Full Press Release Details
Dated as of August 24, 2021
PERKINELMER HEALTH SCIENCES, INC.,
PERKINELMER LIFE SCIENCES INTERNATIONAL HOLDINGS,
PERKINELMER GLOBAL HOLDINGS S. R.L,
PERKINELMER HEALTH SCIENCES B.V.
CERTAIN OTHER SUBSIDIARIES OF
BANK OF AMERICA, N.A.,
Administrative Agent, the Swing Line Lender and an L/C Issuer,
GOLDMAN SACHS BANK USA,
as Syndication Agent,
FARGO BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agents,
The Other Lenders Party Hereto
The Other L/C Issuers Party
GOLDMAN SACHS BANK USA,
BANK OF AMERICA, N.A.,
FARGO BANK, NATIONAL ASSOCIATION,
as Joint Lead Arrangers and Joint Bookrunners
| Page | ||||||
| Article I. DEFINITIONS AND ACCOUNTING TERMS | 1 | |||||
| Section 1.01 | Defined Terms | 1 | ||||
| Section 1.02 | Other Interpretive Provisions | 38 | ||||
| Section 1.03 | Accounting Terms | 39 | ||||
| Section 1.04 | Exchange Rates; Currency Equivalents | 40 | ||||
| Section 1.05 | Additional Alternative Currencies | 41 | ||||
| Section 1.06 | Change of Currency | 42 | ||||
| Section 1.07 | Times of Day | 42 | ||||
| Section 1.08 | Letter of Credit Amounts | 42 | ||||
| Section 1.09 | Luxembourg Terms | 42 | ||||
| Section 1.10 | Netherlands Terms | 43 | ||||
| Article II. THE COMMITMENTS AND CREDIT EXTENSIONS | 43 | |||||
| Section 2.01 | Committed Loans | 43 | ||||
| Section 2.02 | Committed Borrowings; Conversions and Continuations of Committed Loans | 44 | ||||
| Section 2.03 | Letters of Credit | 46 | ||||
| Section 2.04 | Swing Line Loans | 56 | ||||
| Section 2.05 | Prepayments | 58 | ||||
| Section 2.06 | Termination or Reduction of Aggregate Commitments | 60 | ||||
| Section 2.07 | Repayment of Loans | 60 | ||||
| Section 2.08 | Interest | 60 | ||||
| Section 2.09 | Fees | 61 | ||||
| Section 2.10 | Computation of Interest and Fees | 62 | ||||
| Section 2.11 | Evidence of Debt | 62 | ||||
| Section 2.12 | Payments Generally; Administrative Agent s Clawback | 62 | ||||
| Section 2.13 | Sharing of Payments by Lenders | 65 | ||||
| Section 2.14 | Designated Borrowers | 65 | ||||
| Section 2.15 | Expansion Option | 66 | ||||
| Section 2.16 | Extension of Maturity Date | 67 | ||||
| Section 2.17 | Cash Collateral | 69 | ||||
| Section 2.18 | Defaulting Lenders | 70 | ||||
| Section 2.19 | Designated Lenders | 72 | ||||
| Article III. TAXES, YIELD PROTECTION AND ILLEGALITY | 72 | |||||
| Section 3.01 | Taxes | 72 | ||||
| Section 3.02 | Illegality | 81 | ||||
| Section 3.03 | Inability to Determine Rates | 81 | ||||
| Section 3.04 | Increased Costs; Reserves on Eurocurrency Rate Loans | 85 | ||||
| Section 3.05 | Compensation for Losses | 87 | ||||
| Section 3.06 | Mitigation Obligations; Replacement of Lenders | 87 | ||||
| Section 3.07 | Survival | 88 | ||||
| Article IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS | 88 | |||||
| Section 4.01 | Conditions of Effectiveness | 88 | ||||
| Section 4.02 | Conditions to all Credit Extensions | 89 | ||||
| Section 4.03 | Designation of a Designated Borrower | 90 |
Table of Contents (continued)
| Page | ||||||
| Article V. REPRESENTATIONS AND WARRANTIES | 91 | |||||
| Section 5.01 | Existence, Qualification and Power; Compliance with Laws | 91 | ||||
| Section 5.02 | Authorization; No Contravention | 92 | ||||
| Section 5.03 | Governmental Authorization; Other Consents | 92 | ||||
| Section 5.04 | Binding Effect | 92 | ||||
| Section 5.05 | Financial Statements; No Material Adverse Effect | 92 | ||||
| Section 5.06 | Litigation | 93 | ||||
| Section 5.07 | No Default | 93 | ||||
| Section 5.08 | Ownership of Property | 93 | ||||
| Section 5.09 | Environmental Compliance | 93 | ||||
| Section 5.10 | [Reserved] | 94 | ||||
| Section 5.11 | Taxes | 94 | ||||
| Section 5.12 | ERISA Compliance | 94 | ||||
| Section 5.13 | [Reserved] | 95 | ||||
| Section 5.14 | Margin Regulations; Investment Company Act | 95 | ||||
| Section 5.15 | Disclosure | 95 | ||||
| Section 5.16 | [Reserved] | 96 | ||||
| Section 5.17 | [Reserved] | 96 | ||||
| Section 5.18 | Representations as to Foreign Obligors | 96 | ||||
| Section 5.19 | Anti-Corruption Laws and Sanctions | 97 | ||||
| Section 5.20 | EEA Financial Institution | 97 | ||||
| Section 5.21 | Domiciliation; Centre of Main Interests | 97 | ||||
| Section 5.22 | Works Council | 97 | ||||
| Article VI. AFFIRMATIVE COVENANTS | 98 | |||||
| Section 6.01 | Financial Statements | 98 | ||||
| Section 6.02 | Certificates; Other Information | 98 | ||||
| Section 6.03 | Notices | 100 | ||||
| Section 6.04 | Payment of Taxes | 100 | ||||
| Section 6.05 | Preservation of Existence, Etc | 100 | ||||
| Section 6.06 | Maintenance of Properties | 101 | ||||
| Section 6.07 | Maintenance of Insurance | 101 | ||||
| Section 6.08 | Compliance with Laws | 101 | ||||
| Section 6.09 | Books and Records | 101 | ||||
| Section 6.10 | Inspection Rights | 101 | ||||
| Section 6.11 | Use of Proceeds | 102 | ||||
| Article VII. NEGATIVE COVENANTS | 102 | |||||
| Section 7.01 | Liens | 102 | ||||
| Section 7.02 | [Reserved] | 104 | ||||
| Section 7.03 | Indebtedness | 104 | ||||
| Section 7.04 | Fundamental Changes | 105 | ||||
| Section 7.05 | [Reserved] | 105 | ||||
| Section 7.06 | [Reserved] | 105 | ||||
| Section 7.07 | [Reserved] | 105 | ||||
| Section 7.08 | [Reserved] | 105 | ||||
| Section 7.09 | [Reserved] | 105 | ||||
| Section 7.10 | Use of Proceeds | 105 | ||||
| Section 7.11 | Financial Covenants | 106 | ||||
| Article VIII. EVENTS OF DEFAULT AND REMEDIES | 106 | |||||
| Section 8.01 | Events of Default | 106 | ||||
| Section 8.02 | Remedies Upon Event of Default | 109 | ||||
| Section 8.03 | Application of Funds | 109 |
Table of Contents (continued)
| Page | ||||||
| Article IX. ADMINISTRATIVE AGENT | 110 | |||||
| Section 9.01 | Appointment and Authority | 110 | ||||
| Section 9.02 | Rights as a Lender | 111 | ||||
| Section 9.03 | Exculpatory Provisions | 111 | ||||
| Section 9.04 | Reliance by Administrative Agent | 112 | ||||
| Section 9.05 | Delegation of Duties | 112 | ||||
| Section 9.06 | Resignation of Administrative Agent | 113 | ||||
| Section 9.07 | Non-Reliance on Administrative Agent and Other Lenders | 114 | ||||
| Section 9.08 | No Other Duties, Etc | 114 | ||||
| Section 9.09 | Administrative Agent May File Proofs of Claim | 114 | ||||
| Section 9.10 | Certain ERISA Matters | 115 | ||||
| Section 9.11 | Recovery of Erroneous Payments | 116 | ||||
| Article X. CONTINUING GUARANTY | 116 | |||||
| Section 10.01 | Guaranty | 116 | ||||
| Section 10.02 | Rights of Lenders | 117 | ||||
| Section 10.03 | Certain Waivers | 117 | ||||
| Section 10.04 | Obligations Independent | 117 | ||||
| Section 10.05 | Subrogation | 117 | ||||
| Section 10.06 | Termination; Reinstatement | 118 | ||||
| Section 10.07 | Subordination | 118 | ||||
| Section 10.08 | Stay of Acceleration | 118 | ||||
| Section 10.09 | Condition of Other Borrowers | 118 | ||||
| Section 10.10 | Appointment of Company | 119 | ||||
| Article XI. MISCELLANEOUS | 119 | |||||
| Section 11.01 | Amendments, Etc | 119 | ||||
| Section 11.02 | Notices; Effectiveness; Electronic Communication | 121 | ||||
| Section 11.03 | No Waiver; Cumulative Remedies; Enforcement | 123 | ||||
| Section 11.04 | Expenses; Indemnity; Damage Waiver | 124 | ||||
| Section 11.05 | Payments Set Aside | 126 | ||||
| Section 11.06 | Successors and Assigns | 126 | ||||
| Section 11.07 | Treatment of Certain Information; Confidentiality | 132 | ||||
| Section 11.08 | Right of Setoff | 133 | ||||
| Section 11.09 | Interest Rate Limitation | 134 | ||||
| Section 11.10 | Counterparts; Integration; Effectiveness | 134 | ||||
| Section 11.11 | Survival of Representations and Warranties | 134 | ||||
| Section 11.12 | Severability | 135 | ||||
| Section 11.13 | Replacement of Lenders | 135 | ||||
| Section 11.14 | Governing Law; Jurisdiction; Etc | 136 | ||||
| Section 11.15 | Waiver of Jury Trial | 137 | ||||
| Section 11.16 | Electronic Execution | 137 | ||||
| Section 11.17 | USA PATRIOT Act Notice | 137 | ||||
| Section 11.18 | Judgment Currency | 138 | ||||
| Section 11.19 | No Advisory or Fiduciary Responsibility | 138 | ||||
| Section 11.20 | Acknowledgement and Consent to Bail-In of Affected Financial Institutions | 139 |
Table of Contents (continued)
| Page | ||||||
| Section 11.21 | Acknowledgement Regarding Any Supported QFCs | 139 | ||||
| Section 11.22 | Notice of Prepayment and Termination of Existing Credit Agreement | 140 | ||||
| Section 11.23 | Termination of Existing Agreement | 140 |
| 1.01 | Existing Letters of Credit | |
| 2.01 | Commitments and Applicable Percentages | |
| 2.03 | L/C Commitments | |
| 5.01 | Existence, Qualification and Power | |
| 7.01 | Existing Liens | |
| 7.03 | Existing Indebtedness | |
| 11.02 | Administrative Agent s Office; Certain Addresses for Notices |
| Form of | ||
| A | Assignment and Assumption | |
| B | Augmenting Lender Supplement | |
| C | Committed Loan Notice | |
| D | Compliance Certificate | |
| E-1 | Designated Borrower Agreement | |
| E-2 | Designated Borrower Termination | |
| F | Increasing Lender Supplement | |
| G | Letter of Credit Report | |
| H | Note | |
| I | Notice of Additional L/C Issuer | |
| J | Notice of Loan Prepayment | |
| K | Swing Line Loan Notice | |
| L-1-4 | U.S. Tax Compliance Certificates |
This CREDIT AGREEMENT (as amended, amended and restated, modified, extended, restated, replaced or supplemented from time to time, and
including all schedules, exhibits and annexes hereto, this Agreement ) is entered into as of August 24, 2021 among PERKINELMER, INC., a Massachusetts corporation (the Company ), PERKINELMER HEALTH SCIENCES,
INC., a Delaware corporation ( Health Sciences ), PERKINELMER LIFE SCIENCES INTERNATIONAL HOLDINGS, a company incorporated and registered under the laws of England and Wales with registered number 04418157 (the UK
Borrower ), PERKINELMER GLOBAL HOLDINGS S. R.L., a private limited liability company (soci t responsabilit limit e) incorporated under the laws of Luxembourg, having its registered
office at 68-70 Boulevard de la P trusse, L-2320 Luxembourg-city, Luxembourg, registered with the Luxembourg Trade and Companies Register (registre de commerce
et des soci t s, Luxembourg) under number B217121 (the Luxembourg Borrower ), PERKINELMER HEALTH SCIENCES B.V., a private company with limited liability incorporated under the laws of the Netherlands (besloten
vennootschap met beperkte aansprakelijkheid) having its official seat (statutaire zetel) in Groningen, and its office at Groningen, Rigaweg 22 (9723TH), registered with the Dutch Trade Register of the Chamber of Commerce under number
02027119 (the Dutch Borrower ), certain other Subsidiaries of the Company from time to time party hereto pursuant to Section 2.14 (each, a Designated Borrower and collectively, the
Designated Borrowers ; the Designated Borrowers, together with the Company, Health Sciences, the UK Borrower, the Luxembourg Borrower and the Dutch Borrower, each a Borrower and collectively, the
Borrowers ), the Lenders, BANK OF AMERICA, N.A., as the Administrative Agent, the Swing Line Lender and an L/C Issuer, and the other L/C Issuers party hereto.
WHEREAS, the Borrowers have requested that the Lenders, the Swing Line Lender and the L/C Issuers make loans and other financial
accommodations to the Company and its Subsidiaries as set forth herein; and
WHEREAS, the Lenders, the Swing Line Lender and the L/C
Issuers have agreed to make such loans and other financial accommodations to the Company and its Subsidiaries, on the terms and subject to the conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained, the parties hereto hereby covenant and agree as follows:
AND ACCOUNTING TERMS
Section 1.01 Defined Terms. As used in this Agreement, the following terms
shall have the meanings set forth below:
Acquisition means the acquisition by the Company or one or more of the
Company s wholly-owned subsidiaries of all of the outstanding equity interests of BioLegend, Inc. pursuant to the Acquisition Agreement.
Acquisition Agreement means that certain Agreement and Plan of Merger (including the exhibits, schedules and all related
documents thereto) dated as of July 25, 2021 among, the Company, Burton Acquisition I, Inc., Burton Acquisition II, Inc., the Target and Gene Lay, solely in his capacity as the stockholder representative, as amended, supplemented or otherwise
modified from time to time.
Additional Commitment Lender has the meaning specified in
Adjustment has the meaning specified in
Administrative Agent means Bank of America (or any of its designated branch
offices or affiliates) in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
Administrative Agent s Office means, with respect to any currency, the Administrative Agent s
address and, as appropriate, account as set forth on Schedule 11.02 with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify the Company and the
Administrative Questionnaire means an administrative questionnaire in a form supplied by the Administrative
Affected Financial Institution means (a) any EEA Financial Institution or (b) any UK Financial
Affiliate means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
Aggregate Commitments means the Commitments of all the Lenders. The Aggregate Commitments in effect on the Closing Date
equal ONE BILLION FIVE HUNDRED MILLION DOLLARS ($1,500,000,000).
Agreement has the meaning specified in the
introductory paragraph hereto.
Agreed Currency means Dollars or any Alternative Currency, as applicable.
Agreement Currency has the meaning specified in Section 11.18.
Alternative Currency means each of Euros, Yen, and Sterling, together with each other currency (other than Dollars) that is
approved in accordance with Section 1.05.
Alternative Currency Daily Rate means, for any
day, with respect to any Credit Extension:
(a) denominated in Sterling, the rate per annum equal to
SONIA determined pursuant to the definition thereof plus the SONIA Adjustment; and
in any other Alternative Currency (to the extent such Loans denominated in such currency will bear interest at a daily rate), the daily rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is
approved by the Administrative Agent and the relevant Lenders pursuant to Section 1.05(a) plus the adjustment (if any) determined by the Administrative Agent and the relevant Lenders pursuant to
Section 1.05(a) in their reasonable discretion;
provided, that, if any Alternative Currency Daily Rate shall be less than
zero, such rate shall be deemed zero for purposes of this Agreement. Any change in an Alternative Currency Daily Rate shall be effective from and including the date of such change without further notice.
Alternative Currency Daily Rate Loan means a Committed Loan that bears interest at a rate based on the definition of
Alternative Currency Daily Rate. All Alternative Currency Daily Rate Loans must be denominated in an Alternative Currency.
Alternative Currency Equivalent means, at any time, with respect to any amount denominated in Dollars, the equivalent
amount thereof in the applicable Alternative Currency as determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date)
for the purchase of such Alternative Currency with Dollars.
Alternative Currency Loan means an Alternative Currency
Daily Rate Loan or an Alternative Currency Term Rate Loan, as applicable.
Alternative Currency Term Rate means, for
any Interest Period, with respect to any Credit Extension:
(a) denominated in Euros, the rate per
annum equal to the Euro Interbank Offered Rate ( EURIBOR ), as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent
from time to time) on the day that is two TARGET Days preceding the first day of such Interest Period with a term equivalent to such Interest Period;
(b) denominated in Yen, the rate per annum equal to the Tokyo Interbank Offer Rate
( TIBOR ), as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) on the Rate Determination Date
with a term equivalent to such Interest Period; and
(c) denominated in any other Alternative
Currency (to the extent such Loans denominated in such currency will bear interest at a term rate), the term rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by the
Administrative Agent and the relevant Lenders pursuant to Section 1.05(a) plus the adjustment (if any) determined by the Administrative Agent and the relevant Lenders pursuant to Section 1.05(a) in
their reasonable discretion;
provided, that, if any Alternative Currency Term Rate shall be less than zero, such rate shall
be deemed zero for purposes of this Agreement.
Alternative Currency Term Rate Loan means a Committed Loan that bears
interest at a rate based on the definition of Alternative Currency Term Rate. All Alternative Currency Term Rate Loans must be denominated in an Alternative Currency.