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EXHIBIT 10.1
RECEIVABLES PURCHASE AGREEMENT
dated as of October 1, 1999
among
AMETEK, INC.,
ROTRON INCORPORATED
and
AMETEK RECEIVABLES CORP.
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TABLE OF CONTENTS
ARTICLE I PURCHASE AND SETTLEMENTS........................................................................1
Section 1.1 Sale...................................................................................1
Section 1.2 Purchase Price.........................................................................1
Section 1.3 Administration of Receivables..........................................................2
Section 1.4. The Purchaser's Rights.................................................................3
Section 1.5 Protection of Ownership Interest of the Purchaser......................................3
Section 1.6 Contractual Payment Obligations........................................................4
Section 1.7 Servicing Agent........................................................................4
ARTICLE II REPRESENTATIONS AND WARRANTIES..................................................................5
Section 2.1. Representations and Warranties of the Originators......................................5
Section 2.2 Reaffirmation of Representations and Warranties by the Originators.....................7
Section 2.3. Representations and Warranties of the Company..........................................7
ARTICLE III CONDITIONS PRECEDENT............................................................................8
Section 3.1. Conditions to Closing..................................................................8
Section 3.2. Other Transaction Documents............................................................8
ARTICLE IV COVENANTS.......................................................................................9
Section 4.1 Affirmative Covenants of the Originators...............................................9
ARTICLE V MISCELLANEOUS..................................................................................10
Section 5.1 Term of Agreement.....................................................................10
Section 5.2 Assignment of Receivables Purchase Agreement..........................................10
Section 5.3. No Waiver; Remedies...................................................................10
Section 5.4. Amendments, etc.......................................................................10
Section 5.5. Notices...............................................................................11
Section 5.6. Governing Law; Submission to Jurisdiction; Integration................................11
Section 5.7. Severability; Counterparts............................................................11
Section 5.8. Assignment............................................................................11
Section 5.9. Headings..............................................................................12
Section 5.10 Costs and Expenses....................................................................12
Section 5.11 No Partnership or Joint Venture.......................................................12
Section 5.12. No Proceedings........................................................................12
Section 5.13 Withdrawal of an Originator...........................................................12
Section 5.15. Confidentiality.......................................................................12
Section 5.16. Agreement Not to Petition.............................................................12
Section 5.17. No Recourse...........................................................................13
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Section 5.19. Waiver of Trial by Jury...............................................................13
Section 5.20. Entire Agreement......................................................................13
EXHIBITS
Exhibit A Credit and Collection Policies
Exhibit B Form of Revolving Subordinated Promissory Note
Exhibit C Location of Records
Exhibit D Corporate Names; Trade Names; Assumed Names
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RECEIVABLES PURCHASE AGREEMENT
RECEIVABLES PURCHASE AGREEMENT (this "Agreement"), dated as of October
1, 1999, among Ametek, Inc. ("Ametek"), Rotron Incorporated ("Rotron") (each of
Ametek and Rotron being referred to herein individually, as an "Originator" and
collectively, as the "Originators") and Ametek Receivables Corp. (the
"Company"). Certain capitalized terms used herein are defined in Schedule I
hereto.
The parties hereto agree as follows:
ARTICLE I
PURCHASE AND SETTLEMENTS
Section 1.1 Sale. Subject to the terms and conditions hereof,
each Originator hereby sells to the Company, and the Company hereby acquires
from such Originator, all of such Originator's right, title and interest in the
Purchased Receivables of such Originator, the Related Security and related
Collections. Each Originator intends such sale to be a true sale of all rights
and interests of such Originator in the Receivables of such Originator in
existence on the Initial Purchase Date and of each Receivable thereafter
generated by such Originator as it is created until the Originator Termination
Date for such Originator.
Section 1.2 Purchase Price. (a) On the Initial Purchase Date and
each Workday thereafter until the Originator Termination Date for such
Originator, the Company shall pay to each Originator a purchase price for each
Purchased Receivable of such Originator equal to the Fair Market Value Discount
Factor of the outstanding principal balance of such Purchased Receivable in
existence on the date of sale for such Receivable. Such purchase price shall be
paid through two methods: First, the Company may pay to such Originator a
portion of such purchase price by transferring to such Originator monies then
held by the Company, solely to the extent such monies do not constitute
Collections required to be distributed to the Agent under the Receivables Sale
Agreement or necessary as part of a reserve for liabilities of the Company
established by the Company in its sole judgment. Second, the Company shall pay
the remaining purchase price by crediting to the Note issued to such Originator
such remaining amount of the purchase price payable to such Originator. On the
Initial Purchase Date, (i) $23,691,427 of the purchase price payable to Ametek
on the Initial Purchase Date shall so be credited to the Note issued to Ametek
and (ii) $1,801,586 of the purchase price payable to Rotron on the Initial
Purchase Date shall so be credited to the Note issued to Rotron. On each Monthly
Settlement Date occurring after the Initial Purchase Date, the difference
between (x) the total purchase price payable to an Originator for all Purchased
Receivables sold to the Company by such Originator during the Settlement Period
ending on such Monthly Settlement Date that were not in existence on the Initial
Purchase Date and (y) the amount of such purchase price paid in cash during that
Settlement Period to such Originator shall be credited to the Note issued to
such Originator. For any Settlement Period that the amount of such cash payments
to such Originator exceeds the aggregate purchase price payable for such
Purchased Receivables during the Settlement Period, such excess shall be applied
on the Monthly Settlement Date for such Settlement Period to reduce the
principal amount of the Note issued to such Originator.
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(b) Each Originator and the Company shall each independently take all
necessary action to properly record the sales contemplated by this Agreement to
reflect the Company's ownership of all Purchased Receivables. To the extent the
sale of any Purchased Receivable or Collection under this Agreement is deemed to
be a financing for any applicable legal purpose, each Originator hereby grants
to the Company a security interest in all of such Originator's rights in the
Purchased Receivables it originated, the Related Security and all related
Collections to secure the claims of the Company to such Purchased Receivables,
the Related Security and all related Collections and other proceeds.
(c) None of the Company, the Agent, nor any Purchaser shall have any
obligation or liability to any Obligor or other customer or client of an
Originator to perform any of the obligations of such Originator in connection
with any Receivable or otherwise.
Section 1.3 Administration of Receivables. (a) Consistent with
the Company's ownership of the Purchased Receivables of each Originator, the
Company shall have all rights to and shall be solely responsible for servicing,
administering and collecting the Purchased Receivables. The Company may appoint
any Person, including but not limited to an Originator, as its agent to perform
such services.
(b) Ametek, as Collection Agent, shall retain all Records and evidence
of the creation of each Purchased Receivable.
(c) With respect to all Purchased Receivables sold by such Originator
to the Company, each Originator shall direct its Obligors to make all payments
on such Purchased Receivables directly to the Company (or the Company's agent
appointed pursuant to Section 1.7). If an Originator nevertheless receives any
such payments it shall segregate all cash, checks and other instruments received
by it and immediately remit all such Collections, duly endorsed or with duly
executed instruments of transfer in the case of checks or other instruments, to
the Company (or its agent appointed pursuant to Section 1.7).
(d) Each Originator hereby authorizes the Company (or the Company's
agent or assignee) to notify its Obligors on the Purchased Receivables sold by
such Originator to the Company, or any of them, of the Company's ownership of
such Purchased Receivables. Each Originator also hereby authorizes the Company
(or the Company's agent or assignee) to notify such Obligors, or any of them, of
the Company's assignment of interests in such Purchased Receivables to the
Agent, for the benefit of the Purchasers, in accordance with the terms of
Article III of the Receivables Sale Agreement.
(e) Each Originator hereby agrees that the Company has the absolute and
unlimited right, itself or through its agent, to commence and settle any legal
action to enforce collection of any Purchased Receivable sold by such Originator
to the Company or to foreclose upon or repossess any portion thereof.
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(f) Each Originator hereby grants to the Company an irrevocable power
of attorney, with full power of substitution, coupled with an interest, to take
in the name of such Originator all steps necessary or advisable to endorse,
negotiate or otherwise realize on any item constituting proceeds of any
Purchased Receivable sold by such Originator to the Company. Without limiting
the generality of the foregoing, each Originator hereby authorizes the Company
to take any and all steps in the name of such Originator and on behalf of such
Originator necessary or desirable, in the determination of the Company, to
collect any and all amounts or portions thereof due under any and all of such
Purchased Receivables, including endorsing the name of such Originator on checks
and other instruments representing Collections and enforcing any such Purchased
Receivable.
(g) Unless an Obligor otherwise specifies or another application is
required by contract or law, any payment received by an Originator from an
Obligor shall be applied as a Collection of Purchased Receivables of such
Obligor (starting with the oldest such Receivable) and remitted to the
Collection Agent as such.
(h) In connection with the creation, servicing, administering, and (to
the extent an Originator is appointed to perform collection functions pursuant
to Section 1.7) collecting of the Purchased Receivables, an Originator shall
exercise the same care and diligence it would exercise in handling similar
matters for its own account and will comply at all times and in all material
respects with the terms of the Transaction Documents, applicable laws, rules and
regulations and good business policies and practices.
Section 1.4 The Purchaser's Rights. (a) The Company (or its
successors or assigns) shall retain, and use for its own benefit, the
Collections and other proceeds of all Purchased Receivables, and no Originator
shall have any interest of any kind in or to any such Collections or other
proceeds.
(b) The Company shall have no obligation to account for, to replace, or
to return all or any portion of the Purchased Receivables to an Originator,
without regard to whether the Collections and other proceeds derived from such
Purchased Receivables are in excess of the purchase price paid for such
Purchased Receivables.
(c) The Company shall have the unrestricted right to further assign,
transfer, deliver, hypothecate, subdivide or otherwise deal with all or any
portion of the Purchased Receivables.
(d) The Company (or its successors or assigns) shall have the sole
right to retain any gains or profits created by buying, selling or holding all
or any portion of the Purchased Receivables.
Section 1.5 Protection of Ownership Interest of the Purchaser.
Each Originator will, at its expense, promptly execute and deliver all
instruments and documents and take all action necessary or that the Company may
reasonably request to perfect or protect the Company's ownership of the
Purchased Receivables sold to the Company by such Originator and their
Collections or to enable the Company to exercise and enforce any of its rights
hereunder. At the
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request of the Company each Originator shall execute and file financing
statements, amendments thereto, and continuation or assignments thereof and
deliver to the Company or its designee all contracts and Records (including all
multiple originals of any such contract) relating to the Purchased Receivables
sold to the Company by such Originator, with any appropriate endorsement or
assignment reasonably requested by the Company. To the fullest extent permitted
by applicable law, the Company shall be permitted to sign and file continuation
statements relating to the Purchased Receivables and their Collections and
amendments thereto and assignments thereof without an Originator's signature. A
reproduction of this Agreement or of any financing statement shall be sufficient
as a financing statement. No Originator shall change its name, identity or
corporate structure (within the meaning of Section 9402(7) of any applicable
UCC) or relocate its chief executive office or any office or location where
Records are kept unless it shall have: (i) given the Company and the Agent at
least ten (10) days' advance notice and (ii) delivered to the Company and the
Agent all financing statements, instruments and other documents requested by the
Company or the Agent in connection with such change or relocation. Each
Originator shall at all times maintain its chief executive offices within a
jurisdiction in the USA (other than the states of Florida, Maryland and
Tennessee) in which Article 9 of the UCC is in effect. If an Originator moves
its chief executive office to a location that imposes Taxes, fees or other
charges to perfect the interests of the Company in the Purchased Receivables
sold to the Company by such Originator, such Originator shall pay all such
amounts and any other costs or expenses incurred to maintain the enforceability
of this Agreement and the ownership of the Company in such Purchased
Receivables.
Section 1.6 Contractual Payment Obligations. Notwithstanding any
limitation on recourse contained in this Agreement, each Originator hereby
agrees as follows:
(a) If on any day the outstanding balance of a Purchased Receivable
sold by such Originator to the Company is reduced or cancelled as a result of
any defective or rejected goods or services, any cash discount or adjustment
(including as a result of the application of any special refund or other
discounts or any reconciliation), any setoff or credit (whether such claim or
credit arises out of the same, a related, or an unrelated transaction) or other
similar reason not arising from the financial inability of the Obligor to pay
undisputed indebtedness, such Originator shall pay to the Company within five
Business Days after demand the amount of such reduction or cancellation in the
outstanding balance of such Purchased Receivable.
(b) If on any day any representation, warranty, covenant or other
agreement of such Originator is not true in a material respect (as of the date
such representation or warranty is made or deemed made) or (in the case of a
covenant or agreement) is not satisfied in a material respect for a Purchased
Receivable sold by such Originator to the Company, and, as a result, there is a
material adverse effect on the value of such Purchased Receivable, such
Originator shall pay to the Company within five Business Days after demand the
outstanding balance of such Purchased Receivable in full.
Section 1.7 Servicing Agent. (a) Until the Company (or the Agent
pursuant to the Receivables Sale Agreement) gives contrary notice, the Company
hereby appoints Ametek as its agent (and as sub-collection agent under the terms
of the Receivables Sale Agreement) for the
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servicing, administering and collecting of the Purchased Receivables, and Ametek
hereby accepts such appointment and agrees to perform such duties in accordance
with the applicable terms and conditions of the Receivables Sale Agreement.
Ametek hereby further agrees not to voluntarily resign as agent for the Company
in connection with such servicing, administering and collecting functions
without the consent of the Agent. The Company may replace Ametek as its agent
(and sub-collection agent) at any time for any reason.
(b) As servicing agent for the Company, Ametek shall take all actions
necessary or advisable to collect each Purchased Receivable with the same care
and diligence as Ametek uses in servicing its own receivables and shall perform
all other servicing activities related to such Receivables as are required by
the Collection Agent pursuant to the Receivables Sale Agreement, including
providing reports and other information concerning the Purchased Receivables
required to be furnished by the Collection Agent pursuant to the Receivables
Sale Agreement.
(c) In consideration for Ametek's services pursuant to this Section
1.7, for so long as Ametek performs such duties, the Company shall pay to Ametek
a cash fee of $12,500 per month payable on the Monthly Settlement Date for the
immediately preceding month. The parties hereto agree such servicing fee is a
fair market value fee for the servicing functions required hereby.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of the Originators.
Each Originator represents and warrants that each representation and warranty
concerning it or the Purchased Receivables sold by it to the Company that is
contained in the Receivables Sale Agreement is true and correct in all material
respects as of the date such representation and warranty is given and that:
(a) Perfection. Immediately preceding its sale of each
Purchased Receivable hereunder, such Originator was the owner of such
Purchased Receivable purported to be sold, free and clear of any
Adverse Claims, and each such sale hereunder constitutes a valid sale,
transfer and assignment of all of such Originator's right, title and
interest in, to and under the Purchased Receivables, free and clear of
any Adverse Claims. On or before the date hereof and before the
generation by such Originator of any new Purchased Receivable, all
financing statements and other documents required to be recorded or
filed in order to perfect and protect the Company's ownership interest
in the Purchased Receivables of such Originator against all creditors
of and purchasers from such Originator will have been duly filed in
each filing office necessary for such purpose, and all filing fees and
taxes, if any, payable in connection with such filings shall have been
paid in full.
(b) Creation of Receivables. Such Originator has exercised at
least the same degree of care and diligence in the creation of the
Purchased Receivables as it has
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exercised in connection with the creation of receivables originated by
it and not sold hereunder.
(c) Credit and Collection Policy. Such Originator has complied
in all material respects with its Credit and Collection Policy in
regard to each Purchased Receivable and related contract sold by it to
the Company.
(d) Enforceability of Contracts. Each contract related to any
Purchased Receivable sold by such Originator to the Company is
effective to create, and has created, a legal, valid and binding
obligation of the related Obligor to pay the outstanding balance of
such Purchased Receivable created thereunder, enforceable against such
Obligor in accordance with its terms, without being subject to any
defense, deduction, offset or counterclaim and such Originator has
fully performed its obligations under such contract.
(e) Compliance with Laws. No Purchased Receivable sold by such
Originator to the Company contravenes, in any material respect, any
laws, rules or regulations applicable thereto or to such Originator
except where such contravention would not, individually or in the
aggregate, have a material adverse effect on such Purchased Receivable.
(f) Place of Business. The chief place of business and chief
executive office of such Originator is located at the address set forth
beneath its signature hereto, and such offices have been so located for
at least six months before the date hereof. The offices where such
Originator keeps all Records are located at the addresses described on
Exhibit C or such other locations of which the Company has been given
notice in accordance with Section 1.5.
(g) Good Title. Upon the sale of each new Purchased Receivable
by such Originator and on the Initial Purchase Date for then existing
Purchased Receivables sold by such Originator to the Company, the
Company shall have a valid and perfected first priority ownership
interest in such Purchased Receivable at the time of such sale, free
and clear of any Adverse Claim.
(h) Names. Except as described in Exhibit D, such Originator
has not used any corporate names, tradenames or assumed names other
than its name set forth on the signature pages of this Agreement.
(i) Assignability and Confidentiality. Each Purchased
Receivable sold by such Originator to the Company arises under a
contract that (A) does not require the Obligor under such contract to
consent to the transfer, sale or assignment of the rights of such
Originator under such contract and (B) does not contain a
confidentiality provision that purports to restrict the ability of the
Company to exercise its rights under this Agreement, including its
right to review the contract.
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(j) Bulk Sales, Margin Regulations, No Fraudulent Conveyance,
Investment Company. No transaction contemplated hereby with respect to
such Originator requires compliance with or will become subject to
avoidance under any bulk sales act or similar law. No use of funds
obtained by such Originator hereunder will conflict with or contravene
Regulation G, T, U or X of the Federal Reserve Board. No purchase
hereunder constitutes a fraudulent transfer or conveyance under any
United States federal or applicable state bankruptcy or insolvency laws
or is otherwise void or voidable under such or similar laws or
principles or for any other reason.
Section 2.2 Reaffirmation of Representations and Warranties by
the Originators. On each day that a new Purchased Receivable is sold to the
Company hereunder pursuant to Section 1.2, the Originator who sold such
Purchased Receivable to the Company shall be deemed to have certified that all
representations and warranties set forth in Section 2.1 are true and correct on
and as of such day.
Section 2.3 Representations and Warranties of the Company.
The Company represents and warrants that:
(a) Corporate Existence and Power. The Company is a
corporation duly organized, validly existing and in good standing under
the laws of its state of incorporation and has all corporate power and
all governmental licenses, authorizations, consents and approvals
required to carry on its business in each jurisdiction in which its
business is now conducted, except where failure to obtain such
licenses, authorizations, consents and approvals would not have (i) a
material adverse effect on its ability to perform its obligations
hereunder or (ii) a material adverse effect on the enforceability
hereof.
(b) Corporate and Governmental Authorization; Contravention.
The execution, delivery and performance by the Company of this
Agreement are within its corporate powers, have been duly authorized by
all necessary corporate action, require no action by or in respect of,
or filing with, any governmental body, agency or official (except as
contemplated by Section 1.5) and do not contravene, or constitute a
material default under, any provision of applicable law, rule or
regulation or of the Company's certificate or articles of incorporation
or by-laws or of any material agreement, judgment, injunction, order,
decree or other material instrument binding upon the Company or result
in the creation or imposition of any lien or other Adverse Claim on
assets of the Company.
(c) Binding Effect. This Agreement constitutes the legal,
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except to the extent that such
enforcement may be limited by bankruptcy, insolvency, moratorium,
fraudulent conveyance, or other similar laws of general application
relating to or affecting the enforcement of creditors' rights generally
or by general principles of equity.
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ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions to Closing. On or before the date of
execution hereof, each of the following documents and instruments shall be
delivered, all of which shall be in form and substance acceptable to the Company
and each Originator:
(a) A copy of the resolutions of the board of directors of
each of the Company and the Originators, certified by its secretary or
assistant secretary, approving this Agreement and the other documents
to be delivered by it hereunder.
(b) The certificate or articles of incorporation of each of
the Company and the Originators certified by its secretary or assistant
secretary.
(c) Good standing certificates for each of the Company and the
Originators issued by the Secretaries of State of its state of
incorporation.
(d) A certificate of the secretary or assistant secretary of
each of the Company and the Originators certifying (i) the names and
signatures of the officers authorized on its behalf to execute this
Agreement and any other documents to be delivered by it hereunder (on
which certificate the other parties may conclusively rely until such
time as the other parties shall receive from it a revised certificate
meeting the requirements of this subsection (d)) and (ii) a copy of its
by-laws.
(e) Originals of proper UCC-1 financing statements naming the
appropriate Originator as "seller" and "debtor", the Company as
"purchaser" and "secured party", and the Agent as "assignee" for filing
in all appropriate jurisdictions.
(f) UCC search reports covering each Originator from all
jurisdictions that the Company requests.
(g) Such other approvals, opinions or documents as the Company
or Agent may reasonably request.
Section 3.2 Other Transaction Documents. All conditions precedent
to the execution, delivery and effectiveness of the other Transaction Documents
have been fulfilled.
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ARTICLE IV
COVENANTS
Section 4.1 Affirmative Covenants of the Originators. Each
Originator hereby covenants and agrees with the Company and each Purchaser that
at all times on and after the date hereof, unless compliance is waived pursuant
to Section 5.4:
(a) General Information. Such Originator shall furnish to the
Company and to each Purchaser such information as the Company or any
Purchaser may from time to time reasonably request relating to the
Purchased Receivables sold by such Originator to the Company.
(b) Furnishing of Information and Inspection of Records. Such
Originator will furnish to the Company from time to time such
information concerning the Purchased Receivables sold by such
Originator to the Company as the Company shall reasonably request,
including listings identifying the Obligor and the outstanding balance
for each such Purchased Receivable. Such Originator will permit, upon
reasonable prior notice, at any time and from time to time during
regular business hours, the Company and (under the conditions in
Section 5.1(e) of the Receivables Sale Agreement) the Agent and any
Purchaser or agents or representatives of any of the foregoing, (i) to
examine and make copies of and abstracts from all Records in its
possession as agent for the Company pursuant to Section 1.7 and (ii) to
visit the offices and properties of such Originator for the purpose of
examining such Records, and to discuss matters relating to such
Purchased Receivables or such Originator's performance hereunder with
any of the officers or employees of such Originator having knowledge of
such matters.
(c) Keeping of Records and Books. Such Originator will have
and maintain (i) administrative and operating procedures (including an
ability to recreate Records if originals are destroyed), (ii) adequate
facilities, personnel and equipment and (iii) all Records and other
information reasonably necessary for collection of the Purchased
Receivables originated by such Originator (including Records adequate
to permit the daily identification of each new such Purchased
Receivable and all Collections of, and adjustments to, each existing
such Purchased Receivable). Such Originator will give the Company and
the Agent prior notice of any change in such administrative and
operating procedures that causes them to be materially different from
the procedures described to the Company and Agent on or before the date
hereof as such Originator's then existing or planned administrative and
operating procedures for collecting such Purchased Receivables.
(d) Performance and Compliance with Receivables and Contracts.
Such Originator will at its expense timely and fully perform and comply
with all provisions, covenants and other promises required to be
observed by it under all contracts related to the Purchased Receivables
sold by such Originator to the Company.
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(e) Credit and Collection Policy. Such Originator will comply
with its Credit and Collection Policy in regard to each Purchased
Receivable originated by it and any related contract.
(f) Receivable Sales Agreement. Such Originator will perform
and comply in all material respects with each covenant and other
undertaking in the Receivables Sale Agreement that the Company
undertakes to cause such Originator to perform, subject to any grace
periods for such performance provided for in the Receivables Sale
Agreement.
ARTICLE V
MISCELLANEOUS
Section 5.1 Term of Agreement. This Agreement shall terminate
upon the later to occur of (i) the termination of the Receivables Sale Agreement
or (ii) the indefeasible payment in full of all obligations owed hereunder by
each Originator to the Company and by the Company to each Originator.
Section 5.2 Assignment of Receivables Purchase Agreement. Each
Originator hereby acknowledges that on the date hereof the Company has assigned
all of its right, title and interest in, to and under this Agreement to the
Agent for the benefit of the Purchasers pursuant to the Receivables Sale
Agreement and that the Agent and the Purchasers are third party beneficiaries
hereof. Each Originator hereby further acknowledges that all provisions of this
Agreement shall inure to the benefit of the Agent and the Purchasers, including
in the enforcement of any provision hereof to the extent set forth in the
Receivables Sale Agreement, but that neither the Agent nor any Purchaser shall
have any obligations or duties under this Agreement. No purchases shall take
place hereunder at any time that the Agent has exercised its right to enforce
the Company's rights hereunder pursuant to Section 1.8 of the Receivables Sale
Agreement. Each Originator hereby further acknowledges that the execution and
performance of this Agreement are conditions precedent for the Agent and the
Purchasers to enter into the Receivables Sale Agreement and that the agreement
of the Agent and the Purchasers to enter into the Receivables Sale Agreement
will directly or indirectly benefit such Originator and constitutes good and
valuable consideration for the rights and remedies of the Agent and each
Purchaser with respect hereto.
Section 5.3 No Waiver; Remedies. No failure or delay on the part
of any party in exercising any power, right or remedy under this Agreement shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such power, right or remedy preclude any other further exercise thereof or the
exercise of any other power, right or remedy. The rights and remedies provided
in this Agreement are cumulative and nonexclusive of any rights or remedies
provided by law. Any waiver of this Agreement shall be effective only in the
specific instance and for the specific purpose for which given.
Section 5.4 Amendments, etc. No amendment, supplement,
modification or waiver of any provision of this Agreement nor consent to any
departure by any party therefrom shall in any
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event be effective unless the same shall be in writing and signed by each
Originator and the Company and consented to by the Agent and the Instructing
Group.
Section 5.5 Notices. Unless otherwise specified, all notices and
other communications hereunder shall be in writing (including by telecopier or
other facsimile communication), given to the appropriate Person at its address
or telecopy number set forth on the signature pages hereof or at such other
address or telecopy number as such Person may specify, and effective when
received at the address specified by such Person. The number of days for any
advance notice required hereunder may be waived (orally or in writing) by the
Person receiving such notice and, in the case of notices to the Agent, the
consent of each Person to which the Agent is required to forward such notice.
SECTION 5.6 GOVERNING LAW; SUBMISSION TO JURISDICTION;
INTEGRATION. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK.
EACH OF THE ORIGINATORS AND THE COMPANY HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR PURPOSES
OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE ORIGINATORS AND THE COMPANY HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING IN
THIS SECTION 5.6 SHALL AFFECT THE RIGHT OF ANY PERSON TO BRING ANY ACTION OR
PROCEEDING AGAINST AN ORIGINATOR OR THE COMPANY OR ITS RESPECTIVE PROPERTY IN
THE COURTS OF OTHER JURISDICTIONS. THIS AGREEMENT CONTAINS THE FINAL AND
COMPLETE INTEGRATION OF ALL PRIOR EXPRESSIONS BY THE PARTIES HERETO WITH RESPECT
TO THE SUBJECT MATTER HEREOF AND SHALL CONSTITUTE THE ENTIRE AGREEMENT AMONG THE
PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF, SUPERSEDING ALL PRIOR
ORAL OR WRITTEN UNDERSTANDINGS.
Section 5.7 Severability; Counterparts. This Agreement 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. Any provisions of this Agreement which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 5.8 Assignment. This Agreement shall (i) be binding upon
the Company, each Originator and their respective successors and assigns and
(ii) inure to the benefit of and be enforceable by the Agent for the benefit of
the Purchasers to the extent set forth in the Receivables Sale Agreement and
their respective successors, transferees and assigns; provided, however, that
the obligations of an Originator hereunder may not be assigned or delegated
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without the prior written consent of the Agent and the Instructing Group and any
such purported assignment or delegation absent such consent shall be void.
Section 5.9 Headings. Article and Section headings used herein
are for convenience and reference only, are not part of this Agreement and are
not to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
Section 5.10 Costs and Expenses. Each Originator shall pay its
costs and expenses hereunder.
Section 5.11 No Partnership or Joint Venture. Nothing contained in
this Agreement shall be deemed or construed by the parties hereto or by any
third person to create the relationship of principal and agent or of partnership
or of joint venture.
Section 5.12 No Proceedings. Each Originator agrees that it will
not institute against the Company, or join any other Person in instituting
against the Company, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other proceedings under any federal or state
bankruptcy or similar law prior to the date which is one (1) year and one (1)
day after the last day on which occurred the later of (i) the Company purchased
any Purchased Receivables hereunder or (ii) all of the commercial paper notes
issued by Amsterdam were paid in full. The provisions of this Section 5.12 shall
survive the termination of this Agreement.
Section 5.13 Withdrawal of an Originator. An Originator may
terminate further sales of interests in its Receivables hereunder by providing
at least thirty (30) days' notice to the Company and Agent of such withdrawal.
On the date set forth in such notice (the "Withdrawal Date"), such Originator
shall discontinue any further sale of interests in Receivables and shall only be
party to this Agreement to the extent that the Company continues to have an
interest in the Purchased Receivables acquired from such Originator or any
amounts remain payable by the Company or such Originator to the other hereunder.
No such withdrawal shall affect such Originator's representations or agreements
concerning Purchased Receivables sold by such Originator to the Company in which
the Company retains an interest or any related Collections.
Section 5.14 Confidentiality. Each Originator hereby agrees to be
bound to the provisions of Section 9.10 of the Receivables Sale Agreement as
fully as if it were a signatory thereto.
Section 5.15 Agreement Not to Petition. Each party hereto agrees,
for the benefit of the holders of the privately or publicly placed indebtedness
for borrowed money for Amsterdam, not, prior to the date which is one (1) year
and one (1) day after the payment in full of all such indebtedness, to
acquiesce, petition or otherwise, directly or indirectly, invoke, or cause
Amsterdam to invoke, the process of any Governmental Authority for the purpose
of (a) commencing or sustaining a case against Amsterdam under any federal or
state bankruptcy, insolvency or similar law (including the Federal Bankruptcy
Code), (b) appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official for Amsterdam, or
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any substantial part of its property, or (c) ordering the winding up or
liquidation of the affairs of Amsterdam.
Section 5.16 No Recourse. The obligations of Amsterdam, its
management company, its administrator and its referral agents (each a "Program
Administrator") under any Transaction Document or other document (each, a
"Program Document") to which a Program Administrator is a party are solely the
corporate obligations of such Program Administrator and no recourse shall be had
for such obligations against any Affiliate, director, officer, member, manager,
employee, attorney or agent of any Program Administrator.
Section 5.17 WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH PARTY HERETO IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF, OR IN CONNECTION WITH,
ANY TRANSACTION DOCUMENT OR ANY MATTER ARISING THEREUNDER.
Section 5.18 Entire Agreement. The Transaction Documents
constitute the entire understanding of the parties thereto concerning the
subject matter thereof. Any previous or contemporaneous agreements, whether
written or oral, concerning such matters are superseded thereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
AMETEK RECEIVABLES CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: VP, Asst. Secretary, Treasurer
Address: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
AMETEK, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: VP and Treasurer
Address: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ROTRON INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Address: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
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SCHEDULE I
DEFINITIONS
Capitalized terms used herein that are defined in the Receivables Sale
Agreement have the same meaning herein as in the Receivables Sale Agreement. In
addition, the following terms have the meanings set forth, or referred to,
below:
"Divisions" means the following divisions of Ametek: Ametek Aerospace,
Lamb Electric, Rotron Technical Motor Division, Specialty Metal Products and
U.S. Gauge.
"Fair Market Value Discount Factor" means, on any day, a percentage
equal to 100 - ((1 month LIBOR x 45/360) + .06%).
"Initial Purchase Date" means October 1, 1999.
"Monthly Settlement Date" means the 20th day of each month (or, if such
day is not a Business Day, the following Business Day).
"Note" means the revolving promissory note in substantially the form of
Exhibit B issued by the Company to each Originator.
"Originator Termination Date" means, with respect to each Originator,
the earliest to occur of (i) the date of the occurrence of a Bankruptcy Event
affecting such Originator, (ii) the Business Day designated by such Originator
as its Withdrawal Date pursuant to Section 5.13 and (iii) the Business Day
designated by the Company as such Originator Termination Date upon at least
thirty days' notice to such Originator and the Agent.
"Purchased Receivables" means each and every Receivable originated by
(i) the Divisions now existing or hereafter arising before the Originator
Termination Date with respect to Ametek and (ii) Rotron now existing or
hereafter arising before the Originator Termination Date with respect to Rotron.
"Purchaser" means each "Purchaser" under the Receivables Sale
Agreement.
"Receivables Sale Agreement" means the Receivables Sale Agreement,
dated as of the date hereof, among the Company, as Seller, Ametek, as Initial
Collection Agent, ABN AMRO Bank N.V. ("AMRO"), as Agent, the Liquidity Providers
party thereto, AMRO, as Enhancer, and Amsterdam.
"Settlement Period" means, for any Monthly Settlement Date, the
immediately preceding calendar month.
"Withdrawal Date" is defined in Section 5.13.
"Workday" means any day in which each Originator and the Company
conduct business.
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The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms. Unless otherwise inconsistent
with the terms of this Agreement, all accounting terms used herein shall be
interpreted, and all accounting determinations hereunder shall be made, in
accordance with GAAP. Amounts to be calculated hereunder shall be continuously
recalculated at the time any information relevant to such calculation changes.
For purposes of this Agreement, all terms used in Article 9 of the UCC
and not specifically defined in this Agreement shall be defined herein as such
terms are defined in the UCC as in effect in the State of New York.
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