Exhibit 10.11a
AGREEMENT OF AMENDMENT
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AGREEMENT OF AMENDMENT dated as of December 31, 2001 (the "Amendment")
among FMC FUNDING CORPORATION (the "Seller"), FMC CORPORATION ("FMC"), FMC
WYOMING CORPORATION ("FMC Wyoming", and together with FMC, the "Originators"),
CIESCO, L.P. ("CIESCO"), CITIBANK, N.A. (the "Bank") and CITICORP NORTH AMERICA,
INC., as agent (the "Agent").
W I T N E S S E T H
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WHEREAS, the Seller, FMC, CIESCO, the Bank, and the Agent have entered
into that certain Receivables Purchase Agreement dated as of November 24, 1999
(as from time to time amended, the "Purchase Agreement");
WHEREAS, the Seller and each Originator (as defined in the Purchase
Agreement) have entered into that certain Purchase and Contribution Agreement
dated as of November 24, 1999 (the "Originator Purchase Agreement"); and
WHEREAS, the parties to this Amendment desire to, among other things,
amend the Purchase Agreement as hereinafter provided;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein contained, the parties hereto agree as follows:
Section 1. Defined Terms.
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"Amendment Effective Date" means the later to occur of (i) the day on
which the Agent shall have executed and delivered one or more counterparts of
this Amendment and shall have received one or more counterparts of this
Amendment executed by each of the parties hereto, and (ii) the conditions
precedent set forth in Section 5 hereof shall have been fulfilled.
Unless otherwise defined herein, the capitalized terms used herein
shall have the meanings assigned to such terms in the Purchase Agreement.
Section 2. Amendments to the Purchase Agreement.
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(a) The definition of "Applicable Division" set forth in Section 1.01
of the Purchase Agreement is hereby amended by replacing the language set
forth therein in its entirety with the following language:
""Applicable Division" means each of FMC's Chemical Products Group
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(including, without limitation, the Lithium Division), Pharmaceutical
Division, Food Ingredients Division, Hydrogen Peroxide Division and
FMC Biopolymers Division or any successor division which sells the
goods sold on the date hereof by any such division or on the date
hereof provides the services provided by such division."
(b) the definition of "Applicable Margin" set forth in Section 1.01 of
the Purchase Agreement is hereby amended by replacing the language set
forth therein in its entirety with the following language:
""Applicable Margin" means the sum of (i) 0.50% per annum, (ii) the
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Facility Fee Rate, (iii) the Euro-Dollar Margin, and (iv) the
Utilization Fee Rate."
(c) The definition of "Assignee Rate" set forth in Section 1.01 of the
Purchase Agreement is hereby amended by inserting the words "plus 0.50% per
annum" after the words "the Alternate Base Rate in effect on the first day
of such Settlement Period" in the last paragraph of the first proviso
thereto.
(d) The definition of "Commitment Termination Date" set forth in
Section 1.01 of the Purchase Agreement is hereby amended by replacing the
date "November 22, 2000" set forth in clause (a) thereof with the date
"November 20, 2002".
(e) The definition of "Defaulted Receivables" set forth in Section
1.01 of the Purchase Agreement is hereby amended by inserting the following
language at the end of clause (i) thereto: "provided, that for the purpose
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of computing the Net Receivables Pool Balance, the reference in this clause
(i) to ninety (90) days shall be deemed to be replaced with one hundred
twenty (120) days to the extent that the Outstanding Balance of the
Receivables which are more than ninety days but less than one hundred
twenty (120) days is not more than $1,500,000;".
(f) The definition of "Net Receivables Pool Balance" set forth in
Section 1.01 of the Purchase Agreement is hereby amended by deleting in its
entirety clause (vi) set forth therein, and by replacing the number "(vii)"
set forth therein with the number "(vi)".
(g) The definition of "Outstanding Balance" set forth in Section 1.01
of the Purchase Agreement is hereby amended by deleting the last sentence
set forth therein.
(h) The definition of "Purchase Limit" set forth in Section 1.01 of
the Purchase Agreement is hereby amended by replacing the dollar amount
"200,000,000" set forth therein with the amount "150,000,000".
(i) Section 1.01 of the Purchase Agreement is hereby amended by
deleting the definition "Unbilled Jetway Receivables" set forth therein and
by adding the following definitions in their proper alphabetical order:
""364 Day Credit Agreement" means the 364-Day Credit Agreement dated
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as of December 6, 2001 among FMC, the lenders party thereto, Citibank,
N.A., as Administrative Agent, Bank of America, N.A., as Syndication
Agent and ABN Amro Bank N.V. and First Union National Bank, as
Co-Documentation Agents, as in effect on the date hereof.
"Euro-Dollar Margin" shall have the meaning assigned to such term in
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the 364-Day Credit Agreement.
"Facility Fee Rate" shall have the meaning assigned to such term in
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the 364-Day Credit Agreement.
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"Utilization Fee Rate" shall have the meaning assigned to such term in
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the 364-Day Credit Agreement; provided, however, that if on any date
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of determination no fee will accrue under Section 2.08(b) of the
364-Day Credit Agreement, the Utilization Fee Rate on such date of
determination shall, for purposes of this Agreement only, be deemed to
be zero."
(j) Schedule III to the Purchase Agreement is hereby amended by
replacing it in its entirety with Annex A attached hereto.
Section 3. Amendment to the Fee Letter.
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The definition of "Specified Percentage" set forth in the Fee Letter
is hereby amended by (i) replacing the percentage number "0.150" following
the words "Required Tier-1 Ratings" with "0.250" set forth in the third
paragraph therein, and (ii) replacing the percentage number "0.325"
following the words "Required Tier-1 Ratings" with "0.500" set forth in the
third paragraph therein.
Section 4. Temporary Amendments.
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For the activity period beginning on February 1, 2002 and ending on
May 31, 2002 (the "Specified Activity Period"), the Purchase Agreement is hereby
amended as set forth below which are to be reported in the Investor Reports to
be delivered in the months of March 2002 through June 2002. As of the activity
period commencing after the Specified Activity Period, the amendments below
shall no longer be effective, and each of the definitions so amended below shall
be deemed to refer to the language in effect prior to such amendment or, in the
case of the definition of "Purchase Limit", as amended above.
(a) The definition of "Concentration Limit" set forth in Section 1.01
of the Purchase Agreement is hereby temporarily amended by inserting the
words ";provided, further, that the concentration limit for the three
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largest Obligors based upon amounts owing in respect of Receivables shall
be 10%" at the end thereto.
(b) The definition of "Loss Percentage" set forth in Section 1.01 of
the Purchase Agreement is hereby temporarily amended by replacing the
percentage "sixteen and one-half percent (16.5%)" set forth in clause
(a)(i) thereto with the percentage "thirty percent (30%)", and by replacing
the percentage "22%" set forth in clause (b)(i) thereto with the percentage
"forty percent (40%)".
(c) The definition of "Purchase Limit" set forth in Section 1.01 of
the Purchase Agreement is hereby temporarily amended by replacing the
dollar amount "150,000,000" set forth therein with the amount
"200,000,000".
(d) The definition of "Specified Percentage" set forth in Section 1.01
of the Purchase Agreement is hereby temporarily amended by replacing the
percentage "eighty percent (80%)" set forth in the proviso to clause (i)
thereto with the percentage "one hundred percent (100%)".
Section 5. Conditions Precedent to Effectiveness of this Amendment.
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The occurrence of the Amendment Effective Date shall be subject to the
fulfillment of each of the following conditions precedent:
(a) the Agent shall have received a counterpart of this Amendment
signed on behalf of each party hereto; and
(b) the Agent shall have received such instruments, certificates and
documents as the Agent shall have reasonably requested, all in form and
substance satisfactory to the Agent.
Section 6. Condition Subsequent.
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The Seller agrees that within thirty (30) days of the Amendment
Effective Date, it shall provide the Agent time stamped receipt copies of
proper UCC-3 financing statements filed in all appropriate jurisdictions.
Section 7. Representations and Warranties.
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The Seller and each Originator represents and warrants as to itself
that (i) this Amendment and each agreement or document entered into by it in
connection with this Amendment has been duly authorized, executed and delivered
by it and each of its obligations hereunder constitute a legal, valid and
binding obligation enforceable in accordance with its terms, (ii) immediately
after giving effect to this Amendment and the transactions contemplated
hereunder, its representations and warranties set forth in the Program Documents
are true and correct, (iii) no Default or Event of Default has occurred and is
continuing or will result from this Amendment or the transactions contemplated
hereby, and (iv) that the Lithium Division is a part of the Chemical Products
Group.
Section 8. Execution in Counterparts.
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This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Agreement by telecopier shall be as
effective as delivery of a manually executed counterpart of this Agreement.
Section 9. Governing Law.
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THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
Section 10. Severability of Provisions.
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Any provision of this Amendment which is prohibited or unenforceable
in any jurisdiction shall, as to jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
Section 11. Captions.
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The captions in this Amendment are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this agreement to
be executed and delivered by their duly authorized officers as of the date first
above written.
CITICORP NORTH AMERICA, INC., CITIBANK, N.A.
as Agent as Secondary Lender
By:_________________________ By:___________________________
Name: Name:
Title: Title:
FMC FUNDING CORPORATION, CIESCO, L.P.
as Seller By: Citicorp North America, Inc.,
as Attorney-in-Fact
By:___________________________ By:___________________________
Name: Name:
Title Title:
FMC CORPORATION FMC WYOMING CORPORATION
By:___________________________ By:___________________________
Name: Name:
Title: Title:
ANNEX A
SCHEDULE III
DEPOSIT BANKS,
DEPOSIT ACCOUNTS AND LOCK-BOXES
FMC CORPORATION
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Deposit Bank Deposit Accounts Lock-Box Numbers
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Bank of America 12332-02822 62242
42243
12452
52447
81885-00935 91377
91334
125-254772 845736
87657-60851 98201
6550105035
(ABA No. 026 009 593)
81888-10003
(ABA No. 071 000 039)
81880-10002
(ABA No. 071 000 039)
81886-10004
(ABA No. 071 000 039)
81884-10005
(ABA No. 071 000 039)
87657-60851
(ABA No. 071 000 039)
First Union 2000213788971 4195
National Bank 2190
3600
3750
2445
1910
Firstar Bank 827-777-4 00164
Wachovia Bank 3606-028949 101505
75688
75103
FMC FUNDING CORPORATION
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Bank of America 81888-11791
(ABA No. 071 000 039)
First Union 2000002921745
National Bank (ABA No. 053 000 219)
Wachovia Bank 6267-077595
(ABA No. 053 100 494)
Firstar Bank N.A. 821654936
(ABA No. 042 000 013)
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