EXHIBIT 10.5
EIGHTH AMENDMENT
DATED AS OF JUNE 28, 2002
TO
RECEIVABLES SALE AGREEMENT
DATED AS OF OCTOBER 1, 1999
THIS AMENDMENT (the "Amendment"), dated as of June 28, 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) 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 at all times instruct its Obligors to deliver
payments on the Receivables to a Lock-Box Account (except that
Lock-Box Letters for Collections on Receivables originated by
Advanced Measurement Technology, Inc., Patriot Sensors and
Controls Corp, EDAX, Inc. and Prestolite Power and Switch need
not be in place before August 27, 2002),. 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 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.
(b) The defined term "Originators" appearing in Schedule I of the
Sale Agreement is hereby amended in its entirety and as so amended shall
read as follows:
"Originators" means each of Ametek, Inc., a
Delaware corporation ("Ametek"), Rotron Incorporated, a
New York corporation, Advanced Measurement Technology,
Inc., a Delaware corporation ("Advanced"), Patriot
Sensors and Controls Corporation, a Delaware corporation
("Patriot") and EDAX Inc., a Delaware corporation
("EDAX").
(c) Exhibit D to the Sale Agreement is hereby amended in its
entirety to be read as Exhibit D attached hereto.
(d) 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 Sale 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. Section 1 of this Amendment shall become effective only once
the Agent has received in, form and substance satisfactory to the Agent, the
following:
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(a) All instruments and other documents required, or deemed
desirable by the Agent, to perfect the Agent's first priority interest in
the Receivables, Related Security, Collections, the Purchase Agreement and
the Lock-Box Accounts of Advanced, Patriot and EDAX in all appropriate
jurisdictions.
(b) UCC search reports and UCC financing statements from all
jurisdictions the Agent requests.
(c) Favorable opinions of counsel covering such matters as any
Purchaser Agent or the Agent may request.
(d) Such other approvals, opinions or documents as the Agent or
any Purchaser Agent may reasonably request.
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 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.
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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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