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) ▇▇▇▇▇▇ 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 ("▇▇▇▇▇▇▇ ▇▇▇▇▇▇" 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.
"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
that such representation or warranty expressly relates to an earlier date, in
which case, such representation and warranty is true and correct in all material
respects as of such earlier date.
(b) The execution, delivery and performance by it of this Amendment
has been duly authorized by all necessary corporate action required on its part
and this Amendment is its legal, valid and binding obligation enforceable
against it in accordance with its terms, except as its enforceability may be
affected by the effect of bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting the
rights or remedies of creditors generally.
(c) Neither its execution, delivery and performance of this
Amendment nor the consummation of the transactions contemplated hereby does or
shall contravene, result in a breach of, or violate (i) any provision of its
organizational documents, (ii) any law or regulation, or any order or decree of
any court or government instrumentality, or (iii) any indenture, mortgage, deed
of trust, lease, agreement or other instrument to which it is a party or by
which it or any of its property is bound, except in any such case to the extent
such conflict or breach has been waived by a written waiver document, a copy of
which has been delivered to Agents on or before the date hereof.
(d) After giving effect to this Amendment, no Amortization Event or
Potential Amortization Event has occurred and is continuing.
SECTION 4. REFERENCE TO AND EFFECT UPON THE RECEIVABLES TRANSFER AGREEMENT.
(a) Except as specifically set forth above, the Receivables Transfer
Agreement and the other Transaction Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(b) The amendments set forth herein are effective solely for the
purposes set forth herein and shall be limited precisely as written, and shall
not be deemed to (i) be a consent to any amendment, waiver or modification of
any other term or condition of the Receivables Transfer Agreement or any other
Transaction Document, (ii) operate as a waiver or otherwise prejudice any right,
power or remedy that the Agents may now have or may have in the future under or
in connection with the Receivables Transfer Agreement or any other Transaction
Document or (iii) constitute a waiver of any provision of the Receivables
Transfer Agreement or any Transaction Document, except as specifically set forth
herein. Upon the effectiveness of this Amendment, each reference in the
Receivables Transfer Agreement to "this Agreement", "herein", "hereof" and words
of like import and each reference in the Receivables Transfer Agreement and the
Transaction Documents to the Receivables Transfer Agreement shall mean the
Receivables Transfer Agreement as amended hereby. This Amendment shall be
construed in connection with and as part of the Receivables Transfer Agreement.
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SECTION 5. COSTS AND EXPENSES.
As provided in Section 10.2 of the Receivables Transfer Agreement,
Transferor agrees to reimburse Agents for all fees, costs and expenses,
including the reasonable fees, costs, and expenses of counsel in connection with
this Amendment.
SECTION 6. GOVERNING LAW.
THIS AMENDMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS
OF LAWS THEREOF OTHER THAN SECTION 5-1401 ET SEQ. OF THE GENERAL OBLIGATIONS
LAW.
SECTION 7. COUNTERPARTS; SEVERABILITY; SECTION REFERENCES.
This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same Amendment. Delivery of an executed counterpart
of a signature page to this Amendment by telecopier shall be effective as
delivery of a manually executed counterpart of a signature page to this
Amendment. Any provisions of this Amendment which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purposes.
SECTION 8. CONFIDENTIALITY.
The matters set forth herein are subject to Section 13.5 of the
Receivables Transfer Agreement, which is incorporated herein by reference.
[signature pages follow]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the
date first written above.
FSI RECEIVABLES COMPANY LLC, AS TRANSFEROR
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Chief
Financial Officer
▇▇▇▇▇▇ SCIENTIFIC INTERNATIONAL INC., AS SERVICER
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Chief
Financial Officer
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THE BANK OF NOVA SCOTIA, INDIVIDUALLY, AS LIBERTY STREET AGENT AND AS
ADMINISTRATIVE AGENT
By: /s/ Authorized Officer
---------------------------------
Name:
Title:
LIBERTY STREET FUNDING CORP.
By: /s/ Authorized Officer
---------------------------------
Name:
Title:
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CALYON NEW YORK BRANCH, INDIVIDUALLY AND AS ATLANTIC AGENT
By: /s/ Authorized Officer
---------------------------------
Name:
Title:
By: /s/ Authorized Officer
---------------------------------
Name:
Title:
ATLANTIC ASSET SECURITIZATION CORP.
BY: CALYON NEW YORK BRANCH, AS ATTORNEY-IN-FACT
By: /s/ Authorized Officer
---------------------------------
Name:
Title:
By: /s/ Authorized Officer
---------------------------------
Name:
Title:
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ANNEX A
EXHIBIT XI
[FORM OF] DEMAND NOTE
October 1, 2005
FOR VALUE RECEIVED, on the earlier of (i) demand and (ii) October 1,
2020, ▇▇▇▇▇▇ Scientific International Inc., a Delaware corporation (together
with its successors, the "MAKER"), promises to pay to FSI Receivables Company
LLC, a Delaware limited liability company (together with its successors and
assigns, the "PAYEE"), the aggregate principal amount advanced by the Payee to
the Maker from time to time on or after the date hereof, together with interest
thereon from the date advanced to but excluding the date when paid as
hereinafter provided.
The Maker promises to pay interest in arrears quarterly on the fifth
Business Day (as defined below) of the month immediately following each accrual
period. As used herein, the term "BUSINESS DAY" shall mean each banking day in
New York, New York. The accrual periods will run from the first day in October,
January, April and July through the last day in December, March, June and
September, respectively. The first interest payment will be made on January 6,
2006, and thereafter on the fifth Business Day of each of April, July, October
and January on the unpaid principal balance of each advance made hereunder
(each, a "LOAN") at a rate per annum (computed for actual days elapsed on the
basis of a year consisting of 360 days) equal to the sum of 3-month LIBOR plus
100 basis points prior to maturity, As used herein, "LIBOR" shall mean, for any
3-month period, the rate per annum which appears on a Bloomberg L.P. terminal,
displayed under the address "US0003M Q " effective as of 11:00 a.m.
(London time), two Business Days prior to the beginning of the accrual period.
The Payee is hereby authorized and directed to record the date and
amount of each Loan made hereunder, together with interest accrued thereon, in
its financial records in accordance with generally accepted accounting
practices.
All payments of principal and interest hereunder shall be made in
immediately available funds, without deduction for setoff, counterclaim or taxes
of any kind, to the bank account from time to time specified in writing by the
Payee.
If (i) the Maker or any of its subsidiaries shall generally not pay
its debts as such debts become due or shall admit in writing its inability to
pay its debts generally or shall make a general assignment for the benefit of
creditors; (ii) any proceeding shall be instituted by the Maker or any of its
subsidiaries seeking to adjudicate it bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee or other similar
official for it or any substantial part of its property, (iii) any proceeding of
the type described in the preceding clause (ii) shall be instituted against the
Maker or any of its
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subsidiaries and shall continue undismissed, or unstayed and in effect, for a
period of 60 consecutive days; or (iv) an order for relief in respect of the
Maker or any of its subsidiaries shall be entered in an involuntary case under
the federal bankruptcy laws or other similar laws now or hereafter in effect, or
(v) the Maker or any of its subsidiaries shall take any corporate action to
authorize any of the actions set forth in clauses (i) or (ii) above in this
paragraph, the Loans shall immediately become due and payable without any
election, action or notice on the part of the Payee, and the Maker hereby waives
presentment, demand, protest or notice of any kind to the maximum extent
permitted by applicable law.
The Maker promises to pay all reasonable expenses of the Payee
incurred in connection with the collection and enforcement hereof, including,
without limitation, the reasonable fees and disbursements of counsel to the
Payee.
THIS DEMAND NOTE AND THE LOANS SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO
THE CONFLICT OF LAWS PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF
THE NEW YORK GENERAL OBLIGATIONS LAW WHICH SHALL APPLY HERETO).
THE MAKER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN THE
BOROUGH OF MANHATTAN IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS DEMAND NOTE OR THE LOANS AND THE MAKER HEREBY IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE
AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT
OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE
RIGHT OF THE PAYEE TO BRING PROCEEDINGS AGAINST THE MAKER IN THE COURTS OF ANY
OTHER JURISDICTION WHEREIN ANY ASSETS OF THE MAKER MAY BE LOCATED.
THE MAKER HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
THIS DEMAND NOTE OR THE LOANS.
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The Maker hereby acknowledges that the Payee has pledged all of its
existing and hereafter arising right, title and interest in, to and under this
Demand Note and the Loans to The Bank of Nova Scotia, a Canadian chartered bank
acting through its New York Agency, in its capacity as administrative agent for
various transferees of interests in the Payee's receivables (including itself,
Atlantic Asset Securitization Corp., Liberty Street Funding Corp., Calyon New
York Branch, and their respective successors assigns).
▇▇▇▇▇▇ SCIENTIFIC INTERNATIONAL INC.
By:
---------------------------------
Name:
Title:
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