Exhibit 10.2
SECOND AMENDMENT
TO
PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT, dated as of September 23, 2003 (the "Amendment"), to
the PURCHASE AND SALE AGREEMENT, dated as of December 21, 2001 (the
"Agreement"), is among PerkinElmer, Inc., a Massachusetts corporation,
PerkinElmer Holdings, Inc., a Massachusetts corporation, PerkinElmer LAS, Inc.
(formerly known as PerkinElmer Life Sciences, Inc.), a Delaware corporation,
PerkinElmer Optoelectronics NC, Inc., a Delaware corporation, PerkinElmer
Optoelectronics SC, Inc., a Delaware corporation, and PerkinElmer Canada, Inc.,
a Canada corporation, Applied Surface Technology, Inc., a California corporation
("Applied Surface ") and PerkinElmer Automotive Research, Inc., a Texas
corporation ("Automotive Research") (each an "Originator" and collectively, the
"Originators"), PerkinElmer Receivables Company, a Delaware corporation
("Buyer").
WITNESSETH
WHEREAS, the Originators and the Buyer have previously entered into the
Agreement pursuant to which the Originators agreed to sell to Buyer, and Buyer
agreed to buy from each of the Originators, all of the Receivables, all Related
Security and all proceeds thereof generated by each such Originator;
WHEREAS, pursuant to a certain Receivables Sale Agreement, dated as of
December 21, 2001, among the Buyer, PerkinElmer, Inc., Windmill Funding
Corporation and ABN AMRO Bank N.V. as agent for the Purchasers (the "Agent ")
the Buyer has sold an interest in the Receivables and assigned and granted a
security interest in all of Buyer's right, title and interest in and to the
Agreement, including, without limitation, interests in the Receivables sold to
Buyer pursuant thereto;
WHEREAS, PerkinElmer Life Sciences, Inc. has changed its name to
PerkinElmer LAS, Inc. and PerkinElmer Instruments LLC has merged into
PerkinElmer LAS, Inc.;
WHEREAS, the parties wish to remove Receptor Biology, Inc. as a party to
the Agreement and as an "Originator."
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
Section 1. Defined Terms. Unless otherwise amended by the terms of this
Amendment, terms used in this Amendment shall have the meanings assigned in the
Agreement.
Section 2. Amendments to Agreement. (a) Any reference to PerkinElmer
Instruments LLC is hereby deemed to now read as PerkinElmer LAS, Inc.
(b) Any references to Receptor Biology, Inc. appearing in the Agreement are
hereby deleted.
(c) From and after the Effective Date, the term "Originator" shall be
amended by deleting PerkinElmer Instruments LLC and Receptor Biology, Inc. and
including PerkinElmer LAS, Inc. In addition, from and after the Effective Date,
PerkinElmer LAS, Inc. agrees to continue to be bound by all of the terms and
conditions applicable to an Originator contained in the Agreement and the other
Transaction Documents.
Section 3. Effectiveness of Agreement. Except as expressly amended by the
terms of this Amendment, all terms and conditions of the Agreement, as amended,
shall remain in full force and effect.
Section 4. Execution in Counterparts, Effectiveness. This Amendment may be
executed by the parties hereto in several counterparts, each of which shall be
executed by the parties hereto and be deemed an original and all of which shall
constitute together but one and the same instrument.
Section 5. Representations. Each of the Originators severally represents
and warrants to the Buyer and its assignee that except as described in the
Parent's Annual Reports on Form 10-K for the fiscal year ended December 29, 2002
and Form 10-Q for the fiscal quarters ended March 30, 2003 and June 29, 2003,
there has been no material adverse change since December 29, 2002 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.
Section 6. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of Illinois, without reference to conflict of law
principles, and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with the laws of the State of Illinois.
[Signatures Follow]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
and delivered by their respective officers thereunto duly authorized as of the
day and year first above written.
PERKINELMER, INC., as Originator and Initial
Collection Agent
By /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Assistant Clerk
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PERKINELMER HOLDINGS, INC., as Originator
By /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Clerk
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PERKINELMER LAS, INC., as Originator
By /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Assistant Secretary
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PERKINELMER OPTOELECRRONICS NC, INC., as
Originator
By /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Secretary
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PERKINELMER OPTOELECTRONICS SC, INC., as
Originator
By /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Secretary
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PERKINELMER CANADA, INC., as Originator
By /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Assistant Secretary
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APPLIED SURFACE TECHNOLOGY, INC., as
Originator
By /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Secretary
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PERKINELMER AUTOMOTIVE RESEARCH, INC., as
Originator
By /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Secretary
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PERKINELMER RECEIVABLES COMPANY, as Buyer
By /s/ Xxxxx X. Francisco
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Name: Xxxxx X. Francisco
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Title: Assistant Treasurer
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CONSENTED AND AGREED To:
ABN AMRO BANK N.V., as Agent
By /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
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Title: Group Vice President
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By /s/ Xxxxxx X. Educate
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Name: Xxxxxx X. Educate
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Title: Senior Vice President
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WINDMILL FUNDING CORPORATION
By /s/
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Name:
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Title:
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CONSENTED AND AGREED TO:
ABN AMRO BANK N.V., as Agent
By /s/
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Name:
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Title:
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By /s/
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Name:
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Title:
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WINDMILL FUNDING CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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GUARANTOR'S ACKNOWLEDGMENT AND CONSENT
The undersigned, PerkinElmer, Inc., has heretofore executed and delivered
the Limited Guaranty dated as of December 21, 2001 (the "Guaranty") and hereby
consents to the Amendment to the Sale Agreement as set forth above and confirms
that the Guaranty and all of the undersigned's obligations thereunder remain in
full force and effect. The undersigned further agrees that the consent of the
undersigned to any further amendments to the Sale Agreement shall not be
required as a result of this consent having been obtained, except to the extent,
if any, required by the Guaranty referred to above.
PERKINELMER, INC.
By /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Senior Vice President
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