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EXHIBIT 10.37
FIRST AMENDMENT
TO
AMENDED AND RESTATED RECEIVABLES TRANSFER AGREEMENT
This
FIRST AMENDMENT TO AMENDED AND RESTATED RECEIVABLES TRANSFER
AGREEMENT (this "AMENDMENT"), is entered into as of October 1, 2005
by and among
(a) FSI Receivables Company LLC, a Delaware limited liability
company
("TRANSFEROR"), (b) Fisher Scientific International Inc., a
Delaware corporation
("PARENT"), as initial Servicer, (c) Atlantic Asset Securitization
Corp., a
Delaware corporation ("ATLANTIC" or a "CONDUIT"), and Liberty
Street Funding
Corp., a Delaware corporation ("LIBERTY STREET" or a "CONDUIT"),
(d) Calyon New
York Branch, a French chartered bank acting through its New York
branch
("CALYON" and, together with Atlantic, the "ATLANTIC GROUP"), The
Bank of Nova
Scotia, a Canadian chartered bank acting through its New York
Agency
("SCOTIABANK" and, together with Liberty Street, the "LIBERTY
STREET GROUP"),
(e) Calyon, in its capacity as agent for the Atlantic Group (a
"CO-AGENT"),
Scotiabank, in its capacity as agent for the Liberty Street Group
(a
"CO-AGENT"), and (f) Scotiabank, in its capacity as administrative
agent for the
Atlantic Group, the Liberty Street Group and the Co-Agents (in such
capacity,
together with its successors and assigns, the "ADMINISTRATIVE
AGENT" and,
together with each of the Co-Agents, the "AGENTS"). Unless defined
elsewhere
herein, capitalized terms used in this Amendment shall have the
meanings
attributed to such terms in Exhibit I to the Receivables Transfer
Agreement (as
defined below) or, if not defined in the Receivables Transfer
Agreement, the
meanings attributed to such term in the Receivables Purchase
Agreement
referenced therein.
RECITALS
WHEREAS, Transferor, Parent, the Atlantic Group, the Liberty
Street
Group and the Agents are parties to that certain Amended and
Restated
Receivables Transfer Agreement dated as of February 4, 2005 (the
"RECEIVABLES
TRANSFER AGREEMENT" ); and
WHEREAS, Transferor, Parent, the Atlantic Group, the Liberty
Street
Group and the Agents desire to amend certain provisions of the
Receivables
Transfer Agreement as herein set forth.
NOW, THEREFORE, in consideration of the foregoing recitals,
mutual
agreements contained herein and for good and valuable consideration
the receipt
and sufficiency of which are hereby acknowledged, Transferor,
Parent, the
Atlantic Group, the Liberty Street Group and the Agents hereby
agree as follows:
SECTION 1. AMENDMENTS.
1.1. The following new definitions are hereby inserted in their
appropriate alphabetical order in Exhibit I to the Receivables
Transfer
Agreement:
"DEMAND ADVANCE" means an advance of Excess Cash made by
Transferor
to Parent
prior to the Amortization Date which (i) is payable on demand,
(ii) bears
interest at a market rate in excess of Transferor's cost of
funds, and
(ii) is evidenced by the Demand Note.
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"DEMAND NOTE" means that certain demand note dated October 1,
2005
made by
Transferor in favor of Parent in the form of Exhibit XI hereto.
"EXCESS
CASH" means, on any date of determination, cash of
Transferor
which is not (a) needed to pay for Receivables under the
Receivables Purchase Agreement, (b) needed to pay Transferor's
operating
expenses
for a period of at least the next 30 days, or (c) known by the
Transferor
to be required to be paid to any of the Agents or the
Purchasers
pursuant to the Transaction Documents on the next Settlement
Date.
1.2. The definition of "Related Security" in Exhibit I to the
Receivables Transfer Agreement is hereby amended and restated in
its entirety to
read as follows:
"RELATED SECURITY" means, with respect to any Receivable:
(i) all "Related Security" under and as defined in the
Receivables
Purchase
Agreement in which Transferor now has or hereafter acquires any
right,
title or interest,
(ii) all of Transferor's right, title and interest in, to and
under
the
Receivables Purchase Agreement in respect of such Receivable and
all
of
Transferor's right, title and interest in, to and under the
Performance
Undertaking,
(iii) all of Transferor's right, title and interest in, to and
under
the Demand
Note and all Demand Advances evidenced thereby; and
(iv) all proceeds of any of the foregoing.
Transferor hereby confirms that pursuant to the Receivables
Transfer Agreement
as amended hereby, the Administrative Agent has been granted a
security interest
in all of Transferor's right, title and interest in, to and under
the Demand
Note and the Demand Advances.
1.3. The definition of "Transaction Documents" in Exhibit I to
the
Receivables Transfer Agreement is hereby amended and restated in
its entirety to
read as follows:
"TRANSACTION DOCUMENTS" means, collectively, this Agreement,
each
Transfer
Notice, the Receivables Purchase Agreement, each Collection
Account
Agreement, each Joinder Agreement, the Performance Undertaking,
the Fee
Letters, the Liquidity Agreements, the Demand Note, and all
other
instruments, documents and agreements executed and delivered in
connection
herewith.
1.4. A new Exhibit XI is hereby added to the Receivables
Transfer
Agreement which reads as set forth in Annex A hereto.
1.5. The following new sentence is hereby added to the end of
Section 2.1 of the Receivables Transfer Agreement:
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If, on any Settlement Date, the Collections are insufficient to
pay
any
Obligations that are then due, Transferor will make demand upon
the
Parent for
payment of the Demand Advances in an amount at least equal to
the lesser
of (x) the amount of such insufficiency, or (y) the aggregate
outstanding principal balance of the Demand Advances, together with
all
accrued
and unpaid interest thereon at the rate specified in the Demand
Note, and
any payments received from the Parent shall be distributed in
accordance with
Section 2.2 or 2.3, as applicable, as though they were
Collections.
1.6. The following new Section 2.3(c) is hereby added to the
Receivables Transfer Agreement:
(c) On the Amortization Date, Transferor shall make demand upon
the
Parent for
payment in full of the Demand Advances, together with all
accrued
and unpaid interest thereon, and any payments received from the
Parent
shall be distributed in accordance with this Section 2.3 as
though
they were
Collections.
1.7. Section 7.1(i)(L) of the Receivables Transfer Agreement is
hereby amended to delete "this Agreement and the Receivables
Purchase Agreement"
where it appears in the fourth line thereof and to substitute in
lieu thereof
"the Transaction Documents".
1.8. Section 9.2 of the Receivables Transfer Agreement is
hereby
amended to insert the following language before the comma at the
end of clause
(iii) thereof:
and make
demand for payment of the Demand Advances and all interest
accrued
and unpaid interest thereon.
SECTION 2. CONDITIONS TO EFFECTIVENESS; EFFECTIVE DATE.
This Amendment will be effective as of the date hereof upon the
satisfaction of the following conditions precedent:
(a) Execution and delivery of this Amendment by the Transferor,
Parent, the Atlantic Group, the Liberty Street Group and the
Agents, and
(b) Execution of the Demand Note by Parent and endorsement and
delivery thereof by the Transferor to the Administrative Agent to
be held as
collateral under the Receivables Transfer Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
In order to induce the Atlantic Group and the Liberty Street
Group
to enter into this Amendment, each Transferor Party hereby
represents and
warrants to the Agents and the Transferees, as to itself, as of the
date hereof
and as of the date of each Incremental Transfer and the date of
each
Reinvestment, that:
(a) Each representation and warranty contained in the
Receivables
Transfer Agreement and in each Transaction Document, after giving
effect to this
Amendment, is true and
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correct in all material respects as of the date hereof, except to
the extent
t
