EXHIBIT 10.25
FIRST AMENDMENT
TO
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE
AGREEMENT, dated as of February 4, 2005 (this "AMENDMENT"), is by and among (a)
Xxxxxx Scientific International Inc., a Delaware corporation, as agent for the
Originators (in such capacity, the "ORIGINATOR AGENT"), (b) Xxxx-Xxxxxx
Instrument Company, an Illinois corporation, Xxxxxx Clinical Services Inc., a
Pennsylvania corporation, Xxxxxx Xxxxxxxx L.L.C., a Delaware limited liability
company, and Xxxxxx Scientific Company L.L.C., a Delaware limited liability
company (each of the foregoing, an "ORIGINATOR" and collectively, the
"Originators"), and (c) FSI Receivables Company LLC., a Delaware limited
liability company formerly known as FSI Receivables Corp. ("BUYER").
RECITALS
WHEREAS, the Originator Agent, the Originators and Buyer are parties
to that certain Amended and Restated Receivables Purchase Agreement dated as of
February 14, 2003 (the "RECEIVABLES PURCHASE AGREEMENT"); and
WHEREAS, the parties desire to amend certain provisions of the
Receivables Purchase 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, the Originator Agent, the
Originators and Buyer hereby agree as follows:
SECTION 1. AMENDMENTS.
1.1. The third recital of the Receivables Purchase Agreement is
hereby amended and restated in its entirety to read as follows:
Following the purchase of Receivables from each Originator, Buyer
will, from time to time, transfer undivided interests therein and in the
associated Related Security and Collections pursuant to that certain
Amended and Restated Receivables Transfer Agreement dated as of February
4, 2005 (as the same may from time to time hereafter be amended,
supplemented, restated or otherwise modified, the "TRANSFER AGREEMENT")
among Buyer, Parent, as Servicer, Liberty Street Funding Corp. ("LIBERTY
STREET"), Atlantic Asset Securitization Corp., a Delaware corporation
("ATLANTIC"), The Bank of Nova Scotia, a Canadian chartered bank acting
through its New York Agency ("SCOTIABANK"), and its assigns (collectively,
the "LIBERTY STREET LIQUIDITY BANKS" and, together with Liberty Street,
the "LIBERTY STREET GROUP"), Calyon New York Branch, a French chartered
bank acting through its New York branch ("CALYON"), and its assigns
(collectively, the "ATLANTIC LIQUIDITY BANKS" and, together with Atlantic,
the "ATLANTIC GROUP"), Scotiabank, in its capacity as agent for the
Liberty Street Group (the "LIBERTY STREET AGENT" or a "CO-AGENT"), Calyon,
in its capacity as agent for the Atlantic Group (the "ATLANTIC AGENT" or a
"CO-AGENT"), and Scotiabank, in its capacity as administrative agent for
the Atlantic Group, the Liberty Street Group and each Co-Agent (in such
capacity, together with its successors and assigns, the "ADMINISTRATIVE
AGENT" and, together with each of the Co-Agents, the "AGENTS").
1.2. All references in the Receivables Purchase Agreement to
Wachovia Bank, National Association, as Administrative Agent, are hereby
replaced with references to The Bank of Nova Scotia, a Canadian chartered bank
acting through its New York Agency, as Administrative Agent.
1.3. All references in the Receivables Purchase Agreement to
Wachovia Bank, National Association, as Blue Ridge Agent, are hereby replaced
with references to Calyon New York Branch, a French chartered bank acting
through its New York branch, as Atlantic Agent.
1.4. All references in the Receivables Purchase Agreement to the
Groups shall hereafter be deemed to refer to the Liberty Street Group and the
Atlantic Group, and all references to the Liquidity Banks shall be deemed to
refer to the Liberty Street Liquidity Banks and the Atlantic Liquidity Banks.
1.5. Buyer's address set forth on the signature page of the
Receivables Purchase Agreement is hereby changed to the following:
FSI Receivables Company LLC
Suite 1404, Nemours Building
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
WITH A COPY TO:
Xxxxxx Scientific International Inc.
Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. XxXxxxx
Tel:(000) 000-0000
Fax:(000) 000-0000
AND:
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Xxxxxx Scientific Company L.L.C.
0000 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
SECTION 2. EFFECTIVENESS.
This Amendment will be effective upon the later to occur of (i)
receipt by the Administrative Agent of counterparts hereof duly executed by each
of the parties hereto, and (ii) effectiveness of the Transfer Agreement (as
defined in Section 1.1 above).
SECTION 3. REPRESENTATIONS AND WARRANTIES.
In order to induce the other parties to enter into this Amendment,
each of the parties hereby represents and warrants to the others that:
(a) Each of its representations and warranties contained in the
Receivables Purchase Agreement and in each Transaction Document to which it is a
party, is, after giving effect to this Amendment, true and 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) Its execution, delivery and performance of this Amendment has
been duly authorized by all necessary corporate or limited liability company
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 its 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.
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SECTION 4. REFERENCE TO AND EFFECT UPON THE RECEIVABLES TRANSFER AGREEMENT.
(a) Except as specifically set forth above, the Receivables Purchase
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 Purchase 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 Purchase Agreement or any other Transaction
Document or (iii) constitute a waiver of any provision of the Receivables
Purchase Agreement or any Transaction Document, except as specifically set forth
herein. Upon the effectiveness of this Amendment, each reference in the
Receivables Purchase Agreement to "this Agreement", "herein", "hereof" and words
of like import and each reference in the Receivables Purchase Agreement and the
Transaction Documents to the Receivables Purchase Agreement shall mean the
Receivables Purchase Agreement as amended hereby. This Amendment shall be
construed in connection with and as part of the Receivables Purchase Agreement.
SECTION 5. 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 6. 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.
[signature pages follow]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the
date first written above.
XXXXXX SCIENTIFIC INTERNATIONAL INC.,
AS ORIGINATOR AGENT
By: ___________________________________
Name:
Title:
XXXX-XXXXXX INSTRUMENT COMPANY, AS AN ORIGINATOR
By: ___________________________________
Name:
Title:
XXXXXX CLINICAL SERVICES INC., AS AN ORIGINATOR
By: ___________________________________
Name:
Title:
XXXXXX XXXXXXXX L.L.C., AS AN ORIGINATOR
By: ___________________________________
Name:
Title:
XXXXXX SCIENTIFIC COMPANY L.L.C., AS AN ORIGINATOR
By: ___________________________________
Name:
Title:
FSI RECEIVABLES COMPANY LLC, AS BUYER
By: ___________________________________
Name:
Title:
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THE UNDERSIGNED HEREBY CONSENTS TO THE FOREGOING AMENDMENT:
THE BANK OF NOVA SCOTIA, AS LIBERTY STREET AGENT AND AS ADMINISTRATIVE AGENT
By:___________________________________
Name:
Title:
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THE UNDERSIGNED HEREBY CONSENTS TO THE FOREGOING AMENDMENT:
CALYON NEW YORK BRANCH, AS ATLANTIC AGENT
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
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