EXHIBIT 10.261
First Amendment
Dated as of December 10, 1999
to
Receivables Sale Agreement
Dated as of December 11, 1998
This Amendment (the "Amendment"), dated as of December 10, 1999,
is entered into among Crompton & ▇▇▇▇▇▇▇ Receivables Corporation
(the "Seller"), CK WITCO Corporation (as successor by merger with
Crompton & ▇▇▇▇▇▇▇ Corporation) (the "Initial Collection Agent"),
Windmill Funding Corporation, a Delaware corporation
("Windmill"), ABN AMRO Bank N.V., as Windmill'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 Windmill, the Enhancer and the
Liquidity Provider (the "Agent").
Reference is hereby made to that certain Receivables Sale
Agreement, dated as of December 11, 1998 (as amended,
supplemented or otherwise modified through the date hereof, the
"Sale Agreement"), among the Seller, the Initial Collection
Agent, Windmill, the Enhancer, the Liquidity Provider and the
Agent. Terms used herein and not otherwise defined herein which
are defined in the Sale Agreement or the other Transaction
Documents (as defined in the Sale Agreement) shall have the same
meaning herein as defined therein.
For good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree 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) CK WITCO Corporation (as successor by merger with
Crompton & ▇▇▇▇▇▇▇ Corporation) ("CK WITCO") hereby assumes the
obligations of Crompton & ▇▇▇▇▇▇▇ Corporation as the Collection
Agent under the Sale Agreement. CK WITCO agrees that it will
perform all duties and obligations which by the terms of the Sale
Agreement are required to be performed by it as the Collection
Agent.
(b) The first sentence of Section 1.1(a) of the Sale
Agreement is hereby deleted and replaced with the following:
"Subject to the terms and conditions hereof, the Seller may,
from time to time before the Liquidity Termination Date, sell to
Windmill, or, only if Windmill declines to make the applicable
purchase, ratably to the Committed Purchasers an undivided
percentage ownership interest in the Receivables and all related
Collections."
(c) Section 1.1(c) of the Sale Agreement is hereby
deleted and replaced with the following:
(c) Incremental Purchases. In order to request an
Incremental Purchase from a Purchaser, the Seller must provide to
the Agent an irrevocable written request (including by telecopier
or other facsimile communication) substantially in the form of
Exhibit A, by 10:00 a.m. (Chicago time) three Business Days
before the requested date (the "Purchase Date") of such Purchase,
specifying the requested Purchase Date (which must be a Business
Day) and the requested amount (the "Purchase Amount") of such
Purchase, which must be in a minimum amount of $1,000,000 and
multiples thereof (or, if less, an amount equal to the Maximum
Incremental Purchase Amount). An Incremental Purchase may only
be requested from Windmill unless Windmill, in its sole
discretion, determines not to make such Incremental Purchase in
which case the Seller will automatically be deemed to have
requested such Incremental Purchase from the Committed
Purchasers. The Agent shall promptly notify the contents of any
such request to each Purchaser from which the Purchase is
requested. If Windmill determines, in its sole discretion, to
make the requested Purchase, Windmill shall transfer to the
Agent's Account the amount of such Incremental Purchase on the
requested Purchase Date. If Windmill refuses to make a requested
Purchase, the Seller shall automatically be deemed to have
requested the Incremental Purchase from the Committed Purchasers
(which such request may only be made on and after January 3,
2000), subject to Section 7.2 and the other terms and conditions
hereof, each Committed Purchaser shall transfer its Ratable Share
of the requested Purchase Amount into the Agent's Account by no
later than 12:00 noon (Chicago time) on the Purchase Date. The
Agent shall transfer to the Designated Account the proceeds of
any Incremental Purchase delivered into the Agent's Account.
Notwithstanding anything in this Agreement to the contrary, the
Committed Purchasers shall have no Commitment to make an
Incremental Purchase prior to January 3, 2000.
(d) Section 1.3 of the Sale Agreement is hereby deleted
and replaced with the following:
Section 1.3. Selection of Discount Rates and
Tranche Periods. (a)(1) The provisions of this subsection (a)(1)
shall apply to all Investment of Windmill funded with commercial
paper issued on or before the Agent makes the election described
in clause (a)(2) below: All such Investment shall be allocated
to one or more Tranches reflecting the Discount Rates at which
such Investment accrues Discount and the Tranche Periods for
which such Discount Rates apply. All such Investment of Windmill
shall accrue Discount at the CP Rate. Each CP Tranche shall be
in the minimum amount of $1,000,000 and in multiples thereof.
All Discount accrued at the CP Rate during a Tranche Period shall
be payable by the Seller on the last day of such Tranche Period;
(2) At the Agent's option, the Agent may notify the Seller that
the provisions of this subsection (a)(2) shall apply to all
Investment of Windmill funded with Pooled Commercial Paper issued
after the Agent delivers a notice to the Seller that it elects to
have the provisions of this clause (a)(2) to be applicable to the
Investment of Windmill: The Seller shall pay Funding Charges
with respect to Windmill's Purchase Interest for each day that
any Investment in respect of such Purchase Interest is
outstanding. Each such Purchase Interest will accrue Funding
Charges each day based on the Pooled Allocation. On each
Settlement Date the Seller shall pay to the Agent (for the
benefit of Windmill) an aggregate amount equal to all accrued and
unpaid Funding Charges in respect of such Purchase Interest for
the immediately preceding Discount Period; (3) All Investment of
the Committed Purchasers shall be allocated to one or more
Tranches reflecting the Discount Rates at which such Investment
accrues Discount and the Tranche Periods for which such Discount
Rates apply. In each request for an Incremental Purchase from a
Committed Purchaser and three Business Days before the expiration
of any Tranche Period applicable to any Committed Purchaser's
Investment, the Seller may request the Tranche Period(s) to be
applicable to such Investment and the Discount Rate(s) applicable
thereto. All Investment of the Committed Purchasers may accrue
Discount at either the Eurodollar Rate or the Prime Rate, in all
cases as established for each Tranche Period applicable to such
Investment. Each Tranche shall be in the minimum amount of
$1,000,000 and in multiples thereof or, in the case of Discount
accruing at the Prime Rate, in any amount of Investment that
otherwise has not been allocated to another Tranche Period. Any
Investment of the Committed Purchasers not allocated to a Tranche
Period shall be a Prime Tranche. During the pendency of a
Termination Event, the Agent may reallocate any outstanding
Investment of the Committed Purchasers to a Prime Tranche. All
Discount accrued on the Investment of the Committed Purchasers
during a Tranche Period shall be payable by the Seller on the
last day of such Tranche Period or, for a Eurodollar Tranche with
a Tranche Period of more than three months, 90 days after the
commencement, and on the last day, of such Tranche Period.
(b) The Agent shall allocate the Investment of
Windmill to Tranche Periods in its sole discretion. If, by the
time required in Section 1.3(a), the Seller fails to select a
Discount Rate or Tranche Period for any Investment of the
Committed Purchasers, such amount of Investment shall
automatically accrue Discount at the Prime Rate for a three
Business Day Tranche Period. Any Investment purchased from
Windmill pursuant to the Transfer Agreement shall accrue interest
at the Prime Rate and have an initial Tranche Period of three
Business Days.
(c) If the Agent or any Committed Purchaser
determines (i) that maintenance of any Eurodollar Tranche would
violate any applicable law or regulation, (ii) that deposits of a
type and maturity appropriate to match fund any of such
Purchaser's Eurodollar Tranches are not available or (iii) that
the maintenance of any Eurodollar Tranche will not adequately and
fairly reflect the cost of such Purchaser of funding Eurodollar
Tranches, then the Agent, upon the direction of such Purchaser,
shall suspend the availability of, and terminate any outstanding,
Eurodollar Tranche so affected. All Investment allocated to any
such terminated Eurodollar Tranche shall be reallocated to a
Prime Rate Tranche
(e) The defined term "Federal Funds Rate" appearing in
Schedule I to the Sale Agreement is hereby deleted and replaced
with the following:
"Federal Funds Rate" means for any day the greater of
(i) the highest rate per annum as determined by ABN AMRO at which
overnight Federal funds are offered to ABN AMRO for such day by
major banks in the interbank market, and (ii) if ABN AMRO is
borrowing overnight funds from a Federal Reserve Bank that day,
the highest rate per annum at which such overnight borrowings are
made on that day. Each determination of the Federal Funds Rate
by ABN AMRO shall be conclusive and binding on the Seller except
in the case of manifest error.
(f) The date "December 10, 1999" 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 "December 8, 2000".
(g) The defined term "Originators" appearing in Schedule
I to the Sale Agreement is amended in its entirety to be and to
read as follows:
"Originators" means each of Uniroyal Chemical Company, Inc.
and ▇▇▇▇▇ Standard Corporation.
(h) The defined term "Reserve" appearing in Schedule I
to the Sale Agreement is amended in its entirety to be and to
read as follows:
"Reserve" means, for each Purchaser, an amount equal to the
Reserve Percentage multiplied by the Eligible Receivables
Balance.
(i) The date "December 10, 1999" 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 "December 8, 2000".
(j) The defined term "Windmill Termination Date"
appearing in Schedule I to the Sale Agreement is hereby deleted
and replaced with the following:
"Windmill Termination Date" means the earliest of (a) the
Business Day designated by Windmill at any time to the Seller and
(b) the Liquidity Termination Date.
(k) The following definitions shall be added to
Schedule I to the Sale Agreement, as alphabetically appropriate:
"Allocated Commercial Paper" means commercial paper notes
issued by Windmill for a tenor and in an amount specifically
requested by any Person in connection with a Receivable Purchase
Facility.
"Break Funding Costs" means for any Pool Funded Purchase
Interest amounts payable to Windmill under the applicable
Receivables Purchase Facility in connection with any prepayment
or amortization if amounts payable thereunder in excess of the
amount of the investment or loan prepaid or amortized and accrued
and unpaid interest or discount thereon.
"Discount Period" means, with respect to any Settlement Date
or the Liquidity Termination Date, the period from and including
the preceding Settlement Date (or if none, the date that the
first Incremental Purchase is made hereunder) to but not
including such Settlement Date or Liquidity Termination Date, as
applicable.
"Funding Charges" means, for each day, the sum of (i)
discount accrued on Pooled Commercial Paper on such day, plus
(ii) any and all accrued commissions in respect of placement
agents and commercial paper dealers in respect of such Pooled
Commercial Paper for such day, plus (iii) issuing and paying
agents' fees incurred on such Pooled Commercial Paper for such
day, plus (iv) other costs associated with funding small or odd-
lot amounts with respect to all Receivable Purchase Facilities
which are funded by Pooled Commercial Paper for such day, minus
(v) any accrual of income net of expenses received on such day
from investment of collections received under all Receivable
Purchase Facilities funded with Pooled Commercial Paper, minus
(vi) any payment received on such day net of expenses in respect
of Break Funding Costs related to the prepayment of any Purchase
Interests held by Windmill pursuant to the terms of any
Receivable Purchase Facilities funded substantially with Pooled
Commercial Paper.
"Pool Funded Purchase Interest" means each investment or
loan of Windmill under a Receivables Purchase Facility funded
with Pooled Commercial Paper.
"Pooled Allocation" means, for each Pool Funded Purchase
Interest, an amount each day equal to the product of (i) the
Pooled Percentage Share of such Purchase Interest on such day
multiplied by (ii) the aggregate amount of Funding Charges for
such day.
"Pooled Commercial Paper" means commercial paper notes of
Windmill except (A) Allocated Commercial Paper, and (B) Specially
Pooled Paper.
"Pooled Percentage Share" means, for each Pool Funded
Purchase Interest, a fraction (expressed as a percentage) the
numerator of which is equal to the Investment associated with
such Pool Funded Purchase Interest and the denominator of which
is equal to the aggregate amount of all outstanding investment
(or comparable terms used in any Receivable Purchase Facility)
held by Windmill which is funded substantially with Pooled
Commercial Paper.
"Receivable Purchase Facility" means any receivables
purchase agreement, loan agreement or other similar contractual
arrangement to which Windmill is a party relating to the
transfer, purchase or financing of receivables or other assets.
"Settlement Date" means the 20th day of each calendar month.
"Specially Pooled Paper" means the aggregate of all
commercial paper notes of Windmill issued in connection with
receivables purchase facilities designated from time to time by
the Agent (in its sole discretion). Specially Pooled Paper will
not include Pooled Commercial Paper or Allocated Commercial Paper
at any time.
(l) Exhibit A to the Sale Agreement is hereby deleted
and replaced with the Exhibit A attached hereto.
Section 2. Section 1 of this Agreement shall become
effective only once the Agent has received, in form and substance
satisfactory to the Agent, all documents and certificates as the
Agent may reasonably request and all other matters incident to
the execution hereof are satisfactory to the Agent.
Section 3. The Sale Agreement, as amended and
supplemented hereby or as contemplated herein, and all rights and
powers created thereby and thereunder or under the other
Transaction Documents and all other documents executed in
connection therewith, are in all respects ratified and confirmed.
From and after the date hereof, the Sale Agreement shall be
amended and supplemented as herein provided, and, except as so
amended and supplemented, the Sale Agreement, each of the other
Transaction Documents and all other documents executed in
connection therewith shall remain in full force and effect.
Section 4. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original but both
or all of which, when taken together, shall constitute but one
instrument.
Section 5. This Amendment shall be governed and
construed in accordance with the internal laws 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:
Title:
By:
Title:
Windmill Funding Corporation
By:
Title:
Crompton & ▇▇▇▇▇▇▇ Receivables
Corporation
By:
Title:
CK WITCO Corporation (as successor by
merger with Crompton & ▇▇▇▇▇▇▇
Corporation)
By:
Title:
Exhibit A
To
Receivables Sale Agreement
Form of Incremental Purchase Request
______________, 199_
ABN AMRO Bank N.V., as Agent
Asset Securitization, Structured Finance
Suite 725
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Purchaser Agent-Windmill
Re: Receivables Sale Agreement dated as of December 11, 1998
(as amended, the "Sale Agreement") among Crompton & ▇▇▇▇▇▇▇
Receivables Corporation, as Seller, CK WITCO Corporation (as
successor by merger with Crompton & ▇▇▇▇▇▇▇ Corporation), as
Initial Collection Agent, ABN AMRO Bank N.V., as Agent,
and the Purchasers thereunder
Ladies and Gentlemen:
The undersigned Seller under the above-referenced Sale Agreement
hereby confirms its has requested an Incremental Purchase of
$___________ by Windmill under the Sale Agreement. [In the event
Windmill is unable or unwilling to make the requested Incremental
Purchase, the Seller hereby requests an Incremental Purchase of
$___________ by the Committed Purchasers under the Sale Agreement
at the [Eurodollar Rate with a Tranche Period of _____ months.]
[Prime Rate]].
Attached hereto as Schedule I is information relating to the
proposed Incremental Purchase required by the Sale Agreement. If
on the date of this Incremental Purchase Request ("Notice"), an
Interim Liquidation is in effect, this Notice revokes our request
for such Interim Liquidation so that Reinvestment Purchases shall
immediately commence in accordance with Section 1.1(d) of the
Sale Agreement.
The Seller hereby certifies that both before and after giving
effect to [each of] the proposed Incremental Purchase[s]
contemplated hereby and the use of the proceeds therefrom, all of
the requirements of Section 7.2 of the Sale Agreement have been
satisfied.
Very truly yours,
Crompton & ▇▇▇▇▇▇▇ Receivables
Corporation
By
Title
Schedule I
to
Incremental Purchase Requests
Summary of Information Relating to Proposed Sale(s)
1. Dates, Amounts, Purchaser(s), Proposed Tranche Periods
A1 Date of Notice
A2 Measurement Date (the last Business Day of the preceding
calendar month or the preceding Business Day, as applicable)
A3 Proposed Purchase Dates __________________(each of
which is a Business Day)
A4 Respective Proposed Incremental Purchase on
each such Purchase Date
$_________ $_________ $_________$_________
(each Incremental (A4A) (A4B) (A4C) (A4D)
Purchase must be in a
minimum amount of
$1,000,000 and multiples
thereof, or, if less, an
amount equal to the
Maximum Incremental
Purchase Amount)
A5 Proposed Allocation
among Purchasers
Windmill $_________ $_________ $_________ $_________
Liquidity
Providers $_________ $_________ $_________ $_________
Enhancer $_________ $_________ $_________ $_________
A6 Tranche Period
and, for Committed
Purchasers, Tranche Rate(s)
Starting Date _________ _________ ________ __________
Ending Date _________ _________ ________ __________
Number of Days _________ _________ ________ __________
Prime or Eurodollar
(for Committed
Purchasers only)_________ _________ ________ __________
Each proposed Purchase Date must be a Business Day and must occur
no later than two weeks after the Measurement Date set forth
above. The choice of Measurement Date is a risk undertaken by
the Seller. If a selected Measurement Date is not the applicable
Purchase Date, the Seller's choice and disclosure of such date
shall not in any manner diminish or waive the obligation of the
Seller to assure the Purchasers that, after giving effect to the
proposed Purchase, the actual Sold Interest as of the date of
such proposed Purchase does not exceed 100%.