EXHIBIT 10.2
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MORGAN STANLEY
SENIOR
FUNDING, INC.
1585 Broadway
New York, New York
10036
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CITIGROUP GLOBAL MARKETS
INC.
390 Greenwich
Street
New York, New York
10013
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March 24, 2007
Beckman Coulter, Inc.
P.O. Box 3100
4300 N. Harbor Blvd.
Fullerton, CA 92834-3100
Attention: Chief Financial Officer
Beckman Coulter, Inc.
$1,650,000,000 Interim Term Loan
Facility
Commitment Letter
Ladies and Gentlemen:
Beckman Coulter, Inc., a Delaware
corporation (the “ Borrower ” or “
you ”) has advised Morgan Stanley Senior
Funding, Inc. (“ Morgan Stanley ”) and
Citigroup Global Markets Inc. (“ CGMI ”,
and, together with Citigroup (as defined below) and Morgan Stanley,
“ us ”) regarding your proposed
acquisition (the “ Acquisition ”) of the
stock of Biosite Incorporated, a Delaware corporation (the “
Target ”). As we understand the transaction,
pursuant to an Agreement and Plan of Merger (including all annexes
and exhibits thereto, the “ Acquisition
Agreement ”) to be entered into with the Target and
the Purchaser (as defined therein) and a tender offer conducted in
accordance with the terms of the Acquisition Agreement (the “
Tender Offer ”) followed by a merger with the
Target (the “ Merger ”), you will
purchase all of the outstanding capital stock of the Target. The
consideration for the Acquisition will be comprised of all cash.
The Acquisition effected by the Tender Offer and the Merger, the
financings contemplated by the foregoing and the payment of fees
and expenses associated therewith are collectively referred to as
the “ Transaction ”. For purposes of this
Commitment Letter, “ Citigroup ” means
CGMI, Citibank, N.A., Citicorp USA, Inc., Citicorp North America,
Inc. and/or any of their affiliates as may be appropriate to
consummate the transactions contemplated herein.
More specifically, you have informed
us that the Borrower intends to arrange for a commitment of up to a
$1,650,000,000 interim term loan facility (the “
Interim Term Loan Facility ”, also herein
referred to as the “ Interim Facility ”).
We understand that borrowings under the Interim Facility (if any)
will be used to fund the Transaction.
In connection with the Transaction
(a) (i) Morgan Stanley is pleased to advise you of its
commitment to provide, on a several (and not joint) basis, or to
cause one or more of its affiliates to provide, 50.0% of the
Interim Facility and (ii) Citigroup is pleased to advise you
of its commitment to provide, on a several (and not joint) basis,
or to cause one or more of its affiliates to provide, 50.0% of the
Interim Facility subject to and on the terms and conditions set
forth herein and in the summary of and conditions attached as Annex
I (the “ Term Sheet ” which, together
with this letter, are herein collectively referred to as the
“ Commitment Letter ”) and
(b) Morgan Stanley and
Citigroup (collectively, the “
Arrangers ”) shall use commercially reasonable
efforts to arrange a syndicate of Lenders (as defined in the Term
Sheet) to participate in the Interim Facility.
You agree that Citigroup shall act
as sole and exclusive administrative agent (in such capacity, the
“ Administrative Agent ”), and, together
with Morgan Stanley, co-lead arranger and joint bookrunner in
respect of the Interim Facility (Morgan Stanley to be “on the
left”). It is understood that the Arrangers shall be
permitted to designate one or more Lenders as agents or co-agents,
as the case may be, with respect to the Interim Facility in their
sole discretion, but no other agents, co-agents or arrangers will
be appointed, no other titles may be given, and no other
compensation (other than as expressly set forth in the Term Sheet
or in the Fee Letter described below) will be paid without the
Arrangers’ prior written consent; provided, however, that you
may, within 10 days of the announcement of the Acquisition, appoint
additional co-managers for up to 20% of the commitment of the
Interim Term Loan Facility. Fees payable to the syndicate of
Lenders shall be payable from the amounts payable by the Borrower
pursuant to the fee letter (the “ Fee Letter
”) among the parties hereto and executed simultaneously
herewith.
Each of Morgan Stanley and Citigroup
(the “ Initial Lenders ”) reserve the
right, prior to or after execution of the definitive credit
documentation for the Interim Facility, to syndicate all or part of
its commitment for the Interim Facility to one or more lending
institutions reasonably acceptable to you that will become parties
to the appropriate definitive credit documentation pursuant to a
syndication in respect of the Interim Facility to be managed by the
Arrangers, and the commitment of the Initial Lenders hereunder in
respect of the Interim Facility shall be reduced as and when
commitments are received from the other financial institutions in
respect of the Interim Facility. The Arrangers may commence
syndication efforts promptly after the execution of this letter by
you and you agree actively to assist the Arrangers in achieving a
syndication in respect of the Interim Facility that is satisfactory
to the Arrangers. Such syndication will be accomplished by a
variety of means, including direct contact during the syndication
for the Interim Facility between senior financial management and
advisors of the Borrower and the proposed syndicate members for the
Interim Facility (such members, the “ Lenders
”). To assist the Arrangers in their syndication efforts, you
hereby agree (i) to provide and cause your advisors to provide
the Arrangers and the other relevant syndicate members upon request
with all information reasonably deemed necessary by the Arrangers
to complete syndication, including but not limited to information
prepared by you and your advisors or on your behalf relating to the
transactions contemplated hereby, (ii) to assist the Arrangers
upon request in the preparation of an information memorandum (the
“ Information Memorandum ”) to be used in
connection with the syndication of the Interim Facility,
(iii) to use your commercially reasonable efforts to ensure
that the syndication efforts of the Arrangers benefit materially
from your existing lending relationships and the existing lending
relationships of the Target, (iv) to make available your
senior financial officers and representatives and, to use your
commercially reasonable efforts to make available Target’s
senior financial officers and representatives, in each case from
time to time to attend and make presentations regarding the
business and prospects of the Borrower and Target at a meeting or
meetings of prospective Lenders and (v) to use commercially
reasonable efforts to obtain a “Corporate Family
Rating” from Moody’s Investors Service, Inc. (“
Moody’s ”), and a “Corporate
Rating” from Standard & Poor’s Ratings
Services, a division of The McGraw-Hill Companies, Inc. (“
S&P ”). The Arrangers will manage all
aspects of any syndication in consultation with you, including
decisions as to the selection of institutions to be approached and
when they will be approached, when their commitments will be
accepted, which institutions will participate, the allocation of
the commitments among the Lenders and the amount and distribution
of fees among the Lenders. You will also afford the Arrangers a
period of at least 20 consecutive days following the launch of the
general syndication of the Interim Facility and immediately prior
to the Closing Date of the Interim Facility to syndicate the
Interim Facility. In addition, you agree that, without
the
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consent of the Arrangers (such consent not to be
unreasonably withheld or delayed), until the earliest of completion
of the primary syndication of the Interim Facility, the termination
of the commitment of Morgan Stanley and Citigroup and 90 days after
the commencement of the primary syndication, no financing (other
than the Interim Facility and the Permanent Financing (as defined
in the Term Sheet)) for you or any of your subsidiaries shall be
syndicated, privately placed or publicly offered in the United
States or Europe to the extent that such financing would have an
adverse effect on the syndication of the Interim Facility;
provided, however, that the foregoing shall not limit your ability
or that of your subsidiaries to (i) issue commercial paper or
other short-term debt programs currently in place, (ii) amend,
waive, modify, renew or refinance your existing revolving credit
facility (the “ Existing Credit Facility
”), or other financings to fund operations or for working
capital, or borrow thereunder, (iii) refinance any
indebtedness outstanding on the date hereof, (iv) incur
purchase money indebtedness for the acquisition of assets used in
the business, (v) incur indebtedness in connection with the
exercise of the “Top-Up Option” under the Acquisition
Agreement, or (vi) incur other limited indebtedness to be
agreed upon.
In addition, all commitments,
undertakings and agreements hereunder are subject to (i) the
absence of a “ Company Material Adverse Effect
” (as defined in the Acquisition Agreement),
(ii) (a) the accuracy and completeness in all material
respects of all representations that you make to us (subject to
clause (x) below), (b) your compliance in all material
respects with the terms of this Commitment Letter and (c) your
compliance in all material respects with the terms of the Fee
Letter and (iii) the negotiation, execution and delivery of
definitive documentation with respect to the Interim Facility (the
“ Loan Documentation ”), which shall, in
each case, be consistent with the Term Sheet and the Existing
Credit Facility as further set forth therein ( provided
that, notwithstanding anything in this Commitment Letter, the Fee
Letter, the Loan Documentation or any other letter agreement or
other undertaking concerning the financing of the Transaction to
the contrary, (x) the only representations relating to the
Borrower, the Target, their respective subsidiaries and their
businesses the making of which shall be a condition to availability
of the Interim Facility on the Closing Date shall be (A) such
of the representations made by the Target in the Acquisition
Agreement, as are material to the interests of the Lenders, but
only to the extent that you have the right to terminate your
obligations under the Acquisition Agreement as a result of a breach
of such representations in the Acquisition Agreement and
(B) the Specified Representations (as defined below) and
(y) the terms of the Loan Documentation shall be in a form
such that they do not impair availability of the Interim Facility
on the Closing Date or the Delayed Draw Funding Date (as defined in
the Term Sheet) if the conditions set forth herein and in the Term
Sheet are satisfied. Those matters that are not covered by or made
clear under the provisions of this Commitment Letter are subject to
the approval and agreement of the Agent and you; provided
that such approvals and agreements shall be in a manner that is
consistent with the Term Sheet. For purposes hereof, “
Specified Representations ” means the
representations and warranties set forth in the Term Sheet relating
to corporate power and authority, due authorization, execution and
delivery of the Loan Documentation, no conflicts with material
contractual restrictions, the enforceability of the Loan
Documentation, Federal Reserve margin regulations and the
Investment Company Act.
To induce Morgan Stanley and
Citigroup to issue this letter and to continue with their due
diligence efforts, you hereby agree that all reasonable
out-of-pocket fees and expenses (including the reasonable fees and
expenses of Skadden, Arps, Slate, Meagher & Flom, LLP,
counsel to the Arrangers) of Morgan Stanley, Citigroup and their
affiliates arising in connection with this letter (and its due
diligence and syndication efforts in connection herewith) and in
connection with the Interim Facility shall be for your account,
payable whether or not the Transaction is consummated. In addition,
you hereby agree to pay when and as due the fees described in the
Fee Letter.
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You further agree to indemnify and
hold harmless each of the Administrative Agent, the Arrangers, the
Lenders (including, in any event, Morgan Stanley and Citigroup),
each other agent under the Interim Facility and each director,
officer, employee and affiliate thereof, and each other person
controlling any of the foregoing within the meaning of either
Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Securities Exchange Act of 1934, as amended
(each an “ Indemnified Person ”) from and
against any and all actions, suits, proceedings (including any
investigations or inquiries), claims, losses, damages, liabilities
or expenses of any kind or nature whatsoever which may be incurred
by or asserted against or involve any such Indemnified Person as a
result of or arising out of or in any way related to or resulting
from this Commitment Letter, the Fee Letter, the Engagement Letter,
the Transaction, the extension or syndication of the Interim
Facility contemplated by this Commitment Letter, or in any way
arising from any use or intended use of this letter or the proceeds
of the Interim Facility contemplated by this Commitment Letter, and
you agree to reimburse each Indemnified Person upon demand for any
reasonable legal or other out-of-pocket expenses incurred in
connection with investigating, defending or preparing to defend any
such action, suit, proceeding (including any inquiry or
investigation) or claim (whether or not Morgan Stanley, Citigroup
or any such other Indemnified Person is a party to any action or
proceeding out of which any such expenses arise) (collectively, an
“ Action ”); provided, however, that you
shall not have to indemnify any Indemnified Person against any
loss, claim, damage, expense or liability to the extent finally
determined by a court of competent jurisdiction to have resulted
from the gross negligence, willful misconduct or material breach of
this Commitment Letter of such Indemnified Person. In the case of
an investigation, litigation or other proceeding to which the
indemnity in this paragraph applies, such indemnity shall be
effective whether or not such investigation, litigation or
proceeding is brought by the you, any of your directors, security
holders or creditors, an Indemnified Person or any other person or
an Indemnified Person is otherwise a party thereto and whether or
not the transactions contemplated hereby are consummated. The
Borrower shall have no obligation to indemnify and hold harmless
any Indemnified Party to the extent that any claim, loss, cost, or
expense arises from a failure by such Indemnified Party to comply
with laws, regulations, rules or orders that may apply to its
business or a failure by such Indemnified Party to possess the
capacity to participate in the transactions contemplated by this
letter or to take all actions necessary to authorize its
participation in such transactions. The provisions of this
paragraph shall be superseded by the applicable provisions
contained in the Loan Documentation.
You will not, without the prior
written consent of the affected Indemnified Person(s), settle,
compromise, consent to the entry of any judgment in or otherwise
seek to terminate any Action in respect of which indemnification
may be sought hereunder unless such settlement, compromise, consent
or termination includes a full and unconditional release of such
Indemnified Person(s) from any liabilities arising out of such
Action.
The provisions of the immediately
preceding three paragraphs shall survive any termination of this
Commitment Letter.
Each of Morgan Stanley and Citigroup
reserve the right to employ the services of its affiliates in
providing services contemplated by this Commitment Letter and to
allocate, in whole or in part, to such affiliates certain fees
payable to Morgan Stanley and Citigroup in such manner as each of
Morgan Stanley, Citigroup and such affiliates may agree in their
sole discretion. You acknowledge that Morgan Stanley and Citigroup
may, on a confidential basis, share with any of their affiliates,
and such affiliates may share with Morgan Stanley and Citigroup,
any information related to the Transaction, you, the Borrower, the
Target, any of its subsidiaries or any of the matters contemplated
hereby in connection with the Transaction.
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You hereby represent and warrant
that, as to the Target and its subsidiaries, to the best of your
knowledge, and, as to the Borrower and its subsidiaries, that
(i) all information (other than the Projections referred to
below, information of a general economic or general industry nature
and information as to the Target (which has been derived from
publicly available information and in respect of which no
representation is made) that has been made available by you or will
hereafter be made available by you in connection with the
Transaction (the “ Information ”) to
Morgan Stanley, Citigroup or any of their affiliates or
representatives or to any Lender or any potential Lender when taken
as a whole is, or in the case of Information made available after
the date hereof, will be correct in all material respects and does
not and will not, when furnished, contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements contained therein not misleading in light of
the circumstances under which such statements were or are made
(after giving effect to all supplements thereto) and (ii) all
financial projections, if any, that have been or will be prepared
by you and made available to Morgan Stanley, Citigroup or any of
their affiliates or representatives or to any Lender or any
potential Lender in connection with the Transaction (the “
Projections ”) have been or, in the case of
Projections made available after the date hereof, will be prepared
in good faith based upon assumptions believed by you to be
reasonable (it being understood that such projections are subject
to significant uncertainties and contingencies, many of which are
beyond your control, and that no assurance can be given that any
particular projections will be realized). You agree that you will
promptly notify (and deliver copies to) Morgan Stanley and
Citigroup of any changes in circumstances or any additional
information that would be reasonably expected to call into question
the Information or the continued reasonableness of any assumption
underlying the Projections, and that you will supplement the
Information and the Projections as necessary so that the
representations, warranties and covenants set forth in this
paragraph concerning the Information and the Projections remain
complete and correct without regard to when such Information and
Projections were made available. In issuing this commitment, Morgan
Stanley and Citigroup are relying on the accuracy of the
Information and on the reasonableness of the Projections as
described above without independent verification thereof. The
representations and covenants contained in this paragraph shall
remain effective until the definitive Loan Documentation is
executed and thereafter the disclosure representations contained
herein shall be terminated and of no further force and
effect.
You hereby acknowledge that the
Arrangers will make available Information and Projections to the
proposed syndicate of Lenders and that certain of the proposed
Lenders may be “public-side” Lenders (i.e., Lenders
that do not wish to receive material non-public information with
respect to Borrower) (each, a “ Public Lender
”). You hereby agree that (a) you will use commercially
reasonable efforts to identify that portion of the Information and
Projections that may be distributed to the Public Lenders and
include a reasonably detailed term sheet in such Information and
that all of the foregoing that is to be made available to Public
Lenders shall be clearly and conspicuously marked
“PUBLIC”; (b) by marking materials
“PUBLIC,” you shall be deemed to have authorized the
Arrangers and the proposed Lenders to treat such materials as not
containing any material non-public information with respect to the
Borrower for purposes of United States federal and state securities
laws, it being understood that certain of such materials may be
su