EXHIBIT 10.17
FIRST AMENDMENT
TO
RECEIVABLES TRANSFER AGREEMENT
This FIRST AMENDMENT TO RECEIVABLES TRANSFER AGREEMENT, dated
as of February 12, 2004 (this "Amendment"), is entered into by and among FSI
RECEIVABLES COMPANY LLC, a Delaware limited liability company ("Transferor"),
XXXXXX SCIENTIFIC INTERNATIONAL INC., a Delaware corporation ("Parent"), as
initial Servicer, BLUE RIDGE ASSET FUNDING CORPORATION, a Delaware corporation
("Blue Ridge" or a "Conduit") and LIBERTY STREET FUNDING CORP., a Delaware
corporation ("Xxxxxxx Xxxxxx" or a "Conduit"), WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association, and its assigns (collectively, the
"Blue Ridge Liquidity Banks"; and together with Blue Ridge, the "Blue Ridge
Group"), 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"), Wachovia, in its capacity as agent for the Blue Ridge Group (the "Blue
Ridge Agent" or a "Co-Agent"), Scotiabank, in its capacity as agent for the
Liberty Street Group (the "Liberty Street Agent" or a "Co-Agent") and Wachovia,
in its capacity as administrative agent for the Blue Ridge 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"). Unless defined elsewhere herein, capitalized terms
used in this Amendment shall have the meanings assigned to such terms in Exhibit
I to the Receivables Transfer Agreement (as defined below) or, if not defined in
Exhibit I to the Receivables Transfer Agreement, the meanings assigned to such
term in Exhibit I to the Receivables Purchase Agreement (as defined below).
RECITALS
WHEREAS, Transferor, Parent, the Blue Ridge Group, the Liberty
Street Group and the Agents are parties to that certain Receivables Transfer
Agreement dated as of February 14, 2003 (the "Receivables Transfer Agreement");
and
WHEREAS, Parent, as agent for the Originators, 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 and FSI Receivables Company L.L.C., a Delaware limited liability company
are parties to that certain Amended and Restated Receivables Purchase Agreement,
dated as of February 14, 2003 (the "Receivables Purchase Agreement"); and
WHEREAS, Transferor, Parent, the Blue Ridge 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 Blue Ridge Group, the
Liberty Street Group and the Agents hereby agree as follows:
SECTION 1. AMENDMENTS.
1.1. Section 2.2 of the Receivables Transfer Agreement is
hereby amended and restated in its entirety to read as follows:
Section 2.2. Collections and Reinvestments prior to Amortization.
(a) On each day prior to a particular Group's
Amortization Date, such Group's Outstanding Percentage as of the end of
the prior Business Day of (i) all Deemed Collections and (ii) all
Collections received or deemed received pursuant to the definition of
Deemed Collections by any Transferor Party on such day (such Group's
"GROUP COLLECTIONS") shall either be set aside and held in trust by the
Servicer (or, following delivery of a Collection Notice, by the
Administrative Agent) for the payment of any accrued and unpaid
Aggregate Unpaids owing to the members of such Group or used to make a
Reinvestment by such Group as provided in this Section 2.2 (which
obligation of the Servicer to hold in trust shall be satisfied, prior
to the applicable Settlement Date, upon the marking by the Servicer on
its books and records to reflect the interest of the applicable Group
in such Collections and Deemed Collections; PROVIDED, HOWEVER, that at
all times following delivery of a Collection Notice and prior to such
Group's Amortization Date, the Administrative Agent shall be entitled
to withhold from Reinvestment or payment to the Transferor a portion of
such Group's Collections equal to the unpaid CP Costs, Yield and fees
accrued and to accrue prior to the next succeeding Settlement Date
(such Group's "ACCRUAL AMOUNT").
(b) If on any day prior to a particular Group's
Amortization Date, provided that no Amortization Event exists and is
continuing, any Group Collections are received for the account of such
Group pursuant to Section 2.2(a) and subject to the proviso therein,
Transferor hereby requests -- and the Transferees in that Group hereby
agree to make, simultaneously with such receipt -- a reinvestment
(each, a "REINVESTMENT") with all or a portion of such Group
Collections such that after giving effect to such receipt and
Reinvestment, that Group's Group Invested Amount will equal its Group
Invested Amount immediately prior to such receipt and Reinvestment.
(c) On each Settlement Date prior to the occurrence
of a particular Group's Amortization Date, the Servicer (or, following
delivery of a Collection Notice, the Administrative Agent) shall remit
to the applicable Group Account such Group's Group Collections set
aside pursuant to Section 2.2(a) during the preceding Settlement Period
that have not been subject to a Reinvestment (including, if applicable,
such Group's Accrual Amount) and apply such amounts (if not previously
paid in accordance with Section 2.1) to reduce unpaid Obligations owing
to the members of that Group. Once such Group's
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Obligations have been reduced to zero, any of its remaining Group
Collections shall (i) if applicable, be remitted to the applicable
Group Account no later than 11:00 a.m. (New York time) to the extent
required to fund any applicable Group Reduction on such Settlement Date
and (ii) thereafter be remitted to Transferor on such Settlement Date.
1.2. Section 8.2(c) of the Receivables Transfer Agreement
is hereby amended and restated in its entirety to read as follows:
(c) The Servicer shall administer the Collections in
accordance with the procedures described herein and in Article II;
PROVIDED THAT nothing in this sentence shall require the Servicer to
segregate Collections on a daily basis from its other funds prior to
the occurrence of a Group's Amortization Date. The Servicer shall set
aside and hold in trust for the account of Transferor and the
Transferees their respective shares of the Collections in accordance
with Article II. The Servicer (or from and after delivery of any
Collection Notice, the Administrative Agent) shall, upon the request of
any Agent while any Aggregate Unpaids remain outstanding, segregate, in
a manner reasonably acceptable to such Agent, all cash, checks and
other instruments received by it from time to time constituting such
Agent's Group's Group Collections from the general funds of the
Servicer or Transferor prior to the remittance thereof in accordance
with Article II, in an amount not to exceed the accrued and unpaid
Aggregate Unpaids that will be due and owing to the Agents for the
benefit of their respective Groups on the next Settlement Date pursuant
to Section 2.2 or 2.3, as applicable. If the Servicer shall be required
to segregate Collections pursuant to the preceding sentence, the
Servicer shall segregate and deposit with a bank designated by the
applicable Agent such allocable share of Collections of Receivables set
aside for the applicable Transferees on the first Business Day
following receipt by the Servicer of such Collections, duly endorsed or
with duly executed instruments of transfer.
1.3. Section 8.3 of the Receivables Transfer Agreement is
hereby amended by inserting the following at the end of the second sentence:
", PROVIDED THAT, unless and until an Amortization Event shall
have occurred and remain outstanding, delivery of any such Collection
Notice shall not entitle the Administrative Agent to retain any
Collections received after delivery of such notice in excess of the
Accrual Amounts that will be required to be paid over to the respective
Group Agents on the next succeeding Settlement Date pursuant to Section
2.2 hereof, and any such excess received in any Lockbox or Collection
Account will be paid over to the Transferor on a same-day basis by the
Administrative Agent as the proceeds of a Reinvestment."
1.4. Section 9.1 (f)(i) of the Receivables Transfer
Agreement is hereby amended by deleting the percentage rate "3.40%' appearing
therein in its entirety and replacing it with the percentage rate "3.10%".
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1.5. The definition of "Co-Agent's Fee Letter" appearing in
Exhibit I to the Receivables Transfer Agreement is hereby amended by deleting
the definition thereof in its entirety and replacing it with the following:
"CO-AGENTS' FEE LETTER" means that certain Amended and
Restated Co-Agents' Fee Letter dated as of February 12, 2004 by and
among Transferor and the Co-Agents, as the same may be amended,
restated or otherwise modified from time to time.
1.6. The definition of "Dilution Horizon Ratio" appearing in
Exhibit I to the Receivables Transfer Agreement is hereby amended by deleting
the number "1.33" appearing in subsection (i) therein in its entirety and
replacing it with the number "2.00".
1.7. The definition of "Dilution Ratio" appearing in Exhibit I
to the Receivables Transfer Agreement is hereby amended by deleting the phrase
"during the month" appearing in subsection (ii) therein in its entirety and
replacing it with the phrase "two months".
1.8. The definition of "LIBO Rate" appearing in Exhibit I to
the Receivables Transfer Agreement is hereby amended by deleting the phrase
"the Program Fee per annum" appearing in subsection (ii) therein in its
entirety and replacing it with the percentage rate "2.00%".
1.9. The definition of "Liquidity Termination Date" appearing
in Exhibit I to the Receivables Transfer Agreement is hereby amended by
deleting the phrase "364 days after the date of this Agreement" appearing in
subsection (a) therein in its entirety and replacing it with "February
11, 2005".
1.10. The definition of "Obligor Concentration Limit"
appearing in Exhibit I to the Receivables Transfer Agreement is hereby amended
by deleting the percentage rate "3%" appearing in subsection (a) therein in its
entirety and replacing it with the percentage rate "6.50%".
1.11. The definition of "Required Reserve Factor Floor"
appearing in Exhibit I to the Receivables Transfer Agreement is hereby amended
by deleting the percentage rate "15%" appearing therein in its entirety and
replacing it with the percentage rate "18.50%".
SECTION 2. CONDITION TO EFFECTIVENESS; EFFECTIVE DATE.
This Amendment will be effective only upon the satisfaction of
the following conditions precedent:
(a) Execution and delivery of this Amendment by the
Transferor, Parent, the Blue Ridge Group, the Liberty Street Group and the
Agents.
(b) Execution and delivery of an amendment to the Blue Ridge
Liquidity Agreement extending the Purchase Termination Date (as defined therein)
to February 10, 2005.
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(c) Execution and delivery of an amendment to the Liberty
Street Liquidity Agreement extending the Purchase Termination Date (as defined
therein) to February 10, 2005.
(d) Payment by Transferor to the Agents of a fully-earned and
non-refundable restructuring fee of $50,000 for each Co-Agent.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
In order to induce the Blue Ridge 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 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 the Transferor
of this Amendment has been duly authorized by all necessary corporate action
required on its part and this Amendment is the legal, valid and binding
obligation of the Transferor enforceable against the Transferor 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 the execution, delivery and performance of this
Amendment by Transferor nor the consummation of the transactions contemplated
hereby does or shall contravene, result in a breach of, or violate (i) any
provision of Transferor's 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 Transferor Party is a party or by which Transferor 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 default or event
of default under the Receivables Transfer Agreement or any Transaction Document
has occurred and is continuing.
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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.
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 or
other advisors for advice, assistance or other representation in connection
with this Amendment and reasonable documentation charges assessed by each Agent
in connection with this Amendment.
SECTION 6. GOVERNING LAW.
THIS UNDERTAKING 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. CONSENT TO JURISDICTION.
EACH TRANSFEROR PARTY HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT SITTING
IN NEW YORK, NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH PERSON PURSUANT TO THIS
AGREEMENT AND EACH TRANSFEROR PARTY 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
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PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF ANY AGENT OR ANY TRANSFEREE TO BRING
PROCEEDINGS AGAINST ANY TRANSFEROR PARTY IN THE COURTS OF ANY OTHER
JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY TRANSFEROR PARTY AGAINST ANY AGENT
OR ANY TRANSFEREE OR ANY AFFILIATE OF ANY AGENT OR ANY TRANSFEREE INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH TRANSFEROR PARTY
PURSUANT TO THIS AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK, NEW
YORK.
SECTION 8. WAIVER OF JURY TRIAL.
EACH PARTY HERETO 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 AGREEMENT, ANY DOCUMENT EXECUTED BY ANY TRANSFEROR PARTY
PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR
THEREUNDER.
SECTION 9. 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 10. 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: (sig)
-------------------------
Name:
Title:
ADDRESS:
FSI Receivables Company LLC
Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. XxXxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
WITH A COPY TO:
Xxxxxx Scientific Company L.L.C.
0000 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
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XXXXXX SCIENTIFIC INTERNATIONAL INC., AS SERVICER
By: (sig)
-----------------------------
Name:
Title:
ADDRESS:
Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
WITH A COPY TO:
Xxxxxx Scientific Company L.L.C.
0000 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
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BLUE RIDGE ASSET FUNDING CORPORATION
BY: WACHOVIA CAPITAL MARKETS, LLC, F/K/A WACHOVIA SECURITIES, INC., AS
ATTORNEY-IN-FACT
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
----------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Vice President
ADDRESS:
Blue Ridge Asset Funding Corporation
c/o Wachovia Bank, National Association
000 X. Xxxxxxx Xxxxxx
XXX XXX 0 XX00000
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx Xx.
Tel.: (000) 000-0000
Fax: (000) 000-0000
WITH A COPY TO:
Blue Ridge Asset Funding Corporation
c/o AMACAR Group, L.L.C.
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
10
WACHOVIA BANK, NATIONAL ASSOCIATION, INDIVIDUALLY, AS BLUE RIDGE AGENT
AND AS ADMINISTRATIVE AGENT
By: /s/ Xxxx X. Xxxxxxx, Xx.
------------------------------
Name: Xxxx X. Xxxxxxx, Xx.
Title: Director
ADDRESS:
Wachovia Bank, National Association
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
XX - 8047
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
00
XXXXXXX XXXXXX FUNDING CORP.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ADDRESS:
Liberty Street Funding Corp.
c/o Global Securitization Services, LLC
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
WITH A COPY TO:
The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx, Director
Tel: (000) 000-0000
Fax: (000) 000-0000
THE BANK OF NOVA SCOTIA, INDIVIDUALLY AND AS LIBERTY STREET AGENT
By: /s/ Xxxxxx Last
---------------------------
Name: Xxxxxx Last
Title: Managing Director
ADDRESS:
The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx, Director [FOR TRANSFER NOTICES]
Tel: (000) 000-0000
Fax: (000) 000-0000
and
Attention: Xxxx Xxxx, Director [FOR ALL OTHER PURPOSES]
Tel: (000) 000-0000
Fax: (000) 000-0000
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