Exhibit 10.16
THIRD AMENDMENT TO
RECEIVABLES PURCHASE
AGREEMENT
THIRD AMENDMENT, dated as of July 23, 2008 (this
“ Amendment ”), to the Receivables Purchase
Agreement, dated as of July 25, 2007 (as amended, restated,
modified or supplemented from time to time, the “ RPA
”), by and among Olin Funding Company LLC (the “
Seller ”), CAFCO, LLC and Variable Funding Capital
Company LLC, as Investors, Citibank, N.A. and Wachovia Bank,
National Association (“ Wachovia ”), as Banks,
Citicorp North America, Inc. (“ Citi ”), as the
Program Agent, Citi and Wachovia, as Investor Agents, and Olin
Corporation (“ Parent ”), as Collection
Agent. Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to such terms in the
RPA.
WHEREAS, pursuant to Section 11.01 of the RPA,
the parties hereto have agreed to amend the RPA as described
herein.
NOW THEREFORE, the parties hereto agree as
follows:
1. Amendments to
the RPA . Effective as of the date on which all of
the conditions precedent set forth in Section 3 hereof shall
have been satisfied (the “ Effective Date
”):
a. Section 1.01 of
the RPA is amended by adding the following new definition thereto
in proper alphabetical order:
“ Accounting Based Consolidation
Event ” means the consolidation, for financial and/or
regulatory accounting purposes, of all or any portion of the assets
and liabilities of any Investor that are the subject of this
Agreement, the Asset Purchase Agreement or any other Transaction
Document with all or any portion of the assets and liabilities of
Citibank, the Program Agent or any Investor Agent or any of their
affiliates as the result of the existence of, or occurrence of any
change in, accounting standards or the issuance of any
pronouncement, interpretation or release, by any accounting body or
any other body charged with the promulgation or administration of
accounting standards, including, without limitation, the Financial
Accounting Standards Board, the International Accounting Standards
Board, the American Institute of Certified Public Accountants, the
Federal Reserve Board of Governors and the Securities and Exchange
Commission, and shall occur as of the date that such consolidation
(i) shall have occurred with respect to the financial
statements of Citibank, the Program Agent or any Investor Agent or
any of their affiliates or (ii) shall have been required to
have occurred, regardless of whether such financial statements were
prepared as of such date.
b. The definition of
“Bank Commitment” set forth in Section 1.01 of the RPA
is amended and restated in its entirety to read as
follows:
“ Bank Commitment ” of any
Bank means, (a) with respect to Citibank, $75,000,000 or such
amount as reduced or increased by any Assignment and Acceptance
entered into among Citibank, another Bank, the Investor Agent for
Citibank and the Program Agent or (b) with respect to a Bank (other
than Citibank) that has entered into an Assignment and Acceptance,
the amount set forth therein as such Bank’s Bank Commitment,
in each case as such amount may be reduced or increased by an
Assignment and Acceptance entered into among such Bank, an Eligible
Assignee, the Investor Agent for such Bank and the Program Agent,
and as may be further reduced (or terminated) pursuant to the next
sentence. Any reduction (or termination) of the Purchase
Limit pursuant to the terms of this Agreement shall reduce ratably
(or terminate) each Bank’s Bank Commitment.
c. The definition of
“Commitment Termination Date” set forth in Section 1.01
of the RPA is amended by deleting the date “July 23,
2008” appearing in clause (a) thereof and replacing it with
the date “July 22, 2009”.
d. The definition of
“Investor Purchase Limit” set forth in Section 1.01 of
the RPA is amended and restated in its entirety to read as
follows:
“ Investor Purchase Limit ”
means, with respect to the CAFCO Group, $75,000,000. Any
reduction (or termination) of the Purchase Limit by Seller pursuant
to Section 2.01(b) shall reduce ratably (or terminate) each
Group’s Investor Purchase Limit.
e. The definition of
“Maximum Percentage Factor” set forth in Section 1.01
of the RPA is amended and restated in its entirety to read as
follows:
“ Maximum Percentage Factor ”
means 89.95% or, if Weekly Reports are required to be delivered
pursuant to Section 6.02(g)(ii), 95.86%.
f. The definition of
“Purchase Limit” set forth in Section 1.01 of the RPA
is amended and restated in its entirety to read as
follows:
“ Purchase Limit ” means
$75,000,000, as such amount may be reduced pursuant to Section
2.01(b). References to the unused portion of the
Purchase Limit shall mean, at any time, the Purchase Limit, as then
reduced pursuant to Section 2.01(b), minus the then outstanding
Capital of Receivable Interests under this Agreement.
g.
Section 2.08(a) of the RPA is amended and restated in its
entirety to read as follows:
“(a) If CNAI, any Investor, any
Investor Agent, any Bank, any entity (including any bank or other
financial institution providing liquidity and/or credit support to
any Investor in connection with such Investor’s commercial
paper program) which purchases or enters into a commitment to
purchase Receivable Interests or interests therein, or any of their
respective Affiliates (each an “ Affected Person
”) determines that due to any change in any law or regulation
or any guideline or request regarding the capital required or
expected to be maintained by such Affected Person from any central
bank or other governmental authority (whether or not having the
force of law), in each case made subsequent to the date hereof, or
the occurrence of any Accounting Based Consolidation Event (i) the
amount of capital required or expected to be maintained by such
Affected Person is increased by or based upon the
existenc
