Exhibit 10.2
A MENDMENT N O . 3 TO R ECEIVABLES P URCHASE A GREEMENT
T HIS A MENDMENT N O
. 3 T O R
ECEIVABLES P URCHASE A GREEMENT (the “Amendment” ), dated as
of July 9, 2009, is entered into among Arch Chemicals
Receivables Corp. (the “Seller” ), Arch
Chemicals, Inc. (the “Servicer” ), Three Pillars
Funding LLC ( “TPF” ) and SunTrust Robinson
Humphrey, Inc. (f/k/a SunTrust Capital Markets, Inc.) (the
“Administrator” );
Reference is hereby made to that
certain Receivables Purchase Agreement, dated as of June 27,
2005, as amended among the Seller, the Servicer, TPF and the
Administrator (the “Receivables Purchase
Agreement” ). Terms used herein and not otherwise defined
herein which are defined in the Receivables Purchase Agreement or
the other Transaction Documents shall have the same meaning herein
as defined therein.
N OW ,
THEREFORE , for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties
hereto hereby agree that the Receivables Purchase Agreement shall
be and is hereby amended as follows:
Section 1.
Upon execution by the parties hereto
in the space provided for that purpose below, the Receivables
Purchase Agreement shall be, and it hereby is, amended as
follows:
(a) Section 1.2 of the
Receivables Purchase Agreement is hereby amended in its entirety
and as so amended shall read as follows:
Section 1.2. Incremental
Purchases. The Seller
shall provide the Administrator with at least two (2) Business
Days’ prior written notice in a form set forth as Exhibit II
hereto of each Incremental Purchase (each, a “ Purchase
Notice ”). Each Purchase Notice shall be subject to
Section 6.2 hereof and, except as set forth below, shall be
irrevocable and shall specify the requested Purchase Price (which
shall not be less than $1,000,000 or a larger integral multiple of
$100,000) and the Purchase Date. Following receipt of a Purchase
Notice, the Administrator will determine whether TPF will fund the
requested Incremental Purchase through the issuance of Commercial
Paper or through a Liquidity Funding. If TPF determines to fund an
Incremental Purchase through a Liquidity Funding, the Seller may
cancel the Purchase Notice or, in the absence of such a
cancellation, the Incremental Purchase will be funded through a
Liquidity Funding. On each Purchase Date, upon satisfaction of the
applicable conditions precedent set forth in Article VI, TPF
shall deposit to the Facility Account, in immediately available
funds, no later than 2:00 p.m. (Atlanta time), an amount equal
to the requested Purchase Price.
(b) Section 1.3 of the
Receivables Purchase Agreement is hereby amended in its entirety
and as so amended shall read as follows:
Section 1.3.
Decreases. The Seller
shall provide the Administrator with prior written notice in
conformity with the Required Notice Period in the form of Exhibit
XI hereto (a “ Reduction Notice ”) of any
proposed reduction of Aggregate Invested Amount. Such Reduction
Notice shall designate (a) the date (the “ Proposed
Reduction Date ”) upon which any such reduction of
Aggregate Invested Amount shall occur (which date shall give effect
to the applicable Required Notice Period), and (b) the amount
of Aggregate Invested Amount to be reduced which shall be applied
ratably to all Receivable Interests in accordance with the
respective Invested Amounts thereof (the “ Aggregate
Reduction ”). Only one (1) Reduction Notice shall be
outstanding at any time.
(c) Section 1.5 of the
Receivables Purchase Agreement is hereby amended in its entirety
and as so amended shall read as follows:
Section 1.5. Payment
Requirements and Computations. All amounts to be paid or deposited by a Seller
Party pursuant to any provision of this Agreement shall be paid or
deposited in accordance with the terms hereof no later than
12:00 noon (Atlanta time) on the day when due in immediately
available funds, and if not received before 12:00 noon
(Atlanta time) shall be deemed to be received on the next
succeeding Business Day. If such amounts are payable to the
Administrator for the account of TPF, they shall be paid to the
Administrator’s Account, for the account of TPF until
otherwise notified by the Administrator. Upon notice to the Seller,
the Administrator may debit the Facility Account for all amounts
due and payable hereunder. All computations of Yield which accrues
at the Alternate Base Rate shall be made on the basis of a year of
365 or 366 days, as applicable, for the actual number of days
elapsed. All computations of CP Costs, Yield (other than Yield
which accrues at the Alternate Base Rate), per annum fees
calculated as part of any CP Costs, per annum fees hereunder and
per annum fees under the Fee Letter shall be made on the basis of a
year of 360 days for the actual number of days elapsed. If any
amount hereunder shall be payable on a day which is not a Business
Day, such amount shall be payable on the next succeeding Business
Day.
(d) The reference to “New
York” appearing in Section 4.4 of the Receivables
Purchase Agreement is hereby deleted and replaced with
“Atlanta.”
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(e) Section 7.1(a)(iii) of the
Receivables Purchase Agreement is hereby amended in its entirety
and as so amended shall read as follows:
(iii) Compliance Certificate.
Together with the financial statements required hereunder, a
compliance certificate in substantially the form of Exhibit V which
shall include, without limitation, calculations of the Consolidated
Interest Coverage Ratio of Arch and the Consolidated Leverage Ratio
of Arch, which is signed by such Seller Party’s Authorized
Officer, and which is dated the date of such annual financial
statement or such quarterly financial statement, as the case may
be.
(f) Section 8.5 of the
Receivables Purchase Agreement is hereby amended in its entirety
and as so amended shall read as follows:
Section 8.5. Receivables
Reports. The Servicer
shall prepare and forward to the Administrator (a) on each
Monthly Reporting Date, a Monthly Report and an electronic file of
the data contained therein, (b) at such times as the
Administrator may request upon reasonable advance notice, a listing
by Obligor of all Receivables together with an aging of such
Receivables, (c) on the last Business Day of each month from
June through and including November, a Collateral Certificate as of
the 15th day of such month and an electronic file of the data
contained therein; provided, however, that no Collateral
Certificate shall be due in any such month when no Invested Amount
is outstanding unless the Seller requests a Purchase during such
month and has not delivered a Collateral Certificate or a Monthly
Report within the two weeks preceding the proposed Purchase Date,
and (d) upon the occurrence of a Weekly Reporting Event, a
Weekly Collateral Certificate showing calculations as of the end of
each prior week on each Weekly Reporting Date.
(g) Section 9.1(f) of the
Receivables Purchase Agreement is hereby amended in its entirety
and as so amended shall read as follows:
(f) Failure of Arch or any of its
Subsidiaries other than the Seller to pay Indebtedness in excess of
$10,000,000 in aggregate principal amount (hereinafter, “
Material Indebtedness ”) when due (after giving effect
to any applicable grace periods with respect thereto); or the
default by Arch or any of its Subsidiaries other than the Seller in
the performance of any term, provision or condition contained in
any agreement under which any Material Indebtedness was created or
is governed, the effect of which is to cause, or to permit the
holder or holders of such Material Indebtedness to cause, such
Material Indebtedness to become due
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prior to its stated maturity and,
unless such Material Indebtedness is earlier accelerated, such
default is not cured within 15 days after its occurrence; or any
Material Indebtedness of Arch or any of its Subsidiaries other than
the Seller shall be declared to be due and payable or required to
be prepaid (other than by a regularly scheduled payment) prior to
the date of maturity thereof.
(h) The reference to
“3.0%” appearing in Section 9.1(h)(i) is
hereby deleted and replaced with
“2.0%.”
(i) The reference to
“6.5” appearing in Section 9.1(h)(iv) is
hereby deleted and replaced with
“6.0.”
(j) Section 9.1 of the
Receivables Purchase Agreement is hereby amended by inserting a new
clause (r) and a new clause (s) immediately at the end
thereof as follows:
(r) The Consolidated Leverage Ratio
of Arch (as defined in the Credit Agreement) as of the last day of
any period of four consecutive fiscal quarters of Arch exceeds
3.5:1.0.
(s) The Consolidated Interest
Coverage Ratio of Arch (as defined in the Credit Agreement) for any
period of for consecutive fiscal quarters of Arch is less than
3.0:1.0.
(k) A new clause (d) is hereby
added to Section 13.4 of the Receivables Purchase Agreement as
follows:
(d) Notwithstanding any other
express or implied agreement to the contrary contained herein, the
parties agree and acknowledge that each of them and each of their
employees, representatives, and other agents may disclose to any
and all persons, without limitation of any kind, the tax treatment
and tax structure of the transaction and all materials of any kind
(including opinions or other tax analyses) that are provided to any
of them relating to such tax treatment and tax structure, except to
the extent that confidentiality is reasonably necessary to comply
with U.S. federal or state securities laws. For purposes of
this paragraph, the terms “tax treatment” and
“tax structure” have the meanings specified in Treasury
Regulation section 1.6011-4(c).
(l) A new defined term
“Arch” is hereby added to Exhibit I of the
Receivables Purchase Agreement in the appropriate alphabetical
order:
Arch: Arch Chemicals, Inc.
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(m) The defined term
“Business Day” appearing in Exhibit I of
the Receivables Purchase Agreement is hereby amended in its
entirety and as so amended shall read as follows:
Business Day
: Any day on which banks are not
authorized or required to close in New York, New York or
Atlanta, Georgia, and The Depository Trust Company of New York
is open for business, and, (i) if the applicable Business Day
relates to any computation or payment to be made with respect to
the LIBO Rate, any day on which dealings in dollar deposits are
carried on in the London interbank market, and (ii) if the
applicable Business Day relates to any computation or payment to be
made with respect to any Receivable Interests funded through the
issuance of Commercial Paper or any CP Costs, any day on which
commercial paper markets in the United States are open.
(n) Clauses (c), (d) and
(g) of the defined term “Concentration
Limit” appearing in Exhibit I of the Receivables Purchase
Agreement are hereby amended in their entireties and as so amended
shall read as follows:
(c) For any Special Obligor, 22.5%
of the aggregate Outstanding Balance of all Eligible
Receivables;
(d) For any Obligor not covered by
clause (a), (b) or (c) of this definition, 4.0% of
the aggregate Outstanding Balance of all Eligible
Receivables;
(g) For all Receivables with terms
allowing for payment within 91-150 days after invoice date, 10.0%
of the aggregate Outstanding Balance of all Eligible Receivables,
provided, however, for all Receivables with terms allowing
for payment within 121-150 days after invoice date, the
Concentration Limit shall equal 3.0% of the aggregate Outstanding
Balance of all Eligible Receivables;
(o) The defined term
“Credit Agreement” appearing in Exhibit I of the
Receivables Purchase Agreement is hereby amended in its entirety
and as so amended shall read as follows:
Credit Agreement
: That certain Revolving Credit
Agreement, dated as of June 15, 2006, among the Servicer, Banc
of America Securities, L.L.C., as Joint Lead Arranger and Joint
Book Manager, Bank of America, National Association, and Citizens
Bank of Massachusetts, as Co-Syndication Agents, the lenders party
thereto, J.P. Morgan Securities Inc., as Joint Lead Arranger and
Joint Book Manager, SunTrust Bank, as Documentation
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Agent, and JPMorgan Chase
Bank, N.A., as Administrative Agent, as amended through the
date of Amendment No. 3 to this Agreement without giving
effect to any amendments thereto after the date of Amendment
No. 3 to this Agreement unless specifically consented to in
writing by the Administrator.
(p) The defined term
“Default Rate” appearing in Exhibit I of the
Receivables Purchase Agreement is hereby amended in its entirety
and as so amended shall read as follows:
Default Rate
: A rate per annum equal to the sum
of (i) the Alternate Base Rate plus (ii) 3.0%, changing
when and as the Alternate Base Rate changes.
(q) The definition of, and any and
all references to the defined terms “Downgraded Liquidity
Bank” and “Downgrading Event” are
hereby deleted from the Receivables Purchase Agreement.
(r) The reference to “120
days” appearing in clause (v) of the defined term
“Eligible Receivable” appearing in Exhibit I of
the Receivables Purchase Agreement is hereby deleted and replaced
with “150 days.”
(s) A new clause (xviii) is
hereby added to the defined term “Eligible Receivable”
appearing in Exhibit I of the Receivables Purchase Agreement as
follows:
(xviii) the Obligor of which is not
Vitafoam Canada.
(t) The defined term
“Excess Concentration Amount” appearing in
Exhibit I of the Receivables Purchase Agreement is hereby amended
in its entirety and as so amended shall read as follows:
Excess Concentration
Amount : At any time with
respect
