EXHIBIT 10.14
S IXTEENTH A MENDMENT
Dated as of January 23,
2009
to
R ECEIVABLES S ALE A GREEMENT
Dated as of December 21,
2001
T HIS S IXTEENTH A MENDMENT (the “Amendment” ), dated as
of January 23, 2009, is entered into among PerkinElmer
Receivables Company, as Seller (the “Seller” ),
PerkinElmer, Inc., as Initial Collection Agent (the
“Initial Collection Agent,” and together with
any successor thereto, the “Collection Agent” ),
the committed purchasers party thereto (the “Committed
Purchasers” ), Windmill Funding Corporation (
“Windmill” and together with the Committed
Purchasers, the “Purchaser” ), and The Royal
Bank of Scotland plc (successor to ABN AMRO Bank N.V.), as agent
for the Purchasers (the “Agent”)
W ITNESSETH :
W HEREAS ,
the Seller, the Initial Collection Agent, the Agent, the Committed
Purchasers and Windmill have heretofore executed and delivered a
Receivables Sale Agreement, dated as of December 21, 2001 (as
amended, supplemented or otherwise modified through the date
hereof, the “Sale Agreement” ),
W HEREAS ,
the parties hereto desire to amend the Sale Agreement as provided
herein;
N OW ,
THEREFORE , for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties
hereto hereby agree that the Sale Agreement shall be and is hereby
amended as follows:
Upon execution by the parties hereto
in the space provided for that purpose below, the Sale Agreement
shall be, and is hereby, amended as follows:
(a) The defined term
“Dilution Ratio” appearing in Schedule I of the
Sale Agreement is hereby amended in its entirety and as so amended
shall read as follows:
“Dilution
Ratio” means, for
any Settlement Period, a fraction (expressed as a percentage), the
numerator of which is the total amount of Dilutions during such
Settlement Period, and the denominator of which is the amount of
Credit Sales generated during the Dilution Horizon.
(b) Clause (B) of the defined
term “Dilution Reserve” appearing in Schedule I
of the Sale Agreement is hereby amended in its entirety and as so
amended shall read as follows:
(B) the highest three-month rolling
average Dilution Ratio for the past twelve Settlement
Periods.
(c) The defined term
“Dilution Reserve Multiple” appearing in
Schedule I of the Sale Agreement is hereby amended in its entirety
and as so amended shall read as follows:
“Dilution Reserve
Multiple” shall
mean 4.0x.
(d) The defined term
“Foreign Obligor” appearing in Schedule I of the
Sale Agreement is hereby amended in its entirety and as so amended
shall read as follows:
“Foreign
Obligor” means any
Obligor that is a resident of a country that (x) is a member
of the Organization of Economic Cooperation & Development
and (y) has a long-term country risk rating of not less than A
by S&P and A2 by Moody’s.
(e) The defined term
“Liquidity Termination Date” appearing in
Schedule I to the Sale Agreement is hereby amended by deleting the
date “January 23, 2009” appearing in clause
(d) thereof and inserting in its place the date
“February 27, 2009.”
(f) The defined term “Loss
Reserve Multiple” appearing in Schedule I of the Sale
Agreement is hereby amended in its entirety and as so amended shall
read as follows:
“Loss Reserve
Multiple” shall
mean 2.5x.
(g) Clauses (ii) and
(iii) of the defined term “Obligor Concentration
Limit” appearing in Schedule I of the Sale Agreement are
hereby amended in their entireties and as so amended shall read as
follows:
(ii) the Obligor Concentration Limit
for all Federal Government Obligors in the aggregate shall be an
amount equal to 10% of the Eligible Receivables Balance,
provided, however, the Parent maintains a long-term
unsecured debt rating of at least BBB- by S&P and Baa3 by
Moody’s, and (iii) the Obligor Concentration Limit for
all Foreign Obligors in the aggregate shall be an amount equal to
10% of the Eligible Receivables Balance, provided, however,
the Parent maintains a long-term unsecured debt rating of at least
BBB- by S&P and Baa3 by Moody’s.
(h) Clause (f) of the defined
term “Termination Event” appearing in Schedule I
of the Sale Agreement is hereby amended in its entirety and as so
amended shall read as follows:
(f) the average Delinquency Ratio
for the three most recent Settlement Periods exceeds 10%, the
average Default Ratio for the three most recent Settlement Periods
exceeds 6%, the average Dilution Ratio for the three most
recent
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Settlement Periods exceeds 6% (
provided, however, that for the Settlement Period ending on
January 31, 2009, the average Dilution Ratio for the three
most recent Settlement Periods may exceed 6%), the Charge-Off Ratio
for the most recent Settlement Periods exceeds 2% or the average
Turnover Ratio for the three most recent Settlement Periods exceeds
90 days; or
(i) The following new defined terms
are hereby added to Schedule I of the Sale Agreement in the
appropriate alphabetical order:
“Credit
Sales” means, for
any period of determination, the aggregate amount of trade
receivables with credit terms of any kind originated by the
Originator during such period.
“Dilution
Horizon” means, for
any Settlement Period, the calendar month ending immediately prior
to the beginning of such Settlement Period.
Section 2
. This Amendment shall become
effective only once the Agent has received (i) this Amendment duly
executed by the Seller, the Initial Collection Agent, and the
Purchasers, (ii) the duly executed Guarantor’s Acknowledgment
and Consent and (iii) the Seventh Amendment to Fee
Letter.
Section 3
. The Seller hereby agrees that on
or prior to February 27, 2009 it shall deliver to the Agent
executed Lock-Box Agreements substantially in the form attached
hereto as Exhibit A and in any event in form and substance
satisfactory to the Agent, for each Lock-Box Account set forth on
Exhibit B.
Section 4
. To induce the Agent and the
Purchasers to enter into this Amendment, the Seller and Initial
Collection Agent represent and warrant to the Agent and the
Purchasers that: (a) the representations and warranties
contained in the Transaction Documents, are true and correct in all
material respects as of the date hereof with the same effect as
though made on the date hereof (it being understood and agreed that
any representation or warranty which by its terms is made as of a
specified date shall be required to be true and correct in all
material respects only as of such specified date); (b) no
Potential Termination Event exists; (c) this Amendment has
been duly authorized by all necessary corporate proceedings and
duly executed and delivered by each of the Seller and the Initial
Collection Agent, and the Sale Agreement, as amended by this
Amendment, and each of the other Transaction Documents are the
legal, valid and binding obligations of the Seller and the Initial
Collection Agent, enforceable against the Seller and the Initial
Collection Agent in accordance with their respective terms, except
as enforceability may be limited by bankruptcy, insolvency or other
similar laws of general application affecting the enforcement of
creditors’ rights or by general principles of equity; and
(d) no consent, approval, authorization, order, registration
or qualification with any governmental authority is required for,
and in the absence of which would adversely effect, the legal and
valid execution and delivery or performance by the Seller or the
Initial Collection Agent of this Amendment or the performance by
the Seller or the Initial Collection Agent of the Sale Agreement,
as amended by this Amendment, or any other Transaction Document to
which they are a party.
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Section 5
. This Amendment may be executed in
any number of counterparts and by the different parties on separate
counterparts and each such counterpart shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same Amendment.
Section 6
. The Seller hereby agrees to pay to
the Agent all reasonable rating agency, accounting and other
administrative expenses of the Agent and the Committed Purchasers
in each case in connection with the transactions contemplated by
this Amendment and the legal fees of Chapman and Cutler
LLP.
Section 7
. Except as specifically provided
above, the Sale Agreement and the other Transaction Documents shall
remain in full force and effect and are hereby ratified and
confirmed in all respects. The execution, delivery, and
effectiveness of this Amendment shall not operate as a waiver of
any right, power, or remedy of any Agent or any Purchaser under the
Sale Agreement or any of the other Transaction Documents, nor
constitute a waiver or modification of any provision of any of the
other Transaction Documents. All defined terms used herein and not
defined herein shall have the same meaning herein as in the Sale
Agreement. The Seller agrees to pay on demand all costs and
expenses (including reasonable fees and expenses of counsel) of or
incurred by the Agent and each Purchaser Agent in connection with
the negotiation, preparation, execution and delivery of this
Amendment and the other documents related hereto.
Section 8
. This Amendment and the rights and
obligations of the parties hereunder shall be construed in
accordance with and be governed by the law of the State of
Illinois.
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I N W
ITNESS W HEREOF ,
the parties have caused this Amendment to be executed and delivered
by their duly authorized officers as of the date first above
written.
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T
HE R OYAL B ANK OF S
COTLAND PLC
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By:
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G
REENWICH C APITAL M ARKETS ,
I NC ., as agent
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By:
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Name:
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Title:
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Address:
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c/o ABN AMRO
Bank N.V.
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540 West
Madison Street
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27th
Floor
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Chicago,
Illinois 60661
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Attention:
Agent
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Telephone:
(312) 338-3491
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Telecopy: (312)
338-0140
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Signature Page to
Sixteenth Amendment to Receivables Sale
Agreement
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W
INDMILL F UNDING C ORPORATION
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By:
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Name:
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Title:
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Address:
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c/o Global
Securitization Services, LLC
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68 South
Service Road
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Suite
120
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Melville, New
York 11747
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Attention:
Frank B. Bilotta
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Telephone:
(212) 302-5151
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Telecopy: (212)
302-8767
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With a copy
to:
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The Royal Bank
of Scotland plc
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Greenwich
Capital Markets, Inc., as agent
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c/o ABN AMRO
Bank N.V.
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540 West
Madison Street
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27th
Floor
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Chicago,
Illinois 60661
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Attention:
Windmill Administrator
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Telephone:
(312)338-3491
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Telecopy: (312)
338-0140
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Signature Page to
Sixteenth Amendment to Receivables Sale
Agreement
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P
ERKIN E LMER R ECEIVABLES C OMPANY
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By:
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Title:
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John L. Healy,
President
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P
ERKIN E LMER ,
I NC .
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By:
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Title:
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David C.
Francisco, Treasurer
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Signature Page to
Sixteenth Amendment to Receivables Sale
Agreement
G UARANTOR ’ S A CKNOWLEDGMENT AND C ONSENT
The undersigned, PerkinElmer, Inc.,
has heretofore executed and delivered the Limited Guaranty dated as
of December21, 2001 (the “Guaranty” ) and hereby
consents to the Amendment to the Sale Agreement as set forth above
and confirms that the Guaranty and all of the undersigned’s
obligations thereunder remain in full force and effect. The
undersigned further agrees that the consent of the undersigned to
any further amendments to the Sale Agreement shall not be required
as a result of this consent having been obtained, except to the
extent, if any, required by the Guaranty referred to
above.
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P
ERKIN E LMER ,
I NC .
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By:
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Title:
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David C.
Francisco, Treasurer
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E XHIBIT A
F ORM OF L OCK B OX L ETTER
,
20
Bank of America N.A.
Attn: Brian Dewey,
Vice President Global Treasury
Services
335 Madison Avenue
New York, NY 10017
Ladies and Gentlemen:
Reference is made to the lock-box
addresses ( “Lockbox Addresses” ) and the
associated lock-box demand deposit account numbers (
“Accounts” ) listed on Exhibit A attached hereto
as Exhibit A and incorporated herein maintained with Bank of
America N.A. ( “Bank” ) in the name of
PerkinElmer Receivables Company, a Delaware Corporation (the
“Seller” ). The Seller hereby confirms it has
sold all Receivables (as defined below) to Agent (as defined
below).
In connection with the Receivables
Sale Agreement, dated as of December 21, 2001 (as amended,
supplemented or otherwise modified from time to time, the
“Receivables Sale Agreement” ), among the Seller
and the Initial Collection Agent, Windmill Funding Corporation (
“Windmill” ), the financial institutions from
time to time party thereto (collectively, the “Committed
Purchasers” ), and The Royal Bank of Scotland plc
(successor to ABN AMRO Bank N.V.), as agent (the
“Agent” ) for Windmill, (collectively, the
“Purchasers” ), the Seller has assigned to the
Agent for the benefit of the Purchasers an undivided percentage
interest in the accounts, chattel paper, instruments or general
intangibles, including but not limited to the checks and other
payment instruments, originated by Seller and sold to the Seller,
(collectively the “Receivables” ) under which
payments are or may hereafter be made to the Accounts, and has
granted to the Agent for the benefit of the Purchasers a security
interest in its retained interest in such Receivables.
Seller, Agent and Bank are entering
into this letter agreement ( “Agreement” ) to
provide for the disposition of net proceeds of Receivables
deposited in Seller’s Accounts maintained with Bank.
Bank’s execution of this Agreement is a condition precedent
to the continued maintenance of the Accounts with Bank.
Seller hereby transfer exclusive
dominion and control of the Accounts to the Agent, subject only to
the condition subsequent that the Agent shall have given Bank
notice that a Collection Agent Replacement Event has occurred and
is continuing under the Receivables Sale Agreement and of
Agent’s election to assume such dominion and control, which
notice shall be in substantially the form attached hereto as
Exhibit B (the “Agent’s Notice”
).
At all times prior to the receipt of
the Agent’s Notice described above, all payments to be made
by Bank out of, or in connection with the Accounts, are to be made
in accordance with the instructions of Seller or its agent and Bank
may permit Seller to operate and transact business through the
Accounts in a normal fashion, including making withdrawals from the
Accounts.
Seller hereby irrevocably instructs
Bank, at all times commencing within a reasonable period of time
not to exceed two Business Days from and after the date of
Bank’s receipt of the Agent’s Notice as described
above, to transfer by wire all available balances in the Accounts
directly to the Agent in accordance with the instructions of
Agent’s Notice. “Business Day” means each
Monday through Friday, excluding Bank holidays. Funds are not
available if, in the reasonable determination of Bank, they are
subject to a hold, dispute or legal process preventing their
withdrawal. Agent will give Bank sufficient advance written notice
of any change in the instructions for Bank to act upon such
changes.
Seller also hereby notifies Bank
that, at all times commencing within a reasonable period of time
not to exceed two Business Days from and after the date of
Bank’s receipt of the Agent’s Notice as described
above, the Agent shall be irrevocably entitled to exercise in
Seller’s place and stead any and all rights in connection
with the Accounts, including, without limitation, (a) the
right to specify when payments are to be made out of, or in
connection with, the Accounts and (b) the right to require
preparation of duplicate monthly bank statements on the accounts
for the Agent’s audit purpose and mailing of such statements
directly to an address specified by the Agent. At all times
commencing within a reasonable period of time not to exceed two
Business Days from and after the date of Bank’s receipt of
the Agent Notice, neither Seller nor any of its affiliates shall be
given any access to the Accounts.
The Agent’s Notice or any
written notice or other written communication to be given under
this Agreement may be personally served or sent by telex, facsimile
or U.S. mail, certified return receipt requested, to the address,
telex or facsimile number set forth under each party’s
signature to this Agreement (or to such other address, telex or
facsimile number as to which a party may specify in writing).
Except as otherwise expressly provided herein, all such notices
will be effective when actually received or, in the case of
personal delivery, delivered.
By executing this Agreement, Bank
acknowledges the existence of the Agent’s right to dominion
and control of the Accounts and its security interest in the
amounts from time to time on deposit therein and agrees that from
the date hereof the Accounts shall be maintained by Bank for the
benefit of the Agent on the terms provided herein. The Accounts are
to be entitled “PerkinElmer Receivables Company”
and “The Royal Bank of Scotland plc.” Except as
otherwise provided in this Agreement, payments to the Accounts are
to be processed in accordance with the Bank’s usual operating
procedures for the handling of any Receivables, in accordance with
the Bank’s Standard Terms and Conditions attached hereto as
Exhibit C and incorporated herein, except as modified by this
Agreement, that are currently in effect. Bank will charge each
Account for all returned Receivables on that Account. All other
service charges and other fees and charges generated in connection
with the Accounts, the Lockbox Services or this Agreement shall
continue to be payable by Seller under the arrangements currently
in effect. Bank will follow its usual procedures in the event the
Lockbox Addresses, the Accounts or any Receivable should be or
become the subject of any writ, levy, order or other similar
judicial or regulatory order or process.
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By executing this Agreement, Bank
(a) waives and agrees not to assert clai