EXHIBIT 4.7 (a)
SECOND AMENDED AND RESTATED FEE LETTER
Dated as of December 17, 2003
IDEX Receivables Corporation
630 Dundee Road, Suite 400
Northbrook, IL 60062
Re: Receivables Purchase Agreement
Ladies and Gentlemen:
Reference is hereby made to that certain Receivables Purchase
Agreement (as amended by Amendment No. 1 thereto dated as of December 18, 2002,
by Amendment No. 2 thereto dated as of even date herewith and as may be further
amended, restated or otherwise modified from time to time, the "Purchase
Agreement"), dated as of December 20, 2001, among IDEX Receivables Corporation,
as seller (the "Seller"), IDEX Corporation, as servicer (the "Servicer"), Falcon
Asset Securitization Corporation ("Falcon"), certain entities party thereto as
"Financial Institutions" and Bank One, NA (Main Office Chicago), as Agent (the
"Agent") for Falcon and the Financial Institutions. This letter constitutes the
"Fee Letter" referred to in the Purchase Agreement and sets forth our
understanding in respect of certain fees payable by the Seller and the
obligations of the Seller in connection therewith. Capitalized terms that are
used herein and not otherwise defined herein shall have the respective meanings
assigned thereto under the Purchase Agreement.
SECTION 1. Fees. Notwithstanding any limitation on recourse
contained in the Purchase Agreement:
(a) Amendment and Renewal Fee. On the date hereof, the Seller
shall pay to Falcon an amendment and renewal fee in the amount of $18,750.00.
(b) On-Going Fees. The following fees shall be due and payable
on each Settlement Date of the type described in clause (A) of the definition of
"Settlement Date" in the Purchase Agreement, or such other day as agreed to by
the Seller and the Agent in writing (each such date, a "Payment Date"), during
the period commencing on December 18, 2003 until the date occurring after the
Facility Termination Date on which the amount of the Aggregate Unpaids shall be
reduced to zero. All such fees shall accrue from and including the date hereof
and shall, as provided in Section 1.4 of the Purchase Agreement, be calculated
on the basis of a 360-day year for the actual number of days elapsed (including
the first but excluding the last such day).
Signature Page to Second Amended and Restated Fee Letter
(i) Administration Fee. On each Payment Date, the Seller
shall pay to Falcon a fee equal to 0.50% per annum times 102% of the
Purchase Limit.
(ii) Program Fee. On each Payment Date, the Seller shall
pay to Falcon a fee equal to 0.27% times the average daily outstanding
Capital during the immediately preceding calendar month or portion
thereof.
SECTION 2. Independent Nature of Fees. Each of the fees
described in Section 1 above shall be in addition to, and not in lieu of any
other fees, expenses, reimbursements, indemnities and any other amounts payable
by the Seller under or in connection with the Purchase Agreement. Nothing
contained in this Fee Letter shall limit in any way the obligation of the Seller
to pay any amount required to be paid by it in accordance with the terms of the
Purchase Agreement.
SECTION 3. Termination. This Fee Letter shall terminate
immediately following the later to occur of (a) the Facility Termination Date
and (b) the repayment in full of all of the Aggregate Unpaids.
SECTION 4. Amendments and Waivers. No amendment, waiver,
supplement or other modification of this Fee Letter shall be effective unless
made in writing and executed by each of the parties hereto.
SECTION 5. Counterparts. This Fee Letter 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
agreement.
SECTION 6. Successors and Assigns. This Fee Letter shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors and assigns; provided that the Seller may not assign any
of its obligations hereunder without the prior written consent of the Agent and
each of the Purchasers.
SECTION 7. Governing Law. This Fee Letter shall be governed
and construed in accordance with the internal laws (and not the law of
conflicts) of the State of Illinois.
SECTION 8. Amendment and Restatement; Effectiveness. This
letter agreement amends and restates in its entirety that certain Amended and
Restated Fee Letter dated as of December 18, 2002 among the parties hereto (the
"Existing Fee Letter"). This letter agreement is not intended to constitute a
novation of the Existing Fee Letter, and all fees that have accrued under the
Existing Fee Letter up to (but not including) the date hereof shall have accrued
at the rates specified in the Existing Fee Letter and shall be payable as and
when required in accordance with the terms thereof. All fees accruing from and
after the date hereof shall accrue at the rates specified in this letter
agreement and shall be payable as and when required in accordance with the terms
hereof.
If the foregoing agreements evidence your understanding,
please acknowledge by executing this letter in the space provided below.
Very truly yours,
BANK ONE, NA (MAIN OFFICE CHICAGO),
as Agent and as a Financial Institution
By__________________________________________
Director, Capital Markets
FALCON ASSET SECURITIZATION CORPORATION
By__________________________________________
Authorized Signatory
Acknowledged and Agreed:
IDEX RECEIVABLES CORPORATION
By____________________________
Name:
Title:
Execution Copy
AMENDMENT NO. 2
to
RECEIVABLES PURCHASE AGREEMENT
Dated as of December 17, 2003
THIS AMENDMENT NO. 2 ("Amendment") is entered into as of
December 17, 2003 by and among IDEX Receivables Corporation (the "Seller"), IDEX
Corporation (the "Servicer"), Falcon Asset Securitization Corporation
("Falcon"), the Financial Institutions party hereto and Bank One, NA, as Agent
(the "Agent").
PRELIMINARY STATEMENT
A. The Seller, the Servicer, Falcon, the Financial
Institutions and the Agent are parties to that certain Receivables Purchase
Agreement dated as of December 20, 2001 (as amended by Amendment No. 1 thereto
dated as of December 18, 2002 and as otherwise amended, restated, supplemented
or otherwise modified from time to time, the "Purchase Agreement"). Capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to
them in the Purchase Agreement.
B. The Seller, the Servicer, Falcon, the Financial
Institutions and the Agent have agreed to amend the Purchase Agreement on the
terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises set forth
above, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
I. Amendment. Effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 2 below,
the Purchase Agreement is hereby amended as follows:
A. Section 14.5 of the Purchase Agreement is hereby amended by
adding the following paragraph (c) at the end thereof:
"(c) Anything herein to the contrary notwithstanding, the
Agent, each Purchaser, each Indemnified Party and any successor or assign of any
of the foregoing (and each employee, representative or other agent of any of the
foregoing) may disclose to any and all Persons, without limitation of any kind,
the "tax treatment" and "tax structure" (in each case, within the meaning of
Treasury Regulation Section 1.6011-4) of the transactions contemplated herein
and in the other Transaction Documents and all materials of any kind (including
opinions or other tax analyses) that are or have been provided to any of the
foregoing relating to such tax
treatment or tax structure, and it is hereby confirmed that each of the
foregoing have been so authorized at all times since the date of this
Agreement."
B. Exhibit I to the Purchase Agreement is hereby amended as
follows:
1. The definition of "Liquidity Termination Date" is
amended by deleting "December 17, 2003" therefrom and
replacing it with "December 15, 2004".
2. The definition of "Purchase Limit" is amended by
deleting "$50,000,000" therefrom and replacing it
with "$25,000,000".
C. Schedule A to the Purchase Agreement is hereby amended by
deleting "$51,000,000" therefrom and replacing it with
"$25,500,000".
II. Conditions Precedent. This Amendment shall become effective and be
deemed effective, as of the date first above written, upon the latest
to occur of (i) the date hereof, (ii) receipt by the Agent of one copy
of each of (a) this Amendment and (b) the Second Amended and Restated
Fee Letter dated as of the date hereof (the "Fee Letter"), among the
Agent, Falcon and the Seller, in each case duly executed by each of the
parties hereto or thereto, and (iii) payment by the Seller to Falcon of
all fees due and payable on the date hereof under the Fee Letter.
III. Covenants, Representations and Warranties of the Seller and the
Servicer.
A. Upon the effectiveness of this Amendment, each of the Seller
and the Servicer hereby reaffirms all covenants,
representations and warranties made by it in the Purchase
Agreement, as amended, and agrees that all such covenants,
representations and warranties shall be deemed to have been
re-made as of the effective date of this Amendment.
B. Each of the Seller and the Servicer hereby represents and
warrants as to itself (i) that this Amendment constitutes the
legal, valid and binding obligation of such party enforceable
against such party in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and general
principles of equity which may limit the availability of
equitable remedies and (ii) upon the effectiveness of this
Amendment, that no event shall have occurred and be continuing
which constitutes an Amortization Event or a Potential
Amortization Event.
IV. Fees, Costs, Expenses and Taxes. Without limiting the rights of the
Agent and the Purchasers set forth in the Purchase Agreement and the
other Transaction Documents, the Seller agrees to pay on demand all
reasonable fees and out-of-pocket expenses of counsel for the Agent and
the Purchasers incurred in connection with the preparation, execution
and delivery of this Amendment and the other instruments and documents
to be delivered in connection herewith and with respect to advising the
Agent and the Purchasers as to their rights and responsibilities
hereunder and thereunder.
V. Reference to and Effect on the Purchase Agreement.
Upon the effectiveness of this Amendment, each reference in the
Purchase Agreement to "this Agreement," "hereunder," "hereof,"
"herein," "hereby" or words of like import shall mean and be a
reference to the Purchase Agreement as amended hereby, and
each reference to the Purchase Agreement in any other
document, instrument or agreement executed and/or delivered in
connection with the Purchase Agreement shall mean and be a
reference to the Purchase Agreement as amended hereby.
Except as specifically amended hereby, the Purchase Agreement and
other documents, instruments and agreements executed and/or
delivered in connection therewith shall remain in full force
and effect and are hereby ratified and confirmed.
The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of any
Purchaser or the Agent under the Purchase Agreement or any of
the other Transaction Documents, nor constitute a waiver of
any provision contained therein.
VI. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE
STATE OF ILLINOIS.
VII. Execution in Counterparts. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall
constitute but one and the same instrument.
VIII. Headings. 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 purpose.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed on the date first set forth above by their respective
officers thereto duly authorized, to be effective as hereinabove provided.
IDEX RECEIVABLES CORPORATION, as Seller
By:________________________________________
Name:
Title:
IDEX CORPORATION, individually and as
Servicer
By:________________________________________
Name:
Title:
FALCON ASSET SECURITIZATION CORPORATION
By:________________________________________
Name:
Title: Authorized Signatory
BANK ONE, NA,
as a Financial Institution and as Agent
By:________________________________________
Name:
Title: Director, Capital Markets