EXHIBIT 10.202
First Amendment
Dated as of January 17, 2003
to
Amended and Restated
Receivables Sale Agreement
Dated as of January 18, 2002
This Amendment (the "Amendment"), dated as of January 17,
2003, is entered into among Crompton & Xxxxxxx Receivables
Corporation (the "Seller"), Crompton Corporation (as successor by
merger with Crompton & Xxxxxxx Corporation) (the "Initial
Collection Agent"), Amsterdam Funding Corporation, a Delaware
corporation ("Amsterdam"), ABN AMRO Bank N.V., as Amsterdam'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 Amsterdam, the
Enhancer and the Liquidity Provider (the "Agent").
Reference is hereby made to that certain Amended and
Restated Receivables Sale Agreement, dated as of January 18, 2002
(as amended, supplemented or otherwise modified through the date
hereof, the "Sale Agreement"), among the Seller, the Initial
Collection Agent, Amsterdam, 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. 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) The date "January 17, 2003" 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 "January 16, 2004".
(b) The date "January 17, 2003" appearing in
clause (ii) of the defined term "Termination Date" appearing
in Schedule I of the Sale Agreement is deleted and replaced
with the date "January 16, 2004".
(c) The definition of "Aggregate Commitment" appearing
in Schedule I of the Sale Agreement is hereby amended in its
entirety to read as follows:
"Aggregate Commitment" means
$153,000,000, as such amount may be reduced
pursuant to Section 1.6.
(d) The definition of "Dilution Reserve" appearing in
Schedule I of the Sale Agreement is hereby amended in its
entirety to read as follows:
"Dilution Reserve" means, the product of
(a) the Dilution Reserve Multiple times the
highest three consecutive month average
Dilution Ratio (expressed as a decimal) as of
the last day of each of the last twelve
calendar months, and (b) the Eligible
Receivables Balance.
(e) The definition of "Dilution Reserve Trigger Event"
appearing in Schedule I of the Sale Agreement is hereby
deleted.
(f) Clauses (i) and (ii) of the definition of
"Eligible Receivables" appearing in Schedule I of the Sale
Agreement are hereby amended in their entirety to read as
follows:
(i) the Obligor of which (a) is a
resident of, or organized under the laws of,
or with its chief executive office in, the
USA; provided, however, that (I) not more
than 10% of Eligible Receivables at any time
may consist of Receivables due from an
Obligor which is not a resident of, or
organized under the laws of, or with its
chief executive office in, the USA (each, a
"Foreign Receivable") if the applicable
Originator is the account party to a letter
of credit or letters of credit issued by a
financial institution acceptable to the Agent
naming the Collection Agent (or a permitted
sub-collection agent) as beneficiary in a
face amount not less than the aggregate
invoiced amount of Foreign Receivables of
such Originator and in form and substance
satisfactory to the Agent, and (II) not more
than 10% of Eligible Receivables at any time
may consist of Foreign Receivables not
covered by clause (I) above if (x) the
applicable Obligor (1) is a resident of a
country that is a member of the Organization
of Economic Cooperation and Development, and
(2) has a long-term senior unsecured credit
rating of at least BBB- by S&P and Baa3 by
Xxxxx'x and (y) all payments of such
Receivables are required to be made in US
dollars into a Lock-Box Account; (b) is not
an Affiliate of any Crompton Entity; (c) is
not a government or a governmental
subdivision or agency; (d) has not suffered a
Bankruptcy Event; (e) is a customer of the
Originator in good standing; and (f) is not
the Obligor of Receivables 25% or more of
which are Defaulted Receivables;
(ii) which is stated to be due and
payable within 90 days after the invoice
therefor; provided, however, that not more
than 10% of Eligible Receivables (other than
Foreign Receivables) at any time may consist
of Receivables which are stated to be due and
payable within 91 to 360 days after invoice
therefor;
(g) The definition of "Loss Reserve" appearing in
Schedule I of the Sale Agreement is hereby amended in its
entirety to read as follows:
"Loss Reserve" means, at any time, the
product of (i) the greatest of (a) 15.0%, (b)
Delinquency Multiple times the highest three
month rolling average Delinquency Ratio
(expressed as a decimal) as of the last day
of each of the last twelve calendar months
and (c) Default Multiple times the highest
three month rolling average Default Ratio
(expressed as a decimal) as of the last day
of each of the last twelve calendar months
multiplied by (ii) the Eligible Receivables
Balance.
(h) The definition of "Purchase Limit" appearing in
Schedule I of the Sale Agreement is hereby amended in its
entirety to read as follows:
"Purchase Limit" means $150,000,000.
(i) Clause (f) of the defined term "Termination Event"
is hereby deleted and replaced with the following:
(f) the average of the Delinquency
Ratios as of the end of each of the most
recent three calendar months exceeds 12.0%,
the average of the Default Ratios as of the
end of each of the most recent three calendar
months exceeds 15.0%, the Dilution Ratio at
the end of any calendar month measured for
the three month calendar period then ending
exceeds 5.0% or the Loss-to-Liquidation Ratio
at the end of any calendar month measured for
the three month calendar period then ending
exceeds 1.0%; or
(j) The definition of "Receivables Setoff Downgrade
Event " appearing in Schedule I of the Sale Agreement is
hereby amended in its entirety to read as follows:
"Receivable Setoff Downgrade Event"
shall mean at any time the Parent's long-term
unsecured, unsubordinated indebtedness is
rated less than "BBB-" by S&P or "Ba1" by
Xxxxx'x (or S&P or Xxxxx'x has withdrawn or
suspended such rating).
(k) Clause (m) of the definition of "Termination
Event" appearing in Schedule I of the Sale Agreement is
hereby amended in its entirety to read as follows:
(m) the Parent shall fail to comply
with any covenant set forth in Section 5.07
of the Crompton Credit Agreement (as such
Crompton Credit Agreement is in effect as of
January 17, 2003, without regard to any
subsequent amendment, supplement, waiver or
termination thereof unless consented to by
the Agent at the direction of the Instructing
Group).
(l) The following new definitions are added to the
Schedule I of the Sale Agreement:
"Default Multiple" means the following
amounts based upon the long-term senior
unsecured credit rating of the Parent:
Credit Credit Ratings
Ratings for Parent
for Parent S&P Default Multiple
Xxxxx'x
Baa3 or BBB- or 1.50x
greater greater
Ba1 BBB- 1.50x
Ba1 BB+ 1.50x
Ba1 BB 1.75x
Ba2 BB+ 1.75x
Ba2 BB 2.0x
Xxxxx Xx0 or Below BB or no 2.5x
no rating rating
If the ratings of the Parent from Xxxxx'x and
S&P would result in different Default
Multiples, the greater Default Multiple shall
apply.
"Delinquency Multiple" means the
following amounts based upon the long-term
senior unsecured credit rating of the Parent:
Credit Credit Ratings
Ratings for Parent
for Parent S&P Delinquency
Xxxxx'x Multiple
Baa3 or BBB- or 2.0x
greater greater
Ba1 BBB- 2.0x
Ba1 BB+ 2.0x
Ba1 BB 2.5x
Ba2 BB+ 2.5x
Ba2 BB 3.0x
Xxxxx Xx0 or Below BB or no 4.0x
no rating rating
If the ratings of the Parent from Xxxxx'x and
S&P would result in different Delinquency
Multiples, the greater Delinquency Multiple
shall apply.
"Dilution Reserve Multiple" means the
following amounts based upon the long-term
senior unsecured credit rating of the Parent:
Credit Credit Ratings
Ratings for Parent Dilution
for Parent S&P Reserve
Xxxxx'x Multiple
Baa3 or BBB- or 2.5x
greater greater
Ba1 BBB- 3.0x
Ba1 BB+ 3.0x
Ba1 BB 3.5x
Ba2 BB+ 3.5x
Ba2 BB 4.0x
Xxxxx Xx0 or Below BB or no 5.0x
no rating rating
If the ratings of the Parent from Xxxxx'x and
S&P would result in different Dilution
Reserve Multiples, the greater Dilution
Reserve Multiple shall apply.
(m) Schedule II to the Sale Agreement is hereby
amended in its entirety to read as set forth on Schedule II
hereto.
(n) The definition of "Concentration Limit" appearing
in Schedule I of the Sale Agreement is hereby amended in its
entirety to read as follows:
"Concentration Limit" means (i) with
respect to Obligors (other than Obligors on
Foreign Receivables described in
subclause (II) of clause (i) of the
definition of Eligible Receivables) with
senior unsecured long-term indebtedness rated
A- (or higher) by S&P or A3 (or higher) by
Xxxxx'x, an amount not to exceed 5% of the
Eligible Receivables Balance, and (ii) with
respect to all other Obligors, an amount not
to exceed 3% of the Eligible Receivables
Balance.
Section 2. 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. By executing
this Amendment, Crompton Corporation confirms that it is the
"Guarantor" under the Limited Guaranty and that the Limited
Guaranty and Crompton Corporation's obligations thereunder remain
in full force and effect.
Section 3. 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 4. 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:
Amsterdam Funding Corporation
By:
Title:
Crompton & Xxxxxxx Receivables
Corporation
By:
Title:
Crompton Corporation (as
successor by merger with
Crompton & Xxxxxxx
Corporation)
By:
Title:
Schedule II
Liquidity Providers
and
Commitments of Committed Purchasers
Name of Liquidity Provider Commitment
ABN AMRO Bank N.V. $137,700,000
Enhancer
ABN AMRO Bank N.V. $15,300,000
