments and Acceptances, set forth for such Lender in the Register
maintained by the Agent pursuant to Section 8.07(d) as such Lender's "Term Loan
Commitment", as such amount may be reduced at or prior to such time pursuant to
Section 2.05(a) or (b)(ii).
"Term Loan Facility" means, at any time, an amount equal to the
aggregate amount of the Term Loan Lenders' Term Loan Commitments at such time.
"Term Loan Lender" means any Lender that has a Term Loan Commitment.
"Term Note" means a promissory note of the Borrower payable to the
order of any Term Loan Lender, in substantially the form of Exhibit A-3 hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from the
Term Loan Advances made by such Lender.
"Termination Date" means the earlier of October 31, 2002 and the date
of termination in whole of the Commitments pursuant to Section 2.05 or 6.01.
"Termination Event" means (a) the occurrence of (i) a "reportable
event", as such term is described in Section 4043 of ERISA (other than a
"reportable event" not subject to the provision for 30-day notice to the PBGC),
provided, however, that with respect to an event described in paragraph (9),
(10), (11), (12) or (13) of Section 4043(c) of ERISA as to which notice is
required to be given under Section 4043(b)(3) of ERISA, the Termination Event
shall be deemed to occur on the date such notice is required to be given, or
(ii) an event described in Section 4062(e) of ERISA, or (b) the application for
a minimum funding waiver with respect to a Plan, or (c) the withdrawal of the
Borrower or any ERISA Affiliate from a Multiple Employer Plan during a plan year
in which it was a "substantial employer", as such term is defined in Section
4001(a)(2) of ERISA, or the incurrence of liability by the Borrower or any ERISA
Affiliate under Section 4064 of ERISA upon the termination of a Multiple
Employer Plan, or (d) the imposition of a lien under Section 302(f) of ERISA, or
(e) the adoption of an amendment to a Plan requiring the provision of security
to such Plan pursuant to Section 307 of ERISA, or (f) the distribution of a
notice of intent to terminate a Plan pursuant to Section 4041(a)(2) of ERISA or
the treatment of a Plan amendment as a termination under Section 4041 of ERISA,
or (g) the institution of proceedings to terminate a Plan by the PBGC under
Section 4042 of ERISA, or (h) the occurrence of any other event or condition
that might constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Plan.
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<PAGE> 30
"Trade Letter of Credit" means any Letter of Credit that is issued
under the Letter of Credit Facility for the benefit of a supplier of Inventory
to the Borrower or any of its Guarantor Subsidiaries to effect payment for such
Inventory.
"Unused Revolving Credit Commitment" means, with respect to any
Revolving Credit Lender at any time, (a) such Lender's Revolving Credit
Commitment at such time, minus (b) the sum of (i) the aggregate principal amount
of all Revolving Credit Advances made by such Lender and outstanding at such
time, (ii) such Lender's Pro Rata Share of all Letter of Credit Advances and the
aggregate Available Amount of all Letters of Credit outstanding at such time,
(iii) such Lender's Pro Rata Share of the aggregate principal amount of all
Competitive Bid Advances then outstanding, and (iv) at all times from and after
the New Senior Notes Closing Date to the Tender Offer Termination Date, such
Lender's Pro Rata Share of the Tender Offer Reserve.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even if the right so
to vote has been suspended by the happening of such a contingency.
"Wholly-Owned Subsidiary" means a Subsidiary of the Borrower all of the
capital stock or other ownership or equity interests (other than qualifying
shares owned by directors and other Persons required by applicable law) in which
is directly or indirectly owned by the Borrower.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding."
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(f)(i) ("GAAP"). For purposes of
determining compliance with the covenants contained in Section 5.02 only, any
Debt incurred or an Investment made by the Borrower or any of its Subsidiaries
which is denominated in a foreign currency shall be calculated based on the
relevant currency exchange rate in effect on the date that such Investment was
made or such Debt was first committed, in the case of revolving credit Debt, or
incurred, in the case of any other Debt, provided that any Surviving Debt, and
any renewals or refinancings thereof, denominated in a foreign currency shall be
calculated based on the relevant currency exchange rate in effect on the Closing
Date.
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<PAGE> 31
ARTICLE II.
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Revolving Credit And Term Loan Advances. (a)
Revolving Credit Advances. Each Revolving Credit Lender severally agrees, on the
terms and conditions hereinafter set forth, to make Revolving Credit Advances to
the Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date in an amount for each such Advance not
to exceed such Lender's Unused Revolving Credit Commitment at such time. Each
Revolving Credit Borrowing shall be in an aggregate amount of $10,000,000 or an
integral multiple of $1,000,000 in excess thereof (or, if less, an aggregate
amount equal to the amount by which the aggregate amount of a proposed
Competitive Bid Borrowing requested by the Borrower exceeds the aggregate amount
of Competitive Bid Advances offered to be made by the Revolving Credit Lenders
and accepted by the Borrower in respect of such Competitive Bid Borrowing, if
such Competitive Bid Borrowing is made on the same date as such Revolving Credit
Borrowing) and shall consist of Revolving Credit Advances of the same Type made
on the same day by the Revolving Credit Lenders ratably according to their
respective Revolving Credit Commitments. Within the limits of each Revolving
Credit Lender's Revolving Credit Commitment, the Borrower may borrow under this
Section 2.01(a), repay or prepay pursuant to Section 2.06 and reborrow under
this Section 2.01(a).
(b) Term Loan Advances. Each Term Loan Lender severally
agrees, on the terms and conditions hereinafter set forth, to make a single Term
Loan Advance to the Borrower on any Business Day during the period from the
Closing Date until November 15, 1997 in an amount not to exceed such Term Loan
Lender's Term Loan Commitment at such time. The Term Loan Borrowing shall
consist of Term Loan Advances made simultaneously by the Term Loan Lenders
ratably according to their respective Term Loan Commitments. Amounts borrowed
under this Section 2.01(b) and repaid or prepaid may not be reborrowed.
(c) Borrowing Procedures. Except as otherwise provided in
Section 2.02 or 2.03, each Borrowing shall be made on notice, given not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Borrowing in the case of a Borrowing consisting of Eurodollar
Rate Advances, or the same Business Day of the proposed Borrowing in the case of
a Borrowing consisting of Base Rate Advances, by the Borrower to the Agent,
which shall give to each Appropriate Lender prompt notice thereof by telecopier
or telex. Each such notice of a Borrowing (a "Notice of Borrowing") shall be by
telephone, confirmed promptly in writing, or telecopier or telex in
substantially the form of Exhibit B-1 hereto, specifying therein the requested
(i) date of such Borrowing, (ii) Facility under which such Borrowing is to be
made, (iii) Type of Advances comprising such Borrowing, (iv) aggregate amount of
such Borrowing, and (v) in the case of a Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for each such Advance. Each Appropriate Lender
shall, before 2:00 P.M. (or, in the case of Eurodollar Rates Advances, 11:00
A.M.) (New York City time) on the date of such Borrowing, make available for the
account of its Applicable Lending Office to the Agent at the Agent's Account, in
same day funds, such Lender's ratable portion of such Borrowing in accordance
with the respective Commitments under the applicable Facility of such Lender and
the other Appropriate Lenders. After the Agent's receipt of such funds and upon
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<PAGE> 32
fulfillment of the applicable conditions set forth in Article III, the Agent
will make such funds available to the Borrower by crediting the Borrower's
Account; provided, however, that in the case of any Revolving Credit Borrowing,
the Agent shall first make a portion of such funds equal to the aggregate
principal amount of any Letter of Credit Advances made by any Issuing Bank and
by any Revolving Credit Lender and outstanding on the date of such Revolving
Credit Borrowing, plus interest accrued and unpaid thereon to and as of such
date, available to such Issuing Bank and such Revolving Credit Lenders for
repayment of such Letter of Credit Advances.
(d) Eurodollar Rate Advances. Anything in subsection (a) above
to the contrary notwithstanding, (i) the Borrower may not select Eurodollar Rate
Advances for any Revolving Credit Borrowing or Term Loan Borrowing if the
aggregate amount of such Borrowing is less than $10,000,000 or if the obligation
of the Appropriate Lenders to make Eurodollar Rate Advances shall then be
suspended pursuant to Section 2.08 or 2.12, (ii) no more than 10 Eurodollar Rate
Advances that constitute Revolving Credit Advances may be outstanding to any
Lender at any time, and (iii) no more than five Eurodollar Rate Advances that
constitute Term Loan Advances may be outstanding to any Lender at any time.
(e) Failure of Conditions. Each Notice of Borrowing shall be
irrevocable and binding on the Borrower. In the case of any Revolving Credit
Borrowing or Term Loan Borrowing that the related Notice of Borrowing specifies
is to be comprised of Eurodollar Rate Advances, the Borrower shall indemnify
each Appropriate Lender against any loss, cost or expense incurred by such
Lender as a result of any failure to fulfill on or before the date specified in
such Notice of Borrowing for such Borrowing the applicable conditions set forth
in Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
(f) Assumed Funding. Unless the Agent shall have received
notice from an Appropriate Lender prior to the date of any Revolving Credit
Borrowing or Term Loan Borrowing that such Lender will not make available to the
Agent such Lender's ratable portion of such Borrowing, the Agent may assume that
such Lender has made such portion available to the Agent on the date of such
Borrowing in accordance with subsection (c) of this Section 2.01 and the Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Agent, such Lender and the
Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Agent, at (i) in the case of the Borrower, the interest rate
applicable at such time under Section 2.07 to Advances comprising such Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender
shall repay to the Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Advance as part of such Borrowing for purposes of this
Agreement.
(g) Failure to Fund. The failure of any Lender to make the
Advance to be made by it as part of any Revolving Credit Borrowing or Term Loan
Borrowing shall not relieve
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<PAGE> 33
any other Lender of its obligation, if any, hereunder to make its Advance on the
date of such Borrowing, but no Lender shall be responsible for the failure of
any other Lender to make the Advance to be made by such other Lender on the date
of any Borrowing.
SECTION 2.02. The Competitive Bid Advances (a) Competitive Bid
Borrowings. Each Revolving Credit Lender severally agrees that the Borrower may
make Competitive Bid Borrowings under this Section 2.02 from time to time on any
Business Day during the period from the Closing Date until the date occurring 30
days prior to the Termination Date in the manner set forth below; provided that,
following the making of each Competitive Bid borrowing, the aggregate amount of
all Advances (other than Term Loan Advances) then outstanding plus the aggregate
Available Amount of all Letters of Credit then outstanding shall not exceed the
aggregate amount of the Revolving Credit Commitments of the Revolving Credit
Lenders (minus, during the period from the New Senior Notes Closing Date to the
Tender Offer Termination Date, the amount of the Tender Offer Reserve); and
provided further that no such Competitive Bid Borrowings shall be available as
long as both the Borrower's Senior Unsecured Debt Rating and the Borrower's Debt
to Earnings Ratio are at either of "Level 3", "Level 4" or "Level 5" (as such
Levels are specified in the definition of Applicable Margin in Section 1.01).
(i) The Borrower may request a Competitive Bid Borrowing under
this Section 2.02 by delivering to the Agent, by telecopier or telex, a
notice of a Competitive Bid Borrowing (a "Notice of Competitive Bid
Borrowing"), in substantially the form of Exhibit B-2 hereto,
specifying therein the requested (v) date of such proposed Competitive
Bid Borrowing, (w) aggregate amount of such proposed Competitive Bid
Borrowing, (x) in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances, Interest Period, or in the case of a Competitive
Bid Borrowing consisting of Fixed Rate Advances, maturity date for
repayment of each Fixed Rate Advance to be made as part of such
Competitive Bid Borrowing (which maturity date may not be earlier than
the date occurring 7 days after the date of such Competitive Bid
Borrowing or later than the earlier of (I) 180 days after the date of
such Competitive Bid Borrowing and (II) the Termination Date), (y)
interest payment date or dates relating thereto, and (z) other terms
(if any) to be applicable to such Competitive Bid Borrowing, not later
than 11:00 A.M. (New York City time) (A) at least one Business Day
prior to the date of the proposed Competitive Bid Borrowing, if the
Borrower shall specify in the Notice of Competitive Bid Borrowing that
the rates of interest to be offered by the Revolving Credit Lenders
shall be fixed rates per annum (the Advances comprising any such
Competitive Bid Borrowing being referred to herein as "Fixed Rate
Advances") and (B) at least four Business Days prior to the date of the
proposed Competitive Bid Borrowing, if the Borrower shall instead
specify in the Notice of Competitive Bid Borrowing that the rates of
interest to be offered by the Lenders are to be based on the LIBO Rate
(the Advances comprising such Competitive Bid Borrowing being referred
to herein as "LIBO Rate Advances"). Subject to Section 2.02(a)(iii)(x)
below, each Notice of Competitive Bid Borrowing shall be irrevocable
and binding on the Borrower. The Agent shall in turn promptly notify
each Revolving Credit Lender of each request for a Competitive Bid
Borrowing received by it from the Borrower by sending such Lender a
copy of the related Notice of Competitive Bid Borrowing. Each Notice of
Competitive Bid Borrowing under this Section 2.02(a)(i) shall be
accompanied with a processing fee in an amount agreed upon by the
Borrower and the Agent.
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<PAGE> 34
(ii) Each Revolving Credit Lender may, if, in its sole
discretion, it elects to do so, irrevocably offer to make one or more
Competitive Bid Advances to the Borrower as part of such proposed
Competitive Bid Borrowing at a rate or rates of interest specified by
such Lender in its sole discretion, by notifying the Agent (which shall
give prompt notice thereof to the Borrower), before 10:30 A.M. (New
York City time) on the date of such proposed Competitive Bid Borrowing,
in the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances and before 10:30 A.M. (New York City time) three Business Days
before the date of such proposed Competitive Bid Borrowing, in the case
of a Competitive Bid Borrowing consisting of LIBO Rate Advances, of the
minimum amount and maximum amount of each Competitive Bid Advance which
such Lender would be willing to make as part of such proposed
Competitive Bid Borrowing (which amounts may, subject to the proviso to
the first sentence of this Section 2.02(a), exceed such Lender's
Revolving Credit Commitment, if any), the rate or rates of interest
therefor and such Lender's Applicable Lending Office with respect to
such Competitive Bid Advance; provided that if the Agent in its
capacity as a Revolving Credit Lender shall, in its sole discretion,
elect to make any such offer, it shall notify the Borrower of such
offer at least 30 minutes before the time and on the date on which
notice of such election is to be given to the Agent by the other
Revolving Credit Lenders. If any Revolving Credit Lender shall elect
not to make such an offer, such Lender shall so notify the Agent,
before 10:30 A.M. (New York City time) on the date on which notice of
such election is to be given to the Agent by the other Revolving Credit
Lenders, and such Lender shall not be obligated to, and shall not, make
any Competitive Bid Advance as part of such Competitive Bid Borrowing;
provided that the failure by any Revolving Credit Lender to give such
notice shall not cause such Lender to be obligated to make any
Competitive Bid Advance as part of such proposed Competitive Bid
Borrowing.
(iii) The Borrower shall, in turn, before 12:00 P.M. (New York
City time) on the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances and before 12:00 P.M. (New York City time) three Business Days
before the date of such proposed Competitive Bid Borrowing, in the case
of a Competitive Bid Borrowing consisting of LIBO Rate Advances,
either:
(x) cancel such Competitive Bid Borrowing by giving
the Agent notice to that effect, or
(y) accept one or more of the offers made by any
Revolving Credit Lender or Lenders pursuant to paragraph (ii) above, in its sole
discretion, by giving notice to the Agent of the amount of each Competitive Bid
Advance (which amount shall be equal to or greater than the minimum amount, and
equal to or less than the maximum amount, notified to the Borrower by the Agent
on behalf of such Lender for such Competitive Bid Advance pursuant to paragraph
(ii) above, except to the extent the bids are to be allocated as provided in the
last sentence of this clause (y)) to be made by each Revolving Credit Lender as
part of such Competitive Bid Borrowing, and reject any remaining offers made by
Revolving Credit Lenders pursuant to paragraph (ii) above by giving the Agent
notice to that effect. The Borrower shall accept the offers made by any
Revolving Credit Lender or Lenders to make Competitive Bid Advances in order of
the lowest to the highest rates of interest offered by such Lenders. If two or
more Revolving Credit Lenders have offered the same interest rate, the amount to
be borrowed at
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such interest rate will be allocated among such Lenders by the Agent in
proportion to the maximum amount that each such Lender offered at such interest
rate.
(iv) If the Borrower notifies the Agent that such Competitive
Bid Borrowing is cancelled pursuant to paragraph (iii)(x) above, the
Agent shall give prompt notice thereof to the Revolving Credit Lenders
and such Competitive Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by
any Revolving Credit Lender or Lenders pursuant to paragraph (iii)(y)
above, the Agent shall in turn promptly notify (A) each Revolving
Credit Lender that has made an offer as described in paragraph (ii)
above, of the date and aggregate amount of such Competitive Bid
Borrowing and whether or not any offer or offers made by such Lender
pursuant to paragraph (ii) above have been accepted by the Borrower,
(B) each Revolving Credit Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, of the amount of
each Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing, and (C) each Revolving Credit Lender that is
to make a Competitive Bid Advance as part of such Competitive Bid
Borrowing, upon receipt, that the Agent has received forms of documents
appearing to fulfill the applicable conditions set forth in Article
III. Each Revolving Credit Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing shall, before 1:00
P.M. (New York City time) on the date of such Competitive Bid Borrowing
specified in the notice received from the Agent pursuant to clause (A)
of the preceding sentence or any later time when such Lender shall have
received notice from the Agent pursuant to clause (C) of the preceding
sentence, make available for the account of its Applicable Lending
Office to the Agent at the Agent's Account, in same day funds, such
Lender's portion of such Competitive Bid Borrowing. Upon fulfillment of
the applicable conditions set forth in Article III and after receipt by
the Agent of such funds, the Agent will make such funds available to
the Borrower at the Agent's address referred to in Section 8.02.
Promptly after each Competitive Bid Borrowing the Agent will notify
each Revolving Credit Lender of the amount of the Competitive Bid
Borrowing and the dates upon which such Competitive Bid Borrowing
commenced and will terminate.
(vi) If the Borrower notifies the Agent that it accepts one or
more of the offers made by any Revolving Credit Lender or Lenders
pursuant to paragraph (iii)(y) above, such notice of acceptance shall
be irrevocable and binding on the Borrower. The Borrower shall
indemnify each Revolving Credit Lender against any loss, cost or
expense incurred by such Lender as a result of any failure to fulfill
on or before the date specified in the related Notice of Competitive
Bid Borrowing for such Competitive Bid Borrowing accepted by Borrower
the applicable conditions set forth in Article III, including, without
limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Competitive
Bid Advance to be made by such Lender as part of such Competitive Bid
Borrowing when such Competitive Bid Advance, as a result of such
failure, is not made on such date.
(b) Minimum Amounts. Each Competitive Bid Borrowing shall be
in an aggregate amount of $10,000,000 or an integral multiple of $1,000,000 (or,
if less, the remaining amount available to be borrowed under the Revolving
Credit Facility at such time) in excess thereof, and following the making of
each Competitive Bid Borrowing, the Borrower shall be in
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<PAGE> 36
compliance with the limitation set forth in the first proviso to the first
sentence of subsection (a) above.
(c) Reborrowings. Within the limits and on the conditions set
forth in this Section 2.02, the Borrower may from time to time borrow under this
Section 2.02, repay or prepay pursuant to Section 2.05 or 2.06, and reborrow
under this Section 2.02, provided that a Competitive Bid Borrowing shall not be
made within three Business Days of the date of any other Competitive Bid
Borrowing.
(d) Competitive Bid Notes. The indebtedness of the Borrower
resulting from each Competitive Bid Advance made to the Borrower as part of a
Competitive Bid Borrowing shall be evidenced by a separate Competitive Bid Note
of the Borrower payable to the order of the Revolving Credit Lender making such
Competitive Bid Advance.
SECTION 2.03. The Letters of Credit. (a) Letter of Credit Facility.
Each Issuing Bank severally agrees, on the terms and conditions hereinafter set
forth, to issue letters of credit (the "Letters of Credit") for the account of
the Borrower and its Guarantor Subsidiaries from time to time on any Business
Day during the period from the Effective Date until 30 days before the
Termination Date (i) in an aggregate Available Amount for all Letters of Credit
issued hereunder not to exceed at any time the Letter of Credit Facility at such
time and (ii) in an Available Amount for each such Letter of Credit not to
exceed the lesser of (1) the Letter of Credit Facility at such time minus the
aggregate Available Amount of all other Letters of Credit then outstanding and
(2) the Unused Revolving Credit Commitments of the Revolving Credit Lenders at
such time. No Letter of Credit shall have an expiration date (including all
rights of the Borrower or the beneficiary to require renewal) later than the
earlier of 30 days before the Termination Date and (A) in the case of a Standby
Letter of Credit, one year after the date of issuance thereof, but may by its
terms be renewable annually upon notice (a "Notice of Renewal") given to the
Issuing Bank that issued such Standby Letter of Credit and the Agent on or prior
to any date for notice of renewal set forth in such Letter of Credit but in any
event at least three Business Days prior to the date of the proposed renewal of
such Standby Letter of Credit and upon fulfillment of the applicable conditions
set forth in Article III unless such Issuing Bank has notified the Borrower
(with a copy to the Agent) on or prior to the date for notice of termination set
forth in such Letter of Credit but in any event at least 30 Business Days prior
to the date of automatic renewal of its election not to renew such Standby
Letter of Credit (a "Notice of Termination") and (B) in the case of a Trade
Letter of Credit, 90 days after the date of issuance thereof; provided that the
terms of each Standby Letter of Credit that is automatically renewable annually
shall (x) require the Issuing Bank that issued such Standby Letter of Credit to
give the beneficiary named in such Standby Letter of Credit notice of any Notice
of Termination, (y) permit such beneficiary, upon receipt of such notice, to
draw under such Standby Letter of Credit prior to the date such Standby Letter
of Credit otherwise would have been automatically renewed and (z) not permit the
expiration date (after giving effect to any renewal) of such Standby Letter of
Credit in any event to be extended to a date later than 30 days before the
Termination Date. If either a Notice of Renewal is not given by the Borrower or
a Notice of Termination is given by the relevant Issuing Bank pursuant to the
immediately preceding sentence, such Standby Letter of Credit shall expire on
the date on which it otherwise would have been automatically renewed; provided,
however, that even in the absence of receipt of a Notice of Renewal the relevant
Issuing Bank may in its discretion, unless instructed to the contrary by the
Agent or the Borrower, deem that a Notice of
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<PAGE> 37
Renewal had been timely delivered and in such case, a Notice of Renewal shall be
deemed to have been so delivered for all purposes under this Agreement. Within
the limits of the Letter of Credit Facility, and subject to the limits referred
to above, so long as any Issuing Bank, in its sole discretion, elects to issue
Letters of Credit, the Borrower may request the issuance of Letters of Credit
under this Section 2.03(a), repay any Letter of Credit Advances resulting from
drawings thereunder pursuant to Section 2.05 or 2.06 and request the issuance of
additional Letters of Credit under this Section 2.03(a).
(b) Issuance of and Drawings and Reimbursement Under Letters
of Credit.
(i) Request for Issuance. Each Letter of Credit shall be
issued upon notice, given not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the date of the proposed
issuance of such Letter of Credit, by the Borrower to any Issuing Bank,
which shall give to the Agent prompt notice thereof by telex or
telecopier. Each such notice of issuance of a Letter of Credit (a
"Notice of Issuance") shall be by telephone, confirmed immediately in
writing, or telex or telecopier, specifying therein the requested (A)
date of such issuance (which shall be a Business Day), (B) Available
Amount of such Letter of Credit, (C) expiration date of such Letter of
Credit, (D) name and address of the beneficiary of such Letter of
Credit and (E) form of such Letter of Credit, and shall be accompanied
by such application and agreement for letter of credit as such Issuing
Bank may specify to the Borrower for use in connection with such
requested Letter of Credit (a "Letter of Credit Agreement"). If (x) the
requested form of such Letter of Credit is acceptable to such Issuing
Bank in its sole discretion and (y) in its sole discretion, it elects
to issue the requested Letter of Credit, such Issuing Bank will, upon
fulfillment of the applicable conditions set forth in Article III, make
such Letter of Credit available to the Borrower at its office referred
to in Section 8.02 or as otherwise agreed with the Borrower in
connection with such issuance. In the event and to the extent that the
provisions of any Letter of Credit Agreement shall conflict with this
Agreement, the provisions of this Agreement shall govern.
(ii) Letter of Credit Reports. Each Issuing Bank shall furnish
(A) to the Agent and the Borrower on the first Business Day of each
week a written report summarizing issuance and expiration dates of
Letters of Credit issued by such Issuing Bank during the previous week
and drawings during such week under all Letters of Credit issued by
such Issuing Bank, (B) to the Agent, each Revolving Credit Lender and
the Borrower on the first Business Day of each month a written report
summarizing issuance and expiration dates of Letters of Credit issued
by such Issuing Bank during the preceding month and drawings during
such month under all Letters of Credit issued by such Issuing Bank, and
(C) to the Agent, the Borrower and each Revolving Credit Lender on the
first Business Day of each calendar quarter a written report setting
forth the average daily aggregate Available Amount during the preceding
calendar quarter of all Letters of Credit issued by such Issuing Bank.
(iii) Drawing and Reimbursement. The payment by any Issuing
Bank of a draft drawn under any Letter of Credit shall constitute for
all purposes of this Agreement the making by such Issuing Bank of a
Letter of Credit Advance, which shall be a Base Rate Advance, in the
amount of such draft. Upon written demand by any Issuing Bank with an
outstanding Letter of Credit Advance, with a copy of such demand to the
Agent, each Revolving Credit Lender shall purchase from such Issuing
Bank, and such Issuing Bank shall sell and assign to
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<PAGE> 38
each such Revolving Credit Lender, such Lender's Pro Rata Share of such
outstanding Letter of Credit Advance as of the date of such purchase,
by making available for the account of its Applicable Lending Office to
the Agent for the account of such Issuing Bank, by deposit to the
Agent's Account, in same day funds, an amount equal to the portion of
the outstanding principal amount of such Letter of Credit Advance to be
purchased by such Lender. Promptly after receipt thereof, the Agent
shall transfer such funds to such Issuing Bank. The Borrower hereby
agrees to each such sale and assignment. Each Revolving Credit Lender
agrees to purchase its Pro Rata Share of an outstanding Letter of
Credit Advance on (i) the Business Day on which demand therefor is made
by the Issuing Bank which made such Advance, provided notice of such
demand is given not later than 11:00 A.M. (New York City time) on such
Business Day or (ii) the first Business Day next succeeding such demand
if notice of such demand is given after such time. Upon any such
assignment by an Issuing Bank to any Revolving Credit Lender of a
portion of a Letter of Credit Advance, such Issuing Bank represents and
warrants to such Lender that such Issuing Bank is the legal and
beneficial owner of such interest being assigned by it, free and clear
of any liens, but makes no other representation or warranty and assumes
no responsibility with respect to such Letter of Credit Advance, the
Loan Documents or any Loan Party. If and to the extent that any
Revolving Credit Lender shall not have so made the amount of such
Letter of Credit Advance available to the Agent, such Revolving Credit
Lender agrees to pay to the Agent forthwith on demand such amount
together with interest thereon, for each day from the date of demand by
such Issuing Bank until the date such amount is paid to the Agent, at
the Federal Funds Rate for its account or the account of such Issuing
Bank, as applicable. If such Lender shall pay to the Agent such amount
for the account of such Issuing Bank on any Business Day, such amount
so paid in respect of principal shall constitute a Letter of Credit
Advance made by such Lender on such Business Day for purposes of this
Agreement, and the outstanding principal amount of the Letter of Credit
Advance made by such Issuing Bank shall be reduced by such amount on
such Business Day.
(iv) Failure to Make Letter of Credit Advances. The failure of
any Lender to make the Letter of Credit Advance to be made by it on the
date specified in Section 2.03(b)(iii) shall not relieve any other
Lender of its obligation hereunder to make its Letter of Credit Advance
on such date, but no Lender shall be responsible for the failure of any
other Lender to make the Letter of Credit Advance to be made by such
other Lender on such date.
(v) Obligations Absolute. The Obligations of the Borrower
under this Agreement, any Letter of Credit Agreement and any other
agreement or instrument relating to any Letter of Credit shall be
unconditional and irrevocable, and shall be paid strictly in accordance
with the terms of this Agreement, such Letter of Credit Agreement and
such other agreement or instrument under all circumstances, including,
without limitation, the following circumstances:
(A) any lack of validity or enforceability of any Loan
Document, any Letter of Credit Agreement, any Letter of Credit or any
other agreement or instrument relating thereto (all of the foregoing
being, collectively, the "L/C Related Documents");
(B) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of the Borrower in
respect of any L/C Related Document or
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<PAGE> 39
any other amendment or waiver of or any consent to departure from all
or any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other
right that the Borrower may have at any time against any beneficiary or
any transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), any Issuing Bank or
any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(E) payment by any Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any collateral,
or any release or amendment or waiver of or consent to departure from
the Guaranty or any other guaranty, for all or any of the Obligations
of the Borrower in respect of the L/C Related Documents; or
(G) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including, without limitation, any
other circumstance that might otherwise constitute a defense available
to, or a discharge of, the Borrower or a Guarantor Subsidiary, or any
other guarantor.
SECTION 2.04. Repayment of Advances. (a) Revolving Credit Advances. The
Borrower shall repay to the Agent for the ratable account of the Revolving
Credit Lenders on the Termination Date the aggregate outstanding principal
amount of the Revolving Credit Advances then outstanding.
(b) Term Loan Advances. The Borrower shall repay to the Agent
for the ratable account of the Term Loan Lenders the aggregate outstanding
principal amount of the Term Loan Advances on the following dates in the amounts
indicated (which amounts shall be reduced as a result of the application of
prepayments in accordance with the order of priority set forth in Section 2.06):
<TABLE>
<CAPTION>
DATE AMOUNT
---- ------
<S> <C>
March 31, 2000 $25,000,000
June 30, 2000 $25,000,000
September 30, 2000 $25,000,000
December 31, 2000 $25,000,000
March 31, 2001 $25,000,000
June 30, 2001 $25,000,000
September 30, 2001 $25,000,000
December 31, 2001 $25,000,000
March 31, 2002 $25,000,000
June 30, 2002 $25,000,000
September 30, 2002 $25,000,000
October 31, 2002 $225,000,000;
</TABLE>
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<PAGE> 40
provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term Loan Advances outstanding on such date.
(c) Competitive Bid Advances. The Borrower shall repay to the
Agent for the account of each Revolving Credit Lender that has made a
Competitive Bid Advance, on the maturity date of each such Competitive Bid
Advance (such maturity date being that specified by the Borrower for repayment
of such Competitive Bid Advance in the related Notice of Competitive Bid
Borrowing delivered pursuant to Section 2.02(a)(i) and provided in the
Competitive Bid Note evidencing such Competitive Bid Advance), the then unpaid
principal amount of such Competitive Bid Advance.
(d) Letter of Credit Advances. The Borrower shall repay to the
Agent for the account of each Issuing Bank and each Revolving Credit Lender that
has made a Letter of Credit Advance on the earlier of demand and the Termination
Date the outstanding principal amount of each Letter of Credit Advance made by
each of them.
SECTION 2.05. Termination or Reduction of the Commitments. (a)
Optional. The Borrower may, upon at least five Business Days' notice to the
Agent, terminate in whole or reduce in part the unused portions of the Revolving
Credit Commitments; provided, however, that (i) each partial reduction of the
Commitments under the Revolving Credit Facility shall be in an aggregate amount
of $10,000,000 or an integral multiple of $1,000,000 in excess thereof and (ii)
shall be made ratably among the Revolving Credit Lenders in accordance with
their respective Commitments under such Facility; and provided further that the
aggregate amount of the Unused Revolving Credit Commitments shall not be reduced
to less than zero.
(b) Mandatory. (i) The Revolving Credit Facility shall be
automatically and permanently reduced on each date on which prepayment
thereof is required to be made pursuant to subparagraph (i), (ii),
(iii), (iv), (v) or (vi) of Section 2.06(b) in an amount equal to the
applicable Reduction Amount, provided that each such reduction of the
Revolving Credit Facility shall be made ratably among the Revolving
Credit Lenders in accordance with their Revolving Credit Commitments.
(ii) On the date of the Term Loan Borrowing, after giving
effect to such Term Loan Borrowing, and from time to time thereafter
upon each repayment or prepayment of the Term Loan Advances, the
aggregate Term Loan Commitments of the Term Loan Lenders shall be
automatically and permanently reduced, on a pro rata basis, by an
amount equal to the amount by which the aggregate Term Loan Commitments
immediately prior to such reduction exceed the aggregate unpaid
principal amount of the Term Loan Advances then outstanding.
(iii) The Letter of Credit Facility shall be permanently
reduced from time to time on the date of each reduction in the
Revolving Credit Facility by the amount, if any, by which the amount of
the Letter of Credit Facility exceeds the Revolving Credit Facility
after giving effect to such reduction of the Revolving Credit Facility.
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SECTION 2.06. Prepayments. (a) Optional. The Borrower may, upon at
least three (or in the case of any Letter of Credit Advance, one) Business Days'
notice to the Agent stating the proposed date and aggregate principal amount of
the prepayment, and if such notice is given the Borrower shall, prepay the
outstanding aggregate principal amount of the Revolving Credit Advances or Term
Loan Advances comprising part of the same Borrowing in whole or ratably in part
(or the outstanding amount of any Letter of Credit Advance, in whole or in part)
(in each case as specified in such notice), together with accrued but unpaid
interest to the date of such prepayment on the aggregate principal amount
prepaid; provided, however, that (x) each partial prepayment shall be in an
aggregate principal amount of $10,000,000 or an integral multiple of $1,000,000
in excess thereof and (y) if any prepayment of a Eurodollar Rate Advance is made
on a day other than the last day of an Interest Period for such Advance the
Borrower shall also pay any amounts owing pursuant to Section 8.04(c). Each such
prepayment of any Term Loan Advances shall be applied first, to the Term Loan
Balloon Installment, and second, to the remaining outstanding installments of
the Term Loan Advances on a ratable basis. The Borrower shall have no right to
prepay any principal amount of any Competitive Bid Advance unless, and then only
on the terms, specified by the Borrower for such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to Section
2.02(a)(i) and set forth in the Competitive Bid Note evidencing such Competitive
Bid Advance.
(b) Mandatory. (i) The Borrower shall, on the earlier of two
Business Days after the date of delivery of the annual financial
statements required pursuant to Section 5.03(c) for each Fiscal Year of
the Borrower (commencing with Fiscal Year 1998) or 120 days following
the end of each such Fiscal Year (such date with respect to each Fiscal
Year being the "Special Prepayment Date" for such Fiscal Year) prepay
an aggregate principal amount of the Advances then outstanding equal to
50% of Excess Cash Flow for such Fiscal Year. Prepayment of Advances
made pursuant to this Section 2.06(b)(i) shall be first applied to the
Term Loan Balloon Installment, second applied ratably to the remaining
unpaid installments of the Term Loan Advances, and third applied to the
Revolving Credit Facility and any outstanding Competitive Bid Advances
as set forth in clause (B) of subparagraph (viii) below; provided,
however, that if the Debt to Earnings Ratio is at Level 1, 2 or 3 (as
such Levels are specified in the definition of Applicable Margin in
Section 1.01) at the end of any Fiscal Year, the Borrower shall not
thereafter be required to make further prepayments pursuant to clause
third above.
(ii) The Borrower shall, within five Business Days following
the date of receipt by the Borrower or any of its Domestic Subsidiaries
of the Net Cash Proceeds from the sale, lease, transfer or other
disposition of any assets of the Borrower or any of its Domestic
Subsidiaries pursuant to clause (iii), (iv), (v) or (vii) of Section
5.02(d), prepay an aggregate principal amount of the Advances then
outstanding in an amount equal to the amount of such Net Cash Proceeds;
provided, however, that no prepayment shall be required under this
subparagraph (ii) in respect of any such Net Cash Proceeds received
during any Fiscal Year (other than Net Cash Proceeds from the sale,
lease, transfer or other disposition of interests in real property,
prepayment in respect of which shall be made as provided above) unless,
at the time of receipt of such Net Cash Proceeds, the aggregate amount
of such Net Cash Proceeds received during such Fiscal Year as to which
no prepayment has been made under this subparagraph (ii) is equal to or
greater than $10,000,000, in which case prepayment in respect of all
such Net Cash Proceeds shall be made within five Business Days after
receipt of the most
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recent payment thereof. Prepayment of Advances pursuant to this
subparagraph (ii) shall be applied as set forth in subparagraph (viii)
below.
(iii) The Borrower shall, within one Business Day following
the date of receipt by the Borrower or any of its Subsidiaries of the
Net Cash Proceeds from (A) the sale or issuance by the Borrower of any
capital stock or other ownership or profit interest, any securities
convertible into or exchangeable for capital stock or other ownership
or profit interest or any warrants, rights or options to acquire
capital stock or other ownership or profit interest (other than any
stock or stock options or warrants or derivative rights in respect
thereof (including, without limitation, restricted stock, stock
appreciation rights and phantom stock) issued to the officers,
directors or employees of the Borrower and its Subsidiaries pursuant to
any employee benefit plan or program or compensation plan for
non-employee directors, including, without limitation, employee stock
purchase plans, qualified or non-qualified plans of deferred
compensation, 401(K) plans, or similar programs for employees and
non-employee directors), or (B) the incurrence or issuance by the
Borrower of any Debt pursuant to Section 5.02(b)(xvi), prepay an
aggregate principal amount of the Advances then outstanding equal to
the amount of such Net Cash Proceeds. Prepayment of Advances pursuant
to this subparagraph (iii) shall be applied as set forth in
subparagraph (viii) below.
(iv) The Borrower shall, on or before the Tender Offer
Termination Date, prepay an aggregate principal amount of the Advances
then outstanding in an amount equal to the Tender Offer Reserve minus
the amount paid by the Borrower on or before the Tender Offer
Termination Date (and after the Closing Date) to redeem, repurchase or
repay any of the Borrower's Existing Senior Debentures. Prepayment of
Advances pursuant to this subparagraph (iv) shall be applied as set
forth in subparagraph (viii) below.
(v) The Borrower shall, on or before the Special Prepayment
Date for each Fiscal Year, prepay an aggregate principal amount of the
Advances then outstanding in an amount equal to the sum of (A) the Net
Cash Proceeds received by the Borrower during such Fiscal Year from any
and all Extraordinary Receipts received by or paid to or for the
account of the Borrower or any of its Subsidiaries and not otherwise
included in subparagraphs (ii), (iii) and (iv) above, and (B) the Net
Cash Proceeds received by the Borrower or any of its Subsidiaries
during such Fiscal Year from the sale, lease, transfer or other
disposition of any assets of the Borrower or any such Subsidiary, other
than any such Net Cash Proceeds in respect of which prepayment has been
made pursuant to subparagraph (ii) above (provided that no prepayment
shall be required under this clause (B) if the aggregate amount of the
Net Cash Proceeds received during such Fiscal Year by the Borrower and
its Subsidiaries from the sale, lease, transfer or other disposition of
assets is less than $10,000,000). Any prepayment pursuant to this
clause (v) shall be applied as set forth in subparagraph (viii) below.
(vi) The Borrower shall, on each Business Day, prepay (for
application pursuant to clause (B) of subparagraph (viii) below) the
Revolving Credit Facility and any outstanding Competitive Bid Advances
equal to the amount by which (A) the sum of the aggregate principal
amount of the Revolving Credit Advances, Competitive Bid Advances and
Letter of Credit Advances then outstanding plus the aggregate Available
Amount of all Letters of Credit then outstanding exceeds (B) the
Revolving Credit Facility on such Business Day.
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(vii) The Borrower shall, on each Business Day, pay to the
Agent for deposit in the L/C Cash Collateral Account an amount (if any)
necessary to cause the aggregate amount on deposit in such Account to
equal the amount by which the aggregate Available Amount of all Letters
of Credit then outstanding exceeds the Letter of Credit Facility on
such Business Day.
(viii) Prepayments of Advances pursuant to subparagraphs (i),
(ii), (iii), (iv), (v) and (vi) above which are to be applied as set
forth in this subparagraph (viii) (or, in the case of subparagraphs (i)
and (vi) above, as set forth in clause (B) of this subparagraph (viii))
shall be applied as follows: (A) first, except in the case of
subparagraphs (i) and (vi) (as to which only clause (B) shall apply),
to the payment of the Term Loan Balloon Installment, and after the
payment of the Term Loan Balloon Installment, to the ratable prepayment
of the remaining unpaid installments of the Term Loan Advances; and (B)
second, and in all cases under subparagraphs (i) and (vi) (as to which
prepayment is to be applied as set forth in this clause (B)), to the
prepayment of the Revolving Credit Facility and any outstanding
Competitive Bid Advances, which prepayments under this clause (B) shall
be first applied to prepay Letter of Credit Advances then outstanding
until such Advances are paid in full, second applied to prepay
Revolving Credit Advances then outstanding comprising part of the same
Borrowing until such Advances are paid in full, third applied to prepay
Competitive Bid Advances then outstanding comprising part of the same
Borrowing until such Advances are paid in full, and fourth deposited in
the L/C Cash Collateral Account to cash collateralize 100% of the
Available Amount of the Letters of Credit then outstanding; and, in the
case of prepayments of the Revolving Credit Facility required pursuant
to subparagraph (i), (ii), (iii), (iv), (v) or (vi), the amount
remaining, if any, after the prepayment in full of the Advances then
outstanding and the 100% cash collateralization of the aggregate
Available Amount of Letters of Credit then outstanding (the sum of such
prepayment amounts, cash collateralization amounts and remaining
amounts being referred to herein as the "Reduction Amount") may be
retained by the Borrower and the Revolving Credit Facility shall be
permanently reduced as set forth in Section 2.05(b)(i). Upon the
drawing of any Letter of Credit for which funds are on deposit in the
L/C Cash Collateral Account, such funds shall be applied to reimburse
the relevant Issuing Bank or Revolving Credit Lender, as applicable.
(ix) All prepayments of any Class of Advances hereunder shall
be made for the ratable benefit of the Lenders holding the Advances of
such Class and, where applicable, Base Rate Advances or Fixed Rate
Advances of any Class shall be prepaid before any Eurodollar Rate
Advances or LIBO Rate Advances of such Class.
(x) Anything contained herein to the contrary notwithstanding,
all optional prepayments under this Section 2.06 shall be made together
with accrued but unpaid interest to the date of such prepayment on the
principal amount prepaid.
SECTION 2.07. Interest. (a). Scheduled Interest on Revolving Credit
Advances and Term Loan Advances. The Borrower shall pay interest on the unpaid
principal amount of each Revolving Credit Advance and Term Loan Advance owing to
each Lender from the date of such Advance until such principal amount shall be
paid in full, at the following rates per annum:
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(i) Base Rate Advances. During such periods as such Advance is
a Base Rate Advance, a rate per annum equal at all times to the sum of
(A) the Base Rate in effect from time to time and (B) the Applicable
Margin for Base Rate Advances in effect from time to time, payable in
arrears monthly on the last day of each month during such periods and
on the date such Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (A)
the Eurodollar Rate for such Interest Period for such Advance and (B)
the Applicable Margin for Eurodollar Rate Advances in effect from time
to time, payable in arrears on the last day of such Interest Period
and, if such Interest Period has a duration of more than three months,
on each day that occurs during such Interest Period every three months
from the first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full.
(b) Scheduled Interest on Competitive Bid Advances. The Borrower shall
pay interest on the unpaid principal amount of each Competitive Bid Advance from
the date of such Competitive Bid Advance to the date the principal amount of
such Competitive Bid Advance is repaid in full, at the rate of interest for such
Competitive Bid Advance specified by the Lender making such Competitive Bid
Advance in its notice with respect thereto delivered pursuant to Section
2.02(a)(ii), payable on the interest payment date or dates specified by the
Borrower for such Competitive Bid Advance in the related Notice of Competitive
Bid Borrowing delivered pursuant to Section 2.02(a)(i) above, as provided in the
Competitive Bid Note evidencing such Competitive Bid Advance.
(c) Default Interest. Upon the occurrence and during the continuance of
any Event of Default, the Borrower shall pay interest on (i) the unpaid
principal amount of each Advance owing to each Lender, payable in arrears on the
dates referred to in clause (a)(i), (a)(ii) or (b) above and on demand, at a
rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Advance pursuant to clause (a)(i), (a)(ii) or (b)
above and (ii) to the fullest extent permitted by law, the amount of any
interest, fee or other amount payable by the Borrower hereunder that is not paid
when due, from the date such amount shall be due until such amount shall be paid
in full, payable in arrears on the date such amount shall be paid in full and on
demand, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid, in the case of interest, on the Type of Advance
on which such interest has accrued pursuant to clause (a)(i), (a)(ii) or (b)
above and, in all other cases, on Base Rate Advances pursuant to clause (a)(i)
above.
(d) Interest on Letter of Credit Advances. The Borrower shall pay
interest on the unpaid principal amount of each Letter of Credit Advance owing
to each Lender Party from the date of such Letter of Credit Advance until such
principal amount shall be paid in full, at the rates applicable from time to
time to Revolving Credit Advances that are Base Rate Advances as provided in
clauses (a)(i) and (c) above, payable at the times applicable to such Advances.
SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank
agrees to furnish to the Agent timely information for the purpose of determining
each Eurodollar Rate and each LIBO Rate. If any one or more of the Reference
Banks shall not furnish such timely information
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to the Agent for the purpose of determining any such interest rate, the Agent
shall determine such interest rate on the basis of timely information furnished
by the remaining Reference Banks. Promptly after a receipt of a Notice of
Borrowing for Eurodollar Rate Advances pursuant to Section 2.01(c), a notice of
Conversion to Eurodollar Rate Advances pursuant to Section 2.10 or a Notice of
Competitive Bid Borrowing for LIBO Rate Advances pursuant to Section 2.02(a),
the Agent shall give notice to the Borrower and each Appropriate Lender of the
applicable interest rate determined by the Agent and the applicable rate, if
any, furnished by each Reference Bank for the purpose of determining the
applicable interest rate.
(b) If, with respect to any Eurodollar Rate Advances under any
Facility, Lenders holding at least 25% of the Commitments thereunder notify the
Agent that the Eurodollar Rate for any Interest Period for such Advances will
not adequately reflect the cost to such Lenders of making, funding or
maintaining their respective Eurodollar Rate Advances for such Interest Period,
the Agent shall forthwith so notify the Borrower and the Appropriate Lenders,
whereupon (i) each such Eurodollar Rate Advance under such Facility will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance, and (ii) the obligation of the Appropriate
Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrower that such Lenders have
determined that the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the Agent will
forthwith so notify the Borrower and the Lenders and such Advances will
automatically, on the last day of the then existing Interest Period therefor,
Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $10,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance and
(ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.
(f) If none of the Reference Banks furnishes timely information to the
Agent for determining the Eurodollar Rate or LIBO Rate for any Eurodollar Rate
Advances or LIBO Rate Advances, as the case may be,
(i) the Agent shall forthwith notify the Borrower and the
Lenders that the interest rate cannot be determined for such Eurodollar
Rate Advances or LIBO Rate Advances, as the case may be,
(ii) with respect to Eurodollar Rate Advances, each such
Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance (or if such
Advance is then a Base Rate Advance, will continue as a Base Rate
Advance), and
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(iii) the obligation of the Lenders to make Eurodollar Rate
Advances or LIBO Rate Advances or to Convert Revolving Credit Advances
or Term Loan Advances made or outstanding as Base Rate Advances into
Eurodollar Rate Advances shall be suspended until the Agent shall
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.09. Fees. (a) Arrangement and Agency Fees. The Borrower shall
pay the arrangement and agency fees to the Arranger and the Agent as required by
the letter agreement (the "Fee Letter") dated August 11, 1997 entered into by
and among the Borrower, the Arranger and the Agent, as amended or supplemented
from time to time, or as otherwise may be agreed to in a separate writing or
writings executed by the Borrower, the Arranger and the Agent.
(b) Revolving Credit Facility Fee. The Borrower shall pay to
the Agent for the account of the Revolving Credit Lenders a revolving credit
facility fee, from the Closing Date in the case of each Initial Lender and from
the effective date specified in the Assignment and Acceptance pursuant to which
it became a Revolving Credit Lender in the case of each other Lender until the
Termination Date, payable in arrears quarterly on the last day of each December,
March, June and September, commencing December 1997, and on the Termination
Date, at a rate per annum equal to the Revolving Credit Facility Fee Percentage
on the average daily outstanding Revolving Credit Commitment of each Revolving
Credit Lender; provided, however, that any revolving credit facility fee accrued
with respect to the Revolving Credit Commitment of a Defaulting Lender during
the period prior to the time such Lender became a Defaulting Lender and unpaid
at such time shall not be payable by the Borrower so long as such Lender shall
be a Defaulting Lender except to the extent that such revolving credit facility
fee shall otherwise have been due and payable by the Borrower prior to such
time; and provided further that no revolving credit facility fee shall accrue on
the Revolving Credit Commitment of a Defaulting Lender so long as such Lender
shall be a Defaulting Lender.
(c) Letter of Credit Fees, Etc. (i) The Borrower shall pay to
the Agent for the account of each of the Revolving Credit Lenders a commission,
payable in arrears quarterly on the last day of each December, March, June and
September, commencing December 1997, and on the earliest to occur of the full
drawing, expiration, termination or cancellation of any such Letter of Credit
and on the Termination Date, on such Lender's Pro Rata Share of the average
daily aggregate Available Amount during such quarter of all Letters of Credit
outstanding from time to time at a rate per annum equal to the Applicable Margin
for Eurodollar Rate Advances under the Revolving Credit Facility.
(ii) The Borrower shall pay to each Issuing Bank, for its own
account, such commissions, issuance fees, fronting fees, transfer fees
and other fees and charges in connection with the issuance or
administration of each Letter of Credit as the Borrower and such
Issuing Bank shall agree in writing.
SECTION 2.10. Optional Conversion of Revolving Credit Advances and Term
Loan Advances. The Borrower may on any Business Day, upon notice given to the
Agent not later than 11:00 A.M. (New York City time) on the third Business Day
prior to the date of the proposed Conversion and subject to the provisions of
Sections 2.08, Convert all or any portion of the Revolving Credit Advances or
Term Loan Advances of one Type comprising the same
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Borrowing into Revolving Credit Advances or Term Loan Advances of the other
Type; provided, however, that any Conversion of Eurodollar Rate Advances into
Base Rate Advances pursuant to this Section 2.10 shall be made only on the last
day of an Interest Period for such Eurodollar Rate Advances, any Conversion of
Base Rate Advances into Eurodollar Rate Advances shall be in an amount not less
than the minimum amount specified in Section 2.01(d), no Conversion of any
Advances shall result in more separate Eurodollar Rate Advances owing to any
Lender than permitted under Section 2.01(d) and each Conversion of Advances
comprising part of the same Borrowing under either the Revolving Credit Facility
or the Term Loan Facility shall be made ratably among the Appropriate Lenders in
accordance with their Commitments under such Facilities. Each such notice of a
Conversion shall, within the restrictions specified above, specify (i) the date
of such Conversion, (ii) the Revolving Credit Advances or Term Loan Advances to
be Converted, and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for each such Advance. Each notice of
Conversion shall be irrevocable and binding on the Borrower.
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation after the Closing Date or (ii) the compliance with any guideline or
request issued or made after the Closing Date by any central bank or other
governmental authority (whether or not having the force of law), there shall be
any increase in the cost to any Lender Party of agreeing to make or making,
funding or maintaining Eurodollar Rate Advances or LIBO Rate Advances or of
agreeing to issue or issuing or maintaining Letters of Credit or of agreeing to
make or of making or maintaining Letter of Credit Advances (excluding for
purposes of this Section 2.11 any such increased costs resulting from (A) Taxes
or Other Taxes (as to which Section 2.14 shall govern) and (B) changes in the
basis of taxation of overall net income or overall gross income by the United
States or by the foreign jurisdiction or state under the laws of which such
Lender Party is organized or has its Applicable Lending Office or any political
subdivision thereof), then the Borrower shall from time to time, within five
days after written demand by such Lender Party together with a calculation of
the amount demanded in reasonable detail (with a copy of such demand to the
Agent), pay to the Agent for the account of such Lender Party additional amounts
sufficient to compensate such Lender Party for such increased cost; provided,
however, that the Borrower shall not be liable under this Section 2.11(a) for
the payment of any such amounts incurred or accrued more than 60 days prior to
the date on which notice of the event or occurrence giving rise to the
obligation to make such payment is given to the Borrower hereunder; and provided
further that (1) if the Borrower objects in good faith to any payment demanded
under this Section 2.11(a) on or before the date such payment is due, then the
Borrower and the Lender Party demanding such payment shall enter into
discussions to review the amount due, and the Borrower's obligation to pay such
amount to such Lender Party shall be deferred for 30 days after the original
demand for payment, and (2) if the Borrower and such Lender Party do not
otherwise reach agreement on the amount due during such 30-day period, the
Borrower shall pay to such Lender Party at the end of such 30-day period the
amount certified by such Lender Party to be due. Subject to the last proviso in
the preceding sentence, a certificate as to such amounts submitted to the
Borrower and the Agent by any Lender Party shall be conclusive and binding for
all purposes, absent manifest error. If any Lender Party shall request any
payment from the Borrower under this Section 2.11(a) in respect of any increased
costs, such Lender Party agrees, upon request by the Borrower, to use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Eurodollar Lending Office if the making
of such a designation would avoid or reduce any such increased costs and would
not, in the judgment of such Lender Party, be otherwise disadvantageous to such
Lender Party.
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(b) If, due to either (i) the introduction of or any change in
or in the interpretation of any law or regulation after the Closing Date or (ii)
the compliance after the Closing Date with any guideline or request issued or
made after the Closing Date by any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
amount of capital required or expected to be maintained by any Lender Party or
any corporation controlling such Lender Party as a result of or based upon the
existence of such Lender Party's commitment to lend or to issue Letters of
Credit (or to make Letter of Credit Advances) hereunder and other commitments of
such type or the issuance or maintenance of Letters of Credit (or similar
contingent obligations), then, within five days after written demand by such
Lender Party together with a calculation of the amount demanded in reasonable
detail (with a copy of such demand to the Agent), the Borrower shall pay to the
Agent for the account of such Lender Party from time to time as specified by
such Lender Party, additional amounts sufficient to compensate such Lender Party
or such corporation in the light of such circumstances, to the extent that such
Lender Party reasonably determines such increase in capital to be allocable to
the existence of such Lender Party's commitment to lend or to issue Letters of
Credit (or to make Letter of Credit Advances) hereunder or the issuance or
maintenance of any Letters of Credit; provided, however, that the Borrower shall
not be liable under this Section 2.11(b) for the payment of any such amounts
incurred or accrued more than 60 days prior to the date on which notice of the
event or occurrence giving rise to the obligation to make such payment is given
to the Borrower hereunder; and provided further that (i) if the Borrower objects
in good faith to any payment demanded under this Section 2.11(b) on or before
the date such payment is due, then the Borrower and the Lender Party demanding
such payment shall enter into discussions to review the amount due, and the
Borrower's obligation to pay such amount to such Lender Party shall be deferred
for 30 days after the original demand for payment, and (ii) if the Borrower and
such Lender Party do not otherwise reach agreement on the amount due during such
30-day period, the Borrower shall pay to such Lender Party at the end of such
30-day period the amount certified by such Lender Party to be due. Subject to
the last proviso in the preceding sentence, a certificate as to such amounts
submitted to the Borrower and the Agent by such Lender Party shall be conclusive
and binding for all purposes, absent manifest error.
(c) Any determination under this Section 2.11 in respect of
CUSA shall be made as though Citibank were a party to this Agreement in place of
CUSA.
SECTION 2.12. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Agent that the introduction of or any
change in or in the interpretation after the Closing Date of any law or
regulation makes it unlawful, or any central bank or other governmental
authority having jurisdiction over such Lender asserts after the Closing Date
that it is unlawful, for such Lender or its Eurodollar Lending Office to perform
its obligations hereunder to make Eurodollar Rate Advances or LIBO Rate Advances
or to fund or maintain Eurodollar Rate Advances or LIBO Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower
through the Agent, (i) each Eurodollar Rate Advance under each Facility under
which such Lender has a Commitment and each LIBO Rate Advance of such Lender, as
the case may be, will automatically, upon the later of such demand and the date
required by applicable law, Convert into a Base Rate Advance or an Advance that
bears interest at
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the rate set forth in Section 2.07(a)(i), as the case may be, and (ii) the
obligation of the Appropriate Lenders to make Eurodollar Rate Advances or LIBO
Rate Advances or to Convert Revolving Credit Advances or Term Loan Advances into
Eurodollar Rate Advances shall be suspended until the Agent shall notify the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist; provided, however, that, before making any such
demand, such Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances and LIBO Rate Advances or to continue to fund
or maintain Eurodollar Rate Advances and LIBO Rate Advances and would not, in
the judgment of such Lender, be otherwise disadvantageous to such Lender.
SECTION 2.13. Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the Notes, irrespective of any right of
counterclaim or set-off (except as otherwise provided in Section 2.17), not
later than 11:00 A.M. (New York City time) on the day when due in U.S. Dollars
to the Agent at the Agent's Account in same day funds. The Agent will promptly
thereafter cause like funds to be distributed (i) if such payment by the
Borrower is in respect of principal, interest, fees or any other Obligation then
payable hereunder and under the Notes to more than one Lender Party, to such
Lender Parties for the account of their respective Applicable Lending Offices
ratably in accordance with the amounts of such respective Obligations hereunder
and under the Notes then payable to such Lender Parties and (ii) if such payment
by the Borrower is in respect of any Obligation then payable hereunder to one
Lender Party, to such Lender Party for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to Section 8.07(d),
from and after the effective date specified in such Assignment and Acceptance,
the Agent shall make all payments hereunder and under the Notes in respect of
the interest assigned thereby to the Lender Party assignee thereunder, and the
parties to such Assignment and Acceptance shall make all appropriate adjustments
in such payments for periods prior to such effective date directly between
themselves.
(b) If the Agent receives funds for application to the
Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances or the Facility to which, or the manner in
which, such funds are to be applied, the Agent may, but shall not be obligated
to, elect to distribute such funds to each Lender Party ratably in accordance
with such Lender Party's proportionate share of the principal amount of all
outstanding Advances and the Available Amount of all Letters of Credit then
outstanding, in repayment or prepayment of such of the outstanding Advances or
other Obligations owed to such Lender Party, and for application to such
principal installments, as the Agent shall direct.
(c) The Borrower hereby authorizes each Lender Party, if and
to the extent any payment owed to such Lender Party is not made when due
hereunder or, in the case of a Lender, or under the Note held by such Lender, to
charge from time to time against any or all of the Borrower's accounts with such
Lender Party any amount so due.
(d) All computations of interest based on the Base Rate shall
be made by the Agent on the basis of a year of 365 or 366 days, as the case may
be, and all computations of
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interest based on the Eurodollar Rate, the LIBO Rate or the Federal Funds Rate
and of commissions and fees shall be made by the Agent on the basis of a year of
360 days, in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest,
commissions or fees are payable. Each determination by the Agent of an interest
rate, commission or fee hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(e) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest, commissions or fees,
as the case may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances or LIBO Rate
Advances to be made in the next following calendar month, such payment shall be
made on the next preceding Business Day.
(f) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to any Lender Party
hereunder that the Borrower will not make such payment in full, the Agent may
assume that the Borrower has made such payment in full to the Agent on such date
and the Agent may, in reliance upon such assumption, cause to be distributed to
each such Lender Party on such due date an amount equal to the amount then due
such Lender Party. If and to the extent the Borrower shall not have so made such
payment in full to the Agent, each Lender Party shall repay to the Agent
forthwith on demand such amount distributed to such Lender Party together with
interest thereon, for each day from the date such amount is distributed to such
Lender Party until the date such Lender Party repays such amount to the Agent,
at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Except as provided in Section 2.14(f), any and
all payments by the Borrower hereunder or under the Notes shall be made, in
accordance with Section 2.13, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender Party, taxes imposed on its overall net income, and franchise
taxes imposed on it in lieu of net income taxes, by the jurisdiction under the
laws of which such Lender Party is organized or any political subdivision
thereof and, in the case of each Lender Party, taxes imposed on its overall net
income, and franchise taxes imposed on it in lieu of net income taxes, by the
jurisdiction of such Lender Party's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities in respect of payments hereunder or under
the Notes being hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Lender Party, (i) except as provided in
Section 2.14(f), the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.14) such Lender Party receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable law.
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(b) In addition, the Borrower shall pay when due any present
or future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies that arise from any payment made hereunder or under
the Notes or the Guaranty or from the execution, delivery or registration of,
performing under, or otherwise with respect to, this Agreement or the Notes or
the Guaranty (hereinafter referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender Party for and
hold it harmless against the full amount of Taxes or Other Taxes (including,
without limitation, taxes of any kind imposed by any jurisdiction on amounts
payable under this Section 2.14) imposed on or paid by such Lender Party and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the date
such Lender Party makes written demand therefor, accompanied by a calculation in
reasonable detail of the amount demanded and evidence of the Taxes or Other
Taxes (including, without limitation, taxes of any kind imposed by any
jurisdiction on amounts payable under this Section 2.14) imposed or paid by the
Agent or any other Lender Party.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent, at its address referred to in Section 8.02,
evidence satisfactory to the Agent of such payment. In the case of any payment
hereunder or under the Notes by or on behalf of the Borrower through an account
or branch outside the United States or by or on behalf of the Borrower by a
payor that is not a United States person, if the Borrower determines that no
Taxes are payable in respect thereof, the Borrower shall furnish, or shall cause
such payor to furnish, to the Agent, at such address, an opinion of counsel
reasonably acceptable to the Agent stating that such payment is exempt from
Taxes. For purposes of this subsection (d) and subsection (e), the terms "United
States" and "United States person" shall have the meanings specified in Section
7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a
jurisdiction outside the United States, on or prior to the date of its execution
and delivery of this Agreement in the case of each Initial Lender or Initial
Issuing Bank, as the case may be, and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender Party in the case of each other
Lender Party, and from time to time thereafter as requested in writing by the
Borrower (but only so long as such Lender Party remains lawfully able to do so),
shall provide each of the Agent and the Borrower with two original Internal
Revenue Service forms 1001 or 4224, as appropriate, or any successor or other
form prescribed by the Internal Revenue Service, certifying that such Lender
Party is exempt from or entitled to a reduced rate of United States withholding
tax on payments pursuant to this Agreement or the Notes, and two copies of
Internal Revenue Service forms W-8 or W-9, or any other successor or other form
prescribed by the Internal Revenue Service. In addition to the forms described
in the immediately preceding sentence, each Lender Party organized under the
laws of a jurisdiction outside the United States shall, upon the request of the
Borrower or Agent in writing, (i) provide each of the Agent and the Borrower
with two further copies of such forms or other appropriate certification of such
forms on or before the date that any such form expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent form
delivered to the Borrower, and (ii) obtain such extensions of the time for the
filing and renew such forms and certifications thereof as may be reasonably
requested by the Borrower or the Agent. If the form provided by a Lender Party
at the time such Lender Party first becomes a party to this Agreement indicates
a United States interest withholding tax
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rate in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes unless and until such Lender Party provides the appropriate
forms certifying that a lesser rate applies, whereupon withholding tax at such
lesser rate only shall be considered excluded from Taxes for periods governed by
such form; provided, however, that, if at the date of the Assignment and
Acceptance pursuant to which a Lender Party assignee becomes a party to this
Agreement, the Lender Party assignor was entitled to payments under subsection
(a) in respect of United States withholding tax with respect to interest paid at
such date, then, to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable with
respect to the Lender Party assignee on such date.
(f) For any period with respect to which a Lender Party has
failed to provide the Borrower with the appropriate form described in Section
2.14(e) or failed to seek an extension of the time for filing such successor
form as required in writing to do so by the Agent or the Borrower in accordance
with Section 2.14(e) (other than if such failure is due to a change in law
occurring subsequent to the date on which a form originally was required to be
provided, or if such form otherwise is not required under subsection (e) above),
such Lender Party shall not be entitled to indemnification under Section 2.14(a)
or (c) with respect to Taxes imposed by the United States by reason of such
failure; provided, however, that, should a Lender Party become subject to Taxes
because of its failure to deliver a form required hereunder, the Borrower shall
take such steps (at such Lender Party's expense) as the Lender Party shall
reasonably request to assist the Lender Party to recover such Taxes.
SECTION 2.15. Sharing of Payments, Etc. If any Lender Party shall
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of setoff, or otherwise) (a) on account of Obligations due
and payable to such Lender Party under any Facility and under the Notes
evidencing such Facility at such time in excess of its ratable share (according
to the proportion of (i) the amount of such Obligations due and payable to such
Lender Party at such time to (ii) the aggregate amount of the Obligations due
and payable to all Lender Parties under such Facility and under the Notes
evidencing such Facility at such time) of payments on account of the Obligations
due and payable to all Lender Parties under such Facility and under the Notes
evidencing such Facility at such time obtained by all the Lender Parties under
such Facility at such time or (b) on account of Obligations owing (but not due
and payable) to such Lender Party under any Facility and under the Notes
evidencing such Facility at such time in excess of its ratable share (according
to the proportion of (i) the amount of such Obligations owing (but not due and
payable) to such Lender Party at such time to (ii) the aggregate amount of the
Obligations owing (but not due and payable) to all Lender Parties under such
Facility and under the Notes evidencing such Facility at such time) of payments
on account of the Obligations owing (but not due and payable) to all Lender
Parties under such Facility and under the Notes evidencing such Facility at such
time obtained by all of the Lender Parties under such Facility at such time,
such Lender Party shall forthwith purchase from the other Lender Parties under
the applicable Facility such participations in the Obligations under such
Facility due and payable or owing to them, as the case may be, as shall be
necessary to cause such purchasing Lender Party to share the excess payment
ratably with each of them; provided, however, that if, with respect to any
Facility, all or any portion of such excess payment is thereafter recovered from
such purchasing Lender Party under such Facility, such purchase from each other
Lender Party under such Facility shall be rescinded and such other Lender Party
shall repay to the purchasing Lender Party under such
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Facility the purchase price to the extent of such Lender Party's ratable share
(according to the proportion of (i) the purchase price paid to such Lender Party
to (ii) the aggregate purchase price paid to all Lender Parties under such
Facility) of such recovery together with an amount equal to such Lender Party's
ratable share (according to the proportion of (i) the amount of such other
Lender Party's required repayment under such Facility to (ii) the total amount
so recovered from the purchasing Lender Party under such Facility) of any
interest or other amount paid or payable by the purchasing Lender Party under
such Facility in respect of the total amount so recovered. The Borrower agrees
that any Lender Party so purchasing a participation under any Facility from
another Lender Party pursuant to this Section 2.15 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
setoff) with respect to such participation as fully as if such Lender Party
under such Facility were the direct creditor of the Borrower in the amount of
such participation.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances and
issuances of Letters of Credit shall be available (and the Borrower agrees that
it shall use such proceeds and Letters of Credit) solely to finance the
Acquisition, to pay transaction fees and costs related to such Acquisition and
the financing thereof, to refinance the Existing Credit Agreement and certain
other indebtedness of the Borrower and the Company, to provide the Borrower and
its Domestic Subsidiaries with working capital and funds for other general
corporate purposes in the United States and for other purposes to the extent
expressly permitted in Sections 5.02(b) and 5.02(e) and to provide for the
issuance of Letters of Credit for the account of the Borrower and its Guarantor
Subsidiaries.
SECTION 2.17. Defaulting Lenders. (a) In the event that, at any one
time, (i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to the Borrower and (iii) the Borrower
shall be required to make any payment hereunder or under any other Loan Document
to or for the account of such Defaulting Lender, then the Borrower may, so long
as no Default shall occur or be continuing at such time and to the fullest
extent permitted by applicable law, set off and otherwise apply the Obligation
of the Borrower under the Loan Documents to make such payment to or for the
account of such Defaulting Lender against the obligation of such Defaulting
Lender to make such Defaulted Advance. In the event that, on any date, the
Borrower shall so set off and otherwise apply its obligation to make any such
payment against the obligation of such Defaulting Lender to make any such
Defaulted Advance on or prior to such date, the amount so set off and otherwise
applied by the Borrower shall constitute for all purposes of this Agreement and
the other Loan Documents an Advance by such Defaulting Lender made on such date
under the Revolving Credit Facility. Such Advance shall be considered, for all
purposes of this Agreement from and after such date, to comprise part of the
Borrowing in connection with which such Defaulted Advance was originally
required to have been made pursuant to Section 2.01. The Borrower shall notify
the Agent at any time the Borrower exercises its right of setoff pursuant to
this subsection (a) and shall set forth in such notice (A) the name of the
Defaulting Lender and the Defaulted Advance required to be made by such
Defaulting Lender and (B) the amount set off and otherwise applied in respect of
such Defaulted Advance pursuant to this subsection (a). Any portion of such
payment otherwise required to be made by the Borrower to or for the account of
such Defaulting Lender which is paid by the Borrower, after giving effect to the
amount set off and otherwise applied by the Borrower pursuant to this subsection
(a), shall be applied by the Agent as specified in subsection (b) or (c) of this
Section 2.17.
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(b) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Amount to the Agent or any of the other Lender Parties and (iii) the Borrower
shall make any payment hereunder or under any other Loan Document to the Agent
for the account of such Defaulting Lender, then the Agent may, on its behalf or
on behalf of such other Lender Parties and to the fullest extent permitted by
applicable law, apply at such time the amount so paid by the Borrower to or for
the account of such Defaulting Lender to the payment of each such Defaulted
Amount to the extent required to pay such Defaulted Amount. In the event that
the Agent shall so apply any such amount to the payment of any such Defaulted
Amount on any date, the amount so applied by the Agent shall constitute for all
purposes of this Agreement and the other Loan Documents payment, to such extent,
of such Defaulted Amount on such date. Any such amount so applied by the Agent
shall be retained by the Agent or distributed by the Agent to such other Lender
Parties, ratably in accordance with the respective portions of such Defaulted
Amounts payable at such time to the Agent and such other Lender Parties and, if
the amount of such payment made by the Borrower shall at such time be
insufficient to pay all Defaulted Amounts owing at such time, to the Agent and
the other Lender Parties, in the following order of priority:
(i) first, to the Agent for any Defaulted Amount then owing to
the Agent; and
(ii) second, to any other Lender Parties for any Defaulted
Amounts then owing to such other Lender Parties, ratably in accordance
with such respective Defaulted Amounts then owing to such other Lender
Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Agent pursuant to this subsection (b), shall be applied by the Agent as
specified in subsection (c) of this Section 2.17.
(c) In the event that, any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a
Defaulted Advance or a Defaulted Amount and (iii) the Borrower, the Agent or any
other Lender Party shall be required to pay or distribute any amount hereunder
or under any other Loan Document to or for the account of such Defaulting
Lender, then the Borrower or such other Lender Party shall pay such amount to
the Agent to be held by the Agent, to the fullest extent permitted by applicable
law, in escrow or the Agent shall, to the fullest extent permitted by applicable
law, hold in escrow such an amount otherwise held by it. Any funds held by the
Agent in escrow under this subsection (c) shall be deposited by the Agent in an
account with Citibank in the name and under the sole dominion and control of the
Agent, but subject to the provisions of this subsection (c). The terms
applicable to such account, including the rate of interest payable with respect
to the credit balance of such account from time to time, shall be Citibank's
standard terms applicable to escrow accounts maintained with it. Any interest
credited to such account from time to time shall be held by the Agent in escrow
under, and applied by the Agent from time to time in accordance with the
provisions of, this subsection (c). The Agent shall, to the fullest extent
permitted by applicable law, apply all funds so held in escrow from time to time
to the extent necessary to make any Advances required to be made by such
Defaulting Lender and to pay any amount payable by such Defaulting Lender
hereunder and under the other Loan Documents to the Borrower, the Agent or any
other Lender Party, as and when such Advances or amounts are required to be made
or paid and, if the amount so held in escrow shall, at any time, be insufficient
to make and pay all such Advances and amounts required to be made or paid at
such time in the following order of priority:
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(i) first, to the Agent for any amount then due and payable by
such Defaulting Lender to the Agent hereunder;
(ii) second, to any other Lender Parties for any amount then
due and payable by such Defaulting Lender to such other Lender Parties
hereunder, ratably in accordance with such respective amounts then due
and payable to such other Lender Parties; and
(iii) third, to the Borrower for any Advance then required to
be made by such Defaulting Lender pursuant to a Commitment of such
Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Agent in escrow at
such time with respect to such Lender Party shall be distributed by the Agent to
such Lender Party and applied by such Lender Party to the Obligations owing to
such Lender Party at such time under this Agreement and the other Loan Documents
ratably in accordance with the respective amounts of such Obligations
outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under
this Section 2.17 are in addition to other rights and remedies that the Borrower
may have against such Defaulting Lender with respect to any Defaulted Advance
(including, without limitation, the right to such Defaulting Lender's specific
performance in respect of such Defaulted Advance) and that the Agent or any
Lender Party may have against such Defaulting Lender with respect to any
Defaulted Amount.
ARTICLE III.
CONDITIONS OF LENDING AND
ISSUANCE OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of Credit. The
obligation of each Lender to make an Advance or of any Issuing Bank to issue a
Letter of Credit on the occasion of the Initial Extension of Credit hereunder is
subject to the satisfaction of the following conditions precedent before or
concurrently with the Initial Extension of Credit:
(a) The Acquisition shall have been consummated in accordance
in all material respects with the terms of the Stock Purchase Agreement, without
any waiver or amendment not consented to by the Lender Parties of any material
term, provision or condition set forth therein, and in compliance with all
applicable laws.
(b) The Lender Parties shall be satisfied with the corporate
and legal structure and capitalization of each Loan Party, including the terms
and conditions of the charter, bylaws and each class of capital stock of each
Loan Party and of each agreement or instrument relating to such structure or
capitalization.
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(c) The Lender Parties shall be satisfied that all Debt
identified on Schedule 3.01(c) (the "Surviving Debt") is on terms and conditions
reasonably satisfactory to the Lender Parties.
(d) There shall have occurred no Material Adverse Change since
December 31, 1996.
(e) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Borrower or any of its Subsidiaries
pending or, to the best of the Borrower's knowledge, threatened before any
court, governmental agency or arbitrator that (i) would be reasonably likely to
have a Material Adverse Effect or (ii) purports to affect the legality, validity
or enforceability of the Acquisition, this Agreement, any Note, any other Loan
Document or the Stock Purchase Agreement.
(f) The Borrower shall have made available to the Lender
Parties the books and records of the Borrower and its Subsidiaries and such
other information regarding the Borrower and its Subsidiaries as any Lender
Party may have reasonably requested.
(g) The Borrower shall have paid all accrued fees and expenses
of the Agent and the Arranger payable hereunder (including the accrued
reasonable fees and expenses of counsel to the Agent) to the extent that the
Borrower shall have received invoices therefor before the Effective Date.
(h) [Intentionally omitted].
(i) The Agent shall have received on or before the day of the
Initial Extension of Credit the following, each dated such day (unless otherwise
specified), in form and substance satisfactory to the Agent (unless otherwise
specified) and (except for the Notes) in sufficient copies for each Lender
Party:
(i) The Credit Agreement executed by the Borrower and Notes
payable to the order of the Lenders.
(ii) Certified copies of the resolutions of the Board of
Directors of each Loan Party approving, in the case of the Borrower and
the Company, the Acquisition and the Stock Purchase Agreement, and in
the case of each Loan Party, this Agreement, the Notes and each other
Loan Document to which it is or is to be a party, and copies of all
documents evidencing other necessary corporate action and governmental
and other third party approvals and consents, if any, with respect to
the Acquisition, this Agreement, the Notes, each other Loan Document
and the Stock Purchase Agreement.
(iii) A copy of the charter of the Borrower and each other
Loan Party and each amendment thereto, certified (as of a date
reasonably near the date of the Initial Extension of Credit) by the
Secretary of State of the jurisdiction of its incorporation as being a
true and correct copy thereof.
(iv) Certificates of qualification to do business and good
standing, issued in respect of each Loan Party as of a date reasonably
near the date of the Initial Extension of
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Credit by the Secretary of State of each Loan Party's jurisdiction of
incorporation and, where different, each United States jurisdiction in
which such Loan Party has its principal place of business or executive
offices.
(v) A certificate of the Borrower and each other Loan Party
signed on behalf of the Borrower or such other Loan Party by a
Responsible Officer, dated the date of the Initial Extension of Credit
(the statements made in which certificate shall be true on and as of
the date of the Initial Extension of Credit), certifying as to (A) the
absence of any amendments to the charter of the Borrower or such other
Loan Party since the date of the Secretary of State's certificate
referred to in Section 3.01(i)(iii), (B) a true and correct copy of the
bylaws of the Borrower and such other Loan Party as in effect on the
date of the Initial Extension of Credit, (C) the absence of any
proceeding for the dissolution or liquidation of the Borrower or such
other Loan Party, (D) the truth of the representations and warranties
of such Loan Party contained in the Loan Documents as though made on
and as of the date of the Initial Extension of Credit (except to the
extent such representations and warranties relate solely to an earlier
date) and (E) in the case of the Borrower, the absence of any event
occurring and continuing, or resulting from the Initial Extension of
Credit or the consummation of the Acquisition, that constitutes a
Default.
(vi) A certificate of the Secretary or an Assistant Secretary
of each of the Borrower and each other Loan Party certifying the names
and true signatures of the officers of the Borrower and such other Loan
Party authorized to sign this Agreement, the Notes, each other Loan
Document and the Stock Purchase Agreement to which it is or is to be a
party and the other documents to be delivered hereunder and thereunder.
(vii) A guaranty in substantially the form of Exhibit D (as
amended, supplemented or otherwise modified from time to time in
accordance with its terms, the "Guaranty"), duly executed by each
Domestic Subsidiary designated by the Borrower, which shall include
Hybritech Incorporated, a California corporation, SmithKline
Diagnostics, Inc., a Delaware corporation, and Beckman Instruments
(Naguabo) Inc., a California corporation and, upon consummation of the
Acquisition, the Company and Coulter Leasing Corporation, an Illinois
corporation.
(viii) A certified copy of the Stock Purchase Agreement, duly
executed by the parties thereto.
(ix) A certificate of the Chief Financial Officer, Treasurer
or Controller of the Borrower certifying that all commitments under the
Existing Credit Agreement have been cancelled and all outstanding
principal of and accrued interest on the indebtedness outstanding
thereunder, together with all fees and other amounts payable
thereunder, have been paid in full or will be paid in full upon
disbursement of the initial Advances hereunder.
(x) A favorable opinion of each of William May, Esq., Vice
President and General Counsel to the Borrower, Wayne Barlin, Corporate
Counsel of the Company, and Latham & Watkins, counsel for the Borrower
and the Guarantor Subsidiaries, in substantially the forms of Exhibits
E-1, E-2 and E-3 hereto, respectively, and as to such other matters as
any Lender Party through the Agent may reasonably request.
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(xi) A favorable opinion of Shearman & Sterling, counsel for
the Agent, in substantially the form of Exhibit F hereto.
SECTION 3.02. Conditions Precedent to Each Revolving Credit and Term
Loan Borrowing and Each Issuance. The obligation of each Appropriate Lender to
make an Advance (other than (1) a Letter of Credit Advance made by an Issuing
Bank or a Revolving Credit Lender pursuant to Section 2.03(b)(iii) or (2) a
Competitive Bid Advance) on the occasion of each Revolving Credit Borrowing or
Term Loan Borrowing (including the Initial Extension of Credit), and the
obligation of each Issuing Bank to issue a Letter of Credit (including the
initial Letter of Credit) or renew a Letter of Credit, shall be subject to the
further conditions precedent that on the date of such Borrowing, issuance or
renewal (a) the following statements shall be true (and each of the giving of
the applicable Notice of Borrowing, Notice of Issuance or Notice of Renewal and
the acceptance by the Borrower of the proceeds of such Borrowing or of such
Letter of Credit or the renewal of such Letter of Credit shall constitute a
representation and warranty by the Borrower that both on the date of such notice
and on the date of such Borrowing or issuance or renewal such statements are
true):
(i) the representations and warranties contained in each Loan
Document are correct in all material respects on and as of such date,
before and after giving effect to such Borrowing, issuance or renewal
and to the application of the proceeds therefrom, as though made on and
as of such date (except and to the extent such representations and
warranties relate to an earlier date); and
(ii) no event has occurred and is continuing, or would result
from such Borrowing, issuance or renewal or from the application of the
proceeds therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Appropriate Lender through the Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing.
The obligation of each Lender that is to make a Competitive Bid Advance on the
occasion of a Competitive Bid Borrowing to make such Competitive Bid Advance as
part of such Competitive Bid Borrowing is subject to the conditions precedent
that (i) the Agent shall have received the written Notice of Competitive Bid
Borrowing with respect thereto, (ii) on or before the date of such Competitive
Bid Borrowing, but prior to such Competitive Bid Borrowing, the Agent shall have
received a Competitive Bid Note payable to the order of such Lender for each of
the one or more Competitive Bid Advances to be made by such Lender as part of
such Competitive Bid Borrowing, in a principal amount equal to the principal
amount of the Competitive Bid Advance to be evidenced thereby and otherwise on
such terms as were agreed to for such Competitive Bid Advance in accordance with
Section 2.02 and (iii) on the date of such Competitive Bid Borrowing the
following statements shall be true (and each of the giving of the applicable
Notice of Competitive Bid Borrowing and the acceptance by the Borrower of the
proceeds of such Competitive Bid Borrowing shall constitute a representation and
warranty by the Borrower that on the date of such Competitive Bid Borrowing such
statements are true):
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(a) the representations and warranties contained in each Loan
Document are correct in all material respects on and as of such date, before and
after giving effect to such Competitive Bid Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date (except and to the
extent such representations and warranties relate to an earlier date); and
(b) no event has occurred and is continuing, or would result
from such Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
SECTION 3.04. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Agent responsible for the transactions contemplated by the Loan
Documents shall have received notice from such Lender Party prior to the Initial
Extension of Credit specifying its objection thereto and if the Initial
Extension of Credit consists of a Borrowing, such Lender Party shall not have
made available to the Agent such Lender Party's ratable portion of such
Borrowing.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) Each Loan Party (i) is a corporation duly incorporated,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases property or in
which the conduct of its business requires it to so qualify or be licensed
except where the failure to so qualify or be licensed could not reasonably be
expected to have a Material Adverse Effect and (iii) has all requisite corporate
power and authority to own or lease and operate its properties and to carry on
its business as now conducted and as proposed to be conducted.
(b) Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of all Subsidiaries of each Loan Party as of the Closing Date
after giving effect to the Acquisition, showing as of the Closing Date (as to
each such Subsidiary) the jurisdiction of its incorporation, the percentage of
the outstanding shares of each class of capital stock of such Subsidiary owned
(directly or indirectly) by such Loan Party on the Closing Date, and the number
of shares covered by all outstanding options, warrants, rights of conversion or
purchase and similar rights at the Closing Date. All of the outstanding capital
stock of all of such Subsidiaries of each Loan Party has been validly issued, is
fully paid and non-assessable and is owned by such Loan Party or one or more of
its Subsidiaries free and clear of all Liens. Concurrently with the Initial
Extension of Credit hereunder, the Acquisition shall have been consummated in
accordance in all material respects with the terms of the Stock Purchase
Agreement, without any waiver or amendment not
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consented to by the Lender Parties of any material term, condition or provision
set forth therein, and in compliance in all material respects with all
applicable laws, and the Borrower shall have acquired 100% of the issued and
outstanding capital stock of the Company.
(c) The execution, delivery and performance by each Loan Party
of this Agreement, the Stock Purchase Agreement, the Notes and each other Loan
Document to which it is or is to be a party, and the consummation of the
Acquisition and the other transactions contemplated hereby, are within the
corporate powers of such Loan Party, have been duly authorized by all necessary
corporate action, and do not (i) contravene the charter or bylaws of such Loan
Party, (ii) violate any law (including, without limitation, the Securities
Exchange Act of 1934), rule, regulation (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System), order,
writ, judgment, injunction, decree, determination or award binding on such Loan
Party or any property of such Loan Party except, in the case of the Stock
Purchase Agreement and the consummation of the Acquisition, to the extent that
such violation could not reasonably be expected to have a Material Adverse
Effect, (iii) conflict with or result in the breach of, or constitute a default
under, any contract, loan agreement, indenture, mortgage, deed of trust, lease
or other instrument binding on or affecting any Loan Party, any of its
Subsidiaries or any of their respective properties, except to the extent that
such conflict, breach or default could not reasonably be expected to have a
Material Adverse Effect, or (iv) result in or require the creation or imposition
of any Lien upon or with respect to any of the properties of any Loan Party or
any of its Subsidiaries. No Loan Party is in violation of any such law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award or
in breach of any such contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument, the violation or breach of which is reasonably
likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body or any
other third party is required for (i) the due execution, delivery or performance
by any Loan Party of this Agreement, the Stock Purchase Agreement, the Notes or
any other Loan Document to which it is or is to be a party, or for the
consummation of the Acquisition or the other transactions contemplated hereby,
except, in the case of the Stock Purchase Agreement and the Acquisition, as have
been previously obtained or made or as could not reasonably be expected to have
a Material Adverse Effect, or (ii) the exercise by the Agent or any Lender Party
of its rights under the Loan Documents, except as may be required by reason of
regulatory requirements or other restrictions applicable to the Agent or any
other Lender Party solely by reason of the nature of its business and except for
other routine filings within the control of the Lender Parties. All applicable
waiting periods in connection with the Acquisition and the other transactions
contemplated hereby have expired without any action having been taken by any
competent authority restraining, preventing or imposing materially adverse
conditions upon the Acquisition or the rights of the Loan Parties or their
Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien
on, any properties now owned or hereafter acquired by any of them.
(e) Each of this Agreement and the Stock Purchase Agreement
has been, and each of the Notes and each other Loan Document when delivered
hereunder will have been, duly executed and delivered by each Loan Party which
is a party thereto. Each of this Agreement and the Stock Purchase Agreement is,
and each of the Notes and each other Loan Document when delivered hereunder will
be, the legal, valid and binding obligation of each Loan Party which is a
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party thereto, enforceable against such Loan Party in accordance with its terms,
subject to the effect of bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting the
rights or remedies of creditors generally and the effect of general principles
of equity, whether enforcement is considered in a proceeding in equity or at
law.
(f) (i) The Consolidated balance sheet of the Borrower and its
Subsidiaries (other than the Company and its Subsidiaries) as at
December 31, 1996, and the related Consolidated statements of earnings,
stockholders' equity and cash flows of the Borrower and its
Subsidiaries (other than the Company and its Subsidiaries) for the
fiscal year then ended, accompanied by an opinion of KPMG Peat Marwick
LLP, independent certified public accountants, and the Consolidated
unaudited condensed balance sheet of the Borrower and its Subsidiaries
(other than the Company and its Subsidiaries) as at June 30, 1997, and
the related Consolidated unaudited condensed statement of earnings and
Consolidated unaudited condensed statement of cash flows of the
Borrower and its Subsidiaries (other than the Company and its
Subsidiaries) for the six months then ended, copies of which have been
furnished to the Agent for distribution to each Lender Party, fairly
present in all material respects, subject, in the case of said balance
sheet as at June 30, 1997, and said statements of earnings and cash
flows for the six months then ended, to year-end audit adjustments, the
Consolidated financial position of the Borrower and its Subsidiaries
(other than the Company and its Subsidiaries) as at such dates and the
Consolidated results of the operations of the Borrower and its
Subsidiaries (other than the Company and its Subsidiaries) for the
periods ended on such dates, all in accordance with generally accepted
accounting principles applied on a consistent basis. Since December 31,
1996, there has been no Material Adverse Change.
(ii) The Consolidated balance sheet of the Company and its
Subsidiaries as at March 31, 1997, and the related Consolidated
statements of income, stockholders' equity and cash flows of the
Company and its Subsidiaries for the fiscal year then ended,
accompanied by an opinion of Arthur Andersen LLP, independent certified
public accountants, and the Consolidated unaudited condensed balance
sheet of the Company and its Subsidiaries as at June 30, 1997, and the
related Consolidated unaudited condensed statements of income and
Consolidated unaudited condensed statement of cash flows of the Company
and its Subsidiaries for the three months then ended, copies of which
have been furnished to the Agent for distribution to each Lender Party,
fairly present in all material respects, subject, in the case of said
balance sheet as at June 30, 1997, and said statements of income and
cash flows for the three months then ended, to year-end audit
adjustments, the Consolidated financial position of the Company and its
Subsidiaries as at such dates and the Consolidated results of the
operations of the Company and its Subsidiaries for the periods ended on
such dates, all in accordance with generally accepted accounting
principles applied on a consistent basis. As of the Closing Date, since
June 30, 1997, there has been no material adverse change in the
business, financial condition, operations, performance or properties of
the Company and its Subsidiaries taken as a whole.
(g) The unaudited pro forma condensed combined balance sheet
of the Borrower and its Subsidiaries (including the Company and its
Subsidiaries) as at June 30, 1997, and the related Consolidated pro forma
statement of earnings of the Borrower and its Subsidiaries (including the
Company and its Subsidiaries) for the year ended December 31, 1996 and the
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six-month period ended June 30, 1997, copies of which have been furnished to the
Agent for distribution to each Lender Party, fairly present in all material
respects the Consolidated pro forma financial position of the Borrower and its
Subsidiaries as at such dates and the Consolidated pro forma results of
operations of the Borrower and its Subsidiaries for the periods ended on such
dates, in each case giving effect to the Acquisition and the other transactions
contemplated hereby (assuming for purposes of such statement of earnings that
the Acquisition occurred on January 1, 1996 and for purposes of such balance
sheet that the Acquisition occurred on June 30, 1997), all in accordance with
GAAP; provided, however, that such unaudited pro forma statements are not
necessarily indicative of the Consolidated financial position or Consolidated
results of operations of the Borrower and its Subsidiaries that would have been
reported had the Acquisition actually occurred on such dates nor do they
necessarily represent a forecast of the Consolidated financial position of the
Borrower and its Subsidiaries at any future date or the Consolidated results of
operations of the Borrower and its Subsidiaries for any future period.
(h) Neither the Confidential Information Memorandum, as
supplemented by the Borrower to the Lender Parties (or to the Agent for
distribution to the Lender Parties) in writing prior to the Closing Date, nor
any other information, exhibit or report furnished by any Loan Party or any of
its Subsidiaries in writing to the Agent or any Lender Party in connection with
the negotiation of the Loan Documents or pursuant to the terms of the Loan
Documents, contained any untrue statement of a material fact or omitted to state
a material fact necessary to make the statements made therein not misleading in
the light of the circumstances under which the Confidential Information
Memorandum or such other information, exhibit or report was delivered.
(i) There is no action, suit, investigation, litigation or
proceeding against any Loan Party or any of its Subsidiaries or affecting any
property of any Loan Party or any of its Subsidiaries, including any
Environmental Action, pending or, to the best of the Borrower's knowledge,
threatened before any court, governmental agency or arbitrator that (i) would be
reasonably likely to have a Material Adverse Effect or (ii) purports to affect
the legality, validity or enforceability of the Acquisition, this Agreement, any
Note, any other Loan Document or the Stock Purchase Agreement or the
consummation of the Acquisition and the other transactions contemplated hereby.
(j) No proceeds of any Advance or drawings under any Letter of
Credit will be used to acquire any equity security of a class that is registered
pursuant to Section 12 of the Securities Exchange Act of 1934, except for the
acquisition of capital stock of the Borrower otherwise permitted hereunder.
(k) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock, and no proceeds
of any Advance or drawings under any Letter of Credit will be used to purchase
or carry any Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock. Following application of the proceeds
of each Advance or drawing under each Letter of Credit, not more than 25% of the
value of the assets (either of the Borrower only or the Borrower and its
Subsidiaries on a Consolidated basis) subject to the provisions of Section
5.02(a) or 5.02(d) or subject to any restriction contained in any agreement or
instrument between the Borrower and any Lender Party or any Affiliate of any
Lender Party relating to Debt and within the scope of Section 6.01(e) will be
Margin Stock.
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(l) No Termination Event has occurred or is reasonably
expected to occur with respect to any Plan.
(m) Schedule B (Actuarial Information) to the most recent
annual report (Form 5500 Series) with respect to each Plan, copies of which have
been filed with the Internal Revenue Service, is complete and accurate and
fairly presents in all material respects the funding status and financial
condition of such Plan, and since the date of such Schedule B there has been no
change in such funding status or financial condition which could reasonably be
expected to have a Material Adverse Effect.
(n) Neither the Borrower nor any ERISA Affiliate has incurred,
or is reasonably expected to incur, any Withdrawal Liability to any
Multiemployer Plan.
(o) Neither the Borrower nor any ERISA Affiliate has received
any notification that any Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, and no Multiemployer Plan
is reasonably expected to be in reorganization or to be terminated within the
meaning of Title IV of ERISA.
(p) Neither the business nor the properties of any Loan Party
or any of its Subsidiaries are affected by any fire, explosion, accident,
strike, lockout or other labor dispute, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy or other casualty (whether or not
covered by insurance) that would be reasonably likely to have a Material Adverse
Effect.
(q) (i) The operations and properties of each Loan Party and
each of its Subsidiaries comply in all material respects with all
applicable Environmental Laws and Environmental Permits, and all past
non-compliance with such Environmental Laws and Environmental Permits
has been resolved without ongoing obligations or costs, except to the
extent that such failure to comply or such ongoing obligations could
not reasonably be expected to have a Material Adverse Effect, and (ii)
no circumstances exist that would be reasonably likely to (A) form the
basis of an Environmental Action against any Loan Party or any of its
Subsidiaries or any of their properties that could reasonably be
expected to have a Material Adverse Effect or (B) cause any such
property to be subject to any material restrictions on ownership,
occupancy, use or transferability under any Environmental Law.
(r) Neither any Loan Party nor any of its Subsidiaries is
undertaking, and has not completed, either individually or together with other
potentially responsible parties, any investigation or assessment or remedial or
response action relating to any actual or threatened release, discharge or
disposal of Hazardous Materials at any site, location or operation, either
voluntarily or pursuant to the order of any governmental or regulatory authority
or the requirements of any Environmental Law, which release, discharge or
disposal could reasonably be expected to have a Material Adverse Effect; and all
Hazardous Materials generated, used, treated, handled or stored at, or
transported to or from, any property currently or formerly owned or operated by
any Loan Party or any of its Subsidiaries have been disposed of in a manner not
reasonably expected to result in liability to such Loan Party or any of its
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect.
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(s) Neither any Loan Party nor any of its Subsidiaries is a
party to any indenture, loan or credit agreement or any lease or other agreement
or instrument or subject to any charter or corporate restriction that could
reasonably be expected to have a Material Adverse Effect.
(t) Each Loan Party and each of its Subsidiaries and
Affiliates has filed, has caused to be filed or has been included in all tax
returns (Federal, state, local and foreign) required to be filed and has paid
all taxes shown thereon to be due, together with applicable interest and
penalties, and to the best knowledge of the Borrower, neither the Internal
Revenue Service nor any state, local or foreign taxing authority has proposed or
assessed in writing any additional taxes due from any Loan Party or any of its
Subsidiaries except for any such additional taxes which in the aggregate could
not reasonably be expected to have a Material Adverse Effect.
(u) Neither any Loan Party nor any of its Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended. Neither the making of any Advances,
nor the issuance of any Letters of Credit, nor the application of the proceeds
or repayment thereof by the Borrower, nor the consummation of the other
transactions contemplated hereby, will violate any provision of such Act or any
rule, regulation or order of the Securities and Exchange Commission thereunder.
(v) Each of the Borrower and the Company is and, after the
consummation of the transactions contemplated by the Stock Purchase Agreement
and receipt and application of each of the Advances and issuance of Letters of
Credit in accordance with the terms of this agreement will be, Solvent.
(w) Set forth on Schedule 3.01(c) hereto is a complete and
accurate list of all Surviving Debt, showing as of the Closing Date (and after
giving effect to the application of the proceeds of the Initial Extension of
Credit hereunder) the principal amount outstanding thereunder and the maturity
date thereof.
(x) Set forth on Schedule 4.01(x) hereto is a complete and
accurate list of all Investments in excess of $5,000,000 held by any Loan Party
or any of its Subsidiaries as of the Closing Date, showing the amount, obligor
or issuer and maturity, if any, thereof. The aggregate amount of Investments of
$5,000,000 or less held by the Loan Parties and their respective Subsidiaries
(without duplication) as of the Closing Date does not exceed $50,000,000.
ARTICLE V.
COVENANTS OF THE BORROWER
Section 5.01. Affirmative Covenants. So long as any Advance or other
Obligations owing by the Borrower hereunder shall remain unpaid, any Letter of
Credit shall be outstanding or any Lender Party shall have any Commitment
hereunder, the Borrower will:
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(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, with all applicable laws, rules, regulations and orders,
such compliance to include, without limitation, compliance with ERISA, if the
failure to so comply could reasonably be expected to have a Material Adverse
Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or levies
imposed upon it or upon its property and (ii) all lawful claims that, if unpaid,
could by law become a Lien upon its property; provided, however, that neither
the Borrower nor any of its Subsidiaries shall be required to pay or discharge
any such tax, assessment, charge or claim (A) that is being contested in good
faith and by proper proceedings and as to which appropriate reserves are being
maintained or (B) if the failure to pay or discharge any such tax, assessment,
charge or claim could not reasonably be expected to have a Material Adverse
Effect.
(c) Compliance with Environmental Laws. Comply, and cause each
of its Subsidiaries to comply, and use its best efforts to cause all lessees and
other Persons operating or occupying its properties to comply, in all material
respects, with all applicable Environmental Laws and Environmental Permits,
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect; and obtain and renew and cause each of its Subsidiaries
to obtain and renew all Environmental Permits necessary for its operations and
properties.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
in the same general areas in which the Borrower or such Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain, (i) its
corporate existence, and (ii) its rights (charter and statutory), permits,
licenses, approvals, privileges and franchises in each jurisdiction where
necessary or where failure to do so could reasonably be expected to have a
Material Adverse Effect; provided, however, that the Borrower and its
Subsidiaries may consummate any merger or consolidation permitted under Section
5.02(c), and any of the Borrower's Subsidiaries (other than the Company) may
wind up or liquidate as permitted under Section 5.02(c).
(f) Visitation Rights. At any reasonable time during normal
business hours and from time to time, on reasonable prior notice to the
Borrower, permit the Agent or any of the Lender Parties, or any agents or
representatives thereof, at such Lender Party's own expense so long as no Event
of Default has occurred and is continuing and at the Borrower's expense after
the occurrence and during the continuance of any Event of Default, to examine
and make copies of and abstracts from the records and books of account of, and
visit the properties of, the Borrower and any of its Subsidiaries, and to
discuss the affairs, finances and accounts of the Borrower and any of its
Subsidiaries with any of their officers or directors and in the company of a
Responsible Officer of the Borrower with their independent certified public
accountants.
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(g) Preparation of Environmental Reports. If the Agent or any
Lender Party shall reasonably be concerned about any environmental risks, issues
or liabilities affecting or that would reasonably be expected to affect the
Borrower or any of its Subsidiaries or any property of the Borrower or any of
its Subsidiaries, at the request of the Agent from time to time after the
occurrence and during the continuance of any Event of Default, provide to the
Lender Parties within 60 days after such request, at the expense of the
Borrower, an environmental site assessment report for any of its or its
Subsidiaries' properties described in such request and relating to such
concerns, prepared by an environmental consulting firm acceptable to the Agent,
indicating the presence or absence of Hazardous Materials and the estimated cost
of any compliance, removal or remedial action in connection with any Hazardous
Materials on such properties; without limiting the generality of the foregoing,
if the Agent determines at any time that a material risk exists that any such
report will not be provided within the time referred to above, the Agent may
retain an environmental consulting firm to prepare such report at the expense of
the Borrower, and the Borrower hereby grants and agrees to cause any of its
Subsidiaries that owns any property described in such request to grant at the
time of such request, to the Agent, the Lender Parties, such firm and any agents
or representatives thereof an irrevocable non-exclusive license, subject to the
rights of tenants, to enter onto their respective properties to undertake such
an assessment.
(h) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of the
Borrower and each such Subsidiary in accordance with generally accepted
accounting principles in effect from time to time.
(i) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its properties
that are useful in or necessary for the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
(j) Performance of Stock Purchase Agreement. Perform and
observe all of the material terms and provisions of the Stock Purchase Agreement
to be performed or observed by it.
(k) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under the Loan
Documents with any of their Affiliates on terms that are fair and reasonable and
no less favorable to the Borrower or such Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate, provided
that this Section 5.01(k) shall not apply to transactions between or among the
Borrower and its Subsidiaries in the ordinary course of the Borrower's or such
Subsidiary's business to the extent not otherwise prohibited under this
Agreement.
Section 5.02. Negative Covenants. So long as any Advance or other
Obligations owing by the Borrower hereunder shall remain unpaid, any Letter of
Credit shall be outstanding or any Lender Party shall have any Commitment
hereunder, the Borrower will not, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien on or with respect to any of its properties of any character (including,
without limitation, accounts) whether now owned or
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hereafter acquired, or sign or file or suffer to exist, or permit any of its
Subsidiaries to sign or file or suffer to exist, under the Uniform Commercial
Code of any jurisdiction, a financing statement that names the Borrower or any
of its Subsidiaries as debtor, or sign or suffer to exist, or permit any of its
Subsidiaries to sign or suffer to exist, any security agreement authorizing any
secured party thereunder to file such financing statement, or assign, or permit
any of its Subsidiaries to assign, any accounts or other right to receive income
(except by a Subsidiary of the Borrower in favor of the Borrower, or by the
Borrower in favor of any Guarantor Subsidiary, or by any Non-Guarantor
Subsidiary in favor of any other Non-Guarantor Subsidiary or any Guarantor
Subsidiary, or by any Guarantor Subsidiary in favor of any other Guarantor
Subsidiary), excluding, however, from the operation of the foregoing
restrictions the following:
(i) Liens, if any, created under the Loan Documents;
(ii) Liens existing as of the Closing Date and described on
Schedule 5.02(a) hereto;
(iii) purchase money Liens upon or in property (other than the
capital stock or other equity interests or Debt of any Subsidiary of
the Borrower) acquired or held by the Borrower or any of its
Subsidiaries to secure the purchase price of such property or to secure
Debt incurred solely for the purpose of financing the acquisition,
construction or improvement of any such property to be subject to such
Liens; provided, however, that no such Lien shall extend to or cover
any property other than the property being acquired, constructed or
improved and the proceeds thereof; and provided, further, that the
aggregate principal amount of the Debt secured by Liens permitted by
this clause (iii) is permitted under Section 5.02(b)(viii);
(iv) Liens arising in connection with Capitalized Leases;
provided, however, that no such Lien shall cover or extend to assets
other than the assets subject to such Capitalized Leases and the
proceeds thereof; and provided, further, that the aggregate principal
amount of the Debt secured by Liens permitted by this clause (iv) is
permitted under Section 5.02(b)(viii);
(v) Liens for taxes, assessments and other governmental
charges and Liens imposed by law, such as materialmen's, mechanics',
landlords', bailees', carriers', warehousemen's, workmen's and
repairmen's Liens, in each case arising in the ordinary course of
business and securing obligations which are not overdue for a period of
more than 60 days or, if so overdue, are being diligently contested in
good faith by appropriate proceedings and for which adequate reserves
have been established in accordance with GAAP;
(vi) pledges or deposits in the ordinary course of business to
secure non-delinquent obligations incurred in the ordinary course of
business (other than for borrowed money) or non-delinquent obligations
under workman's compensation or unemployment laws or similar
legislation or to secure the performance of public regulatory
obligations which are not delinquent, bid, surety and appeal bonds,
performance bonds or other obligations of a like nature (other than for
borrowed money), deposits with utility companies or insurance carriers
in the ordinary course of business, and bankers' liens or rights of
setoff with respect to bank accounts;
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(vii) Uniform Commercial Code financing statements filed for
precautionary purposes in connection with any true lease of property
which is not prohibited under this Agreement and under which the
Borrower or any of its Subsidiaries is lessee, provided that any such
financing statement does not cover any property other than the property
subject to such lease and the proceeds thereof; and Uniform Commercial
Code financing statements filed in connection with any Liens otherwise
permitted under this Agreement, provided that any such financing
statements do not cover any property other than the property subject to
such Liens and the proceeds thereof;
(viii) possessory rights of customers of the Borrower and its
Subsidiaries in Equipment for Resale arising under leases, bailment
arrangements and rental agreements entered into in the ordinary course
of business of the Borrower or such Subsidiary;
(ix) Liens on the property or assets of a Person which becomes
a Subsidiary of the Borrower or is merged into or consolidated with the
Borrower or any Subsidiary of the Borrower or on any assets acquired by
the Borrower or any of its Subsidiaries, in each case securing Debt
permitted by Section 5.02(b)(xvii), provided that (A) such Liens
existed at the time such Person became a Subsidiary of the Borrower or
was so merged or consolidated or such assets were acquired and were not
created in anticipation of such Person becoming a Subsidiary or such
merger, consolidation or acquisition, (B) any such Lien does not by its
terms cover any property or assets which were not covered immediately
prior thereto (other than the proceeds thereof), and (iii) any such
Lien does not by its terms secure any Debt other than Debt existing
immediately prior to the time such Person became a Subsidiary of the
Borrower or was so merged or consolidated or such assets were acquired;
(x) Liens upon specific items of Inventory and the proceeds
thereof securing the obligations of the Borrower or any of its
Subsidiaries in respect of bankers' acceptances issued or created for
the account of the Borrower or such Subsidiary to facilitate the
purchase, shipment or storage of such Inventory;
(xi) Liens arising in connection with trade letters of credit
(other than Trade Letters of Credit under the Letter of Credit
Facility) issued to secure the purchase of Inventory in the ordinary
course of business of the Borrower and its Subsidiaries, provided that
such Liens shall cover only the documents in respect of which such
letters of credit were issued, the goods covered thereby and the
insurance proceeds of such goods;
(xii) Liens arising out of judgments or awards (other than any
judgment described in Section 6.01(g) or (h) hereof and constituting an
Event of Default thereunder) in respect of which, within 30 days after
the imposition thereof, the Borrower or any of its Subsidiaries shall
in good faith be prosecuting an appeal or proceedings for review and
shall have secured a subsisting stay of execution pending such appeal
or proceedings for review, provided it shall have set aside on its
books adequate reserves, in accordance with GAAP, with respect to such
judgment or award;
(xiii) security and other deposits made by the Borrower or any
Subsidiary of the Borrower under the terms of any lease or sublease of
property entered into by the Borrower or any such Subsidiary in the
ordinary course of business;
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(xiv) deposits with the trustee under the Existing Senior
Indenture in connection with the redemption of the Existing Senior
Debentures permitted by Section 5.02(j);
(xv) any Liens arising as a result of a sale of assets by the
Borrower or any Subsidiary of the Borrower pursuant to Section
5.02(d)(v) or (vi), provided that such Liens shall cover only the
assets sold and the proceeds thereof;
(xvi) easements, rights-of-way and other non-monetary
encumbrances on title to real property that do not render title to the
property encumbered thereby unmarketable or materially adversely affect
the use of such property for its intended purpose;
(xvii) voluntary Liens i n favor of the PBGC arising in
connection with any Insufficiency resulting from the actions of, and
with respect to any Plan of the Borrower or any ERISA Affiliate,
securing Obligations not exceeding $25,000,000;
(xviii) the replacement, extension or renewal of any Lien
permitted under Section 5.02(a)(ii), (iii), (iv) and (ix) upon or in
the same property theretofore subject thereto and as security for the
same obligations or any refinancings or renewals thereof; provided that
such Liens do not extend to or cover other property (other than the
proceeds of such property) and the principal of the obligations secured
thereby is not increased by more than the sum of (A) accrued and unpaid
interest on the obligations being refinanced, replaced, extended,
renewed or refunded and secured by such Liens, and (B) the amount of
any normal and customary costs, fees and expenses payable by the
Borrower or any of its Subsidiaries in connection with such
refinancing, replacement, extension, renewal or refunding, so long as
such costs, fees and expenses are not paid to any Affiliate of the
Borrower or any of its Subsidiaries; and
(xix) Liens not otherwise permitted by clauses (i) through
(xviii) of this Section 5.02(a) securing Debt or other Obligations of
the Borrower or any of its Subsidiaries, provided that (A) no such
Liens shall cover or extend to any capital stock or other equity
interests or Debt of any Subsidiary of the Borrower, and (B) the
aggregate principal amount of such Debt and Obligations secured by
Liens permitted by this clause (xix) (after giving effect to the
repayment of any Debt which is being effected concurrently with the
incurrence of such Debt or other Obligations) shall not exceed
$25,000,000 in the aggregate at any one time outstanding for the
Borrower and its Subsidiaries, taken as a whole.
(b) Debt. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt
other than:
(i) Debt under the Loan Documents;
(ii) unsecured Debt with respect to Hedge Agreements entered
into in the ordinary course of business for the purpose of hedging
underlying interest rate or foreign currency exposures of the Borrower
and its Subsidiaries;
(iii) unsecured Debt of the Borrower to any Guarantor
Subsidiary or of any Guarantor Subsidiary to the Borrower or any other
Guarantor Subsidiary;
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(iv) unsecured Debt of the Borrower to BC Insurance Company,
Inc.; and unsecured Debt of the Borrower to its Non-Guarantor
Subsidiaries (other than BC Insurance Company, Inc.) in an aggregate
principal amount not to exceed $25,000,000 outstanding at any time;
(v) unsecured Debt of any Non-Guarantor Subsidiary to any
other Non-Guarantor Subsidiary;
(vi) unsecured Debt of Non-Guarantor Subsidiaries to the
Borrower and Guarantor Subsidiaries in an aggregate principal amount
for all such Non-Guarantor Subsidiaries not to exceed $10,000,000
outstanding at any time;
(vii) unsecured Debt arising by reason of endorsement of
negotiable instruments for deposits or collection or similar
transactions in the ordinary course of business;
(viii) Debt secured by Liens permitted by Section 5.02(a)(iii)
and (iv) in an aggregate principal amount not to exceed $10,000,000
outstanding at any time;
(ix) unsecured Debt incurred in the ordinary course of
business for the deferred purchase price of property or services (other
than trade payables), maturing within one year from the date created,
in an aggregate principal amount for the Borrower and its Subsidiaries
not to exceed $10,000,000 outstanding at any time;
(x) the Surviving Debt described in Schedule 3.01(c) and any
refinancings or renewals of any such Surviving Debt, provided that the
aggregate principal amount thereof is not increased by more than the
sum of (A) accrued and unpaid interest on the obligations being
refinanced or renewed, and (B) the amount of any normal and customary
costs, fees and expenses payable by the Borrower or any of its
Subsidiaries in connection with such refinancing or renewal, so long as
such costs, fees and expenses are not paid to any Affiliate of the
Borrower or any of its Subsidiaries;
(xi) unsecured Debt evidenced by the Existing Senior
Debentures in an aggregate principal amount not to exceed $100,000,000,
and any unsecured guarantees of any Senior Notes (or any other Debt of
the Borrower permitted under clause (xvi) below) by the Guarantor
Subsidiaries;
(xii) additional unsecured Debt of any Non-Guarantor
Subsidiary to a Person other than the Borrower or another Subsidiary of
the Borrower in an aggregate principal amount for each such Subsidiary
not to exceed $30,000,000 outstanding at any time, provided that the
aggregate principal amount of Debt permitted by this clause (xii) shall
not exceed $75,000,000 at any one time outstanding for all
Non-Guarantor Subsidiaries taken as a whole, and provided further, that
for purposes of this clause (xii), the net amount received by Foreign
Subsidiaries from time to time from sales of assets pursuant Section
5.02(d)(vi) shall be deemed to be outstanding Debt of Non-Guarantor
Subsidiaries;
(xiii) unsecured guarantees by the Borrower of (A) obligations
of any Subsidiary of the Borrower permitted by clause (xv) below, (B)
any Debt permitted by clause (xii) above, (C) the obligations of any
Subsidiary of the Borrower in respect of any Surviving Debt and any
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refinancings or renewals thereof permitted by clause (x) above, and (D)
loans or advances permitted under Section 5.02(e)(vi); and unsecured
guarantees by the Company of obligations of its Subsidiaries described
in clauses (A) and (C) above or obligations described in clause (D)
above, in each case to the extent such guarantees were issued prior to
the Closing Date;
(xiv) unsecured Debt of the Borrower under the Mellon Facility
in an aggregate principal amount not to exceed $30,000,000 outstanding
at any time;
(xv) obligations of the Borrower or any Subsidiary of the
Borrower in respect of letters of credit, bank guarantees, and
performance and bid bonds to secure obligations described in Section
5.02(a)(vi) or in respect of bankers' acceptances described in Section
5.02(a)(x) or trade letters of credit described in Section 5.02(a)(xi);
(xvi) unsecured Debt (including Qualified Preferred Stock and
New Senior Notes) issued or incurred by the Borrower to pay or prepay
any Advances outstanding under this Agreement (or, in the case of the
New Senior Notes, to redeem Existing Senior Debentures in an aggregate
amount not to exceed the Tender Offer Reserve), provided that such Debt
does not require any payment or prepayment of principal prior to the
Termination Date;
(xvii) Debt of a Person which becomes a Subsidiary of the
Borrower or is merged into or consolidated with the Borrower or any
Subsidiary of the Borrower pursuant to a Permitted Acquisition, or Debt
secured by an asset acquired by the Borrower or any Subsidiary of the
Borrower in a Permitted Acquisition, provided that (A) such Debt
existed at the time such Person became a Subsidiary of the Borrower or
was so merged or consolidated or such Permitted Acquisition occurred
and was not created in anticipation of the acquisition by the Borrower
or any Subsidiary of the Borrower of such Subsidiary or such merger or
consolidation or such Permitted Acquisition and (B) immediately after
giving effect to the acquisition of such Person by the Borrower or any
of its Subsidiaries or such merger or consolidation or Permitted
Acquisition no Default or Event of Default shall have occurred;
(xviii) any Debt arising as a result of a sale of assets by
the Borrower or any Subsidiary of the Borrower pursuant to Section
5.02(d)(v) or (vi); and
(xix) additional Debt of the Borrower and its Subsidiaries in
an aggregate principal amount not to exceed $50,000,000 outstanding at
any time, provided, however, that (A) the aggregate principal amount of
such Debt of any Subsidiary of the Borrower shall not exceed
$30,000,000 outstanding at any time, and (B) the aggregate principal
amount of such Debt that may be secured Debt shall not exceed
$25,000,000 outstanding at any time.
(c) Mergers, Etc. Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Subsidiaries to do so,
except that (i) any Non-Guarantor Subsidiary may merge into or consolidate with
the Borrower or any other Subsidiary of the Borrower, any Guarantor Subsidiary
may merge into or consolidate with the Borrower or any other Guarantor
Subsidiary, and any Person may merge into or consolidate with the Borrower or
any Subsidiary of the Borrower as part of any Permitted Acquisition, provided
that (A) in the case of any such merger or consolidation to which the Borrower
is a party, the Borrower shall be the surviving corporation, (B) in the case of
any such merger or consolidation to which the Company
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is a party, the Company shall be the surviving corporation (unless the Borrower
is the surviving corporation), (C) in the case of any such merger or
consolidation involving one or more Guarantor Subsidiaries and one or more
Non-Guarantor Subsidiaries or other Persons, the surviving corporation shall be
a Guarantor Subsidiary (or, if the Borrower is a party to such merger or
consolidation, the Borrower), (D) the Person formed by or surviving any such
merger or consolidation (if other than the Borrower) shall be a direct or
indirect Wholly-Owned Subsidiary of the Borrower, (E) immediately after giving
effect thereto, no event shall occur and be continuing that constitutes a
Default, and (F) in the case of any such merger or consolidation of a
Non-Guarantor Subsidiary into the Borrower or the Company, the amount of such
Non-Guarantor Subsidiary's total liabilities (including, without limitation, the
probable liability with respect to contingent liabilities) shall not exceed the
fair market value of such Non-Guarantor Subsidiary's total assets by an amount
in excess of $10,000,000 at the time of such merger or consolidation, and (ii)
any Person may merge into or consolidate with a Subsidiary of the Borrower if
such merger or consolidation is entered into for the purpose of effecting a
disposition of the capital stock of such Subsidiary permitted under Section
5.02(d). For purposes of this Section 5.02(c), any voluntary liquidation or
winding up of any Non-Guarantor Subsidiary which is undertaken as part of a
corporate reorganization, and the assets of which are to be distributed in
connection therewith to the Borrower or any other Subsidiary of the Borrower,
shall be deemed to be a merger of such Non-Guarantor Subsidiary into the
Borrower or such other Subsidiary, as the case may be, for purposes of this
Section 5.02(c), and shall be subject to the provisions set forth above.
(d) Sales, Etc., of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer or
otherwise dispose of (whether in one transaction or in a series of transactions)
any of its assets (whether now owned or hereafter acquired) or grant any option
or other right to any other Person to purchase, lease or otherwise acquire any
of its assets, or permit any of its Subsidiaries to do so, or liquidate or
permit any of its Subsidiaries to liquidate, in each case except:
(i) sales or leases of Inventory in the ordinary course of its
business;
(ii) in a transaction authorized by subsection (c) of this
Section;
(iii) the sale of any asset by the Borrower or any Subsidiary
of the Borrower (other than the capital stock of the Company) so long
as (A) the purchase price paid to the Borrower or such Subsidiary for
such asset shall be no less than the fair market value of such asset at
the time of such sale, (B) the purchase price for such asset shall be
paid to the Borrower or such Subsidiary in cash at the time of sale or
a combination of cash and other property (including, without
limitation, a promissory note or other deferred payment obligation),
and (C) the maximum amount of the purchase price paid for all such
assets during any Fiscal Year, other than the amount of cash paid at
the time of sale, shall not exceed $10,000,000;
(iv) so long as no Default shall occur and be continuing, the
grant of any option or other right to purchase any asset in a
transaction which would be permitted under the provisions of clause
(iii) above;
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(v) the sale or securitization by the Borrower or any
Guarantor Subsidiary of customer leases and other receivables for cash
in an amount not less than the fair market value thereof (after taking
into account customary reserves for losses, yield protection, fees and
similar matters);
(vi) the sale or discount by any Foreign Subsidiary of
customer leases and other receivables in the ordinary course of
business for cash in an amount not less than the fair market value
thereof;
(vii) the sale or other disposition of assets that, in the
Borrower's judgment, are obsolete or worn out;
(viii) the sale or contribution of assets by any Non-Guarantor
Subsidiary to any joint ventures or limited partnerships permitted
under Section 5.02(k);
(ix) the disposition or transfer by the Borrower or any of its
Subsidiaries (the "transferor") of any capital stock of a Subsidiary of
the transferor held by the transferor to a Wholly-Owned Subsidiary of
the transferor (the "transferee") "controlled" by the transferor in
actual or deemed exchange for capital stock of the transferee in a
transaction pursuant to Section 351 of the Internal Revenue Code of
1986, as amended; and
(x) the disposition or transfer of assets (other than capital
stock of any Subsidiary of the Borrower) from (i) any Subsidiary of the
Borrower to the Borrower, (ii) any Guarantor Subsidiary to another
Guarantor Subsidiary, or (iii) any Non-Guarantor Subsidiary to any
other Subsidiary of the Borrower, and the transfer of any capital stock
of any Subsidiary of the Borrower to the Borrower or any of its
Subsidiaries, other than a transfer of any capital stock of any
Guarantor Subsidiary to a Non-Guarantor Subsidiary (it being understood
that, in effecting the transfers permitted under this clause (x),
dispositions or transfers may be structured in a series of related
transactions, and such transactions shall be permitted so long as the
transferor and the final transferee would be permitted to effect such
disposition or transfer hereunder).
(e) Investments in Other Persons and New Acquisitions. Make or
hold, or permit any of its Subsidiaries to make or hold, any Investment in any
Person, or engage in any New Acquisition, other than the Acquisition and:
(i) Investments made by the Borrower and its Subsidiaries as
of the Closing Date and any renewals thereof;
(ii) additional Investments made by the Borrower in Guarantor
Subsidiaries after the Closing Date consisting of (A) guarantees
permitted under Section 5.02(b)(xiii), and (B) other Investments in an
aggregate amount not to exceed $400,000,000 outstanding at any time;
(iii) additional Investments made by the Borrower and its
Guarantor Subsidiaries in Non-Guarantor Subsidiaries after the Closing
Date consisting of (A) guarantees permitted under Section
5.02(b)(xiii), and (B) other Investments in an aggregate amount not to
exceed $35,000,000 outstanding at any time;
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(iv) Investments made by Guarantor Subsidiaries in other
Guarantor Subsidiaries or in the Borrower after the Closing Date;
(v) Investments made by Non-Guarantor Subsidiaries in other
Non-Guarantor Subsidiaries and in the Borrower or Guarantor
Subsidiaries permitted under Section 5.02(b);
(vi) loans and advances (and guarantees of loans and advances)
to employees in the ordinary course of the business of the Borrower and
its Subsidiaries in an aggregate principal amount not to exceed
$10,000,000 outstanding at any time;
(vii) Investments by the Borrower and its Subsidiaries in
Hedge Agreements permitted under Section 5.02(b)(ii);
(viii) Investments by the Borrower or any Subsidiary permitted
under Section 5.02(c) or (f), and Investments from or by the Borrower
or any Subsidiary permitted under Section 5.02(d)(viii), (ix) and (x);
(ix) Investments in cash and Cash Equivalents in an aggregate
amount not to exceed $50,000,000 outstanding at the end of any fiscal
quarter of the Borrower;
(x) additional Investments consisting of (A) debt or equity
securities not constituting Cash Equivalents, or (B) loans and advances
to other Persons in connection with and related to the business of the
Borrower and its Subsidiaries, in an aggregate amount under this clause
(x) not to exceed $25,000,000 outstanding at any time;
(xi) Investments resulting from the issuance of letters of
credit (including Letters of Credit) or bankers' acceptances for the
account of the Borrower or any of its Subsidiaries to the extent
otherwise permitted under this Agreement;
(xii) additional Investments received in settlement of debt
created in the ordinary course of business and owing to the Borrower or
any of its Subsidiaries;
(xiii) New Acquisitions by the Borrower and its Subsidiaries,
provided that (A) in the case of a New Acquisition as a result of which
any Person becomes a Subsidiary of the Borrower, the principal business
of such Person is the same as or related to the business of the
Borrower and its Subsidiaries, and such transaction is approved by the
board of directors or other governing body of such Person and, to the
extent required by the charter documents of such Person or applicable
law, the shareholders or other holders of ownership or other equity
interests in such Person, (B) the aggregate consideration paid, payable
or incurred by the Borrower and its Subsidiaries in connection with
such New Acquisitions (whether consisting of cash, promissory notes or
other deferred payment obligations or otherwise, but excluding any
capital stock of the Borrower and customary indemnities) plus the
amount of all Debt assumed in connection with such New Acquisitions
(including, without limitation, Debt of a Person at the time it becomes
a Subsidiary of the Borrower in connection with any New Acquisition)
does not exceed $50,000,000 during any Fiscal Year, and (C) no Event of
Default shall have occurred and be continuing at the time of, or shall
occur as a result of, such New Acquisition; and
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(xiv) additional Investments which, together with payments
made under Section 5.02(f)(i) and Capital Expenditures made under
clause (ii) of Section 5.02(m), do not exceed $25,000,000 outstanding
at any time; provided that immediately before and after giving effect
thereto no Default or Event of Default shall have occurred and be
continuing or would result therefrom.
(f) Dividends, Etc. Declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its capital stock
or any warrants, rights or options to acquire such capital stock, now or
hereafter outstanding, return any capital to its stockholders as such, make any
distribution of assets, capital stock, warrants, rights, options, obligations or
securities to its stockholders as such or issue or sell any capital stock or any
warrants, rights or options to acquire such capital stock, or permit any of its
Subsidiaries to do any of the foregoing or permit any of its Subsidiaries to
purchase, redeem, retire, defease or otherwise acquire for value any capital
stock of the Borrower or any warrants, rights or options to acquire such capital
stock or to issue or sell any capital stock or any warrants, rights or options
to acquire such capital stock, except that (i) the Borrower may, so long as no
Default or Event of Default has occurred and is continuing or would result
therefrom (determined at the time of declaration of any dividend or offer to
redeem), pay cash dividends on, or redeem or purchase shares of its common stock
or Qualified Preferred Stock or warrants, options or rights to acquire such
capital stock for an aggregate amount which, together with outstanding
Investments made under Section 5.02(e)(xiv) and Capital Expenditures made under
clause (ii) of Section 5.02(m), does not exceed $25,000,000, (ii) the Borrower
may declare and pay dividends and distributions payable in common stock of the
Borrower, (iii) so long as no Event of Default has occurred and is continuing or
would result therefrom (determined at the date such dividends are declared), the
Borrower may pay cash dividends on its common stock and Qualified Preferred
Stock in respect of any Fiscal Year so long as (A) any such dividends are paid
during such Fiscal Year or the immediately succeeding Fiscal Year, and (B) the
amount of such dividends payable in respect of such Fiscal Year shall not exceed
40% of Consolidated net income (before special charges) of the Borrower and its
Subsidiaries for such Fiscal Year, (iv) any Subsidiary of the Borrower may issue
capital stock to the Borrower or any Guarantor Subsidiary, (v) the Borrower may
issue its common stock or Qualified Preferred Stock for cash, provided that the
amount of the Net Cash Proceeds thereof are applied to prepay, to the extent
required hereunder, Advances pursuant to, and in the amount and order of
priority set forth in, Section 2.06(b), as specified therein, (vi) the Borrower
may issue its common stock or Qualified Preferred Stock as a part of the
consideration for any New Acquisition, (vii) any Subsidiary of the Borrower may
declare and pay cash dividends or other distributions, redeem or repay shares or
share premiums, make capital reductions or engage in similar transactions under
applicable laws to or with respect to shares owned by the Borrower or any
Wholly-Owned Subsidiary of the Borrower of which it is a Subsidiary, (viii) the
Borrower may issue any stock or stock options or warrants or derivative rights
in respect thereof (including, without limitation, stock options, restricted
stock, stock appreciation rights and phantom stock) pursuant to any employee
benefit plan or program or compensation plan for non-employee directors,
including, without limitation, employee stock purchase plans, qualified or
non-qualified plans of deferred compensation, 401(K) plans, or similar programs
for employees and non-employee directors, (ix) the Borrower and its Subsidiaries
may enter into any merger or consolidation permitted under Section 5.02(c) and
may sell or otherwise dispose of assets to the extent permitted by Section
5.02(d), (x) any Foreign Subsidiary may issue qualifying shares of its capital
stock to directors or other Persons as required by applicable law, (xi) the
Borrower may
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make distributions of rights to its stockholders pursuant to its
Rights Agreement dated as of March 28, 1989, as amended, or similar agreement,
and (xii) any Non-Guarantor Subsidiary may issue capital stock to any other
Non-Guarantor Subsidiary.
(g) Change in Nature of Business. Permit the material business
activities, taken as a whole, of the Borrower and its Subsidiaries to be altered
in any substantial and material way.
(h) Charter Amendments. Amend, or permit any of its
Subsidiaries to amend, its certificate or articles of incorporation or bylaws if
such amendment could reasonably be expected to have a Material Adverse Effect.
(i) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any significant change in (i) accounting
policies or reporting practices, except as required by generally accepted
accounting principles or any applicable law, rule or regulation or (ii) fiscal
year, except that any Subsidiary of the Borrower may change its fiscal year to
the Borrower's Fiscal Year, any Foreign Subsidiary may change its fiscal year to
the fiscal year of any of the Borrower's Subsidiaries and the Company and its
Subsidiaries may change its policies and practices to those of the Borrower and
its Subsidiaries.
(j) Prepayments, Etc., of Certain Funded Debt. (i) Prepay,
redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof in any manner any Senior Notes or any Debt incurred under Section
5.02(b)(xvi), provided that this Section 5.02(j)(i) shall not apply to the
Existing Senior Debentures, to the extent redeemed on or before the Tender Offer
Termination Date for an aggregate amount not greater than the amount of the
Tender Offer Reserve plus accrued interest and expenses in connection therewith;
or (ii) amend or otherwise modify the Existing Senior Indenture, the Existing
Senior Debentures, the New Senior Notes Indenture or the New Senior Notes, or
the terms of any other Debt incurred under Section 5.02(b)(xvi) to prepay all or
any part of the Term Loan Balloon Installment; provided that this Section
5.02(j)(ii) shall not prohibit (A) modifications to the Existing Senior
Indenture or the Existing Senior Debentures prior to the Tender Offer
Termination Date to increase the price at which holders may elect to have the
Borrower repurchase the Existing Senior Debentures in 2006 and to provide
guarantees by Guarantor Subsidiaries on the same terms as the guarantees set
forth in the New Senior Notes Indenture; (B) amendments or supplements to
provide a guaranty by any Guarantor Subsidiary, or to release or terminate any
guaranty; or (C) the issuance of exchange notes pursuant to the terms of the New
Senior Notes Indenture, and supplements to the New Senior Notes Indenture
required in connection therewith.
(k) Partnerships, Etc. Become a general partner in any general
or limited partnership or joint venture, or permit any of its Subsidiaries to do
so, except that any Non-Guarantor Subsidiary substantially all the assets of
which consist of its interest in such partnership or joint venture may become a
general partner therein.
(l) Speculative Transactions. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options or
futures contracts or any similar speculative transactions except for Hedge
Agreements permitted under Section 5.02(b)(ii).
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(m) Capital Expenditures. Make, or permit any of its
Subsidiaries to make, any Capital Expenditures, except (i) Capital Expenditures
in any Fiscal Year not to exceed on a Consolidated basis (A) $65,000,000 in
Fiscal Year 1997 or $85,000,000 in any Fiscal Year thereafter, plus (B) an
amount equal to the amount by which the aggregate amount permitted under clause
(A) above in all preceding Fiscal Years (commencing with Fiscal Year 1997)
exceeds the aggregate amount of Capital Expenditures in all such preceding
Fiscal Years, and (ii) additional Capital Expenditures in an aggregate amount
which, together with Investments outstanding under Section 5.02(e)(xiv) and
payments made under Section 5.02(f)(i), does not exceed $25,000,000.
Section 5.03. Reporting Requirements. So long as any Advance or other
Obligations owing by the Borrower hereunder shall remain unpaid, any Letter of
Credit shall be outstanding or any Lender Party shall have any Commitment
hereunder, the Borrower will furnish to the Agent for distribution to the Lender
Parties:
(a) Default Notice. As soon as possible and in any event
within two Business Days after a Responsible Officer of the Borrower obtains
knowledge of the occurrence of a Default or any event, development or occurrence
reasonably likely to have a Material Adverse Effect continuing on the date of
such statement, a statement of a Responsible Officer of the Borrower setting
forth details of such Default and the action that the Borrower has taken and
proposes to take with respect thereto.
(b) Quarterly Financials. As soon as available and in any
event on or before the later of 60 days after the end of each of the first three
quarters of each Fiscal Year or two Business Days after request by the Agent, a
Consolidated balance sheet of the Borrower and its Subsidiaries as of the end of
such quarter and Consolidated statements of income and of cash flows of the
Borrower and its Subsidiaries for the period commencing at the end of the
previous fiscal quarter and ending with the end of such fiscal quarter and for
the period commencing at the end of the previous Fiscal Year and ending with the
end of such quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the preceding Fiscal
Year, all in reasonable detail and duly certified (subject to year-end audit
adjustments) by the Chief Financial Officer, Treasurer or Controller of the
Borrower as having been prepared in accordance with GAAP, together with (i) a
certificate of said officer stating on behalf of the Borrower that to the best
of his or her knowledge after due inquiry, no Default has occurred and is
continuing or, if a Default has occurred and is continuing, a statement as to
the nature thereof and the action that the Borrower has taken and proposes to
take with respect thereto and (ii) a schedule in form reasonably satisfactory to
the Agent of the computations used by the Borrower in determining compliance
with the covenants contained in Section 5.02(m) and Section 5.04(a) through (c).
(c) Annual Financials. As soon as available and in any event
on or before the later of 100 days after the end of each Fiscal Year or two
Business Days after request by the Agent, a copy of the annual audit report for
such year for the Borrower and its Subsidiaries, including therein a
Consolidated balance sheet of the Borrower and its Subsidiaries as of the end of
such Fiscal Year and Consolidated statements of income and of cash flows of the
Borrower and its Subsidiaries for such Fiscal Year, in each case accompanied by
an opinion of KPMG Peat Marwick LLP or other independent public accountants of
recognized standing acceptable to the
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Required Lenders (without qualification as to going concern or scope of audit),
together with (i) a certificate of such accounting firm to the Lender Parties
stating that in the course of the regular audit of the business of the Borrower
and its Subsidiaries, which audit was conducted by such accounting firm in
accordance with generally accepted auditing standards, such accounting firm has
obtained no knowledge that a Default has occurred and is continuing, or if, in
the opinion of such accounting firm, a Default has occurred and is continuing, a
statement as to the nature thereof, (ii) a schedule in form reasonably
satisfactory to the Agent of the computations used by such accountants in
determining, as of the end of such Fiscal Year, compliance with the covenants
contained in Section 5.02(m) and Section 5.04(a) through (c), and (iii) a
certificate of the Chief Financial Officer, Treasurer or Controller of the
Borrower stating on behalf of the Borrower that to the best of his or her
knowledge after due inquiry, no Default has occurred and is continuing or, if a
default has occurred and is continuing, a statement as to the nature thereof and
the action that the Borrower has taken and proposes to take with respect
thereto.
(d) Annual Forecasts. As soon as available and in any event on
or before the later of 15 days after the end of each Fiscal Year or two Business
Days after request by the Agent, forecasts prepared by management of the
Borrower, in form reasonably satisfactory to the Agent, of balance sheets,
income statements and cash flow statements on a quarterly basis for the Fiscal
Year following such Fiscal Year then ended and on an annual basis for each
Fiscal Year thereafter until the Termination Date.
(e) ERISA Events and ERISA Reports. As soon as possible and in
any event (i) within 30 days after the Borrower or any of its Subsidiaries knows
or has reason to know that any Termination Event described in clause (a) of the
definition of Termination Event with respect to any Plan has occurred and (ii)
within 10 days after the Borrower or any of its Subsidiaries knows or has reason
to know that any other Termination Event with respect to any Plan has occurred,
a statement of the Chief Financial Officer, Treasurer or Controller of the
Borrower describing such Termination Event and the action, if any, which the
Borrower or any ERISA Affiliate proposes to take with respect thereto and (iii)
on the date any records, documents or other information must be furnished to the
PBGC with respect to any Plan pursuant to Section 4010 of ERISA, a copy of such
records, documents and information.
(f) Plan Termination. Promptly and in any event within two (2)
Business Days after receipt thereof by the Borrower or any of its Subsidiaries
or after the Borrower or any of its Subsidiaries knows or has reason to know of
receipt thereof by any other ERISA Affiliate, copies of each notice received by
the Borrower or any ERISA Affiliate from the PBGC stating its intention to
terminate any Plan or to have a trustee appointed to administer any Plan.
(g) Plan Annual Reports. If requested by any Lender through
the Agent, promptly and in any event within thirty (30) days after the filing
thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) filed by the Borrower or
any Subsidiary of the Borrower with respect to any Plan, and as soon as possible
after a request by any Lender, copies of each Schedule B (Actuarial Information)
to the annual report (Form 5500 Series) filed by any other ERISA Affiliate with
respect to any Plan.
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(h) Multiemployer Plan Notices. Promptly and in any event
within five (5) Business Days after receipt thereof by the Borrower or any
Subsidiary of the Borrower or after the Borrower or any Subsidiary of the
Borrower knows or has reason to know of receipt thereof by any other ERISA
Affiliate, from the sponsor of a Multiemployer Plan, a copy of each notice
received by the Borrower or any ERISA Affiliate concerning (i) the imposition of
Withdrawal Liability by a Multiemployer Plan, (ii) the determination that a
Multiemployer Plan is, or is expected to be, in reorganization within the
meaning of Title IV of ERISA, (iii) the termination of a Multiemployer Plan
within the meaning of Title IV of ERISA, or (iv) the amount of liability
incurred, or expected to be incurred, by the Borrower or any ERISA Affiliate in
connection with any event described in clause (i), (ii) or (iii) above.
(i) Litigation. Promptly after a Responsible Officer of the
Borrower obtains knowledge of the commencement thereof, notice of all actions,
suits, investigations, litigation and proceedings of the type described in
Section 4.01(i) hereof before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, affecting any
Loan Party or any of its Subsidiaries.
(j) Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and reports that
the Borrower sends to its stockholders, and copies of all regular, periodic and
special reports, and all registration statements, that any Loan Party or any of
its Subsidiaries files with the Securities and Exchange Commission or any
governmental authority that may be substituted therefor, or with any national
securities exchange.
(k) Reports and Notices Given by the Loan Parties. Promptly
after the furnishing thereof, (i) copies of any material written statement or
report furnished to any holder of the securities of any Loan Party pursuant to
the terms of any material indenture (including, without limitation, the Existing
Senior Indenture and the New Senior Notes Indenture), loan or credit or similar
agreement, and (ii) copies of any material notice, demand, statement or other
written communication given by any Loan Party under or pursuant to the terms of
the Stock Purchase Agreement, in each case in which such statement, report,
notice or other communication is not otherwise required to be furnished to the
Agent for distribution to the Lender Parties pursuant to any other clause of
this Section 5.03.
(l) Notices and Other Documents Received by the Loan Parties.
Promptly upon receipt thereof, copies of all material written notices, requests
and other documents received by the Borrower or the Company or any of its
Subsidiaries under or pursuant to the Stock Purchase Agreement or by any Loan
Party or any of its Subsidiaries under or pursuant to any material indenture
(including, without limitation, the Existing Senior Indenture and the New Senior
Notes Indenture), loan or credit or similar agreement and, from time to time
upon request by the Agent, such information and reports regarding the Stock
Purchase Agreement as the Agent may reasonably request.
(m) Environmental Conditions. Promptly after a Responsible
Officer of any Loan Party becomes aware of the assertion or occurrence thereof,
notice of any Environmental Action against or of any noncompliance by any Loan
Party or any of its Subsidiaries with any Environmental Law or Environmental
Permit in each case that could reasonably be expected to have a Material Adverse
Effect.
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(n) Other Information. Such other information respecting the
business, financial condition, operations, performance or properties of any Loan
Party or any of its Subsidiaries as any Lender Party (through the Agent) may
from time to time reasonably request.
Section 5.04. Financial Covenants. So long as any Advance or other
Obligations owing by the Borrower hereunder shall remain unpaid, any Letter of
Credit shall be outstanding or any Lender Party shall have any Commitment
hereunder, the Borrower will:
(a) Net Worth. Maintain at the end of each fiscal quarter of
the Borrower, until (and including) the first such fiscal quarter as of the end
of which the Debt to Earnings Ratio is not greater than 3.25 to 1.00 (such first
fiscal quarter being referred to herein as the "First Qualified Quarter") an
excess of Consolidated total assets over Consolidated total liabilities, in each
case of the Borrower and its Subsidiaries, of not less than the amount set forth
below for such fiscal quarter minus the amount of the R&D Adjustment (or, if R&D
Adjustment is a negative number, plus the amount of the R&D Adjustment):
<TABLE>
<CAPTION>
FISCAL QUARTER ENDING AMOUNT
- --------------------- ------
<S> <C>
December 31, 1997 $ 85,000,000
March 31, 1998 $ 85,000,000
June 30, 1998 $100,000,000
September 30, 1998 $115,000,000
December 31, 1998 $150,000,000
March 31, 1999 $165,000,000
June 30, 1999 $190,000,000
September 30, 1999 $215,000,000
December 31, 1999 $250,000,000;
</TABLE>
and maintain at the end of each fiscal quarter following the First Qualified
Quarter, an excess of Consolidated total assets over Consolidated total
liabilities, in each case of the Borrower and its Subsidiaries, in an amount
equal to the sum of (i) 85% of the amount by which such Consolidated total
assets exceeds such Consolidated total liabilities at the end of the First
Qualified Quarter plus (ii) 50% of Consolidated net income of the Borrower and
its Subsidiaries for each fiscal quarter thereafter (without deduction for net
losses incurred during any fiscal quarter).
(b) Debt to Earnings Ratio. Maintain at the end of each fiscal
quarter of the Borrower a Debt to Earnings Ratio of not more than the amount set
forth below for such fiscal quarter:
<TABLE>
<CAPTION>
FISCAL QUARTER ENDING RATIO
- --------------------- -----
<S> <C>
December 31, 1997 5.25:1.00
March 31, 1998 5.25:1.00
June 30, 1998 5.00:1.00
September 30, 1998 5.00:1.00
December 31, 1998 4.25:1.00
March 31, 1999 4.00:1.00
June 30, 1999 3.75:1.00
September 30, 1999 3.50:1.00
December 31, 1999 3.25:1.00
and each fiscal quarter
thereafter
</TABLE>
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(c) Interest Coverage Ratio. Maintain for each period of four
consecutive fiscal quarters of the Borrower ending with any fiscal quarter set
forth below a ratio of Consolidated EBITDA to Consolidated Interest Expense, in
each case of the Borrower and its Subsidiaries, of not less than the amount set
forth below opposite such fiscal quarter:
<TABLE>
<CAPTION>
FOUR FISCAL QUARTERS ENDING RATIO
- --------------------------- -----
<S> <C>
December 31, 1997 2.30:1.00
March 31, 1998 2.30:1.00
June 30, 1998 2.40:1.00
September 30, 1998 2.50:1.00
December 31, 1998 3.00:1.00
March 31, 1999 3.25:1.00
June 30, 1999 and each fiscal 3.50:1.00
quarter thereafter
</TABLE>
ARTICLE VI.
EVENTS OF DEFAULT
Section 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any
Advance when the same shall become due and payable or (ii) the Borrower shall
fail to pay any interest on any Advance, or any Loan Party shall fail to make
any other payment under any Loan Document, in each case under this clause (ii)
within five Business Days after the same becomes due and payable; or
(b) any representation or warranty made by the Borrower or any
of its Subsidiaries (or any of their officers) under or in connection with any
Loan Document shall prove to have been incorrect in any material respect when
made; or
(c) the Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 2.16, 5.01(e), (g) or (k), 5.02, 5.03
or 5.04; or
(d) any Loan Party shall fail to perform any other term,
covenant or agreement contained in any Loan Document on its part to be performed
or observed if such failure shall remain unremedied for 10 days after written
notice thereof shall have been given to the Borrower by the Agent or any Lender
Party; or
(e) any Loan Party or any of its Subsidiaries shall fail to
pay any principal of, premium or interest on or any other amount payable in
respect of any Debt that is outstanding in a
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principal or notional amount of at least $10,000,000 either individually or in
the aggregate (but excluding Debt outstanding hereunder) of such Loan Party or
such Subsidiary (as the case may be), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace period,
if any, specified in the agreement or instrument relating to such Debt; or any
other event shall occur or condition shall exist under any agreement or
instrument relating to any such Debt and shall continue after the applicable
grace period, if any, specified in such agreement or instrument, if the effect
of such event or condition is to accelerate, or to permit the acceleration of,
the maturity of such Debt or otherwise to cause, or to permit the holder thereof
to cause, such Debt to mature; or any such Debt (other than Debt being repaid on
the Closing Date) shall be declared to be due and payable or required to be
prepaid or redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem, purchase or
defease such Debt shall be required to be made, in each case prior to the stated
maturity thereof (except for any secured Debt that becomes due by reason of the
sale or other disposition of the asset securing such Debt, provided that such
sale or other disposition is permitted hereunder and such Debt is repaid at the
time of such sale or other disposition); or
(f) any Loan Party or any of its Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or against any
Loan Party or any of its Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors
(except for any such liquidation or winding up of any Subsidiary of the Borrower
(other than the Company) permitted under Section 5.02(d)), or seeking the entry
of an order for relief or the appointment of a receiver, trustee, or other
similar official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against it (but not instituted by it)
that is being diligently contested by it in good faith, either such proceeding
shall remain undismissed or unstayed for a period of 45 days or any of the
actions sought in such proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or any substantial part of its
property) shall occur; or any Loan Party or any of its Subsidiaries shall take
any corporate action to authorize any of the actions set forth above in this
subsection (f); or
(g) any judgment or order for the payment of money (except for
any such judgment or order with respect to which the maximum liability of the
Borrower that is in excess of the amount covered by insurance does not exceed
$10,000,000) shall be rendered against any Loan Party or any of its Subsidiaries
and either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be any period of 30 consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(h) any non-monetary judgment or order shall be rendered
against any Loan Party or any of its Subsidiaries that is reasonably likely to
have a Material Adverse Effect, and there shall be any period of 10 consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
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(i) any provision of any Loan Document shall for any reason
cease to be valid and binding on or enforceable against any Loan Party party to
such Loan Document which could reasonably be expected to have a Material Adverse
Effect, or any Loan Party shall state in writing that any provision of any such
Loan Document is not binding on or enforceable against any Loan Party which is a
party thereto; or
(j) any Termination Event with respect to a Plan shall have
occurred and the sum (determined as of the date of occurrence of such
Termination Event) of the Insufficiency of such Plan and the Insufficiency of
any and all other Plans with respect to which a Termination Event shall have
occurred and then exist (or in the case of a Plan with respect to which a
Termination Event described in clause (c) of the definition of Termination Event
shall have occurred and then exist, the liability related thereto) is equal to
or greater than $20,000,000; or
(k) the Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated with all
other amounts required to be paid to Multiemployer Plans in connection with
Withdrawal Liabilities (determined as of the date of such notification), exceeds
$5,000,000 or requires payments exceeding $1,250,000 per annum; or
(l) the Borrower shall have been notified by the sponsor of a
Multiemployer Plan that it has incurred Withdrawal Liability to such
Multiemployer Plan in an amount which, when aggregated with all other amounts
required to be paid to Multiemployer Plans in connection with Withdrawal
Liabilities of the Borrower (determined as of the date of such notification),
exceeds $5,000,000 or requires payments exceeding $1,250,000 per annum; or
(m) the Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or is being terminated, within the meaning of Title IV of
ERISA, if, solely as a result of such reorganization or termination, (i) the
aggregate annual contributions of the Borrower and its ERISA Affiliates to all
Multiemployer Plans which are then in reorganization or being terminated have
been or will be increased over the amounts contributed to such Multiemployer
Plans for the respective plan years which include the Closing Date by an amount
exceeding $5,000,000 or (ii) the aggregate annual contributions of the Borrower
and its Subsidiaries to all Multiemployer Plans which are then in reorganization
or being terminated have been or will be increased over the amounts contributed
to such Multiemployer Plans for the respective plan years which include the
Closing Date by an amount exceeding $l,250,000; or
(n) the occurrence of a Change of Control;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances (other than Letter of Credit Advances
by an Issuing Bank or a Revolving Credit Lender pursuant to Section
2.03(b)(iii)) and of each Issuing Bank to issue Letters of Credit to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Required Lenders, by notice to the
Borrower, declare the Notes, all interest thereon and all other amounts payable
under this Agreement and the other Loan Documents to be forthwith due and
payable, whereupon the Notes, all such interest and all such
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amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to any Loan Party or any of its
Subsidiaries under the Federal Bankruptcy Code, (1) the obligation of each
Lender to make Advances (other than Letter of Credit Advances by an Issuing Bank
or a Revolving Credit Lender pursuant to Section 2.03(b)(iii)) and of each
Issuing Bank to issue Letters of Credit shall automatically be terminated and
(2) the Notes, all such interest and all such amounts shall automatically become
and be due and payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by the Borrower.
Section 6.02. Actions in Respect of the Letters of Credit upon Default.
If any Event of Default shall have occurred and be continuing, the Agent may, or
shall at the request of the Required Lenders, irrespective of whether it is
taking any of the actions described in Section 6.01 or otherwise, make demand
upon the Borrower to, and forthwith upon such demand the Borrower will, pay to
the Agent on behalf of the Lender Parties in same day funds at the Agent's
office designated in such demand, for deposit in the L/C Cash Collateral
Account, an amount equal to the aggregate Available Amount of all Letters of
Credit then outstanding. If at any time the Agent reasonably determines that any
funds held in the L/C Cash Collateral Account are subject to any right or claim
of any Person other than the Agent and the Lender Parties or that the total
amount of such funds is less than the aggregate Available Amount of all Letters
of Credit, the Borrower will, forthwith upon demand by the Agent, pay to the
Agent, as additional funds to be deposited and held in the L/C Cash Collateral
Account, an amount equal to the excess of (a) such aggregate Available Amount
over (b) the total amount of funds, if any, then held in the L/C Cash Collateral
Account that the Agent reasonably determines to be free and clear of any such
right and claim. After all such Letters of Credit shall have expired or been
fully drawn upon and all Obligations of the Loan Parties under the Loan
Documents shall have been satisfied, the balance (if any) in the L/C Cash
Collateral Account shall be promptly returned to the Borrower.
ARTICLE VII.
THE AGENT
Section 7.01. Authorization and Action. Each Lender Party (in its
capacities as a Lender or an Issuing Bank) hereby appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement and the other Loan Documents as are delegated to
the Agent by the terms hereof and thereof, together with such powers and
discretion as are reasonably incidental thereto. As to any matters not expressly
provided for by the Loan Documents (including, without limitation, enforcement
or collection of the Notes), the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding upon all Lender Parties and all holders of Notes; provided, however,
that the Agent shall not be required to take any action that exposes the Agent
to personal liability or that is contrary to this Agreement or applicable law.
The Agent agrees to give to each Lender Party prompt notice of each notice given
to it by the Borrower pursuant to the terms of this Agreement.
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Section 7.02. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with the Loan
Documents, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (a) may treat
the payee of any Note as the holder thereof until the Agent receives and accepts
an Assignment and Acceptance entered into by the Lender that is the payee of
such Note, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 8.07; (b) may consult with legal counsel (including counsel for any Loan
Party), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (c)
makes no warranty or representation to any Lender Party and shall not be
responsible to any Lender Party for any statements, warranties or
representations (whether written or oral) made in or in connection with the Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any
Loan Document on the part of any Loan Party or to inspect the property
(including the books and records) of any Loan Party; (e) shall not be
responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram, telecopy or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
Section 7.03. CUSA and Affiliates. With respect to its Commitments, the
Advances made by it and the Notes issued to it, CUSA shall have the same rights
and powers under the Loan Documents as any other Lender Party and may exercise
the same as though it were not the Agent; and the term "Lender Party" or "Lender
Parties" shall, unless otherwise expressly indicated, include CUSA in its
individual capacity. CUSA and its affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, any Loan
Party, any of its Subsidiaries and any Person who may do business with or own
securities of any Loan Party or any such Subsidiary, all as if CUSA were not the
Agent and without any duty to account therefor to the Lender Parties.
Section 7.04. Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon the Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon the Agent or any other Lender Party and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement.
Section 7.05. Indemnification. (a) Each Lender Party severally agrees
to indemnify the Agent (to the extent not promptly reimbursed by the Borrower)
from and against such Lender Party's ratable share (determined as provided
below) of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
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nature whatsoever that may be imposed on, incurred by, or asserted against the
Agent in any way relating to or arising out of the Loan Documents or any action
taken or omitted by the Agent under the Loan Documents; provided, however, that
no Lender Party shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender Party agrees to
reimburse the Agent promptly upon demand for its ratable share of any costs and
expenses (including, without limitation, fees and expenses of counsel) payable
by the Borrower under Section 8.04, to the extent that the Agent is not promptly
reimbursed for such costs and expenses by the Borrower. For purposes of this
Section 7.05(a), the Lender Parties' respective ratable shares of any amount
shall be determined, at any time, according to the sum of (a) the aggregate
principal amount of the Advances outstanding at such time and owing to the
respective Lender Parties, (b) their respective Pro Rata Shares of the aggregate
Available Amount of all Letters of Credit outstanding at such time, (c) the
aggregate unused portion of their respective Term Loan Commitments and (d) their
respective Unused Revolving Credit Commitments at such time; provided that for
this purpose the aggregate principal amount of Letter of Credit Advances and
Competitive Bid Advances shall be considered to be owed to the Revolving Credit
Lenders ratably in accordance with their respective Revolving Credit
Commitments. In the event that any Defaulted Advance shall be owing by any
Defaulting Lender at any time, such Lender Party's Commitment with respect to
the Facility under which such Defaulted Advance was required to have been made
shall be considered to be unused for purposes of this Section 7.05(a) to the
extent of the amount of such Defaulted Advance. The failure of any Lender Party
to reimburse the Agent promptly upon demand for its ratable share of any amount
required to be paid by such Lender Party to the Agent as provided herein shall
not relieve any other Lender Party of its obligation hereunder to reimburse the
Agent for its ratable share of such amount, but no Lender Party shall be
responsible for the failure of any other Lender Party to reimburse the Agent for
such other Lender Party's ratable share of such amount. Without prejudice to the
survival of any other agreement of any Lender Party hereunder, the agreement and
obligations of each Lender Party contained in this Section 7.05(a) shall survive
the payment in full of principal, interest and all other amounts payable
hereunder and under the other Loan Documents.
(b) Each Revolving Credit Lender severally agrees to indemnify
each Issuing Bank (to the extent not promptly reimbursed by the Borrower) from
and against such Revolving Credit Lender's ratable share (determined as provided
below) of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against such
Issuing Bank in any way relating to or arising out of the Loan Documents or any
Letter of Credit or any action taken or omitted by such Issuing Bank under the
Loan Documents or any Letter of Credit; provided, however, that no Lender shall
be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from such Issuing Bank's gross negligence or willful misconduct. Without
limitation of the foregoing, each Revolving Credit Lender agrees to reimburse
such Issuing Bank promptly upon demand for its ratable share of any costs and
expenses (including, without limitation, fees and expenses of counsel) payable
by the Borrower under Section 8.04, to the extent that such Issuing Bank is not
promptly reimbursed for such costs and expenses by the Borrower. For purposes of
this Section 7.05(b), the Revolving Credit Lenders' respective ratable shares of
any amount shall be determined, at any time, according to the sum of (a) the
aggregate principal amount of the
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Revolving Credit Advances outstanding at such time and owing to the respective
Revolving Credit Lenders and (b) their respective Unused Revolving Credit
Commitments at such time. In the event that any Defaulted Advance shall be owing
by any Defaulting Lender at any time under the Revolving Credit Facility, such
Lender's Revolving Credit Commitment shall be considered to be unused for
purposes of this Section 7.05(b) to the extent of the amount of such Defaulted
Advance. The failure of any Revolving Credit Lender to reimburse such Issuing
Bank promptly upon demand for its ratable share of any amount required to be
paid by the Revolving Credit Lenders to such Issuing Bank as provided herein
shall not relieve any other Lender of its obligation hereunder to reimburse such
Issuing Bank for its ratable share of such amount, but no Lender shall be
responsible for the failure of any other Lender to reimburse such Issuing Bank
for such other Lender's ratable share of such amount. Without prejudice to the
survival of any other agreement of any Lender Party hereunder, the agreement and
obligations of each Lender contained in this Section 7.05(b) shall survive the
payment in full of principal, interest and all other amounts payable hereunder
and under the other Loan Documents.
Section 7.06. Successor Agents. The Agent may resign as to any or all
of the Facilities at any time by giving written notice thereof to the Lender
Parties and the Borrower and may be removed as to all of the Facilities at any
time with or without cause by the Required Lenders. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint a successor Agent
as to such of the Facilities as to which the Agent has resigned or been removed,
provided that the appointment of any such successor Agent shall be subject to
the consent of the Borrower (which shall not be unreasonably withheld) so long
as no Default or Event of Default has occurred and is continuing. If no
successor Agent shall have been so appointed by the Required Lenders, and shall
have accepted such appointment, within 30 days after the retiring Agent's giving
of notice of resignation or the Required Lenders' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Lender Parties, appoint a
successor Agent, which shall be a commercial bank organized under the laws of
the United States or of any State thereof and having a combined capital and
surplus of at least $250,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent as to all of the Facilities, such successor
Agent shall succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under the Loan Documents.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent
as to less than all of the Facilities, such successor Agent shall succeed to and
become vested with all the rights, powers, discretion, privileges and duties of
the retiring Agent as to such Facilities as to which such appointment is made,
other than with respect to funds transfers and other similar aspects of the
administration of Borrowings under such Facilities, issuances of Letters of
Credit (notwithstanding any resignation as Agent with respect to the Letter of
Credit Facility) and payments by the Borrower in respect of such Facilities, and
the retiring Agent shall be discharged from its duties and obligations under
this Agreement as to such Facilities, other than as aforesaid. After any
retiring Agent's resignation or removal hereunder as Agent as to all of the
Facilities, the provisions of this Article VII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent as to any
Facilities under this Agreement.
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ARTICLE VIII.
MISCELLANEOUS
Section 8.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Notes or any other Loan Document, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that (a) no amendment,
waiver or consent shall, unless in writing and signed by all of the Lenders
(other than any Lender Party that is, at such time, a Defaulting Lender), do any
of the following at any time: (i) waive any of the conditions specified in
Section 3.01 or, in the case of the Initial Extension of Credit, Section 3.02 or
3.03, (ii) change the number of Lenders or the percentage of (A) the
Commitments, (B) the aggregate unpaid principal amount of the Advances or (C)
the aggregate Available Amount of outstanding Letters of Credit that, in each
case, shall be required for the Lenders or any of them to take any action
hereunder, (iii) reduce or limit the obligations of the Company under Section 1
of the Guaranty or otherwise limit the Company's liability with respect to the
Obligations owing to the Agent and the Lender Parties under the Loan Documents,
or (iv) amend this Section 8.01, and (b) no amendment, waiver or consent shall,
unless in writing and signed by the Required Lenders and each Lender that has a
Commitment under the Revolving Credit Facility or Term Loan Facility, if
affected by such amendment, waiver or consent, (i) increase the Commitments of
such Lender or subject such Lender to any additional obligations, (ii) reduce
the principal of, or interest on, the Notes held by such Lender or any fees or
other amounts payable hereunder to such Lender, (iii) postpone any date fixed
for any payment of principal of, or interest on, the Notes held by such Lender
or any fees or other amounts payable hereunder to such Lender (provided that
this clause (iii) shall not apply to any amendment to or waiver of the
provisions of Section 2.06) or (iv) change the order of application of any
prepayment set forth in Section 2.06 in any manner that materially and adversely
affects such Lender; provided further that no amendment, waiver or consent
shall, unless in writing and signed by each Issuing Bank in addition to the
Lenders required above to take such action, affect the rights or obligations of
the Issuing Banks under this Agreement; and provided further that no amendment,
waiver or consent shall, unless in writing and signed by the Agent in addition
to the Lenders required above to take such action, affect the rights or duties
of the Agent under this Agreement.
Section 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered,
if to the Borrower, at its address at 2500 Harbor Boulevard, Fullerton,
California 92634, Attention: Treasurer (Telecopy no.: (714) 773-6840), with a
copy to the same address, Attention: General Counsel (Telecopy no.: (714)
773-7936); if to any Initial Lender or any Initial Issuing Bank, at its Domestic
Lending Office specified opposite its name on Schedule I hereto; if to any other
Lender Party, at its Domestic Lending Office specified in the Assignment and
Acceptance pursuant to which it became a Lender Party; and if to the Agent, at
its address at 2 Penns Way, Suite 200, New Castle, Delaware 19720, Attention:
Pia Saenganan (Telecopy no.: (302) 894-6120), with a copy to 1 Samsome Street,
27th Floor, San Francisco, California 94104, Attention: Doris Mendoza (Telecopy
no.: (415) 433-0307); or, as to each party, at such other address as shall be
designated by such party in a written notice to the
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other parties. All such notices and communications shall, when mailed,
telegraphed, telecopied or telexed, be effective three Business Days after
deposit in the mails, or when delivered to the telegraph company, transmitted by
telecopier or confirmed by telex answerback, respectively, except that notices
and communications to the Agent pursuant to Article II, III or VII shall not be
effective until received by the Agent. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or the
Notes or any consent thereunder or of any Exhibit hereto to be executed and
delivered hereunder shall be effective as delivery of a manually executed
counterpart thereof.
Section 8.03. No Waiver; Remedies. No failure on the part of any Lender
Party to exercise, and no delay in exercising, any right hereunder or under any
Note shall operate as a waiver thereof; nor shall any single or partial exercise
of any such right preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Section 8.04. Costs and Expenses. (a) The Borrower agrees to pay on
demand (i) all reasonable costs and expenses of the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment and
enforcement of the Loan Documents (including, without limitation, (A) all
reasonable due diligence, syndication, transportation, computer, duplication,
appraisal, audit, insurance, consultant and search fees and expenses and (B) the
reasonable fees and expenses of counsel for the Agent with respect thereto, with
respect to advising the Agent as to its rights and responsibilities, or the
protection or preservation of rights or interests, under the Loan Documents,
with respect to negotiations with any Loan Party or with other creditors of any
Loan Party or any of its Subsidiaries arising out of any Default or any events
or circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights in respect of the
Borrower or its Subsidiaries generally and any proceeding ancillary thereto) and
(ii) following the occurrence and during the continuance of any Event of
Default, all costs and expenses of the Agent and the Lender Parties in
connection with the enforcement of the Loan Documents, whether in any action,
suit or litigation, or any bankruptcy, insolvency or other similar proceeding
affecting creditors' rights, in respect of the Borrower or its Subsidiaries,
generally (including, without limitation, the reasonable fees and expenses of
counsel for the Agent and each Lender Party with respect thereto), or otherwise.
(b) The Borrower agrees to indemnify and hold harmless the
Agent, the Arranger, each other Lender Party, Merrill Lynch & Co., as
syndication agent and each of their Affiliates and their respective officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) the Facilities, the actual or
proposed use of the proceeds of the Advances or the Letters of Credit, the Loan
Documents or any of the transactions contemplated thereby, including, without
limitation, any acquisition or proposed acquisition (including, without
limitation, the Acquisition and any of the other transactions contemplated
hereby) by the Borrower or any of its Subsidiaries or Affiliates of all or any
portion of the stock or substantially all the assets of the Company or any of
its Subsidiaries,
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except to the extent such claim, damage, loss, liability or expense is found in
a final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
In the case of an investigation, litigation or other proceeding to which the
indemnity in this Section 8.04(b) applies, such indemnity shall be effective
whether or not such investigation, litigation or proceeding is brought by any
Loan Party or any of its Subsidiaries, its directors, shareholders or creditors
or an Indemnified Party or any Indemnified Party is otherwise a party thereto
and whether or not the transactions contemplated hereby are consummated.
Notwithstanding any other provisions to the contrary herein or in any other Loan
Document, no obligation to indemnify and hold harmless any Indemnified Party
under this Section 8.04(b) shall arise to the extent that the liability arises
from a failure by such Indemnified Party to comply with any laws, regulations,
rules or orders that may apply to its business, or a failure by such Indemnified
Party to possess the capacity to participate in the transactions contemplated by
this Agreement and the other Loan Documents or to take all actions necessary to
authorize its participation in such transactions. The Borrower also agrees not
to assert any claim against the Agent, any Lender Party or any of their
Affiliates, or any of their respective officers, directors, employees, attorneys
and agents, on any theory of liability, for special, indirect, consequential or
punitive damages arising out of or otherwise relating to the Facilities, the
actual or proposed use of the proceeds of the Advances or the Letters of Credit,
the Loan Documents or any of the transactions contemplated thereby.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance, LIBO Rate Advance or Fixed Rate Advance is made to or
for the account of a Lender Party other than on the last day of the Interest
Period for such Advance, as a result of a payment or Conversion pursuant to
Section 2.06, 2.08, 2.10 or 2.12, acceleration of the maturity of the Notes
pursuant to Section 6.01 or for any other reason, the Borrower shall, within
seven days following demand by such Lender Party accompanied by a calculation in
reasonable detail of the amount demanded (with a copy of such demand to the
Agent), pay to the Agent for the account of such Lender Party any amounts
required to compensate such Lender Party for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment, including,
without limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender Party to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document, including,
without limitation, fees and expenses of counsel and indemnities, such amount
may be paid on behalf of such Loan Party by the Agent or any Lender Party, in
its sole discretion.
(e) Without prejudice to the survival of any other agreement
of any Loan Party hereunder or under any other Loan Document, (A) the agreements
and obligations of the Borrower contained in Sections 2.11 and 2.12 and this
Section 8.04 and (B) the agreements of the Lender Parties set forth in Section
8.10 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Loan Documents.
Section 8.05. Right of Set-off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the
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provisions of Section 6.01, each Lender Party and each of its respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender Party or such
Affiliate to or for the credit or the account of the Borrower against any and
all of the Obligations of the Borrower now or hereafter existing under this
Agreement and the Note or Notes (if any) held by such Lender Party, irrespective
of whether such Lender Party shall have made any demand under this Agreement or
such Note or Notes and although such obligations may be unmatured. Each Lender
Party agrees promptly to notify the Borrower after any such set-off and
application; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
Party and its respective Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Lender Party and its respective Affiliates may have.
Section 8.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Agent and when the
Agent shall have been notified by each Initial Lender and each Initial Issuing
Bank that such Initial Lender and such Initial Issuing Bank has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, the
Agent and each Lender Party and their respective successors and assigns
permitted hereunder, except that the Borrower shall not have the right to assign
its rights hereunder or any interest herein without the prior written consent of
the Lender Parties.
Section 8.07. Assignment and Participations. (a) Each Lender may, and
any Lender that has become an Affected Lender, if so requested by the Borrower
within 60 days thereafter, will, assign to one or more Eligible Assignees all or
a portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment or Commitments, the Advances
owing to it and the Note or Notes held by it); provided, however, that (i) each
such assignment shall be of a uniform, and not a varying, percentage of all
rights and obligations under and in respect of one or more Facilities (other
than the Competitive Bid Facility or as set forth in clause (iv) below), (ii)
except in the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $10,000,000, (iii) each such assignment shall be to an
Eligible Assignee, (iv) each such assignment made as a result of a request by
the Borrower pursuant to this Section 8.07(a) with respect to any Affected
Lender shall be arranged by the Borrower after consultation with the Agent and
shall either be an assignment of all of the rights and obligations of the
Affected Lender under this Agreement or an assignment of a portion of such
rights and obligations made concurrently with another such assignment or other
such assignments that together cover all of the rights and obligations of the
Affected Lender under this Agreement, (v) no Affected Lender shall be obligated
to make any such assignment as a result of a request by the Borrower pursuant to
this Section 8.07(a) unless and until such Affected Lender shall have received
one or more payments from either the Borrower or one or more Eligible Assignees
in an aggregate amount at least equal to the aggregate outstanding principal
amount of the Advances owing to such Lender in respect of the rights and
obligations assigned pursuant to such assignment, together with accrued interest
thereon to the date of payment of such principal amount and all other amounts
payable to such Affected Lender under this Agreement (including,
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without limitation, under Section 8.04(c) hereof, which shall apply as though
all Advances of the Affected Lender were being prepaid in full on the date of
assignment), (vi) no such assignments shall be permitted without the consent of
the Agent until the Agent shall have notified the Lender Parties that
syndication of the Commitments hereunder has been completed, and (vii) the
parties to each such assignment shall execute and deliver to the Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note or Notes subject to such assignment and a processing and
recordation fee of $3,000.
(b) Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in such Assignment and Acceptance,
(i) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
and (ii) the Lender assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance,
the Lender Party assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, this Agreement or any other Loan Document or any
other instrument or document furnished pursuant hereto or thereto; (ii) such
assigning Lender Party makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Loan Party or the
performance or observance by any Loan Party of any of its obligations under any
Loan Document or any other instrument or document furnished pursuant thereto;
(iii) such assignee confirms that it has received a copy of this Agreement,
together with copies of the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance upon the Agent, such
assigning Lender Party or any other Lender Party and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Loan Documents as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto; (vii) such assignee agrees that it will perform
in accordance with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Lender; and (viii) such
assignee agrees that on the date of the Assignment and Acceptance pursuant to
which it becomes a Lender Party it shall provide to the Agent and the Borrower
the forms referred to under Section 2.14(e).
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(d) The Agent shall maintain at its address referred to in
Section 8.02 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of the
Lender Parties and the Commitment under each Facility of, and principal amount
of the Advances owing under each Facility to, each Lender Party from time to
time (the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the Agent and
the Lender Parties shall treat each Person whose name is recorded in the
Register as a Lender Party hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Lender Party
at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender Party and an assignee, together with any Note or Notes
subject to such assignment, the Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of Exhibit C hereto, (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Borrower.
Within five Business Days after its receipt of such notice, the Borrower, at its
own expense, shall execute and deliver to the Agent in exchange for the
surrendered Note or Notes a new Note to the order of such Eligible Assignee in
an amount equal to the Commitment assumed by it under any Facility pursuant to
such Assignment and Acceptance and, if the assigning Lender has retained a
Commitment hereunder under such Facility, a new Note or Notes to the order of
the assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A-1, A-2 or A-3 hereto, as the
case may be.
(f) Each Lender Party may sell participations to one or more
Persons (other than the Borrower or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it); provided, however, that (i) such Lender
Party's obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender Party shall remain the holder of any such Note or Notes for
all purposes of this Agreement, (iv) the Borrower, the Agent and the other
Lender Parties shall continue to deal solely and directly with such Lender Party
in connection with such Lender Party's rights and obligations under this
Agreement, and (v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of any Loan Document,
or any consent to any departure by the Borrower therefrom, except to the extent
that such amendment, waiver or consent would reduce the principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, or postpone any date fixed for
any payment of principal of, or interest on, the Notes or any fees or other
amounts payable hereunder (other than any payment required by Section 2.06), in
each case to the extent subject to such participation.
(g) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower and its
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Subsidiaries furnished to such Lender Party by or on behalf of the Borrower;
provided, however, that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Confidential Information received by it from such Lender
Party on the terms provided herein.
(h) Notwithstanding any other provision set forth in this
Agreement, any Lender Party may at any time create a security interest in all or
any portion of its rights under this Agreement (including, without limitation,
the Advances owing to it and the Note or Notes held by it) in favor of any
Federal Reserve Bank in accordance with Regulation A of the Board of Governors
of the Federal Reserve System.
Section 8.08. Execution in Counterparts. This Agreement may be executed
in any number of 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 one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
Section 8.09. No Liability of the Issuing Banks. The Borrower assumes
all risks of the acts or omissions of any beneficiary or transferee of any
Letter of Credit with respect to its use of such Letter of Credit. Neither any
Issuing Bank nor any of its officers or directors shall be liable or responsible
for: (a) the use that may be made of any Letter of Credit or any acts or
omissions of any beneficiary or transferee in connection therewith; (b) the
validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by such Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the
Borrower shall have a claim against such Issuing Bank, and such Issuing Bank
shall be liable to the Borrower, to the extent of any direct, but not
consequential, damages suffered by the Borrower that the Borrower proves were
caused by (i) such Issuing Bank's willful misconduct or gross negligence in
determining whether documents presented under any Letter of Credit comply with
the terms of the Letter of Credit or (ii) such Issuing Bank's willful failure to
make lawful payment under a Letter of Credit after the presentation to it of a
draft and certificates strictly complying with the terms and conditions of the
Letter of Credit, provided that in no event shall any such liability be asserted
by way of setoff of any amount owed hereunder. In furtherance and not in
limitation of the foregoing, such Issuing Bank may accept documents that appear
on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary.
Section 8.10. Confidentiality. Neither the Agent nor any other Lender
Party shall disclose any Confidential Information to any Person without the
consent of the Borrower, other than (a) to the Agent's or such Lender Party's
Affiliates and their officers, directors, employees, agents and advisors and to
actual or prospective Eligible Assignees and participants, and then only on a
confidential basis subject to the same obligations with respect to Confidential
Information as set forth in this paragraph, (b) as required by any law, rule or
regulation or judicial process, provided that unless specifically prohibited by
applicable law or court order, each Lender Party
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shall use reasonable efforts to endeavor to notify the Borrower of any request
of any governmental authority (other than any such request in connection with an
examination of the financial condition or operations of such Lender Party by
such governmental authority or a request described in clause (c) below) for
disclosure of any Confidential Information prior to disclosure of such
information, and (c) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking or the business of such Lender
Party.
Section 8.11. Release of Guarantors. Upon the sale or other disposition
by the Borrower or any Subsidiary of the Borrower of all of the capital stock of
any Guarantor Subsidiary to a Person other than the Borrower or another
Subsidiary of the Borrower such Guarantor Subsidiary shall be released from
further liability under the Guaranty, provided that (a) such sale or other
disposition is permitted under this Agreement, and (b) any consent to such sale
or other disposition required under this Agreement does not require that such
Guarantor Subsidiary continue to be liable under or bound by the Guaranty. Any
Guarantor Subsidiary may also be released from further liability under the
Guaranty with the consent of the Required Lenders (or, in the case of the
Company, all of the Lenders), in each case subject to such terms and conditions
as such Required Lenders (or, in the case of the Company, all of the Lenders)
may require in their sole discretion.
Section 8.12. Jurisdiction, Etc.. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or any of the other Loan Documents in the
courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any of the
other Loan Documents to which it is a party in any New York State or federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
Section 8.13. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
Section 8.14. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENT AND
THE LENDER PARTIES IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE ADVANCES OR THE
ACTIONS OF THE AGENT OR ANY LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BECKMAN INSTRUMENTS, INC.,
as Borrower
By /s/ PAUL GLYER
------------------------------------
Title: Treasurer
<PAGE> 97
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
CITICORP USA, INC., as Agent and as an
Initial Lender
By /s/ J. GREGORY DAVIS
-----------------------------------
Title: Attorney-In-Fact
CITICORP, N.A., as an Initial Issuing
Bank
By /s/ ALLEN FISCHER
-----------------------------------
Title: Vice President
<PAGE> 98
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
CITICORP SECURITIES, INC.,
as Arranger
By /s/ J. GREGORY DAVIS
------------------------------------
Title: Vice President
<PAGE> 99
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
ABN AMRO BANK NV
By /s/ PAUL K. STIMPFL
------------------------------------
Title: Vice President
By /s/ JOHN A. MILLER
------------------------------------
Title: Group Vice President
<PAGE> 100
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BANCA COMMERCIALE ITALIANA
Los Angeles Foreign Branch
By /s/ RICHARD E. IWANICKI
------------------------------------
Title: Vice President
By /s/ EDUARDO BOMBIERI
------------------------------------
Title: Vice President & Manager
<PAGE> 101
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BANK OF AMERICA NT & SA
By: /s/ THERESE A. FONTAINE
------------------------------------
Title: Vice President
<PAGE> 102
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BANK OF MONTREAL
By: /s/ B.A. BLUCHER
------------------------------------
Title: Senior Vice President
<PAGE> 103
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE BANK OF NEW YORK
By: /s/ JONATHAN ROLLINS
------------------------------------
Title: Assistant Vice President
<PAGE> 104
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE BANK OF NOVA SCOTIA
By: /s/ CHRIS OSBORN
------------------------------------
Title: Relationship Manager
<PAGE> 105
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BANQUE NATIONALE DE PARIS
By: /s/ MARC SCHAEFER
------------------------------------
Title: Assistant Vice President
By /s/ DEBORAH GOH
------------------------------------
Title: Vice President
<PAGE> 106
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BAYERISCHE HYPOTHEKEN-UND
WECHSEL-BANK AG
By: /s/ UWE RODER
------------------------------------
Title: Vice President
By /s/ DAVID ROCKWELL
------------------------------------
Title: Senior Vice President
<PAGE> 107
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By: /s/ ANTHONY ROCK
------------------------------------
Title: Vice President
By /s/ SEAN MOUNIER
------------------------------------
Title: First Vice President
<PAGE> 108
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
CAISSE NATIONALE DE CREDIT AGRICOLE
By: /s/ DEAN BALICE
------------------------------------
Title: Senior Vice President
Branch Manager
<PAGE> 109
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
CARIPLO-CASSA DI RISPARMIO DELLE
PROVINCIE LOMBARDE, SPA
By: /s/ ANTHONY GIOBBI
------------------------------------
Title: First Vice President
By /s/ CHARLES W. KENNEDY
------------------------------------
Title: First Vice President
<PAGE> 110
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
CREDITO ITALIANO
By: /s/ GIANFRANCO BISAGNI
------------------------------------
Title: First Vice President
By /s/ UMBERTO SERETTI
------------------------------------
Title: Vice President
<PAGE> 111
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
CREDIT SUISSE FIRST BOSTON
By: /s/ ROBERT N. FINNEY
------------------------------------
Title: Managing Director
By /s/ MARK A. SAMPSON
------------------------------------
Title: Vice President
<PAGE> 112
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE DAI-ICHI KANGYO BANK, LIMITED
By: /s/ MASATSUGU MORISHITA
------------------------------------
Title: Sr. Vice President &
Joint General Manager
<PAGE> 113
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
DRESDNER BANK AG NEW YORK BRANCH AND
GRAND CAYMAN BRANCH
By: /s/ BEVERLY CASON
------------------------------------
Title: Vice President
By /s/ DENISE M. ROHDE
------------------------------------
Title: Assistant Treasurer
<PAGE> 114
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ MICHAEL P. GAGE
------------------------------------
Title: Vice President
<PAGE> 115
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE FUJI BANK, LIMITED
By: /s/ MASAHITO FUKUDA
------------------------------------
Title: Joint General Manager
<PAGE> 116
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
INDUSTRIAL BANK OF JAPAN, LIMITED
LOS ANGELES AGENCY
By: /s/ VINCE TIMARAOS
------------------------------------
Title: Senior Vice President and
Senior Manager
<PAGE> 117
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
INSTITUTO BANCARIO SAN PAOLO DI TORINO
By: /s/ ROBERT WURSTER
------------------------------------
Title: First Vice President
By /s/ WILLIAM J. DeANGELO
------------------------------------
Title: First Vice President
<PAGE> 118
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
LONG TERM CREDIT BANK OF JAPAN
By: /s/ TORUMI KOJI
------------------------------------
Title: Deputy General Manager
<PAGE> 119
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
MELLON BANK, N.A.
By: /s/ SUSAN A. DALTON
------------------------------------
Title: Vice President
<PAGE> 120
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
MERRILL LYNCH CAPITAL CORPORATION,
as Lender Party
By: /s/ MICHAEL ZUPON
------------------------------------
Title: Managing Director
MERRILL LYNCH & CO.,
as Syndication Agent
By /s/ MICHAEL ZUPON
------------------------------------
Title: Managing Director
<PAGE> 121
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES AGENCY
By: /s/ YASUSHI SATOMI
------------------------------------
Title: Senior Vice President
<PAGE> 122
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE MITSUI TRUST AND BANKING COMPANY,
LIMITED
By: /s/ MARGARET HOLLOWAY
------------------------------------
Title: Vice President & Manager
<PAGE> 123
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH
By: /s/ DANA W. HEMENWAY
------------------------------------
Title: Vice President
By /s/ IAN REECE
------------------------------------
Title: Senior Credit Officer
<PAGE> 124
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ DEREK BONNAR
------------------------------------
Title: Vice President
<PAGE> 125
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE SANWA BANK
By: /s/ VIRGINIA HART
------------------------------------
Title: Vice President
<PAGE> 126
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE SAKURA BANK, LIMITED
By: /s/ YOSHIKAZU NAGURA
------------------------------------
Title: Vice President
<PAGE> 127
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
STANDARD CHARTERED BANK
By: /s/ SYLVIA D. RIVERA
------------------------------------
Title: Assistant Vice President
By /s/ MARY MACHADO-SCHAMMEL
------------------------------------
Title: Vice President
<PAGE> 128
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE SUMITOMO BANK LIMITED,
LOS ANGELES BRANCH
By: /s/ GORO HIRA
------------------------------------
Title: Joint General Manager
<PAGE> 129
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE TOKAI BANK, LIMITED,
LOS ANGELES AGENCY
By: /s/ MASAHIKO SAITO
------------------------------------
Title: Senior Vice President/
Assistant General Manager
<PAGE> 130
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
UNION BANK OF CALIFORNIA, N.A.
By: /s/ CARY MOORE
------------------------------------
Title: Vice President
<PAGE> 131
SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
<TABLE>
<CAPTION>
===============================================================================================================================
TERM LOAN REVOLVING CREDIT DOMESTIC EURODOLLAR
NAME OF LENDER PARTY COMMITMENT COMMITMENT LENDING OFFICE LENDING OFFICE
===============================================================================================================================
<S> <C> <C> <C> <C>
CITICORP USA, INC. 31,538,461.54 50,461,538.46 399 Park Ave. 399 Park Ave.
New York, N.Y. 10043 New York, N.Y. 10043
- -------------------------------------------------------------------------------------------------------------------------------
MERRILL LYNCH & CO. 28,846,153.85 46,153,846.15 250 Vesey Street 250 Vesey Street
New York, N.Y. 10281-1307 New York, N.Y. 10281-1307
- -------------------------------------------------------------------------------------------------------------------------------
BANK OF AMERICA NT & SA 28,846,153.85 46,153,846.15 Unit #5693 Unit #5693
1815 Gateway Blvd., 4th Fl. 1815 Gateway Blvd., 4th Fl.
Concord, CA 94520 Concord, CA 94520
- -------------------------------------------------------------------------------------------------------------------------------
THE FIRST NATIONAL BANK 28,846,153.85 46,153,846.15 777 Figueroa St. 777 Figueroa St.
OF CHICAGO 4th Floor 4th Floor
Los Angeles, CA 90017 Los Angeles, CA 90017
- -------------------------------------------------------------------------------------------------------------------------------
INDUSTRIAL BANK OF 23,076,923.08 36,923,076.92 350 South Grand Ave. 350 South Grand Ave.
JAPAN, LIMITED Suite 1500 Suite 1500
LOS ANGELES AGENCY Los Angeles, CA 90071 Los Angeles, CA 90071
- -------------------------------------------------------------------------------------------------------------------------------
CREDIT SUISSE 23,076,923.08 36,923,076.92 11 Madison Ave. 11 Madison Ave.
FIRST BOSTON New York, N.Y. 10010 New York, N.Y. 10010
- -------------------------------------------------------------------------------------------------------------------------------
MELLON BANK, N.A. 23,076,923,08 36,923,076.92 Three Mellon Bank Center Three Mellon Bank Center
Room 2304 Room 2304
Pittsburgh, PA 15259 Pittsburgh, PA 15259
- -------------------------------------------------------------------------------------------------------------------------------
UNION BANK OF 17,307,692.31 27,692,307.69 445 S. Figueroa St. 445 S. Figueroa St.
CALIFORNIA 16th Fl. 16th Fl.
Los Angeles, CA 90071 Los Angeles, CA 90071
- -------------------------------------------------------------------------------------------------------------------------------
THE DAI-ICHI KANGYO 17,307,692.31 27,692,307.69 555 West 5th St., 5th Fl. 555 West 5th St., 5th Fl.
BANK, LIMITED Los Angeles, CA 90013 Los Angeles, CA 90013
- -------------------------------------------------------------------------------------------------------------------------------
COMPAGNIE FINANCIERE DE 17,307,692.31 27,692,307.69 520 Madison Ave., 37 Fl. 520 Madison Ave., 37 Fl.
CIC ET DE L'UNION New York, N.Y. 10022 New York, N.Y. 10022
EURPEENNE
- -------------------------------------------------------------------------------------------------------------------------------
THE FUJI BANK, LIMITED 17,307,692.31 27,692,307.69 333 S. Hope St. 333 S. Hope St.
Suite 3900 Suite 3900
Los Angeles, CA 90071 Los Angeles, CA 90071
- -------------------------------------------------------------------------------------------------------------------------------
THE MISUBISHI TRUST AND 17,307,692.31 27,692,307.69 801 South Figueroa Street 801 South Figueroa Street
BANKING CORPORATION, Suite 500 Suite 500
LOS ANGELES AGENCY Los Angeles, CA 90017 Los Angeles, CA 90017
- -------------------------------------------------------------------------------------------------------------------------------
INSTITUTO BANCARIO SAN 10,769,230.77 17,230,769.23 245 Park Ave. 245 Park Ave.
PAOLO DI TORINO New York, N.Y. 10167 New York, N.Y. 10167
- -------------------------------------------------------------------------------------------------------------------------------
THE SUMITOMO BANK 10,769,230.77 17,230,769.23 777 South Figueroa Street 777 South Figueroa Street
LIMITED, LOS ANGELES Suite 2600 Suite 2600
BRANCH Los Angles, CA 90017 Los Angeles, CA 90017
- -------------------------------------------------------------------------------------------------------------------------------
ABN AMRO BANK NV 10,769,230.77 17,230,769.23 300 S. LaSalle Street 300 S. LaSalle Street
Suite 625 Suite 625
Chicago, IL 60603 Chicago, IL 60603
- -------------------------------------------------------------------------------------------------------------------------------
THE SANWA BANK, LIMITED 10,769,230.77 17,230,769.23 601 South Figueroa Str. 601 South Figueroa Str.
W5-2 W5-2
Los Angeles, CA 90017 Los Angeles, CA 90017
- -------------------------------------------------------------------------------------------------------------------------------
COOPERATIEVE CENTRALE 10,769,230.77 17,230,769.23 245 Park Ave., 36th Fl. 245 Park Ave., 36th Fl.
RAIFFEISEN- New York, N.Y. 10167 New York, N.Y. 10167
BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND,"
NEW YORK BRANCH
- -------------------------------------------------------------------------------------------------------------------------------
THE SAKURA BANK, LIMITED 10,769,230.77 17,230,769.23 277 Park Ave., 45th Fl. 277 Park Ave., 45th Fl.
New York, N.Y. 10172 New York, N.Y. 10172
- -------------------------------------------------------------------------------------------------------------------------------
BANK OF MONTREAL 10,769,230.77 17,230,769.23 115 S. LaSalle Str. 12th Fl. 115 S. LaSalle Str. 12th Fl.
Chicago, IL 60603 Chicago, IL 60603
- -------------------------------------------------------------------------------------------------------------------------------
THE BANK OF NEW YORK 10,769,230.77 17,230,769.23 One Wall Street, 22nd Fl. One Wall Street, 22nd Fl.
New York, N.Y. 10286 New York, N.Y. 10286
- -------------------------------------------------------------------------------------------------------------------------------
THE BANK OF NOVA SCOTIA 10,769,230.77 17,230,769.23 580 California Str. 580 California Str.
Suite 2100 Suite 2100
San Francisco, CA 94104 San Francisco, CA 94104
- -------------------------------------------------------------------------------------------------------------------------------
BANQUE NATIONALE DE PARIS 10,769,230.77 17,230,769.23 725 South Figueroa St. 725 South Figueroa St.
Suite 2090 Suite 2090
Los Angeles, CA 90017 Los Angeles, CA 90017
- -------------------------------------------------------------------------------------------------------------------------------
CREDITO ITALIANO 10,769,230.77 17,230,769.23 375 Park Ave., 2nd Fl. 375 Park Ave., 2nd Fl.
New York, N.Y. 10152 New York, N.Y. 10152
- -------------------------------------------------------------------------------------------------------------------------------
BAYERISCHE HYPOTHEKEN- 10,769,230.77 17,230,769.23 32 Old Slip 32 Old Slip
UND WECHSEL-BANK AG New York, N.Y. 10005 New York, N.Y. 10005
- -------------------------------------------------------------------------------------------------------------------------------
BANCA COMMERCIALE 10,769,230.77 17,230,769.23 555 S. Flower Str. 555 S. Flower Str.
ITALIANA Suite 4300 Suite 4300
Los Angeles, CA 90071 Los Angeles, CA 90071
- -------------------------------------------------------------------------------------------------------------------------------
DRESDNER BANK AG NEW 10,769,230.77 17,230,769.23 75 Wall Street 75 Wall Street
YORK BRANCH AND GRAND New York, N.Y. 10005 New York, N.Y. 10005
CAYMAN BRANCH
- -------------------------------------------------------------------------------------------------------------------------------
LONG TERM CREDIT BANK 10,769,230.77 17,230,769.23 350 South Grand Ave. 350 South Grand Ave.
OF JAPAN Suite 3000 Suite 3000
Los Angeles, CA 90071 Los Angeles, CA 90071
- -------------------------------------------------------------------------------------------------------------------------------
STANDARD CHARTERED BANK 10,769,230.77 17,230,769.23 707 Wilshire Blvd. 707 Wilshire Blvd.
W8-33 W8-33
Los Angeles, CA 90017 Los Angeles, CA 90017
- -------------------------------------------------------------------------------------------------------------------------------
CARIPLO-CASSA DI 10,769,230.77 17,230,769.23 10 East 53 Street 10 East 53 Street
RISPARMIO DELLE New York, N.Y. 10022 New York, N.Y. 10022
PROVINCIE LOMBARDE, SPA
- -------------------------------------------------------------------------------------------------------------------------------
THE ROYAL BANK OF 10,769,230.77 17,230,769.23 Wall Street Plaza Wall Street Plaza
SCOTLAND PLC 88 Pine Street, 26th Fl. 88 Pine Street, 26th Fl.
New York, N.Y. 10005-1801 New York, N.Y. 10005-1801
- -------------------------------------------------------------------------------------------------------------------------------
CAISSE NATIONALE DE 10,769,230.77 17,230,769.23 555 East Monroe Street 555 East Monroe Street
CREDIT AGRICOLE Suite 4700 Suite 4700
Chicago, IL 60603 Chicago, IL 60603
- -------------------------------------------------------------------------------------------------------------------------------
THE MITSUI TRUST AND 10,769,230.77 17,230,769.23 1251 Ave. of the Americas 1251 Ave. of the Americas
BANKING COMPANY, LIMITED 39th Fl. 39th Fl.
New York, N.Y. 1002-1104 New York, N.Y. 1002-1104
- -------------------------------------------------------------------------------------------------------------------------------
THE TOKAI BANK, LIMITED, 10,769,230.77 17,230,769.23 300 South Grand Ave., 7th Fl. 300 South Grand Ave., 7th Fl.
LOS ANGELES AGENCY Los Angeles, CA 90071 Los Angeles, CA 90071
===============================================================================================================================
</TABLE>
<PAGE> 132
SCHEDULE 3.01(c)
SURVIVING DEBT
<TABLE>
<CAPTION>
Outstanding USD
Balance Outstanding Maturity
Obligor Lender As of Amount Date
- ------- ------ ----- ------ ----
<S> <C> <C> <C> <C>
Beckman Instruments, Inc. Debenture 30-Sep-97 100,000,000 1-Jun-26
Sanofi Diagnostics Pasteur 30-Sep-97 22,973,322 30-Apr-04
Beckman Instruments (Japan), Ltd. DKB 30-Sep-97 24,030,000 * 9-Dec-98
Citibank 30-Sep-98
Citibank 7-Oct-02
IBJ 30-Sep-99
IBJ 28-Feb-02
Coulter KK - Japan DKB 30-Jun-97 23,318,905 Various
Fuji
Sanwa
Coulter Canada Bank of Nova Scotia 30-Jun-97 2,932,420 Various
Coulter France BFCE 30-Jun-97 2,486,809 Various
Coulter Germany Industriekreditbank 30-Jun-97 3,631,297 Various
Hypobank 30-Jun-97 3,718,144 Various
Immunotech France Credit National 30-Jun-97 108,184 Various
Credit du Nord 30-Jun-97 1,625,049 Various
BNP 30-Jun-97 1,285,186 Various
Other 30-Jun-97 1,589,719 Various
Beckman Instruments, Inc. and Capitalized Leases 30-Sep-97 10,778,203 Various
Guarantors
</TABLE>
* Guaranteed by Beckman Instruments, Inc.
<PAGE> 133
SCHEDULE 4.01(b)
BECKMAN INSTRUMENTS, INC. SUBSIDIARIES
1997
<TABLE>
<CAPTION>
===============================================================================================================================
OWNERSHIP PLACE AND DATE
(except for OF PRIMARY
NAME OF COMPANY qualifying shares) INCORPORATION LOCATION
===============================================================================================================================
<S> <C> <C> <C>
Beckman Instruments AB BII-100% Sweden, 2/5/80 Bromma, Sweden
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Undertakings (Bermuda) Limited BII-100% Bermuda, 9/10/96 Hamilton, Bermuda
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Offshore (Bermuda) Limited BUBL-100% Bermuda, 9/10/96 Hamilton, Bermuda
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Instruments Holdings G.m.b.H. BII-100% Germany, 11/15/94 Munich, Germany
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Instruments G.m.b.H. BIHG-99% Germany, 7/1/53 Munich, Germany
BII-1%
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Instruments Gesellschaft BIG-100% Austria, 7/9/68 Vienna, Austria
m.b.H.
- -------------------------------------------------------------------------------------------------------------------------------
SKD Pharma G.m.b.H. BIHG-100% Germany, 11/30/94 Germany
- -------------------------------------------------------------------------------------------------------------------------------
SKD France S.A.R.L. BIF-100% France, 7/10/90 Gagny, France
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Eurocenter S.A. BII-100% Switzerland, 1/26/94 Nyon, Switzerland
- -------------------------------------------------------------------------------------------------------------------------------
BC Insurance Company, Inc. BII-100% Hawaii, 12/23/92 Hawaii
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Instruments (Canada) Inc. BII-100% Canada, 12/1/84 Mississauga, Canada
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Instruments (Naguabo) Inc. BII-100% California, 11/19/93 Naguabo, Puerto Rico
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Instruments (FSC) Inc. BII-100% U.S. Virgin Islands, St. Thomas, U.S.
7/27/89 Virgin Islands
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Holdings Limited BII-100% United Kingdom, High Wycombe,
11/17/88 United Kingdom
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Instruments BHL-100% United Kingdom, High Wycombe,
(United Kingdom) Limited 10/6/87 United Kingdom
- -------------------------------------------------------------------------------------------------------------------------------
Genomyx Corporation BII-100% California, 6/6/88 Foster City, California
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Instruments (Hong Kong) Limited BII-100% Hong Kong, 2/13/79 Aberdeen, Hong Kong
- -------------------------------------------------------------------------------------------------------------------------------
Hybritech Incorporated BII-100% California, 9/29/95 San Diego, California
- -------------------------------------------------------------------------------------------------------------------------------
Hybritech International, Inc. HI-1005 California, 6/25/81
- -------------------------------------------------------------------------------------------------------------------------------
Hybrigenetics Cancer Research Incorporated HI-100% California, 7/14/82
- -------------------------------------------------------------------------------------------------------------------------------
Hybritech Clinical, Inc. HI-100% California, 10/26/83
- -------------------------------------------------------------------------------------------------------------------------------
Hybritech International Sales Corp. HI-100% California, 6/13/84
- -------------------------------------------------------------------------------------------------------------------------------
Hybritech Foreign Sales Corp. HI-100% U.S. Virgin Islands,
12/28/84
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Instruments International S.A. BII-100% Switzerland, 9/6/89 Nyon, Switzerland
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Instruments (Japan) Limited BII-100% Japan, 7/1/77 Tokyo, Japan
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Instruments (Ireland) Inc. BII-100% Panama, 8/4/71 Galway, Ireland
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Instruments (Australia) Pty. Ltd. Ireland-100%* Australia, 10/13/80 Gladesville, Australia
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Instruments (Australia) Australia-100%* Australia, 1/19/81 Gladesville, Australia
Superannuation Pty. Ltd.
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Instruments Espana S.A. Ireland-100% Spain 10/27/81 Madrid, Spain
- -------------------------------------------------------------------------------------------------------------------------------
Hybritech S.A. BES-100% Spain
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Instruments de Mexico S.A. de C.V. BII-100%* Mexico, 2/15/66 Mexico City, Mexico
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Instruments (Nederland) B.V. BII-100% Netherlands, 12/16/68 Mijdrecht, Netherlands
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Analytical S.p.A. BIN-99.999% Italy, 10/18/78 Milan, Italy
BI(I)-.001%
- -------------------------------------------------------------------------------------------------------------------------------
Hybritech Europe S.A. BIN-52,000 Belgium, 10/19/81 Liege, Belgium
HII-999
HI-1
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Instruments (Proprietary) Ltd. BII-100% South Africa, 6/10/63 Johannesburg
South Africa
- -------------------------------------------------------------------------------------------------------------------------------
Beckman (U.K.) Pension Trustees Limited BII-100%* United Kingdom, 2/1/78 High Wycombe, United Kingdom
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Instruments Singapore (Pte) Ltd. BII-100% Singapore, 9/28/79 Singapore, Republic of Singapore
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Laboratory systems (Suzhou) Co. Ltd. BSGP-100% China People's Republic of China
- -------------------------------------------------------------------------------------------------------------------------------
SmithKline Diagnostics, Inc. BII-100% Delaware, 5/16/66 San Jose, California
- -------------------------------------------------------------------------------------------------------------------------------
Beckman Instruments (Taiwan) Inc. BII-100% California, 8/29/83 Taipei, Taiwan
===============================================================================================================================
</TABLE>
* In the process of being transferred from Joseph R. Coulter, Jr. to Coulter
Leasing Corporation.
<PAGE> 134
SUBSIDIARIES OF THE COMPANY
DOMESTIC SUBSIDIARIES
<TABLE>
<CAPTION>
SUBSIDIARY INCORPORATION SHAREHOLDERS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Coulter Leasing Illinois Coulter Corporation -- 100,000 shares (100%)
Corporation
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter Electronics of New Massachusetts Coulter Corporation -- 10 shares (100%)
England, Inc. (dormant)
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter Biomedical Massachusetts Coulter Electronics of New England, Inc. -- 98,100 shares (100%)
Research Corporation
(dormant)
- ------------------------------------------------------------------------------------------------------------------------------------
Omicron Technology New Jersey Coulter Corporation -- 98,233 shares (100%)
Corporation (dormant)
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter Scientific, Inc. Illinois Coulter Corporation -- 2,500 shares (100%)
(DISC)
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter FICO, Inc. Delaware Coulter Corporation -- 3,000 shares (100%)
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter International Florida Coulter Corporation -- 10,000 shares (100%)
Corporation
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter Chemistry, Inc. Illinois Coulter Corporation -- 2,000 shares (100%)
(dormant)
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter Holdings, Inc. Florida Coulter Corporation -- 100,000 shares (100%)
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter Foreign Sales United States Coulter Corporation -- 1,000 shares (100%)
Corporation Virgin Islands --
St. Croix
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter Electronics Sales of Illinois Coulter Corporation -- 1,000 shares (100%)
Puerto Rico, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
I.C. Inc. Tennessee Coulter Corporation -- 50 shares (100%)
(Interstate Blood Bank)
</TABLE>
FOREIGN SUBSIDIARIES
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Coulter Electronics S.A. Argentina Coulter Electronics Sales of Puerto Rico, Inc. -- 9,690 shares (99.9%)
Argentina *Joseph R. Coulter, Jr. -- 10 shares** (0.1%)
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter Electronics Australia Coulter Corporation -- 5,000 ordinary shares (100% of ordinary shares)
(PTY) Ltd. Coulter Corporation -- 8,213 Redeemable Preference Shares (100% of
Redeemable Preference Shares)
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter Leasing (PTY) Australia Coulter Electronics (PTY) Ltd. -- 2 ordinary shares (100% of ordinary
shares)
Coulter Corporation -- 8,213 Redeemable Preference Shares (100% of
Redeemable Preference Shares)
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter Electronics Brazil Coulter Corporation -- 777,300,663 shares (99.99%)
Industria E Comercia *Joseph R. Coulter, Jr. -- 42,730 shares (.0054%)
LTDA (Brazil)
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter Electronics of Canada Coulter Corporation -- 50,000 shares (100%)
Canada, Ltd.
- ------------------------------------------------------------------------------------------------------------------------------------
Coultronics France S.A France Coulter Scientific S.A. -- 679,938 shares (99.99%)
*Joseph R. Coulter, Jr. -- 56 shares** (.008%)
Henri Bressac -- 1 share** (.00033%)
Brian Hall -- 1 share** (.00033%)
Jean-Piere Vaugon -- 1 share** (.00033%)
Laura Coulter-Jones -- 1 share** (.00033%)
Joseph R. Coulter III -- 1 share** (.00033%)
Richard Haas -- 1 share** (.00033%)
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter Scientific S.A. France Coulter Corporation -- 1,393,654 shares (99.9996%)
Wallace H. Coulter -- 1 share (.000072%)
*Joseph R. Coulter, Jr. -- 1 share (.000072%)
Henri Bressac -- 2 shares (.0001430)
Brian Hall -- 1 share (.000072%)
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter Electronics Germany Coulter Dapplehurst Ltd.*** (97%)
GMBH Coulter Electronics Ltd.*** (3%)
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter Euro Diagnostics Germany Coulter Corporation** (100%)
GMBH
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter Euro Services Germany Coulter Corporation** (100%)
GMBH
- ------------------------------------------------------------------------------------------------------------------------------------
Immunotech S.A. France Coulter France -- 489,780 shares (90.59%)
Coulter Scientific -- 50,446 shares (9.33%)
Coulter Corporation -- 400 shares (.073%)
Coulter Holding -- 1 share (.00018%)
Mr. Michael Brochu -- 1 share** (.00018%)
Mr. Jean Cantacuzene -- 2 shares** (.00036%)
Mr. Michael Delaage -- 1 share** (.00018%)
Mr. Antoine Beret -- 1 share** (.00018%)
- ------------------------------------------------------------------------------------------------------------------------------------
Immunotech Partners France Immunotech S.A. -- 2,494 shares (99.76%)
Other -- 6 shares (.24%)
- ------------------------------------------------------------------------------------------------------------------------------------
Immunotech Pharma France Immunotech S.A. -- 4,994 shares (99.88%)
Other -- 6 shares (.12%)
- ------------------------------------------------------------------------------------------------------------------------------------
Immunotech Maroc Morocco Immunotech S.A. -- 100 shares (66.67%)
Moufid Benkirane -- 45 shares (30.00%)
Other -- 5 shares (3.33%)
- ------------------------------------------------------------------------------------------------------------------------------------
Immunotech a.s. Czech Republic Immunotech S.A. -- 104,040 shares (51.00%)
Vaclav Madr -- 21,315 shares (10.45%)
Vratislav Svoboda -- 21,315 shares (10.45%)
Imrich Kleinmann -- 21,315 shares (10.45%)
Dolibor Tluchor -- 21,315 shares (10.45%)
Employees -- 14,700 shares (7.20%)
- ------------------------------------------------------------------------------------------------------------------------------------
Immunotech S.I.O. Slovakia Immunotech a.s.*** (75%)
Dr.Ondrej Foldes*** (25%)
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter Electronics Hong Kong Coulter Corporation -- 9,999 shares (99.995)
(H.K.) Ltd. Coulter Holdings Inc. -- 1 share (.01%)
Coulter Electronics
(H.K.) Ltd. Is not
qualified to do business
in certain jurisdictions,
including Singapore and
Taiwan.
- ------------------------------------------------------------------------------------------------------------------------------------
Coulte K.K. (Japan) Japan Coulter Corporation -- 92,000 shares Common Stock (100%)
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter de Mexico S.A. Mexico Coulter Corporation -- 12,500 variable shares (100%)
de C.V. (Mexico) Coulter Corporation -- 622 fixed shares (99.52%)
Coulter Leasing Corporation -- 1 fixed share (.16%)
Coulter Electronics Sales of Puerto Rico, Inc. -- 1 fixed share (.16%)
Coulter Electronics of New England, Inc. -- 1 fixed share (.16%)
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter Electronics (NZ) New Zealand Coulter Electronics (PTY) Ltd. -- 99 ordinary shares (99%)
Ltd. Fermata Holdings -- 1 ordinary share** (1%)
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter Electronics of South Africa Coulter Corporation -- 199 ordinary shares (99.5%)
South Africa (PTY) Ltd. *Joseph R. Coulter, Jr. -- 1 ordinary share** (.5%)
(S.A.)
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter Electronics Ltd. U.K. Coulter Corporation -- 10,007 shares (99.99%)
(U.K.) Coulter Leasing Corporation -- 1 share (.01%)
- ------------------------------------------------------------------------------------------------------------------------------------
Dapplehurst Ltd. (UK) U.K. Coulter Electronics Ltd. -- 99 shares (99%)
William George West -- 1 share** (1%)
- ------------------------------------------------------------------------------------------------------------------------------------
Coulter Electronics S.A. Venezuela Coulter Corporation -- 25,600 shares (100%)
(Venezuela)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
* In the process of being transferred from Joseph R. Coulter, Jr. to Coulter
Leasing Corporation.
** Shares held as nominee for Coulter Corporation.
*** No shares are held because this is a non-stock company.
<PAGE> 135
SCHEDULE 4.01(x)
INVESTMENTS
<TABLE>
<CAPTION>
USD OUTSTANDING
OUTSTANDING BALANCE MATURITY
INVESTMENT OBLIGOR ISSUER AMOUNT AS OF DATE
---------- ------- ------ ------ ----- ----
<S> <C> <C> <C> <C> <C>
1 INTERCOMPANY LOANS Beckman Holdings G.m.b.H. Beckman Bermuda 11,320,000 30-Sep-97 28-Nov-97
Beckman Germany Beckman Holdings G.m.b.H. 11,320,000 30-Sep-97 28-Nov-97
Beckman Netherlands Beckman Bermuda 10,291,000 30-Sep-97 28-Nov-97
Beckman Spain Beckman Netherlands 10,291,000 30-Sep-97 28-Nov-97
Beckman France Beckman Bermuda 7,943,000 30-Sep-97 28-Nov-97
Beckman Italy Beckman Ireland 33,000,000 30-Sep-97 28-Nov-97
Beckman Eurocenter Hybritech Belgium 5,015,000 30-Sep-97 24-Oct-97
Beckman Holdings G.m.b.H. Beckman Ireland 2,267,831 31-Oct-97 28-Nov-97
Beckman Eurocenter Beckman Ireland 5,146,857 31-Oct-97 28-Nov-97
Beckman Instruments, Inc BC Insurance Co. 24,514,000 30-Sep-97 On Demand
Beckman Instruments, Inc Beckman Naguabo 61,380,000 30-Sep-97 On Demand
Beckman Instruments, Inc Hybritech U.S. 3,900,000 30-Sep-97 On Demand
Coulter Immunotech France Coulter France 5,862,000 31-Aug-97 On Demand
Beckman Germany Beckman Holdings G.m.b.H. 622,600 30-Sep-97 28-Nov-97
Beckman Germany SmithKline Pharma 622,600 30-Sep-97 28-Nov-97
Beckman Germany Hybritech Germany 1,698,000 30-Sep-97 27-Oct-97
Beckman France Beckman Bermuda 845,000 30-Sep-97 27-Oct-97
Beckman Netherlands Beckman Bermuda 1,681,700 30-Sep-97 28-Nov-97
Beckman Netherlands Beckman Ireland 4,518,000 30-Sep-97 28-Nov-97
Beckman Spain Beckman Netherlands 1,681,700 30-Sep-97 28-Nov-97
Beckman U.K. Beckman Netherlands 4,470,299 30-Sep-97 28-Nov-97
Beckman Spain Hybritech Spain 757,100 30-Sep-97 28-Nov-97
Beckman Austria Beckman International S.A. 296,000 30-Sep-97 27-Oct-97
Beckman Pty. Hybritech Europe S.A. 532,500 30-Sep-97 3-Dec-97
Coulter Corp. Coulter Leasing 1,638,000 30-Sep-97 On Demand
2 EQUITY ENTITY LOCATION See Schedule 4.01 (b) for Organization Chart
------ --------
Beckman Naguabo Puerto Rico 71,367,000 30-Sep-97
BC Insurance Co. U.S. 19,558,000 30-Sep-97
SmithKline Diagnostics U.S. 32,289,000 30-Sep-97
Beckman Germany Germany 5,639,000 30-Sep-97
Beckman Holdings G.m.b.H. Germany 42,724,000 30-Sep-97
Beckman Ireland Ireland 71,146,000 30-Sep-97
Beckman Instruments Int'l Switzerland 10,155,000 30-Sep-97
Beckman U.K. U.K. 8,395,000 30-Sep-97
Beckman France France 12,545,000 30-Sep-97
Hybritech Europe S.A. Belgium 23,141,000 30-Sep-97
Beckman Netherlands Netherlands 56,618,000 30-Sep-97
Beckman Italy Italy 21,308,000 30-Sep-97
Beckman Spain Spain 16,231,000 30-Sep-97
Beckman Pty. So. Africa 7,642,000 30-Sep-97
Beckman Japan Japan 12,984,000 30-Sep-97
Beckman Australia Australia 6,827,000 30-Sep-97
Beckman Mexico Mexico 9,801,000 30-Sep-97
Beckman Undertakings Bermuda 31,380,000 30-Sep-97
Coulter Corp U.S. 59,109,000 31-Aug-97
Coulter Leasing Corp. U.S. 36,660,000 31-Aug-97
Coulter England U.K. 21,155,000 31-Aug-97
Coulter Germany Germany 11,337,000 31-Aug-97
Coulter France France 23,215,000 31-Aug-97
Coulter Immunotech France 14,979,000 31-Aug-97
Coulter Scientific France France 12,537,000 31-Aug-97
Coulter KK Japan 11,578,000 31-Aug-97
3 INVESTMENTS IN THIRD PARTIES IN THE AGGREGATE ARE LESS THAN $25,000,000.
4 GUARANTEES OBLIGOR ISSUER
------- ------
Various Subsidiaries * Beckman Instruments, Inc.
Coulter Leasing Coulter Corp.
</TABLE>
* See Schedule 3.01 c
<PAGE> 136
SCHEDULE 5.02(a)
EXISTING LIENS
A. EXISTING LIENS: GENERAL
- --------------------------
1. Uniform Commercial Code financing statements filed for precautionary
purposes in connection with true leases of property (including but not
limited to those set forth in B.44-45 below).
2. Liens arising in connection with Capitalized Leases included in Surviving
Debt (including but not limited to those set forth in B.44-45 below).
3. Purchase Money Liens securing Surviving Debt (including but not limited to
those set forth in B.43-44 below).
4. Liens resulting from conditional or title retention sales existing on the
Closing Date.
5. Software licenses existing on the Closing Date.
B. EXISTING LIENS: SPECIFIC
- ----------------------------
Liens relating to Existing Debt to be paid on or before the Closing Date:
1. Liens arising out of that certain Amended and Restated Revolving Credit
Agreement, dated as of March 12, 1993, between Coulter Corporation and
Bank of America, N.T. & S.A., as amended.
2. Liens arising out of that certain Security Agreement, dated August 24,
1987, between Sanwa Business Credit Corporation and Coulter Leasing
Corporation, as amended, plus guaranty by Coulter Electronics, Inc. which
has been assumed by Coulter Corporation.
3. Liens, if any, arising out of that certain long term line of credit, dated
April 23, 1993, between Coulter Electronics Sales of Puerto Rico, Inc. and
Scotia Bank.
4. Liens and mortgages on the Coulter Technology Center (11800 S. W. 147th
Avenue, Miami, Florida) securing a line of credit existing as of the
Closing Date.
Liens relating to Existing Debt which will not be paid off on or before
the Closing Date:
5. Liens, if any, arising out of those certain long term lines of credit,
dated December 1991, between Banque Nationale de Paris and Immunotech,
S.A.
6. Liens and mortgages on real property located in Japan relating to
mortgage loans which, as of August 31, 1997, had an outstanding principal
balance of $21.8 million.
<PAGE> 137
7. Liens, if any, arising out of the operating line of credit, dated August
13, 1996, between Coulter Electronics of Canada, Ltd., and the Bank of Nova
Scotia.
8. Liens, if any, arising out of the leasing business line of credit, dated
August 13, 1996, between Coulter Electronics of Canada, Ltd., and the Bank
of Nova Scotia.
9. Liens, if any, arising out of that certain short term line of credit in
effect as of the Closing Date between Coulter Electronics, Ltd. (U.K.) and
Midland Bank.
10. Liens, if any, arising out of that certain short term line of credit, dated
March 21, 1997, in effect as of the Closing Date between Coulter
Electronics, Ltd. (U.K.) and standard Chartered Bank.
11. Liens, if any, arising out of that certain short term line of credit in
effect as of the Closing Date between Coultronics France, S.A. and Banque
Nationale de Paris.
12. Liens, if any, arising out of that certain short term line of credit in
effect as of the Closing Date between Coultronics France, S.A. and BNSM.
13. Liens, if any, arising out of that certain short term line of credit in
effect as of the Closing Date between Coultronics France, S.A. and BFCE.
14. Liens, if any, arising out of that certain short term line of credit, dated
December 1996, in effect as of the Closing Date between Coulter Electronics
GMBH and Deutsche Bank.
15. Liens, if any, arising out of that certain short term line of credit, April
1997, in effect as of the Closing Date between Coulter Electronics GMBH,
Coulter Euro Diagnostics and Commerz Bank.
16. Liens, if any, arising out of that certain short term line of credit, dated
July 1997, in effect as of the Closing Date between Coulter Electronics
GMBH and Berliner Bank.
17. Liens, if any, arising out of that certain short loan facility, dated
October 13, 1969, in effect as of the Closing Date between Coulter K.K.
(Japan) and Fuji Bank.
18. Liens, if any, arising out of that certain short term loan facility dated
January 13, 1965, in effect as of the Closing Date between Coulter K.K.
(Japan) and Fuji Bank.
19. Liens, if any, arising out of that certain short loan facility, dated
August 30, 1996, in effect as of the Closing Date between Coulter K.K.
(Japan) and Fuji Bank.
20. Liens, if any, arising out of that certain bill discount loan facility,
dated October 13, 1969, in effect as of the Closing Date between Coulter
K.K. (Japan) and Fuji Bank.
21. Liens, if any, arising out of that certain long term loan agreement, dated
July 25, 1994, between Coulter K.K. (Japan) and Fuji Bank.
<PAGE> 138
22. Liens, if any, arising out of that certain long term loan agreement, dated
December 25, 1994, between Coulter K.K. (Japan) and Fuji Bank.
23. Liens, if any, arising out of that certain long term chattel mortgage loan
agreement, dated November 27, 1996, between Coulter K.K. (Japan) and Fuji
Bank.
24. Liens, if any, arising out of that certain short term loan, dated August
28, 1996, between Coulter K.K. (Japan) and Dai-ichi Bank.
25. Liens, if any, arising out of that certain short term loan facility, base
agreement dated April 19, 1974, between Coulter K.K. (Japan) and Dai-ichi
Bank.
26. Liens, if any, arising out of that certain short term loan facility, base
agreement dated April 19, 1974, between Coulter K.K. (Japan) and Dai-ichi
Bank.
27. Liens, if any, arising out of that certain long term loan agreement, dated
August 25, 1994, between Coulter K.K. (Japan) and Dai-ichi Bank.
28. Liens, if any, arising out of that certain long term loan agreement, dated
December 18, 1995, between Coulter K.K. (Japan) and Dai-ichi Bank.
29. Liens, if any, arising out of that certain long term mortgage loan
agreement, dated November 29, 1996, between Coulter K.K. (Japan) and
Dai-ichi Bank.
30. Liens, if any, arising out of that certain short term loan facility, base
agreement dated May 30, 1996, between Coulter K.K. (Japan) and Sanwa Bank.
31. Liens, if any, arising out of that certain long term mortgage loan, dated
May 30, 1996, between Coulter K.K. (Japan) and Sanwa Bank.
32. Liens, if any, arising out of those certain long term lines of credit,
dated December 1991, between Immunotech, S.A. and Credit Du Nord.
33. Liens, if any, arising out of that certain long term line of credit, dated
1991, between Coulter Electronics, GmbH and Industrie Kreditbank.
34. Liens, if any, arising out of that certain long term line of credit, dated
1992, between Coulter Electronics, GmbH and Deutsche Hypothekenbank.
35. Liens, if any, arising out of that certain Master Lease Purchase Agreement
between Coulter Leasing Corporation and Copelco Capital, Inc., dated May
22, 1995.
36. Liens arising out of that certain Non-recourse Loan and Security Agreement,
dated April 1, 1996, as amended, between Coulter Leasing Corporation and
General Electric Credit Corporation.
<PAGE> 139
37. Liens, if any, arising out of that certain Agreement between Sanwa Business
Credit (UK) Limited and Coulter Electronics Limited dated March 28, 1991.
38. Liens, if any, arising out of that certain Contract dated October 10, 1988
between Coultronics France, S.A. and Leasplan.
39. Liens, if any, arising out of that certain Facility letter, dated December
2, 1996, between Midland Bank and Coulter Electronics Limited.
40. Liens and mortgages on real property in Latin America relating to mortgage
loans that, as of September 30, 1997, had an outstanding principal balance
of $358,000.
41. Liens, if any, arising out of a sale-leaseback transaction for real
property in France (19 Avenue Georges Pompidou - 95580 Margency).
42. Liens or mortgages on real property owned by Immunotech in France and
Germany relating to mortgages and notes on such property that, as of March
31, 1997, had an outstanding principal balance of $3.08 million.
43. Liens or mortgages on real property in Germany (Europark, Fichtenhain B13,
47807 Krefeld, Germany) relating to mortgage loans that, as of March 31,
1997, had an outstanding principal balance of $7.71 million.
44. Liens arising from UCC Financing Statements filed by Bank of America, NT &
SA, Sanwa Business Credit Corporation, General Electric Credit Corp.,
Barnett Bank of South Florida, N.A., Pitney Bowes Credit Corporation,
Coulter Leasing Corporation, Master Lease Division of Tokai Financial
Services, Inc., Xerox Corporation, Newcourt Receivables Corporation, IBM
Credit Corporation, and Unilease of Florida, Inc. prior to the Closing Date
naming Coulter Corporation as debtor.
45. Liens arising from UCC Financing Statements filed by General Electric
Credit Corp., Copelco Capital Inc., Tokai Financial Services, Inc., General
Electric Capital Corporation, Leasevision, Inc., Wellesley Leasing, Limited
Partnership IIID, CI Leasing Corp., Southeast Bank Leasing Company, 20Cha
Biomedical Laboratories, Inc., The CIT Group/Equipment Financing, Inc.,
Comdisco, Inc., Bay Resources, Inc., NationsBank of Florida, N.A.,
Southeast First Leasing, Inc., Heritage Pullman Bank & Trust Company,
NationsBanc Leasing Corp., Citizens and Southern Capital Corp. Equipment
Financing/Leasing, Sun Trust Bank, Central Florida, National Association,
BA Credit Corp., Charter Financing, Inc., Haworth Leasing, Inc., and
Newcourt Financial prior to the Closing Date naming Coulter Leasing
Corporation as debtor.
<PAGE> 140
EXHIBIT A-1 -- FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 1997
FOR VALUE RECEIVED, the undersigned, BECKMAN INSTRUMENTS, INC., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office (as defined in the Credit Agreement referred to below) the
aggregate principal amount of the Revolving Credit Advances (as defined below)
owing to the Lender by the Borrower pursuant to the Credit Agreement dated as of
October 31, 1997 among the Borrower, the Lender and certain other lenders and
issuing banks party thereto, Citicorp USA, Inc., as Agent for the Lender and
such other lenders and issuing banks, and Citicorp Securities, Inc., as Arranger
(as amended or modified from time to time, the "Credit Agreement"; the terms
defined therein being used herein as therein defined), on the Termination Date.
The Borrower promises to pay interest on the unpaid principal amount of
each Revolving Credit Advance from the date of such Revolving Credit Advance
until such principal amount is paid in full, at such interest rates, and payable
at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Citicorp USA, Inc., as Agent, at _________________________,
____________________, __________, in same day funds. Each Revolving Credit
Advance owing to the Lender by the Borrower pursuant to the Credit Agreement,
and all payments made on account of principal thereof, shall be recorded by the
Lender and, prior to any transfer hereof, endorsed on the grid attached hereto
which is part of this Promissory Note.
This Promissory Note is one of the Revolving Credit Notes referred to
in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, (i) provides for the making of advances (the
"Revolving Credit Advances") by the Lender to the Borrower from time to time in
an aggregate amount not to exceed at any time outstanding the U.S. dollar amount
first above mentioned, the indebtedness of the Borrower resulting from each such
Revolving Credit Advance being evidenced by this Promissory Note, and (ii)
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.
The Borrower hereby waives presentment, demand, protest and notice of any kind.
No failure to exercise, and no delay in exercising, any rights hereunder on the
part of the holder hereof shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
BECKMAN INSTRUMENTS, INC.
By
-----------------------------------
Title:
<PAGE> 141
ADVANCES AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
=======================================================================================================================
AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------
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=======================================================================================================================
</TABLE>
1
<PAGE> 142
EXHIBIT A-2 -- FORM OF
COMPETITIVE BID
PROMISSORY NOTE
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 1997
FOR VALUE RECEIVED, the undersigned, BECKMAN INSTRUMENTS, INC., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office (as defined in the Credit Agreement dated as of October 31, 1997
among the Borrower, the Lender and certain other lenders and issuing banks party
thereto, Citicorp USA, Inc., as Agent for the Lender and such other lenders and
issuing banks and Citicorp Securities, Inc., as Arranger (as amended or modified
from time to time, the "Credit Agreement"; the terms defined therein being used
herein as therein defined)), on _______________, 199_, the principal amount of
U.S.$_______________.
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: _____% per annum (calculated on the basis of a
year of _____ days for the actual number of days elapsed).
Interest Payment Date(s): ___________________________________.
Both principal and interest are payable in lawful money of the United
States of America to Citicorp USA, Inc., as Agent, at _________________________,
in same day funds.
This Promissory Note is one of the Competitive Bid Notes referred to
in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events. This Promissory
Note may not be voluntarily prepaid, in whole or in part, except as set forth in
the related Notice of Competitive Bid Borrowing delivered by the Borrower
pursuant to Section 2.02(a)(i) of the Credit Agreement. The Borrower hereby
waives presentment, demand, protest and notice of any kind. No failure to
exercise, and no delay in exercising, any rights hereunder on the part of the
holder hereof shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
BECKMAN INSTRUMENTS, INC.
By
-----------------------------------
Title:
<PAGE> 143
EXHIBIT A-3 -- FORM OF
TERM LOAN
PROMISSORY NOTE
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 1997
FOR VALUE RECEIVED, the undersigned, BECKMAN INSTRUMENTS, INC., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office (as defined in the Credit Agreement referred to below) the
principal sum of U.S.$[amount of the Lender's Term Loan Commitment in figures]
owing to the Lender by the Borrower pursuant to the Credit Agreement dated as of
October 31, 1997 among the Borrower, the Lender and certain other lenders and
issuing banks party thereto, Citicorp USA, Inc., as Agent for the Lender and
such other lenders and issuing banks and Citicorp Securities, Inc., as Arranger
(as amended or modified from time to time, the "Credit Agreement"; the terms
defined therein being used herein as therein defined), on the dates and in the
amounts specified by the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount of
this Note from the date of the Term Loan Advance (as defined below) evidenced
hereby until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Citicorp USA, Inc., as Agent, at _________________________,
____________________, __________, in same day funds. The Term Loan Advance owing
to the Lender by the Borrower pursuant to the Credit Agreement, and all payments
made on account of principal thereof, shall be recorded by the Lender and, prior
to any transfer hereof, endorsed on the grid attached hereto which is part of
this Promissory Note.
This Promissory Note is one of the Term Loan Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of a single advance (the "Term
Loan Advance") by the Lender to the Borrower in an aggregate amount not to
exceed the U.S. dollar amount first above mentioned, the indebtedness of the
Borrower resulting from such Term Loan Advance being evidenced by this
Promissory Note, and (ii) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for prepayments on
account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified. The Borrower hereby waives presentment, demand,
protest and notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof shall operate
as a waiver of such rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
BECKMAN INSTRUMENTS, INC.
By
----------------------------------
Title:
<PAGE> 144
ADVANCES AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
=======================================================================================================================
AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
<S> <C> <C> <C> <C>
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</TABLE>
<PAGE> 145
EXHIBIT B-1 -- FORM OF NOTICE OF
BORROWING
Citicorp USA, Inc., as Agent
for the Lenders and Issuing
Banks party to the Credit
Agreement referred to below
_________________________
_________________________ [Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, Beckman Instruments, Inc., refers to the Credit
Agreement, dated as of October 31, 1997 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, certain lenders and issuing banks party
thereto, Citicorp USA, Inc., as Agent and Citicorp Securities, Inc., as
Arranger, and hereby gives you notice, irrevocably, pursuant to Section 2.01(c)
of the Credit Agreement, that the undersigned hereby requests a Borrowing under
the Credit Agreement, and in that connection sets forth below the information
relating to such Borrowing (the "Proposed Borrowing") as required by Section
2.01(c) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is ______________,
199_.
(ii) The Facility under which the Proposed Borrowing is to be
made is the [Revolving Credit Facility] [Term Loan Facility].
(iii) The Type of Advances comprising the Proposed Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
(iv) The aggregate amount of the Proposed Borrowing is
$_______________.
(v) The initial Interest Period for each Eurodollar Rate
Advance made as part of the Proposed Borrowing is _____ month[s].
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in Section 4.01
of the Credit Agreement and in each other Loan Document are correct in
all material respects on and as of such date, before and after giving
effect to the Proposed Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date (except and to the
extent such representations and warranties relate to an earlier date);
and
(B) no event has occurred and is continuing, or would result
from such Proposed Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
Very truly yours,
BECKMAN INSTRUMENTS, INC.
By
--------------------------------
Title:
<PAGE> 146
EXHIBIT B-2 -- FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citicorp USA, Inc., as Agent
for the Lenders and
Issuing Banks party
to the Credit Agreement
referred to below
_________________________
_________________________ [Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, Beckman Instruments, Inc., refers to the Credit
Agreement, dated as of October 31, 1997 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, certain lenders and issuing banks party
thereto, Citicorp USA, Inc., as Agent for said lenders and issuing banks party
thereto, and Citicorp Securities, Inc., as Arranger, and hereby gives you
notice, irrevocably, pursuant to Section 2.02(a)(i) of the Credit Agreement,
that the undersigned hereby requests a Competitive Bid Borrowing under the
Credit Agreement, and in that connection sets forth the terms on which such
Competitive Bid Borrowing (the "Proposed Competitive Bid Borrowing") is
requested to be made:
(A) Date of Proposed Competitive
Bid Borrowing ________________________
(B) Amount of Proposed Competitive
Bid Borrowing ________________________
(C) [Maturity Date] [Interest Period] ________________________
(D) Interest Rate Basis ________________________
(E) Interest Payment Date(s) ________________________
(F) ________________________1 ________________________
(G) ________________________ ________________________
(H) ________________________ ________________________
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1 Borrower to set forth other terms and conditions for such Proposed
Competitive Bid Borrowing such as Voluntary prepayment.
<PAGE> 147
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Competitive Bid Borrowing:
(a) the representations and warranties contained in Section
4.01 of the Credit Agreement and in each other Loan Document are correct
in all material respects on and as of such date, before and after giving
effect to the Proposed Competitive Bid Borrowing and to the application
of the proceeds therefrom, as though made on and as of such date (except
and to the extent such representations and warranties relate to an
earlier date); and
(b) no event has occurred and is continuing, or would result from
the Proposed Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
The undersigned hereby confirms that the Proposed Competitive Bid
Borrowing is to be made available to it in accordance with Section 2.02(a)(v) of
the Credit Agreement.
Very truly yours,
BECKMAN INSTRUMENTS, INC.
By
---------------------------------
Title:
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<PAGE> 148
EXHIBIT C -- FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of October 31,
1997 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") among BECKMAN INSTRUMENTS, INC., a Delaware corporation (the
"Borrower"), the lenders and issuing banks party thereto from time to time,
Citicorp USA, Inc., as agent for such lenders and issuing banks (the "Agent"),
and Citicorp Securities, Inc., as arranger. Terms defined in the Credit
Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I
hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in
and to the Assignor's rights and obligations under the Credit Agreement
as of the date hereof (other than in respect of Competitive Bid Advances
and Competitive Bid Notes) equal to the percentage interest specified on
Schedule 1 hereto of all outstanding rights and obligations under the
Credit Agreement Facility or Facilities specified on Schedule 1 hereto.
After giving effect to such sale and assignment, the Assignee's
Commitments and the amount of the Advances owing to the Assignee under
each Facility will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection
with the Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection
or priority of any lien or security interest created or purported to be
created under or in connection with, the Loan Documents or any other
instrument or document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with respect to
the financial condition of any Loan Party or the performance or
observance by any Loan Party of any of its obligations under any Loan
Document or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Note or Notes with respect to the Commitments
assigned held by the Assignor and requests that the Agent exchange such
Note or Notes for a new Note or Notes payable to the order of the
Assignee in an amount equal to the Commitments assumed by the Assignee
pursuant hereto or new Notes payable to the order of the Assignee in an
amount equal to the Commitments assumed by the Assignee pursuant hereto
and the Assignor in an amount equal to the Commitments retained by the
Assignor under the Credit Agreement, respectively, as specified on
Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements
referred to in Section 4.01 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Agent, the
<PAGE> 149
Assignor or any other Lender Party and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints
and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Loan Documents as are
delegated to the Agent by the terms thereof, together with such powers
and discretion as are reasonably incidental thereto; (v) agrees that it
will perform in accordance with their terms all of the obligations that
by the terms of the Credit Agreement are required to be performed by it
as a Lender Party; and (vi) attaches any U.S. Internal Revenue Service
forms required under Section 2.14 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it
will be delivered to the Agent for acceptance and recording by the
Agent. The effective date for this Assignment and Acceptance (the
"Effective Date") shall be the date of acceptance hereof by the Agent,
unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender Party thereunder and (ii)
the Assignor shall, to the extent provided in this Assignment and
Acceptance, relinquish its rights and be released from its obligations
under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and
after the Effective Date, the Agent shall make all payments under the
Credit Agreement and the Notes in respect of the interest assigned
hereby (including, without limitation, all payments of principal,
interest and facility fees with respect thereto) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in payments
under the Credit Agreement and the Notes for periods prior to the
Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number
of 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 one and the
same agreement. Delivery of an executed counterpart of Schedule 1 to
this Assignment and Acceptance by telecopier shall be effective as
delivery of a manually executed counterpart of this Assignment and
Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
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<PAGE> 150
Schedule 1
to
Assignment and Acceptance
As to the ____ Facility in respect of which an interest in being assigned
[Repeat for each Facility in which an interest is being assigned]:
Percentage interest assigned: ____%
Assignee's Commitment: $__________
Aggregate outstanding principal amount of
Advances assigned: $__________
Principal amount of Note payable
to Assignee: $__________
Principal amount of Note payable to
Assignor: $__________
Effective Date (if other than date of acceptance by Agent):* _____________, 199_
[NAME OF ASSIGNOR], as Assignor
By ____________________________________________
Title:
Dated: _______________, 199_
[NAME OF ASSIGNEE], as Assignee
By ____________________________________________
Title:
Dated: _______________, 199_
- ---------------
* This date should be no earlier than five Business days after the
delivery of this Assignment and Acceptance to the Agent.
<PAGE> 151
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted [and Approved]* this
__________ day of _______________, 199_
CITICORP USA, INC., as Agent
By____________________________
Title:
[Approved this __________ day
of _______________, 199_
BECKMAN INSTRUMENTS, INC.
By____________________________]**
Title:
- -----------------------
* Required if the Assignee is an Eligible Assignee solely by reason of
clause (c) of the definition of "Eligible Assignee."
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (c) of the definition of "Eligible Assignee" and the Borrower's
approval is required under such clause (c).
<PAGE> 152
EXHIBIT D -- FORM OF GUARANTY
<PAGE> 153
GUARANTY
GUARANTY dated as of October [__], 1997 made by each of the
Persons listed on the signature pages hereto (each a "Guarantor", and
collectively the "Guarantors"), in favor of the Lender Parties (as defined in
the Credit Agreement referred to below).
PRELIMINARY STATEMENT. The Lender Parties, Citicorp USA, Inc., as
Agent for the Lender Parties and Citicorp Securities, Inc., as Arranger, are
parties to a Credit Agreement dated as of October 31, 1997 (said Agreement, as
it may hereafter be amended, supplemented or otherwise modified from time to
time, being the "Credit Agreement", the terms defined therein and not otherwise
defined herein being used herein as therein defined) with BECKMAN INSTRUMENTS,
INC., a Delaware corporation (the "Borrower"). Each Guarantor may from time to
time receive a portion of the proceeds of the Advances under the Credit
Agreement (and other advances or contributions from the Borrower that the
Borrower will be able to make as a result of the credit extended to the Borrower
under the Credit Agreement) and will otherwise derive substantial direct and
indirect benefits from the Letters of Credit issued pursuant to the Credit
Agreement and the other transactions contemplated thereby. It is a condition
precedent to the making of Advances and the issuance of Letters of Credit by the
Lender Parties under the Credit Agreement that each of the Guarantors shall have
executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lender Parties to make Advances and to issue Letters of Credit under
the Credit Agreement from time to time, each Guarantor hereby agrees as follows:
Section 1. Guaranty; Limitation of Liability. (a) Each Guarantor
hereby unconditionally and irrevocably guarantees the punctual payment when due,
whether at stated maturity, by acceleration or otherwise, of all Obligations of
the Borrower now or hereafter existing under the Loan Documents, whether for
principal, interest, fees, expenses or otherwise (such Obligations being the
"Guaranteed Obligations"), and agrees to pay any and all expenses (including
reasonable counsel fees and expenses) incurred by the Agent or, upon the
occurrence and during the continuation of any Event of Default, any other Lender
Parties in enforcing any rights under this Guaranty. Without limiting the
generality of the foregoing, the liability of each Guarantor shall extend to all
amounts that constitute part of the Guaranteed Obligations and would be owed by
the Borrower to the Agent or any other Lender Party under the Loan Documents but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving the Borrower.
(b) Each of the Guarantors, and by its acceptance of this
Guaranty, the Agent and each other Lender Party, hereby confirm that it is the
intention of all such Persons that this Guaranty and the Obligations of each of
the Guarantors hereunder not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law (as defined below), the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to
the extent applicable to this Guaranty. To effectuate the foregoing intention,
the Agent, the other Lender Parties and each of the Guarantors hereby
irrevocably agree that the Obligations of each of the Guarantors under this
Guaranty shall be limited to the maximum amount as will, after giving effect to
such maximum amount and all other contingent and fixed liabilities of such
<PAGE> 154
Guarantor that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the Obligations of such other
Guarantor under this Guaranty, result in the Obligations of such Guarantor under
this Guaranty not constituting a fraudulent transfer or conveyance. For purposes
hereof, "Bankruptcy Law" means Title 11, U.S. Code, or any similar Federal or
state law for the relief of debtors.
(c) Each Guarantor agrees that in the event any payment shall be
required to be made to the Lender Parties under this Guaranty, such Guarantor
will contribute, to the maximum extent permitted by law, such amounts to each
other Guarantor so as to maximize the aggregate amount paid to the Lender
Parties under the Loan Documents.
Section 2. Guaranty Absolute. Each of the Guarantors guarantees
that the Guaranteed Obligations will be paid strictly in accordance with the
terms of the Loan Documents, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Agent or any other Lender Party with respect thereto. The
Obligations of each of the Guarantors under this Guaranty are independent of the
Guaranteed Obligations or any other Obligations of any other Loan Party under
the Loan Documents, and a separate action or actions may be brought and
prosecuted against each of the Guarantors to enforce this Guaranty, irrespective
of whether any action is brought against the Borrower or any other Loan Party or
whether the Borrower or any other Loan Party is joined in any such action or
actions. The liability of each of the Guarantors under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and the Guarantor
hereby irrevocably waives any defenses it may now or hereafter have in any way
relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan Document
or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations or any other
Obligations of any other Loan Party under the Loan Documents, or any
other amendment or waiver of or any consent to departure from any Loan
Document, including, without limitation, any increase in the Guaranteed
Obligations resulting from the extension of additional credit to the
Borrower or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any manner of application of collateral, or proceeds thereof,
to all or any of the Guaranteed Obligations, or any manner of sale or
other disposition of any collateral for all or any of the Guaranteed
Obligations or any other Obligations of any other Loan Party under the
Loan Documents or any other assets of the Borrower or any of its
Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of the Borrower or any of its Subsidiaries;
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<PAGE> 155
(f) any failure of any Lender Party to disclose to the Borrower
or the Guarantor any information relating to the financial condition,
operations, properties or prospects of any other Loan Party now or in
the future known to any Lender Party (each Guarantor waiving any duty on
the part of the Lender Parties to disclose such information); or
(g) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Agent or any other Lender Party that might
otherwise constitute a defense available to, or a discharge of, the
Borrower, any Guarantor or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by any Lender Party or any other Person upon the
insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party
or otherwise, all as though such payment had not been made.
Section 3. Waivers and Acknowledgments. (a) Each of the
Guarantors hereby waives promptness, diligence, notice of acceptance and any
other notice with respect to any of the Guaranteed Obligations and this Guaranty
and any requirement that the Agent or any other Lender Party protect, secure,
perfect or insure any Lien on any property at any time subject thereto or
exhaust any right or take any action against the Borrower or any other Person or
any collateral.
(b) Each of the Guarantors hereby waives any right to revoke this
Guaranty, and acknowledges that this Guaranty is continuing in nature
and applies to all Guaranteed Obligations, whether existing now or in
the future.
(c) Each of the Guarantors acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth in
this Section 3 are knowingly made in contemplation of such benefits.
Section 4. Subrogation. None of the Guarantors shall exercise any
rights that it may now or hereafter acquire against the Borrower or any other
insider guarantor that arise from the existence, payment, performance or
enforcement of the Guarantor's Obligations under this Guaranty or any other Loan
Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Agent or any other Lender Party
against the Borrower or any other insider guarantor or any collateral, whether
or not such claim, remedy or right arises in equity or under contract, statute
or common law, including, without limitation, the right to take or receive from
the Borrower or any other insider guarantor, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim, remedy or right, unless and until all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash and the Commitments shall have expired or terminated. If
any amount shall be paid to any of the Guarantors in violation of the preceding
sentence at any time prior to the later of the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty and the
Termination Date, such amount shall be held in trust for the benefit of the
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<PAGE> 156
Agent and the other Lender Parties and shall forthwith be paid to the Agent to
be credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of the Loan Documents, or to be held as collateral for any Guaranteed
Obligations or other amounts payable under this Guaranty thereafter arising. If
(a) any of the Guarantors shall make payment to the Agent or any other Lender
Party of all or any part of the Guaranteed Obligations, (b) all of the
Guaranteed Obligations and all other amounts payable under this Guaranty shall
be paid in full in cash and (c) the Termination Date shall have occurred, the
Agent and the other Lender Parties will, at such Guarantor's request and
expense, execute and deliver to the Guarantor appropriate documents, without
recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to such Guarantor of an interest in the Guaranteed
Obligations resulting from such payment by such Guarantor.
Section 5. Payments Free and Clear of Taxes, Etc. (a) Any and all
payments made by any of the Guarantors hereunder shall be made, in accordance
with Section 2.13 of the Credit Agreement, free and clear of and without
deduction for any and all present or future Taxes. If any of the Guarantors
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder to any Lender Party, (i) except as provided in Section 5(f),
the sum payable shall be increased as may be necessary so that, after making all
required deductions (including deductions applicable to additional sums payable
under this Section 5), such Lender Party receives an amount equal to the sum it
would have received had no such deductions been made, (ii) such Guarantor shall
make such deductions and (iii) such Guarantor shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, each of the Guarantors shall pay any present or
future Other Taxes.
(c) Each of the Guarantors shall indemnify each Lender Party for
and hold it harmless against the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 5) imposed on or paid by such Lender Party
and any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within 30 days from
the date such Lender Party makes written demand therefor, accompanied by a
calculation in reasonable detail of the amount demanded and evidence of the
Taxes and Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section) imposed or
paid by the Agent or any other Lender Party.
(d) Within 30 days after the date of any payment of Taxes, the
Guarantor making such payment (or on whose behalf such payment was made) shall
furnish to the Agent, at its address referred to in Section 8.02 of the Credit
Agreement, evidence satisfactory to the Agent of such payment. In the case of
any payment hereunder by or on behalf of any Guarantor through an account or
branch outside the United States or by or on behalf of any Guarantor by a payor
that is not a United States person, if such Guarantor determines that no Taxes
are payable in respect thereof, such Guarantor shall furnish, or shall cause
such payor to furnish, to the Agent, at such address, an opinion of counsel
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<PAGE> 157
acceptable to the Agent stating that such payment is exempt from Taxes. For
purposes of this subsection (d) and subsection (e), the terms "United States"
and "United States person" shall have the meanings specified in Section 7701 of
the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of the Credit Agreement in the case of each Initial Lender or Initial
Issuing Bank, as the case may be, and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender Party in the case of each other
Lender Party, and from time to time thereafter as requested in writing by any of
the Guarantors (but only so long as such Lender Party remains lawfully able to
do so), shall provide each of the Agent and such Guarantor with two original
Internal Revenue Service forms 1001 or 4224, as appropriate, or any successor or
other form prescribed by the Internal Revenue Service, certifying that such
Lender Party is exempt from or is entitled to a reduced rate of United States
withholding tax on payments under the Credit Agreement or the Notes and two
copies of Internal Revenue Service forms W-8 or W-9, or any successor or other
form prescribed by the Internal Revenue Service. In addition to the forms
described in the immediately preceding sentence, each Lender Party organized
under the laws of a jurisdiction outside the United States shall, upon the
request of a Guarantor or the Agent in writing, (i) provide each of the Agent
and such Guarantor with two further copies of such forms or other appropriate
certification of such forms on or before the date that any such form expires or
becomes obsolete and after the occurrence of any event requiring a change in the
most recent form delivered to such Guarantor, and (ii) obtain such extensions of
the time for the filing and shall renew such forms and certifications thereof as
may be reasonably requested by such Guarantor or the Agent. If the form provided
by a Lender Party at the time such Lender Party first becomes a party to the
Credit Agreement indicates a United States interest withholding tax rate in
excess of zero, withholding tax at such rate shall be considered excluded from
Taxes unless and until such Lender Party provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
form; provided, however, that, if at the date of the Assignment and Acceptance
pursuant to which a Lender Party assignee becomes a party to the Credit
Agreement, the Lender Party assignor was entitled to payments under subsection
(a) in respect of United States withholding tax with respect to interest paid at
such date, then, to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable with
respect to the Lender Party assignee on such date.
(f) For any period with respect to which a Lender Party has
failed to provide any of the Guarantors with the appropriate form described in
subsection (e) above or failed to seek an extension of the time for filing such
successor form as required in writing to do so by the Agent or such Guarantor in
accordance with subsection (e) above (other than if such failure is due to a
change in law occurring after the date on which a form originally was required
to be provided or if such form otherwise is not required under subsection (e)
above), such Lender Party shall not be entitled to indemnification under
subsection (a) or (c) with respect to Taxes imposed by the United States by
reason of such failure; provided, however, that should a Lender Party become
subject to Taxes because of its failure to deliver a form required hereunder,
such Guarantor shall take such steps (at such Lender Party's expense) as such
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<PAGE> 158
Lender Party shall reasonably request to assist such Lender Party to recover
such Taxes.
Section 6. Representations and Warranties. Each of the Guarantors
hereby represents and warrants with respect to itself as follows:
(a) Each of the representations and warranties contained in the
Credit Agreement and made by the Borrower with respect to such Guarantor and its
properties, affairs and financial condition is true and correct.
(b) There are no conditions precedent to the effectiveness of
this Guaranty that have not been satisfied or waived.
(c) Such Guarantor has, independently and without reliance upon
the Agent or any other Lender Party and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Guaranty, and such Guarantor has established adequate means of
obtaining from any other Loan Parties on a continuing basis information
pertaining to, and is now and on a continuing basis will be completely familiar
with, the financial condition, operations, properties and prospects of such
other Loan Parties.
Section 7. Covenants. Each of the Guarantors covenants and agrees
that, so long as any part of the Guaranteed Obligations shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment, such Guarantor will, unless such of the Lender Parties as is
specified in Section 8.01 of the Credit Agreement shall otherwise consent in
writing, perform or observe, and cause its Subsidiaries to perform or observe,
all of the terms, covenants and agreements that the Loan Documents state that
the Borrower is to cause such Guarantor or such Subsidiaries to perform or
observe.
Section 8. Amendments, Etc. (a) No amendment or waiver of any
provision of this Guaranty and no consent to any departure by any of the
Guarantors therefrom shall in any event be effective unless the same shall be in
writing and signed by the Agent and the Required Lenders, or by the Agent on
behalf of such Lenders, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all of the Lender Parties (other than any Lender Party that is, at
such time, a Defaulting Lender), or by the Agent on behalf of such Lenders, (i)
limit the liability of the Company hereunder, (ii) postpone any date fixed for
payment by the Company hereunder or (iii) change the number of Lender Parties
required to take any action hereunder.
(b) Upon the execution and delivery by any Person of a supplement
to this Guaranty, in each case in substantially the form of Exhibit A hereto or
otherwise in form and substance reasonably satisfactory to the Agent (each, a
"Guaranty Supplement"), such Person shall be referred to as an "Additional
Guarantor" and shall be and become a Guarantor, and each reference in this
Guaranty to an "Additional Guarantor" or a "Guarantor" shall also mean and be a
reference to such Additional Guarantor and, subject to the terms of the
definition of "Subsidiary Guarantor" set forth in Section 1.01 of the Credit
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<PAGE> 159
Agreement, each reference in any of the other Loan Documents to a "Subsidiary
Guarantor" or a "Loan Party" shall also mean and be a reference to such
Additional Guarantor.
Section 9. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered
to the parties hereto, if to any of the Guarantors, at the address set forth
below its name on the signature pages to this Guarantee or, in the case of any
of the Additional Guarantors, at the address set forth below its name on the
signature page to the Guarantee Supplement executed and delivered by it, if to
the Agent or any other Lender Party, at its address specified in the Credit
Agreement, or as to any party at such other address as shall be designated by
such party in a written notice to each other party. All such notices and other
communications shall, when mailed, telegraphed, telecopied or telexed, be
effective three Business Days after deposit in the mails, or when delivered to
the telegraph company, transmitted by telecopier or confirmed by telex
answerback, respectively.
Section 10. No Waiver; Remedies. No failure on the part of the
Agent or any other Lender Party to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
Section 11. Right of Set-off. Upon (a) the occurrence and during
the continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 of the Credit Agreement to
authorize the Agent to declare the Notes due and payable pursuant to the
provisions of said Section 6.01, each Lender Party and each of its respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender Party or such Affiliate to
or for the credit or the account of any of the Guarantors against any and all of
the Obligations of such Guarantor now or hereafter existing under this Guaranty,
whether or not such Lender Party shall have made any demand under this Guaranty
and although such Obligations may be unmatured. Each Lender Party agrees
promptly to notify the applicable Guarantor after any such set-off and
application; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
Party and its respective Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Lender Party and its respective Affiliates may have.
Section 12. Indemnification. Without limitation on any other
Obligations of the Guarantors or remedies of the Lender Parties under this
Guaranty, each of the Guarantors shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless each Lender Party from and against,
and shall pay on demand, any and all losses, liabilities, damages, costs,
expenses and charges (including the fees and disbursements of such Lender
Party's legal counsel) suffered or incurred by such Lender Party as a result of
any failure of any Guaranteed Obligations to be the legal, valid and binding
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<PAGE> 160
obligations of the Borrower enforceable against the Borrower in accordance with
their terms.
Section 13. Continuing Guaranty; Assignments under the Credit
Agreement. This Guaranty is a continuing guaranty and shall (a) remain in full
force and effect until the later of (i) the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty and
(ii) the Termination Date, (b) be binding upon each of the Guarantors, its
successors and assigns and (c) inure to the benefit of and be enforceable by the
Agent and the other Lender Parties and their successors, transferees and
assigns. Without limiting the generality of the foregoing clause (c), any Lender
Party may assign or otherwise transfer all or any portion of its rights and
obligations under the Credit Agreement (including, without limitation, all or
any portion of its Commitments, the Advances owing to it and the Note or Notes
held by it) to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to such Lender Party
herein or otherwise, in each case as and to the extent provided in Section 8.07
of the Credit Agreement.
Section 14. Governing Law; Jurisdiction; Waiver of Jury Trial,
Etc. (a) This Guaranty shall be governed by, and construed in accordance with,
the laws of the State of New York.
(b) Each of the Guarantors hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Guaranty or any of the other Loan
Documents to which it is or is to be a party, or for recognition or enforcement
of any judgment, and each of the Guarantors hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. Each of the Guarantors
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Guaranty shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Guaranty or any of the other Loan Documents to which it is or
is to be a party in the courts of any jurisdiction.
(c) Each of the Guarantors irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Guaranty or any of the
other Loan Documents to which it is or is to be a party in any New York State or
federal court. Each of the Guarantors hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(d) Each of the Guarantors hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to any of the Loan
Documents, the transactions contemplated thereby or the actions of the Agent or
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<PAGE> 161
any other Lender Party in the negotiation, administration, performance or
enforcement thereof.
Section 15. Execution in Counterparts. This Guaranty may be
executed in any number of 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 one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Guaranty by telecopier shall be effective as delivery of a manually executed
counterpart of this Guaranty.
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<PAGE> 162
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
[NAME OF GUARANTOR]
By________________________________
Title:
Address: [_______________________]
[______________________]
[NAME OF GUARANTOR]
By ______________________________
Title:
Address: [______________________]
[_____________________]
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<PAGE> 163
EXHIBIT A TO
GUARANTY
--------
FORM OF GUARANTEE SUPPLEMENT
[Date of Guarantee Supplement]
Citicorp USA, Inc., as
Agent for the Lender Parties party to the
Credit Agreement referred to below
399 Park Avenue
New York, New York 10043
Attention: __________________
Credit Agreement dated as of October 31, 1997 (as in effect on the date
hereof, the "Credit Agreement") among Beckman Instruments, Inc., the
banks, financial institutions and other lenders from time to time
party thereto, Citicorp USA, Inc., as Agent and Citicorp
Securities, Inc., as Arranger.
Ladies and Gentlemen:
Reference is made to the above-captioned Credit Agreement and to
the Guaranty referred to therein (such Guaranty, as in effect on the date hereof
and as it may be further amended, supplemented or otherwise modified hereafter
from time to time, being referred to herein as the "Guaranty"). Capitalized
terms not otherwise defined in this Guaranty Supplement shall have the same
meanings as specified therefor in the Credit Agreement or the Guaranty.
SECTION 1. Guaranty; Limitation of Liability. (a) The undersigned
hereby unconditionally and irrevocably guarantees the punctual payment
when due, whether at stated maturity, by acceleration or otherwise, of
all Obligations of the Borrower now or hereafter existing under the Loan
Documents, whether for principal, interest, fees, expenses or otherwise
(such Obligations being the "Guaranteed Obligations"), and agrees to pay
any and all expenses (including reasonable counsel fees and expenses)
incurred by the Agent or, upon the occurrence and during the
continuation of any Event of Default, any other Lender Parties in
enforcing any rights under this Guaranty Supplement or the Guaranty, on
the terms and subject to the limitations set forth in the Guaranty, as
if it were an original party thereto. Without limiting the generality of
the foregoing, the undersigned's liability shall extend to all amounts
that constitute part of the Guaranteed Obligations and would be owed by
the Borrower to the Agent or any other Lender Party under the Loan
Documents but for the fact that they are unenforceable or not allowable
due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Borrower.
<PAGE> 164
(b) The undersigned and, by its acceptance of this Guaranty
Supplement, the Agent and each other Lender Party, hereby confirm that
it is the intention of all such Persons that this Guaranty Supplement,
the Guaranty and the Obligations of the undersigned hereunder and
thereunder not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to
the extent applicable to this Guaranty Supplement or the Guaranty. To
effectuate the foregoing intention, the undersigned, the Agent and the
other Lender Parties hereby irrevocably agree that the Obligations of
the undersigned under this Guaranty Supplement and the Guaranty shall be
limited to the maximum amount as will, after giving effect to such
maximum amount and all of the other contingent and fixed liabilities of
the undersigned that are relevant under such laws, and after giving
effect to any collections from, rights to receive contributions from or
payments made by or on behalf of any of the other Guarantors in respect
of the Obligations of such other Guarantor under the Guaranty, result in
the Obligations of the undersigned under this Guaranty Supplement and
the Guaranty not constituting a fraudulent transfer or conveyance.
(c) The undersigned hereby agrees that in the event any payment
shall be required to be made to the Lender Parties under the Guaranty,
the undersigned will contribute, to the maximum extent permitted by law,
such amounts to each other Guarantor so as to maximize the aggregate
amount paid to the Lender Parties under the Loan Documents.
SECTION 2. Obligations Under the Guaranty. The undersigned hereby
agrees, as of the date first above written, to be bound as a Guarantor
by all of the terms and conditions of the Guaranty to the same extent as
each of the other Guarantors. The undersigned further agrees, as of the
date first above written, that each reference in the Guaranty to an
"Additional Guarantor" or a "Guarantor" shall also mean and be a
reference to the undersigned, and each reference in any other Loan
Document to a "Guarantor" or a "Loan Party" shall also mean and be a
reference to the undersigned.
SECTION 3. Governing Law; Jurisdiction; Etc. (a) This Guaranty
Supplement shall be governed by, and construed in accordance with, the
laws of the State of New York.
(b) The undersigned hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction
of any New York state court or federal court of the United States of
America sitting in New York City and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Guaranty Supplement, the Guaranty or any of the other Loan Documents to
which it is or is to be a party, or for recognition or enforcement of
any judgment, and the undersigned hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may
be heard and determined in any such New York state court or, to the
extent permitted by law, in such federal court. The undersigned agrees
that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the
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<PAGE> 165
judgment or in any other manner provided by law. Nothing in this
Guaranty Supplement or the Guaranty shall affect any right that any
party may otherwise have to bring any action or proceeding relating to
this Guaranty Supplement, the Guaranty or any of the other Loan
Documents to which it is or is to be a party in the courts of any
jurisdiction.
(c) The undersigned irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection
that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Guaranty
Supplement, the Guaranty or any of the other Loan Documents to which it
is a party in any New York state court or federal court. The undersigned
hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
SECTION 4. WAIVER OF JURY TRIAL. THE UNDERSIGNED IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT
OF OR RELATING TO THIS GUARANTY SUPPLEMENT, THE GUARANTY, ANY OF THE
OTHER LOAN DOCUMENTS, ANY OF THE DOCUMENTS DELIVERED PURSUANT TO THE
LOAN DOCUMENTS, THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR THE
ACTIONS OF ANY OF THE AGENT OR ANY OF THE OTHER LENDER PARTIES IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
[NAME OF ADDITIONAL GUARANTOR]
By _______________________________
Name:
Title:
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<PAGE> 166
EXHIBIT E-1
FORM OF OPINION OF GENERAL
COUNSEL TO THE BORROWER
<PAGE> 167
[BECKMAN LETTERHEAD]
October 31, 1997
Citicorp USA, Inc.,
as Agent
2 Penns Way, Suite 200
New Castle, Delaware 19720
Citicorp Securities, Inc.,
as Arranger
725 South Figueroa Street
Los Angeles, California 90017
Citibank, N.A., as Initial Issuing
Bank, and the Initial Lenders named
in the Credit Agreement identified below
Re: Credit Agreement dated as of October 31, 1997 among Beckman
Instruments, Inc., as Borrower, the Initial Lenders named
therein, Citibank, N.A., as Initial Issuing Bank, Citicorp USA,
Inc., as Agent, and Citicorp Securities, Inc., as Arranger
Ladies and Gentlemen:
I am the Vice President, General Counsel and Secretary of Beckman
Instruments, Inc., a Delaware corporation (the "Company"), and am familiar with
its legal affairs. I am also familiar with the Credit Agreement dated as of
October 31, 1997 among the Company, as Borrower, the Initial Lenders named
therein, Citibank, N.A., as Initial Issuing Bank, Citicorp USA, Inc., as Agent,
and Citicorp Securities, Inc., as Arranger (the "Credit Agreement"), the
Guaranty dated as of October 31, 1997 (the "Guaranty") made by Beckman
Instruments (Naguabo), Inc., SmithKline Diagnostics, Inc., Hybritech
Incorporated (collectively, the "Beckman Guarantor Subsidiaries") and, upon
completion of the Acquisition (as defined in the Credit Agreement), by Coulter
Corporation and Coulter Leasing Corporation (collectively, the "Coulter
Guarantor Subsidiaries"; and together with the Beckman Guarantor Subsidiaries,
the "Guarantor Subsidiaries") in favor of the Lender Parties (as defined in the
Credit Agreement), and the other documents entered into by the Company and the
Guarantor Subsidiaries in connection with the Credit Agreement.
<PAGE> 168
This opinion is being rendered to you pursuant to Section
3.01(i)(x) of the Credit Agreement. Capitalized terms used herein without
definition have the meanings given to them in the Credit Agreement.
For purposes of rendering this opinion, I, or other lawyers under
my supervision, have examined such matters of fact and questions of law as I
have considered appropriate for purposes of rendering the opinions expressed
below. I have examined, among other things, the following:
a) The Credit Agreement;
b) The Guaranty;
c) The Notes;
d) That certain Stock Purchase Agreement, dated as
of August 29, 1997, among Coulter Corporation, its
stockholders and the Company (the "Stock Purchase
Agreement");
e) The charter documents of the Company, as amended to date;
f) The Amended and Restated By-Laws of the Company, as
amended to date;
g) The charter documents of the Beckman Guarantor
Subsidiaries, as amended to date; and
h) The Bylaws of the Beckman Guarantor Subsidiaries,
as amended to date.
The documents described in subsections (a) - (c) above are
referred to herein as the "Loan Documents."
In my examination, I have assumed the genuineness of all
signatures (other than those of officers of the Company and the Beckman
Guarantor Subsidiaries), the authenticity of all documents submitted to me as
originals, and the conformity to authentic original documents of all documents
submitted to me as copies. I have obtained and relied upon such certificates and
assurances from officers of the Company and the Guarantor Subsidiaries and of
public officials as I have deemed necessary.
I am opining herein as to the effect on the subject transaction
only of the federal laws of the United States, the internal laws of the State of
California and the General Corporation Law of the State of Delaware, and I
express no opinion with respect to the applicability thereto, or the effect
thereon, of the laws of any other jurisdiction or, in the case of Delaware, any
other laws, or as to any matters of municipal law or the laws of any local
agencies within any state.
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<PAGE> 169
Whenever a statement herein is qualified by "to the best of my
knowledge" or "known to me" or a similar phrase, it is intended to indicate
that I do not have current actual knowledge of the inaccuracy of such statement
after conducting such investigation to determine the accuracy of any such
statement as I deemed appropriate under the circumstances.
Based upon the foregoing, and in reliance thereon, and subject to
the limitations, qualifications, exceptions and assumptions set forth herein, I
am of the opinion that, as of the date hereof:
1. Each of the Company and the Beckman Guarantor Subsidiaries has
been duly incorporated and is validly existing and in good standing under the
laws of the jurisdiction of its incorporation with corporate power and authority
to own, lease and operate its properties, to conduct its business as now
conducted and as proposed to be conducted and to enter into and perform its
obligations under the Stock Purchase Agreement, the Credit Agreement and the
other Loan Documents, as the case may be.
2. Each of the Company and the Beckman Guarantor Subsidiaries is
duly qualified and in good standing as a foreign corporation in each other
United States jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed except where
the failure to so qualify or be licensed could not reasonably be expected to
have a Material Adverse Effect.
3. The execution, delivery and performance of the Credit
Agreement, each of the Notes and the Stock Purchase Agreement and the
consummation of the Acquisition have been duly authorized by all necessary
corporate action on the part of the Company. The Credit Agreement, each of the
Notes and the Stock Purchase Agreement have been duly executed and delivered by
the Company.
4. The execution, delivery and performance of the Guaranty have
been duly authorized by all necessary corporate action on the part of each of
the Beckman Guarantor Subsidiaries. The Guaranty has been duly executed and
delivered by each of the Beckman Guarantor Subsidiaries.
5. The execution and delivery by each of the Company and the
Beckman Guarantor Subsidiaries of the Loan Documents to which it is a party, the
execution and delivery by the Company of the Stock Purchase Agreement, the
borrowing and repayment of Borrowings by the Company pursuant to the Loan
Documents, and the performance of the Obligations of the Company and each of the
Beckman Guarantor Subsidiaries under the Loan Documents to which it is a party
and the performance of the obligations of the Company under the Stock Purchase
Agreement do not (a) violate the charter documents or Bylaws of the Company or
the Beckman Guarantor Subsidiaries, (b) conflict with or result in the violation
by the Company or any of the Beckman Guarantor Subsidiaries of any of the terms
or provisions of or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other material agreement known to me
to which the Company or any of the Beckman Guarantor Subsidiaries is
3
<PAGE> 170
a party or by which the Company or any of the Beckman Guarantor Subsidiaries is
bound or to which any of the property or assets of the Company or any of the
Beckman Guarantor Subsidiaries is subject, except for those conflicts, defaults
or violations with respect to Debt to be repaid in connection with the
Acquisition or which, either individually or in the aggregate, would not have a
Material Adverse Effect, (c) violate any order, writ, judgment, injunction,
decree or determination known to me to be binding on the Company or the Beckman
Guarantor Subsidiaries or (d) result in or require the creation or imposition of
any Lien upon or with respect to any of the properties of the Company or any of
the Beckman Guarantor Subsidiaries under any such material agreement referred to
in clause (b).
6. To the best of my knowledge, other than as set forth in the
Loan Documents, no consent, approval, authorization, registration, qualification
or order of, or filing with, any federal or California court or governmental
agency or body is required for (i) the due execution, delivery or performance by
the Company of the Stock Purchase Agreement or (ii) the consummation of the
transactions contemplated by the Credit Agreement and the Stock Purchase
Agreement, except, in the case of the Stock Purchase Agreement, as have been
previously obtained or made or as could not reasonably be expected to have a
Material Adverse Effect. All applicable waiting periods in connection with the
Acquisition under the Hart-Scott-Rodino Antitrust Improvements Act have expired
without any action having been taken by any competent governmental authority
restraining, preventing or imposing materially adverse conditions upon the
Acquisition or the rights of the Company and the Beckman Guarantor Subsidiaries
freely to transfer or otherwise dispose of, or to create any Lien on, any
properties now owned or hereafter acquired by any of them.
7. To the best of my knowledge, other than as previously
disclosed to the Lender Parties, there are no legal or governmental proceedings
pending to which the Company or any of the Beckman Guarantor Subsidiaries is a
party or of which any property of the Company or any of the Beckman Guarantor
Subsidiaries is subject, except for those proceedings which, either individually
or in the aggregate, would not reasonably be expected to have a Material Adverse
Effect and there are no such legal or governmental proceedings are pending
against the Company or any of its Subsidiaries which purport to affect the
legality, validity or enforceability of the Acquisition or any Loan Documents
or the consummation of the transactions contemplated by the Credit Agreement.
8. The Company is not an "investment company", nor to the best of
my knowledge, an entity "controlled" by an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended.
9. The Acquisition has been consummated in accordance with the
terms of the Stock Purchase Agreement.
This opinion is rendered only to the Agent, the Initial Lenders,
the Initial Issuing Bank and the Arranger and is solely for their benefit in
connection with the above transactions. This opinion may not be relied upon by
the Agent, the Initial Lenders, the Initial Issuing Bank or the Arranger for
any other purpose, or relied upon by any other Person, for any purpose without
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<PAGE> 171
my prior written consent. This opinion speaks only as of the date hereof and to
its addressees, and I have no responsibility or obligation to update this
opinion, to consider its applicability or correctness to other than its
addressees, or to take into account changes in laws, facts or any other
developments of which I may later become aware.
Very truly yours,
William H. May
Vice President, General Counsel
and Secretary
5
<PAGE> 172
EXHIBIT E-2
FORM OF OPINION OF CORPORATE
COUNSEL TO THE COMPANY
<PAGE> 173
[COULTER LETTERHEAD]
October 31, 1997
Citicorp USA, Inc.,
as Agent
2 Penns Way, Suite 200
New Castle, Delaware 19720
Citicorp Securities, Inc.,
as Arranger
725 South Figueroa Street
Los Angeles, California 90017
Citibank, N.A., as Initial Issuing
Bank, and the Lenders named in the
Credit Agreement identified below
Re: Credit Agreement dated as of October 31, 1997 among Beckman
Instruments, Inc., as Borrower, the Initial Lenders named
therein, Citicorp, N.A., as Initial Issuing Bank, Citicorp USA,
Inc., as Agent, and Citicorp Securities, Inc., as Arranger
Ladies and Gentlemen:
I am the Corporate Counsel of Coulter Corporation, Inc., a
Delaware corporation (the "Company"), and am familiar with its legal affairs. I
am also familiar with the Guaranty dated as of October 31, 1997 (the "Guaranty")
made by Beckman Instruments (Naguabo), Inc., SmithKline Diagnostics, Inc.,
Hybritech Incorporated and upon completion of the Acquisition (as defined in the
Credit Agreement referenced above) by the Company and Coulter Leasing
Corporation, in favor of Citicorp, USA, Inc., as Agent, Citibank, N.A., as the
Initial Issuing Bank (the "Initial Issuing Bank"), and the Lenders
(collectively, the "Lender Parties") under that certain Credit Agreement dated
as of October 31, 1997 among Beckman Instruments, Inc., as Borrower, the Lender
Parties and Citicorp Securities, Inc., as Arranger (the "Credit Agreement").
This opinion is being rendered to you pursuant to Section
3.01(i)(x) of the Credit Agreement. Capitalized terms used herein without
definition have the meanings given to them in the Guaranty.
For purposes of rendering this opinion, I, or other lawyers under
my supervision, have examined such matters of fact and questions of law as I
have considered appropriate for purposes of rendering the opinions expressed
below. I have examined, among other things, the following:
a) The Guaranty;
b) The charter documents of the Company, as amended to date;
c) The Bylaws of the Company, as amended to date;
d) The charter documents of Coulter Leasing, as amended
to date; and
e) The Bylaws of Coulter Leasing, as amended to date.
In my examination, I have assumed the genuineness of all
signatures (other than those of officers of the Company and Coulter Leasing),
the authenticity of all documents submitted to me as originals, and the
conformity to authentic original documents of all documents submitted to me as
copies. I have obtained and relied upon such certificates and assurances from
officers of the Company and Coulter Leasing and of public officials as I have
deemed necessary.
<PAGE> 174
I am opining herein as to the effect of the subject transaction
only of the federal laws of the United States, the internal laws of the State of
Florida and the General Corporation Law of the State of Delaware, and I
express no opinion with respect to the applicability thereto, or the effect
thereon, of the laws of any other jurisdiction or, in the case of Delaware, any
other laws, or as to any matters of municipal law or the laws of any local
agencies within any state.
Whenever a statement herein is qualified by "to the best of my
knowledge" or "known to me" or a similar phrase, it is intended to indicate
that I do not have current actual knowledge of the inaccuracy of such statement
after conducting such investigation to determine the accuracy of any such
statement as I deemed appropriate under the circumstances.
Based upon the foregoing, and in reliance thereon, and subject to
the limitations, qualifications, exceptions and assumptions set forth herein, I
am of the opinion that, as of the date hereof:
1. The Company has been duly incorporated and is validly
existing and in good standing under the laws of the jurisdiction of its
incorporation with corporate power and authority to own, lease and operate its
properties, to conduct its business as now conducted and as proposed to be
conducted and to enter into and perform its obligations under the Guaranty.
2. Each of the Company and Coulter Leasing is duly qualified
and in good standing as a foreign corporation in each other United States
jurisdiction in which it owns or leases property or in which the conduct of its
business requires it to so qualify or be licensed except where the failure to
so qualify or be licensed could not reasonably be expected to have a Material
Adverse Effect.
3. The execution, delivery and performance of the Guaranty has
been duly authorized by all necessary corporate action on the part of the
Company.
4. The execution and delivery by each of the Company and Coulter
Leasing of the Guaranty and the performance of the Obligations of the Company
and Coulter Leasing under the Guaranty do not (a) violate the charter documents
or Bylaws of the Company or Coulter Leasing, (b) conflict with or result in the
violation by the Company or Coulter Leasing of any of the terms or provisions of
or constitute a default under, any material indenture, mortgage, deed of trust,
loan agreement or other material agreement known to me to which the Company or
Coulter Leasing is a party or by which the Company or Coulter Leasing is bound
or to which any of the property or assets of the Company or Coulter Leasing is
subject, except for those conflicts, defaults or violations with respect to Debt
(as defined in the Credit Agreement) to be repaid in connection with the
Acquisition or which, either individually or in the aggregate, would not have a
Material Adverse Effect, (c) violate any order, writ, judgment, injunction,
decree or determination known to me to be binding on the Company or Coulter
Leasing or (d) result in or require the creation or imposition of any Lien upon
or with respect to any of the properties of the Company or Coulter Leasing under
any such material agreement referred to in clause (b).
5. No consent, approval, authorization, registration,
qualification or order of, or filing with, any federal or Florida court or
governmental agency or body is required for (i) the due execution, delivery or
performance by the Company or Coulter Leasing of the Guaranty or (ii) the
consummation of the transactions contemplated by the Guaranty.
6. To the best of my knowledge, there are no legal or
governmental proceedings pending to which the Company or Coulter Leasing is a
party or of which any property of the Company or Coulter Leasing is subject,
except for those proceedings which, either individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect.
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<PAGE> 175
This opinion is rendered only to the Agent, the Initial Lenders
and the Initial Issuing Bank and is solely for their benefit in connection with
the above transactions. This opinion may not be relied upon by the Agent, the
Initial Lenders and the Initial Issuing Bank for any other purpose, or relied
upon by any other Person, for any purpose without my prior written consent. This
opinion speaks only as of the date hereof and to its addressees and I have no
responsibility or obligation to update this opinion, to consider its
applicability or correctness to other than its addressees, or to take into
account changes in laws, facts or any other developments of which I may later
become aware.
Very truly yours,
Wayne Barlin
General Counsel
3
<PAGE> 176
EXHIBIT E-3
FORM OF OPINION OF COUNSEL
TO THE BORROWER AND GUARANTORS
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[LATHAM & WATKINS LETTERHEAD]
October 31, 1997
Citicorp USA, Inc., as Agent,
2 Penns Way, Suite 200
New Castle, Delaware 19720
Citicorp Securities, Inc.,
as Arranger
725 South Figueroa Street
Los Angeles, California 90017
Citibank, N.A., as the Initial Issuing
Bank, and the Initial Lenders parties to
the Credit Agreement referenced below
Re: Credit Agreement dated as of October 31, 1997 among
Beckman Instruments, Inc., as Borrower, the Initial
Lenders named therein, Citibank, N.A., as Initial Issuing
Bank, Citicorp USA, Inc., as Agent, and Citicorp
Securities, Inc., as Arranger
Ladies and Gentlemen:
We have acted as special counsel to Beckman Industries, Inc., a
Delaware corporation (the "Company"), in connection with the Credit Agreement
dated as of October 31, 1997 (the "Credit Agreement") among the Company, as
Borrower, the Initial Lenders named
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Citicorp USA, Inc., as Agent,
Citicorp Securities, Inc., as Arranger,
Citibank, N.A., as Initial Issuing Bank and
The Initial Lenders Party to the Credit Agreement
October 31, 1997
Page 2
therein, Citibank, N.A., as Initial Issuing Bank, Citicorp USA, Inc., as Agent,
and Citicorp Securities, Inc., as Arranger, and as special counsel to Beckman
Instruments (Naguabo), Inc., SmithKline Diagnostics, Inc., and Hybritech
Incorporated (collectively, the "Beckman Guarantor Subsidiaries") and Coulter
Corporation ("Coulter") and Coulter Leasing Corporation ("Coulter Leasing"; and
together with Coulter, the "Coulter Guarantor Subsidiaries"; and together with
the Beckman Guarantor Subsidiaries, the "Guarantor Subsidiaries") in connection
with that certain Guaranty dated as of October 31, 1997 (the "Guaranty") made by
the Guarantor Subsidiaries in favor of the Lender Parties (as defined in the
Credit Agreement). This opinion is rendered to you at the request of the Company
in compliance with Subsection 3.01(i)(x) of the Credit Agreement. Capitalized
terms defined in the Credit Agreement used herein, and not otherwise defined
herein, shall have the meanings given them in the Credit Agreement.
As such counsel, we have examined such matters of fact and
questions of law as we have considered appropriate for purposes of rendering the
opinions expressed below, except where a statement is qualified as to knowledge
or awareness, in which case we have made no or limited inquiry as specified
below. We have examined, among other things, the following:
(a) The Credit Agreement;
(b) The Guaranty; and
(c) The Notes executed by the Company.
The documents described in subsections (a) - (c) above are
referred to herein collectively as the "Loan Documents."
In our examination, we have assumed the genuineness of all
signatures (other than those of officers of the Company and the Guarantor
Subsidiaries on the Loan Documents), the legal capacity of all natural persons
executing documents, the authenticity of all documents submitted to us as
originals, and the conformity to authentic original documents of all documents
submitted to us as copies.
We have been furnished with, and with your consent have relied
upon, certificates of officers of the Company and the Guarantor Subsidiaries
with respect to certain factual matters. In addition, we have obtained and
relied upon such certificates and assurances from public officials as we have
deemed necessary.
We are opining herein as to the effect on the subject
transactions only of the federal laws of the United States, the General
Corporation Law of the State of Delaware, and the
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Citicorp USA, Inc., as Agent,
Citicorp Securities, Inc., as Arranger,
Citibank, N.A., as Initial Issuing Bank and
The Initial Lenders Party to the Credit Agreement
October 31, 1997
Page 3
internal laws of the State of New York, and as to paragraphs 3, 4 and 6 only,
the internal laws of the State of California, and as to paragraphs 3, 4 and 8
only, the internal laws of the State of Illinois, and we express no opinion with
respect to the applicability thereto, or the effect thereon, of the laws of any
other jurisdiction or, in the case of Delaware, any other laws or as to any
matters of municipal law or the laws of any other local agencies within any
state.
Our opinions set forth in paragraphs 3 and 4 below as to
compliance with certain statutes, rules and regulations are based upon our
consideration of only those statutes, rules and regulations which, in our
experience, are normally applicable to borrowers and guarantors in unsecured
loan transactions and to parties to stock purchase agreements. Whenever a
statement herein is qualified by "to the best of our knowledge" or a similar
phrase, it is intended to indicate that those attorneys in this firm who have
rendered legal services in connection with the Credit Agreement do not have
actual knowledge of the inaccuracy of such statement. However, except as
otherwise expressly indicated, we have not undertaken any independent
investigation to determine the accuracy of any such statement, and no inference
that we have any knowledge of any matters pertaining to such statement should be
drawn from our representation of the Company.
Subject to the foregoing and the other matters set forth herein,
and in reliance thereon, it is our opinion that, as of the date hereof:
1. The Credit Agreement and the Notes and the Stock Purchase
Agreement constitute legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
2. The Guaranty constitutes a legally valid and binding
obligation of each of the Beckman Guarantor Subsidiaries, enforceable against
each of the Beckman Guarantor Subsidiaries in accordance with its terms. Upon
consummation of the Acquisition and due authorization, the Guaranty will
constitute a legally valid and binding obligation of each of the Coulter
Guarantor Subsidiaries, enforceable against each of the Coulter Guarantor
Subsidiaries in accordance with its terms.
3. The execution and delivery of the Loan Documents by the
Company and the Guarantor Subsidiaries, the borrowing and repayment of
Borrowings by the Company pursuant to the Loan Documents, and the performance
of the Obligations of the Company and each of the Guarantor Subsidiaries under
the Loan Documents to which it is a party on or prior to the date hereof do not
result in the violation of any Federal, California, New York or Illinois
statute, rule or regulation applicable to the Company or the Guarantor
Subsidiaries. The execution and delivery by the Company of the Stock Purchase
Agreement and the purchase of
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Citicorp USA, Inc., as Agent,
Citicorp Securities, Inc., as Arranger,
Citibank, N.A., as Initial Issuing Bank and
The Initial Lenders Party to the Credit Agreement
October 31, 1997
Page 4
stock of Coulter pursuant to the Stock Purchase Agreement do not result in the
violation of any New York statute, rule or regulation applicable to the
Company.
4. No consent, approval, authorization, registration,
qualification or order of, or filing with, any federal, California, New York or
Illinois court or governmental agency or body is required for (i) the due
execution, delivery or performance on or prior to the date hereof by each of
the Company and the Guarantor Subsidiaries of the Loan Documents to which it
is or is to be a party or (ii) the consummation by the Company of the Initial
Extension of Credit contemplated by the Credit Agreement.
5. The Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
6. We call to your attention the fact that the Loan Documents
select the internal laws of the State of New York as the governing law. Based on
and subject to the analysis set forth in the memorandum attached hereto as
Exhibit A, it is our opinion that a federal or state court sitting in California
should honor the parties' choice of the internal laws of the State of New York
as the law applicable to the Loan Documents (to the extent set forth in the Loan
Documents) and to the determination of whether the obligations created by the
Loan Documents are usurious.
7. The provisions of the Credit Agreement and the other Loan
Documents (without regard for any provisions thereof limiting the payment of
interest or any other sums thereunder to the highest rate permitted by
applicable law) do not violate any applicable law of the State of New York
relating to usury.
8. Coulter Leasing has been duly incorporated and is validly
existing and in good standing under the laws of the State of Illinois with
corporate power and authority to own, lease and operate its properties, to
conduct its business as now conducted and to enter into and perform its
obligations under the Guaranty. Upon consummation of the Acquisition and
delivery of the Guaranty by Coulter Leasing, the Guaranty will have been duly
authorized, executed and delivered by Coulter Leasing.
Our opinions in paragraph 1 and 2 above as to enforceability of
the agreements referred to therein are subject to (i) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting the rights or remedies of creditors generally,
(ii) the effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law, and the discretion of the court
before which any proceeding therefor may be brought, (iii) the unenforceability
under certain
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Citicorp USA, Inc., as Agent,
Citicorp Securities, Inc., as Arranger,
Citibank, N.A., as Initial Issuing Bank and
The Initial Lenders Party to the Credit Agreement
October 31, 1997
Page 5
circumstances under law or court decisions of provisions providing for the
indemnification of a party with respect to a liability where such
indemnification is contrary to public policy, and (iv) the unenforceability of
any provision requiring the payment of attorney's fees, except to the extent a
court determines such fees to be reasonable.
We have not been requested to render and, with your permission,
we express no opinion as to the applicability to the obligations of the
Guarantor Subsidiaries under the Guaranty of Section 548 of the Bankruptcy Code
or comparable provisions of state law.
We have assumed with your permission that each of the Company and
the Guarantor Subsidiaries (other than Coulter Leasing) is duly incorporated,
validly existing and in good standing under the laws of its jurisdiction of
incorporation, has all requisite corporate power and authority to own and
operate its properties and to carry on its businesses as now conducted, and has
all requisite corporate power and authority to execute, deliver and perform the
Loan Documents to which it is a party and, in the case of the Company, the Stock
Purchase Agreement and to carry out the transactions contemplated thereby. We
have further assumed with your permission that the execution, delivery and
performance of the Loan Documents and, in the case of the Company, Stock
Purchase Agreement have been duly authorized by all necessary corporate action
of each of the Company and the Guarantor Subsidiaries (other than Coulter
Leasing), and that each of the Company and the Guarantor Subsidiaries (other
than Coulter Leasing) has duly executed and delivered the Loan Documents to
which it is a party and, in the case of the Company, the Stock Purchase
Agreement. We understand that you have received an opinion dated as of October
31, 1997 from William H. May, Vice President, General Counsel and Secretary of
the Company, to such effect as to the Company and the Beckman Guarantor
Subsidiaries. We further understand that you have received an opinion dated as
of October 31, 1997 from Wayne Barlin, Corporate Counsel of Coulter Corporation,
to such effect as to the Coulter Guarantor Subsidiaries.
In rendering our opinion in paragraph 3, we have assumed with
your permission that each Initial Lender is a commercial lender that makes loans
in the ordinary course of its business and that it will make each Advance for
its own account in the ordinary course of such business.
To the extent that the obligations of the Company and the
Guarantor Subsidiaries may be dependent upon such matters, we assume for
purposes of this opinion that each Person (other than Coulter Leasing) party to
the Loan documents or the Stock Purchase Agreement is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization; that each such Person (other than Coulter Leasing) has the
requisite corporate or other organizational power and authority to execute and
deliver such agreements and to perform
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Citicorp USA, Inc., as Agent,
Citicorp Securities, Inc., as Arranger,
Citibank, N.A., as Initial Issuing Bank and
The Initial Lenders Party to the Credit Agreement
October 31, 1997
Page 6
its obligations under such agreements; and that each of such agreements has been
duly authorized, executed and delivered by each such Person (other than Coulter
Leasing) party thereto and constitutes a legally valid and binding obligation
of each such Person (other than the Company and the Guarantor Subsidiaries),
enforceable against such Person in accordance with its respective terms. We
express no opinion as to compliance by any such Person with any state or federal
laws or regulations applicable to the subject transactions because of the nature
of such Person's business.
This opinion is rendered only to the Agent, the Initial Lenders
and the Initial Issuing Bank and is solely for their benefit in connection with
the above transactions. This opinion may not be relied upon by the Agent, the
Initial Lenders and the Initial Issuing Bank for any other purpose, or relied
upon by any other Person, firm or corporation for any purpose without our prior
written consent. Notwithstanding the foregoing, we hereby consent to reliance
hereon by any party which, pursuant to Section 8.07 of the Credit Agreement,
becomes a Lender or a participant of a Lender; provided that you have notified
such transferee that this opinion speaks only as of the date hereof and to its
addressees and we have no responsibility or obligation to update this opinion,
to consider its applicability or correctness to other than its addressees, or to
take into account changes in laws, facts or any other development of which we
may later become aware.
Very truly yours,
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ANNEX A
to
Opinion of Latham & Watkins
Dated October 31, 1997
Rendered in Connection With
Beckman Instruments, Inc. Credit Agreement
MEMORANDUM
I. INTRODUCTION
We have acted as special counsel to the Company in connection
with the Credit Agreement referred to in the opinion letter to which this
Memorandum is annexed (the "Opinion"). Capitalized terms used and not otherwise
defined herein shall have the meanings given them in the Opinion or the Credit
Agreement, as applicable. The following facts, the accuracy of which we assume,
are the factual bases upon which this memorandum is prepared.
II. FACTS
The Borrower under the Credit Agreement is the Company, which
is organized under the laws of the State of Delaware, with its principal place
of business in California. The Guarantor Subsidiaries are California, Delaware
and Illinois corporations, with their principal places of business in California
and Florida. The Loan Parties have facilities in other states of the United
States and conduct business in numerous states and countries around the world.
The Agent is a Delaware corporation with its principal executive office in the
State of Delaware or New York.
If the indebtedness of the Company under the Credit Agreement
was governed by California law, the Agent, in its capacity as [a Lender], would
be exempt from the California usury laws under Article XV ss. 1 of the
California Constitution or statutes enacted pursuant thereto. We have assumed
for purposes of this memorandum, with your consent, that, if the indebtedness
under the Credit Agreement was governed by California law, the majority of the
other Initial Lenders would also be exempt from the California usury laws under
Section 1716 of the California Financial Code, or otherwise.
The Agent was represented in this transaction by Shearman &
Sterling through its New York, New York and Los Angeles, California offices.
Negotiations concerning the Credit Agreement and the other Loan
Documents entered into in accordance therewith were conducted by telephone,
correspondence and meetings in New York and California. Specifically, the Credit
Agreement was prepared by counsel in New York. The Company and the Guarantor
Subsidiaries executed and delivered the Loan Documents in New York. The Credit
Agreement was executed by the Initial Lenders in New York, California and
various other jurisdictions and delivered by the Lender Parties in New York. The
closing of this transaction occurred in New York, New York. The proceeds of the
Advances made under the Credit Agreement will be used consummate the
Acquisition, to pay transaction fees and costs related to the Acquisition and
the
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financing thereof, to refinance the Existing Credit Agreement and certain other
indebtedness of the Company and Coulter Corporation, to provide the Company and
its Domestic Subsidiaries with working capital and funds for other general
corporate purposes in the United States and for other purposes to the extent
expressly permitted by the Credit Agreement, and to provide for the issuance of
Letters of Credit for the account of the Company and the Guarantor Subsidiaries.
The Loan Documents will be finally accepted by the Agent in New York and any
payments made pursuant thereto will be made in New York. In addition, the
Advances will be funded out of an account of the Agent in the State of New York.
The Credit Agreement contains a provision selecting the
laws of the State of New York to be the laws under which it is to be
governed and construed. The other Loan Documents similarly choose the laws of
the State of New York. The parties to the Credit Agreement intend to create
enforceable rights thereunder and, for valid business reasons, choose New York
law to govern the Credit Agreement and the other Loan Documents. The Credit
Agreement and the other Loan Documents are valid and binding agreements under
the laws of the State of New York, subject only to the qualifications and
exceptions identified in the Opinion, and the indebtedness under the Credit
Agreement and the interest payable with respect to this transaction do not
violate the usury laws of the State of New York.
There are no other facts, documents or agreements (including
subsequent changes made in the documents referred to above provided to us for
review) between or among the Agent and the Company which alter, modify or change
in any way the accuracy of the foregoing statement of facts or the above
assumptions.
III. CHOICE-OF-LAW RULES IN CALIFORNIA
A. Effect of Stipulated Choice of Law
1. In General. Choice-of-law rules involve competing policy
considerations, and no clearly dispositive rules have emerged in this area of
California law. In general, California courts hold that express choice-of-law
stipulations in contracts will be enforced if the state whose law is chosen has
a natural and substantial connection with the parties or the transaction or
other reasonable basis for the parties' choice of law, and if enforcement of the
contract would not violate a strong California public policy. See e.g., Nedlloyd
Lines B.V. v. Superior Court, 3 Cal. 4th 459, 464 (1992); Smith, Valentino &
Smith, Inc. v. Superior Court, 17 Cal. 3d 491 (1976); Hambrecht & Quist Venture
Partners v. American Medical Int'l, Inc., 38 Cal. App. 4th 1532, 1546 (1995);
Frame v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 20 Cal. App. 3d 668
(1971); Mencor Enterprises, Inc. v. Hets Equities Corp., 190 Cal. App. 3d 432
(1987); see also, 6A Corbin on Contracts ss. 1446 (1962) and RESTATEMENT
(Second) OF CONFLICT OF LAWS ss.ss. 186-188 (1971) (hereinafter cited as the
Restatement).
The Nedlloyd case is the most recent California Supreme Court
case on the issue of the enforceability of a contractual choice of law provision
and is the first time the issue has been addressed by the California Supreme
Court. 3 Cal. 4th at 464. The court declared that:
"In determining the enforceability of arm's length contractual
choice of law provisions, California courts shall apply the
principals set forth in Restatement section 187, which reflects
a strong policy favoring enforcement of such provisions."
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The court noted in a footnote that there may be an exception to
the Restatement approach in the case of contracts governed by the Uniform
Commercial Code, which are governed by California Commercial Code section 1105,
subdivision (1), which provides that, subject to specified exceptions, the
parties may choose the law of a state having a "reasonable relation" to the
transaction. The court stated "[t]his 'reasonable relation' test appears to be
similar to the 'substantial relationship' test we adopt from the Restatement."
Restatement section 187, subdivision (2) sets forth the following standards:
"the law of the state chosen by the parties to govern
their contractual rights and duties will be applied, even if
the particular issue is one which the parties could not have
resolved by an explicit provision in their agreement directed
to that issue, unless either
(a) the chosen state has no substantial relationship
to the parties or the transaction and there is no other
reasonable basis for the parties choice, or
(b) application of the law of the chosen state would
be contrary to a fundamental policy of a state which has a
materially greater interest than the chosen state in the
determination of the particular issue and which, under the rule
of section 188, would be the state of the applicable law in the
absence of an effective choice of law by the parties."
Although it has approved this general choice-of-law principle,
the California Supreme Court has not applied it to many types of conceivable
legal issues or considered the strength of California's public policies in a
number of areas in a choice-of-law context.
A number of California District Courts of Appeal decisions that
have considered the effect of choice-of-law stipulations in the usury context
have applied the law chosen by the parties. Ury v. Jewelers Acceptance Corp.,
227 Cal. App. 2d 11 (1964), involved a retail jewelry and appliance business in
California which financed its receivables with a New York lender at a 20.3%
interest rate at a time when the maximum interest rate in California for such
loans was 10% per annum. The individual controlling the borrower was a
California resident who was required by the lender to set up a corporation as
the formal borrower specifically for the transaction. The loan agreement
provided that it would be "construed" pursuant to the laws of New York. The
court concluded that the loan had a substantial connection with New York, and
that New York rather than California usury law should be applied to the
transaction.
A more recent California District Court of Appeal decision
enforcing a choice-of-law provision in a usury context is Gamer v. DuPont Glore
Forgan, Inc., 65 Cal. App. 3d 280 (1976). In the Gamer case, the court upheld a
provision in a margin account agreement executed in California by a California
resident that New York law was to govern the rights of the parties. The Gamer
decision is also significant in that the court expressly relied on Restatement
Sections 187 and 203 (the rule of validation discussed below).
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In Mencor Enterprises, Inc. v. Hets Equities Corp., supra, the
California Court of Appeal ruled that a court can permit the parties'
choice-of-law provision to be enforced in a California forum only after the
court has conducted an evidentiary hearing to consider the reasonable
relationship of the contract to the stipulated state, the substantial contacts
of the parties with the stipulated state, and the public policy of California on
usury. Although Mencor requires the court to make factual findings on the
choice-of-law provision concerning usury, there is no indication that the
judicial analysis will deviate from the reasoning of Ury and Gamer.
In this case, the applicable facts appear to be no less
favorable than those before the courts in the Ury and Gamer cases. In addition,
the need for certainty and a single legal reference point in connection with an
interstate financing tends to justify, as a business matter, the choice of New
York law, which is familiar to the Agent, the Initial Lenders and the Company
and the financial community in general.
If New York is found to have the requisite relationship to the
present transaction, as we believe it would, the New York choice-of-law
stipulations in the Loan Documents would be upheld by a California court, unless
to do so would violate a "fundamental" or "strong" public policy in California.
The California usury law appears to be one of the most likely areas in the Loan
Documents where a court could consider whether the Loan Documents violate such a
public policy.
2. Summary of California Usury Law. The two principal
sources of California usury law are California Civil Code Sections 1916-1
through 1916-3 and Article XV, Section 1 of the California Constitution. In
general, under California usury law, non-exempt, non-consumer loans are subject
to an interest rate limitation equal to the greater of 10% or a formula rate of
5% plus the federal discount rate (as more particularly defined in Article XV of
the California Constitution) in effect on the 25th day of the month preceding
the earlier of the making of the loan or forbearance or the execution of the
contract to make the loan or forbearance. There are substantial civil and
criminal penalties, including loss of all interest, for violation of the
California usury laws.
The present strength of California's policy of applying its usury
law is uncertain. In the Ury case, where the interest rate of 20.3% was more
than double the then-applicable California usury limit, the court stated that
the many and varied exemptions found in the California Constitution made it
appear that California does not have such a strong public policy against all
contracts that would be usurious in California. The court went on to find that
the 20.3% interest rate charged in that case was not so "unconscionable" as to
require application of California usury laws. The force of the reasoning in the
Ury decision was strengthened by the enactment in 1979 of an amendment to
Article XV of the California Constitution, commonly known as Proposition 2,
which added certain classes of exempt lenders and borrowers and gave the
legislature the power to exempt additional classes. Since the passage of
Proposition 2, the California legislature has exercised this new power over a
dozen times, substantially reducing the types of transactions to which the
California usury laws remain applicable.
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By way of contrast, however, in Frame v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., supra, a violation of a strong public policy against the
forfeiture of pension rights was found to be present, and a contractual choice
of New York law was not enforced. That case should be distinguishable from usury
cases. California has a strong interest in protecting its citizens from the loss
of pensions, a loss that in some cases could require the state to support the
person involved. Interest rate levels are matters of degree, and California law
already permits substantial amounts of interest in other contexts (presently up
to 10% for non-exempt lenders, and an unlimited amount for the growing number
of classes of exempt lenders).
3. Rule of Validation. The rule of validation is a rule of
interpretation that favors upholding the expectations of contracting parties
that their contracts will be enforceable. Cal. Civ. Code ss.ss. 1636 and 3542.
In the usury context, the rule of validation has been given explicit recognition
in a number of cases not involving choice-of-law issues. See e.g., Boerner v.
Colwell Company, 21 Cal. 3d 37 (1978).
The relevance of the rule of validation where there is a
contractually stipulated choice-of-law provision is that it may be a basis for
supporting the parties' choice of another state's law in order to validate a
loan transaction that would be usurious under California law, provided that
there is a substantial relationship between the contract and the state of choice
and that the interest rate is not greatly in excess of the rate permitted by an
otherwise applicable state usury law. See Restatement ss. 203.
In the absence of a stipulated choice of law, the rule of
validation also has application as an independent ground to validate
transactions and as an element of the governmental interest approach discussed
below.
B. Factors Other Than Stipulated Choice-of-Law
1. Places of Contracting and Performance. California courts may
be unwilling to base their decisions solely upon a stipulated choice of law. As
a result, other rules or approaches must be considered.
Most early California choice-of-law cases held that the law of
the place of contracting controlled the validity of the contract, but if the
place of performance was elsewhere, the law of the latter controlled. California
Civil Code ss. 1646. In the case of a contract to pay money, the place of
performance has generally been held to be the place where the loan is repayable.
See, Kraemer v. Coward, 2 Cal. App. 2d 506 (1934), Ury v. Jewelers Acceptance
Corp., supra.
Most recently, the California Supreme Court, at least in tort
cases, has rejected the simple territorial approach to choice-of-law problems
and adopted foreign law only when appropriate in light of the significant state
interests in the particular case. As a result, in usury and other contract
cases, it is probable that the California Supreme Court will not look solely to
the place of contracting or the place of performance in deciding choice-of-law
questions in connection with contracts, although such factors would have a
bearing on the assessment of the governmental interests involved in the
transaction, as discussed below.
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2. Governmental Interest Approach. The governmental interest
approach attempts to measure the relative impairment of the governmental
policies underlying the law of each state connected with a transaction in order
to determine which state's law should govern. The law of the state whose
policies would suffer the greater impairment is generally chosen. See,
RESTATEMENT ss. 188. Recent choice-of-law decisions (primarily in tort or other
non-contract cases) suggest that a California court may apply a governmental
interest approach. See, e.g., Bernhard v. Harrah's Club, 16 Cal. 3d 313 (1976).
But see, e.g., Hambrecht & Quist Venture Partners, v. American Medical Int'l,
Inc., 38 Cal. App. 4th 1532, 1546 (1995) (upholding a contractual choice-of-law
provision requiring application of Delaware statute of limitations in a breach
of contract case brought in a California court, the court opined "[w]e do not
use the governmental interest approach...[r]ather, we ask the simpler (and
preliminary) question of whether the chosen state has a substantial relationship
to the parties or transaction.").
It appears to us that, as applied to conflict-of-law questions
in usury and anti-deficiency cases, the governmental interest test will take
into account the need to accommodate the interstate flow of capital funds. We
believe that the courts, while careful to protect consumers and other small
borrowers from economic extortion or ruin, will seek ways to validate
commercially reasonable interstate loans by sophisticated investors and lenders
to sophisticated business borrowers, in order not to restrict the operation of
such businesses, prevent their growth or expansion, or cause them to avoid
California altogether.
3. Other Choice-of-Law Approaches. In addition to the rules or
approaches discussed above, California courts sometimes employ other tests or
rubrics in arriving at their conclusion as to which state's law will govern. For
example, in Ashland Chemical Co. v. Provence, 129 Cal. App. 3d 790 (1982), a
California District Court of Appeal emphasized that, even when there is a
stipulated choice-of-law, different choice-of-law principles may apply to
procedural, as distinguished from substantive, aspects of the transactions. In
Ashland, the court found a protective policy underlying California's statute of
limitations, which it characterized as procedural. The court went on to hold
that Kentucky had no substantial relationship to the transaction justifying the
choice of Kentucky law for purposes of applying this procedural, as
distinguished from substantive, aspect of the contract, despite Kentucky's being
the place of the plaintiff's domicile, the place of contracting and the place of
payment.
The Ashland decision, however, was recently criticized by the
court in Hambrecht. As noted above, In Hambrecht, the court upheld a contractual
choice-of-law provision requiring that an agreement between the parties "be
governed by and construed in accordance with the laws of the State of Delaware."
The court not only held that the choice-of-law provision was valid where two of
three parties to the lawsuit were incorporated in Delaware but also that the
word "laws" included Delaware's statute of limitations. The court, however, did
not decide whether the statute of limitations was substantive or procedural law,
but suggested that even if it were procedural law it would still be a "law" of
Delaware. The Hambrecht court noted that, while the Ashland court found that
California had an interest in preventing the prosecution of stale claims in
denying application of the Kentucky statute of limitations (which was 15 years
as opposed to California's 4 year statute of limitations for such type of
claim), the Ashland court, in dicta, suggested that it would have applied the
Kentucky statute of limitations had such limitations period been shorter than
the corresponding California statute of limitations period. In Hambrecht, the
court noted that, there was no corresponding fundamental governmental interest
on the part of California in denying application of the parties' choice-of-law
provision where the applicable Delaware statute of limitations was three years
and the corresponding provision in California was four years.
A-6
<PAGE> 189
It is difficult to predict which test or tests a California
court would apply to determine a choice-of-law issue, and how such tests would
be applied to the facts of the particular transaction. However, such a court
should apply a test which takes a number of factors into account, including the
factors discussed above.
IV. CONCLUSION
The Supreme Court of California has not passed upon the
specific issue of the enforceability of a choice-of-law stipulation in
connection with usury cases or in cases involving many other issues that could
arise under the Loan Documents. It, or another court, may employ a choice-of-law
analysis different from that employed in the cases discussed above, or may reach
a different conclusion even under the same analysis. However, on the basis of
the above, it is our opinion that, if such matters are properly presented and
argued to a California court or a federal court sitting in California, such
court should honor the parties' choice of the internal laws of the State of New
York as the law applicable to the Loan Documents and to the determination of
whether the obligations created by those Loan Documents are usurious. It is also
our opinion that the rate of interest called for by the Loan Documents is
currently not so high as to violate a strong public policy of the State of
California.
A-7
<PAGE> 190
EXHIBIT F -- FORM OF
OPINION OF
COUNSEL TO AGENT
October 31, 1997
To the Initial Lenders and the
Initial Issuing Banks party to
the Credit Agreement referred to
below, to Citicorp USA, Inc.,
as Agent for such Lender Parties,
and to Citicorp Securities, Inc.,
as Arranger
Beckman Instruments, Inc.
Ladies and Gentlemen:
We have acted as special New York counsel to Citicorp USA, Inc.,
individually and as Agent, and Citicorp Securities, Inc., as Arranger, in
connection with the preparation, execution and delivery of the Credit Agreement
dated as of October 31, 1997 (the "Credit Agreement"), among Beckman
Instruments, Inc., a Delaware corporation (the "Borrower"), and each of you.
Unless otherwise defined herein, terms defined in the Credit Agreement are used
herein as therein defined.
In that connection, we have examined a counterpart of the Credit
Agreement executed by the Borrower, the Notes executed by the Borrower and
delivered on the date hereof and the Guaranty executed by each of the Guarantors
(for purposes of this opinion letter, the Credit Agreement, the Notes and the
Guaranty are hereinafter referred to, collectively, as the "Loan Documents")
and, to the extent relevant to our opinion expressed below, the other documents
delivered by the Borrower and Guarantors pursuant to Section 3.01 of the Credit
Agreement.
In our examination of the Loan Documents and such other
documents, we have assumed, without independent investigation, (a) the due
execution and delivery of the Loan Documents (other than the Notes) by all
parties thereto and of the Notes by the Borrower, (b) the genuineness of all
signatures, (c) the authenticity of the originals of the documents submitted to
us and (d) the conformity to originals of any documents submitted to us as
copies.
In addition, we have assumed, without independent investigation,
that (i) the Borrower and each Guarantor is duly organized and validly existing
under the laws of the jurisdiction of its organization and has full power and
authority (corporate and otherwise) to execute, deliver and perform each of the
Loan Documents to which it is a party and (ii) the execution, delivery and
performance by the Borrower and each Guarantor of the Loan Documents to which it
is a party have been duly authorized by all necessary action (corporate or
otherwise) and do not (A) contravene the certificate of incorporation, bylaws or
other constituent documents of the Borrower or such Guarantor, (B) conflict with
or result in the breach of any document or instrument binding on the Borrower or
such Guarantor or (C) violate or require any governmental or regulatory
<PAGE> 191
authorization or other action under any law, rule or regulation applicable to
the Borrower or such Guarantor other than New York law or United States federal
law applicable to borrowers generally or, assuming the correctness of the
Borrower's statements made as representations and warranties in Section 4.01(d)
of the Credit Agreement, applicable to the Borrower and such Guarantor. We have
also assumed that the Credit Agreement is the legal, valid and binding
obligation of each Lender Party, enforceable against such Lender Party in
accordance with its terms.
Based upon the foregoing examination and assumptions and upon
such other investigation as we have deemed necessary and subject to the
qualifications set forth below, we are of the opinion that (i) the Credit
Agreement and each of the Notes are the legal, valid and binding obligations of
the Borrower, enforceable against the Borrower in accordance with their
respective terms, and (ii) the Guaranty is the legal, valid and binding
obligation of each Guarantor, enforceable against such Guarantor in accordance
with its terms.
Our opinions above are subject to the following qualifications:
(i) Our opinions above are subject to the effect of any
applicable bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar law affecting creditors' rights generally.
(ii) Our opinions above are also subject to the effect of general
principles of equity, including (without limitation) concepts of
materiality, reasonableness, good faith and fair dealing (regardless of
whether considered in a proceeding in equity or at law).
(iii) We express no opinion as to the enforceability of the
indemnification provisions set forth in Section 8.04(b) of the Credit
Agreement to the extent enforcement thereof is contrary to public policy
regarding the exculpation of criminal violations, intentional harm and
acts of gross negligence or recklessness.
(iv) Our opinion above is limited to the law of the State of New
York and the federal law of the United States of America and we do not
express any opinion herein concerning any other law. Without limiting
the generality of the foregoing, we express no opinion as to the effect
of the law of a jurisdiction other than the State of New York wherein
any Lender Party may be located or wherein enforcement of the Loan
Documents may be sought that limits the rates of interest legally
chargeable or collectible.
A copy of this opinion letter may be delivered by any of you to
any Person that becomes a Lender Party in accordance with the provisions of the
Credit Agreement. Any such Lender Party may rely on the opinion expressed above
as if this opinion letter were addressed and delivered to such Lender Party on
the date hereof.
This opinion letter speaks only as of the date hereof. We
expressly disclaim any responsibility to advise you or any other Lender Party
who is permitted to rely on the opinion expressed herein as specified in the
next preceding paragraph of any development or circumstance of any kind
including any change of law or fact that may occur after the date of this
- 2 -
<PAGE> 192
opinion letter even though such development, circumstance or change may affect
the legal analysis, a legal conclusion or any other matter set forth in or
relating to this opinion letter. Accordingly, any Lender Party relying on this
opinion letter at any time should seek advice of its counsel as to the proper
application of this opinion letter at such time.
Very truly yours,
- 3 -
<PAGE> 193
SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
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REVOLVING CREDIT DOMESTIC EURODOLLAR
TERM LOAN COMMITMENT COMMITMENT LENDING LENDING
NAME OF LENDER PARTY OFFICE OFFICE
<S> <C> <C> <C> <C>
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<PAGE> 1
EXHIBIT 10.2
GUARANTY
GUARANTY dated as of October 31, 1997 made by each of the Persons
listed on the signature pages hereto (each a "Guarantor", and collectively the
"Guarantors"), in favor of the Lender Parties (as defined in the Credit
Agreement referred to below).
PRELIMINARY STATEMENT. The Lender Parties, Citicorp USA, Inc., as
Agent for the Lender Parties and Citicorp Securities, Inc., as Arranger, are
parties to a Credit Agreement dated as of October 31, 1997 (said Agreement, as
it may hereafter be amended, supplemented or otherwise modified from time to
time, being the "Credit Agreement", the terms defined therein and not otherwise
defined herein being used herein as therein defined) with BECKMAN INSTRUMENTS,
INC., a Delaware corporation (the "Borrower"). Each Guarantor may from time to
time receive a portion of the proceeds of the Advances under the Credit
Agreement (and other advances or contributions from the Borrower that the
Borrower will be able to make as a result of the credit extended to the Borrower
under the Credit Agreement) and will otherwise derive substantial direct and
indirect benefits from the Letters of Credit issued pursuant to the Credit
Agreement and the other transactions contemplated thereby. It is a condition
precedent to the making of Advances and the issuance of Letters of Credit by the
Lender Parties under the Credit Agreement that each of the Guarantors shall have
executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lender Parties to make Advances and to issue Letters of Credit under
the Credit Agreement from time to time, each Guarantor hereby agrees as follows:
Section 1. Guaranty; Limitation of Liability. (a) Each Guarantor
hereby unconditionally and irrevocably guarantees the punctual payment when due,
whether at stated maturity, by acceleration or otherwise, of all Obligations of
the Borrower now or hereafter existing under the Loan Documents, whether for
principal, interest, fees, expenses or otherwise (such Obligations being the
"Guaranteed Obligations"), and agrees to pay any and all expenses (including
reasonable counsel fees and expenses) incurred by the Agent or, upon the
occurrence and during the continuation of any Event of Default, any other Lender
Parties in enforcing any rights under this Guaranty. Without limiting the
generality of the foregoing, the liability of each Guarantor shall extend to all
amounts that constitute part of the Guaranteed Obligations and would be owed by
the Borrower to the Agent or any other Lender Party under the Loan Documents but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving the Borrower.
(b) Each of the Guarantors, and by its acceptance of this
Guaranty, the Agent and each other Lender Party, hereby confirm that it is the
intention of all such Persons that this Guaranty and the Obligations of each of
the Guarantors hereunder not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law (as defined below), the
<PAGE> 2
2
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar federal or state law to the extent applicable to this Guaranty. To
effectuate the foregoing intention, the Agent, the other Lender Parties and each
of the Guarantors hereby irrevocably agree that the Obligations of each of the
Guarantors under this Guaranty shall be limited to the maximum amount as will,
after giving effect to such maximum amount and all other contingent and fixed
liabilities of such Guarantor that are relevant under such laws, and after
giving effect to any collections from, rights to receive contribution from or
payments made by or on behalf of any other Guarantor in respect of the
Obligations of such other Guarantor under this Guaranty, result in the
Obligations of such Guarantor under this Guaranty not constituting a fraudulent
transfer or conveyance. For purposes hereof, "Bankruptcy Law" means Title 11,
U.S. Code, or any similar Federal or state law for the relief of debtors.
(c) Each Guarantor agrees that in the event any payment shall be
required to be made to the Lender Parties under this Guaranty, such Guarantor
will contribute, to the maximum extent permitted by law, such amounts to each
other Guarantor so as to maximize the aggregate amount paid to the Lender
Parties under the Loan Documents.
Section 2. Guaranty Absolute. Each of the Guarantors guarantees
that the Guaranteed Obligations will be paid strictly in accordance with the
terms of the Loan Documents, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Agent or any other Lender Party with respect thereto. The
Obligations of each of the Guarantors under this Guaranty are independent of the
Guaranteed Obligations or any other Obligations of any other Loan Party under
the Loan Documents, and a separate action or actions may be brought and
prosecuted against each of the Guarantors to enforce this Guaranty, irrespective
of whether any action is brought against the Borrower or any other Loan Party or
whether the Borrower or any other Loan Party is joined in any such action or
actions. The liability of each of the Guarantors under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and the Guarantor
hereby irrevocably waives any defenses it may now or hereafter have in any way
relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan Document
or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations or any other
Obligations of any other Loan Party under the Loan Documents, or any
other amendment or waiver of or any consent to departure from any Loan
Document, including, without limitation, any increase in the Guaranteed
Obligations resulting from the extension of additional credit to the
Borrower or any of its Subsidiaries or otherwise;
<PAGE> 3
3
(c) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any manner of application of collateral, or proceeds thereof,
to all or any of the Guaranteed Obligations, or any manner of sale or
other disposition of any collateral for all or any of the Guaranteed
Obligations or any other Obligations of any other Loan Party under the
Loan Documents or any other assets of the Borrower or any of its
Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of the Borrower or any of its Subsidiaries;
(f) any failure of any Lender Party to disclose to the Borrower
or the Guarantor any information relating to the financial condition,
operations, properties or prospects of any other Loan Party now or in
the future known to any Lender Party (each Guarantor waiving any duty on
the part of the Lender Parties to disclose such information); or
(g) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Agent or any other Lender Party that might
otherwise constitute a defense available to, or a discharge of, the
Borrower, any Guarantor or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by any Lender Party or any other Person upon the
insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party
or otherwise, all as though such payment had not been made.
Section 3. Waivers and Acknowledgments. (a) Each of the
Guarantors hereby waives promptness, diligence, notice of acceptance and any
other notice with respect to any of the Guaranteed Obligations and this Guaranty
and any requirement that the Agent or any other Lender Party protect, secure,
perfect or insure any Lien on any property at any time subject thereto or
exhaust any right or take any action against the Borrower or any other Person or
any collateral.
(b) Each of the Guarantors hereby waives any right to revoke this
Guaranty, and acknowledges that this Guaranty is continuing in nature and
applies to all Guaranteed Obligations, whether existing now or in the future.
<PAGE> 4
4
(c) Each of the Guarantors acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth in this
Section 3 are knowingly made in contemplation of such benefits.
Section 4. Subrogation. None of the Guarantors shall exercise any
rights that it may now or hereafter acquire against the Borrower or any other
insider guarantor that arise from the existence, payment, performance or
enforcement of the Guarantor's Obligations under this Guaranty or any other Loan
Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Agent or any other Lender Party
against the Borrower or any other insider guarantor or any collateral, whether
or not such claim, remedy or right arises in equity or under contract, statute
or common law, including, without limitation, the right to take or receive from
the Borrower or any other insider guarantor, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim, remedy or right, unless and until all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash and the Commitments shall have expired or terminated. If
any amount shall be paid to any of the Guarantors in violation of the preceding
sentence at any time prior to the later of the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty and the
Termination Date, such amount shall be held in trust for the benefit of the
Agent and the other Lender Parties and shall forthwith be paid to the Agent to
be credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of the Loan Documents, or to be held as collateral for any Guaranteed
Obligations or other amounts payable under this Guaranty thereafter arising. If
(a) any of the Guarantors shall make payment to the Agent or any other Lender
Party of all or any part of the Guaranteed Obligations, (b) all of the
Guaranteed Obligations and all other amounts payable under this Guaranty shall
be paid in full in cash and (c) the Termination Date shall have occurred, the
Agent and the other Lender Parties will, at such Guarantor's request and
expense, execute and deliver to the Guarantor appropriate documents, without
recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to such Guarantor of an interest in the Guaranteed
Obligations resulting from such payment by such Guarantor.
Section 5. Payments Free and Clear of Taxes, Etc. (a) Any and all
payments made by any of the Guarantors hereunder shall be made, in accordance
with Section 2.13 of the Credit Agreement, free and clear of and without
deduction for any and all present or future Taxes. If any of the Guarantors
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder to any Lender Party, (i) except as provided in Section 5(f),
the sum payable shall be increased as may be necessary so that, after making all
required deductions (including deductions applicable to additional sums
<PAGE> 5
5
payable under this Section 5), such Lender Party receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such Guarantor
shall make such deductions and (iii) such Guarantor shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, each of the Guarantors shall pay any present or
future Other Taxes.
(c) Each of the Guarantors shall indemnify each Lender Party for
and hold it harmless against the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 5) imposed on or paid by such Lender Party
and any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within 30 days from
the date such Lender Party makes written demand therefor, accompanied by a
calculation in reasonable detail of the amount demanded and evidence of the
Taxes and Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section) imposed or
paid by the Agent or any other Lender Party.
(d) Within 30 days after the date of any payment of Taxes, the
Guarantor making such payment (or on whose behalf such payment was made) shall
furnish to the Agent, at its address referred to in Section 8.02 of the Credit
Agreement, evidence satisfactory to the Agent of such payment. In the case of
any payment hereunder by or on behalf of any Guarantor through an account or
branch outside the United States or by or on behalf of any Guarantor by a payor
that is not a United States person, if such Guarantor determines that no Taxes
are payable in respect thereof, such Guarantor shall furnish, or shall cause
such payor to furnish, to the Agent, at such address, an opinion of counsel
acceptable to the Agent stating that such payment is exempt from Taxes. For
purposes of this subsection (d) and subsection (e), the terms "United States"
and "United States person" shall have the meanings specified in Section 7701 of
the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of the Credit Agreement in the case of each Initial Lender or Initial
Issuing Bank, as the case may be, and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender Party in the case of each other
Lender Party, and from time to time thereafter as requested in writing by any of
the Guarantors (but only so long as such Lender Party remains lawfully able to
do so), shall provide each of the Agent and such Guarantor with two original
Internal Revenue Service forms 1001 or 4224, as appropriate, or any successor or
other form prescribed by the Internal Revenue Service, certifying that such
Lender Party is exempt from or is entitled to a reduced rate of United States
withholding tax on payments under the Credit Agreement or the Notes and two
copies of Internal Revenue Service forms W-8 or W-9, or
<PAGE> 6
6
any successor or other form prescribed by the Internal Revenue Service. In
addition to the forms described in the immediately preceding sentence, each
Lender Party organized under the laws of a jurisdiction outside the United
States shall, upon the request of a Guarantor or the Agent in writing, (i)
provide each of the Agent and such Guarantor with two further copies of such
forms or other appropriate certification of such forms on or before the date
that any such form expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recent form delivered to such Guarantor,
and (ii) obtain such extensions of the time for the filing and shall renew such
forms and certifications thereof as may be reasonably requested by such
Guarantor or the Agent. If the form provided by a Lender Party at the time such
Lender Party first becomes a party to the Credit Agreement indicates a United
States interest withholding tax rate in excess of zero, withholding tax at such
rate shall be considered excluded from Taxes unless and until such Lender Party
provides the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such form; provided, however, that, if at the date of
the Assignment and Acceptance pursuant to which a Lender Party assignee becomes
a party to the Credit Agreement, the Lender Party assignor was entitled to
payments under subsection (a) in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender Party assignee on such date.
(f) For any period with respect to which a Lender Party has
failed to provide any of the Guarantors with the appropriate form described in
subsection (e) above or failed to seek an extension of the time for filing such
successor form as required in writing to do so by the Agent or such Guarantor in
accordance with subsection (e) above (other than if such failure is due to a
change in law occurring after the date on which a form originally was required
to be provided or if such form otherwise is not required under subsection (e)
above), such Lender Party shall not be entitled to indemnification under
subsection (a) or (c) with respect to Taxes imposed by the United States by
reason of such failure; provided, however, that should a Lender Party become
subject to Taxes because of its failure to deliver a form required hereunder,
such Guarantor shall take such steps (at such Lender Party's expense) as such
Lender Party shall reasonably request to assist such Lender Party to recover
such Taxes.
Section 6. Representations and Warranties. Each of the Guarantors
hereby represents and warrants with respect to itself as follows:
(a) Each of the representations and warranties contained in the
Credit Agreement and made by the Borrower with respect to such Guarantor
and its properties, affairs and financial condition is true and correct.
<PAGE> 7
6
(b) There are no conditions precedent to the effectiveness of
this Guaranty that have not been satisfied or waived.
(c) Such Guarantor has, independently and without reliance upon
the Agent or any other Lender Party and based on such documents and
information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Guaranty, and such Guarantor has
established adequate means of obtaining from any other Loan Parties on a
continuing basis information pertaining to, and is now and on a
continuing basis will be completely familiar with, the financial
condition, operations, properties and prospects of such other Loan
Parties.
Section 7. Covenants. Each of the Guarantors covenants and agrees
that, so long as any part of the Guaranteed Obligations shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment, such Guarantor will, unless such of the Lender Parties as is
specified in Section 8.01 of the Credit Agreement shall otherwise consent in
writing, perform or observe, and cause its Subsidiaries to perform or observe,
all of the terms, covenants and agreements that the Loan Documents state that
the Borrower is to cause such Guarantor or such Subsidiaries to perform or
observe.
Section 8. Amendments, Etc. (a) No amendment or waiver of any
provision of this Guaranty and no consent to any departure by any of the
Guarantors therefrom shall in any event be effective unless the same shall be in
writing and signed by the Agent and the Required Lenders, or by the Agent on
behalf of such Lenders, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all of the Lender Parties (other than any Lender Party that is, at
such time, a Defaulting Lender), or by the Agent on behalf of such Lenders, (i)
limit the liability of the Company hereunder, (ii) postpone any date fixed for
payment by the Company hereunder or (iii) change the number of Lender Parties
required to take any action hereunder.
(b) Upon the execution and delivery by any Person of a supplement
to this Guaranty, in each case in substantially the form of Exhibit A hereto or
otherwise in form and substance reasonably satisfactory to the Agent (each, a
"Guaranty Supplement"), such Person shall be referred to as an "Additional
Guarantor" and shall be and become a Guarantor, and each reference in this
Guaranty to an "Additional Guarantor" or a "Guarantor" shall also mean and be a
reference to such Additional Guarantor and, subject to the terms of the
definition of "Subsidiary Guarantor" set forth in Section 1.01 of the Credit
Agreement, each reference in any of the other Loan Documents to a "Subsidiary
Guarantor" or a "Loan Party" shall also mean and be a reference to such
Additional Guarantor.
Section 9. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and
<PAGE> 8
8
mailed, telegraphed, telecopied, telexed or delivered to the parties hereto, if
to any of the Guarantors, at the address set forth below its name on the
signature pages to this Guarantee or, in the case of any of the Additional
Guarantors, at the address set forth below its name on the signature page to the
Guarantee Supplement executed and delivered by it, if to the Agent or any other
Lender Party, at its address specified in the Credit Agreement, or as to any
party at such other address as shall be designated by such party in a written
notice to each other party. All such notices and other communications shall,
when mailed, telegraphed, telecopied or telexed, be effective three Business
Days after deposit in the mails, or when delivered to the telegraph company,
transmitted by telecopier or confirmed by telex answerback, respectively.
Section 10. No Waiver; Remedies. No failure on the part of the
Agent or any other Lender Party to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
Section 11. Right of Set-off. Upon (a) the occurrence and during
the continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 of the Credit Agreement to
authorize the Agent to declare the Notes due and payable pursuant to the
provisions of said Section 6.01, each Lender Party and each of its respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender Party or such Affiliate to
or for the credit or the account of any of the Guarantors against any and all of
the Obligations of such Guarantor now or hereafter existing under this Guaranty,
whether or not such Lender Party shall have made any demand under this Guaranty
and although such Obligations may be unmatured. Each Lender Party agrees
promptly to notify the applicable Guarantor after any such set-off and
application; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
Party and its respective Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Lender Party and its respective Affiliates may have.
Section 12. Indemnification. Without limitation on any other
Obligations of the Guarantors or remedies of the Lender Parties under this
Guaranty, each of the Guarantors shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless each Lender Party from and against,
and shall pay on demand, any and all losses, liabilities, damages, costs,
expenses and charges (including the fees and disbursements of such Lender
Party's legal counsel) suffered or incurred by such Lender Party as a result of
any failure of
<PAGE> 9
9
any Guaranteed Obligations to be the legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their terms.
Section 13. Continuing Guaranty; Assignments under the Credit
Agreement. This Guaranty is a continuing guaranty and shall (a) remain in full
force and effect until the later of (i) the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty and
(ii) the Termination Date, (b) be binding upon each of the Guarantors, its
successors and assigns and (c) inure to the benefit of and be enforceable by the
Agent and the other Lender Parties and their successors, transferees and
assigns. Without limiting the generality of the foregoing clause (c), any Lender
Party may assign or otherwise transfer all or any portion of its rights and
obligations under the Credit Agreement (including, without limitation, all or
any portion of its Commitments, the Advances owing to it and the Note or Notes
held by it) to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to such Lender Party
herein or otherwise, in each case as and to the extent provided in Section 8.07
of the Credit Agreement.
Section 14. Governing Law; Jurisdiction; Waiver of Jury Trial,
Etc. (a) This Guaranty shall be governed by, and construed in accordance with,
the laws of the State of New York.
(b) Each of the Guarantors hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Guaranty or any of the other Loan
Documents to which it is or is to be a party, or for recognition or enforcement
of any judgment, and each of the Guarantors hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. Each of the Guarantors
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Guaranty shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Guaranty or any of the other Loan Documents to which it is or
is to be a party in the courts of any jurisdiction.
(c) Each of the Guarantors irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Guaranty or any of the
other Loan Documents to which it is or is to be a party in any New York State or
federal court. Each of the Guarantors hereby irrevocably waives, to the
<PAGE> 10
10
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each of the Guarantors hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to any of the Loan
Documents, the transactions contemplated thereby or the actions of the Agent or
any other Lender Party in the negotiation, administration, performance or
enforcement thereof.
Section 15. Execution in Counterparts. This Guaranty may be
executed in any number of 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 one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Guaranty by telecopier shall be effective as delivery of a manually executed
counterpart of this Guaranty.
[Remaineder of page intentionally left blank.]
<PAGE> 11
11
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
BECKMAN INSTRUMENTS (NAGUABO) INC.
SMITHKLINE DIAGNOSTICS, INC.
HYBRITECH INCORPORATED
COULTER CORPORATION
COULTER LEASING CORPORATION
By /s/ PAUL GLYER
-----------------------------
Title: Treasurer
<PAGE> 12
EXHIBIT A TO
GUARANTY
FORM OF GUARANTEE SUPPLEMENT
[Date of Guarantee Supplement]
Citicorp USA, Inc., as
Agent for the Lender Parties party to the
Credit Agreement referred to below
399 Park Avenue
New York, New York 10043
Attention: __________________
Credit Agreement dated as of October 31, 1997 (as in effect on
the date hereof, the "Credit Agreement") among Beckman Instruments, Inc., the
banks, financial institutions and other lenders from time to time party thereto,
Citicorp USA, Inc., as Agent and Citicorp Securities, Inc., as Arranger.
Ladies and Gentlemen:
Reference is made to the above-captioned Credit Agreement and to
the Guaranty referred to therein (such Guaranty, as in effect on the date hereof
and as it may be further amended, supplemented or otherwise modified hereafter
from time to time, being referred to herein as the "Guaranty"). Capitalized
terms not otherwise defined in this Guaranty Supplement shall have the same
meanings as specified therefor in the Credit Agreement or the Guaranty.
SECTION 1. Guaranty; Limitation of Liability. (a) The undersigned
hereby unconditionally and irrevocably guarantees the punctual payment
when due, whether at stated maturity, by acceleration or otherwise, of
all Obligations of the Borrower now or hereafter existing under the Loan
Documents, whether for principal, interest, fees, expenses or otherwise
(such Obligations being the "Guaranteed Obligations"), and agrees to pay
any and all expenses (including reasonable counsel fees and expenses)
incurred by the Agent or, upon the occurrence and during the
continuation of any Event of Default, any other Lender Parties in
enforcing any rights under this Guaranty Supplement or the Guaranty, on
the terms and subject to the limitations set forth in the Guaranty, as
if it were an original party thereto. Without limiting the generality of
the foregoing, the undersigned's liability shall extend to all amounts
that constitute part of the Guaranteed Obligations and would be owed by
the Borrower to the Agent or any other Lender Party under the Loan
Documents but for the fact that they are unenforceable or not allowable
<PAGE> 13
due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Borrower.
(b) The undersigned and, by its acceptance of this Guaranty
Supplement, the Agent and each other Lender Party, hereby confirm that
it is the intention of all such Persons that this Guaranty Supplement,
the Guaranty and the Obligations of the undersigned hereunder and
thereunder not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to
the extent applicable to this Guaranty Supplement or the Guaranty. To
effectuate the foregoing intention, the undersigned, the Agent and the
other Lender Parties hereby irrevocably agree that the Obligations of
the undersigned under this Guaranty Supplement and the Guaranty shall be
limited to the maximum amount as will, after giving effect to such
maximum amount and all of the other contingent and fixed liabilities of
the undersigned that are relevant under such laws, and after giving
effect to any collections from, rights to receive contributions from or
payments made by or on behalf of any of the other Guarantors in respect
of the Obligations of such other Guarantor under the Guaranty, result in
the Obligations of the undersigned under this Guaranty Supplement and
the Guaranty not constituting a fraudulent transfer or conveyance.
(c) The undersigned hereby agrees that in the event any payment
shall be required to be made to the Lender Parties under the Guaranty,
the undersigned will contribute, to the maximum extent permitted by law,
such amounts to each other Guarantor so as to maximize the aggregate
amount paid to the Lender Parties under the Loan Documents.
SECTION 2. Obligations Under the Guaranty. The undersigned hereby
agrees, as of the date first above written, to be bound as a Guarantor
by all of the terms and conditions of the Guaranty to the same extent as
each of the other Guarantors. The undersigned further agrees, as of the
date first above written, that each reference in the Guaranty to an
"Additional Guarantor" or a "Guarantor" shall also mean and be a
reference to the undersigned, and each reference in any other Loan
Document to a "Guarantor" or a "Loan Party" shall also mean and be a
reference to the undersigned.
SECTION 3. Governing Law; Jurisdiction; Etc. (a) This Guaranty
Supplement shall be governed by, and construed in accordance with, the
laws of the State of New York.
(b) The undersigned hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction
of any New York state court or federal court of the United States of
America sitting in New York City and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Guaranty Supplement, the Guaranty or any of the other Loan Documents to
which it is or is to be a party, or for recognition or enforcement of
any judgment, and the undersigned hereby
<PAGE> 14
3
irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New
York state court or, to the extent permitted by law, in such federal
court. The undersigned agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Guaranty Supplement or the Guaranty shall affect
any right that any party may otherwise have to bring any action or
proceeding relating to this Guaranty Supplement, the Guaranty or any of
the other Loan Documents to which it is or is to be a party in the
courts of any jurisdiction.
(c) The undersigned irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection
that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Guaranty
Supplement, the Guaranty or any of the other Loan Documents to which it
is a party in any New York state court or federal court. The undersigned
hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
SECTION 4. WAIVER OF JURY TRIAL. THE UNDERSIGNED IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT
OF OR RELATING TO THIS GUARANTY SUPPLEMENT, THE GUARANTY, ANY OF THE
OTHER LOAN DOCUMENTS, ANY OF THE DOCUMENTS DELIVERED PURSUANT TO THE
LOAN DOCUMENTS, THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR THE
ACTIONS OF ANY OF THE AGENT OR ANY OF THE OTHER LENDER PARTIES IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
[NAME OF ADDITIONAL GUARANTOR]
By _______________________________
Name:
Title:
<PAGE> 1
Exhibit 10.3
AMENDMENT 1997-1
BECKMAN INSTRUMENTS, INC.
EMPLOYEES' STOCK PURCHASE PLAN
WHEREAS, Beckman Instruments, Inc. (the "Company") maintains the
Beckman Instruments, Inc. Employees' Stock Purchase Plan (the "Plan"); and
WHEREAS, the Company has the right to amend the Plan, and the Company
desires to amend the Plan to reflect recent resolutions adopted by the Board of
Directors;
NOW, THEREFORE, the Plan is hereby amended, effective as of January 1,
1998, as follows:
1. The second sentence of Section 4(d) of the Plan is amended to read as
follows:
"Eligible compensation also includes any amounts contributed to a plan
qualifying under Sections 401(k), 125 and 129 of the Code as salary
reduction contributions as well as any amounts deferred under the Beckman
Instruments, Inc. Executive Deferred Compensation Plan and the Beckman
Instruments, Inc. Executive Restoration Plan."
<PAGE> 2
IN WITNESS WHEREOF, the Company has caused its duly authorized officer
to execute this Amendment to the Plan on this 20th day of October, 1997.
BECKMAN INSTRUMENTS, INC.
By /s/ FIDENCIO M. MARES
------------------------------------------
Fidencio M. Mares
Its: Vice President - Human Resources
<PAGE> 1
EXHIBIT 10.4
BECKMAN INSTRUMENTS, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
EFFECTIVE AS OF JANUARY 1, 1998
<PAGE> 2
BECKMAN INSTRUMENTS, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
ARTICLE I TITLE AND DEFINITIONS
1.1 Title............................................... 1
1.2 Definitions......................................... 1
ARTICLE II PARTICIPATION
2.1 Participation....................................... 11
ARTICLE III DEFERRAL ELECTIONS
3.1 Elections to Defer Salary and/or Bonus.............. 12
ARTICLE IV ACCOUNTS
4.1 Cash Deferral Account............................... 16
4.2 Stock Unit Account; Dividend Equivalents............ 17
ARTICLE V VESTING
5.1 Vesting..............................................20
ARTICLE VI DISTRIBUTIONS
6.1 Distribution of Accounts............................ 22
6.2 Inability to Locate Participant..................... 25
6.3 Early and Hardship Distributions.................... 26
6.4 Distributions on Death.............................. 27
ARTICLE VII CLAIMS PROCEDURE AND ARBITRATION
7.1 Claims Procedure and Arbitration.................... 28
ARTICLE VIII ADMINISTRATION
8.1 Committee........................................... 32
8.2 Committee Action.................................... 32
8.3 Powers and Duties of the Committee.................. 33
8.4 Interpretation of Plan.............................. 34
8.5 Plan Construction................................... 35
8.6 Information......................................... 35
8.7 Compensation, Expenses and Indemnity................ 36
ARTICLE IX MISCELLANEOUS
9.1 Unsecured General Creditor.......................... 37
9.2 No Employment Contract.............................. 37
9.3 Adjustments in Case of Changes in Common Stock...... 38
9.4 Restriction Against Assignment...................... 38
9.5 Withholding......................................... 39
9.6 Amendment, Modification, Suspension or Termination.. 39
</TABLE>
i
<PAGE> 3
<TABLE>
<C> <S> <C>
9.7 Governing Law....................................... 40
9.8 Receipt or Release.................................. 40
9.9 Payments on Behalf of Persons Under Incapacity...... 41
9.10 Headings, etc. Not Part of Agreement................ 41
</TABLE>
ii
<PAGE> 4
BECKMAN INSTRUMENTS, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
WHEREAS, Beckman Instruments, Inc. (the "Company") desires to establish a
deferred compensation plan to provide supplemental retirement income benefits
for a select group of management and highly compensated employees through
deferrals of salary and bonuses effective as of January 1, 1998; and
WHEREAS, it is believed that the adoption of this Plan providing for
deferred compensation at the election of each executive or highly compensated
employee will be in the best interests of the Company;
NOW, THEREFORE, it is hereby declared as follows:
<PAGE> 5
ARTICLE I
TITLE AND DEFINITIONS
1.1 TITLE.
------
This Plan shall be known as the "Beckman Instruments, Inc. Executive
Deferred Compensation Plan."
1.2 DEFINITIONS.
-----------
Whenever the following words and phrases are used in this Plan, with
the first letter capitalized, they shall have the meanings specified below.
"Account" or "Accounts" shall mean a Participant's Cash Deferral
Account and/or Stock Unit Account. The Committee may establish such additional
accounts or subaccounts as it deems necessary for the proper administration of
the Plan.
"Beneficiary" or "Beneficiaries" shall mean the person or persons,
including a trustee, personal representative or other fiduciary, who have been
designated as or who are deemed to be the Participant's "Beneficiary" or
"Beneficiaries" under the 401(k) Plan and who shall receive the benefits
specified hereunder in the event of the Participant's death. Notwithstanding the
above, a Participant may designate or change such designation of his or her
Beneficiary or Beneficiaries for purposes of this Plan by filing, on a form
<PAGE> 6
provided by the Committee and on such terms and conditions as the Committee may
prescribe, a Beneficiary designation. No such Beneficiary designation shall
become effective until it is filed with the Committee. Such Beneficiary
designation shall thereafter remain in effect with respect to this Plan until a
new Beneficiary designation is filed with the Committee pursuant to the terms
hereof. In the event any amount is payable under this Plan to a minor, payment
shall not be made to the minor, but instead shall be paid (i) to that person's
living parent(s) to act as custodian, (ii) if that person's parents are then
divorced, and one parent is the sole custodial parent, to such custodial parent,
or (iii) if no parent of that person is then living, to a custodian selected by
the Committee to hold the funds for the minor under the Uniform Transfers or
Gifts to Minors Act in effect in the jurisdiction in which the minor resides. If
no parent is living and the Committee decides not to select another custodian to
hold the funds for the minor, then payment shall be made to the duly appointed
and currently acting guardian of the estate for the minor or, if no guardian of
the estate for the minor is duly appointed and currently acting within 60 days
after the date the amount becomes payable, payment shall be deposited or made
with the court having jurisdiction over the estate of the minor.
"Board of Directors" or "Board" shall mean the Board of Directors of
Beckman Instruments, Inc.
2
<PAGE> 7
"Bonus" shall mean any annual incentive compensation payable to a
Participant in accordance with the Executive or Management Incentive Plans (or
their successors) that is in addition to the Participant's Salary.
"Cash Deferral Account" shall mean the bookkeeping account maintained
by the Company on behalf of a Participant who elects to defer his or her Salary
and/or Bonus in cash pursuant to Section 3.1.
"Change in Control Event" shall mean the following and shall be deemed
to occur if any of the following events occur:
(i) any "person," as such term is used in Sections 13(d) and
14(d) of the Exchange Act, other than an employee benefit plan of Beckman
Instruments, Inc. ("Beckman"), or a trustee or other fiduciary holding
securities under an employee benefit plan of Beckman, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of Beckman representing 20% or more
of the combined voting power of Beckman's then outstanding voting
securities, provided that, no Change in Control Event shall be deemed to
occur solely because a corporation (the "seller") owns 20% or more of
Beckman voting securities if such ownership is only a transitory step in a
reorganization whereby Beckman purchases the assets of the seller for
Beckman voting securities and the seller liquidates shortly thereafter;
3
<PAGE> 8
(ii) individuals who, as of the date hereof, constitute the Board
of Beckman (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board, provided that any person becoming a director
subsequent to the date hereof whose election, or nomination for election by
the Beckman stockholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board (other than an election
or nomination of an individual whose initial assumption of office is in
connection with an actual or threatened election contest relating to the
election of the directors of Beckman, as such terms are used in Rule 14a-11
of Regulation 14A promulgated under the Exchange Act) shall be considered
as though such person were a member of the Incumbent Board of Beckman;
(iii) the stockholders of Beckman approve a merger or
consolidation with any other corporation, other than (A) a merger or
consolidation which would result in the voting securities of Beckman
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of
another entity) more than 80% of the combined voting power of the voting
securities of Beckman or such other entity outstanding immediately after
4
<PAGE> 9
such merger or consolidation, or (B) a merger or consolidation effected to
implement a recapitalization of Beckman (or similar transaction) in which
no person acquires 20% or more of the combined voting power of Beckman's
then outstanding voting securities; or
(iv) the stockholders of Beckman approve a plan of complete
liquidation of Beckman or an agreement for the sale or disposition by
Beckman of all or substantially all of Beckman's assets.
Notwithstanding the preceding sentence, a Change in Control Event shall not be
deemed to have occurred if the "person" described in the preceding sentence is
an underwriting syndicate which has acquired the ownership of 20% or more of the
combined voting power of Beckman's then outstanding voting securities solely in
connection with a public offering of Beckman's securities.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Committee" shall mean the Organization and Compensation Committee of
the Board or its delegate(s) which administers this Plan in accordance with
Article VIII.
"Common Stock" shall mean the Common Stock of the Company, subject to
adjustment pursuant to Section 9.3.
5
<PAGE> 10
"Company" shall mean Beckman Instruments, Inc., any successor
corporation and each corporation which is a member of a controlled group of
corporations (within the meaning of Section 414(b) of the Code) of which Beckman
Instruments, Inc. is a component member.
"Disability" shall mean that the Participant (1) has terminated
employment with the Company, and (2) at the date of such termination, is
disabled within the meaning of Section 22(e)(3) of the Code. The Participant
must furnish proof of disability in such form and manner, and at such times, as
the Company may require. A consideration of disability hereunder does not mean
or imply that the Participant qualifies for any disability-related benefits
under any other plan or program of the Company, and each such other plan or
program is or may be governed by separate requirements which differ from those
applied herein.
"Distribution Amount" shall mean the amount of a Participant's Cash
Deferral Account and Stock Unit Account (together with earnings and Dividend
Equivalents credited pursuant to Sections 4.1(c) and 4.2(e) respectively)
associated with a particular Plan Year's deferral and distribution election.
"Dividend Equivalent" shall mean the amount of cash dividends or other
cash distributions paid by the Company on that number of shares of Common Stock
equivalent to the number of Stock Units then credited to a Participant's Stock
Unit Account, which amount shall be allocated as additional Stock Units to such
Participant's Stock Unit Account, as provided in Section 4.2.
6
<PAGE> 11
"Effective Date" shall mean January 1, 1998.
"Eligible Employee" shall mean an officer or other highly compensated
employee of the Company who has been selected by the Committee to participate in
this Plan. The Committee shall limit Eligible Employee status to a select group
of management or highly compensated employees, as set forth in Sections 201, 301
and 401 of ERISA.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Fair Market Value" shall mean on any date the closing price of the
Common Stock on the New York Stock Exchange, or, if there is no trading of the
Common Stock on such date, then the closing price of the Common Stock on the New
York Stock Exchange on the next preceding date on which there was trading in
such shares. If the Common Stock is not listed, admitted or quoted, the
Committee may designate such other source of data as it deems appropriate for
determining such value for purposes of this Plan.
7
<PAGE> 12
"401(k) Plan" means the Beckman Instruments, Inc. Savings and
Investment Plan, as it may be amended from time to time.
"Interest Rate" shall mean, for each Plan Year, the prime rate of
interest established by Bank of America, NT&SA in effect as of the July 31
preceding the relevant Plan Year.
"Layoff" shall mean that a Participant has terminated from employment
with the Company as a result of a layoff and such termination is classified as
such in the Company's payroll records.
"Participant" shall mean any Eligible Employee who elects to defer a
portion of his or her Salary and/or Bonus in accordance with Section 3.1 and who
satisfies the participation requirements of Article II.
"Plan" shall mean the Beckman Instruments, Inc. Executive Deferred
Compensation Plan set forth herein, now in effect, or as amended from time to
time. This Plan constitutes an unfunded plan maintained primarily for the
purpose of providing deferred compensation for a select group of management or
highly compensated employees, as set forth in Sections 201, 301 and 401 of
ERISA.
"Plan Year" shall mean the 12 consecutive month period beginning on
January 1.
8
<PAGE> 13
"Premium Percentage" shall mean the percentage used for the crediting
of Premium Units determined pursuant to Section 4.2(c)(ii) of the Plan.
"Premium Units" shall mean the Stock Units credited to a Participant's
Stock Unit Account in any month resulting from the premium associated with the
Participant's deferral of a particular percentage of Bonus in the form of Stock
Units pursuant to Section 4.2(c)(ii).
"Retirement" shall mean a Participant's Early, Normal, or Late
Retirement as defined in the Beckman Instruments, Inc. Pension Plan. For
Participants who are not eligible to participate in the Beckman Instruments,
Inc. Pension Plan, "Retirement" shall mean what their Early, Normal, or Late
Retirement would have been under such plan had they otherwise been eligible to
participate for their entire period of service with the Company.
"Salary" shall mean the Participant's "Plan Compensation" (as such
term is defined in the 401(k) Plan, but without regard to the limit under
Section 401(a)(17) of the Code) prior to any deferrals under this Plan or any
other deferred compensation plan of the Company, except for Bonus.
"Stock Unit" or "Unit" shall mean a non-voting unit of measurement
which is deemed for bookkeeping purposes to be equivalent to one outstanding
share of Common Stock of the Company solely for purposes of this Plan. The Units
9
<PAGE> 14
credited to a Participant's Stock Unit Account shall be used solely as a device
for the determination of the value of the Participant's Stock Unit Account to be
eventually distributed in cash to such Participant in accordance with this Plan.
The Units shall not be treated as property or as a trust fund of any kind. No
Participant shall be entitled to any voting or other stockholder rights with
respect to Units granted or credited under this Plan. The number of Units
credited shall be subject to adjustment in accordance with Section 9.3.
"Stock Unit Account" shall mean the bookkeeping account maintained by
the Company on behalf of each Participant who elects to defer his or her Salary
and/or Bonus in Stock Units pursuant to Section 3.1. In addition, each
Participant's Stock Unit Account shall be credited with Company matching
contributions in the form of additional Stock Units in accordance with Section
4.2(d).
10
<PAGE> 15
ARTICLE II
PARTICIPATION
2.1 PARTICIPATION.
--------------
Participation in the Plan is voluntary. An Eligible Employee shall
become a Participant in this Plan by electing to defer a portion of his or her
Salary and/or Bonus in accordance with Article III.
11
<PAGE> 16
ARTICLE III
DEFERRAL ELECTIONS
3.1 ELECTIONS TO DEFER SALARY AND/OR BONUS.
---------------------------------------
(a) Deferral Elections. The Committee shall notify each Eligible
Employee of his or her eligibility to participate in the Plan; provided,
however, that an Eligible Employee's deferral of Salary and/or Bonus under this
Plan for any Plan Year may only commence after the Eligible Employee has
satisfied the participation requirement of Article II. An Eligible Employee's
elections to participate may be made by telephonic means in accordance with
rules and procedures established by the Committee. In addition, notwithstanding
anything else contained herein to the contrary, no Eligible Employee shall be
allowed to defer Salary and/or Bonus to the extent the Committee determines in
its discretion that such compensation should be withheld to pay the Eligible
Employee's portion of taxes under the Federal Insurance Contributions Act, any
state, federal or local income taxes, payments required to maintain coverage for
the Eligible Employee or the Eligible Employee's dependents under any welfare
plan or program of the Company, or any similar payment.
(b) Annual Election to Defer Salary. To participate through the
deferral of Salary for any Plan Year, an Eligible Employee must file an election
with the Committee no later than the date established by the Committee. Such
date shall precede the Plan Year during which the deferral election shall be
effective.
12
<PAGE> 17
(c) Annual Election to Defer Bonus. To participate through the
deferral of a Bonus for any Plan Year, an Eligible Employee must file a separate
election with the Committee no later than the date established by the Committee.
Such date shall be no later than September 30 of the Plan Year to which it
applies (or, with respect to any Bonus to be deferred during 1998, no later than
December 12, 1997).
(d) Election for Newly Hired Employee. An Eligible Employee whose
employment with the Company commences during a Plan Year may elect to
participate in the Plan during such Plan Year by filing a Salary deferral
election with the Committee no later than the first filing deadline applicable
to such Eligible Employee under the 401(k) Plan for filing deferral elections.
Such election shall be effective with respect to Salary earned on or after the
first day of the month coinciding with or next following the filing deadline
established under the 401(k) Plan. An Eligible Employee whose initial employment
with the Company commences on or prior to the published deadline for the
deferral of a Bonus may make a separate written election with respect to the
deferral of his or her Bonus for that Plan Year, which separate election must be
filed with the Committee no later than the published deadline for that Plan
Year.
13
<PAGE> 18
(e) Method of Deferral. Each participation election shall signify the
portion of the Eligible Employee's Salary and/or Bonus that he or she elects to
defer. The Participant also will make a single election for the time and form of
payment of each Plan Year's deferred compensation (Salary and/or Bonus, Company
matching contributions, Premium Units, and allocable earnings) to be distributed
to him or her as set forth herein. An election to defer Salary for a Plan Year
shall apply to all Salary earned during each pay period beginning in such Plan
Year. An election to defer Bonuses for a Plan Year shall apply to any Bonus paid
with respect to services performed during such Plan Year, even if payment would
otherwise be made after the close of such Plan Year, provided that such deferral
election is made by the applicable deadline described in the preceding
subsections of this Section 3.1. A Participant's election to defer his or her
Salary and/or Bonus under the Plan shall specify whether such amount is to be
deferred in 1% increments in the form of (i) cash, in accordance with Section
4.1, and/or (ii) Stock Units, in accordance with Section 4.2.
(f) Amount of Deferrals. Subject to the withholding requirements of
Section 3.1(a) above, the amount of Salary and/or Bonus which an Eligible
Employee may elect to defer is as follows:
(1) Any percentage of Salary (in 5% increments) from 10% up to
70%; and
14
<PAGE> 19
(2) Any percentage of Bonus (in 5% increments) from 20% up to
80%.
(g) Duration of Deferral Election. Any deferral election made under
paragraphs (b), (c) or (d) of this Section 3.1 shall remain in effect and,
except as provided in Subsection 3.1(h), be irrevocable, notwithstanding any
change in the Participant's Salary or Bonus, for the entire Plan Year for which
it is effective.
(h) Emergency Cessation of Deferrals. Notwithstanding anything
contained herein to the contrary, a Participant may discontinue his or her
Salary and Bonus deferrals under the Plan at any time, provided that the
Participant also ceases at the same time to make any before-tax deferrals and
after-tax contribution under the 401(k) Plan and the Beckman Instruments, Inc.
Executive Restoration Plan. Such discontinuance of deferrals and after-tax
contributions will remain in effect for the remainder of the current Plan Year
and the following Plan Year.
15
<PAGE> 20
ARTICLE IV
ACCOUNTS
4.1 CASH DEFERRAL ACCOUNT.
----------------------
The Committee shall establish and maintain a Cash Deferral Account for
each Participant under the Plan. A Participant's Cash Deferral Account shall be
credited as follows:
(a) Initial Crediting of Salary to Cash Deferral Account. As of the
last day of each month, the Committee shall credit the Participant's Cash
Deferral Account with an amount equal to the portion of Salary deferred by the
Participant during each pay period ending in that month in accordance with the
Participant's election under Section 3.1; that is, the portion of the
Participant's Salary that the Participant has elected to be deferred under his
or her Cash Deferral Account.
(b) Initial Crediting of Bonus to Cash Deferral Account. As of the
last day of each month in which the Bonus is paid, the Committee shall credit
the Participant's Cash Deferral Account with an amount equal to the portion of
the Bonus deferred under Section 3.1; that is, the portion of the Participant's
Bonus that the Participant has elected to be deferred under his or her Cash
Deferral Account.
16
<PAGE> 21
(c) Crediting of Earnings. As of the last day of each month, the
Participant's Cash Deferral Account shall be credited with earnings in an amount
equal to that determined by multiplying the balance credited to such Account as
of the last day of the preceding month by an amount equal to one-twelfth (1/12)
the Interest Rate. For purposes of crediting earnings to a Participant's
Account, the Interest Rate that is used may fluctuate from Plan Year to Plan
Year. In addition, the Interest Rate that is used in connection with a
particular Plan Year shall apply to the Participant's entire Account balance.
4.2 STOCK UNIT ACCOUNT; DIVIDEND EQUIVALENTS.
-----------------------------------------
(a) Stock Unit Account. The Committee shall establish and maintain a
Stock Unit Account for each Participant under the Plan. A Participant's Stock
Unit Account shall be credited with the portion of his or her Salary and/or
Bonus he or she has elected pursuant to Section 3.1 to defer in the form of
Stock Units. In addition, the Participant's Stock Unit Account shall be credited
with Company matching contributions in the form of additional Stock Units in
accordance with Section 4.2(d).
(b) Crediting of Salary to Stock Unit Account. As of the last day of
each month, the Committee shall credit the Participant's Stock Unit Account with
a number of Units determined by dividing the applicable portion of the
17
<PAGE> 22
Participant's deferred Salary by the Fair Market Value of a share of Common
Stock as of the last day of such month.
(c) Crediting of Bonus to Stock Unit Account. As of the last day of
each month in which the deferred Bonus is paid, a Participant's Stock Unit
Account shall be credited with a number of Units equal to the sum of (i) and
(ii), where (i) is the number of Stock Units which is equal to the applicable
portion of the Participant's deferred Bonus divided by the Fair Market Value of
a share of Common Stock as of the last day of such month, and (ii) is the number
of Premium Units which is equal to the product of the number of Stock Units
determined in (i) above, multiplied by the applicable Premium Percentage
determined in accordance with the following table with respect to the percentage
of Bonus that the Participant has elected to defer in the form of Stock Units
for that Plan Year:
<TABLE>
<CAPTION>
Percentage of Bonus deferred in Premium
the form of Stock Units Percentage
------------------------------- ----------
<S> <C>
Less than 35% 0%
35% but less than 50% 15%
50% but less than 70% 20%
70% to 80% 30%
</TABLE>
(d) Company Matching Contributions. As of the last day of each month,
each Participant's Stock Unit Account shall be credited with a number of
additional Units determined by dividing the product of (i) and (ii) by (iii),
where (i) is an amount equal to the sum of Salary and Bonus deferred by the
18
<PAGE> 23
Participant during such month under Sections 4.1(a), 4.1(b), 4.2(b) and 4.2(c)
(but without regard to any Premium Units), and (ii) is 3%, and (iii) is the Fair
Market Value of a share of Common Stock as of the last day of such month.
(e) Dividend Equivalents. As of the last day of each month, a
Participant's Stock Unit Account shall be credited with additional Units in an
amount equal to the amount of the Dividend Equivalents representing cash
dividends paid during such month on that number of shares equal to the aggregate
Stock Units in the Participant's Stock Unit Account as of the preceding month,
divided by the Fair Market Value of a share of Common Stock as of the last day
of the month in which the Units are being credited.
19
<PAGE> 24
ARTICLE V
VESTING
5.1 VESTING.
--------
(a) Cash Deferral Account. A Participant's Cash Deferral Account shall
be 100% vested at all times.
(b) Stock Unit Account. The interest of each Participant in the Units
credited to his or her Stock Unit Account shall be 100% vested, provided,
however, that Units representing Premium Units shall not vest until two years
after the November 30 of the Plan Year in which such Units are credited. Stock
Units attributable to Dividend Equivalents shall be vested to the same extent as
the underlying Units to which they relate. In the event that a Participant
terminates employment with the Company for reasons other than death, Retirement,
Disability or layoff prior to the date any Units representing Premium Units
(including Units representing Dividend Equivalents thereon) have become vested,
the Participant shall forfeit the number of Units credited to his or her Stock
Unit Account representing such non-vested Premium Units (including Units
representing Dividend Equivalents thereon). In the event that a Participant
terminates employment with the Company by reason of death, Retirement,
Disability or layoff, the Participant's Account shall be fully vested and
distributed to the Participant (or, in the event of his or her death,
Beneficiary). Notwithstanding the foregoing, upon the occurrence of a Change in
Control Event, each Participant's entire Stock Unit Account (including any Units
representing Premium Units and dividend equivalents thereon) shall be
immediately 100% vested.
20
<PAGE> 25
ARTICLE VI
DISTRIBUTIONS
6.1 DISTRIBUTION OF ACCOUNTS.
-------------------------
(a) Time and Form of Distribution. A Participant shall, on the
election filed pursuant to Section 3.1 for each Plan Year, elect to receive a
Distribution Amount in accordance with one of the following options:
(i) Single Lump Sum on Termination. A lump sum payable as soon as
administratively practical following termination of employment for any
reason.
(ii) 50/50 Lump Sum on Termination. A lump sum of an amount equal
to 50% of the balance of the Participant's Distribution Amount payable as
soon as administratively practical following the Participant's termination
of employment for any reason, with the remaining balance of the
Participant's Distribution Amount distributed in a lump sum payable as soon
as administratively practical after the January 1 which follows the
calendar year during which the initial 50% of the Participant's
Distribution Amount was distributed. Until the final distribution is made,
earnings and Dividend Equivalents shall continue to be credited to the
undistributed balances in the Participant's Accounts.
21
<PAGE> 26
(iii) Single Lump Sum - Date Certain. A lump sum payable as soon
as administratively practical following some specified date (which is the
last day of a month and which is at least four years after the date of the
Participant's deferral election). If a Participant terminates employment
prior to such specified date, the Distribution Amount shall be paid as a
Single Lump Sum on Termination in accordance with Section 6.1(a)(i).
(iv) 50/50 Lump Sum - Date Certain. A lump sum of an amount equal
to 50% of the balance of the Participant's Distribution Amount payable as
soon as administratively practical following some specified date (which is
the last day of a month and which is at least four years after the date of
the Participant's deferral election), with the remaining balance
distributed in a lump sum payable in January of the year which follows the
calendar year during which the initial 50% of the Participant's
Distribution Amount was distributed. Until the final distribution is made,
earnings and Dividend Equivalents shall continue to be credited to the
undistributed balances in the Participant's Accounts. If a Participant
terminates employment prior to such specified date, the Distribution Amount
shall be paid as a Single Lump Sum on Termination in accordance with
Section 6.1(a)(i).
(v) Installments. Subject to the requirements described in this
Section 6.1(a)(v), substantially equal annual installments over 5 or 10
22
<PAGE> 27
years commencing as soon as administratively practical following the
Participant's Retirement. The amount of the first annual payment shall be
determined by dividing the Distribution Amount by the appropriate number of
years in the installment period (i.e., 5 or 10 years). Each subsequent
payment is determined by dividing the remaining balance by the remaining
number of years in the installment period. Each subsequent annual
installment shall be payable during each January which follows the
Participant's Retirement and which occurs during the installment period.
Until the final distribution is made, earnings and Dividend Equivalents
shall continue to be credited to the undistributed balances in the
Participant's Accounts in the manner described in Sections 4.1(c), 4.2(e)
and 6.1(b). Notwithstanding anything else contained herein to the contrary,
the distribution option described in this Section 6.1(a)(v) shall only be
available to a Participant if the total value of his or her vested
Distribution Amounts which are to be distributed pursuant to this Section
6.1(a)(v) is at least $100,000 as of the date of his or her Retirement. In
the event that a Participant has elected an installment form of
distribution and the value of his or her vested Distribution Amounts which
are to be distributed in the form of installments is less than $100,000 as
of his or her Retirement date, or the Participant is not eligible for
23
<PAGE> 28
Retirement, the Distribution Amount shall be paid as a 50/50 Lump Sum on
Termination in accordance with section 6.1(a)(ii).
(b) Manner of Distribution. The amount to be paid to the Participant shall
be the vested portion of the Participant's Accounts. Amounts credited to a
Participant's Cash Deferral Account as of the last day of the month immediately
preceding the date of distribution shall be paid in cash. Vested Stock Units
credited to a Participant's Stock Unit Account shall be converted into an
equivalent amount of cash based on the Fair Market Value of a share of Common
Stock on the last trading date of the month immediately preceding the date that
the distribution is paid to the Participant. Vested amounts credited to the
Participant's Stock Unit Account shall then be distributed in cash.
6.2 INABILITY TO LOCATE PARTICIPANT.
--------------------------------
In the event that the Committee is unable to locate a Participant or
Beneficiary within two years following the date the Participant was to commence
receiving payment or delivery pursuant to Section 6.1, the entire amount
allocated to the Participant's Accounts shall be forfeited. If, after such
forfeiture, the Participant or Beneficiary later claims such benefit, such
benefit shall be reinstated without interest, earnings or further crediting of
Dividend Equivalents, from the date payment was to commence in Section 6.1. The
distribution of such benefits shall thereafter be made in the manner determined
by the Committee.
24
<PAGE> 29
6.3 EARLY AND HARDSHIP DISTRIBUTIONS.
---------------------------------
Notwithstanding anything in this Article VI, the Plan shall permit an
in-service distribution in either of the following events:
(a) Early Distribution. At any time, a Participant, at his or her sole
discretion, may withdraw up to 100% of the vested balance of his or her Accounts
subject to a 10% penalty of the amount withdrawn. The 10% penalty shall be
permanently and irrevocably forfeited. The Company shall thereafter have no
obligation to pay the forfeited amount.
(b) Hardship Distribution. A Participant may receive a hardship
distribution, from the vested portion of his or her Accounts, subject to the
approval of the Committee, if the Participant has a financial hardship. A
financial hardship exists if the Participant demonstrates to the satisfaction of
the Committee that he or she has suffered (i) a severe financial hardship which
is unforeseeable or (ii) a financial hardship as defined in the 401(k) Plan, and
that he or she does not have other assets (excluding those assets which might be
available from the 401(k) Plan, Beckman Instruments, Inc. Employees' Stock
Purchase Plan and Beckman Instruments, Inc. Executive Restoration Plan)
sufficient to satisfy the financial need created by the hardship. The
determination of whether a Participant has suffered a hardship shall be made by
25
<PAGE> 30
the Committee in its sole discretion. A hardship distribution, if made, shall be
in an amount no greater than the amount needed to satisfy the hardship
(including amounts required to satisfy applicable Federal and state income tax
withholding), as determined by the Committee.
6.4 DISTRIBUTIONS ON DEATH.
-----------------------
In the event of the death of a Participant prior to the commencement
of payment of benefits hereunder, the Participant's Accounts shall be paid to
the Participant's Beneficiary as a Single Lump Sum on Termination in accordance
with Section 6.1(a)(i) as soon as administratively practical following the date
of death. Furthermore, in the event of the death of a Participant who has
commenced to receive a distribution of benefits in the form of annual
installments under Section 6.1(a)(v), the remaining vested balances in his or
her Accounts shall be paid to the Participant's Beneficiary in the form of a
lump sum as soon as administratively practical following the date of death.
26
<PAGE> 31
ARTICLE VII
CLAIMS PROCEDURE AND ARBITRATION
7.1 CLAIMS PROCEDURE AND ARBITRATION.
---------------------------------
(a) The Committee shall establish a reasonable claims procedure
consistent with the requirements of ERISA. In the event of a claim for payment
under this Plan or any dispute regarding the interpretation of this plan, the
Participant, or following the Participant's death, his or her Beneficiary
(collectively referred to in this section as "Claimant") shall be required to
submit such matter for review in accordance with the claims procedure
established by the Committee.
(b) If a Claimant has exhausted the claims procedure referred to in
subsection (a) and he or she is dissatisfied with the outcome, the Claimant may,
if he or she desires, submit any claim for payment under this Plan or any
dispute regarding the interpretation of this Plan to arbitration. This right to
select arbitration shall be solely that of the Claimant, and the Claimant may
decide whether or not to arbitrate in his or her discretion. The "right to
select arbitration" does not impose on the Claimant a requirement to submit a
dispute for arbitration. The Claimant may, in lieu of arbitration, bring an
action in appropriate civil court. The Claimant retains the right to select
arbitration, even if a civil action (including, without limitation, an action
for declaratory relief) is brought by the Company or any other fiduciary of this
27
<PAGE> 32
Plan prior to the commencement of arbitration. If arbitration is selected by the
Claimant after a civil action concerning the Claimant's dispute has been brought
by a person other than the Claimant, the Company, and the Claimant shall take
such actions as are necessary or appropriate, including dismissal of the civil
action, so that the arbitration can be timely heard. Once arbitration is
commenced, it may not be discontinued without the unanimous consent of all
parties to the arbitration. During the lifetime of the Participant only he or
she can use the arbitration procedure set forth in this section.
(c) Any claim for arbitration may be submitted as follows: if the
Claimant disagrees with an interpretation of this Plan by the Company or any
fiduciary of this Plan, or disagrees with the calculation of his or her benefit
under this Plan, such claim may be filed in writing with an arbitrator of the
Claimant's choice who is selected by the method described in the next four
sentences. The first step of the selection shall consist of the Claimant
submitting in writing a list of five potential arbitrators to the Company. Each
of the five arbitrators must be either (i) a member of the National Academy of
Arbitrators located in the state of California or (ii) a retired California
Superior Court or Appellate Court judge. Within one week after receipt of the
list, the Company shall select one of the five arbitrators as the arbitrator of
the dispute in question. If the Company fails to select an arbitrator in a
28
<PAGE> 33
timely manner, the Claimant then shall designate one of the five arbitrators as
the arbitrator of the dispute in question.
(d) The arbitration hearing shall be held within seven days (or as
soon thereafter as possible) after the selection of the arbitrator. No
continuance of said hearing shall be allowed without the mutual consent of the
Claimant and the Company. Absence from or nonparticipation at the hearing by any
party shall not prevent the issuance of an award. Hearing procedures that will
expedite the hearing may be ordered at the arbitrator's discretion, and the
arbitrator may close the hearing in his sole discretion when he or she decides
he or she has heard sufficient evidence to justify issuance of an award. The
arbitrator shall apply the same deferential standard of review to the decision
rendered by the Committee pursuant to the claims procedure referred to in
Section 7.1(a) as would be applied by a court of proper jurisdiction.
Accordingly, the arbitrator shall not apply a de novo standard of review in
reviewing the decision rendered through the claims procedure but rather shall
apply an arbitrary and capricious standard of review.
(e) The arbitrator's award shall be rendered as expeditiously as
possible and in no event later than one week after the close of the hearing. In
the event the arbitrator finds that the Claimant is entitled to the benefits he
or she claimed, the arbitrator shall order the Company to pay or deliver such
29
<PAGE> 34
benefits, in the amounts and at such time as the arbitrator determines. The
award of the arbitrator shall be final and binding on the parties. The Company
shall thereupon pay or deliver to the Claimant immediately the amount that the
arbitrator orders to be paid or delivered in the manner described in the award.
The award may be enforced in any appropriate court as soon as possible after its
rendition. If any action is brought to confirm the award, no appeal shall be
taken by any party from any decision rendered in such action.
(f) This subsection (f) shall apply only following the occurrence of a
Change in Control Event. If the arbitrator determines that the Claimant is
entitled to the claimed benefits, the arbitrator shall direct the Company to pay
to the Claimant, and Company agrees to pay to the Claimant in accordance with
such order, an amount equal to the Claimant's expenses in pursuing the claim,
including attorneys' fees.
30
<PAGE> 35
ARTICLE VIII
ADMINISTRATION
8.1 COMMITTEE.
----------
The Committee shall be appointed by, and serve at the pleasure of, the
Board of Directors. The number of members comprising the Committee shall be
determined by the Board which may from time to time vary the number of members.
A member of the Committee may resign by delivering a written notice of
resignation to the Board. The Board may remove any member by delivering a
certified copy of its resolution of removal to such member. Vacancies in the
membership of the Committee shall be filled promptly by the Board.
8.2 COMMITTEE ACTION.
-----------------
The Committee shall act at meetings by affirmative vote of a majority
of the members of the Committee. Any action permitted to be taken at a meeting
may be taken without a meeting if, prior to such action, a written consent to
the action is signed by all members of the Committee and such written consent is
filed with the minutes of the proceedings of the Committee. A member of the
Committee shall not vote or act upon any matter which relates solely to himself
or herself as a Participant. The chairman of the Committee (the "Chairman") or
31
<PAGE> 36
any other member or members of the Committee designated by the Chairman may
execute any certificate or other written direction on behalf of the Committee.
8.3 POWERS AND DUTIES OF THE COMMITTEE.
-----------------------------------
(a) Subject to Section 8.4, the Committee, on behalf of the
Participants and their Beneficiaries, shall enforce this Plan in accordance with
its terms, shall be charged with the general administration of this Plan, and
shall have all powers necessary to accomplish its purposes, including, but not
by way of limitation, the following:
(1) To construe and interpret the terms and provisions of
this Plan;
(2) To compute and certify to the amount and kind of
benefits payable or deliverable to Participants and their
Beneficiaries;
(3) To maintain all records that may be necessary for the
administration of this Plan;
(4) To provide for the disclosure of all information and the
filing or provision of all reports and statements to Participants,
Beneficiaries or governmental agencies as shall be required by law;
32
<PAGE> 37
(5) To make and publish such rules for the regulation of
this Plan and procedures for the administration of this Plan as are
not inconsistent with the terms hereof; and
(6) To appoint a plan administrator or any other agent, and
to delegate to them such powers and duties in connection with the
administration of this Plan as the Committee may from time to time
prescribe.
8.4 INTERPRETATION OF PLAN.
-----------------------
Prior to the occurrence of a Change in Control Event, the Committee
shall have full discretion to construe and interpret the terms and provisions of
this Plan, which interpretation or construction shall be final and binding on
all parties, including but not limited to the Company and any Participant or
Beneficiary. The Committee shall administer such terms and provisions in a
uniform and nondiscriminatory manner and in full accordance with any and all
laws applicable to this Plan. Notwithstanding the foregoing, following the
occurrence of a Change in Control Event, no deference shall be given to the
Committee's construction or interpretation of the Plan and any such construction
or interpretation shall be reviewed under a de novo standard of review.
33
<PAGE> 38
In making any determination or in taking or not taking any action
under this Plan, the Committee or the Board, as the case may be, may obtain and
may rely upon the advice of experts, including professional advisors to the
Company. No director, officer or agent of the Company shall be liable for any
such action or determination taken or made or omitted in good faith.
8.5 PLAN CONSTRUCTION.
------------------
It is the intent of the Company that transactions in and affecting
securities issued hereunder in the case of Participants who are or may be
subject to Section 16 of the Exchange Act satisfy any then applicable
requirements of Rule 16b-3 so that such persons (unless they otherwise agree)
will be entitled to the benefits of Rule 16b-3 or other exemptive rules under
Section 16 of the Exchange Act in respect of those transactions and will not be
subjected to avoidable liability thereunder. If any provision of this Plan would
otherwise frustrate or conflict with the intent expressed above, that provision
to the extent possible shall be interpreted as to avoid such conflict.
8.6 INFORMATION.
------------
To enable the Committee to perform its functions, the Company shall,
upon request of the Committee, supply full and timely information to the
Committee on all matters relating to the Salary and/or Bonus of all
34
<PAGE> 39
Participants, their death, or other cause of termination, and such other
pertinent facts as the Committee may require.
8.7 COMPENSATION, EXPENSES AND INDEMNITY.
-------------------------------------
(a) The Committee is authorized at the expense of the Company to
employ such legal counsel and administrative services as it may deem advisable
to assist in the performance of its duties hereunder. Expenses and fees in
connection with the administration of this Plan shall be paid by the Company.
(b) To the extent permitted by applicable state law, the Company shall
indemnify and save harmless the Committee and each member thereof, the Board of
Directors and any delegate of the Committee who is an employee of the Company
against any and all expenses, liabilities and claims, including legal fees to
defend against such liabilities and claims arising out of their discharge in
good faith of responsibilities under or incident to this Plan, other than
expenses and liabilities arising out of willful misconduct. This indemnity shall
not preclude such further indemnities as may be available under insurance
purchased by the Company or provided by the Company under any bylaw, agreement
or otherwise, as such indemnities are permitted under state law.
35
<PAGE> 40
ARTICLE IX
MISCELLANEOUS
9.1 UNSECURED GENERAL CREDITOR.
---------------------------
Participants and their Beneficiaries, heirs, successors, and assigns
shall have no legal or equitable rights, claims, or interest in any specific
property or assets of the Company. No assets of the Company shall be held under
any trust (other than a grantor trust within the meaning of Section 671, et.
seq. of the Code), or held in any way as collateral security for the fulfilling
of the obligations of the Company under this Plan. Any and all of the Company's
assets shall be, and remain, the general unpledged, unrestricted assets of the
Company. The Company's obligation under this Plan shall be merely that of an
unfunded and unsecured promise of the Company to pay money in the future, and
the rights of the Participants and Beneficiaries shall be no greater than those
of unsecured general creditors.
9.2 NO EMPLOYMENT CONTRACT.
-----------------------
Nothing contained in this Plan (or in any other documents related to
this Plan) shall confer upon any Eligible Employee or other Participant any
right to continue in the employ or other service of the Company or constitute
any contract or agreement of employment or other service, nor shall interfere in
any way with the right of the Company to change such person's compensation or
other benefits or to terminate the employment of such person, with or without
cause.
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<PAGE> 41
9.3 ADJUSTMENTS IN CASE OF CHANGES IN COMMON STOCK.
-----------------------------------------------
If any stock dividend, stock split, recapitalization, merger,
consolidation, combination or other reorganization, exchange of shares, sale of
all or substantially all of the assets of the Company, split-up, split-off,
spin-off, extraordinary redemption, liquidation or similar change in
capitalization or any distribution to holders of the Common Stock (other than
cash dividends and cash distributions) shall occur, proportionate and equitable
adjustments consistent with the effect of such event of stockholders generally
(but without duplication of benefits if Dividend Equivalents are credited) shall
be made in respect of Units and Accounts credited under this Plan so as to
preserve the benefits intended.
9.4 RESTRICTION AGAINST ASSIGNMENT.
-------------------------------
The Company shall pay all amounts payable hereunder only to the person
or persons designated by this Plan and not to any other person or corporation.
No part of a Participant's Accounts shall be liable for the debts, contracts, or
engagements of any Participant, his or her Beneficiary, or successors in
interest, nor shall a Participant's Accounts be subject to execution by levy,
attachment, or garnishment or by any other legal or equitable proceeding, nor
37
<PAGE> 42
shall any such person have any right to alienate, anticipate, commute, pledge,
encumber, or assign any benefits or payments hereunder in any manner whatsoever.
If any Participant, Beneficiary or successor in interest is adjudicated bankrupt
or purports to anticipate, alienate, sell, transfer, assign, pledge, encumber or
charge any distribution or payment from this Plan, voluntarily or involuntarily,
the Committee, in its discretion, may cancel such distribution or payment (or
any part thereof) to or for the benefit of such Participant, Beneficiary or
successor in interest in such manner as the Committee shall direct.
9.5 WITHHOLDING.
------------
The Company shall satisfy any state or federal income or other tax
withholding obligation arising upon distribution of a Participant's Accounts.
The Participant shall pay or provide for payment in cash of the amount of any
taxes which the Company may be required to withhold with respect to the benefits
hereunder.
9.6 AMENDMENT, MODIFICATION, SUSPENSION OR TERMINATION.
---------------------------------------------------
The Company may amend, modify, suspend or terminate this Plan in whole
or in part and the Committee may amend or modify this Plan in whole or in part,
except that (i) no amendment, modification, suspension or termination shall have
any retroactive effect to reduce any amounts allocated to Participants'
Accounts, (ii) Sections 4.1(c) and 4.2(d) may not be amended, modified or
38
<PAGE> 43
suspended so as to, with respect to any amounts credited to the Accounts as of
the date of such amendment, reduce the amount of earnings or Dividend
Equivalents to be credited to Participants' Accounts in accordance with Sections
4.1(c) and 4.2(d), respectively, and (iii) Section 7.1 may not be amended with
respect to any Participant or Beneficiary following the date the Participant or
Beneficiary makes a claim for benefits under this Plan. In the event that this
Plan is terminated, the amounts credited to a Participant's Accounts shall be
distributed to the Participant or, in the event of his or her death, his or her
Beneficiary in a lump sum within ninety (90) days following the date of Plan
termination.
9.7 GOVERNING LAW.
--------------
This Plan shall be construed, governed and administered in accordance
with the laws of the State of California.
9.8 RECEIPT OR RELEASE.
-------------------
Any payment to a Participant or the Participant's Beneficiary in
accordance with the provisions of this Plan shall, to the extent thereof, be in
full satisfaction of all claims against the Committee and the Company. The
Committee may require such Participant or Beneficiary, as a condition precedent
to such payment or delivery, to execute a receipt and release to such effect.
39
<PAGE> 44
9.9 PAYMENTS ON BEHALF OF PERSONS UNDER INCAPACITY.
-----------------------------------------------
In the event that any amount becomes payable to a person who, in the
sole judgement of the Committee, is considered by reason of physical or mental
condition to be unable to give a valid receipt therefore, the Committee may
direct that such payment be made to any person found by the Committee, in its
sole judgement, to have assumed the care of such person. Any payment or delivery
made pursuant to such determination shall constitute a full release and
discharge of the Committee and the Company.
9.10 HEADINGS, ETC. NOT PART OF AGREEMENT.
-------------------------------------
Headings and subheadings in this Plan are inserted for convenience of
reference only and are not to be considered in the construction of the
provisions hereof.
40
<PAGE> 45
IN WITNESS WHEREOF, the Company has caused this document to be
executed by its duly authorized officer on this 5 day of November, 1997.
BECKMAN INSTRUMENTS, INC.
By: /s/ FIDENCIO M. MARES
------------------------------------
Fidencio M. Mares
Its: Vice President, Human Resources
-------------------------------
<PAGE> 1
EXHIBIT 10.5
BECKMAN INSTRUMENTS, INC.
EXECUTIVE RESTORATION PLAN
EFFECTIVE AS OF JANUARY 1, 1998
<PAGE> 2
BECKMAN INSTRUMENTS, INC.
EXECUTIVE RESTORATION PLAN
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
ARTICLE I TITLE AND DEFINITIONS
1.1 Title............................................... 1
1.2 Definitions......................................... 1
ARTICLE II PARTICIPATION
2.1 Participation....................................... 10
ARTICLE III DEFERRAL ELECTIONS
3.1 Elections to Defer Salary and Bonus................. 11
3.2 Coordination with 401(k) Plan Election.............. 14
ARTICLE IV ACCOUNTS
4.1 Restoration Deferral Account........................ 15
4.2 Restoration Matching Account........................ 16
ARTICLE V VESTING
5.1 Vesting............................................. 18
ARTICLE VI DISTRIBUTIONS
6.1 Distribution of Accounts............................ 19
6.2 Inability to Locate Participant......................20
6.3 Early and Hardship Distributions.................... 20
6.4 Distributions on Death.............................. 21
ARTICLE VII CLAIMS PROCEDURE AND ARBITRATION
7.1 Claims Procedure and Arbitration.................... 22
ARTICLE VIII ADMINISTRATION
8.1 Committee........................................... 26
8.2 Committee Action.................................... 26
8.3 Powers and Duties of the Committee.................. 27
8.4 Interpretation of Plan.............................. 28
8.5 Plan Construction................................... 29
8.6 Information......................................... 30
8.7 Compensation, Expenses and Indemnity................ 30
ARTICLE IX MISCELLANEOUS
9.1 Unsecured General Creditor.......................... 32
9.2 No Employment Contract.............................. 32
9.3 Adjustments in Case of Changes in Common Stock...... 33
</TABLE>
i
<PAGE> 3
<TABLE>
<C> <S> <C>
9.4 Restriction Against Assignment...................... 33
9.5 Withholding......................................... 34
9.6 Amendment, Modification, Suspension or Termination.. 34
9.7 Governing Law....................................... 35
9.8 Receipt or Release.................................. 35
9.9 Payments on Behalf of Persons Under Incapacity...... 36
9.10 Headings, etc. Not Part of Agreement................ 36
</TABLE>
ii
<PAGE> 4
BECKMAN INSTRUMENTS, INC.
EXECUTIVE RESTORATION PLAN
WHEREAS, Beckman Instruments, Inc. (the "Company") maintains a
tax-qualified profit-sharing plan which includes a pre-tax 401(k) plan feature
("401(k) Plan"); and
WHEREAS, under the 401(k) Plan certain highly compensated employees are
prevented by the tax laws from making the full amount of contribution they
desire to make; and
WHEREAS, the Company desires to establish a deferred compensation plan (the
"Restoration Plan") to permit eligible employees to defer amounts they cannot
now defer under the 401(k) Plan; and
WHEREAS, the Company desires that the deferrals under the Restoration Plan
are closely coordinated with the limitations applicable to the 401(k) Plan; and
WHEREAS, it is believed that the adoption of this Restoration Plan
providing for deferred compensation at the election of each executive or highly
compensated employee will be in the best interests of the Company;
NOW, THEREFORE, it is hereby declared as follows:
<PAGE> 5
ARTICLE I
TITLE AND DEFINITIONS
1.1 TITLE.
------
This Plan shall be known as the "Beckman Instruments, Inc. Executive
Restoration Plan."
1.2 DEFINITIONS.
------------
Whenever the following words and phrases are used in this Plan, with
the first letter capitalized, they shall have the meanings specified below.
"Account" or "Accounts" shall mean a Participant's Restoration
Deferral Account and Restoration Matching Account. The Committee may establish
such additional accounts or subaccounts as it deems necessary for the proper
administration of the Plan.
"Beneficiary" or "Beneficiaries" shall mean the person or persons,
including a trustee, personal representative or other fiduciary, who have been
designated as or who are deemed to be the Participant's "Beneficiary" or
"Beneficiaries" under the 401(k) Plan and who shall receive the benefits
specified hereunder in the event of the Participant's death. Notwithstanding the
above, a Participant may designate or change such designation of his or her
Beneficiary or Beneficiaries for purposes of this Plan by filing, on a form
provided by the Committee and on such terms and conditions as the Committee may
1
<PAGE> 6
prescribe, a Beneficiary designation. No such Beneficiary designation shall
become effective until it is filed with the Committee. Such Beneficiary
designation shall thereafter remain in effect with respect to this Plan until a
new Beneficiary designation is filed with the Committee pursuant to the terms
hereof. In the event any amount is payable under this Plan to a minor, payment
shall not be made to the minor, but instead shall be paid (i) to that person's
living parent(s) to act as custodian, (ii) if that person's parents are then
divorced, and one parent is the sole custodial parent, to such custodial parent,
or (iii) if no parent of that person is then living, to a custodian selected by
the Committee to hold the funds for the minor under the Uniform Transfers or
Gifts to Minors Act in effect in the jurisdiction in which the minor resides. If
no parent is living and the Committee decides not to select another custodian to
hold the funds for the minor, then payment shall be made to the duly appointed
and currently acting guardian of the estate for the minor or, if no guardian of
the estate for the minor is duly appointed and currently acting within 60 days
after the date the amount becomes payable, payment shall be deposited or made
with the court having jurisdiction over the estate of the minor.
"Board of Directors" or "Board" shall mean the Board of Directors of
Beckman Instruments, Inc.
"Bonus" shall mean any annual incentive compensation payable to a
Participant in accordance with the Executive or Management Incentive Plans (or
their successors) that is in addition to the Participant's Salary.
2
<PAGE> 7
"Change in Control Event" shall mean the following and shall be deemed
to occur if any of the following events occur:
(i) any "person," as such term is used in Sections 13(d) and
14(d) of the Exchange Act, other than an employee benefit plan of Beckman
Instruments, Inc. ("Beckman"), or a trustee or other fiduciary holding
securities under an employee benefit plan of Beckman, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of Beckman representing 20% or more
of the combined voting power of Beckman's then outstanding voting
securities, provided that, no Change in Control Event shall be deemed to
occur solely because a corporation (the "seller") owns 20% or more of
Beckman voting securities if such ownership is only a transitory step in a
reorganization whereby Beckman purchases the assets of the seller for
Beckman voting securities and the seller liquidates shortly thereafter;
(ii) individuals who, as of the date hereof, constitute the Board
of Beckman (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board, provided that any person becoming a director
subsequent to the date hereof whose election, or nomination for election by
3
<PAGE> 8
Beckman's stockholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board (other than an election
or nomination of an individual whose initial assumption of office is in
connection with an actual or threatened election contest relating to the
election of the directors of Beckman, as such terms are used in Rule 14a-11
of Regulation 14A promulgated under the Exchange Act) shall be considered
as though such person were a member of the Incumbent Board of Beckman;
(iii) the stockholders of Beckman approve a merger or
consolidation with any other corporation, other than (A) a merger or
consolidation which would result in the voting securities of Beckman
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of
another entity) more than 80% of the combined voting power of the voting
securities of Beckman or such other entity outstanding immediately after
such merger or consolidation, or (B) a merger or consolidation effected to
implement a recapitalization of Beckman (or similar transaction) in which
no person acquires 20% or more of the combined voting power of Beckman's
then outstanding voting securities; or
(iv) the stockholders of Beckman approve a plan of complete
liquidation of Beckman or an agreement for the sale or disposition by
Beckman of all or substantially all of Beckman's assets.
4
<PAGE> 9
Notwithstanding the preceding sentence, a Change in Control Event shall not be
deemed to have occurred if the "person" described in the preceding sentence is
an underwriting syndicate which has acquired the ownership of 20% or more of the
combined voting power of Beckman's then outstanding voting securities solely in
connection with a public offering of Beckman's securities.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Committee" shall mean the Organization and Compensation Committee of
the Board or its delegate(s) which administers this Plan in accordance with
Article VIII.
"Common Stock" shall mean the Common Stock of the Company, subject to
adjustment pursuant to Section 9.3.
"Company" shall mean Beckman Instruments, Inc., any successor
corporation and each corporation which is a member of a controlled group of
corporations (within the meaning of Section 414(b) of the Code) of which Beckman
Instruments, Inc. is a component member.
"Dividend Equivalent" shall mean the amount of cash dividends or other
cash distributions paid by the Company on that number of shares of Common Stock
5
<PAGE> 10
equivalent to the number of Stock Units then credited to a Participant's
Restoration Matching Account, which amount shall be allocated as additional
Stock Units to such Participant's Restoration Matching Account, as provided in
Section 4.2(b).
"Effective Date" shall mean January 1, 1998.
"Eligible Employee" shall mean an officer or other highly compensated
employee of the Company who has been selected by the Committee to participate in
this Plan. The Committee shall limit Eligible Employee status to a select group
of management or highly compensated employees, as set forth in Sections 201, 301
and 401 of ERISA.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Fair Market Value" shall mean on any date the closing price of the
Common Stock on the New York Stock Exchange, or, if there is no trading of the
Common Stock on such date, then the closing price of the Common Stock on the New
York Stock Exchange on the next preceding date on which there was trading in
such shares. If the Common Stock is not listed, admitted or quoted, the
6
<PAGE> 11
Committee may designate such other source of data as it deems appropriate for
determining such value for purposes of this Plan.
"401(k) Plan" means the Beckman Investments, Inc. Savings and
Investment Plan, as it may be amended from time to time.
"Interest Rate" shall mean, for each Plan Year, the prime rate of
interest established by Bank of America, NT&SA in effect as of the July 31
preceding the relevant Plan Year.
"Participant" shall mean any Eligible Employee who elects to defer a
portion of his or her Salary and Bonus in accordance with Section 3.1 and who
satisfies the participation requirements of Article II.
"Plan" shall mean the Beckman Instruments, Inc. Executive Restoration
Plan set forth herein, now in effect, or as amended from time to time. This Plan
constitutes an unfunded plan maintained primarily for the purpose of providing
deferred compensation for a select group of management or highly compensated
employees, as set forth in Sections 201, 301 and 401 of ERISA.
"Plan Year" shall mean the 12 consecutive month period beginning on
January 1.
"Restoration Deferral Account" shall mean the bookkeeping account
maintained by the Company on behalf of a Participant who elects to defer his or
her Salary and Bonus in cash under this Plan pursuant to Section 3.1.
7
<PAGE> 12
"Restoration Matching Account" shall mean the bookkeeping account
maintained by the Company on behalf of each Participant pursuant to Section 4.2
to reflect the Participant's interest in the Plan attributable to the Company's
matching credits.
"Salary" shall mean the Participant's "Plan Compensation" (as such
term is defined in the 401(k) Plan, but without regard to the limit under
Section 401(a)(17) of the Code) prior to any deferrals under this Plan or any
other deferred compensation plan of the Company, except for any Bonus.
"Stock Unit" or "Unit" shall mean a non-voting unit of measurement
which is deemed for bookkeeping purposes to be equivalent to one outstanding
share of Common Stock of the Company solely for purposes of this Plan. The Units
credited to a Participant's Restoration Matching Account shall be used solely as
a device for the determination of the value of the Participant's Restoration
Matching Account to be eventually distributed in cash to such Participant in
accordance with this Plan. The Units shall not be treated as property or as a
trust fund of any kind. No Participant shall be entitled to any voting or other
stockholder rights with respect to Units granted or credited under this Plan.
The number of Units credited shall be subject to adjustment in accordance with
Section 9.3.
8
<PAGE> 13
ARTICLE II
PARTICIPATION
2.1 PARTICIPATION.
--------------
Participation in the Plan is voluntary. An Eligible Employee shall
become a Participant in this Plan by electing to defer a portion of his or her
Salary and Bonus in accordance with Article III. Notwithstanding anything else
contained herein to the contrary, an Eligible Employee shall be permitted to
defer a portion of his or her Salary and Bonus and to receive Company matching
contributions under this Plan during a particular Plan Year only after the
Eligible Employee is prohibited from making any additional elective deferrals to
the 401(k) Plan during such Plan Year because the elective deferrals (i) would
exceed the amount specified in Section 402(g) of the Code, (ii) would cause the
401(k) Plan to fail to satisfy the limitation of Code Section 401(k)(3), or
would increase the margin by which the 401(k) Plan fails to satisfy the
limitation of Code Section 401(k)(3), or (iii) would otherwise exceed the
maximum elective deferrals permitted under the terms of the 401(k) Plan.
9
<PAGE> 14
ARTICLE III
DEFERRAL ELECTIONS
3.1 ELECTIONS TO DEFER SALARY AND BONUS.
------------------------------------
(a) Deferral Elections. The Committee shall notify each Eligible
Employee of his or her eligibility to participate in the Plan; provided,
however, that an Eligible Employee's deferral of Salary and Bonus under this
Plan for any Plan Year may only commence after the Eligible Employee has
satisfied the participation requirement of Article II. An Eligible Employee's
elections to participate may be made by telephonic means in accordance with
rules and procedures established by the Committee. In addition, notwithstanding
anything else contained herein to the contrary, no Eligible Employee shall be
allowed to defer Salary and Bonus to the extent the Committee determines in its
discretion that such compensation should be withheld to pay the Eligible
Employee's portion of taxes under the Federal Insurance Contributions Act, any
state, federal or local income taxes, payments required to maintain coverage for
the Eligible Employee or the Eligible Employee's dependents under any welfare
plan or program of the Company, or any similar payment.
(b) Annual Election to Defer Salary and Bonus. To participate through
the deferral of Salary and Bonus for any Plan Year, an Eligible Employee must
file an election with the Committee no later than the date in September of the
preceding Plan Year as determined by the Committee (or, with respect to Salary
10
<PAGE> 15
and Bonus to be deferred during 1998, no later than December 12, 1997). Such
date shall precede the Plan Year during which the deferral election shall be
effective for the deferral of Salary. With respect to the deferral of any Bonus,
such election shall apply to the Eligible Employee's Bonus earned during the
Plan Year in which such election is made.
(c) Election for Newly Hired Employee. An Eligible Employee whose
employment with the Company commences during a Plan Year may elect to
participate in the Plan during such Plan Year by filing a Salary and Bonus
deferral election with the Committee no later than the first filing deadline
applicable to such Eligible Employee under the 401(k) Plan for filing deferral
elections. Such election shall be effective with respect to Salary earned on or
after the first day of the month coinciding with or next following the filing
deadline established under the 401(k) Plan. In addition, such deferral election
shall apply to the deferral of any Bonus earned by the Eligible Employee during
the Plan Year in which such election is made.
(d) Method of Deferral. Each participation election shall specify the
portion of the Eligible Employee's Salary and Bonus that he or she elects to
defer. An election to defer Salary for a Plan Year shall apply to all Salary
earned during each pay period beginning in such Plan Year. An election to defer
11
<PAGE> 16
a Bonus for a Plan Year shall apply to any Bonus paid with respect to services
performed during such Plan Year, even if payment would otherwise be made after
the close of such Plan Year, provided that such deferral election is made by the
applicable deadline described in the preceding subsections of this Section 3.1.
(e) Amount of Deferrals. For each Plan Year, an Eligible Employee
shall make a single election to defer his or her Salary and Bonus under the
Plan. Subject to the withholding requirements of Section 3.1(a) above, the
amount of Salary and Bonus which an Eligible Employee may elect to defer is any
percentage (in 1% increments) up to 15%.
(f) Duration of Deferral Election. Any deferral election made under
paragraphs (b) or (c) shall remain in effect and, except as provided in
Subsection 3.1(g), be irrevocable, notwithstanding any change in the
Participant's Salary or Bonus, for the entire Plan Year for which it is
effective.
(g) Emergency Cessation of Deferrals. Notwithstanding anything else
contained herein to the contrary, a Participant may discontinue his or her
Salary and Bonus deferrals under the Plan at any time, provided that the
Participant also ceases to make any before-tax deferrals and after-tax
contributions under the 401(k) Plan and the Beckman Instruments, Inc. Executive
Deferred Compensation Plan. Such discontinuance of deferrals and after-tax
12
<PAGE> 17
contributions, will remain in effect for the remainder of the current Plan Year
and the following Plan Year.
3.2 COORDINATION WITH 401(k) PLAN ELECTION.
---------------------------------------
A Participant's election under Section 3.1 shall specify the combined
total percentage of Salary and Bonus that the Participant elects to defer for
the relevant Plan Year on a pre-tax basis under this Plan and the 401(k) Plan.
Except as provided in Section 3.1(g), such election shall be irrevocable for the
Plan Year to which it relates. In addition, such election shall specify that the
amount deferred by the Participant shall first be contributed to the 401(k) Plan
and may be deferred under this Plan only to the extent that additional elective
deferrals by the Participant to the 401(k) Plan would exceed the limits
applicable to the 401(k) Plan described in Section 2.1 of the Plan.
13
<PAGE> 18
ARTICLE IV
ACCOUNTS
4.1 RESTORATION DEFERRAL ACCOUNT.
-----------------------------
The Committee shall establish and maintain a Restoration Deferral
Account for each Participant under the Plan. Notwithstanding anything else
contained herein to the contrary, the Committee and the administrator of the
401(k) Plan shall have full power and authority to determine whether amounts of
the Participant's Salary and Bonus that the Participant elected deferred for a
Plan Year will be (i) deferred under this Plan, (ii) deferred under the 401(k)
Plan, or (iii) not deferred under either this Plan or the 401(k) Plan. Subject
to the requirements of Article II, a Participant's Restoration Deferral Account
shall be credited as follows:
(a) Initial Crediting of Salary to Restoration Deferral Account. As of
the last day of each month, the Committee shall credit the Participant's
Restoration Deferral Account with an amount equal to the portion of Salary
deferred by the Participant during each pay period ending in that month in
accordance with the Participant's election under Sections 3.1 and 3.2; that is,
the portion of the Participant's Salary that the Participant has elected to be
deferred and has been determined by the Committee to be deferred under his or
her Restoration Deferral Account.
14
<PAGE> 19
(b) Initial Crediting of Bonus to Restoration Deferral Account. As of
the last day of each month in which any Bonus is paid, the Committee shall
credit the Participant's Restoration Deferral Account with an amount equal to
the portion of the Bonus deferred under Sections 3.1 and 3.2; that is, the
portion of the Participant's Bonus that the Participant has elected to be
deferred and has been determined by the Committee to be deferred under his or
her Restoration Deferral Account.
(c) Crediting of Earnings. As of the last day of each month, the
Participant's Restoration Deferral Account shall be credited with earnings in an
amount equal to that determined by multiplying the balance credited to such
Account as of the last day of the preceding month by an amount equal to
one-twelfth (1/12) the Interest Rate. For purposes of crediting earnings to a
Participant's Account, the Interest Rate that is used may fluctuate from Plan
Year to Plan Year. In addition, the Interest Rate that is used in connection
with a particular Plan Year shall apply to the Participant's entire Account
balance.
4.2 RESTORATION MATCHING ACCOUNT.
-----------------------------
The Committee shall establish and maintain a Restoration Matching
Account for each Participant under the Plan. Subject to the requirements of
Article II, a Participant's Restoration Matching Account shall be credited as
follows:
15
<PAGE> 20
(a) Initial Crediting of Restoration Matching Account. The Committee
shall credit each Participant's Restoration Matching Account on a monthly basis
with a number of Units determined by dividing (i) by (ii). (i) is an amount
equal to the difference between (A) the amount that the Company would have
contributed to the Participant's Company Matching Account under the 401(k) Plan
based on the Participant's Salary and Bonus for such month (including for such
month the amount of Salary and Bonus that the Participant actually deferred
under this Plan) pursuant to the provisions of Section 3.3(a)(i) of the 401(k)
Plan, but without regard to the other limitations of the 401(k) Plan including,
but not limited to, the limit under Section 401(a)(17) of the Code, less (B) the
amount of the matching contributions actually credited to the Participant's
Company Matching Account under the 401(k) Plan for the relevant month. (ii) is
the Fair Market Value of the share of Common Stock as of the last day of the
month that Company matching contributions are credited under the 401(k) Plan.
(b) Dividend Equivalents Related to Restoration Matching Account. As
of the last day of each month, a Participant's Restoration Matching Account
shall be credited with additional Units in an amount equal to the amount of the
Dividend Equivalents representing cash dividends paid during such month on that
number of shares equal to the appropriate Stock Units in the Participant's
Restoration Matching Account as of the preceding month, divided by the Fair
Market Value of a Share of Common Stock as of the last day of the month in which
the Units are being credited.
16
<PAGE> 21
ARTICLE V
VESTING
5.1 VESTING.
--------
(a) Restoration Deferral Account. A Participant's Restoration Deferral
Account shall be 100% vested at all times.
(b) Restoration Matching Account. A Participant's Restoration Matching
Account shall be 100% vested at all times.
17
<PAGE> 22
ARTICLE VI
DISTRIBUTIONS
6.1 DISTRIBUTION OF ACCOUNTS.
-------------------------
(a) Time of Distribution. A Participant shall be entitled to receive a
distribution of his or her Accounts under the Plan as soon as administratively
practical following his or her termination from employment for any reason.
(b) Manner of Distribution. The amount to be paid to the Participant
shall be the entire amount of the Participant's Accounts. Amounts credited to a
Participant's Restoration Deferral Account as of the last day of the month
immediately preceding the date of distribution shall be paid in a cash lump sum.
Stock Units credited to a Participant's Restoration Matching Account shall be
converted into an equivalent amount of cash based on the Fair Market Value of a
share of Common Stock on the last trading date of the month immediately
preceding the date that the distribution is paid to the Participant. Amounts
credited to the Participant's Restoration Matching Account shall then be
distributed in a cash lump sum.
18
<PAGE> 23
6.2 INABILITY TO LOCATE PARTICIPANT.
--------------------------------
In the event that the Committee is unable to locate a Participant or
Beneficiary within two years following the date the Participant was to commence
receiving payment or delivery pursuant to Section 6.1, the entire amount
allocated to the Participant's Accounts shall be forfeited. If, after such
forfeiture, the Participant or Beneficiary later claims such benefit, such
benefit shall be reinstated without interest, earnings or further crediting of
Dividend Equivalents, from the date payment was to commence in Section 6.1. The
distribution of such benefits shall thereafter be made in the manner determined
by the Committee.
6.3 EARLY AND HARDSHIP DISTRIBUTIONS.
---------------------------------
Notwithstanding anything in this Article VI, the Plan shall permit an
in-service distribution in either of the following events:
(a) Early Distribution. At any time, a Participant, at his or her sole
discretion, may withdraw up to 100% of the balance of his or her Accounts
subject to a 10% penalty of the amount withdrawn. The 10% penalty shall be
permanently and irrevocably forfeited. The Company shall thereafter have no
obligation to pay the forfeited amount.
19
<PAGE> 24
(b) Hardship Distribution. A Participant may receive a hardship
distribution, from his or her Accounts, subject to the approval of the
Committee, if the Participant has a financial hardship. A financial hardship
exists if the Participant demonstrates to the satisfaction of the Committee that
he or she has suffered (i) a severe financial hardship which is unforeseeable or
(ii) a financial hardship as defined in the 401(k) Plan, and that he or she does
not have other assets (excluding those assets which may be available under the
401(k) Plan and the Beckman Instruments, Inc. Employees' Stock Purchase Plan),
sufficient to satisfy the financial need created by the hardship. The
determination of whether a Participant has suffered a hardship shall be made by
the Committee in its sole discretion. A hardship distribution, if made, shall be
in an amount no greater than the amount needed to satisfy the hardship
(including amounts required to satisfy applicable Federal and state tax
withholding), as determined by the Committee.
6.4 DISTRIBUTIONS ON DEATH.
-----------------------
In the event of the death of a Participant, the Participant's Accounts
shall be paid to the Participant's Beneficiary as soon as administratively
practical following the Participant's death.
20
<PAGE> 25
ARTICLE VII
CLAIMS PROCEDURE AND ARBITRATION
7.1 CLAIMS PROCEDURE AND ARBITRATION.
---------------------------------
(a) The Committee shall establish a reasonable claims procedure
consistent with the requirements of ERISA. In the event of a claim for payment
under this Plan or any dispute regarding the interpretation of this Plan, the
Participant, or following the Participant's death, his or her Beneficiary
(collectively referred to in this section as "Claimant") shall be required to
submit such matter for review in accordance with the claims procedure
established by the Committee.
(b) If a Claimant has exhausted the claims procedure referred to in
subsection (a) and he or she is dissatisfied with the outcome, the Claimant may,
if he or she desires, submit any claim for payment under this Plan or any
dispute regarding the interpretation of this Plan to arbitration. This right to
select arbitration shall be solely that of the Claimant, and the Claimant may
decide whether or not to arbitrate in his or her discretion. The "right to
select arbitration" does not impose on the Claimant a requirement to submit a
dispute for arbitration. The Claimant may, in lieu of arbitration, bring an
action in appropriate civil court. The Claimant retains the right to select
arbitration, even if a civil action (including, without limitation, an action
for declaratory relief) is brought by the Company or any other fiduciary of this
21
<PAGE> 26
Plan prior to the commencement of arbitration. If arbitration is selected by the
Claimant after a civil action concerning the Claimant's dispute has been brought
by a person other than the Claimant, the Company, and the Claimant shall take
such actions as are necessary or appropriate, including dismissal of the civil
action, so that the arbitration can be timely heard. Once arbitration is
commenced, it may not be discontinued without the unanimous consent of all
parties to the arbitration. During the lifetime of the Participant only he or
she can use the arbitration procedure set forth in this section.
(c) Any claim for arbitration may be submitted as follows: if the
Claimant disagrees with an interpretation of this Plan by the Company or any
fiduciary of this Plan, or disagrees with the calculation of his or her benefit
under this Plan, such claim may be filed in writing with an arbitrator of the
Claimant's choice who is selected by the method described in the next four
sentences. The first step of the selection shall consist of the Claimant
submitting in writing a list of five potential arbitrators to the Company. Each
of the five arbitrators must be either (i) a member of the National Academy of
Arbitrators located in the state of California or (ii) a retired California
Superior Court or Appellate Court judge. Within one week after receipt of the
list, the Company shall select one of the five arbitrators as the arbitrator of
the dispute in question. If the Company fails to select an arbitrator in a
timely manner, the Claimant then shall designate one of the five arbitrators as
the arbitrator of the dispute in question.
22
<PAGE> 27
(d) The arbitration hearing shall be held within seven days (or as
soon thereafter as possible) after the selection of the arbitrator. No
continuance of said hearing shall be allowed without the mutual consent of the
Claimant and the Company. Absence from or nonparticipation at the hearing by any
party shall not prevent the issuance of an award. Hearing procedures that will
expedite the hearing may be ordered at the arbitrator's discretion, and the
arbitrator may close the hearing in his sole discretion when he or she decides
he or she has heard sufficient evidence to justify issuance of an award. The
arbitrator shall apply the same deferential standard of review to the decision
rendered by the Committee pursuant to the claims procedure referred to in
Section 7.1(a) as would be applied by a court of proper jurisdiction.
Accordingly, the arbitrator shall not apply a de novo standard of review in
reviewing the decision reached through the claims procedure but rather shall
apply an arbitrary and capricious standard of review.
(e) The arbitrator's award shall be rendered as expeditiously as
possible and in no event later than one week after the close of the hearing. In
the event the arbitrator finds that the Claimant is entitled to the benefits he
or she claimed, the arbitrator shall order the Company to pay or deliver such
23
<PAGE> 28
benefits, in the amounts and at such time as the arbitrator determines. The
award of the arbitrator shall be final and binding on the parties. The Company
shall thereupon pay or deliver to the Claimant immediately the amount that the
arbitrator orders to be paid or delivered in the manner described in the award.
The award may be enforced in any appropriate court as soon as possible after its
rendition. If any action is brought to confirm the award, no appeal shall be
taken by any party from any decision rendered in such action.
(f) This subsection (f) shall apply only following the occurrence of a
Change in Control Event. If the arbitrator determines that the Claimant is
entitled to the claimed benefits, the arbitrator shall direct the Company to pay
to the Claimant, and Company agrees to pay to the Claimant in accordance with
such order, an amount equal to the Claimant's expenses in pursuing the claim,
including attorneys' fees.
24
<PAGE> 29
ARTICLE VIII
ADMINISTRATION
8.1 COMMITTEE.
----------
The Committee shall be appointed by, and serve at the pleasure of, the
Board of Directors. The number of members comprising the Committee shall be
determined by the Board which may from time to time vary the number of members.
A member of the Committee may resign by delivering a written notice of
resignation to the Board. The Board may remove any member by delivering a
certified copy of its resolution of removal to such member. Vacancies in the
membership of the Committee shall be filled promptly by the Board.
8.2 COMMITTEE ACTION.
-----------------
The Committee shall act at meetings by affirmative vote of a majority
of the members of the Committee. Any action permitted to be taken at a meeting
may be taken without a meeting if, prior to such action, a written consent to
the action is signed by all members of the Committee and such written consent is
filed with the minutes of the proceedings of the Committee. A member of the
Committee shall not vote or act upon any matter which relates solely to himself
or herself as a Participant. The chairman of the Committee (the "Chairman") or
any other member or members of the Committee designated by the Chairman may
execute any certificate or other written direction on behalf of the Committee.
25
<PAGE> 30
8.3 POWERS AND DUTIES OF THE COMMITTEE.
-----------------------------------
(a) Subject to Section 8.4, the Committee, on behalf of the
Participants and their Beneficiaries, shall enforce this Plan in accordance with
its terms, shall be charged with the general administration of this Plan, and
shall have all powers necessary to accomplish its purposes, including, but not
by way of limitation, the following:
(1) To construe and interpret the terms and provisions of
this Plan;
(2) To compute and certify to the amount and kind of
benefits payable or deliverable to Participants and their
Beneficiaries;
(3) To maintain all records that may be necessary for the
administration of this Plan;
(4) To provide for the disclosure of all information and the
filing or provision of all reports and statements to Participants,
Beneficiaries or governmental agencies as shall be required by law;
26
<PAGE> 31
(5) To make and publish such rules for the regulation of
this Plan and procedures for the administration of this Plan as are
not inconsistent with the terms hereof; and
(6) To appoint a plan administrator or any other agent, and
to delegate to them such powers and duties in connection with the
administration of this Plan as the Committee may from time to time
prescribe.
8.4 INTERPRETATION OF PLAN.
-----------------------
Prior to the occurrence of a Change in Control Event, the Committee
shall have full discretion to construe and interpret the terms and provisions of
this Plan, which interpretation or construction shall be final and binding on
all parties, including but not limited to the Company and any Participant or
Beneficiary. The Committee shall administer such terms and provisions in a
uniform and nondiscriminatory manner and in full accordance with any and all
laws applicable to this Plan. Notwithstanding the foregoing, following the
occurrence of a Change in Control Event, no deference shall be given to the
Committee's construction or interpretation of the Plan and any such construction
or participation shall be reviewed under a de novo standard of review.
In making any determination or in taking or not taking any action
under this Plan, the Committee or the Board, as the case may be, may obtain and
27
<PAGE> 32
may rely upon the advice of experts, including professional advisors to the
Company. No director, officer or agent of the Company shall be liable for any
such action or determination taken or made or omitted in good faith.
8.5 PLAN CONSTRUCTION.
------------------
(a) Rule 16b-3. It is the intent of the Company that transactions in
and affecting securities issued hereunder in the case of Participants who are or
may be subject to Section 16 of the Exchange Act satisfy any then applicable
requirements of Rule 16b-3 so that such persons (unless they otherwise agree)
will be entitled to the benefits of Rule 16b-3 or other exemptive rules under
Section 16 of the Exchange Act in respect of those transactions and will not be
subjected to avoidable liability thereunder. If any provision of this Plan would
otherwise frustrate or conflict with the intent expressed above, that provision
to the extent possible shall be interpreted as to avoid such conflict.
(b) Treasury Regulation Section 1.401(k)-1(e)(6). It is further the
intent of the Company that a Participant's deferrals of Salary, Bonus and
matching contributions under the Plan shall not be considered conditioned on the
Participant's participation in the 401(k) Plan in accordance with Treasury
Regulation Section 1.401(k)-1(e)(6)(iv), and this Plan shall be interpreted
consistent with such intent.
28
<PAGE> 33
8.6 INFORMATION.
------------
To enable the Committee to perform its functions, the Company shall,
upon request of the Committee, supply full and timely information to the
Committee on all matters relating to the Salary and Bonus of all Participants,
their death, or other cause of termination, and such other pertinent facts as
the Committee may require.
8.7 COMPENSATION, EXPENSES AND INDEMNITY.
-------------------------------------
(a) The Committee is authorized at the expense of the Company to
employ such legal counsel and administrative services as it may deem advisable
to assist in the performance of its duties hereunder. Expenses and fees in
connection with the administration of this Plan shall be paid by the Company.
(b) To the extent permitted by applicable state law, the Company shall
indemnify and save harmless the Committee and each member thereof, the Board of
Directors and any delegate of the Committee who is an employee of the Company
against any and all expenses, liabilities and claims, including legal fees to
defend against such liabilities and claims arising out of their discharge in
good faith of responsibilities under or incident to this Plan, other than
expenses and liabilities arising out of willful misconduct. This indemnity shall
not preclude such further indemnities as may be available under insurance
purchased by the Company or provided by the Company under any bylaw, agreement
or otherwise, as such indemnities are permitted under state law.
29
<PAGE> 34
ARTICLE IX
MISCELLANEOUS
9.1 UNSECURED GENERAL CREDITOR.
---------------------------
Participants and their Beneficiaries, heirs, successors, and assigns
shall have no legal or equitable rights, claims, or interest in any specific
property or assets of the Company. No assets of the Company shall be held under
any trust (other than a grantor trust within the meaning of Section 671, et.
seq. of the Code), or held in any way as collateral security for the fulfilling
of the obligations of the Company under this Plan. Any and all of the Company's
assets shall be, and remain, the general unpledged, unrestricted assets of the
Company. The Company's obligation under this Plan shall be merely that of an
unfunded and unsecured promise of the Company to pay money in the future, and
the rights of the Participants and Beneficiaries shall be no greater than those
of unsecured general creditors.
9.2 NO EMPLOYMENT CONTRACT.
-----------------------
Nothing contained in this Plan (or in any other documents related to
this Plan) shall confer upon any Eligible Employee or other Participant any
right to continue in the employ or other service of the Company or constitute
any contract or agreement of employment or other service, nor shall interfere in
any way with the right of the Company to change such person's compensation or
30
<PAGE> 35
other benefits or to terminate the employment of such person, with or without
cause.
9.3 ADJUSTMENTS IN CASE OF CHANGES IN COMMON STOCK.
-----------------------------------------------
If any stock dividend, stock split, recapitalization, merger,
consolidation, combination or other reorganization, exchange of shares, sale of
all or substantially all of the assets of the Company, split-up, split-off,
spin-off, extraordinary redemption, liquidation or similar change in
capitalization or any distribution to holders of the Common Stock (other than
cash dividends and cash distributions) shall occur, proportionate and equitable
adjustments consistent with the effect of such event of stockholders generally
(but without duplication of benefits if Dividend Equivalents are credited) shall
be made in respect of Units and Accounts credited under this Plan so as to
preserve the benefits intended.
9.4 RESTRICTION AGAINST ASSIGNMENT.
-------------------------------
The Company shall pay all amounts payable hereunder only to the person
or persons designated by this Plan and not to any other person or corporation.
No part of a Participant's Accounts shall be liable for the debts, contracts, or
engagements of any Participant, his or her Beneficiary, or successors in
interest, nor shall a Participant's Accounts be subject to execution by levy,
attachment, or garnishment or by any other legal or equitable proceeding, nor
31
<PAGE> 36
shall any such person have any right to alienate, anticipate, commute, pledge,
encumber, or assign any benefits or payments hereunder in any manner whatsoever.
If any Participant, Beneficiary or successor in interest is adjudicated bankrupt
or purports to anticipate, alienate, sell, transfer, assign, pledge, encumber or
charge any distribution or payment from this Plan, voluntarily or involuntarily,
the Committee, in its discretion, may cancel such distribution or payment (or
any part thereof) to or for the benefit of such Participant, Beneficiary or
successor in interest in such manner as the Committee shall direct.
9.5 WITHHOLDING.
------------
The Company shall satisfy any state or federal income or other tax
withholding obligation arising upon distribution of a Participant's Accounts.
The Participant shall pay or provide for payment in cash of the amount of any
taxes which the Company may be required to withhold with respect to the benefits
hereunder.
9.6 AMENDMENT, MODIFICATION, SUSPENSION OR TERMINATION.
---------------------------------------------------
The Company may amend, modify, suspend or terminate this Plan in whole
or in part and the Committee may amend or modify this Plan in whole or in part,
except that (i) no amendment, modification, suspension or termination shall have
any retroactive effect to reduce any amounts allocated to Participants'
Accounts, (ii) Sections 4.1(c) and 4.2(b) may not be amended, modified or
32
<PAGE> 37
suspended so as to, with respect to any amounts credited to the Accounts as of
the date of such amendment, reduce the amount of earnings or Divided Equivalents
to be credited to Participants' Accounts in accordance with Sections 4.1(c) and
4.2(b), respectively, and (iii) Section 7.1 may not be amended with respect to
any Participant or Beneficiary following the date the Participant or Beneficiary
makes a claim for benefits under this Plan. In the event that this Plan is
terminated, the amounts credited to a Participant's Accounts shall be
distributed to the Participant or, in the event of his or her death, his or her
Beneficiary in a lump sum within ninety (90) days following the date of Plan
termination.
9.7 GOVERNING LAW.
--------------
This Plan shall be construed, governed and administered in accordance
with the laws of the State of California.
9.8 RECEIPT OR RELEASE.
-------------------
Any payment to a Participant or the Participant's Beneficiary in
accordance with the provisions of this Plan shall, to the extent thereof, be in
full satisfaction of all claims against the Committee and the Company. The
Committee may require such Participant or Beneficiary, as a condition precedent
to such payment or delivery, to execute a receipt and release to such effect.
33
<PAGE> 38
9.9 PAYMENTS ON BEHALF OF PERSONS UNDER INCAPACITY.
-----------------------------------------------
In the event that any amount becomes payable to a person who, in the
sole judgement of the Committee, is considered by reason of physical or mental
condition to be unable to give a valid receipt therefore, the Committee may
direct that such payment be made to any person found by the Committee, in its
sole judgement, to have assumed the care of such person. Any payment or delivery
made pursuant to such determination shall constitute a full release and
discharge of the Committee and the Company.
9.10 HEADINGS, ETC. NOT PART OF AGREEMENT.
-------------------------------------
Headings and subheadings in this Plan are inserted for convenience of
reference only and are not to be considered in the construction of the
provisions hereof.
34
<PAGE> 39
IN WITNESS WHEREOF, the Company has caused this document to be
executed by its duly authorized officer on this 5 day of November, 1997.
BECKMAN INSTRUMENTS, INC.
By: /s/ FIDENCIO M. MARES
------------------------------------
Fidencio M. Mares
Its: Vice President, Human Resources
-------------------------------
35
<PAGE> 1
EXHIBIT 10.6
BECKMAN INSTRUMENTS, INC.
DEFERRED DIRECTORS' FEE PROGRAM
-------------------------------
(AMENDED JUNE 5, 1997)
PURPOSE
- -------
To provide non-employee directors of Beckman Instruments, Inc. ("Beckman") with
a means to promote stock ownership and to defer income until termination of
status as a director.
ELIGIBILITY
- -----------
Directors of Beckman entitled to directors' fees.
PROCEDURE
- ---------
A percentage of director's fees (including annual retainer, meeting, chair and
any other fees paid, but not including reimbursement of expenses) to be deferred
must be specified by the director in writing to Beckman no later than December
31 of the calendar year immediately preceding the calendar year in which the
fees shall be payable. The election to defer and the amount or percentage
elected are irrevocable. For subsequent years, no additional deferral of fees
will take place unless a new election is made by the director. The amount
deferred is an offset against and cannot exceed the amount of the director's
fees otherwise payable to the participant for that calendar year.
DEFERRAL INCENTIVE PREMIUM MULTIPLIER
- -------------------------------------
Effective beginning with deferrals for 1998 fees, a multiplier will be applied
to each payment deferred based on the percentage of fees the director has
elected to defer, as shown below:
<TABLE>
<CAPTION>
% OF FEE DEFERRED PREMIUM MULTIPLIER
----------------- ------------------
<S> <C>
Less than 40% 0%
At least 40%, but less than 60% 15%
At least 60%, but less than 80% 20%
80% to 100% 30%
</TABLE>
Page 1 of 3
<PAGE> 2
ADJUSTMENT FACTOR
- -----------------
The fee amount deferred together with any applicable premium multiplier
("Deferred Amount") is treated as having been invested in Beckman Common Stock
(Stock Value Factor). The calculation of the number of shadow shares from the
initial Deferred Amount and adjustments thereafter are made in the following
manner:
STOCK VALUE FACTOR
- ------------------
1. The number of shares from the Deferred Amount is calculated to the nearest
one-thousandth of a share at the closing price of Beckman Common Stock on
the New York Stock Exchange on the day in which payment in cash otherwise
(but for the election to defer) would have been paid.
2. Beckman Common Stock dividends or other distributions will be treated as
if paid to the participant and will be credited to each participant's
account on the payment date for stockholders of record. These
dividends/distributions will be treated as having been invested by the
participant in Beckman Common Stock with the number of shares determined
in the same manner as (1.) above.
3. The total number of "shadow" shares in a participant's account as of the
end of any calendar year will be valued using the per share closing price
of Beckman Common Stock on the last trading day in such calendar year and
the dollar amount will be adjusted to reflect such valuation.
4. In the event of installment payments, the participant's entitlement will
be valued at the per share closing price of Beckman Common Stock on the
last day preceding the date of each installment payment.
PAYMENTS
- --------
Payment in lump sum or in annual installments will be at the sole discretion of
Beckman. Such payment shall be made in cash. If installment payment is used, the
Page 2 of 3
<PAGE> 3
number of installments will be the lesser of ten or twice the number of years
the director participated in the program.
1. If the participant's service as a director terminates between January 1
and June 30, the lump sum payment or the first installment will be paid no
later than December 31 of the year of termination.
2. If the participant's service as a director terminates between July 1 and
December 31, the lump sum payment or the first installment, may be
deferred at the discretion of Beckman, until the January immediately
following termination.
3. If payment is made in installments, the second installment will be paid
during January of the year following the year in which the first
installment was paid and all remaining installments will be paid annually
in the month of January.
4. In the event of the participant's death, payments will be made in a lump
sum to the designated beneficiary.
TAXES
- -----
Beckman shall be entitled to withhold applicable federal and/or state and local
income taxes from payments made to participants or beneficiaries at the then
prevailing withholding tax rates. Beckman is entitled to an income tax deduction
in the year deferred amounts, including the adjustment factor, are paid.
Directors should consult with their personal tax advisors concerning tax
(including any applicable income tax and self-employment tax) consequences of
participation in the program.
ANNUAL STATEMENTS
- -----------------
Each participant will receive an annual statement on the value of their account
by February 28 of the following year.
PLAN CONSTRUCTION
- -----------------
It is the intent of Beckman that this Plan satisfy and be interpreted in a
manner that satisfies the applicable requirements of Rule 16b-3 promulgated
under the Securities Exchange Act of 1934 ("Exchange Act") so that elective
deferrals will be entitled to the benefits of Rule 16b-3 or other exemptive
rules under Section 16 of the Exchange Act and will not be subjected to
avoidable liability thereunder. Any contrary interpretation shall be avoided.
Page 3 of 3
<PAGE> 1
EXHIBIT 10.7
AMENDMENT 1997-2
BECKMAN INSTRUMENTS, INC.
SUPPLEMENTAL PENSION PLAN
WHEREAS, Beckman Instruments, Inc. (the "Company") maintains the Beckman
Instruments, Inc. Supplemental Pension Plan (the "Supplemental Plan"); and
WHEREAS, the Company has the right to amend the Supplemental Plan; and
WHEREAS, the Company desires to amend the Supplemental Plan to modify its
provision for lump sum payment of small benefits;
NOW, THEREFORE, the Company hereby adopts this Amendment 1997-2,
effective for any participant who has not been paid a lump sum benefit as of the
date this amendment is adopted.
The following subsections are added to the Supplemental Plan as Section
4(d)-(e):
"(d) Notwithstanding subsection (a) of this Section 4, but
subject to subsection (c), benefits payable under this
Supplemental Plan on or after the adoption date of this Amendment
1997-2 shall be payable in the form and manner provided under
1
<PAGE> 2
subsection (b) above, unless they are payable as cash lump sum
distributions as described in subsection (e) immediately
following.
(e) If the monthly benefit of the employee under this
Supplemental Plan, as determined under subsection (a) above, is
less than one-half of the highest dollar limit under which the
employee's monthly Pension Plan benefit could be paid out as a
cash lump sum, as determined under Section 4.16 of the Pension
Plan (but rounded to the next highest $5.00 increment unless
ending in a multiple of $5.00 already), when measured as of:
(i) November 1, 1997 for participants whose
employment has terminated on or before that date;
(ii) the employee's date of termination;
(iii) commencement of payment of benefits under the
Pension Plan; or
(iv) January 1 of each year following the year in
which payment of benefits under the Pension Plan
commences, then the employee shall receive the
actuarial equivalent of his benefit, as determined
2
<PAGE> 3
under (a), in a cash lump sum as soon as
administratively feasible thereafter. For purposes
of this subsection, if an employee's benefit in the
Pension Plan increases due to an increase in
Internal Revenue Code Section 415, resulting in a
decrease in his benefit under this Supplemental Plan
below the dollar limit for lump sum distributions
described in the preceding sentence, then the
employee shall receive a lump sum distribution
hereunder determined under clause (iv) above as soon
as administratively feasible following the January 1
as of which his Supplemental Plan benefit falls
below the limit described in this subsection (e)."
IN WITNESS WHEREOF, this Amendment 1997-2 is adopted as of this 31st
day of October, 1997.
BECKMAN INSTRUMENTS, INC.
By /s/ FIDENCIO M. MARES
---------------------------
Fidencio M. Mares
Its: Vice President - Human Resources
--------------------------------
3
<PAGE> 1
EXHIBIT 15
KPMG Peat Marwick LLP
Certified Public Accountants
Orange County Office
Center Tower
650 Town Center Drive
Costa Mesa, CA 92626
Independent Accountants' Review Report
--------------------------------------
The Stockholders and Board of Directors
Beckman Instruments, Inc.:
We have reviewed the condensed consolidated balance sheet of Beckman
Instruments, Inc. and subsidiaries as of September 30, 1997, and the related
condensed consolidated statements of earnings and cash flows for the three-month
and nine-month periods ended September 30, 1997 and 1996. These condensed
consolidated financial statements are the responsibility of the Company's
management.
We conducted our review in accordance with standards established by the American
Institute of Certified Public Accountants. A review of interim financial
information consists principally of applying analytical procedures to financial
data and making inquiries of persons responsible for financial and accounting
matters. It is substantially less in scope than an audit conducted in accordance
with generally accepted auditing standards, the objective of which is the
expression of an opinion regarding the financial statements taken as a whole.
Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material modifications that should
be made to the condensed consolidated financial statements referred to above for
them to be in conformity with generally accepted accounting principles.
We have previously audited, in accordance with generally accepted auditing
standards, the consolidated balance sheet of Beckman Instruments, Inc. and
subsidiaries as of December 31, 1996, and the related consolidated statements of
earnings, stockholders' equity and cash flows for the year then ended (not
presented herein); and in our report dated January 17, 1997, we expressed an
unqualified opinion on those consolidated financial statements. In our opinion,
the information set forth in the accompanying condensed consolidated balance
sheet as of December 31, 1996, is fairly stated, in all material respects, in
relation to the consolidated balance sheet from which it has been derived.
(KPMG Peat Marwick LLP)
Orange County, California
November 13, 1997
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED CONSOLIDATED BALANCE SHEET AND THE CONDENSED CONSOLIDATED STATEMENT OF
EARNINGS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<CASH> 20
<SECURITIES> 0
<RECEIVABLES> 339
<ALLOWANCES> 7
<INVENTORY> 223
<CURRENT-ASSETS> 619
<PP&E> 709
<DEPRECIATION> 431
<TOTAL-ASSETS> 1,028
<CURRENT-LIABILITIES> 346
<BONDS> 197
0
0
<COMMON> 3
<OTHER-SE> 395
<TOTAL-LIABILITY-AND-EQUITY> 1,028
<SALES> 774
<TOTAL-REVENUES> 774
<CGS> 372
<TOTAL-COSTS> 372
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 12
<INCOME-PRETAX> 80
<INCOME-TAX> 24
<INCOME-CONTINUING> 56
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 56
<EPS-PRIMARY> 1.94
<EPS-DILUTED> 1.94
</TABLE>
