Contract
Exhibit 10.11
FIRST
AMENDMENT TO
FIRST
AMENDMENT, dated as of August 28, 2007 (this “Amendment”), to the
Purchase and Contribution Agreement, dated as of July 25, 2007 (as amended,
restated, modified or supplemented from time to time, the “PCA”), by and among
Olin Funding Company LLC (the “Purchaser”), Xxxx
Corporation (“Parent”), as
Collection Agent, X.X. Xxxxx Co. (“X.X. Xxxxx Co.”),
X.X. Xxxxx Foils, Inc. (“X.X. Xxxxx Foils”),
X.X. Xxxxx West, Inc. (“X.X. Xxxxx West”),
Xxxxx Metals, Inc. (“Xxxxx Metals”) and
Chase Brass & Copper Company, Inc. (“Chase” and together
with Parent, X.X. Xxxxx Co., X.X. Xxxxx Foils, X.X. Xxxxx West and Xxxxx Metals,
each a “Seller”
and collectively, the “Sellers”). Capitalized
terms used but not otherwise defined herein shall have the meanings ascribed to
such terms in the PCA.
WHEREAS,
pursuant to Section 9.01 of the PCA, the parties hereto have agreed to amend the
PCA as described herein.
NOW
THEREFORE, the parties hereto agree as follows:
1. Amendments to the
PCA. Effective as of the date on which all of the conditions
precedent set forth in Section 3 hereof
shall have been satisfied, the PCA is hereby amended as follows:
a. Section
4.01(s) of the PCA is hereby amended and restated in its entirety to read as
follows:
“(s)
Such Seller (or the partners of such Seller, if such Seller is a partnership)
does not
carry on business in Canada
through a permanent establishment
for the purposes of the Canada-U.S.
Convention.”
b. Section
5.01(m) of the PCA is hereby amended and restated in its entirety to read as
follows:
“(m) Business in
Canada. Such Seller (or the partners of such Seller, if such
Seller is
a partnership) will not carry
on business in Canada
through a permanent establishment for the purposes of the Canada-U.S.
Convention.”
c. Exhibit B
to the PCA is hereby replaced in its entirety by Exhibit B attached to
this Amendment.
2. The Xxxxxxx Works
Receivables. Chase hereby notifies the Purchaser and the
Collection Agent that (a) all receivables financing and purchasing arrangements
pertaining to the accounts receivable due from The Xxxxxxx Works Co. described
in clause (a) of the definition of “Excluded Receivables” set forth in Section
1.01 of the PCA (“The
Xxxxxxx Works Receivables”) have been terminated and the UCC Financing
Statement filed in connection therewith has been terminated (an acknowledgment
copy of the termination of the UCC Financing Statement has been separately
delivered to the Purchaser and the Collection Agent), and (b) The Xxxxxxx Works
Receivables are free and clear of Adverse Claims (UCC search results indicating
the absence of Adverse Claims have been separately delivered to the Purchaser
and the Collection Agent), and Chase hereby authorizes the Program Agent (as
defined in the RPA) as the designee of the Purchaser to file an amendment of the
UCC Financing Statement filed against Chase in connection with the PCA to
reflect that The Xxxxxxx Works Receivables are no longer Excluded
Receivables. Notwithstanding the requirement set forth in the
definition of “Excluded Receivables” that thirty (30) days’ prior written notice
be delivered, effective as of August 31, 2007, The Xxxxxxx Works Receivables
shall no longer be deemed to be Excluded Receivables.
3. Effectiveness. This
Amendment shall become effective as of the date hereof at such time as executed
counterparts of this Amendment have been delivered by each party hereto to the
other parties hereto and the Program Agent and each of the Investor Agents (as
such terms are defined in the RPA) have executed and delivered the consent on
the signature pages hereto.
4. Representations and
Warranties.
a. Each
Seller reaffirms and restates as to itself each of the representations and
warranties contained in Section 4.01of the PCA, as amended by this
Amendment.
b. The
Sellers hereby represent and warrant that the names and addresses of all of the
Deposit Banks, together with the post office boxes and account numbers of the
Lock-Boxes and
Deposit Accounts at such Deposit Banks, are as specified in Exhibit B attached
hereto, and that all of the information set forth on such Exhibit B is true and
correct as of the date
hereof.
5. Confirmation of the
PCA. All references to the PCA in the PCA and the other
documents and instruments delivered pursuant to or in connection with the PCA
shall mean the PCA as amended by this Amendment, and as hereafter amended or
restated. Except as expressly provided herein, the PCA shall remain
unmodified and shall continue to be in full force and effect in accordance with
its terms.
6. GOVERNING
LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY
CONFLICTS OF LAWS PRINCIPLES THEREOF.
7. Counterparts. This
Amendment may be executed by the parties hereto on any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. Delivery of an executed
counterpart of a signature page to this Amendment by facsimile or by electronic
mail in portable document format (pdf) shall be effective as delivery of a
manually executed counterpart of this Amendment.
[Signature
Pages Follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered as of the day and year first above written.
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OLIN
FUNDING COMPANY LLC, as Purchaser
By: /s/ Xxxxxxx X.
Xxxxxx
Name: Xxxxxxx
X. Xxxxxx
Title: Treasurer
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XXXX
CORPORATION, as Parent, Collection Agent and a Seller
By: /s/ Xxxxxxx X.
Xxxxxx
Name: Xxxxxxx
X. Xxxxxx
Title: Vice
President & Treasurer
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X.X.
XXXXX CO., as a Seller
By: /s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Title: President
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X.X.
XXXXX FOILS, INC., as a Seller
By: /s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Title: President
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X.X.
XXXXX WEST, INC., as a Seller
By: /s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Title: President
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XXXXX
METALS, INC., as a Seller
By: /s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Title: President
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CHASE
BRASS & COPPER COMPANY, INC., as a Seller
By: /s/ Xxxxxxx X.
Xxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxx
Title: President
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Pursuant
to Section 5.01(m) of the RPA, each of the undersigned consents to the
foregoing First Amendment:
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CITICORP
NORTH AMERICA, INC., as Program Agent and an Investor Agent under the
RPA
By:
/s/ Xxxxxxx X.
Xxxx
Name: Xxxxxxx
X. Xxxx
Title: Vice
President
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WACHOVIA
BANK, NATIONAL ASSOCIATION, as an Investor Agent under the
RPA
By: /s/ Xxxxxxx X.
Xxxxxxxxx
Name: Xxxxxxx
X. Xxxxxxxxx
Title: Vice
President
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