EXHIBIT 2.4
EXECUTION COPY
SECOND AMENDMENT
SECOND AMENDMENT, dated as of December 18, 2003 (this
"Amendment"), to the Receivables Transfer Agreement, dated as of December 20,
2001, as amended and restated as of September 24, 2002 (as further amended,
supplemented or otherwise modified from time to time, the "Receivables Transfer
Agreement"), among Xxxxxxx & Xxxxxx Products Co. ("C&A"), Carcorp, Inc. (the
"Transferor"), the conduit purchasers party thereto from time to time (the "CP
Conduit Purchasers"), the committed purchasers party thereto from time to time
(the "Committed Purchasers": and, together with the CP Conduit Purchasers, the
"Purchasers"), the funding agents party thereto from time to time (the "Funding
Agents") and JPMorgan Chase Bank, as administrative agent (the "Administrative
Agent").
W I T N E S S E T H:
WHEREAS, C&A, the Transferor, the Purchasers, the Funding
Agents and the Administrative Agent are parties to the Receivables Transfer
Agreement; and
WHEREAS, C&A and Carcorp have requested, and the Required
Committed Purchasers have consented to, certain modifications as set forth
herein;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto hereby agree as follows:
1. Defined Terms. Terms defined in the Receivables
Transfer Agreement and used herein shall, unless otherwise indicated, have the
meanings given to them in the Receivables Transfer Agreement.
2. Amendment to Section 2.03 of the Receivables Transfer
Agreement. Paragraph (c) of Section 2.03 of the Receivables Transfer Agreement
is hereby amended by deleting such paragraph in its entirety and substituting in
lieu thereof the following:
"(c) Transferred Interest Held by the Committed Purchasers
Prior to the Termination Date. With respect to any portion of the
Transferred Interest which is owned by or transferred to a Committed
Purchaser pursuant to this Agreement or an Asset Purchase Agreement
prior to the Termination Date, the initial Tranche Period applicable to
such portion of the Net Investment allocable thereto shall be a period
of at least three (3) Business Days, and such Tranche shall be a BR
Tranche. Thereafter (but prior to the Termination Date or the
occurrence and continuation of a Potential Termination Event), with
respect to such portion, and with respect to any other portion of the
Transferred Interest held by any Committed Purchaser, the Tranche
applicable thereto shall be, at the Transferor's sole option, either a
BR Tranche or a Eurodollar Tranche. Notwithstanding the foregoing, upon
the occurrence of the Redwood Termination Event, and for so long as GE
Capital is the only Committed Purchaser hereunder that owns any portion
of the Transferred Interest or has outstanding Net Investment, the
Tranche Period applicable to GE Capital's portion of the Net Investment
shall be the GECC Tranche Period, and such Tranches with respect to GE
Capital's Net Investment shall be GECC Tranches; provided, that if GE
Capital ceases to be the only Committed Purchaser that owns a portion
of the Transferred Interest or who has outstanding Net Investment, the
foregoing proviso shall cease to apply and pricing for GE Capital's
portion of the Net Investment shall be determined in accordance with
the first two sentences of this paragraph (c). The Transferor shall
give the Administrative Agent and the Funding Agents with
respect to the applicable Committed Purchasers irrevocable notice by
telephone of the new Tranche Period (i) if the applicable Tranche is to
be a Eurodollar Tranche, at least three (3) Business Days prior to the
expiration of any then existing Tranche Period, and (ii) if the
applicable Tranche is to be a BR Tranche or GECC Tranche, at least one
(1) Business Day prior to the expiration of any then existing Tranche
Period. Any Tranche Period maintained by the Committed Purchasers which
is outstanding on the Termination Date shall end on the Termination
Date."
3. Amendment to Schedule A of the Receivables Transfer
Agreement. (a) Schedule A to the Receivables Transfer Agreement is hereby
amended by inserting the following defined terms in their appropriate
alphabetical order:
"GECC CP Rate" shall mean (i) the latest month-end published
rate for 30-day dealer commercial paper (high grade unsecured notes
sold through dealers by major corporations in multiples of $1,000),
which normally appears in the "Money Rates" column of The Wall Street
Journal or, in the event that The Wall Street Journal ceases
publication of such rate, in such other publication of general
circulation as GE Capital may, from time to time, designate in writing,
or (ii) if such rate is not determinable pursuant to clause (i) hereof,
such rate as GE Capital may, from time to time, designate in writing.
"GECC Tranche" shall mean a Tranche as to which Discount is
calculated at the GECC CP Rate plus the margin set forth in the
definition of "Tranche Rate".
"GECC Tranche Period" shall mean, with respect to a GECC
Tranche, each Settlement Period; provided, that on or after the
Termination Date, GE Capital shall select all GECC Tranche Periods.
(b) Schedule A to the Receivables Transfer Agreement is
hereby further amended by deleting the following defined terms contained therein
in their entirety and substituting in lieu thereof the following:
"Tranche Period" shall mean a CP Tranche Period, a BR Tranche
Period, a Eurodollar Tranche Period or a GECC Tranche Period, as
applicable.
"Tranche Rate" shall mean the CP Rate, the Base Rate, the
Eurodollar Rate or the GECC CP Rate, as applicable, plus, (a) in the
case of the Base Rate or the Eurodollar Rate, the Applicable Margin and
(b) in the case of the GECC CP Rate, 2.25%.
4. Effectiveness. This Amendment shall become effective
as of December 1, 2003 when the Administrative Agent shall have received
counterparts hereof duly executed by the Transferor, C&A and the Required
Committed Purchasers; provided, that if the Administrative Agent does not
receive such counterparts on or prior to December 31, 2003, this Amendment shall
then become effective on the date such counterparts are received.
5. Representations and Warranties. Each of the C&A and
the Transferor hereby represent and warrant that each of the representations and
warranties made by it in or pursuant to the Receivables Transfer Agreement shall
be, after giving effect to this Amendment, true and correct in all material
respects, as if made on and as of the date hereof (unless such representations
and warranties are stated to relate to an earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date).
6. Continuing Effect of Receivables Transfer Agreement.
This Amendment shall not be construed as a waiver or consent to any further or
future action on the part of C&A or the Transferor that would require a waiver
or consent of the Funding Agents and the Required Committed Purchasers. Except
as amended hereby, the provisions of the Receivables Transfer Agreement are and
shall remain in full force and effect.
7. Counterparts. This Amendment may be executed by one
or more of the parties hereto in any number of separate counterparts (which may
include counterparts delivered by facsimile transmission) and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. Any executed counterpart delivered by facsimile transmission shall
be effective as for all purposes hereof.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
CARCORP, INC., as Transferor
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
XXXXXXX & XXXXXX PRODUCTS CO., individually
and as Collection Agent
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
JPMORGAN CHASE BANK, as
Administrative Agent and as Committed
Purchaser
By: /s/ XXXXXXX XXXXXXXX
---------------------------------
Name: XXXXXXX XXXXXXXX
Title: Managing Director
CDC FINANCIAL PRODUCTS INC., as
Committed Purchaser
By:__________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, as
Committed Purchaser
By: _________________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Committed Purchaser
By: ________________________________
Name:
Title: Duly Authorized Signatory
JPMORGAN CHASE BANK, as
Administrative Agent and as Committed
Purchaser
By: _________________________________
Name:
Title:
CDC FINANCIAL PRODUCTS INC., as
Committed Purchaser
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Director
THE BANK OF NOVA SCOTIA, as
Committed Purchaser
By: _________________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Committed Purchaser
By: _________________________________
Name:
Title: Duly Authorized Signatory
JPMORGAN CHASE BANK, as
Administrative Agent and as Committed
Purchaser
By: _________________________________
Name:
Title:
CDC FINANCIAL PRODUCTS INC., as
Committed Purchaser
By: _________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, as
Committed Purchaser
BY: /s/ X. X. XXXXXXX
---------------------------------
Name: X. X. XXXXXXX
Title: Managing Director
GENERAL ELECTRIC CAPITAL
CORPORATION, as Committed Purchaser
By: _________________________________
Name:
Title: Duly Authorized Signatory
JPMORGAN CHASE BANK, as
Administrative Agent and as Committed
Purchaser
By: _________________________________
Name:
Title:
CDC FINANCIAL PRODUCTS INC., as
Committed Purchaser
By: _________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, as
Committed Purchaser
By: _________________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Committed Purchaser
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Duly Authorized Signatory
