EXHIBIT 10.72
FIFTH AMENDMENT
DATED AS OF SEPTEMBER 28, 2001
TO
RECEIVABLES SALE AGREEMENT
DATED AS OF OCTOBER 1, 1999
THIS AMENDMENT (the "Amendment"), dated as of September 28, 2001, 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(e) of the Sale Agreement is hereby deleted and
replaced with the following:
(e) Furnishing Information and Inspection of Records. The Seller
will furnish to the Agent and the Purchasers such information
concerning the Receivables and the Related Security as the Agent or a
Purchaser may reasonably request. The Seller will, and will cause each
Originator to, permit, upon reasonable prior notice at any time during
regular business hours, the Agent or any Purchaser (or any
representatives thereof) (i) to examine and make copies of all
Records, (ii) to visit the offices and properties of the Seller for
the purpose of examining the Records and (iii) to discuss matters
relating hereto with any of the Seller's or any Originator's officers,
directors, employees or independent public
accountants having knowledge of such matters. Once a year, the Agent
may have an independent public accounting firm conduct an audit of the
Records or make test verifications of the Receivables and Collections.
(b) The defined term "Eurodollar Rate" appearing in Schedule I of the
Sale Agreement is hereby deleted and replaced with the following:
"Eurodollar Rate" means, for any Tranche Period for a Eurodollar
Tranche, the sum of (a) LIBOR for such Tranche Period plus (b)(i) for
Investment of a Liquidity Provider, the amount specified in the
Pricing Letter, or (ii) for Investment of the Enhancer, the amount
specified in the Fee Letter plus (c) during the pendency of a
Termination Event, 1.50% for Investment of a Liquidity Provider and
2.00% for Investment of the Enhancer.
(c) The date "September 28, 2001" appearing in clause (d) of the
defined term "Liquidity Termination Date" appearing in Schedule I of the
Sale Agreement is deleted and replaced with the date "November 30, 2001".
(d) The percentage ".75%" appearing in clause (a)(ii) of the defined
term "Prime Rate" appearing in Schedule I of the Sale Agreement is deleted
and replaced with the percentage "1.75%".
(e) The date "September 28, 2001" appearing in clause (c)(ii) of the
defined term "Termination Date" appearing in Schedule I of the Sale
Agreement is deleted and replaced with the date "November 30, 2001".
Section 2. This Amendment shall become effective on the date the Agent has
received counterparts hereof executed by the Seller, Initial Collection Agent,
each Purchaser and the Agent.
Section 3.1. 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 3.2. 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 3.3. 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. 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 3.4. 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.
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: /s/ Xxxxxxx Xxxxxxx
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Title: Vice President
By: /s/ Xxxxx X. Xxxxx
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Title: Vice President
AMSTERDAM FUNDING CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Title: President
AMETEK RECEIVABLES CORP.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Treasurer
AMETEK, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Vice President & Treasurer
