EXHIBIT 4.7 (a)
EXECUTION COPY
AMENDMENT NO. 3
to
RECEIVABLES PURCHASE AGREEMENT
Dated as of December 15, 2004
THIS AMENDMENT NO. 3 ("Amendment") is entered into as of December
15, 2004 by and among IDEX Receivables Corporation (the "Seller"), IDEX
Corporation (the "Servicer"), Falcon Asset Securitization Corporation
("Falcon"), the Financial Institutions party hereto and JPMorgan Chase Bank,
N.A. (as successor by merger to Bank One, NA (Main Office Chicago)), 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, as amended by Amendment No. 2 thereto dated as of December 17, 2003
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:
SECTION 1. 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) The following new Section 4.6 is added to the Purchase Agreement
immediately following Section 4.5 of the Purchase Agreement:
"Section 4.6. Liquidity Agreement Fundings. The parties hereto
acknowledge that Falcon may put all or any portion of its Receivable
Interests to the Financial Institutions at any time pursuant to the
Liquidity Agreement to finance or refinance the necessary portion of its
Receivable Interests through a funding under the Liquidity Agreement to
the extent available. The fundings under the Liquidity Agreement will
accrue interest at the Bank Rate in accordance with this Article IV.
Regardless of whether a funding of Receivable
Interests by the Financial Institutions constitutes the direct purchase of
a Receivable Interest hereunder, an assignment under the Liquidity
Agreement of a Receivable Interest originally funded by Falcon or the sale
of one or more participations or other interests under the Liquidity
Agreement in a Receivable Interest originally funded by Falcon, each
Financial Institution participating in a funding of a Receivable Interest
shall have the rights and obligations of a "Purchaser" hereunder with the
same force and effect as if it had directly purchased such Receivable
Interest from Seller hereunder."
(b) The phrase ", its obligation to pay Falcon its Acquisition
Amounts" is deleted from the first sentence of Section 12.2 of the Purchase
Agreement.
(c) The following new Section 12.3 is added to the Purchase
Agreement immediately following Section 12.2 of the Purchase Agreement:
"Section 12.3. Terminating Financial Institutions.
(a) Each Financial Institution hereby agrees to deliver written
notice to the Agent not more than 30 Business Days and not less than
5 Business Days prior to the Liquidity Termination Date indicating
whether such Financial Institution intends to renew its Commitment
hereunder. If any Financial Institution fails to deliver such notice
on or prior to the date that is 5 Business Days prior to the
Liquidity Termination Date, such Financial Institution will be
deemed to have declined to renew its Commitment (each Financial
Institution which has declined or has been deemed to have declined
to renew its Commitment hereunder, a "Non-Renewing Financial
Institution"). The Agent shall promptly notify Falcon of each
Non-Renewing Financial Institution and Falcon, in its sole
discretion, may (A) to the extent of Commitment Availability,
declare that such Non-Renewing Financial Institution's Commitment
shall, to such extent, automatically terminate on a date specified
by Falcon on or before the Liquidity Termination Date or (B) upon
one (1) Business Day's notice to such Non-Renewing Financial
Institution assign to such Non-Renewing Financial Institution on a
date specified by Falcon its Pro Rata Share of the aggregate
Receivable Interests then held by Falcon, subject to, and in
accordance with, the Liquidity Agreement. In addition, Falcon may,
in its sole discretion, at any time (x) to the extent of Commitment
Availability, declare that any Affected Financial Institution's
Commitment shall automatically terminate on a date specified by
Falcon or (y) assign to any Affected Financial Institution on a date
specified by Falcon its Pro Rata Share of the aggregate Receivable
Interests then held by Falcon, subject to, and in accordance with,
the Liquidity Agreement (each Affected Financial Institution or each
Non-Renewing Financial Institution is hereinafter referred to as a
"Terminating Financial Institution"). The parties hereto expressly
acknowledge that any declaration of the termination of any
Commitment, any assignment pursuant to this Section 12.3 and the
order of priority of any such termination or assignment among
Terminating Financial Institutions shall be made by Falcon in its
sole and absolute discretion.
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(b) Upon any assignment to a Terminating Financial Institution as
provided in this Section 12.3, any remaining Commitment of such
Terminating Financial Institution shall automatically terminate.
Upon reduction to zero of the Capital of all of the Receivable
Interests of a Terminating Financial Institution (after application
of Collections thereto pursuant to Sections 2.2 and 2.3) all rights
and obligations of such Terminating Financial Institution hereunder
shall be terminated and such Terminating Financial Institution shall
no longer be a "Financial Institution" hereunder; provided, however,
that the provisions of Article X shall continue in effect for its
benefit with respect to Receivable Interests held by such
Terminating Financial Institution prior to its termination as a
Financial Institution.
(d) Article XIII of the Purchase Agreement is deleted in its
entirety.
(e) Each of the references to "Article XIII" in Section 4.1 of, and
in the definition of "Broken Funding Costs" in Exhibit I to, the Purchase
Agreement are replaced by a reference to "the Liquidity Agreement".
(f) Section 9.1(l) of the Purchase Agreement is restated in its
entirety as follows:
(l) IDEX shall fail to satisfy Section 7.15 or any additional
"financial covenant" under the IDEX Credit Agreement, as such
agreement is in effect on December 14, 2004, without giving effect
to any subsequent amendment or modification unless Bank One, NA, as
the Agent hereunder, consents to such amendment or modification.
(g) Each of the references to "Section 13.1" in Sections 6.2, 12.1
and 14.13 of the Purchase Agreement is replaced by a reference to "the Liquidity
Agreement".
(h) Each of the references to "Section 13.6" in Section 2.2 of the
Purchase Agreement and in the definitions of "Commitment", "Non-Renewing
Financial Institution" and "Terminating Financial Institution" in Exhibit I to
the Purchase Agreement is replaced by a reference to "Section 12.3".
(i) The phrase "(except pursuant to Sections 13.1 or 13.5)" in
Section 14.1(b)(i) of the Purchase Agreement is replaced by the following
phrase: "(except pursuant to the Liquidity Agreement or Section 12.3)".
(j) The definitions of "Acquisition Amount", "Adjusted Funded
Amount", "Adjusted Liquidity Price", "Approved Unconditional Liquidity
Provider", "Defaulting Financial Institution", "Falcon Residual", "Falcon
Transfer Price", "Falcon Transfer Price Deficit", "Falcon Transfer Price
Reduction", "Non-Defaulting Financial Institution", "Reduction Percentage" and
"Unconditional Liquidity Provider" in Exhibit I to the Purchase Agreement are
deleted in their entirety.
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(k) The definition of "Bank Rate" in Exhibit I to the Purchase
Agreement is restated in its entirety as follows:
"Bank Rate" means, the LIBO Rate or the Base Rate, as
applicable, with respect to each Receivable Interest of the Financial
Institutions and any Receivable Interest of Falcon, an undivided interest
in which has been assigned by Falcon to a Financial Institution pursuant
to the Liquidity Agreement.
(l) The definition of "Idex Credit Agreement" in Exhibit I to the
Purchase Agreement is restated in its entirety as follows:
"IDEX Credit Agreement" means that certain Credit Agreement, dated
as of December 14, 2004, among IDEX, Bank of America, N.A., as administrative
agent, Wachovia Bank, National Association, as syndication agent, and the other
financial institutions party thereto, without giving effect to any amendments or
other modifications thereto from and after December 14, 2004.
(m) The following definition of "Liquidity Agreement" is added to
Exhibit I to the Purchase Agreement:
"Liquidity Agreement" means the agreement entered into by Falcon
with the Financial Institutions in connection herewith for the purpose of
providing liquidity with respect to the Capital funded by Falcon under
this Agreement.
(n) The definition of "Liquidity Termination Date" in Exhibit I to
the Purchase Agreement is restated in its entirety as follows:
"Liquidity Termination Date" means December 14, 2005.
(o) The definition of "Purchase Limit" in Exhibit I to the Purchase
Agreement is amended by deleting "$25,000,000" therefrom and replacing it with
"$30,000,000".
(p) The definition of "Pro Rata Share" in Exhibit I to the Purchase
Agreement is restated in its entirety as follows:
"Pro Rata Share" means, for each Financial Institution, a
percentage equal to (i) the Commitment of such Financial Institution,
divided by (ii) the aggregate amount of all Commitments of all Financial
Institutions hereunder, adjusted as necessary to give effect to the
application of the terms of the Liquidity Agreement or Section 12.3.
(q) Schedule A to the Purchase Agreement is hereby amended by
deleting "$25,500,000" therefrom and replacing it with "$30,600,000".
SECTION 2. 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
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hereof, (ii) receipt by the Agent of one copy of each of (a) this Amendment and
(b) the Third 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.
SECTION 3. 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.
SECTION 4. 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.
SECTION 5. Reference to and Effect on the Purchase Agreement.
(a) 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.
(b) 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.
(c) 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
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Purchase Agreement or any of the other Transaction Documents, nor constitute a
waiver of any provision contained therein.
SECTION 6. 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.
SECTION 7. 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.
SECTION 8. 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.
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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: Ronald Atkins
Title: Authorized Signatory
JPMORGAN CHASE BANK, N.A. (as
successor by merger to Bank One, N.A.
(Main Office Chicago)),
as a Financial Institution and as Agent
By:_______________________
Name: Ronald Atkins
Title: Vice President
Signature Page to Amendment No. 3 to Receivables Purchase Agreement
EXECUTION COPY
THIRD AMENDED AND RESTATED FEE LETTER
Dated as of December 15, 2004
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 December 17, 2003, by Amendment No. 3
thereto dated as of the date hereof 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 JPMorgan Chase Bank, N.A. (as successor by merger to 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 $20,000.00.
(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 15, 2004 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
Signature Page to Amendment No. 3 to Receivables Purchase Agreement
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).
(i) Administration Fee. On each Payment Date, the Seller shall pay
to Falcon a fee equal to 0.20% 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 0.25% 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 Second Amended and
Restated Fee Letter dated as of December 17, 2003 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.
Signature Page to Amendment No. 3 to Receivables Purchase Agreement
If the foregoing agreements evidence your understanding, please
acknowledge by executing this letter in the space provided below.
Very truly yours,
JPMORGAN CHASE BANK, N.A. (as
successor by merger to Bank One, N.A.
(Main Office Chicago)), as a Financial
Institution and as Agent
By_________________________________
Ronald Atkins
Vice President
FALCON ASSET SECURITIZATION
CORPORATION
By_________________________________
Ronald Atkins
Authorized Signatory
Acknowledged and Agreed:
IDEX RECEIVABLES CORPORATION
By____________________________
Name:
Title:
Signature Page to Amendment No. 3 to Receivables Purchase Agreement