EXHIBIT 10.97
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED UNCOMMITTED INSURED TRADE
RECEIVABLES PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED UNCOMMITTED INSURED
TRADE RECEIVABLES PURCHASE AGREEMENT (this "Second Amendment") is made as of
June 2, 2004 by and among Xxx Research Corporation, a Delaware corporation
("Lam"), Xxx Research International SARL, a Swiss corporation ("LRI") and a
subsidiary of Lam (Lam and LRI each a "Seller" and collectively, "Sellers") and
ABN AMRO Bank N.V. ("Buyer").
RECITALS
Xxx and Buyer have previously entered into that certain Second Amended and
Restated Uncommitted Insured Trade Receivables Purchase Agreement dated as of
March 21, 2003 (the "March Agreement"), pursuant to which Xxx agreed to sell and
Buyer agreed to buy, on an uncommitted basis, certain accounts receivable not to
exceed $50,000,000, subject to the terms and conditions of the March Agreement,
as amended by that certain Amendment to Second Amended and Restated Uncommitted
Insured Trade Receivables Purchase Agreement dated as of September 24, 2003
among XXX, LRI and Buyer (the "First Amendment", the March Agreement as amended
by the First Amendment, the "Purchase Agreement").
Xxx and Buyer desire to further amend the Purchase Agreement on the terms
set forth herein to extend the Purchase Period to March 25, 2005 and increase
the Total Uncommitted Facility to an amount not in excess of One Hundred Million
Dollars ($100,000,000).
NOW, THEREFORE, in consideration of the above Recitals, the mutual
covenants herein contained, and the exchange of consideration provided
hereinafter, the receipt and adequacy of which the parties hereby acknowledge,
the parties hereto hereby agree as follows:
1. Waiver. Buyer hereby acknowledges that Sellers have not delivered a
Purchase Period Extension Request pursuant to Section 12(d) of the Purchase
Agreement. Buyer hereby agrees to waive the requirements of Section 12(d)
requiring delivery of such Purchase Period Extension Request ("Waiver") and
agrees that the Purchase Period shall be amended as provided in this Second
Amendment. This Waiver is a one-time waiver and shall not be construed to be:
(i) a waiver as to future compliance with the Purchase Agreement, or (ii) a
waiver of any other rights or remedies that Buyer may have under the Purchase
Agreement or under applicable law.
2. Amendments to the Purchase Agreement.
A. Section 1 Sale and Purchase. The third sentence of Section
1(a) is hereby amended to read as follows:
"Buyer shall not purchase Eligible Receivables that a Seller
offers to the extent that the aggregate purchase price paid by
Buyer for Purchased Receivables would exceed One Hundred
Million Dollars ($100,000,000) (the "Total Uncommitted
Facility")."
B. Section 1 Sale and Purchase. Section 1(b) is hereby amended to
read as follows:
"The obligation of Buyer to enter into the March Agreement was
subject to receipt by Buyer, on or prior to the Effective
Date, of those items listed on Schedule 2 attached thereto.
The obligation of Buyer to enter into the First Amendment was
subject to receipt by Buyer, on or prior to the Amendment
Effective Date, of each item listed on Schedule 2 attached
thereto. The obligation of Buyer to enter into this Second
Amendment is subject to receipt by Buyer, on or prior to the
Second Amendment Effective Date, of each item listed on
Schedule 2 attached hereto as being deliverable on or prior to
such date, each in form and substance satisfactory to Buyer."
C. Section 1 Sale and Purchase. The second sentence of Section
1(g) is hereby amended to read as follows:
"On each subsequent Purchase Date under the March Agreement,
the First Amendment or the Second Amendment, Buyer deposited
or shall deposit, as the case may be, into the Collection
Expenses Account funds equal to One-Hundredth of One Percent
(0.01%) of the Net Invoice Amount of the Purchased Receivables
acquired on such Purchase Date."
D. Section 7 Notices. Section 7 is hereby amended to delete the
address set forth for LRI and replace such address with the following:
"Xxx Research International Sarl
Xxxxxx xx xx Xxxxxxx 0
Xx Xxxxx-xx-Xxxxx
Xxxxxxxxxxx 0000
Attn: Xxxxx Xxxxxx
Telephone: 00-00-000-0000
With a copy to Xxx Research Corporation:
Xxx Research Corporation
0000 Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxx XxXxxxx
Telephone: (000) 000-0000
Fax No: (000) 000-0000"
E. Section 11 Definitions. The definition of "Purchase Period" is
amended to read as follows:
"Purchase Period": the period from and including March 26,
2004 up to and including March 25, 2005 or, if such date is
extended from time to time pursuant to Section 12(d), any
later date to which so extended.
F. Exhibit A Instrument of Transfer and Assignment. Exhibit A is
hereby deleted in its entirety and amended to read as set forth in
Attachment 1 hereto.
G. Exhibit C Insurance Policy Requirements; Repurchase Limits;
Purchase Percentage. Exhibit C is hereby deleted in its entirety and
amended to read as set forth in Attachment 2 hereto.
H. Exhibit D Form of Insurance Policy. Exhibit D is hereby
deleted in its entirety and amended to read as set forth in Attachment 3
hereto.
3. Representation and Warranties. The Sellers each severally represent
and warrant to Buyer as to itself that, after giving effect to the waiver and
amendments set forth in Section 1 and Section 2 above, respectively, the
following will be true and correct on the Second Amendment Effective Date (as
defined below):
A. The representations and warranties of the Sellers set forth in
Section 2 of the Purchase Agreement are true and correct in all material
respects as if made on the Second Amendment Effective Date (except for
representations and warranties expressly made as of a specified date, which
shall be true as of such date);
B. No Event of Repurchase has occurred and is continuing; and
C. The Purchase Agreement is in full force and effect as to each
Seller.
4. Second Amendment Effective Date. The waiver effected by Section 1
above and the amendments effected by Section 2 above shall become effective as
of the date on which McGuireWoods LLP ("MW"), counsel to the Buyer, is in
receipt of or has confirmed the receipt of the items listed on Schedule 2 hereto
(the "Second Amendment Effective Date").
5. Miscellaneous.
A. The Sellers agree to pay all reasonable costs and expenses of
the Buyer in connection with the preparation, execution and delivery of this
Second Amendment, including without limitation, the reasonable fees and expenses
of MW.
B. Except as specifically waived and amended above, the Purchase
Agreement and each of the Schedules and Exhibits thereto shall remain in full
force and effect and the Purchase Agreement is hereby ratified and confirmed in
all respects.
C. Section headings in this Second Amendment are included herein
for convenience of reference only and shall not constitute a part of this Second
Amendment for any other purpose.
D. This Second Amendment may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement. Delivery of an executed counterpart of a signature
page to this Second Amendment by facsimile shall be effective as delivery of a
manually executed counterpart of this Second Amendment.
E. GOVERNING LAW. THIS SECOND AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED,
INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
[the Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to be executed as of the date first above written.
SELLERS
LAM RESEARCH CORPORATION,
a Delaware corporation
By: /s/ Xxxx XxXxxxx
----------------
Name: Xxxx XxXxxxx
Title: Assistant Treasurer
XXX RESEARCH INTERNATIONAL
SARL, a Swiss corporation
By: /s/ Xxxx Xxxx
----------------
Name: Xxxx Xxxx
Title: Director
BUYER
ABN AMRO BANK N.V.
By: /s/ Xxxxxxx Kai-Kee
Name: Xxxxxxx Kai-Xxx
Title: Director
By: /s/ Xxxxxx Xxx
Name: Xxxxxx Xxx
Title: Vice President
SCHEDULE 2
Conditions Precedent
1. This Second Amendment, duly executed by Buyer and each Seller.
2. The Certificate of Incorporation of Xxx, certified as of a recent
date prior to the Second Amendment Effective Date by the Secretary of State (or
comparable official) of its jurisdiction of incorporation.
3. A Certificate of Good Standing including tax good standing (or
comparable certificate) for Xxx, certified as of a recent date prior to the
Second Amendment Effective Date by the Secretary of State (or comparable
official) of its jurisdiction of incorporation.
4. A certificate of a senior officer of Xxx, dated the Second Amendment
Effective Date, certifying (a) that attached thereto is a true and correct copy
of the Bylaws of Xxx as in effect on the Second Amendment Effective Date; (b)
that attached thereto are true and correct copies of resolutions duly adopted by
the Board of Directors of Xxx and continuing in effect, which authorize the
execution, delivery and performance by Xxx of this Second Amendment and the
Guaranty (as defined in item 14) and the consummation of the transactions
contemplated hereby and thereby; and (c) that there are no proceedings for the
dissolution or liquidation of Xxx.
5. A certificate of a senior officer of Xxx, dated the Second Amendment
Effective Date, certifying the incumbency, signatures and authority of the
officers of Xxx authorized to execute, deliver and perform this Second Amendment
and the Guaranty and all other documents, instruments or agreements related
thereto executed or to be executed by Xxx.
6. Certificates of Good Standing (including tax good standing for
California) (or comparable certificates) for Xxx, certified as of a recent date
prior to the Second Amendment Effective Date by the Secretary of State of
California.
7. A copy of the audited consolidated financial statements of Xxx for
the fiscal year ended June 29, 2003 prepared by Ernst & Young and a copy of the
unqualified opinion delivered by such accountants in connection with such
financial statements.
8. A copy of the 10-K report filed by Xxx with the Securities and
Exchange Commission for the fiscal year ended June 29, 2003.
9. A copy of the 10-Q report filed by Xxx with the Securities and
Exchange Commission for the fiscal quarter ended March 28, 2004.
10. Such other financial, business and other information regarding
Sellers, or any of their subsidiaries, as Buyer may reasonably request,
including information as to possible contingent liabilities, tax matters,
environmental matters and obligations for employee benefits and compensation.
11. A UCC-3 financing statement correcting LRI's address on file with
the Delaware Secretary of State.
12. An opinion of each Seller's in-house or external legal counsel,
addressed to Buyer, covering such legal matters as Buyer may reasonably request
and otherwise in form and substance satisfactory to Buyer.
13. Payment of all fees and expenses payable to Buyer on or prior to the
Second Amendment Effective Date, including, but not limited to, a one-time
structuring fee of $75,000 (the "Structuring Fee") payable to Buyer by the
Sellers.
14. A copy of an Amended and Restated Guaranty in from and substance
satisfactory to Buyer (the "Guaranty") duly executed by Xxx, pursuant to which
Xxx guaranties the performance of LRI under the Purchase Agreement.
15. A certificate of a senior officer of LRI dated the Second Amendment
Effective Date, certifying (a) that attached thereto is a true and correct copy
of the organizational documents of LRI as in effect on the Second Amendment
Effective Date; (b) that attached thereto are true and correct copies of
resolutions duly adopted by the Board of Directors of LRI and continuing in
effect, which authorize the execution, delivery and performance by LRI of this
Second Amendment and the consummation of the transactions contemplated hereby;
and (c) that there are no proceedings for the dissolution or liquidation of LRI.
16. A certificate of a senior officer of LRI, dated the Second Amendment
Effective Date, certifying the incumbency, signatures and authority of the
officers of LRI authorized to execute, deliver and perform this Second Amendment
and all other documents, instruments or agreements related thereto executed or
to be executed by LRI.
ATTACHMENT 1
EXHIBIT "A"
Instrument of Transfer and Assignment
The undersigned [Xxx Research Corporation, a Delaware corporation] [Xxx
Research International SARL, a Swiss corporation] (the "Seller"), for valuable
consideration which is hereby acknowledged, hereby sells, assigns, sets over and
transfers to ABN AMRO Bank N.V. ("Buyer"), all of Seller's right, title and
interest in and to the Initial Payments under the accounts receivable listed on
Exhibit 1 attached hereto.
This assignment and transfer is made without recourse, warranty or
representation, except as expressly set forth in the Second Amendment to Second
Amended and Restated Uncommitted Insured Trade Receivables Purchase Agreement,
dated as of June 2, 2004, between Sellers (as defined therein) and Buyer.
[XXX RESEARCH CORPORATION, a Delaware
corporation] [XXX RESEARCH
INTERNATIONAL SARL, a Swiss corporation]
By: ____________________________________
Title: _________________________________
Date: _______________________
EXHIBIT 1
LIST OF PURCHASES RECEIVABLES
TOTAL
INVOICE SHIPMENT INVOICE INITIAL CUSTOMER DUE
CUSTOMER NUMBER DATE AMOUNT PAYMENT P.O. # DATE
ATTACHMENT 2
EXHIBIT "C"
Insurance Policy Requirements; Repurchase Limit; Purchase Percentage
Insurance Policy Requirements
Commencing on each Purchase Date and continuing until the next Purchase Date,
the Insurance Policy shall provide for (i) an aggregate policy limit in an
amount equal to One-Hundred Million Dollars ($100,000,000), (ii) a co-insurance
percentage of not greater than ten percent (10%) of the Net Invoice Amount of
all the Purchased Receivables purchased hereunder through and including such
Purchase Date (the "co-insurance percentage"), and (iii) a total deductible not
greater than $0 (the "Deductible Limit").
Repurchase Limit
The Repurchase Limit, as of any date and with respect to the Purchased
Receivables purchased on such Purchase Date, shall be the sum of (i) the amount
obtained by multiplying the co-insurance percentage under the Insurance Policy
by the Net Invoice Amount of all the Purchased Receivables purchased hereunder
on such date and (ii) the Deductible Limit under the Insurance Policy as of such
date.
Purchase Percentage
The Purchase Percentage with respect to Purchased Receivables on a Purchase Date
shall be the percentage determined by calculating (i) the Discount Rate
applicable to such Purchased Receivable times (ii) one hundred and twenty (120)
divided by (iii) three hundred and sixty (360).
ATTACHMENT 3
EXHIBIT "C"
Form of Insurance Policy
[Delivered to Buyer]
