THIRD AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT
Exhibit
10.16
THIRD
AMENDMENT TO
THIRD
AMENDMENT, dated as of July 23, 2008 (this “Amendment”), to the
Receivables Purchase Agreement, dated as of July 25, 2007 (as amended, restated,
modified or supplemented from time to time, the “RPA”), by and among
Xxxx Funding Company LLC (the “Seller”), CAFCO, LLC
and Variable Funding Capital Company LLC, as Investors, Citibank, N.A. and
Wachovia Bank, National Association (“Wachovia”), as Banks,
Citicorp North America, Inc. (“Citi”), as the
Program Agent, Citi and Wachovia, as Investor Agents, and Xxxx Corporation
(“Parent”), as
Collection Agent. Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to such terms in the RPA.
WHEREAS,
pursuant to Section 11.01 of the RPA, the parties hereto have agreed to amend
the RPA as described herein.
NOW
THEREFORE, the parties hereto agree as follows:
1. Amendments to the
RPA. Effective as of the date on which all of the conditions
precedent set forth in Section 3 hereof
shall have been satisfied (the “Effective
Date”):
a. Section
1.01 of the RPA is amended by adding the following new definition thereto in
proper alphabetical order:
“Accounting Based
Consolidation Event” means the consolidation, for financial and/or
regulatory accounting purposes, of all or any portion of the assets and
liabilities of any Investor that are the subject of this Agreement, the Asset
Purchase Agreement or any other Transaction Document with all or any portion of
the assets and liabilities of Citibank, the Program Agent or any Investor Agent
or any of their affiliates as the result of the existence of, or occurrence of
any change in, accounting standards or the issuance of any pronouncement,
interpretation or release, by any accounting body or any other body charged with
the promulgation or administration of accounting standards, including, without
limitation, the Financial Accounting Standards Board, the International
Accounting Standards Board, the American Institute of Certified Public
Accountants, the Federal Reserve Board of Governors and the Securities and
Exchange Commission, and shall occur as of the date that such consolidation
(i) shall have occurred with respect to the financial statements of
Citibank, the Program Agent or any Investor Agent or any of their affiliates or
(ii) shall have been required to have occurred, regardless of whether such
financial statements were prepared as of such date.
b. The
definition of “Bank Commitment” set forth in Section 1.01 of the RPA is amended
and restated in its entirety to read as follows:
“Bank Commitment” of
any Bank means, (a) with respect to Citibank, $75,000,000 or such amount as
reduced or increased by any Assignment and Acceptance entered into among
Citibank, another Bank, the Investor Agent for Citibank and the Program Agent or
(b) with respect to a Bank (other than Citibank) that has entered into an
Assignment and Acceptance, the amount set forth therein as such Bank’s Bank
Commitment, in each case as such amount may be reduced or increased by an
Assignment and Acceptance entered into among such Bank, an Eligible Assignee,
the Investor Agent for such Bank and the Program Agent, and as may be further
reduced (or terminated) pursuant to the next sentence. Any reduction
(or termination) of the Purchase Limit pursuant to the terms of this Agreement
shall reduce ratably (or terminate) each Bank’s Bank Commitment.
c. The
definition of “Commitment Termination Date” set forth in Section 1.01 of the RPA
is amended by deleting the date “July 23, 2008” appearing in clause (a) thereof
and replacing it with the date “July 22, 2009”.
d. The
definition of “Investor Purchase Limit” set forth in Section 1.01 of the RPA is
amended and restated in its entirety to read as follows:
“Investor Purchase
Limit” means, with respect to the CAFCO Group,
$75,000,000. Any reduction (or termination) of the Purchase Limit by
Seller pursuant to Section 2.01(b) shall reduce ratably (or terminate) each
Group’s Investor Purchase Limit.
e. The
definition of “Maximum Percentage Factor” set forth in Section 1.01 of the RPA
is amended and restated in its entirety to read as follows:
“Maximum Percentage
Factor” means 89.95% or, if Weekly Reports are required to be delivered
pursuant to Section 6.02(g)(ii), 95.86%.
f. The
definition of “Purchase Limit” set forth in Section 1.01 of the RPA is amended
and restated in its entirety to read as follows:
“Purchase Limit” means
$75,000,000, as such amount may be reduced pursuant to Section
2.01(b). References to the unused portion of the Purchase Limit shall
mean, at any time, the Purchase Limit, as then reduced pursuant to Section
2.01(b), minus the then outstanding Capital of Receivable Interests under this
Agreement.
g. Section 2.08(a)
of the RPA is amended and restated in its entirety to read as
follows:
“(a) If
CNAI, any Investor, any Investor Agent, any Bank, any entity (including any bank
or other financial institution providing liquidity and/or credit support to any
Investor in connection with such Investor’s commercial paper program) which
purchases or enters into a commitment to purchase Receivable Interests or
interests therein, or any of their respective Affiliates (each an “Affected Person”)
determines that due to any change in any law or regulation or any guideline or
request regarding the capital required or expected to be maintained by such
Affected Person from any central bank or other governmental authority (whether
or not having the force of law), in each case made subsequent to the date
hereof, or the occurrence of any Accounting Based Consolidation Event (i) the
amount of capital required or expected to be maintained by such Affected Person
is increased by or based upon the existence of any commitment under the
Transaction Documents or any Asset Purchase Agreement or the purchasing or
maintaining the ownership of Receivable Interests, (ii) there is an
increase in the cost of making or maintaining such commitment under the
Transaction Documents or any Asset Purchase Agreement or purchasing or
maintaining the ownership of Receivable Interests to any Affected Person or
(iii) there is a reduction in the return of an Affected Person in
connection with the Transaction Documents or any Asset Purchase Agreement, then,
upon demand by such Affected Person (with a copy to the Program Agent and the
Investor Agent for such Affected Person’s Group), the Seller shall immediately
pay to the Investor Agent for such Affected Person’s Group for the account of
such Affected Person (as a third-party beneficiary), from time to time as
specified by such Affected Person, additional amounts sufficient to compensate
such Affected Person for such increase in capital, increased cost and/or reduced
return in light of such circumstances. A certificate as to such
amounts submitted to the Seller and the Program Agent and the Investor Agent for
such Affected Person’s Group by such Affected Person shall specify in reasonable
detail the basis for the request for compensation of such additional amounts and
the basis for the calculation thereof and shall be conclusive and binding for
all purposes, absent manifest error.”
2. Elimination of Wachovia and
VFCC as Parties to the RPA, the Facility Fee Agreement and the Other Transaction
Documents; Elimination of Term-Out Provisions; Elimination of Letter of Credit
Facility; Termination of Agent Fee Agreement. Effective as of
the Effective Date, (a) Wachovia and VFCC shall cease to be parties to the
RPA, the Facility Fee Agreement and the other Transaction Document in any
capacity and shall have no further rights or obligations under the RPA, the
Facility Fee Agreement or any other Transaction Document, including, without
limitation, Wachovia shall have no obligation to issue Letters of Credit in
connection with the RPA or to fund the Collateral Advance Account pursuant to
Section 2.01(d) of the RPA; provided that all fees that are payable to Wachovia
that have accrued under the Facility Fee Agreement or the L/C Fee Agreement to
the Effective Date shall be paid to Wachovia on the Effective Date, (b) all
provisions contained in the RPA relating to the issuance of Letters of Credit
(including, without limitation, Sections 2.18 and 2.19 thereof) and all related
definitions (including, without limitation, the definitions “Drawing Date”, “L/C
Bank”, “L/C Collateral Account”, “L/C Facility Limit”, “L/C Fee Agreement”, “L/C
Receivable Interest”, “L/C Termination Date”, “Letter of Credit” and “Letter of
Credit Application”) shall be deleted and of no further force and effect, (c)
all “Term-Out” related provisions contained in the RPA (including, without
limitation, Sections 2.01(d), 2.14, 2.15, 2.16, 2.17, 6.07 and 6.08 thereof) and
all related definitions or portions of definitions (including, without
limitation, the definitions “Cash Secured Advance”, “Cash Secured Advance
Commencement Date”, “Collateral Advance Account”, “Collateral Advance Account
Agreement”, “Collateral Advance Account Bank”, “Collateral Advance Account
Direction”, “Excess Interest”, “Term-Out Bank”, “Term-Out Bank Collateral” and
“Term-Out Bank Purchase Date” and the proviso at the end of the definition of
“Commitment Termination Date”) shall be deleted and of no further force and
effect and (d) the Agent Fee Agreement shall be terminated and of no further
force and effect; provided, that all
fees that have accrued thereunder to the Effective Date shall continue to be due
and payable and shall be paid to the Program Agent on the Effective
Date.
3. Effectiveness. This
Amendment shall become effective as of the date hereof at such time as
(a) executed counterparts of this Amendment have been delivered by each
party hereto to the other parties hereto, (b) executed counterparts of an
amendment to the Facility Fee Agreement, in form and substance satisfactory to
the Program Agent, shall have been delivered by each party thereto to the other
parties thereto and (c) Wachovia and the Program Agent shall have received
payment of all fees payable to them pursuant to clauses (a) and (d) of Section 2
..
4. Representations and
Warranties. The Seller reaffirms and restates each of the
representations and warranties contained in Section 4.01 of the RPA, as amended
by this Amendment, and for the purpose of making such representations and
warranties, each reference in Section 4.01(b), (c) and (d) of the RPA to
“this Agreement” shall include this Amendment. The Collection Agent
reaffirms and restates each of the representations and warranties contained in
Section 4.02 of the RPA, as amended by this Amendment, and for the purpose of
making such representations and warranties, each reference in
Section 4.02(b), (c) and (d) of the RPA to “this Agreement” shall include
this Amendment.
5. Covenants. The
Parent and the Seller agree to (a) on or prior to August 8, 2008, cause The
Toronto-Dominion Bank to enter into an amendment of the Deposit Account
Agreement to add thereto account no. 359385 and any related lock box, such
amendment to be in form and substance satisfactory to the Program Agent and (b)
on or prior to September 30, 2008, either (i) notify all obligors of Pioneer
Americas LLC (“Pioneer”) to pay to a
lock box or bank account that is not a Lock Box or Deposit Account subject to a
Deposit Account Agreement and remove all receivables originated by Pioneer from
all Monthly Reports and Weekly Reports or (ii) cause Pioneer to become a
“Seller” under the Originator Purchase Agreement and in connection therewith
deliver to the Program Agent an amendment to the Originator Purchase Agreement
and the Undertaking, UCC searches against Pioneer, a UCC-1 financing statement
against Pioneer, officer’s certificates and opinions of counsel with respect to
Pioneer, in each case in form and substance satisfactory to the Program
Agent. The parties hereto agree that in no event shall the Seller
request, nor shall the Banks or Investors make, purchases of Receivable
Interests until such time as all of the items described in clause (b)(i) or
(b)(ii) of the preceding sentence have been completed to the Program Agent’s
satisfaction.
6. Confirmation of the
RPA. All references to the RPA in the RPA and in the other
Transaction Documents shall mean the RPA as amended by this Amendment, and as
hereafter amended or restated. Except as expressly provided herein,
the RPA shall remain unmodified and shall continue to be in full force and
effect in accordance with its terms.
7. Confirmation of
Undertaking. Parent confirms and agrees that, notwithstanding
the effectiveness of this Amendment, the Undertaking heretofore executed and
delivered by it is, and shall continue to be, in full force and effect, and the
Undertaking is hereby ratified and confirmed.
8. 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.
9. 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 Seller
By: /s/ Xxxx X.
Xxxxxx
Name: Xxxx
X. Xxxxxx
Title: Vice
President
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CAFCO,
LLC, as an Investor
By: Citicorp
North America, Inc.,
as
Attorney-in-Fact
By:
/s/ Xxxxxxx X.
Xxxx
Name: Xxxxxxx
X. Xxxx
Title: Vice
President
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VARIABLE
FUNDING CAPITAL COMPANY LLC, as an Investor
By: Wachovia
Capital Markets, LLC,
as
Attorney-in-Fact
By: /s/ Xxxxxxx X. Xxxxxx,
Xx.
Name:
Xxxxxxx X. Xxxxxx, Xx.
Title: Director
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CITIBANK,
N.A., as a Bank
By:
/s/ Xxxxxxx X.
Xxxx
Name: Xxxxxxx
X. Xxxx
Title: Vice
President
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WACHOVIA
BANK, NATIONAL ASSOCIATION, as a Bank and as an Investor
Agent
By: /s/ Xxxxxxx X.
Xxxxxxxxx
Name: Xxxxxxx
X. Xxxxxxxxx
Title: Vice
President
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CITICORP
NORTH AMERICA, INC., as the Program Agent and as an Investor
Agent
By:
/s/ Xxxxxxx X.
Xxxx
Name: Xxxxxxx
X. Xxxx
Title: Vice
President
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XXXX
CORPORATION, as Collection Agent and Parent
By: /s/ Xxxx X.
Xxxxxx
Name: Xxxx
X. Xxxxxx
Title: Vice
President and Controller
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