Exhibit 10.6


 


FIFTH AMENDMENT TO
AMENDED AND RESTATED

RECEIVABLES PURCHASE AGREEMENT


 


THIS
FIFTH AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT,
dated as of May 19, 2004 (this “Amendment”), is entered into among AMPHENOL FUNDING CORP., a Delaware
corporation (the “Seller”), AMPHENOL
CORPORATION, a Delaware corporation (“Amphenol”), FAIRWAY FINANCE COMPANY, LLC (as successor
to Pooled Accounts Receivable Capital Corporation), a Delaware limited
liability company (the “Purchaser”), and HARRIS NESBITT CORP. (formerly, Nesbitt Burns Securities,
Inc.), a Delaware corporation, as the agent for the Purchaser (in such
capacity, the “Agent”).


 


RECITALS:


 


WHEREAS,
the Seller, Amphenol, the Purchaser and the Agent are parties to the Amended
and Restated Receivables Purchase Agreement dated as of May 19, 1997 (as
amended through the date hereof, the “Agreement”); and


 


WHEREAS, the parties
hereto desire to further amend the Agreement as hereinafter set forth.


 


NOW THEREFORE, for
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:


 


1.             Defined Terms.  Capitalized terms used but not defined
herein have the meaning set forth in the Agreement and Appendix A thereto. In
addition, the following terms have the following respective meanings:


 


2.             Amendments.


 


(a)           Section 1.02(a)
of the Agreement is hereby amended and restated in its entirety as follows:


 


(a) Purchase Limit. The Aggregate
Investment would exceed an amount (the “Purchase Limit”) equal to
$85,000,000 as may be reduced pursuant to Section 1.06; or


 


(b)           Section 1.05(a)
of the Agreement is hereby amended and restated in its entirety as follows:


 


(a) The “Commitment Termination Date”
shall be the earlier of (i) June 18, 2004 (as may be extended, the “Scheduled
Commitment Termination Date”) and (ii) the date of termination of the
Commitment pursuant to Section 1.06 or Section 9.02.


 

















 


3.             Representations and Warranties.
Each of the Seller (as to itself) and Amphenol (as to itself and with respect
to each other Originator) hereby represents and warrants to the Purchaser and
the Agent as follows:


 


(a)           Representations
and Warranties. The representations and warranties contained in Sections
6.01 and 6.02 of the Agreement are true and correct as of the date
hereof.


 


(b)           Enforceability.
The execution and delivery by it of this Amendment, and the performance of its
obligations under this Amendment and the Agreement, as amended hereby, are
within its corporate powers and have been duly authorized by all necessary
corporate action on its part. The Agreement (as amended hereby) is its valid
and legally binding obligations, enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors’
rights generally and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law.


 


(c)           No Default.
Both before and immediately after giving effect to this Amendment and the
transactions contemplated hereby, no Termination Event or Unmatured Termination
Event exists or shall exist.


 


4.             Effect of Amendment. All
provisions of the Agreement, as expressly amended and modified by this Amendment,
shall remain in full force and effect. After this Amendment becomes effective,
all references in the Agreement (or in any other Transaction Document) to “this
Agreement,” “hereof,” “herein” or words of similar effect referring to the
Agreement shall be deemed to be references to the Agreement as amended by this
Amendment. This Amendment shall not be deemed, either expressly or impliedly,
to waive, amend or supplement any provision of the Agreement other than as set
forth herein.


 


5.             Effectiveness. This Amendment
shall become effective as of the date hereof upon receipt by the Agent of the
following, in form and substance satisfactory to the Agent in its reasonable
discretion:


 


(a)           an original of (i)
this Amendment and (ii) the Fee Letter, dated as of the date hereof, among
Seller, Amphenol and the Agent (the “Fee Letter”), in each case duly
executed and delivered by each of the parties hereto or thereto;


 


(b)           evidence that the
payment of all invoiced costs and expenses of the Purchaser, the Agent and their
respective Affiliates (including, without limitation, the reasonable fees and
expenses of counsel) pursuant to Section 14.06(a)(i) of the Agreement;
and


 


(c)           payment of that
portion of the “Amendment Fee” (as defined in the Fee Letter) due on or prior
to the date hereof.


 


6.             Counterparts. This Amendment
may be executed in any number of counterparts and by different parties on
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute but one and the
same instrument.


 


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7.             Governing Law. This
Amendment shall be governed by, and construed in accordance with, the laws of
the State of New York.


 


8.             Section Headings. The various
headings of this Amendment are included for convenience only and shall not
affect the meaning or interpretation of this Amendment, the Agreement or any
provision hereof or thereof.


 


[signature pages follow]


 


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IN WITNESS WHEREOF,
the parties have executed this Amendment as of the date first written above.


 


	
   

  	
  AMPHENOL FUNDING CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AMPHENOL CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


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  FAIRWAY FINANCE
  COMPANY, LLC,

  
	
   

  	
  as Purchaser

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


 


	
   

  	
  HARRIS NESBITT CORP.,
  as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


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