Exhibit 10.1
O MNIBUS A SSIGNMENT AND A SSUMPTION A GREEMENT
(P ERKIN E LMER )
This Omnibus Assignment and
Assumption Agreement (herein, this “ Agreement
”) is entered into as of the date set forth on the signature
pages hereof, and effective as of the Effective Date (as defined
below), by and among (i) ABN AMRO Bank N.V. (“
ABN ”), (ii) Windmill Funding Corporation (the
“ Conduit ”), (iii) the parties set forth
on Schedule I hereto (collectively, the “Client”, and
together with ABN and the Conduit, the “ Transaction
Parties ”), (iv) The Royal Bank of Scotland plc (the
“ New Bank ”) and (v) The Royal Bank of
Scotland plc, as successor Agent and Program Agent (the “
Successor Agent ”).
P RELIMINARY S TATEMENTS
A. The Transaction Parties are
parties to the Funding Agreement (as defined in Schedule II hereto)
and each of the other agreements and instruments listed on Schedule
II hereto, as amended and supplemented through the Effective Date
(as defined below) hereof (the “ Transaction Documents
”). All capitalized terms used herein without definition
shall have the same meanings herein as such terms have in the
Transaction Documents.
. The Royal Bank of Scotland Group,
plc, as part of a consortium, recently acquired certain businesses
of ABN AMRO Holdings, N.V. (including, without limitation, certain
businesses of ABN). The two parties are in the process of obtaining
the necessary consents and approvals to effectuate the acquisition.
In addition to the transfers being made hereunder, on the Effective
Date (as defined in Section 6.1 below), The Royal Bank of
Scotland plc will be appointed as Administrator for Windmill
Funding Corporation.
C. Pursuant to this
Agreement,
(i) ABN (in its capacity as the
departing Committed Purchaser and Liquidity Provider, the “
Departing Bank ”) wishes to assign all of its rights
and obligations under the Transaction Documents as Committed
Purchaser and Liquidity Provider and New Bank wishes to accept such
assignment and assumes all of the duties of ABN thereunder,
and
(ii) ABN (in its capacity as the
departing Agent and Program Agent, the “ Departing
Agent ”) wishes to resign in its capacity as Agent and
Program Agent under, and as defined in, the Transaction Documents,
and the Successor Agent wishes to accept its appointment and agree
to act in the capacity of Agent and Program Agent under the
Transaction Documents.
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N OW ,
T HEREFORE , for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
S ECTION 1.
A SSIGNMENT
OF C OMMITMENT FROM D EPARTING B ANK TO N
EW B ANK .
1.1. The Departing Bank hereby
agrees to sell and assign, on the Effective Date, all of its
Commitment under the Funding Agreement. Except for the
representations and warranties set forth herein, the assignment by
the Departing Bank shall be made without any representation,
warranty or recourse. New Bank hereby agrees to purchase and
assume, on the Effective Date, 100% of the Departing Bank’s
Commitment under the Funding Agreement. It is understood and agreed
that New Bank may, at its option, perform any or all of its
obligations under the Transaction Documents at the branch, agency,
office or affiliate specified herein or at such other of its
branches, agencies, offices or affiliates located in the United
States as it may from time to time elect.
1.2. On the Effective Date,
(i) the Departing Bank shall cease to be Committed Purchaser
and Liquidity Provider under the Funding Agreement, (ii) the
New Bank shall have the rights and obligations of the Departing
Bank as Committed Purchaser and Liquidity Provider thereunder
subject to the terms and conditions hereof and thereof and
(iii) the Departing Bank shall have relinquished its rights
(other than rights to indemnification and reimbursements referred
to in the Transaction Documents that survive the assignment by the
Departing Bank of its Commitment in accordance with their terms)
and be released from its obligations under each of the Transaction
Documents (except as provided herein). From and after the Effective
Date, all payments due to the Departing Bank as Committed Purchaser
and Liquidity Provider under the Transaction Documents shall be due
to the New Bank and shall be remitted to the New Bank at the
account specified on Schedule IV hereto. To the extent the New Bank
receives any amounts due to the Departing Bank for obligations
fulfilled prior to the Effective Date, the New Bank or Successor
Agent, as applicable, shall be responsible for remitting any such
amounts to the Departing Bank.
S ECTION 2.
R ESIGNATION
OF D EPARTING A GENT AS A
GENT AND P ROGRAM A GENT AND A PPOINTMENT OF S
UCCESSOR A GENT .
2.1. Except as provided in
Section 5.2, the Departing Agent resigns on the Effective Date
as Agent and Program Agent under the Transaction Documents. Each
relevant Transaction Party hereby appoints as of the Effective
Date, the Successor Agent as the successor Agent and Program Agent
for all purposes of the Transaction Documents, and hereby
authorizes the Successor Agent to take any and all action as Agent
and Program Agent and to exercise such powers under the Transaction
Documents as are delegated to the Agent and Program Agent by the
terms thereof, together with such powers as are reasonably
incidental thereto. It is understood and agreed that Successor
Agent may, at is option, perform any or all of its obligations
under the Transaction Documents at the branch, agency, office or
affiliate specified herein or at such other of its branches,
agencies, offices or affiliates located in the United States as it
may from time to time elect.
2.2. Except as provided in
Section 5.2, on the Effective Date, (i) the Departing
Agent shall cease to be Agent and Program Agent under the
Transaction Documents, (ii) the Successor Agent shall have the
rights and obligations of the Departing Agent as Agent and Program
Agent
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thereunder subject to the terms and conditions
hereof and thereof and (iii) the Departing Agent shall have
relinquished its rights (other than rights to indemnification and
reimbursements referred to in the Transaction Documents that
survive the assignment by the Departing Agent of its role as Agent
and Program Agent in accordance with their terms) and be released
from its obligations under each of the Transaction Documents
(except as provided herein). From and after the Effective Date, all
payments due to the Departing Agent as Agent and Program Agent
under the Transaction Documents shall be due to the Successor Agent
and shall be remitted to the Successor Agent at the account
specified on Schedule III hereto. To the extent the Successor Agent
receives any amounts due to the Departing Agent for services
performed prior to the Effective Date, the Successor Agent shall be
responsible for remitting any such amounts to the Departing
Agent.
S ECTION 3.
R EFERENCES
TO D EPARTING B ANK AND D EPARTING A GENT .
3.1. Each reference to ABN AMRO Bank
N.V. in the Transaction Documents, in its capacity as Agent and
Program Agent shall be deemed to be a reference to the Successor
Agent in such capacity. All notices to be given to the Successor
Agent as Agent and Program Agent under the Transaction Documents
shall be sent in accordance with the notice information set forth
on Schedule III hereof. All payments to be made to the Successor
Agent as Agent and Program Agent under the Transaction Documents
shall be made at the payment office, and in accordance with the
payment information, set forth on Schedule III hereof.
3.2. Each reference to ABN AMRO Bank
N.V. in the Transaction Documents, in its capacity as Committed
Purchaser and Liquidity Provider shall be deemed to be a reference
to the New Bank in such capacity. All notices to be given to the
New Bank as Committed Purchaser and Liquidity Provider under the
Transaction Documents shall be sent in accordance with the notice
information set forth on Schedule IV hereof. All payments to be
made to the New Bank as Committed Purchaser and Liquidity Provider
under the Transaction Documents shall be made at the payment
office, and in accordance with the payment information, set forth
on Schedule IV hereof.
S ECTION 4.
R EPRESENTATIONS
.
4.1. Each of the parties hereto
represents and warrants that it has the full power and authority to
execute and deliver this Agreement and that this Agreement
represents the valid and binding obligation of such party,
enforceable in accordance with its terms.
4.2. Each of the Successor Agent and
the New Bank hereby confirms that it has received a cop
