-----BEGIN PRIVACY-ENHANCED MESSAGE-----
Proc-Type: 2001,MIC-CLEAR
Originator-Name: webmaster@www.sec.gov
Originator-Key-Asymmetric:
MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen
TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB
MIC-Info: RSA-MD5,RSA,
R07RBurWpoepSf7T93LmEjtX3yGLTTnivKDY4V7VdbSAQkJ1GsWfsYebMzBN/tLb
bUPx/Ze4DP9YAQXiNo5qrQ==
<SEC-DOCUMENT>0000077551-95-000012.txt : 19951002
<SEC-HEADER>0000077551-95-000012.hdr.sgml : 19951002
ACCESSION NUMBER: 0000077551-95-000012
CONFORMED SUBMISSION TYPE: 10-K
PUBLIC DOCUMENT COUNT: 17
CONFORMED PERIOD OF REPORT: 19950630
FILED AS OF DATE: 19950927
SROS: NYSE
SROS: PSE
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: PERKIN ELMER CORP
CENTRAL INDEX KEY: 0000077551
STANDARD INDUSTRIAL CLASSIFICATION: LABORATORY ANALYTICAL INSTRUMENTS [3826]
IRS NUMBER: 060490270
STATE OF INCORPORATION: NY
FISCAL YEAR END: 0630
FILING VALUES:
FORM TYPE: 10-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-04389
FILM NUMBER: 95576617
BUSINESS ADDRESS:
STREET 1: 761 MAIN AVE
CITY: NORWALK
STATE: CT
ZIP: 06859-0001
BUSINESS PHONE: 2037621000
MAIL ADDRESS:
STREET 1: 761 MAIN AVENUE
CITY: NORWALK
STATE: CT
ZIP: 06859-0001
</SEC-HEADER>
<DOCUMENT>
<TYPE>10-K
<SEQUENCE>1
<DESCRIPTION>ANNUAL REPORT ON FORM 10-K
<TEXT>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[ X ] Annual Report Pursuant To Section 13 Or 15(d)
Of The Securities Exchange Act Of 1934 [Fee Required]
For the Fiscal Year Ended June 30, 1995
OR
[ ] Transition Report Pursuant To Section 13 Or 15(d)
Of The Securities Exchange Act Of 1934 [No Fee Required]
For the transition period from to
Commission File Number 1-4389
The Perkin-Elmer Corporation
(Exact name of registrant as specified in its charter)
NEW YORK 06-0490270
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
761 Main Avenue, Norwalk, Connecticut 06859-0001
(Address of principal executive offices) (Zip Code)
Registrant's telephone number,
including area code: 203-762-1000
Securities registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of class on which registered
Common Stock (par value New York Stock Exchange
$1.00 per share) Pacific Stock Exchange
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.
X Yes No
Indicate by check mark if disclosure of delinquent filers
pursuant to Item 405 of Regulation S-K is not contained herein,
and will not be contained, to the best of Registrant's knowledge,
in definitive proxy or information statements incorporated by
reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
As of September 11, 1995, 42,167,407 shares of Registrant's
Common Stock were outstanding, and the aggregate market value of
shares of such Common Stock (based upon the average sales price)
held by non-affiliates was approximately $1,457,411,004.
DOCUMENTS INCORPORATED BY REFERENCE
Annual Report to Shareholders for Fiscal Year ended June 30,
1995 - Parts I, II, and IV.
Proxy Statement for Annual Meeting of Shareholders dated
September 13, 1995 - Part III.
<PAGE>
PART I
Item 1. BUSINESS
(a) General Development of Business.
The Perkin-Elmer Corporation was incorporated in 1939
under the laws of the State of New York. Together with its
consolidated subsidiaries, The Perkin-Elmer Corporation
(hereinafter collectively referred to as "Registrant" or the
"Corporation") develops, manufactures, and sells products in
the industry segment described in sub-item (c) below.
On February 18, 1993, the shareholders of Registrant and
Applied Biosystems, Inc. ("ABI"), a supplier of automated
systems for life science research and related applications,
approved the merger of a subsidiary of Registrant with and
into ABI which resulted in ABI becoming a wholly-owned
subsidiary of Registrant. Effective July 1, 1994, ABI was
merged into Registrant and is now the Applied Biosystems
division of Registrant.
On April 18, 1994, Registrant entered into an agreement
with Sulzer Inc. to sell its Material Sciences segment
consisting of its Metco Division ("Metco") headquartered in
Westbury, New York. Registrant completed the sale on
September 30, 1994.
The consolidated financial statements and schedules
reflect the merger with ABI as a pooling of interests and
present the Corporation's Material Sciences segment as a
discontinued operation.
On May 18, 1993, Registrant amended its By-laws to change
Registrant's fiscal year end from July 31 to June 30. Prior
to fiscal year 1993, the financial statements of ABI and
Registrant's subsidiaries outside the United States were for
the years ended June 30, while Registrant's domestic
operations were reported on a July 31 fiscal year end.
(b) Financial Information About Industry Segments.
Registrant is engaged in one business segment, which is
generally described as analytical instruments and includes
life science systems. Accordingly, separate segment financial
information is not provided.
-1-
<PAGE>
(c) Narrative Description of Business.
BUSINESS
Registrant develops, manufactures, markets, sells, and
services analytical instrument systems. Included in this
industry segment are biochemical analytical instrument
systems, consisting of instruments and associated consumable
products, for life science research and related applications.
These automated systems are used for synthesis, amplification,
purification, isolation, analysis and sequencing of nucleic
acids, proteins, and other biological molecules.
This industry segment also includes analytical instrument
systems for determining the composition and molecular
structure of chemical substances (both organic and inorganic)
and measuring the concentration of materials in a sample.
These instruments include: spectrophotometers utilizing a
number of analytical techniques; gas and liquid
chromatographs; thermal analyzers; thermal cyclers; analytical
balances; flame photometers; polarimeters; data-handling
devices that are principally designed for use with analytical
instruments; and data systems for applications in analytical
chemistry. In a joint venture, Perkin-Elmer Sciex
Instruments, Registrant is engaged in the manufacture and sale
of mass spectrometry instrument systems. Registrant also
develops, manufactures, markets, and services on-line, real
time, process analysis systems to monitor process quality and
environmental purity.
Registrant's instruments are used by private industry,
educational and research institutions, and governmental
entities for fundamental research, applied industrial
research, quality control, medical research, hospital clinical
testing, pollution analysis, drug identification, and
forensics.
MARKETING AND DISTRIBUTION
In the United States, Registrant markets the largest
portion of its products directly through its own sales and
distribution organization, although certain analytical
instruments are marketed through independent distributors and
sales representatives. Sales to major markets outside of the
United States are generally made by the Registrant's foreign
based sales and service staff, although some sales are made
directly from the United States to foreign customers. In
certain foreign countries, sales are made through various
representative and distributorship arrangements. Registrant
owns or leases sales and service offices in strategic regional
locations in the United States, and in foreign countries
through its foreign sales subsidiaries and distribution
operations. None of Registrant's products is distributed
through retail outlets.
RAW MATERIALS
There are no specialized raw materials that are
particularly essential to the operation of Registrant's
business. Registrant's manufacturing operations require a
wide variety of raw materials, electronic and mechanical
components, chemical and biochemical materials, and other
supplies, some of which are occasionally found to be in short
supply. Registrant has multiple commercial sources for most
components and supplies but is dependent on single sources for
a limited number of such items, in which case Registrant
normally secures long-term supply contracts.
-2-
<PAGE>
PATENTS, LICENSES, AND FRANCHISES
Registrant has pursued a policy of seeking patent
protection in the United States and other countries for
developments, improvements, and inventions originating
within its organization which are incorporated in
Registrant's products or which fall within its fields of
interest. Certain licenses under patents have been granted
to, and received from, other entities. Registrant has
certain rights from Hoffmann-La Roche Inc. under patents
relating to polymerase chain reaction technology ("PCR"),
which patents expire in 2004. Registrant also has rights
under a patent issued to the California Institute of
Technology relating to DNA sequencing, which patent expires
in 2009. In Registrant's opinion, however, no other single
patent or license, or group of patents or licenses, or any
franchise, is material to its business as a whole.
From time to time, Registrant has asserted that various
competitors and others are infringing Registrant's patents and
similarly, from time to time, others have asserted that
Registrant was infringing patents owned by them. Generally,
such claims are settled by mutual agreement on a satisfactory
basis and result in the granting of licenses by Registrant or
the granting of licenses to Registrant.
SEASONAL FLUCTUATIONS
Registrant's business is not subject to pronounced
seasonal fluctuations.
BACKLOG
Registrant's recorded backlog was $167.0 million at June
30, 1995 and $154.5 million at June 30, 1994. It is
Registrant's general policy to include in backlog only
purchase orders or production releases which have firm
delivery dates within one year. Recorded backlog may not
result in sales because of cancellation or other factors. It
is anticipated that all orders included in the current backlog
will be delivered before the close of fiscal year 1996.
UNITED STATES GOVERNMENT SALES
No material portion of Registrant's business is subject
to renegotiation of profits or termination of contracts or
subcontracts at the election of the United States Government.
COMPETITION
The industry segment in which Registrant operates is
highly competitive and is characterized by the application of
advanced technology. There are numerous companies which
specialize in, and a number of larger companies which devote a
significant portion of their resources to, the development,
manufacture, and sale of products which compete with those
manufactured or sold by Registrant. Many of Registrant's
competitors are well-known manufacturers with a high degree of
technical proficiency. In addition, competition is
intensified by the ever-changing nature of the technologies in
the industry in which Registrant is engaged. The markets for
Registrant's products are characterized by specialized
manufacturers that often have strength in narrow segments of
these markets. While the absence of reliable statistics makes
it difficult to determine Registrant's relative market
position, Registrant is confident it is one of the principal
manufacturers in its field, marketing a broad line of
analytical instruments and life science systems. In addition
to competing in terms of the technology that Registrant
offers, Registrant competes in terms of price, service, and
quality.
-3-
<PAGE>
RESEARCH, DEVELOPMENT, AND ENGINEERING
Registrant is actively engaged in basic and applied
research, development, and engineering programs designed to
develop new products and to improve existing products. During
fiscal years 1995, 1994, and 1993, Registrant spent $95.1
million, $94.2 million, and $83.8 million, respectively, on
company sponsored research, development, and engineering
activities.
ENVIRONMENTAL MATTERS
Registrant is subject to federal, state, and local laws
and regulations regulating the discharge of materials into the
environment, or otherwise relating to the protection of the
environment, in those jurisdictions where Registrant operates
or maintains facilities. Registrant does not believe that
compliance with all environmental provisions will have a
material effect on its business, and no material capital
expenditures are expected for environmental control.
EMPLOYEES
As of June 30, 1995, Registrant employed 5,890 persons
worldwide. None of Registrant's United States employees is
subject to collective bargaining agreements.
(d) Financial Information About Foreign and Domestic
Operations and Export Sales.
A summary of net revenues to unaffiliated customers,
operating income, and identifiable assets attributable to each
of Registrant's geographic areas and export sales for the
fiscal years 1995, 1994, and 1993 is incorporated herein by
reference to Note 6 on Pages 38-39 of the Annual Report to
Shareholders for the fiscal year ended June 30, 1995.
Registrant's consolidated net revenues to unaffiliated
customers in countries other than the United States for the
fiscal years 1995, 1994, and 1993 were $669.8 million, $606.7
million, and $606.8 million, or 63.0%, 59.2%, and 60.0%,
respectively, of Registrant's consolidated net revenues.
All of the Registrant's manufacturing facilities outside
of the continental United States are located in Germany, the
United Kingdom, the Commonwealth of Puerto Rico, Japan, and
the Peoples Republic of China. The manufacturing facility in
Puerto Rico is expected to be closed by December 31, 1995.
There are currently no material foreign exchange controls or
similar limitations restricting the repatriation to the United
States of capital or earnings from operations outside the
United States.
(e) Discontinued Operations.
On September 30, 1994, Registrant sold Metco, comprising
its Material Sciences segment, headquartered in Westbury, New
York to Sulzer Inc., a wholly-owned subsidiary of Sulzer,
Ltd., Winterthur, Switzerland. The consolidated financial
statements and schedules present Registrant's Material
Sciences segment as a discontinued operation.
Item 2. PROPERTIES
Listed below are the principal facilities of Registrant
as of June 30, 1995. Registrant considers all facilities
listed below to be reasonably appropriate for the purpose(s)
-4-
<PAGE>
for which they are used, including manufacturing, research and
development, and administrative purposes. All properties are
maintained in good working order and, except for those held
for sale or lease, are substantially utilized on the basis of
at least one shift. None of the leased facilities is leased
from an affiliate of Registrant.
Approximate
Owned or Expiration Floor Area
Location Leased Date of Leases In Sq. Ft.
Norwalk, CT Owned 402,000
Wilton, CT Owned 219,000
San Jose, CA Owned 81,000
Beaconsfield, England Owned 70,000
Ueberlingen, Germany Owned 62,000
Warrington, England Owned 58,000
Narita, Japan Owned 24,000
Irvine, CA Owned 22,000
Foster City, CA Leased 2000-2002 324,000
Ueberlingen, Germany Leased 1995-2001 204,000
Llantrinsant, Wales Leased 1996 113,000
Mayaguez, Puerto Rico* Leased 1997-1998 34,000
Meersburg, Germany Leased 2000 24,000
Farnborough, England Leased 2001 21,000
Beaconsfield, England Leased 2005 8,000
Beijing, China Leased 1996 350
* The manufacturing facility in Mayaguez, Puerto Rico is
expected to be closed by December 31, 1995.
In addition to the facilities listed above, Registrant
leases space in certain industrial centers for use as regional
sales and service offices, technical demonstration centers,
and warehousing. Registrant also owns undeveloped land in
Redding, Connecticut, Vacaville, California, and
Ueberlingen, Germany.
In addition to the properties used by Registrant in its
operations, Registrant owns three facilities in Wilton,
Connecticut (aggregating approximately 248,000 square feet)
which are currently leased to SVG Lithography Systems, Inc.
for a term expiring in 2010, a facility in Garden Grove,
California (approximately 82,000 square feet) which is
currently leased to OCA Applied Optics, Inc. for a term
expiring in 2002, and a facility in Pomona, California
(approximately 135,000 square feet) which is currently leased
to Orbital Sciences Corporation for a term expiring in 2003.
Registrant also owns a facility in Ridgefield, Connecticut
(approximately 201,000 square feet), two facilities in Wilton,
Connecticut (approximately 51,000 square feet and 42,000
square feet), and a facility in San Jose, California
(approximately 67,000 square feet) which are held for sale or
lease. One of the facilities in Wilton is leased on a long-
term basis, and the facility in San Jose and a portion of the
remaining facility in Wilton are leased on a short-term basis.
Item 3. LEGAL PROCEEDINGS
The Corporation has been named as a defendant in various
legal actions arising from the conduct of its normal business
activities. Although the amount of any liability that might
arise with respect to any of these matters cannot be
accurately predicted, the resulting liability, if any, will
not, in the opinion of management of Registrant, have a
material adverse effect on the consolidated financial
statements of Registrant.
-5-
<PAGE>
Registrant is one of approximately 125 third party
defendants named in a third party complaint dated February 19,
1993 in United States of America v. Davis et al., which is
pending in the United States District Court for the District
of Rhode Island. The third party plaintiffs, who were named
as defendants and potentially responsible parties in the
Government's initial complaint, sought equitable contribution
and indemnification in the event they were found liable for
remediation costs relating to the removal of hazardous
substances from a site located in Smithfield, Rhode Island
(such costs initially were estimated by the Government to be
$27.8 million, but most recent estimates of such costs appear
to be in the $40 million range). All but one of the third
party plaintiffs settled with the Government for a total of
approximately $6 million, and a trial on the question of the
remaining third party plaintiff's liability to the Government
resulted in an April 22, 1995 Memorandum and Order in which
the Court found such plaintiff, United Technologies
Corporation, liable as a "generator" of hazardous wastes
deposited at the site. A trial on the amount of such
liability currently is scheduled for October 1995. Until the
amount of liability of all of the third party plaintiffs
(including United Technologies) has been established by
litigation or settlement of that issue, the Court will not
consider the validity of any third party claims. While the
Registrant contends that it should have no liability in this
case, because of the uncertainty of all litigation it cannot
definitively state that it will incur less than $100,000 in
monetary liability.
Item 4. SUBMISSION OF MATTERS TO A VOTE OF
SECURITY HOLDERS
No matter was submitted to a vote of security holders,
through the solicitation of proxies or otherwise, during the
fourth quarter of the fiscal year covered by this report.
-6-
<PAGE>
PART II
Item 5. MARKET FOR REGISTRANT'S COMMON EQUITY
AND RELATED STOCKHOLDER MATTERS
(a) Market Information.
The principal United States market where Registrant's
Common Stock is traded is the New York Stock Exchange,
although such stock is also traded on the Pacific Stock
Exchange.
The following information, which appears in Registrant's
Annual Report to Shareholders for the fiscal year ended June
30, 1995, is hereby incorporated by reference in this Form 10-
K: the high and low sales prices of Registrant's Common Stock
for each quarterly period during the fiscal years 1995 and
1994 (Note 13, Page 43 of the Annual Report to Shareholders).
(b) Holders.
On September 11, 1995, the approximate number of holders
of Common Stock of Registrant was 8,313. The approximate
number of record holders is based upon the actual number of
holders registered in the books of Registrant at such date and
does not include holders of shares in "street name" or
persons, partnerships, associations, corporations, or other
entities identified in security position listings maintained
by depositary trust companies. Note: the calculation of the
number of shares of Registrant's Common Stock held by non-
affiliates shown on the cover of this Form 10-K was made on
the assumption that there were no affiliates other than
executive officers and directors.
(c) Dividends.
The following information which appears in Registrant's
Annual Report to Shareholders for the fiscal year ended June
30, 1995, is hereby incorporated by reference in this Form 10-
K: the amount of quarterly dividends paid during the fiscal
years 1995 and 1994 (Note 13, Page 43 of the Annual Report to
Shareholders).
Item 6. SELECTED FINANCIAL DATA
Registrant hereby incorporates by reference in this Form
10-K Page 22 of Registrant's Annual Report to Shareholders for
the fiscal year ended June 30, 1995.
Item 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Registrant hereby incorporates by reference in this Form
10-K Pages 23-27 of Registrant's Annual Report to Shareholders
for the fiscal year ended June 30, 1995.
-7-
<PAGE>
Item 8. FINANCIAL STATEMENTS AND
SUPPLEMENTARY DATA
The following financial statements and the supplementary
financial information included in Registrant's Annual Report
to Shareholders for the fiscal year ended June 30, 1995 are
incorporated by reference in this Form 10-K: the Consolidated
Financial Statements and the report thereon of Price
Waterhouse LLP dated July 25, 1995, and Pages 28-45 of said
Annual Report, including Note 13, Page 43, which contains
unaudited quarterly financial information.
Item 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
ON ACCOUNTING AND FINANCIAL DISCLOSURE
Registrant has not changed its public accounting firm
within 24 months prior to June 30, 1995, the date of
Registrant's most recent financial statements.
-8-
<PAGE>
PART III
Item 10. DIRECTORS AND EXECUTIVE OFFICERS
OF THE REGISTRANT
(a) Identification and Background of Directors.
Registrant hereby incorporates by reference in this
Form 10-K Pages 2-4 of Registrant's Proxy Statement dated
September 13, 1995, in connection with its Annual Meeting of
Shareholders to be held on October 19, 1995.
(b) Identification of Executive Officers.
The following is a list of Registrant's executive
officers, their ages, and their positions and offices with
the Registrant, as of September 14, 1995.
<TABLE>
<CAPTION>
Name Age Present Positions and Year First Elected
<S> <C> <C>
Peter Barrett.......... 42 Vice President, Worldwide Sales and Service (1994)
David P. Binkley....... 42 Vice President, Analytical Instruments Division (1995)
Julianne A. Grace...... 57 Vice President (1986),Corporate Relations (1990)
Michael W. Hunkapiller. 46 Vice President, Applied Biosystems Division (1995)
Stephen O. Jaeger...... 51 Vice President, Finance and Chief Financial Officer (1995)
Joseph E. Malandrakis.. 49 Vice President, Worldwide Operations (1993)
John B. McBennett...... 57 Corporate Controller (1993)
Michael J. McPartland.. 46 Vice President, Human Resources (1993)
William B. Sawch....... 41 Vice President, General Counsel and Secretary (1993)
Rhonda L. Seegal....... 45 Vice President (1991), Treasurer (1988)
Tony L. White.......... 49 Chairman, President, and Chief Executive Officer (1995)
</TABLE>
Each of the foregoing named officers was either elected
at the last organizational meeting of the Board of Directors
held on October 20, 1994 or was elected by the Board since
that date. The term of each officer will expire on October
19, 1995, the date of the next scheduled organizational
meeting of the Board of Directors, unless renewed for
another year.
(c) Identification of Certain Significant Employees.
Not applicable.
(d) Family Relationships.
To the best of Registrant's knowledge and belief, there
is no family relationship between any of Registrant's
directors, executive officers, or persons nominated or
chosen by Registrant to become a director or an executive
officer.
(e) Business Experience.
With respect to the business experience of Registrant's
directors and persons nominated to become directors,
Registrant hereby incorporates by reference in this Report
on Form 10-K Pages 2-4 of Registrant's Proxy Statement
dated September 13, 1995, in connection with its Annual
Meeting of Shareholders to be held on October 19, 1995.
With respect to the executive officers of Registrant, each
such officer has been employed by Registrant or a subsidiary
in one or more executive or managerial capacities for at
least the past five years, with the exception of Dr.
-9-
<PAGE>
Hunkapiller, and Messrs. Jaeger, McPartland and White. Dr.
Hunkapiller was elected Vice President of Registrant on
September 15, 1994. Prior to his employment by Registrant
in February, 1993, Dr. Hunkapiller was employed by ABI as
Executive Vice President. Dr. Hunkapiller joined ABI in
1983 as a member of the Research and Development group and
was later appointed Vice President, Research and
Development. He also served as Vice President, Science and
Technology, and General Manager, DNA Business Unit. Mr.
Jaeger was elected Vice President of Registrant on March 16,
1995. Prior to his employment by Registrant in March, 1995,
Mr. Jaeger was employed by Houghton Mifflin and Company from
1987 to 1995, most recently as Executive Vice President,
Chief Financial Officer and Treasurer, and served on its
board of directors. Prior to joining Houghton Mifflin, he
served as Senior Vice President and Chief Financial Officer
of British Petroleum North America, Inc. from 1979 to 1987.
Mr. McPartland was elected Vice President of Registrant on
February 18, 1993. Prior to his employment by Registrant in
January, 1993, Mr. McPartland was employed by SmithKline
Beecham plc, from 1980 to 1993, most recently as Senior Vice
President and Director, Corporate Personnel. Mr. White was
elected Chairman, Chief Executive Officer and President of
Registrant on September 12, 1995. Prior to his employment
by Registrant, Mr. White was employed by Baxter
International, Inc. in various executive positions, most
recently as Executive Vice President.
(f) Involvement in Certain Legal Proceedings.
To the best of Registrant's knowledge and belief, none
of Registrant's directors, persons nominated to become
directors, or executive officers has been involved in any
proceedings during the past five years that are material to
an evaluation of the ability or integrity of such persons to
be directors or executive officers of Registrant.
(g) Compliance with Section 16(a) of the Securities
Exchange Act of 1934.
Information concerning compliance with Section 16(a) of
the Securities Exchange Act of 1934 is incorporated by
reference to Page 8 of Registrant's Proxy Statement dated
September 13, 1995, in connection with its Annual Meeting of
Shareholders to be held on October 19, 1995.
Item 11. EXECUTIVE COMPENSATION
Registrant hereby incorporates by reference in this
Form 10-K Pages 7-10 and 12-15 of Registrant's Proxy
Statement dated September 13, 1995, in connection with its
Annual Meeting of Shareholders to be held on October 19,
1995.
Item 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
(a) Security Ownership of Certain Beneficial Owners.
Registrant hereby incorporates by reference in this
Form 10-K Page 7 of Registrant's Proxy Statement dated
September 13, 1995, in connection with its Annual Meeting of
Shareholders to be held on October 19, 1995.
-10-
<PAGE>
(b) Security Ownership of Management.
Information concerning the security ownership of
management is hereby incorporated by reference to Pages 2-4
and 6-10 of Registrant's Proxy Statement dated September 13,
1995, in connection with its Annual Meeting of Shareholders
to be held on October 19, 1995.
(c) Changes in Control.
Registrant knows of no arrangements, including any
pledge by any person of securities of Registrant, the
operation of which may at a subsequent date result in a
change in control of Registrant.
Item 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
None.
-11-
<PAGE>
PART IV
Item 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES
AND REPORTS ON FORM 8-K
(a) 1. Financial Statements.
The following consolidated financial statements,
together with the report thereon of Price Waterhouse LLP
dated July 25, 1995, appearing on Pages 28 through 45 of
Registrant's Annual Report to Shareholders for the fiscal
year ended June 30, 1995, are incorporated by reference in
this Form 10-K. With the exception of the aforementioned
information and that which is specifically incorporated in
Parts I and II, the Annual Report to Shareholders for the
fiscal year ended June 30, 1995, is not to be deemed filed
as part of this report on Form 10-K.
10-K Annual
Page No. Report
Page No.
Consolidated Statements of
Operations - fiscal years
1995, 1994, and 1993 ................... -- 28
Consolidated Statements of
Financial Position - fiscal years
1995 and 1994........................... -- 29
Consolidated Statements of
Cash Flows - fiscal years
1995, 1994, and 1993 ................... -- 30
Consolidated Statements of
Shareholders' Equity - fiscal years
1995, 1994, and 1993................... -- 31
Notes to Consolidated Financial
Statements.............................. -- 32-43
Statement of Financial
Responsibility.......................... -- 44
Report of
Price Waterhouse LLP................... -- 45
-12-
<PAGE>
(a) 2. Financial Statement Schedules.
The following additional financial data should be read
in conjunction with the consolidated financial statements in
said Annual Report to Shareholders for the fiscal year ended
June 30, 1995. Schedules not included with this additional
financial data have been omitted because they are not
applicable or the required information is shown in the
consolidated financial statements or notes thereto.
Annual Report
10-K Page No. Page No.
Report of Independent Accountants
on Financial Statement Schedule.......... 18 --
Schedule II - Valuation and
Qualifying Accounts and Reserves......... 19 --
-13-
<PAGE>
(a) 3. Exhibits.
Exhibit
No.
2(1) Acquisition Agreement dated July 19, 1991, among the
Corporation, Hoffmann-LaRoche Inc., and Roche Probe,
Inc. (Incorporated by reference to Exhibit 1 to
Current Report on Form 8-K of the Corporation dated
July 19, 1991 (Commission file number 1-4389).)
2(2) Acquisition Agreement dated July 19, 1991, between
the Corporation and F. Hoffmann-La Roche Ltd.
(Incorporated by reference to Exhibit 2 to Current
Report on Form 8-K of the Corporation dated July 19,
1991 (Commission file number 1-4389)).
2(3) Agreement and Plan of Merger, by and among
Registrant, Sequence Acquisition Company and Applied
Biosystems, Inc. dated as of October 6, 1992.
(Incorporated by reference to Exhibit 2 to Current
Report on Form 8-K of the Corporation dated October
6, 1992 (Commission file number 1-4389).)
2(4) Agreement dated April 18, 1994 between Sulzer Inc.
and The Perkin-Elmer Corporation, as amended through
August 31, 1994. (Incorporated by reference to
Exhibit 2(4) to Annual Report on Form 10-K of the
Corporation for fiscal year ended June 30, 1994
(Commission file number 1-4389).)
3(i) Restated Certificate of the Corporation as amended
through July 1, 1994. (Incorporated by reference to
Exhibit 3(I) to Annual Report on Form 10-K of the
Corporation for fiscal year ended June 30, 1994
(Commission file number 1-4389).)
3(ii) Amended and Restated By-laws of the Corporation, as
amended through July 15, 1993. (Incorporated by
reference to Exhibit 3(ii) to Annual Report on Form
10-K of the Corporation for fiscal year ended June
30, 1993 (Commission file number 1-4389).)
4(1) Three Year Credit Agreement dated June 1, 1994, among
Morgan Guaranty Trust Company, certain banks named in
such Agreement, and the Corporation, as amended July
20, 1995.
4(2) Shareholder Protection Rights Agreement dated April
30, 1989, between The Perkin-Elmer Corporation and
The First National Bank of Boston. (Incorporated by
reference to Exhibit 4 to Current Report on Form 8-K
of the Corporation dated April 20, 1989 (Commission
file number 1-4389).)
10(1) The Perkin-Elmer Corporation 1984 Stock Option Plan
for Key Employees, as amended through May 21, 1987.
(Incorporated by reference to Exhibit 28(c) to Post
Effective Amendment No. 1 to the Corporation's
Registration Statement on Form S-8 (No. 2-95451).)
10(2) The Perkin-Elmer Corporation 1988 Stock Incentive
Plan for Key Employees. (Incorporated by reference
to Exhibit 10(4) to Annual Report on Form 10-K of the
Corporation for the fiscal year ended July 31, 1988
(Commission file number 1-4389).)
10(3) The Perkin-Elmer Corporation 1993 Stock Incentive
Plan for Key Employees. (Incorporated by reference
to Exhibit 99 to the Corporation's Registration
Statement on Form S-8 (No. 33-50847).)
10(4) Contingent Compensation Plan for Key Employees of The
Perkin-Elmer Corporation, as amended through August
1, 1990. (Incorporated by reference to Exhibit 10(5)
to Annual Report on Form 10-K of the Corporation for
the fiscal year ended July 31, 1992 (Commission file
number 1-4389).)
10(5) The Perkin-Elmer Corporation Supplemental Retirement
Plan as amended through August 1, 1991. (Incorporated
by reference to Exhibit 10(6) to Annual Report on
Form 10-K of the Corporation for the fiscal year
ended July 31, 1991 (Commission file number 1-4389).)
10(6) Deferred Compensation Contract dated July 29, 1974,
as amended through January 20, 1994, between
Registrant and Gaynor N. Kelley. (Incorporated by
reference to Exhibit 10(8) to Annual Report on Form
10-K of the Corporation for the fiscal year ended
June 30, 1994 (Commission file number 1-4389).)
10(7) Deferred Compensation Contract dated September 15,
1994, between Registrant and Michael W. Hunkapiller.
10(8) Deferred Compensation Contract dated February 18,
1993, between Registrant and Michael J. McPartland.
10(9) Deferred Compensation Contract dated September 15,
1994, between Registrant and Peter Barrett.
10(10) Deferred Compensation Contract dated January 21,
1993, between Registrant and Joseph E. Malandrakis.
(Incorporated by reference to Exhibit 10(11) to
Annual Report on Form 10-K of the Corporation for the
fiscal year ended June 30, 1993 (Commission file
number 1-4389).)
-14-
<PAGE>
10(11) Employment Agreement dated November 21, 1991, between
Registrant and Gaynor N. Kelley. (Incorporated by
reference to Exhibit 10(1) to Quarterly Report on
Form 10-Q of the Corporation for the fiscal quarter
ended January 31, 1992 (Commission file number 1-
4389).)
10(12) Employment Agreement dated September 15, 1994,
between Registrant and Michael W. Hunkapiller.
10(13) Employment Agreement dated September 15, 1994,
between Registrant and Peter Barrett.
10(14) Employment Agreement dated February 18, 1993, between
Registrant and Michael J. McPartland.
10(15) Employment Agreement dated November 21, 1991, between
Registrant and Joseph E. Malandrakis. (Incorporated
by reference to Exhibit 10(16) to Annual Report on
Form 10-K of the Corporation for the fiscal year
ended June 30, 1993 Commission file number 1-4389).)
10(16) Change of Control Agreement dated September 12, 1995,
between Registrant and Tony L. White.
10(17) Consulting Agreement dated April 1, 1995, between
Registrant and Robert H. Hayes.
10(18) The Excess Benefit Plan of The Perkin-Elmer
Corporation dated August 1, 1984 as amended through
June 30, 1993. (Incorporated by reference to Exhibit
10(18) to Annual Report on Form 10-K of the
Corporation for the fiscal year ended June 30, 1993
(Commission file number 1-4389).)
10(19) 1993 Director Stock Purchase and Deferred
Compensation Plan. (Incorporated by reference to
Exhibit 99 to the Corporation's Registration
Statement on Form S-8 (No. 33-50849).)
10(20) Agreement dated May 5, 1995, between Registrant and
Riccardo Pigliucci.
10(21) Employment Agreement dated September 12, 1995,
between Registrant and Tony L. White.
11 Computation of Net Income (Loss) per Share for the
five years ended June 30, 1995.
13 Annual Report to Shareholders for 1995.
21 List of Subsidiaries.
23 Consent of Price Waterhouse LLP.
27 Financial Data Schedule.
Note: None of the Exhibits listed in Item 14(a) 3 above,
except Exhibits 11 and 23 are included with this Form 10-K
Annual Report. Registrant will furnish a copy of any such
Exhibit upon written request to the Secretary at the address
on the cover of this Form 10-K Annual Report accompanied by
payment of $3 for each Exhibit requested.
(b) Reports on Form 8-K.
Registrant did not file a report on Form 8-K during the
last quarter of the period covered by this report.
-15-
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of
the Securities Exchange Act of 1934, Registrant has duly
caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
THE PERKIN-ELMER CORPORATION
By /s/ W. B. Sawch
William B. Sawch
Vice President, General Counsel
and Secretary
Date: September 21, 1995
Pursuant to the requirements of the Securities Exchange
Act of 1934, this report has been signed below by the
following persons on behalf of Registrant and in the
capacities and on the dates indicated.
/s/ Tony L. White September 21, 1995
Tony L. White
Chairman of the Board of Directors, President
and Chief Executive Officer
(Principal Executive Officer)
/s/ Stephen O. Jaeger September 21, 1995
Stephen O. Jaeger
Vice President, Finance, Chief Financial Officer
(Principal Financial Officer)
/s/ John B. McBennett September 21, 1995
John B. McBennett
Corporate Controller
(Principal Accounting Officer)
/s/ Joseph F. Abely, Jr. September 21, 1995
Joseph F. Abely, Jr.
Director
-16-
<PAGE>
/s/ Richard H. Ayers September 21, 1995
Richard H. Ayers
Director
/s/ Jean-Luc Belingard September 21, 1995
Jean-Luc Belingard
Director
/s/ Robert H. Hayes September 21, 1995
Robert H. Hayes
Director
/s/ G. N. Kelley September 21, 1995
Gaynor N. Kelley
Director
/s/ Donald R. Melville September 21, 1995
Donald R. Melville
Director
/s/ Burnell R. Roberts September 21, 1995
Burnell R. Roberts
Director
/s/ John S. Scott September 21, 1995
John S. Scott
Director
/s/ Carolyn W. Slayman September 21, 1995
Carolyn W. Slayman
Director
/s/ Orin R. Smith September 21, 1995
Orin R. Smith
Director
/s/ Richard F. Tucker September 21, 1995
Richard F. Tucker
Director
-17-
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS ON
FINANCIAL STATEMENT SCHEDULE
To the Board of Directors
of The Perkin-Elmer Corporation
Our audits of the consolidated financial statements
referred to in our report dated July 25, 1995, appearing on
Page 45 of the 1995 Annual Report to Shareholders of The
Perkin-Elmer Corporation (which report and consolidated
financial statements are incorporated by reference in this
Annual Report on Form 10-K) also included an audit of the
Financial Statement Schedule listed in Item 14(a)2 of this
Form 10-K. Based upon our audits, the Financial Statement
Schedule presents fairly, in all material respects, the
information set forth therein when read in conjunction with
the related consolidated financial statements.
PRICE WATERHOUSE LLP
Stamford, Connecticut
July 25, 1995
-18-
<PAGE>
THE PERKIN-ELMER CORPORATION
VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
FOR THE FISCAL YEARS ENDED JUNE 30, 1995, 1994 AND 1993
(Amounts in thousands)
ALLOWANCE FOR
DOUBTFUL ACCOUNTS
Balance at July 31, 1992 .................... $ 7,758
Charged to income in fiscal year 1993........ 4,229
Deductions from reserve in fiscal year 1993.. (3,761)
Balance at June 30, 1993...................... 8,226
Charged to income in fiscal year 1994......... 2,927
Deductions from reserve in fiscal year 1994... (3,906)
Balance at June 30,1994 ...................... 7,247 (1)
Charged to income in fiscal year 1995........ 2,086
Deductions from reserve in fiscal year 1995... (384)
Balance at June 30, 1995...................... $ 8,949 (1)
(1) Deducted in the Consolidated Statements of Financial
Position from accounts receivable.
SCHEDULE II
-19-
<PAGE>
THE PERKIN-ELMER CORPORATION
COMPUTATION OF NET INCOME (LOSS) PER SHARE
(Dollar amounts in thousands, except per share amounts)
<TABLE>
<CAPTION>
June 30, June 30, June 30, July 31, July 31,
1995 1994 1993 1992 1991
<S> <C> <C> <C> <C> <C>
Weighted average number of common shares 42,129 43,857 43,780 43,526 42,091
Common stock equivalents - stock options 515 816 1,173 1,169
Weighted average number of common shares used in
calculating primary earnings per share 42,644 44,673 44,953 44,695 42,091
Additional dilutive stock options under paragraph #42 APB #15 120 172 97 280
Shares used in calculating
earnings per share - fully diluted basis 42,764 44,845 45,050 44,975 42,091
Calculation of primary and
fully diluted earnings per share:
PRIMARY AND FULLY DILUTED:
Income (loss) from continuing operations $ 66,877 $ 73,978 $ 24,444 $ 24,296 $ (16,384)
Income (loss) from discontinued operations (22,851) 1,714 10,941 (2,020)
Income (loss) before cumulative effect of accounting changes $ 66,877 $ 51,127 $ 26,158 $ 35,237 $ (18,404)
Cumulative effect of accounting changes (83,098)
Net income (loss) used in the calculation of primary
and fully diluted earnings per share $ 66,877 $ 51,127 $ (56,940) $ 35,237 $ (18,404)
PRIMARY:
Per share amounts:
Income (loss) from continuing operations $ 1.57 $ 1.66 $ .54 $ .54 $ (.39)
Income (loss)from discontinued operations (.52) .04 .25 (.05)
Income (loss) before cumulative effect of accounting changes 1.57 1.14 $ .58 $ .79 $ (.44)
Loss from cumulative effect of accounting changes (1.85)
Net income (loss) $ 1.57 $ 1.14 $ (1.27) $ .79 $ (.44)
FULLY DILUTED:
Per share amounts:
Income (loss) from continuing operations $ 1.56 $ 1.65 $ .54 $ .54 $ (.39)
Income (loss) from discontinued operations (.51) .04 .24 (.05)
Income (loss) before cumulative effect of accounting changes 1.56 1.14 .58 .78 (.44)
Loss from cumulative effect of accounting changes (1.84)
Net income (loss) $ 1.56 $ 1.14 $ (1.26) $ .78 $ (.44)
</TABLE>
EXHIBIT 11
-20-
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in
the Prospectuses constituting part of the Registration
Statements on Form S-8 (Nos. 2-95451, 33-25218, 33-44191, 33-
50847, 33-50849, and 33-58778) of The Perkin-Elmer
Corporation of our report dated July 25, 1995, appearing on
page 45 of the Annual Report to Shareholders for 1995 of The
Perkin-Elmer Corporation which is incorporated in this
Annual Report on Form 10-K. We also consent to the
incorporation by reference of our report on the Financial
Statement Schedule, which appears on page 18 of this Form 10-K.
PRICE WATERHOUSE LLP
Stamford, Connecticut
September 26, 1995
EXHIBIT 23
-21-
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-4
<SEQUENCE>2
<DESCRIPTION>EXHIBIT 4(1) 3 YEAR CREDIT AGREEMENT
<TEXT>
[CONFORMED COPY]
$100,000,000
THREE-YEAR
CREDIT AGREEMENT
dated as of
June 1, 1994
among
THE PERKIN-ELMER CORPORATION
The Banks Listed Herein
and
Morgan Guaranty Trust Company of New York,
as Agent
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. . . . . . . . . . . . . . . 1
1.02 Accounting Terms and Determinations. . . 13
1.03 Types of Borrowings. . . . . . . . . . . 13
ARTICLE II
THE CREDITS
SECTION 2.01 Commitments to Lend. . . . . . . . . . . 13
2.02 Notice of Committed Borrowing. . . . . . 14
2.03 Money Market Borrowings. . . . . . . . . 14
2.04 Notice to Banks; Funding of Loans. . . . 18
2.05 Notes. . . . . . . . . . . . . . . . . . 19
2.06 Maturity of Loans. . . . . . . . . . . . 20
2.07 Interest Rates . . . . . . . . . . . . . 20
2.08 Fees . . . . . . . . . . . . . . . . . . 24
2.09 Optional Termination or
Reduction of Commitments . . . . . . . . 25
2.10 Scheduled Termination
of Commitments . . . . . . . . . . . . . 25
2.11 Optional Prepayments . . . . . . . . . . 25
2.12 General Provisions as to Payments. . . . 26
2.13 Funding Losses . . . . . . . . . . . . . 27
2.14 Computation of Interest and Fees . . . . 27
ARTICLE III
CONDITIONS
SECTION 3.01 Effectiveness. . . . . . . . . . . . . . 27
3.02 Borrowings . . . . . . . . . . . . . . . 28
<PAGE>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Corporate Existence and Power. . . . . . 29
4.02 Corporate and Governmental
Authorization; No Contravention. . . . . 29
4.03 Binding Effect . . . . . . . . . . . . . 30
4.04 Financial Information. . . . . . . . . . 30
4.05 Litigation.. . . . . . . . . . . . . . . 30
4.06 Compliance with ERISA. . . . . . . . . . 31
4.07 Environmental Matters. . . . . . . . . . 31
4.08 Taxes. . . . . . . . . . . . . . . . . . 31
4.09 Subsidiaries.. . . . . . . . . . . . . . 32
4.10 Not an Investment Company. . . . . . . . 32
4.11 Full Disclosure. . . . . . . . . . . . . 32
ARTICLE V
COVENANTS
SECTION 5.01 Information. . . . . . . . . . . . . . . 32
5.02 Payment of Obligations . . . . . . . . . 35
5.03 Maintenance of Property; Insurance . . . 35
5.04 Conduct of Business and
Maintenance of Existence . . . . . . . . 35
5.05 Compliance with Laws.. . . . . . . . . . 36
5.06 Inspection of Property,
Books and Records. . . . . . . . . . . . 36
5.07 Minimum Consolidated
Net Worth. . . . . . . . . . . . . . . . 36
5.08 Negative Pledge. . . . . . . . . . . . . 36
5.09 Consolidations, Mergers and
Sales of Assets. . . . . . . . . . . . . 37
5.10 Use of Proceeds. . . . . . . . . . . . . 37
5.11 Interest Coverage. . . . . . . . . . . . 38
ARTICLE VI
DEFAULTS
SECTION 6.01 Events of Default. . . . . . . . . . . . 38
6.02 Notice of Default. . . . . . . . . . . . 40
<PAGE>
ARTICLE VII
THE AGENT
SECTION 7.01 Appointment and Authorization. . . . . . 41
7.02 Agent and Affiliates.. . . . . . . . . . 41
7.03 Action by Agent. . . . . . . . . . . . . 41
7.04 Consultation with Experts. . . . . . . . 41
7.05 Liability of Agent . . . . . . . . . . . 41
7.06 Indemnification. . . . . . . . . . . . . 42
7.07 Credit Decision. . . . . . . . . . . . . 42
7.08 Successor Agent. . . . . . . . . . . . . 42
7.09 Agent's Fee. . . . . . . . . . . . . . . 43
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01 Basis for Determining Interest
Rate Inadequate or Unfair. . . . . . . . 43
8.02 Illegality . . . . . . . . . . . . . . . 44
8.03 Increased Cost and Reduced Return. . . . 44
8.04 Taxes. . . . . . . . . . . . . . . . . . 46
8.05 Base Rate Loans Substituted for
Affected Fixed Rate Loans. . . . . . . . 48
8.06 Substitution of Bank . . . . . . . . . . 48
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Notices. . . . . . . . . . . . . . . . . 49
9.02 No Waivers . . . . . . . . . . . . . . . 49
9.03 Expenses; Indemnification. . . . . . . . 49
9.04 Sharing of Set-Offs. . . . . . . . . . . 50
9.05 Amendments and Waivers . . . . . . . . . 50
9.06 Successors and Assigns . . . . . . . . . 51
9.07 Collateral . . . . . . . . . . . . . . . 53
9.08 Governing Law; Submission to Juris-
diction . . . . . . . . . . . . . . . . 53
9.09 Counterparts; Integration. . . . . . . . 53
9.10 WAIVER OF JURY TRIAL . . . . . . . . . . 53
<PAGE>
Pricing Schedule
Exhibit A - Note
Exhibit B - Form of Money Market Quote Request
Exhibit C - Form of Invitation for Money Market Quotes
Exhibit D - Form of Money Market Quote
Exhibit E - Opinion of Counsel for the Borrower
Exhibit F - Opinion of Davis Polk & Wardwell Special
Counsel for the Agent
Exhibit G - Assignment and Assumption Agreement
<PAGE>
THREE-YEAR CREDIT AGREEMENT
AGREEMENT dated as of June 1, 1994 among THE
PERKIN-ELMER CORPORATION, the BANKS listed on the signature
pages hereof and MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms,
as used herein, have the following meanings:
"Absolute Rate Auction" means a solicitation of
Money Market Quotes setting forth Money Market Absolute
Rates pursuant to Section 2.03.
"Adjusted CD Rate" has the meaning set forth in
Section 2.07(b).
-1-
<PAGE>
"Adjusted London Interbank Offered Rate" has the
meaning set forth in Section 2.07(c).
-2-
<PAGE>
"Administrative Questionnaire" means, with respect
to each Bank, an administrative questionnaire in the form
prepared by the Agent and submitted to the Agent (with a
copy to the Borrower) duly completed by such Bank.
"Agent" means Morgan Guaranty Trust Company of New
York in its capacity as agent for the Banks hereunder, and
its successors in such capacity.
"Applicable Lending Office" means, with respect to
any Bank, (i) in the case of its Domestic Loans, its
Domestic Lending Office, (ii) in the case of its Euro-Dollar
Loans, its Euro-Dollar Lending Office and (iii) in the case
of its Money Market Loans, its Money Market Lending Office.
"Assessment Rate" has the meaning set forth in
Section 2.07(b).
"Assignee" has the meaning set forth in Section
9.06(c).
"Bank" means each bank listed on the signature
pages hereof, each Assignee which becomes a Bank pursuant to
Section 9.06(c), and their respective successors.
"Base Rate" means, for any day, a rate per annum
equal to the higher of (i) the Prime Rate for such day and
(ii) the sum of 1/2 of 1% plus the Federal Funds Rate for
such day.
"Base Rate Loan" means a Committed Loan to be made
by a Bank as a Base Rate Loan in accordance with the
applicable Notice of Committed Borrowing or pursuant to
Article VIII.
"Benefit Arrangement" means at any time an
employee benefit plan within the meaning of Section 3(3) of
ERISA which is not a Plan or a Multiemployer Plan and which
is maintained or otherwise contributed to by any member of
the ERISA Group.
"Borrower" means The Perkin-Elmer Corporation, a
New York corporation, and its successors.
"Borrower's 1993 Form 10-K" means the Borrower's
annual report on Form 10-K for the transition period from
August 1, 1992 through June 30, 1993, as filed with the
Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934.
"Borrower's Latest Form 10-Q" means the Borrower's
quarterly report on Form 10-Q for the quarter ended March
31, 1994 as filed with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934.
"Borrowing" has the meaning set forth in Section
1.03.
"CD Base Rate" has the meaning set forth in
Section 2.07(b).
"CD Loan" means a Committed Loan to be made by a
Bank as a CD Loan in accordance with the applicable Notice
of Committed Borrowing.
"CD Margin" has the meaning set forth in Section
2.07(b).
"CD Reference Banks" means Citibank, N.A., Credit
Suisse and Morgan Guaranty Trust Company of New York.
"Commitment" means, with respect to each Bank, the
amount set forth opposite the name of such Bank on the
signature pages hereof, as such amount may be reduced from
time to time pursuant to Sections 2.09 and 2.10.
"Committed Loan" means a loan made by a Bank
pursuant to Section 2.01.
"Consolidated EBIT" means, for any period, the sum
(without duplication) of (i) the net operating income of the
Borrower for such period plus (ii) interest income of the
Borrower for such period, determined in each case on a
consolidated basis for the Borrower and its Consolidated
Subsidiaries.
"Consolidated Interest Expense" means, for any
period, the Interest Expense of the Borrower and its
Consolidated Subsidiaries determined on a consolidated basis
for such period.
"Consolidated Subsidiary" means at any date any
Subsidiary or other entity the accounts of which would be
consolidated with those of the Borrower in its consolidated
financial statements if such statements were prepared as of
such date.
"Consolidated Net Worth" means at any date the
consolidated stockholders' equity of the Borrower and its
Consolidated Subsidiaries, determined as of such date.
"Debt" of any Person means at any date, without
duplication, (i) all obligations of such Person for borrowed
money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase
price of property or services, except trade accounts payable
arising in the ordinary course of business, (iv) all
obligations of such Person as lessee which are capitalized
in accordance with generally accepted accounting principles,
(v) all non-contingent obligations (and, for purposes of
Section 5.08 and the definitions of Material Debt and
Material Financial Obligations, all contingent obligations)
of such Person to reimburse any bank or other Person in
respect of amounts paid under a letter of credit or similar
instrument, (vi) all Debt secured by a Lien on any asset of
such Person, whether or not such Debt is otherwise an
obligation of such Person, and (vii) all Debt of others
Guaranteed by such Person.
-3-
<PAGE>
"Default" means any condition or event which
constitutes an Event of Default or which with the giving of
notice or lapse of time or both would, unless cured or
waived, become an Event of Default.
"Derivatives Obligations" of any Person means all
obligations of such Person in respect of any rate swap
transaction, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity
or equity index option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any
other similar transaction (including any option with respect
to any of the foregoing transactions) or any combination of
the foregoing transactions.
"Domestic Business Day" means any day except a
Saturday, Sunday or other day on which commercial banks in
New York City are authorized by law to close.
"Domestic Lending Office" means, as to each Bank,
its office located at its address set forth in its
Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office)
or such other office as such Bank may hereafter designate as
its Domestic Lending Office by notice to the Borrower and
the Agent; provided that any Bank may so designate separate
Domestic Lending Offices for its Base Rate Loans, on the one
hand, and its CD Loans, on the other hand, in which case all
references herein to the Domestic Lending Office of such
Bank shall be deemed to refer to either or both of such
offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate
Loans or both.
"Domestic Reserve Percentage" has the meaning set
forth in Section 2.07(b).
"Effective Date" means the date this Agreement
becomes effective in accordance with Section 3.01.
"Environmental Laws" means any and all federal,
state, local and foreign statutes, laws, judicial decisions,
regulations, ordinances, rules, judgments, orders, decrees,
plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental
restrictions relating to the environment, the effect of the
environment on human health or to emissions, discharges or
-4-
<PAGE>
releases of pollutants, contaminants, Hazardous Substances
or wastes into the environment including, without
limitation, ambient air, surface water, ground water, or
land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport
or handling of pollutants, contaminants, Hazardous
Substances or wastes or the clean-up or other remediation
thereof.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary
and all members of a controlled group of corporations and
all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section
414 of the Internal Revenue Code.
"Euro-Dollar Business Day" means any Domestic
Business Day on which commercial banks are open for
international business (including dealings in dollar
deposits) in London.
"Euro-Dollar Lending Office" means, as to
each Bank, its office, branch or affiliate located at
its address set forth in its Administrative Questionnaire
(or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or
affiliate of such Bank as it may hereafter designate as its
Euro-Dollar Lending Office by notice to the Borrower and the
Agent.
"Euro-Dollar Loan" means a Committed Loan to be
made by a Bank as a Euro-Dollar Loan in accordance with the
applicable Notice of Committed Borrowing.
"Euro-Dollar Margin" has the meaning set forth in
Section 2.07(c).
"Euro-Dollar Reference Banks" means the principal
London offices of Citibank, N.A., Credit Suisse and Morgan
Guaranty Trust Company of New York.
"Euro-Dollar Reserve Percentage" has the meaning
set forth in Section 2.07(c).
"Event of Default" has the meaning set forth in
Section 6.01.
-5-
<PAGE>
"Existing Credit Agreement" means the Credit
Agreement dated as of June 7, 1991 among the Borrower, the
lenders parties thereto and Bankers Trust Company, as agent,
as amended to the Effective Date.
"Federal Funds Rate" means, for any day, the rate
per annum (rounded upward, if necessary, to the nearest
1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New
York on the Domestic Business Day next succeeding such day,
provided that (i) if such day is not a Domestic Business
Day, the Federal Funds Rate for such day shall be such rate
on such transactions on the next preceding Domestic Business
Day as so published on the next succeeding Domestic Business
Day, and (ii) if no such rate is so published on such next
succeeding Domestic Business Day, the Federal Funds Rate for
such day shall be the average rate quoted to Morgan Guaranty
Trust Company of New York on such day on such transactions
as determined by the Agent.
"Fixed Rate Loans" means CD Loans or Euro-Dollar
Loans or Money Market Loans (excluding Money Market LIBOR
Loans bearing interest at the Base Rate pursuant to Section
8.01(a)) or any combination of the foregoing.
"Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person directly or
indirectly guaranteeing any Debt of any other Person and,
without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt (whether
arising by virtue of partnership arrangements, by agreement
to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the holder of such
Debt of the payment thereof or to protect such holder
against loss in respect thereof (in whole or in part),
provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary
course of business. The term "Guarantee" used as a verb has
a corresponding meaning.
"Hazardous Substances" means any toxic,
radioactive, caustic or otherwise hazardous substance,
including petroleum, its derivatives, by-products and other
hydrocarbons, or any substance having any constituent
elements displaying any of the foregoing characteristics.
-6-
<PAGE>
"Indemnitee" has the meaning set forth in Section
9.03(b).
"Interest Coverage Ratio" means, for any period,
the ratio of Consolidated EBIT for such period to
Consolidated Interest Expense for such period.
"Interest Expense" means, with respect to any
Person, for any period, the sum, for such Person and its
Consolidated Subsidiaries determined on a consolidated basis
(without duplication), of all interest on Debt and
Derivatives Obligations (including, without limitation,
imputed interest on capital lease obligations).
"Interest Period" means: (1) with respect to each
Euro-Dollar Borrowing, the period commencing on the date of
such Borrowing and ending one, two, three or six months
thereafter, as the Borrower may elect in the applicable
Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall,
subject to clause (c) below, be extended to the next
succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar
month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a
day for which there is no numerically corresponding day
in the calendar month at the end of such Interest
Period) shall, subject to clause (c) below, end on the
last Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
(2) with respect to each CD Borrowing, the period
commencing on the date of such Borrowing and ending 30, 60,
90 or 180 days thereafter, as the Borrower may elect in the
applicable Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall,
subject to clause (b) below, be extended to the next
succeeding Euro-Dollar Business Day; and
-7-
<PAGE>
(b) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
(3) with respect to each Base Rate Borrowing, the period
commencing on the date of such Borrowing and ending 30 days
thereafter; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall,
subject to clause (b) below, be extended to the next
succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
(4) with respect to each Money Market LIBOR Borrowing, the
period commencing on the date of such Borrowing and ending
such whole number of months thereafter as the Borrower may
elect in accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall,
subject to clause (c) below, be extended to the next
succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar
month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a
day for which there is no numerically corresponding day
in the calendar month at the end of such Interest
Period) shall, subject to clause (c) below, end on the
last Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
(5) with respect to each Money Market Absolute Rate
Borrowing, the period commencing on the date of such
Borrowing and ending such number of days thereafter (but not
less than 14 days) as the Borrower may elect in accordance
with Section 2.03; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall,
subject to clause (b) below, be extended to the next
succeeding Euro-Dollar Business Day; and
-8-
<PAGE>
(b) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
"Internal Revenue Code" means the Internal Revenue
Code of 1986, as amended, or any successor statute.
"Leverage Ratio" means, at any date, the ratio of
Total Borrowed Funds at such date to Total Capitalization at
such date.
"LIBOR Auction" means a solicitation of Money
Market Quotes setting forth Money Market Margins based on
the London Interbank Offered Rate pursuant to Section 2.03.
"Lien" means, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or
encumbrance of any kind, or any other type of preferential
arrangement that has the practical effect of creating a
security interest, in respect of such asset. For the
purposes of this Agreement, the Borrower or any Subsidiary
shall be deemed to own subject to a Lien any asset which it
has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease
or other title retention agreement relating to such asset.
"Loan" means a Domestic Loan or a Euro-Dollar Loan
or a Money Market Loan and "Loans" means Domestic Loans or
Euro-Dollar Loans or Money Market Loans or any combination
of the foregoing.
"London Interbank Offered Rate" has the meaning
set forth in Section 2.07(c).
"Material Debt" means Debt (other than the Notes)
of the Borrower and/or one or more of its Subsidiaries,
arising in one or more related or unrelated transactions, in
an aggregate principal or face amount exceeding $15,000,000.
"Material Financial Obligations" means (i)
Material Debt or (ii) net payment obligations in respect of
Derivatives Obligations of the Borrower and/or one or more
of its Subsidiaries, arising in one or more related or
unrelated transactions, in an aggregate amount exceeding
$25,000,000.
"Material Plan" means at any time a Plan or Plans
having aggregate Unfunded Liabilities in excess of
$5,000,000.
-9-
<PAGE>
"Money Market Absolute Rate" has the meaning set
forth in Section 2.03(d).
"Money Market Absolute Rate Loan" means a loan to
be made by a Bank pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each
Bank, its Domestic Lending Office or such other office,
branch or affiliate of such Bank as it may hereafter
designate as its Money Market Lending Office by notice to
the Borrower and the Agent; provided that any Bank may from
time to time by notice to the Borrower and the Agent
designate separate Money Market Lending Offices for its
Money Market LIBOR Loans, on the one hand, and its Money
Market Absolute Rate Loans, on the other hand, in which case
all references herein to the Money Market Lending Office of
such Bank shall be deemed to refer to either or both of such
offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made
by a Bank pursuant to a LIBOR Auction (including such a loan
bearing interest at the Base Rate pursuant to Section
8.01(a)).
"Money Market Loan" means a Money Market LIBOR
Loan or a Money Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in
Section 2.03(d).
"Money Market Quote" means an offer by a Bank to
make a Money Market Loan in accordance with Section 2.03.
"Multiemployer Plan" means at any time an employee
pension benefit plan within the meaning of Section
4001(a)(3) of ERISA to which any member of the ERISA Group
is then making or accruing an obligation to make
contributions or has within the preceding five plan years
made contributions, including for these purposes any Person
which ceased to be a member of the ERISA Group during such
five year period.
"Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A hereto, evidencing
the obligation of the Borrower to repay the Loans, and
"Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" means a Notice of Committed
Borrowing (as defined in Section 2.02) or a Notice of Money
Market Borrowing (as defined in Section 2.03(f)).
-10-
<PAGE>
"Parent" means, with respect to any Bank, any
Person controlling such Bank.
"Participant" has the meaning set forth in Section
9.06(b).
"PBGC" means the Pension Benefit Guaranty
Corporation or any entity succeeding to any or all of its
functions under ERISA.
"Person" means an individual, a corporation, a
partnership, an association, a trust or any other entity or
organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension
benefit plan (other than a Multiemployer Plan) which is
covered by Title IV of ERISA or subject to the minimum
funding standards under Section 412 of the Internal Revenue
Code and either (i) is maintained, or contributed to, by any
member of the ERISA Group for employees of any member of the
ERISA Group or (ii) has at any time within the preceding
five years been maintained, or contributed to, by any Person
which was at such time a member of the ERISA Group for
employees of any Person which was at such time a member of
the ERISA Group.
"Pricing Schedule" means the Schedule attached
hereto identified as such.
"Prime Rate" means the rate of interest publicly
announced by Morgan Guaranty Trust Company of New York in
New York City from time to time as its Prime Rate.
"Reference Banks" means the CD Reference Banks or
the Euro-Dollar Reference Banks, as the context may require,
and "Reference Bank" means any one of such Reference Banks.
"Refunding Borrowing" means a Committed Borrowing
which, after application of the proceeds thereof, results in
no net increase in the outstanding principal amount of
Committed Loans made by any Bank.
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System, as in effect from
time to time.
"Required Banks" means at any time Banks having at
least 66 2/3% of the aggregate amount of the Commitments or,
if the Commitments shall have been terminated, holding Notes
-11-
<PAGE>
evidencing at least 66 2/3% of the aggregate unpaid
principal amount of the Loans.
"Revolving Credit Period" means the period from
and including the Effective Date to but excluding the
Termination Date.
"Significant Subsidiary" has the meaning set forth
in Regulation S-X promulgated by the Securities and Exchange
Commission, as in effect on the date hereof.
"Subsidiary" means, as to any Person, any
corporation or other entity of which securities or other
ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons
performing similar functions are at the time directly or
indirectly owned by such Person; unless otherwise specified,
"Subsidiary" means a Subsidiary of the Borrower.
"Termination Date" means May 30, 1997, or, if such
day is not a Euro-Dollar Business Day, the next preceding
Euro-Dollar Business Day.
"Total Borrowed Funds" means, at any date, the
aggregate amount which would appear under the captions
"Loans Payable" and "Long-Term Debt" on a consolidated
balance sheet of the Borrower and its Consolidated
Subsidiaries prepared in accordance with generally accepted
accounting principles as of such date.
"Total Capitalization" means, at any date, the sum
of Total Borrowed Funds at such date plus Consolidated Net
Worth at such date.
"Unfunded Liabilities" means, with respect to any
Plan at any time, the amount (if any) by which (i) the value
of all benefit liabilities under such Plan, determined on a
plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii)
the fair market value of all Plan assets allocable to such
liabilities under Title IV of ERISA (excluding any accrued
but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the
extent that such excess represents a potential liability of
a member of the ERISA Group to the PBGC or any other Person
under Title IV of ERISA.
"United States" means the United States of
America, including the States and the District of Columbia,
but excluding its territories and possessions.
-12-
<PAGE>
SECTION 1.02. Accounting Terms and
Determinations. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder
shall be prepared in accordance with generally accepted
accounting principles as in effect from time to time,
applied on a basis consistent (except for changes concurred
in by the Borrower's independent public accountants) with
the most recent audited consolidated financial statements of
the Borrower and its Consolidated Subsidiaries delivered to
the Banks; provided that, if the Borrower notifies the Agent
that the Borrower wishes to amend any covenant in Article V
to eliminate the effect of any change in generally accepted
accounting principles on the operation of such covenant (or
if the Agent notifies the Borrower that the Required Banks
wish to amend Article V for such purpose), then the
Borrower's compliance with such covenant shall be determined
on the basis of generally accepted accounting principles in
effect immediately before the relevant change in generally
accepted accounting principles became effective, until
either such notice is withdrawn or such covenant is amended
in a manner satisfactory to the Borrower and the Required
Banks.
SECTION 1.03. Types of Borrowings. The term
"Borrowing" denotes the aggregation of Loans of one or more
Banks to be made to the Borrower pursuant to Article II on a
single date and for a single Interest Period. Borrowings
are classified for purposes of this Agreement either by
reference to the pricing of Loans comprising such Borrowing
(e.g., a "Euro-Dollar Borrowing" is a Borrowing comprised of
Euro-Dollar Loans) or by reference to the provisions of
Article II under which participation therein is determined
(i.e., a "Committed Borrowing" is a Borrowing under Section
2.01 in which all Banks participate in proportion to their
Commitments, while a "Money Market Borrowing" is a Borrowing
under Section 2.03 in which the Bank participants are
determined on the basis of their bids in accordance
therewith).
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. During the
Revolving Credit Period each Bank severally agrees, on the
terms and conditions set forth in this Agreement, to make
loans to the Borrower pursuant to this Section from time to
-13-
<PAGE>
time in amounts such that the aggregate principal amount of
Committed Loans by such Bank at any one time outstanding
shall not exceed the amount of its Commitment. Each
Borrowing under this Section shall be in an aggregate
principal amount of $10,000,000 or any larger multiple of
$1,000,000 (except that any such Borrowing may be in the
aggregate amount available in accordance with Section
3.02(b)) and shall be made from the several Banks ratably in
proportion to their respective Commitments. Within the
foregoing limits, the Borrower may borrow under this
Section, repay, or to the extent permitted by Section 2.11,
prepay Loans and reborrow at any time during the Revolving
Credit Period under this Section.
SECTION 2.02. Notice of Committed Borrowing. The
Borrower shall give the Agent notice (a "Notice of Committed
Borrowing") not later than 10:15 A.M. (New York City time)
on (x) the date of each Base Rate Borrowing, (y) the second
Domestic Business Day before each CD Borrowing and (z) the
third Euro-Dollar Business Day before each Euro-Dollar
Borrowing, specifying:
(a) the date of such Borrowing, which shall be a
Domestic Business Day in the case of a Domestic
Borrowing or a Euro-Dollar Business Day in the case of
a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such Borrowing
are to be CD Loans, Base Rate Loans or Euro-Dollar
Loans, and
(d) in the case of a Fixed Rate Borrowing, the
duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest
Period.
SECTION 2.03. Money Market Borrowings.
(a) The Money Market Option. In addition to
Committed Borrowings pursuant to Section 2.01, the Borrower
may, as set forth in this Section, request the Banks during
the Revolving Credit Period to make offers to make Money
Market Loans to the Borrower. The Banks may, but shall have
no obligation to, make such offers and the Borrower may, but
shall have no obligation to, accept any such offers in the
manner set forth in this Section.
(b) Money Market Quote Request. When the
Borrower wishes to request offers to make Money Market Loans
-14-
<PAGE>
under this Section, it shall transmit to the Agent by telex
or facsimile transmission a Money Market Quote Request
substantially in the form of Exhibit B hereto so as to be
received no later than 10:00 A.M. (New York City time) on
(x) the fifth Euro-Dollar Business Day prior to the date of
Borrowing proposed therein, in the case of a LIBOR Auction
or (y) the Domestic Business Day next preceding the date of
Borrowing proposed therein, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the
Borrower and the Agent shall have mutually agreed and shall
have notified the Banks not later than the date of the Money
Market Quote Request for the first LIBOR Auction or Absolute
Rate Auction for which such change is to be effective)
specifying:
(i) the proposed date of Borrowing, which shall
be a Euro-Dollar Business Day in the case of a LIBOR
Auction or a Domestic Business Day in the case of an
Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which
shall be $10,000,000 or a larger multiple of
$1,000,000,
(iii) the duration of the Interest Period
applicable thereto, subject to the provisions of the
definition of Interest Period, and
(iv) whether the Money Market Quotes requested are
to set forth a Money Market Margin or a Money Market
Absolute Rate.
The Borrower may request offers to make Money Market Loans
for more than one Interest Period in a single Money Market
Quote Request. No Money Market Quote Request shall be given
within five Euro-Dollar Business Days (or such other number
of days as the Borrower and the Agent may agree) of any
other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly
upon receipt of a Money Market Quote Request, the Agent
shall send to the Banks by telex or facsimile transmission
an Invitation for Money Market Quotes substantially in the
form of Exhibit C hereto, which shall constitute an
invitation by the Borrower to each Bank to submit Money
Market Quotes offering to make the Money Market Loans to
which such Money Market Quote Request relates in accordance
with this Section.
(d) Submission and Contents of Money Market
Quotes. (i) Each Bank may submit a Money Market Quote
-15-
<PAGE>
containing an offer or offers to make Money Market Loans in
response to any Invitation for Money Market Quotes. Each
Money Market Quote must comply with the requirements of this
subsection (d) and must be submitted to the Agent by telex
or facsimile transmission at its offices specified in or
pursuant to Section 9.01 not later than (x) 2:00 P.M. (New
York City time) on the fourth Euro-Dollar Business Day prior
to the proposed date of Borrowing, in the case of a LIBOR
Auction or (y) 9:15 A.M. (New York City time) on the
proposed date of Borrowing, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the
Borrower and the Agent shall have mutually agreed and shall
have notified the Banks not later than the date of the Money
Market Quote Request for the first LIBOR Auction or Absolute
Rate Auction for which such change is to be effective);
provided that Money Market Quotes submitted by the Agent (or
any affiliate of the Agent) in the capacity of a Bank may be
submitted, and may only be submitted, if the Agent or such
affiliate notifies the Borrower of the terms of the offer or
offers contained therein not later than (x) one hour prior
to the deadline for the other Banks, in the case of a LIBOR
Auction or (y) 15 minutes prior to the deadline for the
other Banks, in the case of an Absolute Rate Auction.
Subject to Articles III and VI, any Money Market Quote so
made shall be irrevocable except with the written consent of
the Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in
substantially the form of Exhibit D hereto and shall in any
case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan
for which each such offer is being made, which
principal amount (w) may be greater than or less than
the Commitment of the quoting Bank, (x) must be
$5,000,000 or a larger multiple of $1,000,000, (y) may
not exceed the principal amount of Money Market Loans
for which offers were requested and (z) may be subject
to an aggregate limitation as to the principal amount
of Money Market Loans for which offers being made by
such quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin
above or below the applicable London Interbank Offered
Rate (the "Money Market Margin") offered for each such
Money Market Loan, expressed as a percentage (specified
to the nearest 1/10,000th of 1%) to be added to or
subtracted from such base rate,
-16-
<PAGE>
(D) in the case of an Absolute Rate Auction, the
rate of interest per annum (specified to the nearest
1/10,000th of 1%) (the "Money Market Absolute Rate")
offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate
offers by the quoting Bank with respect to each Interest
Period specified in the related Invitation for Money Market
Quotes.
(iii) Any Money Market Quote shall be disregarded
if it:
(A) is not substantially in conformity with
Exhibit D hereto or does not specify all of the
information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar
language;
(C) proposes terms other than or in addition to
those set forth in the applicable Invitation for Money
Market Quotes; or
(D) arrives after the time set forth in
subsection (d)(i).
(e) Notice to Borrower. The Agent shall promptly
notify the Borrower of the terms (x) of any Money Market
Quote submitted by a Bank that is in accordance with
subsection (d) and (y) of any Money Market Quote that
amends, modifies or is otherwise inconsistent with a
previous Money Market Quote submitted by such Bank with
respect to the same Money Market Quote Request. Any such
subsequent Money Market Quote shall be disregarded by the
Agent unless such subsequent Money Market Quote is submitted
solely to correct a manifest error in such former Money
Market Quote. The Agent's notice to the Borrower shall
specify (A) the aggregate principal amount of Money Market
Loans for which offers have been received for each Interest
Period specified in the related Money Market Quote Request,
(B) the respective principal amounts and Money Market
Margins or Money Market Absolute Rates, as the case may be,
so offered and (C) if applicable, limitations on the
aggregate principal amount of Money Market Loans for which
offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later
than 10:15 A.M. (New York City time) on (x) the third
-17-
<PAGE>
Euro-Dollar Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or (y) the
proposed date of Borrowing, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the
Borrower and the Agent shall have mutually agreed and shall
have notified the Banks not later than the date of the Money
Market Quote Request for the first LIBOR Auction or Absolute
Rate Auction for which such change is to be effective), the
Borrower shall notify the Agent of its acceptance or
non-acceptance of the offers so notified to it pursuant to
subsection (e). In the case of acceptance, such notice (a
"Notice of Money Market Borrowing") shall specify the
aggregate principal amount of offers for each Interest
Period that are accepted. The Borrower may accept any Money
Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money
Market Borrowing may not exceed the applicable amount
set forth in the related Money Market Quote Request,
(ii) the principal amount of each Money Market
Borrowing must be $10,000,000 or a larger multiple of
$1,000,000,
(iii) acceptance of offers may only be made on the
basis of ascending Money Market Margins or Money Market
Absolute Rates, as the case may be, and
(iv) the Borrower may not accept any offer that is
described in subsection (d)(iii) or that otherwise
fails to comply with the requirements of this
Agreement.
(g) Allocation by Agent. If offers are made by
two or more Banks with the same Money Market Margins or
Money Market Absolute Rates, as the case may be, for a
greater aggregate principal amount than the amount in
respect of which such offers are accepted for the related
Interest Period, the principal amount of Money Market Loans
in respect of which such offers are accepted shall be
allocated by the Agent among such Banks as nearly as
possible (in multiples of $1,000,000, as the Agent may deem
appropriate) in proportion to the aggregate principal
amounts of such offers. Determinations by the Agent of the
amounts of Money Market Loans shall be conclusive in the
absence of manifest error.
SECTION 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the
Agent shall promptly notify each Bank of the contents
-18-
<PAGE>
thereof and of such Bank's share (if any) of such Borrowing
and such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
(b) Not later than 12:00 Noon (New York City
time) on the date of each Borrowing, each Bank participating
therein shall (except as provided in subsection (c) of this
Section) make available its share of such Borrowing, in
Federal or other funds immediately available in New York
City, to the Agent at its address referred to in Section
9.01. Unless the Agent determines that any applicable
condition specified in Article III has not been satisfied,
the Agent will make the funds so received from the Banks
available to the Borrower at the Agent's aforesaid address.
(c) If any Bank makes a new Loan hereunder on a
day on which the Borrower is to repay all or any part of an
outstanding Loan from such Bank, such Bank shall apply the
proceeds of its new Loan to make such repayment and only an
amount equal to the difference (if any) between the amount
being borrowed and the amount being repaid shall be made
available by such Bank to the Agent as provided in
subsection (b), or remitted by the Borrower to the Agent as
provided in Section 2.12, as the case may be.
(d) Unless the Agent shall have received notice
from a Bank prior to the date of any Borrowing that such
Bank will not make available to the Agent such Bank's share
of such Borrowing, the Agent may assume that such Bank has
made such share available to the Agent on the date of such
Borrowing in accordance with subsections (b) and (c) of this
Section 2.04 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 Bank
shall not have so made such share available to the Agent,
such Bank 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, a rate per annum equal to the higher of the
Federal Funds Rate and the interest rate applicable thereto
pursuant to Section 2.07 and (ii) in the case of such Bank,
the Federal Funds Rate. If such Bank shall repay to the
Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Loan included in such Borrowing for
purposes of this Agreement.
SECTION 2.05. Notes. (a) The Loans of each Bank
shall be evidenced by a single Note payable to the order of
such Bank for the account of its Applicable Lending Office
-19-
<PAGE>
in an amount equal to the aggregate unpaid principal amount
of such Bank's Loans.
(b) Each Bank may, by notice to the Borrower and
the Agent, request that its Loans of a particular type be
evidenced by a separate Note in an amount equal to the
aggregate unpaid principal amount of such Loans. Each such
Note shall be in substantially the form of Exhibit A hereto
with appropriate modifications to reflect the fact that it
evidences solely Loans of the relevant type. Each reference
in this Agreement to the "Note" of such Bank shall be deemed
to refer to and include any or all of such Notes, as the
context may require.
(c) Upon receipt of each Bank's Note pursuant to
Section 3.01(a), the Agent shall forward such Note to such
Bank. Each Bank shall record the date, amount, type and
maturity of each Loan made by it and the date and amount of
each payment of principal made by the Borrower with respect
thereto, and may, if such Bank so elects in connection with
any transfer or enforcement of its Note, endorse on the
schedule forming a part thereof appropriate notations to
evidence the foregoing information with respect to each such
Loan then outstanding; provided that the failure of any Bank
to make any such recordation or endorsement shall not affect
the obligations of the Borrower hereunder or under the
Notes. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Note and to attach to and make a
part of its Note a continuation of any such schedule as and
when required.
SECTION 2.06. Maturity of Loans. Each Loan
included in any Borrowing shall mature, and the principal
amount thereof shall be due and payable, on the last day of
the Interest Period applicable to such Borrowing.
SECTION 2.07. Interest Rates. (a) Each Base
Rate Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Loan is made
until it becomes due, at a rate per annum equal to the Base
Rate for such day. Such interest shall be payable for each
Interest Period on the last day thereof. Any overdue
principal of or interest on any Base Rate Loan shall bear
interest, payable on demand, for each day until paid at a
rate per annum equal to the sum of 2% plus the rate
otherwise applicable to Base Rate Loans for such day.
(b) Each CD Loan shall bear interest on the
outstanding principal amount thereof, for each day during
the Interest Period applicable thereto, at a rate per annum
equal to the sum of the CD Margin for such day plus the
-20-
<PAGE>
Adjusted CD Rate applicable to such Interest Period;
provided that if any CD Loan or any portion thereof shall,
as a result of clause (2)(b) or (2)(c)(i) of the definition
of Interest Period, have an Interest Period of less than 30
days, such portion shall bear interest during such Interest
Period at the rate applicable to Base Rate Loans during such
period. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period
is longer than 90 days, at intervals of 90 days after the
first day thereof. Any overdue principal of or interest on
any CD Loan shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to the sum of 2%
plus the higher of (i) the sum of the CD Margin for such day
plus the Adjusted CD Rate applicable to the Interest Period
for such Loan and (ii) the rate applicable to Base Rate
Loans for such day.
"CD Margin" means a rate per annum determined in
accordance with the Pricing Schedule.
The "Adjusted CD Rate" applicable to any Interest
Period means a rate per annum determined pursuant to the
following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
__________
* The amount in brackets being rounded upward, if
necessary, to the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest
Period is the rate of interest determined by the Agent to be
the average (rounded upward, if necessary, to the next
higher 1/100 of 1%) of the prevailing rates per annum bid at
10:00 A.M. (New York City time) (or as soon thereafter as
practicable) on the first day of such Interest Period by two
or more New York certificate of deposit dealers of
recognized standing for the purchase at face value from each
CD Reference Bank of its certificates of deposit in an
amount comparable to the principal amount of the CD Loan of
such CD Reference Bank to which such Interest Period applies
and having a maturity comparable to such Interest Period.
-21-
<PAGE>
"Domestic Reserve Percentage" means for any day
that percentage (expressed as a decimal) which is in effect
on such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including without
limitation any basic, supplemental or emergency reserves)
for a member bank of the Federal Reserve System in New York
City with deposits exceeding five billion dollars in respect
of new non-personal time deposits in dollars in New York
City having a maturity comparable to the related Interest
Period and in an amount of $100,000 or more. The Adjusted
CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Domestic Reserve
Percentage.
"Assessment Rate" means for any day the annual
assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund classified as adequately
capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within
the meaning of 12 C.F.R. section 327.3(d) (or any successor
provision) to the Federal Deposit Insurance Corporation (or
any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the
United States. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change
in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on
the outstanding principal amount thereof, for each day
during the Interest Period applicable thereto, at a rate per
annum equal to the sum of the Euro-Dollar Margin for such
day plus the Adjusted London Interbank Offered Rate
applicable to such Interest Period. Such interest shall be
payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof.
"Euro-Dollar Margin" means a rate per annum
determined in accordance with the Pricing Schedule.
The "Adjusted London Interbank Offered Rate"
applicable to any Interest Period means a rate per annum
equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100 of 1%) by dividing (i)
the applicable London Interbank Offered Rate by (ii) 1.00
minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to
any Interest Period means the average (rounded upward, if
-22-
<PAGE>
necessary, to the next higher 1/16 of 1%) of the respective
rates per annum at which deposits in dollars are offered to
each of the Euro-Dollar Reference Banks in the London
interbank market at approximately 11:00 A.M. (London time)
two Euro-Dollar Business Days before the first day of such
Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Euro-Dollar
Reference Bank to which such Interest Period is to apply and
for a period of time comparable to such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day
that percentage (expressed as a decimal) which is in effect
on such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining
the maximum reserve requirement for a member bank of the
Federal Reserve System in New York City with deposits
exceeding five billion dollars in respect of "Eurocurrency
liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which
the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which
includes loans by a non-United States office of any Bank to
United States residents). The Adjusted London Interbank
Offered Rate shall be adjusted automatically on and as of
the effective date of any change in the Euro-Dollar Reserve
Percentage.
(d) Any overdue principal of or interest on any
Euro-Dollar Loan shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the higher
of (i) the sum of 2% plus the Euro-Dollar Margin for such
day plus the Adjusted London Interbank Offered Rate
applicable to the Interest Period for such Loan and (ii) the
sum of 2% plus the Euro-Dollar Margin for such day plus the
quotient obtained (rounded upward, if necessary, to the next
higher 1/100 of 1%) by dividing (x) the average (rounded
upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which one day (or, if such
amount due remains unpaid more than three Euro-Dollar
Business Days, then for such other period of time not longer
than six months as the Agent may select) deposits in dollars
in an amount approximately equal to such overdue payment due
to each of the Euro-Dollar Reference Banks are offered to
such Euro-Dollar Reference Bank in the London interbank
market for the applicable period determined as provided
above by (y) 1.00 minus the Euro-Dollar Reserve Percentage
(or, if the circumstances described in clause (a) or (b) of
Section 8.01 shall exist, at a rate per annum equal to the
sum of 2% plus the rate applicable to Base Rate Loans for
such day).
-23-
<PAGE>
(e) Subject to Section 8.01(a), each Money Market
LIBOR Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto,
at a rate per annum equal to the sum of the London Interbank
Offered Rate for such Interest Period (determined in
accordance with Section 2.07(c) as if the related Money
Market LIBOR Borrowing were a Committed Euro-Dollar
Borrowing) plus (or minus) the Money Market Margin quoted by
the Bank making such Loan in accordance with Section 2.03.
Each Money Market Absolute Rate Loan shall bear interest on
the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the
Money Market Absolute Rate quoted by the Bank making such
Loan in accordance with Section 2.03. Such interest shall
be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof. Any
overdue principal of or interest on any Money Market Loan
shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 2% plus the
Base Rate for such day.
(f) The Agent shall determine each interest rate
applicable to the Loans hereunder. The Agent shall give
prompt notice to the Borrower and the participating Banks of
each rate of interest so determined, and its determination
thereof shall be conclusive in the absence of manifest
error.
(g) Each Reference Bank agrees to use its best
efforts to furnish quotations to the Agent as contemplated
by this Section. If any Reference Bank does not furnish a
timely quotation, the Agent shall determine the relevant
interest rate on the basis of the quotation or quotations
furnished by the remaining Reference Bank or Banks or, if
none of such quotations is available on a timely basis, the
provisions of Section 8.01 shall apply.
SECTION 2.08. Fees.
(a) Commitment Fee. During the Revolving Credit
Period, the Borrower shall pay to the Agent for the account
of the Banks ratably in proportion to their Commitments a
commitment fee at the Commitment Fee Rate (determined daily
in accordance with the Pricing Schedule) on the daily amount
by which the aggregate amount of the Commitments exceeds the
aggregate outstanding principal amount of the Loans. Such
commitment fee shall accrue from and including the Effective
Date to but excluding the Termination Date (or earlier date
of termination of the Commitments in their entirety).
-24-
<PAGE>
(b) Facility Fee. The Borrower shall pay to the
Agent for the account of the Banks ratably a facility fee at
the Facility Fee Rate (determined daily in accordance with
the Pricing Schedule). Such facility fee shall accrue (i)
from and including the Effective Date to but excluding the
Termination Date (or earlier date of termination of the
Commitments in their entirety), on the daily aggregate
amount of the Commitments (whether used or unused) and (ii)
from and including the Termination Date or such earlier date
of termination to but excluding the date the Loans shall be
repaid in their entirety, on the daily aggregate outstanding
principal amount of the Loans.
(c) Payments. Accrued fees under this Section
shall be payable quarterly on each March 31, June 30,
September 30 and December 31, and upon the date of
termination of the Commitments in their entirety (and, if
later, the date the Loans shall be repaid in their
entirety).
SECTION 2.09. Optional Termination or Reduction
of Commitments. During the Revolving Credit Period, the
Borrower may, upon at least three Domestic Business Days'
notice to the Agent, (i) terminate the Commitments at any
time, if no Loans are outstanding at such time or (ii)
ratably reduce from time to time by an aggregate amount of
$10,000,000 or any larger multiple thereof, the aggregate
amount of the Commitments in excess of the aggregate
outstanding principal amount of the Loans.
SECTION 2.10. Scheduled Termination of
Commitments. The Commitments shall terminate on the
Termination Date, and any Loans then outstanding (together
with accrued interest thereon) shall be due and payable on
such date.
SECTION 2.11. Optional Prepayments. (a) Subject
in the case of any Fixed Rate Borrowing to Section 2.13, the
Borrower may, upon at least one Domestic Business Day's
notice to the Agent, prepay any Base Rate Borrowing (or any
Money Market Borrowing bearing interest at the Base Rate
pursuant to Section 8.01(a)), upon at least three Domestic
Business Days' notice to the Agent, prepay any CD Borrowing
or upon at least three Euro-Dollar Business Days' notice to
the Agent, prepay any Euro-Dollar Borrowing, in each case in
whole at any time, or from time to time in part in amounts
aggregating $10,000,000 or any larger multiple of
$1,000,000, by paying the principal amount to be prepaid
together with accrued interest thereon to the date of
prepayment. Each such optional prepayment shall be applied
-25-
<PAGE>
to prepay ratably the Loans of the several Banks included in
such Borrowing.
(b) Except as provided in Section 2.11(a), the
Borrower may not prepay all or any portion of the principal
amount of any Money Market Loan prior to the maturity
thereof.
(c) Upon receipt of a notice of prepayment
pursuant to this Section, the Agent shall promptly notify
each Bank of the contents thereof and of such Bank's ratable
share (if any) of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.12. General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of,
and interest on, the Loans and of fees hereunder, not later
than 12:00 Noon (New York City time) on the date when due,
in Federal or other funds immediately available in New York
City, to the Agent at its address referred to in Section
9.01. The Agent will promptly distribute to each Bank its
ratable share of each such payment received by the Agent for
the account of the Banks. Whenever any payment of principal
of, or interest on, the Domestic Loans or of fees shall be
due on a day which is not a Domestic Business Day, the date
for payment thereof shall be extended to the next succeeding
Domestic Business Day. Whenever any payment of principal
of, or interest on, the Euro-Dollar Loans shall be due on a
day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case the date
for payment thereof shall be the next preceding Euro-Dollar
Business Day. Whenever any payment of principal of, or
interest on, the Money Market Loans shall be due on a day
which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day. If the date for any payment of
principal is extended by operation of law or otherwise,
interest thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice
from the Borrower prior to the date on which any payment is
due to the Banks 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 Bank on such due date an amount equal to
the amount then due such Bank. If and to the extent that
the Borrower shall not have so made such payment, each Bank
shall repay to the Agent forthwith on demand such amount
-26-
<PAGE>
distributed to such Bank together with interest thereon, for
each day from the date such amount is distributed to such
Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.13. Funding Losses. If the Borrower
makes any payment of principal with respect to any Fixed
Rate Loan (pursuant to Article II, VI or VIII or otherwise)
on any day other than the last day of the Interest Period
applicable thereto, or the last day of an applicable period
fixed pursuant to Section 2.07(d), or if the Borrower fails
to borrow or prepay any Fixed Rate Loans after notice has
been given to any Bank in accordance with Section 2.04(a) or
2.11(c), the Borrower shall reimburse each Bank within 15
days after demand for any resulting loss or expense incurred
by it (or by an existing or prospective Participant in the
related Loan), including (without limitation) any loss
incurred in obtaining, liquidating or employing deposits
from third parties, but excluding loss of margin for the
period after any such payment or failure to borrow or
prepay, provided that such Bank shall have delivered to the
Borrower a certificate as to the amount of such loss or
expense, which certificate shall be conclusive in the
absence of manifest error.
SECTION 2.14. Computation of Interest and Fees.
Interest based on the Prime Rate hereunder shall be computed
on the basis of a year of 365 days (or 366 days in a leap
year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All
other interest and fees shall be computed on the basis of a
year of 360 days and paid for the actual number of days
elapsed (including the first day but excluding the last
day).
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness. This Agreement
shall become effective on the date that each of the
following conditions shall have been satisfied (or waived in
accordance with Section 9.05):
(a) receipt by the Agent of counterparts hereof
signed by each of the parties hereto (or, in the case
of any party as to which an executed counterpart shall
not have been received, receipt by the Agent in form
satisfactory to it of telegraphic, telex or other
-27-
<PAGE>
written confirmation from such party of execution of a
counterpart hereof by such party);
(b) receipt by the Agent of a duly executed Note
for the account of each Bank dated on or before the
Effective Date complying with the provisions of Section
2.05;
(c) receipt by the Agent of an opinion of the
General Counsel of the Borrower, substantially in the
form of Exhibit E hereto and covering such additional
matters relating to the transactions contemplated
hereby as the Required Banks may reasonably request;
(d) receipt by the Agent of an opinion of Davis
Polk & Wardwell, special counsel for the Agent,
substantially in the form of Exhibit F hereto and
covering such additional matters relating to the
transactions contemplated hereby as the Required Banks
may reasonably request;
(e) receipt by the Agent of all documents the
Agent may reasonably request relating to the existence
of the Borrower, the corpora