EXHIBIT 10.262
Second Amendment
Dated as of November 20, 2000
to
Receivables Sale Agreement
Dated as of December 11, 1998
This Amendment (the "Amendment"), dated as of November 20, 2000, is
entered into among Crompton & Knowles Receivables Corporation (the "Seller"),
Crompton Corporation (as successor by merger with Crompton & Knowles
Corporation) (the "Initial Collection Agent"), Windmill Funding Corporation, a
Delaware corporation ("Windmill"), ABN AMRO Bank N.V., as Windmill'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 Windmill, the Enhancer and the Liquidity Provider (the "Agent").
Reference is hereby made to that certain Receivables Sale Agreement,
dated as of December 11, 1998 (as amended, supplemented or otherwise modified
through the date hereof, the "Sale Agreement"), among the Seller, the Initial
Collection Agent, Windmill, 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. Subject to the following terms and conditions, including
without limitation the conditions precedent set forth in Section 2, 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) Each reference to "Windmill" appearing in the Sale Agreement
is amended to be "Amsterdam". Each reference to "Crompton & Knowles Credit
Agreement" appearing in the Sale Agreement is amended to be "Crompton
Corporation Credit Agreement".
(b) The quotient used to determine the Purchase Interest in
Section 1.1(a) is amended to read as follows:
I + PRP
ER
where:
I = the outstanding Investment of such Purchaser at such time;
ER = the Eligible Receivables Balance at such time; and
PRP = the Purchaser Reserve Percentage at such time.
(c) The word "Reserve" in the second line after the quotient
used to determine the Purchase Interest in Section 1.1(a) is amended to be
"Purchaser Reserve Percentage".
(d) Sections 1.5(a) and (b) of the Sale Agreement are hereby
amended in its entirety as follows:
(a) General. If at any time before the Liquidity Termination Date
the Eligible Receivables Balance is less than the sum of the Aggregate
Investment (or, if a Termination Event exists, the Matured Aggregate
Investment) plus the Aggregate Reserve, the Seller shall pay to the Agent an
amount equal to such deficiency for application to reduce the Investments of
the Purchasers ratably in accordance with the principal amount of their
respective Investments, applied first to Prime Tranches and second to the
other Tranches with the shortest remaining maturities unless otherwise
specified by the Seller. Any amount so applied to reduce Windmill's
Investment shall be deposited in the Special Transaction Subaccount.
(b) Deemed Collections. If on any day the outstanding balance of a
Receivable is reduced or cancelled as a result of any defective or rejected
goods or services, any cash discount or adjustment (including any adjustment
resulting from the application of any special refund or other discounts or any
reconciliation), any setoff or credit (whether such claim or credit arises out
of the same, a related, or an unrelated transaction) including without
limitation, a Receivable Setoff or other similar reason not arising from the
financial inability of the Obligor to pay undisputed indebtedness, the Seller
shall be deemed to have received on such day a Collection on such Receivable
in the amount of such reduction or cancellation. If on any day any
representation, warranty, covenant or other agreement of the Seller related to
a Receivable is not true or is not satisfied, the Seller shall be deemed to
have received on such day a Collection in the amount of the outstanding
balance of such Receivable. All such Collections deemed received by the
Seller under this Section 1.5(b) shall be remitted by the Seller to the
Collection Agent in accordance with Section 5.1(i).
(e) Subsections (a), (b) and (c) of Section 4.1 of the Sale
Agreement are hereby amended in their entirety as follows:
(a) Corporate Existence and Power. Each of the Seller and each
Crompton & Knowles Entity is either a corporation or limited liability company
duly organized, validly existing and in good standing under the laws of its
state of organization and has all corporate or organizational power and
authority and all governmental licenses, authorizations, consents and
approvals required to carry on its business in each jurisdiction in which its
business is now conducted, except where failure to obtain such license,
authorization, consent or approval would not have a material adverse effect on
(i) its ability to perform its obligations under, or the enforceability of,
any Transaction Document, (ii) its business or financial condition, (iii) the
interests of the Agent or any Purchaser under any Transaction Document or
(iv) the enforceability or collectibility of any Receivable.
(b) Corporate or Organizational Authorization and No Contravention.
The execution, delivery and performance by each of the Seller and each
Crompton & Knowles Entity of each Transaction Document to which it is a party
(i) are within its corporate or organizational powers, as applicable,
(ii) have been duly authorized by all necessary corporate or organizational
action, as applicable, (iii) do not contravene or constitute a default under
(A) any applicable law, rule or regulation, (B) its or any Subsidiary's
charter, by-laws or operating agreement, as applicable or (C) any agreement,
order or other instrument to which it or any Subsidiary is a party or its
property is subject and (iv) will not result in any Adverse Claim on any
Receivable or Collection or give cause for the acceleration of any
indebtedness of the Seller, any Crompton & Knowles Entity or any Subsidiary.
(c) Conduct of Business. The Seller will perform, and will cause
each Crompton & Knowles Entity and Subsidiary to perform, all actions
necessary to remain duly organized, validly existing and in good standing in
its jurisdiction of organization and to maintain all requisite authority to
conduct its business in each jurisdiction in which it conducts business.
(f) Section 5.1(a)(v) of the Sale Agreement is hereby amended in
its entirety to be and to read as follows:
(v) Crompton Corporation Credit Agreement Certificate.
A copy of the financial information, certificates and other documentation
described in Sections 5.01(a) through (h) of the Crompton Corporation Credit
Agreement, delivered as and when required by such Section 5.01; and
(g) The term "A-1+" appearing in Section 9.8(d) of the Sale
Agreement is hereby amended in its entirety to be "A-1".
(h) The defined term "Aggregate Commitment" appearing in
Schedule I to the Sale Agreement is amended in its entirety to be and to read
as follows:
"Aggregate Commitment" means $204,000,000, as such amount
may be reduced pursuant to Section 1.6.
(i) A new defined term "Aggregate Reserve" is hereby added to
Schedule I to the Sale Agreement, as alphabetically appropriate, as follows:
"Aggregate Reserve" means, at any time at which such amount
is calculated, the sum of the Loss Reserve, Dilution Reserve and Discount
Reserve.
(j) The defined term "Crompton & Knowles Credit Agreement"
appearing in Schedule I to the Sale Agreement is hereby amended in its
entirety to be and to read as follows:
"Crompton Corporation Credit Agreement" means that certain Five Year
Credit Agreement, dated as of October 28, 1999, among CK Witco Corporation
(now known as Crompton Corporation), the Eligible Subsidiaries referred to
therein, the Banks listed therein, The Chase Manhattan Bank, as Syndication
Agent, Citibank N.A., as Administrative Agent, and Bank of America and
Deutsche Bank Securities Inc., as Co-Documentation Agents, as such may be
amended, modified or supplemented from time to time in accordance with the
terms thereof.
(k) The defined term "Dilution Ratio" appearing in Schedule I to
the Sale Agreement is hereby amended in its entirety to be and to read as
follows:
"Dilution Ratio" means, for any period, the ratio computed by
dividing (a) the aggregate amount of payments owed by the Seller pursuant to
the first sentence of Section 1.5(b) during such period by (b) the aggregate
amount of Collections received during such period.
(l) The number "2" appearing in the defined term "Dilution
Reserve" appearing in Schedule I to the Sale Agreement is hereby amended to be
"3".
(m) the defined term "Dilution Reserve Trigger Event" appearing
in Schedule I to the Sale Agreement is amended in its entirety to be and to
read as follows:
"Dilution Reserve Trigger Event" shall mean at any time the Parent's
long-term unsecured, unsubordinated indebtedness is rated less than "BBB-" by
S&P and "Baa3" by Moody's (or S&P or Moody's has withdrawn or suspended such
rating).
(n) The defined term "Discount Reserve" appearing in Schedule I
to the Sale Agreement is amended in its entirety to read as follows:
"Discount Reserve" means, at any time, the product of (a) 1.5
multiplied by (b) the rate announced by ABN AMRO as its "Prime Rate" (which
may not be its best or lowest rate) plus 100 basis points (1.00%) multiplied
by (c) Aggregate Investment multiplied by (d) a fraction, the numerator of
which is the average Turnover Rate as of the last day of the last three
calendar months and the denominator of which is 360.
(o) Subsection (vi) of the defined term "Eligible Receivables"
appearing in Schedule I to the Sale Agreement is amended in its entirety to be
and to read as follows:
(vi) which arises under a contract that is in full force
and effect and constitutes the legal, valid and binding obligation of the
related Obligor enforceable against such Obligor in accordance with its terms
subject to no offset (other than, prior to the Receivable Setoff Downgrade
Event, a Receivable Setoff), counterclaim, defense or other Adverse Claim, and
is not an executory contract or unexpired lease within the meaning of
Section 365 of the Bankruptcy Code;
(p) The defined term "Eligible Receivables Balance" appearing in
Schedule I to the Sale Agreement is amended in its entirety to be and to read
as follows:
"Eligible Receivables Balance" means, at any time, (a) the aggregate
outstanding principal balance of all Eligible Receivables less
(b)(1) the portion of the aggregate outstanding principal balance of Eligible
Receivables which exceed the Concentration Limit plus (2) the portion of the
aggregate outstanding principal balance of Eligible Receivables originated by
Paratec Elastomers LLC which exceed $5,000,000 plus (3) the aggregate
principal amount of all Receivable Setoffs in excess of 5% of the Eligible
Receivables Balance.
(q) The date "December 8, 2000" 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 "November 19, 2001".
(r) The defined term "Loss Reserve" appearing in Schedule I to
the Sale Agreement is amended in its entirety to be and to read as follows:
"Loss Reserve" means, at any time, the product of (i) the greatest
of (a) .12, (b) 0.75 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) 0.75 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.
(s) The defined term "Parent" appearing in Schedule I to the
Sale Agreement is amended in its entirety to be and to read as follows:
"Parent" means Crompton Corporation, a Delaware corporation.
(t) The defined term "Originators" appearing in Schedule I to
the Sale Agreement is amended in its entirety to be and to read as follows:
"Originators" means each of Uniroyal Chemical Company, Inc., Davis
Standard Corporation, Paratec Elastomers LLC and Crompton Corporation.
(u) The defined term "Permitted Investments" appearing in
Schedule I to the Sale Agreement is amended in its entirety to be and to read
as follows:
"Permitted Investments" means (a) evidences of indebtedness,
maturing within thirty (30) days after the date of purchase thereof, issued
by, or guaranteed by the full faith and credit of, the federal government of
the USA, (b) repurchase agreements with banking institutions or broker-dealers
the short-term unsecured obligations of which is rated at least "A-1" (or the
equivalent) by S&P and at least "P-1" (or the equivalent) by Moody's
registered under the Securities Exchange Act of 1934 which are fully secured
by obligations of the kind specified in clause (a), (c) money market funds
(i) rated not lower than the highest rating category from Moody's and "AAA m"
or "AAAm-g," from S&P or (ii) which are otherwise acceptable to the Rating
Agencies or (d) commercial paper issued by any corporation incorporated under
the laws of the USA and rated at least "A-1" (or the equivalent) by S&P and at
least "P-1" (or the equivalent) by Moody's.
(v) The defined term "Purchase Limit" appearing in Schedule I to
the sale Agreement is hereby amended in its entirety to be and to read as
follows:
"Purchase Limit" means $200,000,000.
(w) New defined terms "Receivable Setoff" and "Receivable Setoff
Downgrade Event" shall be added to Schedule I to the Sale Agreement, as
alphabetically appropriate, as follows:
"Receivable Setoff" means the reduction of any Receivable of an
Obligor by any amount owing by the Seller to such Obligor.
"Receivable Setoff Downgrade Event" shall mean at any time the
Originator's long-term unsecured, unsubordinated indebtedness is rated less
than "BBB-" by S&P and "Baa3" by Moody's (or S&P or Moody's has withdrawn or
suspended such rating).
(x) The defined term "Reserve" appearing in Schedule I to the
Sale Agreement is hereby deleted in its entirety.
(y) The defined term "Reserve Percentage" appearing in
Schedule I to the Sale Agreement is hereby amended in its entirety to read as
follows:
"Reserve Percentage" means, at any time, the quotient obtained by
dividing (a) the Aggregate Reserve by (b) the Eligible Receivables Balance.
(z) Subsections (f) and (j) of the defined term "Termination
Event" appearing in Schedule I to the Sale Agreement are amended in their
entirety to be and to read as follows:
(f) the average of the Delinquency Ratios as of the end of each of
the most recent three calendar months exceeds 20%, the average of the Default
Ratios as of the end of each of the most recent three calendar months exceeds
20%, the Dilution Ratio at the end of any calendar month measured for the
three month calendar period then ending exceeds 7.5% or the Loss-to-
Liquidation Ratio at the end of any calendar month measured for the three
month calendar period then ending exceeds 1%; or
(j) the average of the Turnover Rates for each of the most recent
three calendar months exceeds 90 days; or
(aa) The defined term "Turnover Rate" appearing in Schedule I to
the Sale Agreement is hereby amended in its entirety to read as follows:
"Turnover Rate" means, for any period for which it is calculated,
the product, expressed in days, of (A) (1) the outstanding balance of all
Receivables at the beginning of such period divided by (2) the average daily
Collections (other than Deemed Collections) during such period multiplied by
(B) 30.
(bb) Schedule II to the Sale Agreement is hereby amended to in
its entirety to be and to read as Schedule II attached hereto.
(cc) Exhibit E to the Sale Agreement is hereby amended in its
entirety to be and to read as Exhibit E attached hereto.
(dd) Exhibit G to the Sale Agreement is hereby amended in its
entirety to be and to read as Exhibit G attached hereto.
Section 2. Section 1 of this Agreement shall become effective only
once the Agent has received, in form and substance satisfactory to the Agent,
all documents and certificates as the Agent may reasonably request and all
other matters incident to the execution hereof are satisfactory to the Agent;
provided, however, that notwithstanding anything in this Amendment or any
other Transaction Document to the contrary, Paratec Elastomers LLC shall not
be deemed an Originator and the accounts receivable originated by Paratec
Elastomers LLC and sold to the Seller shall not be deemed Eligible Receivables
until such time as the Agent shall have received opinion letters of Thacher
Proffitt & Wood and John Ferguson, Esq. with respect to Paratec Elastomers LLC
and the Receivables originated by Paratec Elastomers LLC, each such opinion
letter to be substantially similar to that delivered with respect to Crompton
Corporation and to be in form and substance reasonably satisfactory to the
Agent.
Section 3. 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 4. 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 5. 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:
Windmill Funding Corporation
By:
Title:
Crompton & Knowles Receivables
Corporation
By:
Title:
Crompton Corporation (as successor by
merger with Crompton & Knowles
Corporation)
By:
Title:
Schedule II
Liquidity Providers and Commitments of Committed Purchasers
Name of Liquidity Provider Commitment
ABN AMRO Bank N.V. $183,600,000
Enhancer
ABN AMRO Bank N.V. $20,400,000
Exhibit E
Addresses and Names of Seller and Originators
1. Locations. (a) The chief executive office of the Seller and each
Originator are located at the following address:
Crompton & Knowles Receivables Corporation
Benson Road
Middlebury, Connecticut 06749
Uniroyal Chemical Company, Inc.
Benson Road
Middlebury, Connecticut 06749
Crompton Corporation
One American Lane
Greenwich, Connecticut 06831-2559
Davis Standard Corporation
1 Extrusion Drive
Pawcatuck, Connecticut 06379
Paratec Elastomers LLC
Benson Road
Middlebury, Connecticut 06749
No such address was different at any time since December 31, 1997
(b) The following are all the locations where the Seller and each
Originator directly or through its agents maintain any Records:
One American Lane
Greenwich, Connecticut 06831-2559
World Headquarters
Benson Road
Middlebury, Connecticut 06749
2. Names. The following is a list of all names (including trade names or
similar appellations) used by the Seller and each Originator or any of its
divisions or other business units:
None.
Exhibit G
Lock Boxes and Lock-Box Banks
Bank Lock-Box Number Collection Account
Citibank 8429 and 2049 4049-8376
Fleet Bank 30586 058-8001
Mellon Bank, N.A. 360-313 010-642
014-3626 005-3575
Citibank Delaware 7302 30444171