EXHIBIT 4.8
WAIVER
WAIVER (this "WAIVER"), dated as of November 13, 1998, with respect to the
Credit Agreement, dated as of March 4, 1997, as amended by the Waiver and First
Amendment thereto dated as of November 25, 1997 and the Waiver and Second
Amendment thereto dated as of May 27, 1998 (as the same may be further amended,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT"),
among PACKARD BIOSCIENCE COMPANY, a Delaware corporation ("PACKARD"), the
Subsidiary Borrowers party thereto, the lenders from time to time parties
thereto (the "LENDERS"), NATIONSBANC XXXXXXXXXX SECURITIES LLC (formerly known
as BANCAMERICA SECURITIES, INC.) and CIBC XXXXXXXXXXX CORP. (formerly known as
CIBC-WOOD GUNDY SECURITIES CORP.), as co-arrangers and co-syndication agents (in
such capacities, the "CO-ARRANGERS" and the "CO-SYNDICATION AGENTS"), CANADIAN
IMPERIAL BANK OF COMMERCE, as documentation agent (in such capacity, the
"DOCUMENTATION AGENT"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as administrative agent.
W I T N E S S E T H :
WHEREAS, Packard has requested that the Lenders agree to waive compliance
with certain provisions of the Credit Agreement upon the terms and subject to
the conditions set forth herein; and
WHEREAS, the Lenders have agreed to such waivers only upon the terms and
subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms not otherwise defined herein have the
meanings ascribed to such terms in the Credit Agreement.
2. Waiver of Section 9.5. The parties hereto hereby waive compliance with
the provisions of Section 9.5 of the Credit Agreement to the extent said
provisions would prohibit or restrict the Disposition of Packard=s hydrogen
generator product line. It is understood that such Disposition (a) shall not
constitute utilization of any of the Abasket@ amounts referred to in Section 9.5
and (b) shall constitute an AAsset Sale@ for the purposes of the Credit
Agreement.
3. Conditions to Effectiveness. This Waiver shall become effective (the
actual date of such effectiveness, the AWAIVER EFFECTIVE Date@) as of the date
first above written when counterparts hereof shall have been duly executed and
delivered by Packard, the Administrative Agent and the Required Lenders and
acknowledged by each Subsidiary Guarantor.
4. Representations. Packard represents and warrants that:
(a) this Waiver has been duly authorized, executed and delivered by
Packard;
(b) each of this Waiver, and the Credit Agreement as modified by this
Waiver, constitutes the legal, valid and binding obligation of Packard;
(c) each of the representations and warranties set forth in Section 6
of the Credit Agreement are true and correct as of the Waiver Effective
Date; provided that references in the Credit Agreement to this AAgreement@
shall be deemed references to the Credit Agreement as modified by this
Waiver; and
(d) after giving effect to this Waiver, there does not exist any
Default or Event of Default.
5. Continuing Effect. Except as expressly waived hereby, the Credit
Agreement shall continue to be and shall remain in full force and effect in
accordance with its terms.
6. Expenses. Packard agrees to pay and reimburse the Administrative Agent
for all of its out-of-pocket costs and expenses incurred in connection with the
negotiation, preparation, execution, and delivery of this Waiver, including the
reasonable fees and expenses of counsel to the Administrative Agent.
7. Counterparts. This Waiver may be executed on any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
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8. GOVERNING LAW. THIS WAIVER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
PACKARD BIOSCIENCE COMPANY
By:
----------------------------------------------------
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Administrative Agent
By:
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Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
(as successor by merger with Bank of America Illinois),
as a Lender
By:
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Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By:
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Name:
Title:
ABN AMRO BANK N.V.
By:
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Name:
Title:
By:
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Name:
Title:
BANKBOSTON, N.A. (formerly known as The First National
Bank of Boston)
By:
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Name:
Title:
BANK OF SCOTLAND
By:
----------------------------------------------------
Name:
Title:
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FLEET NATIONAL BANK
By:
----------------------------------------------------
Name:
Title:
IBJ XXXXXXXX BANK & TRUST COMPANY
By:
----------------------------------------------------
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED, NEW YORK
BRANCH
By:
----------------------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
By:
----------------------------------------------------
Name:
Title:
ALLSTATE LIFE INSURANCE COMPANY
By:
----------------------------------------------------
Name:
Title:
By:
----------------------------------------------------
Name:
Title:
THE ING CAPITAL SENIOR SECURED HIGH INCOME FUND, L.P.
By: ING Capital Advisors, Inc., as Investment Advisor
By:
----------------------------------------------------
Name:
Title:
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By:
----------------------------------------------------
Name:
Title:
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SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as Investment
Advisor
By:
----------------------------------------------------
Name:
Title:
COMMERCIAL LOAN FUNDING TRUST I
By: Xxxxxx Commercial Paper, Inc.
By:
----------------------------------------------------
Name:
Title:
FEDERAL STREET PARTNERS
By:
----------------------------------------------------
Name:
Title:
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management, as Investment Advisor
By:
----------------------------------------------------
Name:
Title:
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ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned does hereby acknowledge and consent to the
foregoing Waiver. Each of the undersigned does hereby confirm and agree that,
after giving effect to such Waiver, the Guarantee and Collateral Agreement and
the other Security Documents in favor of the Administrative Agent to which it is
a party are and shall continue to be in full force and effect and are hereby
confirmed and ratified in all respects.
PACKARD INSTRUMENT COMPANY, INC.
By:
Name:
Title:
AQUILA TECHNOLOGIES GROUP, INC.
By:
Name:
Title:
CCS PACKARD, INC.
By:
Name:
Title:
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