EXHIBIT 10.4
SEVENTH AMENDMENT
DATED AS OF JUNE 3, 2002
TO
RECEIVABLES SALE AGREEMENT
DATED AS OF OCTOBER 1, 1999
THIS AMENDMENT (the "Amendment"), dated as of June 3, 2002, is entered
into among Ametek Receivables Corp. (the "Seller"), Ametek, Inc. (the "Initial
Collection Agent"), Amsterdam Funding Corporation, a Delaware corporation
("Amsterdam"), ABN AMRO Bank N.V., as Amsterdam's program letter of credit
provider (the "Enhancer"), the Liquidity Provider listed on the signature page
hereof (the "Liquidity Provider") and ABN AMRO Bank N.V., as agent for
Amsterdam, the Enhancer and the Liquidity Provider (the "Agent").
WITNESSETH:
WHEREAS, the Seller, Initial Collection Agent, Amsterdam, Enhancer,
Liquidity Provider and Agent have heretofore executed and delivered a
Receivables Sale Agreement, dated as of October 1, 1999 (as amended,
supplemented or otherwise modified through the date hereof, the "Sale
Agreement"),
WHEREAS, the parties hereto desire to amend the Sale Agreement as
provided herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby agree that
the Sale Agreement shall be and is hereby amended as follows:
Section 1. Subject to the following terms and conditions, including
without limitation the conditions precedent set forth in Section 2, upon
execution by the parties hereto in the space provided for that purpose below,
the Sale Agreement shall be, and it hereby is, amended as follows:
(a) The defined term "Ametek Credit Agreement" appearing in
Schedule I of the Sale Agreement is hereby amended in its entirety and as
so amended shall read as follows:
"Ametek Credit Agreement" means the Credit Agreement,
dated as of August 12, 1995, among, Seller, as Borrower, the
Banks party thereto, Bank of Montreal, Corestates Bank, N.A.
and PNC Bank, National Association, as Co-Agents and The Chase
Manhattan Bank, as Administrative Agent, and supplemented
through the date hereof, but without regard to any further
amendment, supplement, waiver or termination of any provision
thereof unless consented to by ABN AMRO as a lender under the
Ametek Credit Agreement or consented to by the Instructing
Group.
(b) The defined term "Loss Reserve" is hereby amended by deleting
the reference to "10%" in clause (i)(a) thereof and replacing it with
"Floor Percentage."
(c) The defined term "Termination Event" appearing in Schedule I
of the Sale Agreement is hereby amended by (i) striking subsection "(h)"
therefrom, (ii) striking the reference to "(i)" in subsection (i) and
replacing it with "(h)", (iii) striking the reference to "(j)" in
subsection (j) and replacing it with "(i)"; and (iv) inserting the
following subsections immediately at the end thereof:
(j) the "Fixed Charge Coverage Ratio" under and as defined
in the Ametek Credit Agreement is less than 1.3:1.0; or
(k) the "Leverage Ratio" under and as defined in the Ametek
Credit Agreement is greater than 0.80:1.0; or
(l) the "Consolidated Indebtedness to Consolidated EBITDA
Ratio" under and as defined in the Ametek Credit Agreement is
greater than 3.0:1.0.
(d) A new defined term "Floor Percentage" is hereby added to
Schedule I of the Sale Agreement as follows:
"Floor Percentage" means, at any time, based upon the
long-term unsecured debt rating of Ametek, Inc. the following
percentages:
S&P Rating Moody's Rating Floor Percentage
--------------------------------------------------------
BBB/BBB- Ba1 10.0%
BB+ Ba2 20.0%
BB or Below or Baa3 or Below or 35.0%
rating suspended rating suspended
or withdrawn by or withdrawn by
either S&P or either S&P or
Moody's Moody's
If the S&P rating and Moody's rating (or suspension or withdrawal
thereof) would yield different Floor Percentages, the larger Floor
Percentage shall apply.
(e) The defined term "Prime Rate" appearing in Schedule I of the
Sale Agreement is hereby amended in its entirety and as so amended shall
read as follows:
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"Prime Rate" means, for any period, the daily average during
such period of (a) the greater of (i) the floating commercial loan
rate per annum of ABN AMRO (which rate is a reference rate and does
not necessarily represent the lowest or best rate actually charged
to any customer by ABN AMRO) announced from time to time as its
prime rate or equivalent for Dollar loans in the USA, changing as
and when said rate changes and (ii) the Federal Funds Rate plus
1.75% plus (b) during the pendency of a Termination Event, or a
Ratings Event, 1.50% for Investment of a Liquidity Provider and
2.00% for Investment of the Enhancer.
(f) A new defined term "Ratings Event" is hereby added to Schedule
I of the Sale Agreement as follows:
"Ratings Event" means the downgrade by Moody's or S&P of the
long-term unsecured debt rating of Ametek, Inc. below Ba1 or BBB-,
respectively, or the reduction or withdrawal of either such rating.
(g) Section 5.1(ii) of the Sale Agreement is hereby amended in its
entirety and as so amended shall read as follows:
(i) Payments on Receivables, Accounts. Upon the occurrence
of a Collection Agent Replacement Event or a Termination Event, the
Seller will, and will cause each Originator to (except that Lock-Box
Letters for Collections on Receivables originated by Prestolite
Power and Switch need not be in place before August 2, 2002), at all
times instruct its Obligors to deliver payments on the Receivables
to a Lock-Box Account. If any such payments or other Collections are
received by the Seller or an Originator, it shall hold such payments
in trust for the benefit of the Agent and the Purchasers and
promptly (but in any event within two Business Days after receipt)
remit such funds into a Lock-Box Account. The Seller will cause each
Lock-Box Bank to comply with the terms of each applicable Lock-Box
Letter. The Seller will not permit the funds of any Affiliate to be
deposited into any Lock-Box Account. If such funds are nevertheless
deposited into any Lock-Box Account, the Seller will promptly
identify such funds for segregation. Upon the occurrence of a
Collection Agent Replacement Event or a Termination Event, the
Seller will not, and will not permit any Collection Agent or other
Person to, commingle Collections or other funds to which the Agent
or any Purchaser is entitled with any other funds. The Seller shall
only add, and shall only permit an Originator to add, a Lock-Box
Bank, Lock-Box, or Lock-Box Account to those listed on Exhibit F if
the Agent has received notice of such addition, a copy of any new
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Lock-Box Agreement and an executed and acknowledged copy of a
Lock-Box Letter substantially in the form of Exhibit G (with such
changes as are acceptable to the Agent) from any new Lock-Box Bank.
The Seller shall only terminate a Lock-Box Bank or Lock-Box, or
close a Lock-Box Account, upon 30 days advance notice to the Agent.
(i) Exhibit F to the Sale Agreement is hereby amended in its
entirety to be read as Exhibit F attached hereto.
Section 2. Anything in the Agreement to the contrary notwithstanding, the
Seller may request Incremental Purchases from the date of this Amendment to the
date the next Periodic Report must be delivered based upon an interim
receivables report (the "Interim Receivables Report") in form and substance
satisfactory to the Agent.
Section 3. This Amendment shall become effective only on the date the
Agent (i) has received counterparts of this Amendment executed by the Seller,
Initial Collection Agent, each Purchaser and the Agent and (ii) has received the
Interim Receivables Report.
Section 4. To induce the Agent and the Purchasers to enter into this
Amendment, the Seller and Initial Collection Agent represent and warrant to the
Agent and the Purchasers that: (a) the representations and warranties contained
in the Transaction Documents, are true and correct in all material respects as
of the date hereof with the same effect as though made on the date hereof (it
being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be true and correct in
all material respects only as of such specified date); (b) no Potential
Termination Event exists; (c) this Amendment has been duly authorized by all
necessary corporate proceedings and duly executed and delivered by each of the
Seller and the Initial Collection Agent, and the Sale Agreement, as amended by
this Amendment, and each of the other Transaction Documents are the legal, valid
and binding obligations of the Seller and the Initial Collection Agent,
enforceable against the Seller and the Initial Collection Agent in accordance
with their respective terms, except as enforceability may be limited by
bankruptcy, insolvency or other similar laws of general application affecting
the enforcement of creditors' rights or by general principles of equity; and (d)
no consent, approval, authorization, order, registration or qualification with
any governmental authority is required for, and in the absence of which would
adversely effect, the legal and valid execution and delivery or performance by
the Seller or the Initial Collection Agent of this Amendment or the performance
by the Seller or the Initial Collection Agent of the Sale Agreement, as amended
by this Amendment, or any other Transaction Document to which they are a party.
Section 4.1. This Amendment may be executed in any number of counterparts
and by the different parties on separate counterparts and each such counterpart
shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same Amendment.
Section 4.2. Except as specifically provided above, the Sale Agreement and
the other Transaction Documents shall remain in full force and effect and are
hereby ratified and
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confirmed in all respects. The execution, delivery, and effectiveness of this
Amendment shall not operate as a waiver of any right, power, or remedy of any
Agent or any Purchaser under the Sale Agreement or any of the other Transaction
Documents, nor constitute a waiver or modification of any provision of any of
the other Transaction Documents. All defined terms used herein and not defined
herein shall have the same meaning herein as in the Sale Agreement. The Seller
agrees to pay on demand all costs and expenses (including reasonable fees and
expenses of counsel) of or incurred by the Agent and each Purchaser Agent in
connection with the negotiation, preparation, execution and delivery of this
Amendment.
Section 4.3. This Amendment and the rights and obligations of the parties
hereunder shall be construed in accordance with and be governed by the law of
the State of New York.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
and delivered by their duly authorized officers as of the date first above
written.
ABN AMRO BANK N.V., as the Agent, as
the Liquidity Provider and as the
Enhancer
By: Patricia Luken
----------------------------
Title: Vice President
By: Kevin G. Pilz
----------------------------
Title: Vice President
AMSTERDAM FUNDING CORPORATION
By: Andrew L. Stidd
----------------------------
Title: President
AMETEK RECEIVABLES CORP.
By: Deirdre D. Saunders
----------------------------
Title: Treasurer
AMETEK, INC.
By: Deirdre D. Saunders
----------------------------
Title: VP & Treasurer
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