Exhibit 10.3
AGREEMENT OF AMENDMENT
AGREEMENT OF AMENDMENT dated as of September 11, 2002 (the
"Amendment") among FMC FUNDING CORPORATION (together with its successors and
assigns, the "Seller"), FMC CORPORATION (together with its successors and
assigns, "FMC"), FMC WYOMING CORPORATION (together with its successors and
assigns, "FMC Wyoming", and together with FMC, the "Originators"), CORPORATE
ASSET FUNDING COMPANY, INC. (as successor by assignment from CIESCO, L.P.)
(together with its successors and assigns, the "Lender"), CITIBANK, N.A.
(together with its successors and assigns, the "Bank") and CITICORP NORTH
AMERICA, INC., as agent (together with its successors and assigns, the "Agent").
W I T N E S S E T H
WHEREAS, the Seller, FMC, the Lender, 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.
"Amendment Effective Date" means 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.
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings assigned to such terms in the Purchase Agreement.
Section 2. Amendments to the Purchase Agreement.
(a) Section 1.01 of the Purchase Agreement is hereby amended by adding
the following definitions in their proper alphabetical order:
""Required Tier-3 Ratings" means long-term senior unsecured debt
ratings which are less than the Required Tier-2 Ratings but which are
at least "BB" and "Ba2" from both S&P and Moody's, respectively.
"Required Tier-4 Ratings" means long-term senior unsecured debt
ratings which are less than the Required Tier-3 Ratings but which are
at least "BB-" and "Ba3" from both S&P and Moody's, respectively."
(b) The definition of "Purchase Limit" set forth in Section 1.01 of
the Purchase Agreement is hereby amended by replacing the dollar amount
"$150,000,000" set forth therein with the dollar amount "$100,000,000".
(c) The definition of "Receivable Interest" set forth in Section 1.01
of the Purchase Agreement is hereby amended by inserting the following
language at the end thereof:
"Notwithstanding the foregoing, the Receivable Interest on each day
which is a Liquidation Day shall equal one hundred percent (100%)."
(d) The definition of "Stress Factor" set forth in Section 1.01 of the
Purchase Agreement is hereby amended by replacing clause (ii) in its
entirety with the following language:
"(ii) on and after the date on which FMC shall cease to have the
Required Tier-3 Ratings, two and one-quarter (2.25)."
(e) Clause (ii) of Section 2.04(b) of the Purchase Agreement is hereby
amended by inserting the language "and FMC's senior unsecured long-term
debt ratings are at least the Required Tier-4 Ratings on such day"
following the words "a Liquidation Day for such Receivable Interest" set
forth in the first sentence therein.
(f) Clause (iii) of Section 2.04(b) of the Purchase Agreement is
hereby amended by replacing the language set forth therein in its entirety
with the following language:
"if such day is a Liquidation Day for such Receivable Interest or if
on such day FMC shall cease to have the Required Tier-4 Ratings, set
aside and hold in trust (and, at the request of the Agent, segregate)
for the Investors or the Banks that hold such Receivable Interest the
entire remainder of such percentage of Collections; provided, that if
amounts are set aside and held in trust on any Liquidation Day
occurring prior to the Termination Date, and thereafter during such
Settlement Period and the conditions set forth in Section 3.02 are
satisfied or waived by the Agent, such previously set aside amounts
shall, to the extent representing a return of Capital, be reinvested
in accordance with the preceding subsection (ii) on the day of such
subsequent satisfaction or waiver of conditions; provided, however,
that notwithstanding the foregoing if on any day the sum of the
Receivables Interests shall be greater than the Specified Percentage,
the Sevicer shall on each Business Day upon which Collections are
received by it remit such Collections to the Agent's Account to be
applied by the Agent in accordance with Section 2.04(d) until such
time as the Receivables Interest shall be equal to or less than the
Specified Percentage; and"
(g) Clause (ii) of Section 2.04(d) of the Purchase Agreement is hereby
amended by inserting the language "or if on such day FMC shall cease to
have the Required Tier-4
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Ratings" following the words "if such distribution occurs on a Liquidation
Day" set forth in the first sentence therein.
(h) Section 6.01 of the Purchase Agreement is hereby amended by adding
the language ", if FMC shall cease to have the Required Tier-2 Ratings,"
after the language "during the continuance of an Incipient Event of
Termination of the type specified in clause (g) of Section 7.01" set forth
in the second sentence therein.
(i) Section 6.02(g) of the Purchase Agreement is hereby amended by
inserting the language "; provided, that if at any time FMC shall have a
rating of BB- or below by S&P or Ba3 or below by Moody's, the Servicer
shall deliver the information specified in clauses (i) and (ii) above on a
daily basis" following the words "the aging of such Receivables" set forth
at the end of the first sentence therein.
(j) Section 6.03(a) of the Purchaser Agreement is hereby amended by
adding the language "or the failure of FMC to have a long term senior
unsecured debt rating of at least "BB+" from S&P or "Ba1" from Moody's"
after the language "following any Event of Termination or a Designated
Event" set forth in the first sentence set forth therein.
(k) Section 6.03(b) of the Purchase Agreement is hereby amended by
adding the language "or with respect to clauses (i) and (ii) below, the
failure of FMC to have at least the Required Tier-2 Ratings" after the
language "the designation of a Servicer other than FMC pursuant to Section
6.01" set forth therein.
(l) Section 7.01(o) of the Purchase Agreement is hereby amended by
replacing the words "Required Tier-2 Ratings" set forth therein with the
words "Required Tier-4 Ratings".
Section 3. Additional Fees.
In consideration of the amendments contemplated herein, the Seller
agrees to pay the Agent a fee (the "Amendment Fee") equal to (i) $150,000,
payable on the Amendment Effective Date, (ii) $100,000 payable October 31, 2002,
if the Facility Termination Date has not occurred on or prior to such date,
(iii) $100,000 payable November 30, 2002, if the Facility Termination Date has
not occurred on or prior to such date, and (iv) $150,000 payable December 30,
2002, if the Facility Termination Date has not occurred on or prior to such
date.
Section 4. Amendment to the Fee Letter.
(a) The definition of "Program Fee" set forth in paragraph 2 of the
Fee Letter is hereby amended by replacing the language set forth therein in
its entirety with the following language:
"The Seller agrees to pay the Agent on a monthly basis a fee (the
"Program Fee") at the Program Fee Specified Percentage of the daily
average aggregate outstanding Capital of the Receivable Interests
funded by CAFCO from the Closing Date until the Facility Termination
Date. As used herein the term "Program Fee Specified Percentage" means
(i) for each day that FMC shall have the Required Tier-1 Ratings,
0.25% per annum, (ii) for each day that FMC shall have the Required
Tier-2 Ratings, 0.25% per annum, (iii) for each day that FMC
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shall have the Required Tier-3 Ratings, 0.50% per annum, and (iv) for
each day that FMC shall have the Required Tier-4 Ratings, 0.50% per
annum."
(b) The definition of "Liquidity Fee" set forth in paragraph 3 of the
Fee Letter is hereby amended by replacing the language set forth therein in
its entirety with the following language:
"The Seller agrees to pay the Agent for the account of the Banks on a
monthly basis a fee (the "Liquidity Fee") equal to the Liquidity Fee
Specified Percentage of the daily average of the Purchase Limit then
in effect, less the outstanding Capital attributable to the Banks
under the Purchase Agreement from the Closing Date until the
Commitment Termination Date. As used herein the term "Liquidity Fee
Specified Percentage" means (i) for each day that FMC shall have the
Required Tier-1 Ratings, 0.25% per annum, (ii) for each day that FMC
shall have the Required Tier-2 Ratings, 0.50% per annum, (iii) for
each day that FMC shall have the Required Tier-3 Ratings, 0.625% per
annum, and (iv) for each day that FMC shall have the Required Tier-4
Ratings, 0.75% per annum; provided, that if FMC is split rated, the
lower rating applies; provided, however, that if the commitment fee or
other similar fee payable to the lenders under the credit facilities
to be entered into by FMC, Citibank, N.A., Bank of America, N.A. and
the other parties thereto is higher than the percentages listed in
each of clauses (i) through (iv) above for each of the respective
ratings levels, such higher percentage will be the Liquidity Fee
Specified Percentage."
Section 5. Additional Obligations.
Each of the Seller, FMC and FMC Wyoming covenants and agrees that
within sixty (60) days of the Amendment Effective Date, it will permit the
Agent, or its agents or representatives (including independent public
accountants, which may be the Seller's independent public accountants), (i) to
conduct audits of the Receivables, the Related Security and the related books
and records and collections systems of the Seller, FMC and FMC Wyoming, (ii) to
examine and make copies of and abstracts from all books, records and documents
(including, without limitation, computer tapes and disks) in the possession or
under the control of the Seller, FMC and FMC Wyoming relating to Pool
Receivables and the Related Security, including, without limitation, the related
Contracts, and (iii) to visit the offices and properties of the Seller, FMC and
FMC Wyoming for the purpose of examining such materials described in clause (ii)
above, and to discuss matters relating to Pool Receivables and the Related
Security or the Seller's, FMC's and FMC Wyoming's performance hereunder or under
the Contracts with any of the officers or employees of the Seller, FMC or FMC
Wyoming having knowledge of such matters.
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Section 6. Representations and Warranties.
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, and (iii) no Event of Termination or Incipient Event of
Termination has occurred and is continuing or will result from this Amendment or
the transactions contemplated hereby.
Section 7. Execution in Counterparts.
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 Amendment by telecopier shall be as
effective as delivery of a manually executed counterpart of this Amendment.
Section 8. Governing Law.
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
Section 9. Severability of Provisions.
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 10. Captions.
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: /s/ Richard C. Simons By: /s/ Richard C. Simons
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Name: Richard C. Simons Name: Richard C. Simons
Title: Managing Director Title: Managing Director
FMC FUNDING CORPORATION CORPORATE ASSET FUNDING COMPANY, INC.
By: Citicorp North America, Inc.,
as Attorney-in-Fact
By: /s/ Thomas C. Deas, Jr. By: /s/ Richard C. Simons
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Name: Thomas C. Deas, Jr. Name: Richard C. Simons
Title: President Title: Managing Director
FMC CORPORATION FMC WYOMING CORPORATION
By: /s/ Thomas C. Deas, Jr. By: /s/ Thomas C. Deas, Jr.
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Name: Thomas C. Deas, Jr. Name: Thomas C. Deas, Jr.
Title: Vice President & Treasurer Title: Vice President & Treasurer