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Dated as of January 23, 2009 to RECEIVABLES SALE AGREEMENT

Receivables Purchase Transfer Agreement

Dated as of January 23, 2009 to RECEIVABLES SALE AGREEMENT | Document Parties: PERKINELMER INC | ABN AMRO Bank NV | Global Securitization Services, LLC | GREENWICH CAPITAL MARKETS, INC | PerkinElmer Receivables Company | PerkinElmer, Inc | ROYAL BANK OF SCOTLAND PLC | Windmill Funding Corporation You are currently viewing:
This Receivables Purchase Transfer Agreement involves

PERKINELMER INC | ABN AMRO Bank NV | Global Securitization Services, LLC | GREENWICH CAPITAL MARKETS, INC | PerkinElmer Receivables Company | PerkinElmer, Inc | ROYAL BANK OF SCOTLAND PLC | Windmill Funding Corporation

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Title: Dated as of January 23, 2009 to RECEIVABLES SALE AGREEMENT
Governing Law: Illinois     Date: 2/26/2009
Industry: Scientific and Technical Instr.     Law Firm: Chapman Cutler     Sector: Technology

Dated as of January 23, 2009 to RECEIVABLES SALE AGREEMENT, Parties: perkinelmer inc , abn amro bank nv , global securitization services  llc , greenwich capital markets  inc , perkinelmer receivables company , perkinelmer  inc , royal bank of scotland plc , windmill funding corporation
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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:

 

S ECTION

1. A MENDMENT

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.

 

T HE R OYAL B ANK OF S COTLAND PLC

By:

 

G REENWICH C APITAL M ARKETS , I NC ., as agent

By:

 

/s/ David Viney

Name:

 

David Viney

Title:

 

Managing Director

Address:

 

c/o ABN AMRO Bank N.V.

 

540 West Madison Street

 

27th Floor

 

Chicago, Illinois 60661

 

Attention: Agent

 

Telephone: (312) 338-3491

 

Telecopy: (312) 338-0140

Signature Page to

Sixteenth Amendment to Receivables Sale Agreement


W INDMILL F UNDING C ORPORATION

By:

 

/s/ Jill A. Russo

Name:

 

Jill A. Russo

Title:

 

Vice President

Address:

 

c/o Global Securitization Services, LLC

68 South Service Road

Suite 120

Melville, New York 11747

Attention: Frank B. Bilotta

Telephone: (212) 302-5151

Telecopy: (212) 302-8767

With a copy to:

The Royal Bank of Scotland plc

Greenwich Capital Markets, Inc., as agent

c/o ABN AMRO Bank N.V.

540 West Madison Street

27th Floor

Chicago, Illinois 60661

Attention: Windmill Administrator

Telephone: (312)338-3491

Telecopy: (312) 338-0140

Signature Page to

Sixteenth Amendment to Receivables Sale Agreement


P ERKIN E LMER R ECEIVABLES C OMPANY

By:

 

/s/ John L. Healy

Title:

 

John L. Healy, President

P ERKIN E LMER , I NC .

By:

 

/s/ David C. Francisco

Title:

 

David C. Francisco, Treasurer

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.

 

P ERKIN E LMER , I NC .

By:

 

/s/ David C. Francisco

Title:

 

David C. Francisco, Treasurer


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


 
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