Exhibit 10.13
CONFORMED COPY
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Perkinelmer, Inc.,
Perkinelmer Holdings, Inc.,
Perkinelmer Life Sciences, Inc.,
Receptor Biology, Inc.,
Perkinelmer Instruments LLC,
Perkinelmer Optoelectronics NC, Inc.,
Perkinelmer Optoelectronics SC, Inc.
and
Perkinelmer Canada, Inc.,
as Originators,
and
Perkinelmer Receivables Company,
as Buyer
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TABLE OF CONTENTS
SECTION HEADING PAGE
SECTION 1. DEFINITIONS AND RELATED MATTERS.............................1
Section 1.1. Defined Terms...............................................1
Section 1.2. Other Interpretive Matters..................................2
SECTION 2. AGREEMENT TO CONTRIBUTE, PURCHASE AND SELL....................2
Section 2.1. Purchase and Sale...........................................2
Section 2.2. Timing of Contribution, Purchases...........................3
Section 2.3. Purchase Price..............................................3
Section 2.4. Transfer of Records to Buyer................................4
Section 2.5. No Recourse or Assumption of Obligations....................4
SECTION 3. ADMINISTRATION AND COLLECTION.................................5
Section 3.1. Collection Agent............................................5
Section 3.2. Deemed Collections..........................................5
Section 3.3. Application of Collections..................................6
Section 3.4. Responsibilities of Originator..............................6
SECTION 4. REPRESENTATIONS AND WARRANTIES................................6
Section 4.1. Mutual Representations and Warranties.......................6
Section 4.2. Additional Representations by Each Originator...............7
SECTION 5. GENERAL COVENANTS.............................................8
Section 5.1. Covenants...................................................8
Section 5.2. Organizational Separateness................................12
SECTION 6. TERMINATION OF PURCHASES.....................................12
Section 6.1. Voluntary Termination......................................12
Section 6.2. Automatic Termination......................................12
SECTION 7. INDEMNIFICATION..............................................12
Section 7.1. Originators' Indemnity.....................................12
Section 7.2. Indemnification Due to Failure to Consummate Purchase......13
SECTION 8. MISCELLANEOUS................................................13
Section 8.1. Amendments, Waivers, Etc...................................13
Section 8.2. Assignment of Receivables Purchase Agreement...............14
Section 8.3. Binding Effect; Assignment.................................14
Section 8.4. Survival...................................................14
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Section 8.5. Costs, Expenses and Taxes..................................14
Section 8.6. Execution in Counterparts; Integration.....................15
Section 8.7. Governing Law; Submission to Jurisdiction..................15
Section 8.8. No Proceedings.............................................15
Section 8.9. Loans by Buyer to Originators..............................15
Section 8.10. Notice.....................................................15
Section 8.11. Entire Agreement...........................................15
Section 8.12. Payments in Relevant Currency..............................15
SIGNATURE..................................................................17
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THIS PURCHASE AND SALE AGREEMENT dated as of December 21, 2001 (this
"Agreement") is among PERKINELMER, INC., a Massachusetts corporation,
PERKINELMER HOLDINGS, INC., a Massachusetts corporation, PERKINELMER LIFE
SCIENCES, INC., Delaware, corporation, RECEPTOR BIOLOGY, INC., a Delaware
corporation, PERKINELMER INSTRUMENTS LLC, a Delaware limited liability company,
PERKINELMER OPTOELECTRONICS NC, INC., a Delaware corporation, PERKINELMER
OPTOELECTRONICS SC, INC., a Delaware corporation, and PERKINELMER CANADA, INC.,
a Canada corporation (each an "Originator" and collectively, the "Originators"),
and PERKINELMER RECEIVABLES COMPANY, a Delaware corporation ("Buyer"). The
parties agree as follows:
SECTION 1. DEFINITIONS AND RELATED MATTERS.
Section 1.1. Defined Terms. In this Agreement, unless otherwise specified
or defined herein: (a) capitalized terms are used as defined in Schedule I to
the Receivables Sale Agreement dated as of the date hereof (as amended or
modified from time to time, the "Second Tier Agreement") among Buyer,
PerkinElmer, Inc., as collection agent (the "Initial Collection Agent"),
Windmill Funding Corporation, the committed purchasers party thereto, and ABN
AMRO Bank N.V. as the Agent, as such agreement may be amended or modified from
time to time; and (b) terms defined in Article 9 of the UCC and not otherwise
defined herein are used as defined in such Article 9 as in effect on the date
hereof.
In addition, the following terms will have the meanings specified below:
"Applicable Locations" means the following business locations of
PerkinElmer:
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇. ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
"Available Funds" is defined in Section 2.3(b) hereof.
"Closing Date" means the date on which this Agreement and the Second Tier
Agreement become effective in accordance with their terms.
"Excluded Losses" is defined in Section 7.1 hereof.
"Initial Funding Date" means December 21, 2001.
"Outstanding Balance" means, with respect to a Receivable at any time, the
outstanding principal balance thereof.
"Purchase Price" means, with respect to each Purchase, the product
obtained by multiplying (a) one minus the Required Discount as of the date of
such Purchase by (b) the Outstanding Balance of the Receivables purchased.
"Required Discount" means, two percent (2%) with respect to all
Originators until, as to any Originator, such Originator and the Buyer determine
otherwise.
"Settlement Date" means, with respect to any Settlement Period, the
twentieth day of the immediately succeeding calendar month (or, if such day is
not a Business Day, the next preceding Business Day).
"Settlement Period" means a calendar month (or, in the case of the first
Settlement Period, the period from the Initial Funding Date to the end of the
next succeeding calendar month following the calendar month in which the Initial
Funding Date occurs).
"Sold Property" is defined in Section 2.1.
"United States Originator" means any Originator other than the Canadian
Originator.
Section 1.2. Other Interpretive Matters. In this Agreement, unless
otherwise specified: (a) references to any Section or Annex refer to such
Section of, or Annex to, this Agreement, and references in any Section or
definition to any subsection or clause refer to such subsection or clause of
such Section or definition; (b) "herein," "hereof," "hereto," "hereunder" and
similar terms refer to this Agreement as a whole and not to any particular
provision of this Agreement; (c) "including" means including without limitation,
and other forms of the verb "to include" have correlative meanings; (d) the word
"or" is not exclusive; and (e) captions are solely for convenience of reference
and shall not affect the meaning of this Agreement.
SECTION 2. AGREEMENT TO CONTRIBUTE, PURCHASE AND SELL.
Section 2.1. Purchase and Sale. On the terms and subject to the conditions
set forth in this Agreement, each Originator hereby sells to Buyer, and Buyer
hereby purchases from each Originator, all of such Originator's right, title and
interest in, to and under the Receivables originated by such Originator, all
Related Security and all proceeds thereof (including all Collections with
respect thereto) (the "Sold Property"), in each case whether now existing or
hereafter arising or acquired. The Originators and the Buyer hereby confirm and
agree that for the purposes of this Agreement, that "Receivables" of PerkinElmer
Canada sold hereunder shall include only accounts receivable owed by United
States-based Persons that pay such Receivables from the United States payable in
United States dollars and that "Receivables" of PerkinElmer shall include only
the accounts receivable originated and invoiced from the Applicable Locations.
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Section 2.2. Timing of Contribution, Purchases. $3,500,000 of the
Receivables of PerkinElmer, Inc. existing at the opening of PerkinElmer, Inc.'s
business on the Initial Funding Date are hereby contributed by PerkinElmer, Inc.
as capital to Buyer on the Initial Funding Date. All of the remaining
Receivables and Related Security existing at the opening of the Originators'
business on the Initial Funding Date are hereby sold to Buyer as of the Initial
Funding Date. On each Business Day after the Initial Funding Date, until the
occurrence of the Termination Date, each Originator agrees to sell to the Buyer;
and the Buyer agrees to buy from each Originator, all Receivables existing as of
the close of business on the immediately preceding Business Day which have not
been previously purchased hereunder, together with all of the Related Security
relating to such Receivables and all Collections with respect to and other
proceeds of such Receivables. Until the Termination Date, each purchase
described in the preceding sentence shall automatically occur at 3:00 p.m. (New
York time) on the date of such purchase subject to the payment of the Purchase
Price under Section 2.3, but otherwise without further action on the part of the
Originator and the Buyer. The proceeds with respect to each Receivable
(including all Collections with respect thereto) shall be sold at the same time
as such Receivable, whether such proceeds (or Collections) exist at such time or
arise or are acquired thereafter.
Section 2.3. Purchase Price. (a) The aggregate purchase price for the
Receivables originated by an Originator sold on the Initial Funding Date shall
be the Purchase Price. The purchase price for Receivables subsequently sold
during any Settlement Period shall be calculated in accordance with the Purchase
Price then in effect.
(b) On the Initial Funding Date, Buyer shall pay each Originator the
purchase price for the Receivables originated by it sold on that date. On each
Business Day after the Initial Funding Date on which an Originator sells any
Receivables originated by it to Buyer pursuant to the terms of Section 2.1,
until the termination of the purchase and sale of Receivables under Section 6
hereof, Buyer shall pay to such Originator the purchase price of such
Receivables (i) by depositing into such account as such Originator shall specify
immediately available funds from monies then held by or on behalf of Buyer
solely to the extent that such monies do not constitute Collections that are
required to be identified or are deemed to be held by the Collection Agent
pursuant to the Second Tier Agreement for the benefit of, or required to be
distributed to, the Agent or the Purchasers pursuant to the Second Tier
Agreement or required to be paid to the Collection Agent as the Collection Agent
Fee, or otherwise necessary to pay current expenses of Buyer (in its reasonable
discretion) (such available monies, the "Available Funds") and provided that
such Originator has paid all amounts then due by such Originator hereunder or
(ii) by increasing the principal amount owed to such Originator under a
promissory note (as amended or modified from time to time, each a "Subordinated
Note" and collectively the "Subordinated Notes") executed and delivered by Buyer
to the order of such Originator as of the Initial Funding Date; provided,
however, that the Buyer may not increase the principal amount owed under a
Subordinated Note if, as a result thereof (and after giving effect thereto), the
Buyer's net worth (calculated after giving effect to all such purchases and all
outstanding Subordinated Notes) would be less than three percent (3%) of the
aggregate Outstanding Balance of Receivables at such time. The outstanding
principal amount owed to an Originator under the related Subordinated Notes may
be reduced from time to time as provided in Section 3.2 hereof or by payments
made by Buyer from Available Funds, provided that such Originator has paid all
amounts then due to Buyer by such Originator hereunder. Each Originator shall
make all
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appropriate record keeping entries with respect to amounts due to such
Originator under the related Subordinated Notes to reflect payments by Buyer
thereon and increases of the principal amount thereof, and such Originator's
books and records shall constitute rebuttable presumptive evidence of the
principal amount of and accrued interest owed to such Originator under the
related Subordinated Notes. Each Originator, by accepting the proceeds of the
Purchase Price for a sale of Receivables, shall be deemed to have certified to
the Buyer the satisfaction of all conditions precedent to such sale, and title
to the Receivables included in such sale shall vest in the Buyer regardless of
whether the conditions precedent have in fact been satisfied. All amounts to be
paid by the Buyer to an Originator hereunder shall be paid in accordance with
the terms hereof no later than 12:00 p.m. (New York time) on the date when due
in immediately available funds to such accounts as the Originator may from time
to time specify in writing. Payments received by an Originator after such time
shall be deemed to have been received on the next Business Day. In the event
that any payment becomes due on a day which is not a Business Day, then such
payment shall be made on the next succeeding Business Day. The Buyer shall, to
the extent permitted by law, pay to each Originator, on demand, interest on all
amounts not paid when due hereunder at 2% per annum above the Prime Rate in
effect on the date such payment was due; provided, however, that such interest
rate shall not at any time exceed the maximum rate permitted by applicable law.
All computations of interest payable hereunder shall be made on the basis of a
year of 360 days for the actual number of days (including the first but
excluding the last day) elapsed.
Section 2.4. Transfer of Records to Buyer. (a) Each purchase of
Receivables hereunder shall include the transfer to the Buyer of all of the
applicable Originator's right and title to and interest in the records relating
to such Receivables and rights to the use of the Originator's computer software
to access and create the records, and each Originator hereby agrees that such
transfer shall be effected automatically with each such purchase, without any
action on the part of the parties hereto or any further documentation.
(b) Each Originator shall take such action reasonably requested by the
Buyer, from time to time hereafter, that may be necessary or appropriate to
ensure that the Buyer and its assignees have an enforceable ownership interest
in the records relating to the Receivables purchased hereunder, including the
rights to the use of computer software to access and create the records.
Section 2.5. No Recourse or Assumption of Obligations. The contribution,
purchase and sale of Receivables under this Agreement shall be without recourse
to the Originators, provided, however, that (i) each Originator shall be
severally liable to the Buyer for all representations, warranties and covenants
made by such Originator pursuant to this Agreement and (ii) such contribution,
purchase and sale does not constitute and is not intended to result in an
assumption by the Buyer of any assignee of any obligation of the Originators or
any other person arising in connection with the Receivables. Each Originator and
Buyer intend that the sale transactions hereunder shall be absolute and
irrevocable and shall constitute true sales of Receivables by such Originator to
Buyer, providing Buyer with the full risks and benefits of ownership of the
Receivables originated by such Originator (such that the Receivables would not
be property of such Originator's estate in the event of such Originator's
bankruptcy). If, however, with respect to Sold Property conveyed to the Buyer by
the Originators, despite the intention of the parties, the conveyances provided
for in this Agreement are determined not to be "true sales" of such Sold
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Property from the Originators to Buyer, then this Agreement shall also be deemed
to be a "security agreement" within the meaning of Article 9 of the UCC and (i)
each United States Originator hereby grants to Buyer a "security interest"
within the meaning of Article 9 of the UCC, (ii) PerkinElmer Canada, Inc. hereby
grants to Buyer a "security interest" within the meaning of the Personal
Property Act (Ontario) and a "movable hypotec" within the meaning of the Civil
Code of Quebec, and, in all of such Originator's right, title and interest in
and to the such Sold Property, now existing and thereafter created, to secure a
loan in an amount equal to the aggregate purchase prices therefor and each of
such Originator's other payment obligations under this Agreement.
Buyer shall not have any obligation or liability with respect to any
Receivable, nor shall Buyer have any obligation or liability to any Obligor or
other customer or client of an Originator (including any obligation to perform
any of the obligations of such Originator under any Receivable).
SECTION 3. ADMINISTRATION AND COLLECTION.
Section 3.1. Collection Agent. The Initial Collection Agent shall be
responsible for the servicing, administration and collection of the Receivables,
all on the terms set out in (and subject to any rights to terminate the Initial
Collection Agent as Collection Agent pursuant to) the Second Tier Agreement.
Pursuant to the terms of the Second Tier Agreement, the Initial Collection Agent
has the right to appoint an Affiliate of the Initial Collection Agent to perform
certain services set forth in Article III of the Second Tier Agreement.
Section 3.2. Deemed Collections. If on any day the outstanding balance of
a Receivable is reduced or cancelled as a result of any defective or rejected
goods or services, any cash discount or adjustment (including any adjustment
resulting from the application of any special refund or other discounts or any
reconciliation), any setoff or credit (whether such claim or credit arises out
of the same, a related, or an unrelated transaction) or other reason not arising
from the financial inability of the Obligor to pay undisputed indebtedness, (i)
the applicable Originator shall be deemed to have received on such day a
Collection on such Receivable in the amount of such reduction or cancellation
and (ii) such Receivable shall thereupon be, or be deemed to be reconveyed to an
Originator. If on any day any representation, warranty, covenant or other
agreement of an Originator related to a Receivable set forth in Section 4.2(a)
and 4.2(g) is not true or is not satisfied, (i) such Originator shall be deemed
to have received on such day a Collection in the amount of the outstanding
balance of such Receivable and (ii) such Receivable shall thereupon be, or be
deemed to be reconveyed to such Originator. Not later than the first Settlement
Date after an Originator is deemed pursuant to this Section 3.2 to have received
any Collections, such Originator shall transfer to Buyer, in immediately
available funds, the amount of such deemed Collections; provided, however, that
if no such application is required under the Second Tier Agreement, Buyer and
such Originator may agree to reduce the outstanding principal amount of the
Subordinated Notes in lieu of all or part of such transfer. To the extent that
Buyer subsequently collects any payment with respect to any such "receivable,"
Buyer shall pay the applicable Originator an amount equal to the amount so
collected, such amount to be payable not later than the first Settlement Date
after Buyer has so collected such amount.
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Section 3.3. Application of Collections. Any payment by an Obligor in
respect of any indebtedness owed by it to the related Originator shall, except
as otherwise specified by such Obligor (including by reference to a particular
invoice), or required by the related contracts or law, be applied, first, as a
Collection of any Receivable or Receivables then outstanding of such Obligor in
the order of the age of such Receivables, starting with the oldest of such
Receivables, and, second, to any other indebtedness of such Obligor to such
Originator.
Section 3.4. Responsibilities of Originator. Each Originator shall pay
when due all Taxes payable in connection with the Receivables originated by it
or their creation or satisfaction. Each Originator shall perform all of its
obligations under agreements related to the Receivables originated by it to the
same extent as if interests in such Receivables had not been transferred
hereunder. The Agent's or any Purchaser's exercise of any rights hereunder or
under the Second Tier Agreement shall not relieve any Originator from such
obligations. Neither the Agent nor any Purchaser shall have any obligation to
perform any obligation of any Originator in connection with the Receivables.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
Section 4.1. Mutual Representations and Warranties. Each of the
Originators severally represents and warrants to the Buyer and its assignee as
follows:
(a) Corporate Existence and Power. It is a corporation, duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization and has all power and authority and all
governmental licenses, authorizations, consents and approvals required to
carry on its business in each jurisdiction in which its business is now
conducted, except where failure to obtain such license, authorization,
consent or approval would not have a material adverse effect on (i) its
ability to perform its obligations under, or the enforceability of, any
Transaction Document, (ii) its business or financial condition, (iii) the
interests of Buyer or its assigns under any Transaction Document or (iv)
the enforceability or collectibility of a material portion of the
Receivables.
(b) Authorization and No Contravention. Its execution, delivery and
performance of each Transaction Document to which it is a party and the
creation of all security interests provided for herein and therein (i) are
within its powers, (ii) have been duly authorized by all necessary company
action, (iii) do not contravene or constitute a default under: (A) any
applicable law, rule or regulation, (B) its articles of incorporation or
charter or by-laws or other organizational documents or (C) any agreement,
order or other instrument to which it is a party or its property is
subject and (iv) will not result in any Adverse Claim on any Receivable
other than pursuant to the Transaction Documents, Related Security or
Collection or give cause for the acceleration of any of its indebtedness.
(c) No Consent Required. No approval, authorization or other action
by, or filings with, any Governmental Authority or other Person is
required in connection with
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the execution, delivery and performance by it of any Transaction Document
to which it is a party or any transaction contemplated thereby.
(d) Binding Effect. Each Transaction Document to which it is a party
constitutes the legal, valid and binding obligation of such Person
enforceable against that Person in accordance with its terms, except as
limited by bankruptcy, insolvency, or other similar laws of general
application relating to or affecting the enforcement of creditors' rights
generally and subject to general principles of equity.
Section 4.2. Additional Representations by Each Originator. Each
Originator further severally represents and warrants to Buyer as follows:
(a) Perfection of Ownership Interest. Immediately preceding its sale
of Receivables to the Buyer, the applicable Originator was the owner of,
had good title to, and effectively sold, such Receivables to the Buyer,
free and clear of any Adverse Claim. Each Originator owns and has good
title to the Receivables free of any Adverse Claim other than the
interests of the Buyer therein that are created hereby, and the Buyer
shall at all times have a valid and continuing ownership interest,
enforceable as such against creditors of and purchasers from each
Originator, in the Receivables and Collections. Other than the ownership
interest granted to the Buyer pursuant to this Agreement, no Originator
has pledged, assigned, sold or granted a security interest in, or
otherwise conveyed, the Receivables or the Collections. Each Originator
has authorized the filing of and is not aware of any financing statements
against that include a description of collateral covering the Receivables
or the Collections other than any financing statement relating to the
security interest granted to the Buyer hereunder. Each Originator has
caused or will have caused, within ten days after the date hereof, the
filing of all appropriate financing statements in the proper filing office
in the appropriate jurisdictions under the applicable law in order to
perfect the conveyance of Receivables by such Originator hereunder.
(b) Accuracy of Information. The information furnished by each
Originator, in connection with any Transaction Document, or any
transaction contemplated thereby, is true and accurate in all material
respects (and is not incomplete by omitting any information necessary to
prevent such information from being materially misleading, provided that,
with respect to projected financial information, each Originator
represents only that such information was prepared in good faith, subject
to any express qualifications set forth in such projections, based upon
assumptions believed to be reasonable at the time).
(c) No Actions, Suits. There are no actions, suits or other
proceedings (including matters relating to environmental liability)
pending or threatened against or affecting any Originator or any of its
properties, that (i) have a reasonable likelihood of an adverse outcome
and, if adversely determined (individually or in the aggregate), can
reasonably be expected to have a material adverse effect on the financial
condition of the Parent and its subsidiaries, taken as a whole, or on the
collectibility of a material portion of the Receivables or (ii) involve
any Transaction Document or any transaction
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contemplated thereby. No Originator is in default of any contractual
obligation or in violation of any order, rule or regulation of any
Governmental Authority, which default or violation is reasonably likely to
have a material adverse effect upon (i) the financial condition of the
Parent and its subsidiaries, taken as a whole or (ii) the collectibility
of a material portion of the Receivables.
(d) No Material Adverse Change. Except as described in the Parent's
Quarterly Reports on Form 10-Q for the fiscal quarters ended July 1,2001
and September 30, 2001, there has been no material adverse change since
September 30,2001 in (i) such Originator's financial condition, business,
operations or prospects or (ii) such Originator's ability to perform its
obligations under any Transaction Document.
(e) Accuracy of Exhibits. All information on Exhibits D and E of the
Second Tier Agreement (to the extent describing an Originator) is true and
complete in all material respects, subject to any changes permitted by,
and notified to the Agent in accordance with the Second Tier Agreement.
None of the Originators' locations (including without limitation their
respective chief executive offices and principal places of business) has
changed within the past five years. During the past five years, no
Originator has used any corporate, fictitious or trade name other than a
name set forth of Exhibit D to the Second Tier Agreement. Exhibit D to the
Second Tier Agreement lists the federal employer identification numbers of
the Originators.
(f) Sales by United States Originators. Each sale by a United States
Originator to Buyer of an interest in Receivables and their Collections
has been made for "reasonably equivalent value" (as such term is used in
Section 548 of the Bankruptcy Code) and not for or on account of
"antecedent debt" (as such term is used in Section 547 of the Bankruptcy
Code) owed by such Originator to Buyer.
(g) Eligible Receivables. Each Receivable of such Originator listed
on the Periodic Report as part of the Eligible Receivables Balance was an
Eligible Receivable as of the date of such Periodic Report.
SECTION 5. GENERAL COVENANTS.
Section 5.1. Covenants. Each Originator hereby severally covenants and
agrees to comply with the following covenants and agreements, unless Buyer (with
the consent of the Agent) shall otherwise consent:
(a) Notices. Promptly upon any financial or executive officer of an
Originator becoming aware of any of the following, such Originator will
notify Buyer and provide a description of:
(i) Potential Termination Events. The occurrence of any
Potential Termination Event;
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(ii) Representations and Warranties. The failure of any
representation or warranty herein to be true (when made or at any
time thereafter) in any material respect;
(iii) Litigation. The institution of any litigation,
arbitration proceeding or governmental proceeding reasonably likely
to be material to such Originator or the collectibility or quality
of a material portion of the Receivables;
(iv) Judgments. The entry of any judgment, award or decree
against such Originator if the aggregate amount of all unsatisfied
and unstayed judgments then outstanding against such Originator, the
Seller Entities and the Subsidiaries exceeds $5,000,000; or
(v) Changes in Business. Any change in the character of any
Originator's business that is reasonably expected to impair the
collectibility or quality of any material portion of the
Receivables.
(b) Conduct of Business. Each Originator will perform all actions
necessary to remain duly incorporated, validly existing and in good
standing in its jurisdiction of incorporation and to maintain all
requisite authority to conduct its business in each jurisdiction in which
it conducts business.
(c) Compliance with Laws. Each Originator will comply with all laws,
regulations, judgments and other directions or orders imposed by any
Governmental Authority to which each Originator or any Receivable, any
Related Security or Collection may be subject, except to the extent
non-compliance will have a material adverse effect on (i) the
collectibility of the Receivables, or (ii) the financial condition,
business or operations of Parent and its Subsidiaries, taken as a whole.
(d) Furnishing Information and Inspection of Records. Each
Originator will furnish to Buyer such information concerning the
Receivables originated by it as Buyer may reasonably request. Each
Originator will permit, at any time during regular business hours, upon
reasonable advance notice, Buyer (or any representatives thereof) (i) to
examine and make copies of all Records, (ii) to visit the offices and
properties of such Originator or office of any other Person for the
purpose of examining the Records and (iii) to discuss matters relating
hereto with any of such Originator's officers, directors, employees or
independent public accountants having knowledge of such matters. Buyer may
(at the expense of the applicable Originator) have an independent public
accounting firm conduct an audit of the Records or make test verification
of the Receivables and Collections in connection with the audit and test
verifications conducted on behalf of the Agent under the Second Tier
Agreement.
(e) Keeping Records. (i) Each Originator will have and maintain (A)
administrative and operating procedures (including an ability to recreate
Records if originals are destroyed), (B) adequate facilities, personnel
and equipment and (C) all Records and other information necessary or
advisable for collecting the Receivables originated by it (including
Records adequate to permit the immediate identification of each new
Receivable
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originated by it and all Collections of, and adjustments to, each existing
Receivable originated by it). Each Originator will give Buyer prior notice
of any material change in such administrative operating procedures.
(ii) Each Originator will, (A) at all times from and after the date
hereof, clearly and conspicuously ▇▇▇▇ its computer and master data
processing books and records with a legend describing Buyer's interest in
the Receivables originated by it and the Collections and (B) upon the
request of the Buyer after a Termination Event, so ▇▇▇▇ each contract
relating to a Receivable and deliver to the Buyer all such contracts
(including all multiple originals of such contracts), with any appropriate
endorsement or assignment, or segregate (from all other receivables then
owned or being serviced by such Originator) the Receivables and all
contracts relating to each Receivable and hold in trust and safely keep
such contracts so legended in separate filing cabinets or other suitable
containers at such locations as the Buyer may specify.
(f) Perfection. (i) Each Originator will at its expense, promptly
execute and deliver all instruments and documents and take all action
necessary or requested by the Buyer (including the execution and filing of
financing or continuation statements, amendments thereto or assignments
thereof) to enable the Buyer to exercise and enforce all its rights
hereunder and to vest and maintain vested in the Buyer a valid, first
priority perfected security interest in such Receivables, the Collections,
the Related Security the Lock-Box Accounts and proceeds thereof free and
clear of any Adverse Claim. The Buyer will be permitted to sign and file
any continuation statements, amendments thereto and assignments thereof
without the Buyer's signature.
(ii) Each Originator will only change its name, identity or
corporate structure or relocate its jurisdiction or chief executive office
or the Records following thirty (30) days advance written notice to the
Buyer and the delivery to the Buyer of all financing statements,
instruments and other documents (including direction letters) requested by
the Buyer.
(iii) Each United States Originator will at all times maintain its
chief executive office and jurisdiction of organization within a
jurisdiction in the USA in which Article 9 of the UCC (as it may be
amended from time to time) is in effect. The Canadian Originator will
maintain its registered office in the Province of Ontario. If any
Originator moves its registered office to a location that imposes Taxes,
fees or other charges to perfect the Buyer's interests hereunder, such
Originator will pay all such amounts and any other costs and expenses
incurred in order to maintain the enforceability of the Transaction
Documents, the Sold Interest and the interests of the Buyer in the
Receivables, the Related Security and Collections.
(g) Payments on Receivables, Accounts. Each Originator will at all
times instruct all Obligors to deliver payments on the Receivables
(including Deemed Collections) to a Lock-Box or Lock-Box Account. If any
such payments or other Collections are received by an Originator, it shall
hold such payments in trust for the
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benefit of the Buyer and promptly (but in any event within two Business
Days after receipt) remit such funds into a Lock-Box Account. Each
Originator will cause each Lock-Box Bank to comply with the terms of each
applicable Lock-Box Letter. After the occurrence of a Termination Event or
the Liquidity Termination Date, such Originator will not, and will not
permit any Collection Agent or other Person to, commingle Collections or
other funds to which the Buyer is entitled with any other funds. Each
Originator shall only add a Lock-Box Bank, Lock-Box, or Lock-Box Account
to those listed on Exhibit E of the Second Tier Agreement if the Buyer has
received notice of such addition, a copy of any new Lock-Box Agreement and
an executed and acknowledged copy of a Lock-Box Letter substantially in
the form of Exhibit F of the Second Tier Agreement (with such changes as
are acceptable to the Buyer) from any new Lock-Box Bank. Each Originator
shall only terminate a Lock-Box Bank or Lock-Box, or close a Lock-Box
Account, upon 30 days advance notice to the Buyer.
(h) Sales and Adverse Claims Relating to Receivables. Except as
otherwise provided herein, no Originator will (by operation of law or
otherwise) dispose of or otherwise transfer, or create or suffer to exist
any Adverse Claim upon, any Receivable or any proceeds thereof.
(i) Extension or Amendment of Receivables. Except as otherwise
permitted in Section 3.2(b) of the Second Tier Agreement and then subject
to Section 1.5 of the Second Tier Agreement, no Originator will extend,
amend, rescind or cancel any Receivable.
(j) Performance of Duties. Each Originator will perform its duties
or obligations in accordance with the provisions of each of the
Transaction Documents. Each Originator (at its expense) will (i) fully and
timely perform in all material respects all agreements required to be
observed by it in connection with each Receivable, (ii) comply in all
material respects with the Credit and Collection Policy, and (iii) refrain
from any action that may impair the rights of Buyer in the Receivables,
the Related Security, Collections or Lock-Box Accounts.
(k) Change in Business or Credit and Collection Policy. No
Originator will make any material change in the character of its business
and will not make any material adverse change to the Credit and Collection
Policy.
(l) Accounting for Sale. No Originator will account for, or
otherwise treat, the transactions contemplated hereby other than as a sale
of Receivables or inconsistent with the Purchasers' ownership interests in
the Receivables and Collections.
(m) Certain Agreements. Except as otherwise permitted by this
Agreement, no Originator will amend, modify, waive, revoke or terminate
any Transaction Document to which it is a party.
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Section 5.2. Organizational Separateness. Each Originator agrees not to
take any action that would cause Buyer to violate its formative documents. Buyer
agrees to conduct its business in a manner consistent with its formative
documents.
SECTION 6. TERMINATION OF PURCHASES.
Section 6.1. Voluntary Termination. The purchase and sale of Receivables
pursuant to this Agreement may be terminated by any party, upon at least five
Business Days' prior written notice to the other parties.
Section 6.2. Automatic Termination. The purchase and sale of Receivables
pursuant to this Agreement shall automatically terminate upon the occurrence of
(i) a Bankruptcy Event with respect to any Originator, or (ii) the Liquidity
Termination Date.
SECTION 7. INDEMNIFICATION.
Section 7.1. Originators' Indemnity. Without limiting any other rights any
Person may have hereunder or under applicable law, each Originator, jointly and
severally, hereby indemnifies and holds harmless Buyer and its officers,
directors, agents and employees (each an "Indemnified Party") from and against
any and all damages, losses, claims, liabilities, penalties, Taxes, costs and
expenses (including reasonable attorneys' fees and court costs actually
incurred) (all of the foregoing collectively, the "Indemnified Losses") at any
time imposed on or incurred by any Indemnified Party arising out of or otherwise
relating to any Transaction Document, the transactions contemplated thereby, or
any action taken or omitted by any of the Indemnified Parties, whether arising
by reason of the acts to be performed by such Originator hereunder or otherwise,
excluding only Indemnified Losses ("Excluded Losses") to the extent (a) a final
judgment of a court of competent jurisdiction holds such Indemnified Losses
resulted solely from gross negligence or willful misconduct of the Indemnified
Party seeking indemnification, (b) due to the credit risk or financial inability
to pay of the Obligor and for which reimbursement would constitute recourse to
such Originator or the Collection Agent for uncollected or uncollectible
Receivables, and (c) such Indemnified Losses include Taxes on, or measured by,
the overall net income or gross receipts of the Buyer or any of its assignees.
Without limiting the foregoing indemnification, but subject to the limitations
set forth in clauses (a), (b) and (c) of the previous sentence, each Originator,
jointly and severally, shall indemnify each Indemnified Party for Indemnified
Losses relating to or resulting from:
(i) any representation or warranty made by or on behalf of an
Originator under or in connection with this Agreement, any Periodic Report
or any other information or report delivered by an Originator pursuant to
the Transaction Documents, which shall have been false or incorrect in any
material respect when made or deemed made;
(ii) the failure by an Originator to comply with any applicable law,
rule or regulation related to any Receivable, or the nonconformity of any
such Receivable with any such applicable law, rule or regulation;
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(iii) the failure of an Originator to vest and maintain vested in
Buyer, a perfected ownership or security interest in the Receivables and
the other property conveyed pursuant hereto, free and clear of any Adverse
Claim;
(iv) any commingling of funds to which Buyer is entitled hereunder
with any other funds;
(v) any failure of a Lock-Box Bank to comply with the terms of the
applicable Lock-Box Letter;
(vi) any dispute, claim, offset or defense (other than discharge in
bankruptcy of the Obligor or financial inability of the Obligor to pay) of
the Obligor to the payment of any Receivable, or any other claim resulting
from the sale or lease of goods or the rendering of services related to
such Receivable or the furnishing or failure to furnish any such goods or
services or other similar claim or defense not arising from the financial
inability of any Obligor to pay undisputed indebtedness;
(vii) any failure of an Originator to perform its duties or
obligations in accordance with the provisions of this Agreement or any
other Transaction Document to which an Originator is a party; or
(viii) any environmental liability claim, products liability claim
or personal injury or property damage suit or other similar or related
claim or action of whatever sort, arising out of or in connection with any
Receivable or any other suit, claim or action of whatever sort relating to
any of any Originator's obligations under the Transaction Documents.
Section 7.2. Indemnification Due to Failure to Consummate Purchase. Each
Originator will indemnify Buyer on demand and hold it harmless against all costs
(including, without limitation, breakage costs) and expenses incurred by Buyer
resulting from any failure by such Originator to consummate a purchase after
Buyer has requested a transfer of the applicable Receivables to the Purchasers
under the terms of the Second Tier Agreement.
SECTION 8. MISCELLANEOUS.
Section 8.1. Amendments, Waivers, Etc. No amendment of this Agreement or
waiver of any provision hereof or consent to any departure by either party
therefrom shall be effective without the written consent of the party that is
sought to be bound. Any such waiver or consent shall be effective only in the
specific instance given. No failure or delay on the part of either party to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law. Each Originator agrees that the Purchasers may rely
upon the terms of this Agreement, and that the terms of this Agreement may not
be amended, nor any material waiver of those terms be granted, without the
consent of the Agent; provided that such Originator and Buyer may agree to an
adjustment of the purchase price
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for any Receivable originated by such Originator without the consent of the
Agent provided that the purchase price paid for such Receivable shall be an
amount not less than adequate consideration that represents fair value for such
Receivable.
Section 8.2. Assignment of Receivables Purchase Agreement. Each Originator
hereby acknowledges that on the date hereof Buyer has collaterally assigned for
security purposes all of its right, title and interest in, to and under this
Agreement to the Agent for the benefit of the Purchasers pursuant to the Second
Tier Agreement and that the Agent and the Purchasers are third party
beneficiaries hereof. Each Originator hereby further acknowledges that after the
occurrence and during the continuation of a Termination Event all provisions of
this Agreement inuring to the benefit of the Buyer shall inure to the benefit of
the Agent and the Purchasers, including the enforcement of any provision hereof
to the extent set forth in the Second Tier Agreement, but that neither the Agent
nor any Purchaser shall have any obligations or duties under this Agreement. No
purchases shall take place hereunder at any time that the Agent has exercised
its right to enforce Buyer's rights hereunder pursuant to Section 1.8 of the
Second Tier Agreement. Each Originator hereby further acknowledges that the
execution and performance of this Agreement are conditions precedent for the
Agent and the Purchasers to enter into the Second Tier Agreement and that the
agreement of the Agent and Purchasers to enter into the Second Tier Agreements
will directly or indirectly benefit such Originator and constitutes good and
valuable consideration for the rights and remedies of the Agent and each
Purchaser with respect hereto.
Section 8.3. Binding Effect; Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns and shall also, to the extent provided herein, inure to
the benefit of the parties to the Second Tier Agreement. Each Originator
acknowledges that Buyer's rights under this Agreement are being assigned to the
Agent under the Second Tier Agreement and consents to such assignment and to the
exercise of those rights directly by the Agent, to the extent permitted by the
Second Tier Agreement.
Section 8.4. Survival. The rights and remedies with respect to any breach
of any representation and warranty made by an Originator or Buyer pursuant to
Section 4 and the indemnification provisions of Section 7 shall survive any
termination of this Agreement.
Section 8.5. Costs, Expenses and Taxes. In addition to the obligations of
the Originators under Section 7, each party (the Originators being one party and
the Buyer the other party) hereto agrees to pay on demand all costs and expenses
incurred by the other party and its assigns (other than Excluded Losses) in
connection with the enforcement of, or any actual or claimed breach of, this
Agreement, including the reasonable fees and expenses of counsel to any of such
Persons incurred in connection with any of the foregoing or in advising such
Persons as to their respective rights and remedies under this Agreement in
connection with any of the foregoing. Each Originator, jointly and severally,
also agrees to pay on demand all stamp and other taxes and fees payable or
determined to be payable in connection with the execution, delivery, filing, and
recording of this Agreement.
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Section 8.6. Execution in Counterparts; Integration. This Agreement may be
executed in any number of counterparts and by the different parties 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
Agreement.
Section 8.7. Governing Law; Submission to Jurisdiction. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS (AND
NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS. EACH ORIGINATOR HEREBY
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ILLINOIS AND OF ANY ILLINOIS STATE COURT SITTING IN
CHICAGO, ILLINOIS FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF, OR
RELATING TO, THE TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
Each Originator hereby irrevocably waives, to the fullest extent permitted by
law, any objection it may now or hereafter have to the venue of any such
proceeding and any claim that any such proceeding has been brought in an
inconvenient forum. Nothing in this Section 8.7 shall affect the right of the
Agent or any Purchaser to bring any action or proceeding against the Seller or
its property in the courts of other jurisdictions.
Section 8.8. No Proceedings. Each Originator agrees, for the benefit of
the parties to the Second Tier Agreement, that it will not institute against
Buyer, or join any other Person in instituting against Buyer, any proceeding of
a type referred to in the definition of Bankruptcy Event until one year and one
day after no investment, loan or commitment is outstanding under the Second Tier
Agreement.
Section 8.9. Loans by Buyer to Originators. Buyer may make loans to an
Originator from time to time if so agreed between such parties and to the extent
that Buyer has funds available for that purpose after satisfying its obligations
under this Agreement and the Second Tier Agreement. Any such loan shall be
payable upon demand (and may be prepaid with penalty or premium) and shall bear
interest at such rate as Buyer and such Originator shall from time to time
agree.
Section 8.10. Notices. Unless otherwise specified, all notices and other
communications hereunder shall be in writing (including by telecopier or other
facsimile communication), given to the appropriate Person at its address or
telecopy number set forth in the Second Tier Agreement or at such other address
or telecopy number as such Person may specify, and effective when received at
the address specified by such Person.
Section 8.11. Entire Agreement. This Agreement constitutes the entire
understanding of the parties thereto concerning the subject matter thereof. Any
previous or contemporaneous agreements, whether written or oral, concerning such
matters are superseded thereby.
Section 8.12. Payments in Relevant Currency. All payments to be made by
each Originator hereunder shall be made in Dollars (the "relevant currency"). To
the fullest extent permitted by law, the obligation of each Originator in
respect of any amount due in the relevant currency under this Agreement shall,
notwithstanding any payment in any other currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in
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the relevant currency that the Buyer or its assignee, as applicable, may, in
accordance with normal banking procedures, purchase with the sum paid in such
other currency (after any premium and costs of exchange) on the Business Day
immediately following the day on which the Buyer or its assignee, as applicable,
receives such payment. If the amount in the relevant currency that may be so
purchased for any reason falls short of the amount originally due, each
Originator shall pay such additional amounts, in the relevant currency, as may
be necessary to compensate for the shortfall. Any obligations of the undersigned
not discharged by such payment shall, to the fullest extent permitted by
applicable law, be due as a separate and independent obligation and, until
discharged as provided herein, shall continue in full force and effect.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
PERKINELMER, INC., as Originator and
Initial Collection Agent
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title: Assistant Clerk
---------------------------
PERKINELMER HOLDINGS, INC.,
as Originator
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Title: Clerk
---------------------------
PERKINELMER LIFE SCIENCES, INC.,
as Originator
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title: Assistant Secretary
---------------------------
PERKINELMER INSTRUMENTS LLC,
as Originator
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title: Assistant Secretary
---------------------------
PERKINELMER OPTOELECTRONICS NC, INC.,
as Originator
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title: Secretary
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Signature Page for
Purchase and Sale Agreement
PERKINELMER OPTOELECTRONICS SC, INC.,
as Originator
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Title: Secretary
----------------------------
PERKINELMER CANADA, INC.,
as Originator
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Title: Assistant Secretary
----------------------------
PERKINELMER RECEIVABLES COMPANY, as
Buyer
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Title: Vice President and Secretary
----------------------------
Signature Page for
Purchase and Sale Agreement