Exhibit 10.25
EXECUTION VERSION
23 May 2007
DANAHER EUROPEAN FINANCE COMPANY
ehf
DANAHER EUROPEAN FINANCE
S.A.
as Issuers
DANAHER CORPORATION
as Guarantor and Issuer
LEHMAN BROTHERS INTERNATIONAL
(EUROPE)
as Arranger
- and -
BARCLAYS BANK PLC
LEHMAN BROTHERS INTERNATIONAL
(EUROPE)
as Dealers
AMENDED AND RESTATED DEALER
AGREEMENT
relating to a U.S.$ 2,200,000,000
EURO-COMMERCIAL PAPER PROGRAMME
CONTENTS
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Page
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1.
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Interpretation
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2
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2.
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Issue
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5
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3.
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Representations
And Warranties
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8
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4.
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Covenants And
Agreements
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11
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5.
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Conditions
Precedent
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15
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6.
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Termination And
Appointment
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16
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7.
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Nomination Of
New Issuer
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16
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8.
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Notices
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17
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9.
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Third Party
Rights
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17
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10.
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Law And
Jurisdiction
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17
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SCHEDULE 1
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Condition
Precedent Documents
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19
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SCHEDULE 2
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Selling
Restrictions
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21
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SCHEDULE 3
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Programme
Summary
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24
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SCHEDULE 4
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Increase Of
Maximum Amount
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27
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SCHEDULE 5
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Appointment Of
New Dealer
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29
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SCHEDULE 6
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Form Of
Calculation Agency Agreement
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31
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THIS AGREEMENT is made on 23 May 2007
AMONG
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(1)
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DANAHER
EUROPEAN FINANCE S.A. ,
(the “ Luxembourg Issuer ”);
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(2)
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DANAHER
EUROPEAN FINANCE COMPANY EHF , (the “ Icelandic Issuer
”)
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(3)
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DANAHER
CORPORATION , (“
Danaher ”);
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(4)
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LEHMAN
BROTHERS INTERNATIONAL (EUROPE) (the “ Arranger ” or “
Lehman Brothers ”); and
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(5)
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BARCLAYS
BANK PLC, (“
Barclays ”)
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WHEREAS:
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(A)
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The Luxembourg
Issuer established a programme for the issuance of euro-commercial
paper by it in connection with which it entered into a dealer
agreement, dated May 8, 2006 and made among the Luxembourg
Issuer, Danaher, and Lehman Brothers (as amended or supplemented
prior to the date hereof, the “ Original Dealer
Agreement ”);
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(B)
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The Icelandic
Issuer, in a letter dated August 14, 2006, was nominated and
became bound by the terms of the Original Dealer Agreement in order
to issue Notes under the Original Dealer Agreement;
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(C)
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Barclays, in a
letter dated January 25, 2007, was appointed and became a
dealer under the Original Dealer Agreement vested with all the
authority, rights, powers, duties and obligations as if originally
named as a dealer under the Original Dealer Agreement;
and
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(D)
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The parties
hereto wish to amend and restate the Original Dealer Agreement as
set out herein.
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IT IS AGREED
as follows:
In this Agreement:
“ Agency Agreement
” means the second amended and restated issuing and paying
agency agreement, dated the date hereof, between the Issuers, the
Guarantor and the Issuing and Paying Agent, providing for the issue
of and payment on the Notes, as such agreement may be amended or
supplemented from time to time;
“ Agreements ”
means this Agreement (as amended or supplemented from time to
time), any agreement reached pursuant to Clause 2.1, the Deed
of Covenant, the Guarantee and the Agency Agreement;
“ Dealers ” means
Lehman Brothers and Barclays, together with any additional
institution or institutions appointed pursuant to Clause 6.2
but excluding any institution or institutions whose appointment has
been terminated pursuant to Clause 6.1;
- 2 -
“ Deed of Covenant
” means the deed of covenant executed by the Luxembourg
Issuer dated 8 May 2006, the deed of covenant executed by the
Icelandic Issuer dated 1 September 2006, the deed of covenant
executed by Danaher, dated the date hereof, together with any Deed
of Covenant executed pursuant to Clause 7, in respect of Global
Notes issued pursuant to the Agency Agreement, as such deed may be
amended or supplemented from time to time;
“ Definitive Note
” means a security printed Note in definitive
form;
“ Disclosure Documents
” means, at any particular date, (a) the Information
Memorandum, (b) the most recently published audited
consolidated financial statements of Danaher and, if financial
statements have been published by any Subsidiary Issuer, the most
recently published audited unconsolidated financial statements of
such Subsidiary Issuer and any subsequent quarterly unaudited
financial statements of such Subsidiary Issuer and Danaher (in the
case of Danaher each having been filed with the United States
Securities and Exchange Commission (the “ SEC
”)), and (c) any other document delivered by the
Subsidiary Issuers or Danaher to the Dealers which the Subsidiary
Issuers or Danaher (as the case may be) has expressly authorised to
be distributed in connection with transactions contemplated by this
Agreement;
“ Dollars ” and
“ U.S.$ ” denote the lawful currency of the
United States of America; and “ Dollar Note ”
means a Note denominated in Dollars;
“ Dollar Equivalent
” means, on any day:
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(a)
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in relation to
any Dollar Note, the nominal amount of such Note; and
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(b)
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in relation to
any Note denominated or to be denominated in any other currency,
the amount in Dollars which would be required to purchase the
nominal amount of such Note as expressed in such other currency at
the spot rate of exchange for the purchase of such other currency
with Dollars quoted by the Issuing and Paying Agent at or about
11.00 a.m. (London time) on such day;
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“ Euro ”, “
euro ”, “ EUR ” or “
€ ” means the lawful currency of member states of
the European Union that adopt the single currency introduced in
accordance with the Treaty; and “ Euro Note ”
means a Note denominated in Euro;
“ FSMA ” means
the Financial Services and Markets Act 2000;
“ Global Note ”
means a Note in global form, representing an issue of commercial
paper notes of a like maturity which may be issued by any Issuer
from time to time pursuant to the Agency Agreement;
“ Guarantee ”
means the guarantee dated 8 May 2006 in connection with the
Luxembourg Issuer and executed as a deed by the Guarantor in
respect of the obligations of the Luxembourg Issuer under the Notes
and the Deed of Covenant, the guarantee dated 1 September 2006
with respect to the Icelandic Issuer and executed as a deed by the
Guarantor in respect of the obligations of the Icelandic Issuer
under the Notes and the Deed of Covenant or any other guarantee
executed from time to time pursuant to Clause 7;
- 3 -
“ Guarantor ”
means Danaher, solely with respect to the Notes issued by a
Subsidiary Issuer;
“ Index Linked Note
” means a Note, the redemption or coupon amount of which is
not fixed at the time of issue, but which is to be calculated in
accordance with such formula or other arrangement as is agreed
between the Relevant Issuer and the Dealer at the time of reaching
agreement under Clause 2.1;
“ Information
Memorandum ” means the most recent information
memorandum, as the same may be amended or supplemented from time to
time, containing information about the Issuers, the Guarantor and
the Programme, the text of which has been prepared by or on behalf
of the Issuers and the Guarantor for use by the Dealers in
connection with the transactions contemplated by this
Agreement;
“ Issuer ” means,
each, the Luxembourg Issuer, the Icelandic Issuer, the U.S. Issuer
or any other entity that is nominated as an Issuer pursuant to
Clause 7;
“ Issuers ”
means, the Luxembourg Issuer, the Icelandic Issuer and the U.S.
Issuer, together with any other entity that is nominated as an
Issuer pursuant to Clause 7;
“ Issuing and Paying
Agent ” means Deutsche Bank AG, London Branch and any
successor Issuing and Paying Agent appointed in accordance with the
Agency Agreement;
“ Note ” means a
commercial paper note of an Issuer purchased or to be purchased by
a Dealer under this Agreement, in bearer global or definitive form,
substantially in the relevant form scheduled to the Agency
Agreement or such other form(s) as may be agreed from time to time
between the Issuers and the Issuing and Paying Agent and, unless
the context otherwise requires, includes the commercial paper notes
represented by the Global Notes;
“ Programme ”
means the Euro-commercial paper programme established by the
Original Dealer Agreement as amended and restated by this
Agreement;
“ Programme Summary
” means the summary of the particulars of the Programme as
set out in Schedule 3, as such summary may be amended, supplemented
or superseded from time to time;
“ Relevant Issuer
” means the Issuer of a particular Note;
“ Securities Act
” means the United States Securities Act of 1933, as
amended;
“ Subsidiary ”
means, with respect to any person, (i) any corporation,
association or other business entity of which more than 50% of the
total voting power of shares of capital stock or other equity
interest entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or
indirectly, by such person or one or more of the other subsidiaries
of that person (or a combination thereof) and (ii) any
partnership (a) the sole general partner or managing general
partner of which is such person or a subsidiary or such person or
(b) the only general partners of which are such person or of
one or more subsidiaries of such person (or any combination
thereof);
- 4 -
“ Subsidiary Issuer
” means the Luxembourg Issuer and the Icelandic Issuer,
together with any other Subsidiary of Danaher that is appointed an
Issuer pursuant to Clause 7;
“ Treaty ” means
the Treaty establishing the European Community, as
amended;
“ U.S. Issuer ”
means Danaher, with respect to Notes it issues directly (not
through a Subsidiary Issuer) under the Programme for which it does
not provide a Guarantee; and
“ USCP Program ”
means Danaher’s U.S. commercial paper program, as such
program is amended or supplemented from time to time, and as
established through a commercial paper dealer agreement dated
5 May 2006 by Danaher, as issuer, and Goldman,
Sachs & Co., as a U.S. dealer, and a commercial paper
dealer agreement dated 6 November 2006 by Danaher, as issuer,
and Citigroup Global Markets Inc., as a U.S. dealer, concerning
notes to be issued pursuant to an Issuing and Paying Agency
Agreement between Danaher and Deutsche Bank Trust Company Americas,
dated 5 May 2006.
Terms not expressly defined herein
shall have the meanings set out in the Programme
Summary.
Any reference in this Agreement to
any legislation (whether primary legislation or regulations or
other subsidiary legislation made pursuant to primary legislation)
shall be construed as a reference to such legislation as the same
may have been, or may from time to time be, amended or
re-enacted.
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1.4
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Clauses and Schedules
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Any reference in this Agreement to a
Clause, sub-clause or a Schedule is, unless otherwise stated,
to a clause or sub-clause hereof or a schedule
hereto.
Headings and sub-headings are for
ease of reference only and shall not affect the construction of
this Agreement.
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2.1
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Basis of
agreements to issue; uncommitted facility
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Subject to the terms hereof, any
Issuer may issue Notes to any Dealer from time to time at such
prices and upon such terms as such Issuer and such Dealer may
agree, provided that such Issuer has, and shall have, no obligation
to issue Notes to such Dealer, except as agreed, and such Dealer
has, and shall have, no obligation to subscribe Notes from such
Issuer, except as agreed. Each Issuer acknowledges that any Dealer
may resell Notes subscribed by such Dealer. The tenor of each Note
shall not be less than the Minimum Term nor greater than the
Maximum Term specified in the Programme Summary, calculated from
(and including) the date of issue of such Note to (but excluding)
the maturity date thereof. Definitive Notes (if any) shall be
issued in the Denomination(s) specified in the Programme Summary.
Each issue of Notes having the same issue date, maturity date,
currency or denomination, yield and redemption basis will be
represented by a Global Note or by Definitive Notes having the
aggregate nominal amount of such issue as may be agreed between any
Issuer and any Dealer.
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If any Issuer and any Dealer shall
agree on the terms of the subscription of any Note by any Dealer
(including agreement with respect to the issue date, maturity date,
currency, denomination, yield, redemption basis, aggregate nominal
amount and purchase price), then:
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2.2.1
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Instruction
to Issuing and Paying Agent : such Issuer shall instruct the Issuing and
Paying Agent to issue such Note and deliver it in accordance with
the terms of the Agency Agreement;
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2.2.2
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Payment of
purchase price : such
Dealer shall subscribe such Note on the date of issue:
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(a)
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Dollar
Note : in the case of a
Dollar Note, by transfer of funds settled through the New York
Clearing House Interbank Payments System (or such other same-day
value funds as at the time shall be customary for the settlement in
New York City of international banking transactions
denominated in Dollars) to such account of the Issuing and Paying
Agent in New York City denominated in Dollars as the Issuing
and Paying Agent shall have specified for this purpose;
or
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(b)
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Euro
Note : in the case of a
Euro Note, by transfer of funds settled through the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET)
System to such account of the Issuing and Paying Agent denominated
in Euro as the Issuing and Paying Agent shall have specified for
this purpose; or
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(c)
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Other
Notes : in all other
cases, by transfer of freely transferable same-day funds in the
relevant currency to such account of the Issuing and Paying Agent
at such bank in the principal domestic financial centre for such
currency as the Issuing and Paying Agent shall have specified for
this purpose,
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or, in each case, by such other form
of transfer as may be agreed between such Dealer and such Issuer;
and
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2.2.3
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Delivery
Instructions : the
relevant Dealer shall notify the Relevant Issuer and the Issuing
and Paying Agent of the payment and delivery instructions
applicable to such Note in accordance with prevailing market
practice and in sufficient time to enable the Issuing and Paying
Agent to deliver such Note (or, in the case of any Sterling
Definitive Note, make the same available for collection) on its
issue date.
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2.3
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Failure of
agreed issuance
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If for any reason (including,
without limitation, the failure of the relevant trade) a Note
agreed to be purchased pursuant to Clause 2.1 is not to be
issued, each of the Relevant Issuer and the relevant Dealer shall
immediately notify the Issuing and Paying Agent thereof.
- 6 -
The parties acknowledge that Notes
issued under the Programme may be denominated in Dollars or,
subject as provided below, in any other currency. Any agreement
reached pursuant to Clause 2.1 to sell and purchase a Note
denominated in a currency other than Dollars shall be conditional
upon:
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2.4.1
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Compliance : it being lawful and in compliance with all
requirements of any relevant central bank and any other relevant
fiscal, monetary, regulatory or other authority, for deposits to be
made in such currency and for such Note to be issued, offered for
sale, sold and delivered;
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2.4.2
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Convertibility : such other currency being freely transferable
and freely convertible into Dollars; and
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2.4.3
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Amendments : any appropriate amendments which the Dealers,
the Issuers or the Issuing and Paying Agent shall require having
been made to this Agreement and/or the Agency Agreement.
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The Issuers shall ensure that the
outstanding nominal amount of all Notes issued under the Programme,
when taken together with the aggregate principal amount outstanding
from time to time under the USCP Program, does not exceed the
Maximum Amount. For the purposes of calculating the Maximum Amount,
the nominal amount of any outstanding Note or Notes denominated in
any currency other than Dollars shall be taken as the Dollar
Equivalent of such nominal amount as at the date of the agreement
for the issue of the Note or Notes then to be issued provided that
in calculating the nominal amount of Notes outstanding on the date
of issue of such Note or Notes there shall be disregarded Notes
which mature on that date. The Issuers may increase the Maximum
Amount by giving at least ten days’ notice by letter,
substantially in the form set out in Schedule 4, to the Dealers,
the Issuing and Paying Agent and the Paying Agents. Such increase
will not take effect until the Dealers have received from the
Issuers the documents listed in such letter (if required by any
Dealer), in each case in form and substance acceptable to the
Dealers.
If Index Linked Notes are to be
issued, the Relevant Issuer will appoint either the relevant Dealer
or the Issuing and Paying Agent (subject to the consent of such
Dealer or the Issuing and Paying Agent, as the case may be,
thereto) or some other person (subject to the consent of such
Dealer and the Paying Agent to such person’s appointment) to
be the calculation agent in respect of such Index Linked Notes and
the following provisions shall apply:
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2.6.1
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Dealer : if a Dealer is to be the calculation agent,
its appointment as such shall be on the terms of the form of
agreement set out in Schedule 6, and such Dealer will be deemed to
have entered into an agreement in such form for a particular
calculation if it is named as calculation agent in the redemption
calculation attached to or endorsed on the relevant
Note;
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2.6.2
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Issuing and
Paying Agent : if the
Issuing and Paying Agent is to be the calculation agent, its
appointment as such shall be on the terms set out in the Agency
Agreement; and
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2.6.3
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Other
Calculation Agent : if
the person nominated by a Dealer or by the Issuing and Paying Agent
as calculation agent is not such Dealer, that person shall execute
(if it has not already done so) an agreement substantially in the
form of the agreement set out in Schedule 6 and the appointment of
that person shall be on the terms of that agreement.
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3.
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REPRESENTATIONS AND WARRANTIES
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3.1
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Representations and warranties
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Each Subsidiary Issuer (in respect
of itself) and Danaher (in respect of itself and in respect of the
Subsidiary Issuers) represents and warrants to the Dealers at the
date of this Agreement, and at each date upon which the Maximum
Amount is increased, and each applicable Subsidiary Issuer (in
respect of itself) and Danaher (in respect of itself and the
Subsidiary Issuers) represents and warrants to the Dealers at each
date upon which an agreement for the issue and subscription of
Notes is made by an Issuer and each date upon which Notes are, or
are to be, issued by such Issuer (by reference to the facts and
circumstances then existing):
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3.1.1
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Authorisation; valid, binding and
enforceable : each
of:
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(a)
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the
establishment of the Programme and the execution, delivery and
performance by the Subsidiary Issuers and Danaher of the Agreements
and the Notes;
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(b)
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the entering
into and performance by the Subsidiary Issuers and Danaher of any
agreement for the subscription of Notes reached pursuant to
Clause 2.1; and
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(c)
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the issue and
sale of the Notes by the Subsidiary Issuers and Danaher under the
Agreements,
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has been duly authorised by all
necessary action and the same constitute, or, in the case of Notes,
will, when issued in accordance with the Agency Agreement,
constitute, valid and binding obligations of each of the Subsidiary
Issuers issuing such Notes and Danaher enforceable against each of
them in accordance with their respective terms (subject, as to
enforceability, to bankruptcy, insolvency, reorganisation and
similar laws of general applicability relating to or affecting
creditors’ rights and to general principles of
equity);
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3.1.2
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Status: the obligations of each Subsidiary Issuer and
Danaher under each of the Agreements to which it is a party and the
Notes issued by a Subsidiary Issuer or issued or guaranteed by
Danaher, as the case may be, will rank (other than in the case of
obligations preferred by mandatory provisions of law) pari
passu with all other present and future unsecured and
unsubordinated indebtedness (i) of such Subsidiary Issuer or
guaranteed by such Subsidiary Issuer and (ii) of Danaher, or
guaranteed by Danaher, as the case may be;
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- 8 -
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3.1.3
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Incorporation, capacity: each of the Subsidiary Issuers and Danaher is
duly incorporated or organized and validly existing under the laws
of its jurisdiction of incorporation or organization
and:
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(a)
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the
establishment of the Programme, the execution, delivery and
performance by each of the Subsidiary Issuers and Danaher of the
Agreements and the Notes;
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(b)
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the entering
into and performance by any Subsidiary Issuer and Danaher of any
agreement for the issue and subscription of Notes reached pursuant
to Clause 2.1; and
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(c)
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the issue and
subscription of the Notes by any Subsidiary Issuer or Danaher under
the Agreements,
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will not infringe any of the
provisions of such Subsidiary Issuer’s or Danaher’s
certificate of incorporation or organization, as amended, and
amended and restated by-laws or analogous governance documents, and
will not contravene any law, regulation, order or judgement to
which such Subsidiary Issuer or Danaher or any of its assets is
subject nor result in the breach of any term of, or cause a default
under, any instrument to which such Subsidiary Issuer or Danaher is
a party or by which it or any of its assets may be bound, in each
case, in any material respect, in the context of the Programme and
of the Notes issued thereunder;
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3.1.4
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Approvals: all consents, authorisations, licences or
approvals of and registrations and filings with any governmental or
regulatory authority required in connection with the issue by any
Subsidiary Issuer or Danaher of Notes under the Agreements and the
performance of their respective obligations under the Agreements
and the Notes have been obtained and are in full force and effect,
and copies thereof have been supplied to the Dealers except for
such consents, authorisations, licences, approvals, restrictions
and filings as could reasonably be expected to be material in the
context of this Agreement;
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3.1.5
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Disclosure: in the context of this Agreement and the
transactions contemplated hereby, the information contained or
incorporated by reference in the Disclosure Documents is true and
accurate in all material respects and is not misleading in any
material respect and there are no other facts in relation to any
Subsidiary Issuer, Danaher or any Notes the omission of which
makes, in the context of the issue of the Notes, the Disclosure
Documents as a whole or any such information contained or
incorporated by reference therein misleading in any material
respect;
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- 9 -
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3.1.6
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Financial
Statements: the audited
financial statements of the Subsidiary Issuers (if such financial
statements are available), consolidated audited financial
statements of Danaher and any quarterly unaudited financial
statements of the Subsidiary Issuers or Danaher (in the case of
Danaher each having been filed with the SEC and incorporated by
reference in the Information Memorandum), present fairly and
accurately the financial position of the Subsidiary Issuers and
Danaher (consolidated in the case of Danaher) as of the respective
dates of such statements and the results of operations of the
Subsidiary Issuers and Danaher (consolidated in the case of
Danaher) for the periods they cover or to which they relate and
such financial statements have been prepared in accordance with the
relevant laws of the relevant jurisdiction of incorporation or
organization of each of the Subsidiary Issuers and Danaher and with
generally accepted accounting principles of the relevant
jurisdiction of incorporation or organization of each of the
Subsidiary Issuers and Danaher applied on a consistent basis
throughout the periods involved (unless and to the extent otherwise
stated therein);
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3.1.7
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No material
adverse change, No litigation: since the date of the most recent audited
unconcolidated financial statements of the Subsidiary Issuers (if
such financial statements are available) and audited consolidated
financial statements of Danaher supplied to the Dealers and, in
relation to any date on which this warranty falls to be made after
the date hereof, save as otherwise disclosed by any Disclosure
Document subsequently delivered by the Subsidiary Issuers or
Danaher (as the case may be) to the Dealers:
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(a)
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there has been
no adverse change in the business, financial or other condition of
the Subsidiary Issuers or of Danaher or any of its Subsidiaries
taken as a whole; and
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(b)
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there is no
litigation, arbitration or governmental proceeding pending or, to
the knowledge of the Subsidiary Issuers or Danaher, threatened
against or affecting any of the Subsidiary Issuers, Danaher or any
of Danaher’s other Subsidiaries,
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which in any case could reasonably
be expected to be material in the context of this Agreement and the
transactions contemplated hereby;
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3.1.8
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No
default : none of the
Subsidiary Issuers or Danaher is in default in respect of payment
of any indebtedness for borrowed money where such indebtedness is
in an aggregate amount greater than U.S. $50,000,000;
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3.1.9
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No ratings
downgrade: there has been
no downgrading, nor any notice to the Subsidiary Issuers or Danaher
of any intended downgrading, in the rating accorded to
Danaher’s short-term or long-term debt by Standard &
Poor’s Ratings Services, a division of the McGraw-Hill
Companies Inc., and Moody’s Investors Service, Inc., or any
other rating agency which has issued a rating in connection with
Danaher or any security of Danaher;
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3.1.10
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Taxation: subject to compliance with the terms of the
Agreements, none of the Subsidiary Issuers or Danaher is required
by any law or regulation or any relevant taxing authority in the
United States to make any deduction or withholding from any payment
due under the Notes, the Agency Agreement or the respective Deed of
Covenant for or on account of any income, registration, transfer or
turnover taxes, customs or other duties or taxes of any
kind;
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- 10 -
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3.1.11
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Maximum
Amount not exceeded: the
outstanding nominal amount of all Notes on the date of issue of any
Note, when taken together with the aggregate principal amount
outstanding from time to time under the USCP Program, does not and
will not exceed the Maximum Amount set out in the Programme Summary
(as increased from time to time pursuant to Clause 2.5) and
for this purpose the nominal amount of any Note denominated in any
currency other than Dollars shall be taken as the Dollar Equivalent
of such nominal amount as at the date of the agreement for the
issue of such Note provided that in calculating the nominal amount
of the Notes outstanding on the date of issue of such Note there
shall be disregarded Notes which mature on that date;
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3.1.12
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Investment
Company: none of the
Subsidiary Issuers or Danaher is an investment company as defined
in the United States Investment Company Act of 1940; and
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3.1.13
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No Trade or
Business by the Subsidiary Issuers in the United States
: no Subsidiary Issuer is engaged,
or has since its formation been engaged, in any trade or business
within the United States, as determined for United States federal
tax purposes.
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If, prior to the time a Note is
issued and delivered to or for the account of any Dealer, an event
occurs which would render any of the representations and warranties
set out in Clause 3.1 immediately, or with the lapse of time,
untrue or incorrect, the Relevant Issuer will inform such Dealer in
writing as soon as practicable of the occurrence of such event. In
either case, such Dealer shall inform the Relevant Issuer in
writing without any undue delay whether it wishes to continue or
discontinue the issuance and delivery of the respective
Notes.
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4.
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COVENANTS
AND AGREEMENTS
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The Subsidiary Issuers and Danaher
covenant and agree that:
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4.1.1
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Delivery of
published information :
whenever any of the Subsidiary Issuers or Danaher publishes or
makes available to its shareholders or to the public (by filing
with any regulatory authority, securities exchange or otherwise)
any information which could reasonably be expected to be material
in the context of this Agreement and the transactions contemplated
hereby, the Subsidiary Issuers or Danaher (as the case may be)
shall notify the Dealers as to the nature of such information,
shall make a reasonable number of copies of such information
available to the Dealers upon request to permit distribution to
investors and prospective investors and shall take such action as
may be necessary to ensure that the representation and warranty
contained in sub-clause 3.1.5 is true and accurate in all
material respects on the dates contemplated by such sub-clause.
Such notification may be by means of electronic communication,
including, but not limited to, by email and/or directing the
Dealers’ attention to information on-line;
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4.1.2
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Indemnity : each Relevant Issuer (severally and not
jointly), failing which the Guarantor (in the case of the
Subsidiary Issuers), shall indemnify and hold harmless on demand
the Dealers against any claim, demand, action, liability, damages,
cost, loss or expense (including, without limitation, reasonable
legal fees and any applicable value added tax) which they may incur
arising out of, in connection with or based upon:
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(a)
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such Relevant
Issuer’s failure to make due payment under the Notes;
or
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(b)
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such Relevant
Issuer’s not issuing Notes for any reason (other than as a
result of the failure of any Dealer to pay for such Notes) after an
agreement for the sale of such Notes has been made; or
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(c)
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the
Guarantor’s failure to make due payment under the Guarantee
of the Notes issued by the Relevant Issuer; or
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(d)
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any breach or
alleged breach of the representations, warranties, covenants or
agreements made by such Relevant Issuer or the Guarantor (except
with respect to an Issuer other than the Relevant Issuer) in this
Agreement unless in the case of an alleged breach only, the
allegation is being made by a person other than a Dealer or any
untrue statement or alleged untrue statement of any material fact
contained in the Disclosure Documents or the omission or alleged
omission to state therein a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading in any material respect
unless in the case of an alleged breach only, the allegation is
being made by a person other than a Dealer;
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4.1.3
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Procedure
for indemnification : The
relevant Dealer or Dealers will promptly notify each Relevant
Issuer and the Guarantor (in the case of a Subsidiary Issuer) in
writing of any claim in respect of which indemnification may be
sought under Clause 4.1.2 of this Agreement against such Issuer or
the Guarantor (in the case of a Subsidiary Issuer), as the case may
be, provided that (i) the omission so to notify such Issuer or
the Guarantor (in the case of a Subsidiary Issuer) will not relieve
such Issuer or the Guarantor (in the case of a Subsidiary Issuer),
as the case may be, from any liability which it may have hereunder
unless and except to the extent it did not otherwise learn of such
claim and such failure results in the forfeiture by such Issuer or
the Guarantor (in the case of a Subsidiary Issuer), as the case may
be, of substantial rights and defences, and (ii) the omission
to notify such Issuer
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