Full Press Release Details
LOAN CREDIT AGREEMENT
Dated as of August 11, 2021
as the Administrative Agent,
GOLDMAN SACHS BANK USA
JPMORGAN CHASE BANK, N.A.
WELLS FARGO BANK, NATIONAL
as Co-Documentation Agents,
The Other Lenders 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 | 27 | ||||
| Section 1.03 | Accounting Terms | 28 | ||||
| Section 1.04 | Times of Day | 29 | ||||
| Article II. THE COMMITMENTS AND CREDIT EXTENSIONS | 29 | |||||
| Section 2.01 | Committed Loans | 29 | ||||
| Section 2.02 | Committed Borrowings; Conversions and Continuations of Committed Loans | 29 | ||||
| Section 2.03 | [Reserved] | 30 | ||||
| Section 2.04 | [Reserved] | 30 | ||||
| Section 2.05 | Prepayments | 30 | ||||
| Section 2.06 | Termination or Reduction of Aggregate Commitments | 31 | ||||
| Section 2.07 | Repayment of Loans | 31 | ||||
| Section 2.08 | Interest | 31 | ||||
| Section 2.09 | Fees | 32 | ||||
| Section 2.10 | Computation of Interest and Fees | 32 | ||||
| Section 2.11 | Evidence of Debt | 33 | ||||
| Section 2.12 | Payments Generally; Administrative Agent s Clawback | 33 | ||||
| Section 2.13 | Sharing of Payments by Lenders | 35 | ||||
| Section 2.14 | [Reserved] | 35 | ||||
| Section 2.15 | [Reserved] | 35 | ||||
| Section 2.16 | [Reserved] | 35 | ||||
| Section 2.17 | [Reserved] | 35 | ||||
| Section 2.18 | Defaulting Lenders | 36 | ||||
| Section 2.19 | Designated Lenders | 37 | ||||
| Article III. TAXES, YIELD PROTECTION AND ILLEGALITY | 37 | |||||
| Section 3.01 | Taxes | 37 | ||||
| Section 3.02 | Illegality | 41 | ||||
| Section 3.03 | Inability to Determine Rates | 41 | ||||
| Section 3.04 | Increased Costs; Reserves on Eurocurrency Rate Loans | 43 | ||||
| Section 3.05 | Compensation for Losses | 45 | ||||
| Section 3.06 | Mitigation Obligations; Replacement of Lenders | 46 | ||||
| Section 3.07 | Survival | 46 | ||||
| Article IV. CONDITIONS PRECEDENT | 46 | |||||
| Section 4.01 | Conditions to the Effective Date | 46 | ||||
| Section 4.02 | Conditions to the Closing Date | 48 | ||||
| Section 4.03 | Availability | 49 | ||||
| Article V. REPRESENTATIONS AND WARRANTIES | 50 | |||||
| Section 5.01 | Existence, Qualification and Power; Compliance with Laws | 50 | ||||
| Section 5.02 | Authorization; No Contravention | 50 | ||||
| Section 5.03 | Governmental Authorization; Other Consents | 50 | ||||
| Section 5.04 | Binding Effect | 50 | ||||
| Section 5.05 | Financial Statements; No Material Adverse Effect | 51 | ||||
| Section 5.06 | Litigation | 51 | ||||
| Section 5.07 | No Default | 51 |
Table of Contents (continued)
| Page | ||||||
| Section 5.08 | Ownership of Property | 51 | ||||
| Section 5.09 | Environmental Compliance | 51 | ||||
| Section 5.10 | [Reserved] | 52 | ||||
| Section 5.11 | Taxes | 52 | ||||
| Section 5.12 | ERISA Compliance | 52 | ||||
| Section 5.13 | [Reserved] | 53 | ||||
| Section 5.14 | Margin Regulations; Investment Company Act | 53 | ||||
| Section 5.15 | Disclosure | 54 | ||||
| Section 5.16 | [Reserved] | 54 | ||||
| Section 5.17 | [Reserved] | 54 | ||||
| Section 5.18 | Solvency | 54 | ||||
| Section 5.19 | Anti-Corruption Laws and Sanctions | 54 | ||||
| Section 5.20 | Affected Financial Institution | 54 | ||||
| Section 5.21 | Use of Proceeds | 54 | ||||
| Article VI. AFFIRMATIVE COVENANTS | 55 | |||||
| Section 6.01 | Financial Statements | 55 | ||||
| Section 6.02 | Certificates; Other Information | 55 | ||||
| Section 6.03 | Notices | 57 | ||||
| Section 6.04 | Payment of Taxes | 57 | ||||
| Section 6.05 | Preservation of Existence, Etc | 57 | ||||
| Section 6.06 | Maintenance of Properties | 58 | ||||
| Section 6.07 | Maintenance of Insurance | 58 | ||||
| Section 6.08 | Compliance with Laws | 58 | ||||
| Section 6.09 | Books and Records | 58 | ||||
| Section 6.10 | Inspection Rights | 58 | ||||
| Section 6.11 | Use of Proceeds | 59 | ||||
| Article VII. NEGATIVE COVENANTS | 59 | |||||
| Section 7.01 | Liens | 59 | ||||
| Section 7.02 | [Reserved] | 60 | ||||
| Section 7.03 | Indebtedness | 60 | ||||
| Section 7.04 | Fundamental Changes | 62 | ||||
| Section 7.05 | [Reserved] | 62 | ||||
| Section 7.06 | [Reserved] | 62 | ||||
| Section 7.07 | [Reserved] | 62 | ||||
| Section 7.08 | [Reserved] | 62 | ||||
| Section 7.09 | [Reserved] | 62 | ||||
| Section 7.10 | Use of Proceeds | 62 | ||||
| Section 7.11 | Financial Covenants | 62 | ||||
| Article VIII. EVENTS OF DEFAULT AND REMEDIES | 63 | |||||
| Section 8.01 | Events of Default | 63 | ||||
| Section 8.02 | Remedies Upon Event of Default | 66 | ||||
| Section 8.03 | Application of Funds | 66 | ||||
| Article IX. ADMINISTRATIVE AGENT | 67 | |||||
| Section 9.01 | Appointment and Authority | 67 | ||||
| Section 9.02 | Rights as a Lender | 67 | ||||
| Section 9.03 | Exculpatory Provisions | 67 |
Table of Contents (continued)
| Page | ||||||
| Section 9.04 | Reliance by Administrative Agent | 68 | ||||
| Section 9.05 | Delegation of Duties | 69 | ||||
| Section 9.06 | Resignation of Administrative Agent | 69 | ||||
| Section 9.07 | Non-Reliance on Administrative Agent and Other Lenders | 70 | ||||
| Section 9.08 | No Other Duties, Etc | 70 | ||||
| Section 9.09 | Administrative Agent May File Proofs of Claim | 70 | ||||
| Section 9.10 | Certain ERISA Matters | 71 | ||||
| Section 9.11 | Recovery of Erroneous Payments | 72 | ||||
| Article X. [Reserved] | 72 | |||||
| Article XI. MISCELLANEOUS | 72 | |||||
| Section 11.01 | Amendments, Etc | 72 | ||||
| Section 11.02 | Notices; Effectiveness; Electronic Communication | 73 | ||||
| Section 11.03 | No Waiver; Cumulative Remedies; Enforcement | 75 | ||||
| Section 11.04 | Expenses; Indemnity; Damage Waiver | 76 | ||||
| Section 11.05 | Payments Set Aside | 78 | ||||
| Section 11.06 | Successors and Assigns | 78 | ||||
| Section 11.07 | Treatment of Certain Information; Confidentiality | 83 | ||||
| Section 11.08 | Right of Setoff | 84 | ||||
| Section 11.09 | Interest Rate Limitation | 85 | ||||
| Section 11.10 | Counterparts; Integration; Effectiveness | 85 | ||||
| Section 11.11 | Survival of Representations and Warranties | 85 | ||||
| Section 11.12 | Severability | 86 | ||||
| Section 11.13 | Replacement of Lenders | 86 | ||||
| Section 11.14 | Governing Law; Jurisdiction; Etc | 87 | ||||
| Section 11.15 | Waiver of Jury Trial | 88 | ||||
| Section 11.16 | Electronic Execution | 88 | ||||
| Section 11.17 | USA PATRIOT Act Notice | 89 | ||||
| Section 11.18 | [Reserved | 89 | ||||
| Section 11.19 | No Advisory or Fiduciary Responsibility | 89 | ||||
| Section 11.20 | Acknowledgement and Consent to Bail-In of Affected Financial Institutions | 89 | ||||
| Section 11.21 | Acknowledgement Regarding Any Supported QFCs | 90 |
| SCHEDULES | ||
| 2.01 | Commitments and Applicable Percentages | |
| 7.01 | Existing Liens | |
| 7.03 | Existing Indebtedness | |
| 11.02 | Administrative Agent s Office; Certain Addresses for Notices | |
| EXHIBITS | ||
| Form of | ||
| A | Assignment and Assumption | |
| B | [Reserved] | |
| C | Committed Loan Notice | |
| D | Compliance Certificate | |
| E | Solvency Certificate | |
| F | [Reserved] | |
| G | [Reserved] | |
| H | Note | |
| I | [Reserved] | |
| J | Notice of Loan Prepayment | |
| K | [Reserved] | |
| 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 11, 2021 among PERKINELMER, INC., a Massachusetts corporation (the Company ), the Lenders and BANK OF
AMERICA, N.A., as the Administrative Agent.
WHEREAS, the Company has requested that the Lenders make loans and other financial
accommodations to the Company as set forth herein; and
WHEREAS, the Lenders have agreed to make such loans and other financial
accommodations to the Company, 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:
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set
Acquired Business has the meaning specified in the definition of Acquisition.
Acquired Business Material Adverse Effect means Material Adverse Effect as defined in the Acquisition Agreement
(as in effect on July 25, 2021).
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. (the Target , and together with its subsidiaries, the Acquired Business ) pursuant to the Acquisition
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.
Acquisition Agreement Representations means the representations
made by or with respect to the Acquired Business in the Acquisition Agreement as are material to the interests of the Lenders (but only to the extent that the Company or its applicable subsidiaries have the right to terminate their respective
obligations under the Acquisition Agreement, or to decline to consummate the Acquisition pursuant to the Acquisition Agreement as a result of a breach of such representations in the Acquisition Agreement, determined without regard to whether any
notice is required to be delivered by the Company).
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 the Administrative
Agent s address and account as set forth on Schedule 11.02 or such other address or account as the Administrative Agent may from time to time notify the Company and the Lenders.
Administrative Questionnaire means an administrative questionnaire in a form supplied by the Administrative Agent.
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 Effective Date
equal FIVE HUNDRED MILLION DOLLARS ($500,000,000).
Agreement has the meaning specified in the introductory paragraph
Anti-Corruption Laws means, at any time, all laws, rules, and regulations of any jurisdiction applicable to
the Company or its Subsidiaries at such time concerning or relating to bribery or corruption.
Applicable Margin means,
from time to time, the following percentages per annum, based upon the Debt Ratings from S&P, Moody s and Fitch as set forth below:
| Category | Debt Ratings (Moody s / S&P / Fitch) | Eurocurrency Rate Loans | Base Rate Loans | |||||||
| 1 | A3 / A- / A- or higher | 0.875 | % | 0.000 | % | |||||
| 2 | Baa1 / BBB+ / BBB+ | 1.000 | % | 0.000 | % | |||||
| 3 | Baa2 / BBB / BBB | 1.125 | % | 0.125 | % | |||||
| 4 | Baa3 / BBB- / BBB- | 1.250 | % | 0.250 | % | |||||
| 5 | Ba1 / BB+ / BB+ or lower | 1.500 | % | 0.500 | % |
For purposes of the foregoing: (a) if none of Moody s, S&P or Fitch shall have in effect a rating for the Index
Debt (other than by reason of the circumstances referred to in the last sentence of this definition), then Category 5 shall be in effect; (b) if only one of Moody s, S&P and Fitch provides a rating for the Index Debt, the Category
corresponding to such rating shall be in effect; (c) if only two of Moody s, S&P and Fitch provides a rating for the Index Debt, the Category based on the higher of the two ratings shall apply unless one of the two ratings is two or
more Categories lower than the other, in which case the Category then in effect shall be determined by reference to the Category next below that of the higher of the two ratings; (d) if the ratings established or deemed to have been established
by Moody s, S&P and Fitch for the Index Debt shall fall within different Categories, the Category then in effect shall be (i) the Category in which two of the ratings fall, or (ii) if there is no such Category, the Category in
which the intermediate rating shall fall; and (e) if the ratings established or deemed to have been established by Moody s, S&P and Fitch for the Index Debt shall be changed (other than as a result of a change in the rating system of
Moody s, S&P or Fitch), such change shall be effective as of the date on which it is first announced by the applicable rating agency, irrespective of when notice of such change shall have been furnished by the Company to the Administrative
Agent and the Lenders pursuant to Section 6.03(f) or otherwise. Each change in the Applicable Margin shall apply during the period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next such change. If the rating system of Moody s, S&P or Fitch shall change, or if any of such rating agencies shall
cease to be in the business of rating corporate debt obligations, the Company and the Lenders shall negotiate in good faith to amend the definition of Applicable Margin to reflect such changed rating system or the unavailability of ratings from such
rating agency and, pending the effectiveness of any such amendment, the Applicable Margin shall be determined by reference to the rating most recently in effect prior to such change or cessation.
Applicable Percentage means, with respect to any Lender at any time, the percentage (carried out to the ninth decimal
place) of the Aggregate Commitments represented by such Lender s Commitment at such time, subject to adjustment as provided in Section 2.18. If the Commitment of each Lender to make Loans has been terminated pursuant
to Section 8.02 or if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any
subsequent assignments and to any Lender s status as a Defaulting Lender at the time of determination. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment
and Assumption or other documentation pursuant to which such Lender becomes a party hereto, as applicable.
Fund means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender, or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
Arranger means each of (a) Goldman Sachs, in its capacity as a joint lead arranger and a joint bookrunner,
(b) Bank of America, in its capacity as a joint lead arranger and a joint bookrunner, (c) JPMorgan Chase Bank, N.A., in its capacity as a joint lead arranger and a joint bookrunner and (d) Well Fargo Bank, National Association, in its
capacity as a joint lead arranger and a joint bookrunner.
Assignee Group means two or more Eligible Assignees that are
Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
Assumption means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)), and accepted by the Administrative
Agent, in substantially the form of Exhibit A or any other form (including an electronic documentation form generated by use of an electronic platform) approved by the Administrative Agent and reasonably acceptable to the Company.
Attributable Indebtedness means, on any date, (a) in respect of any Capitalized Lease of any Person, the capitalized
amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant
lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.
Audited Financial Statements means the audited consolidated balance sheet of the Company and its Subsidiaries for the
fiscal year ended January 3, 2021, and the related consolidated statements of income or operations, shareholders equity and cash flows for such fiscal year of the Company and its Subsidiaries, including the notes thereto.
Availability Period means the period from and including the Effective Date to and including the earlier of (i) the
Commitment Termination Date and (ii) the date that the Acquisition Agreement is terminated by the Company in a signed writing in accordance with its terms.
Available Tenor means, as of any date of determination and with respect
to the then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (y) otherwise, any payment period for
interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date.
Bail-In Action means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
Bail-In Legislation means (a) with respect to any EEA Member Country
implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the
United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
Bank of America means Bank of America, N.A. and its successors.
Base Rate means for any day a fluctuating rate of interest per annum equal to the highest of (a) the Federal Funds
Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly announced from time to time by the Administrative Agent as its prime rate, and (c) the Eurocurrency Rate plus 1.00%; provided that if
the Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. The prime rate is a rate set by the Administrative Agent based upon various factors including the Administrative Agent s costs and