ARCH CHEMICALS, INC. SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT Dated as of May 12, 2006
EXHIBIT
4
Conformed
Copy
Dated
as
of May 12, 2006
Re: Note
Purchase Agreement dated as of March 20, 2002
and
$149,000,000
Senior Notes, Series A, due March 20, 2007
$62,000,000
Senior Notes, Series B, due March 20, 2009
To
each
of the Noteholders named
in
Schedule I attached hereto
Ladies
and Gentlemen:
Reference
is made to the Note Purchase Agreement dated as of March 20, 2002 (said
agreement as heretofore amended, the “Note
Purchase Agreement”)
among
Arch Chemicals, Inc., a Virginia corporation (the “Company”),
and
the institutional investors named in Schedule A attached thereto (the
“Noteholders”),
under
and pursuant to which $149,000,000 in aggregate principal amount of the Senior
Notes, Series A, due March 20, 2007 (the “Series
A Notes”)
and
$62,000,000 in aggregate principal amount of the Senior Notes, Series B, due
March 20, 2009 (the “Series
B Notes,” and
together with the Series A Notes, the “Notes”)
were
originally issued and sold by the Company to the Noteholders. Terms used but
not
otherwise defined herein shall have the meanings set forth in the Note Purchase
Agreement.
The
Company hereby agrees with you in this Second Amendment to Note Purchase
Agreement (the “Second
Amendment”)
as
follows:
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SECTION 1.
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AMENDMENTS
TO NOTE PURCHASE AGREEMENT.
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Section
1.1. Amendment
to Section 10.10 (Limitation on Securitization Transactions).
Section
10.10 of the Note Purchase Agreement shall be and is hereby amended (i) by
deleting the reference to “$80,000,000” therein and substituting “$100,000,000”
therefor, and (ii) by deleting the reference to “$145,000,000” therein and
substituting “$180,000,000 therefor.
Section
1.2. Amendment
to Schedule B (Definition of “Excess Securitization Assets”).
The
definition of “Excess Securitization Assets” in Schedule B to the Note Purchase
Agreement shall be and is hereby amended by deleting the reference to
“$100,000,000” therein and substituting “$135,000,000” therefor.
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SECTION 2.
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REPRESENTATIONS
AND WARRANTIES
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The
Company represents and warrants that as of the date hereof:
Section 2.1. Second
Amendment is Legal and Authorized. (a) The
execution and delivery of the Second Amendment by the Company and compliance
by
the Company with all of the provisions of the Note Purchase Agreement, as
amended by this Second Amendment —
(i) are
within the corporate powers of the Company; and
(ii) will
not
violate any provisions of any law or any order of any court or governmental
authority or agency and will not conflict with or result in any breach of any
of
the terms, conditions or provisions of, or constitute a default under the
Articles of Incorporation or By-laws of the Company, or any indenture or other
agreement or instrument to which the Company is a party or by which the Company
may be bound or result in the imposition of any Liens or encumbrances on any
property of the Company.
(b) The
execution and delivery of the Second Amendment has been duly authorized by
all
necessary corporate action on the part of the Company (no action by the
stockholders of the Company being required by law, by the Articles of
Incorporation or By-laws of the Company or otherwise, other than those actions
which have been obtained or effected); and the Second Amendment has been duly
executed and delivered by the Company, and the Note Purchase Agreement, as
amended by the Second Amendment, constitutes the legal, valid and binding
obligation, contract and agreement of the Company enforceable in accordance
with
its terms, subject to bankruptcy, insolvency, fraudulent conveyance and similar
laws affecting creditors’ rights generally, and general principles of equity
(regardless of whether the application of such principles is considered in
a
proceeding in equity or at law).
(c) No
consent, approval or authorization of, or registration, filing or declaration
with, any Governmental Authority is required in connection with the execution,
delivery or performance by the Company of this Second Amendment.
(d) No
Default or Event of Default exists under the Note Purchase
Agreement.
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SECTION
3.
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CONDITIONS
PRECEDENT TO EFFECTIVENESS OF THE SECOND AMENDMENT.
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This
Second Amendment shall become effective as of the date (the “Effective
Date”)
upon
which the following conditions have been satisfied:
(a) The
Required Holders shall have delivered an executed counterpart of this Second
Amendment; and
(b) The
Company shall have paid the fees, costs, expenses and disbursements of Xxxxxxx
and Xxxxxx LLP, special counsel to the Noteholders, incurred in connection
with
the consummation of the transactions contemplated by this Second
Amendment.
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| Arch Chemicals, Inc. |
Second
Amendment to
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Note
Purchase
Agreement
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SECTION 4.
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MISCELLANEOUS
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Section 4.1. Ratification
of Note Purchase Agreement. Except
as
herein expressly amended, the Note Purchase Agreement is in all respects
ratified and confirmed. If and to the extent that any of the terms or provisions
of the Note Purchase Agreement is in conflict or inconsistent with any of the
terms or provisions of this Second Amendment, this Second Amendment shall
govern.
Section 4.2. No
Legend Required. References
in the Note Purchase Agreement or in any Note, certificate, instrument or other
document related to or delivered in connection with the transactions
contemplated by the Note Purchase Agreement shall be deemed to be references
to
the Note Purchase Agreement as amended hereby and as further amended from time
to time.
Section 4.3. Successors
and Assigns. This
Second Amendment shall be binding upon the Company and its respective successors
and assigns and shall inure to the benefit of you and to the benefit of your
successors and assigns, including each successive holder or holders of any
Notes.
Section 4.4. Counterparts.
This
Second Amendment may be executed in any number of counterparts, each executed
counterpart constituting an original but all together only one agreement.
Signatures to this Second Amendment may be given by facsimile or other
electronic transmission, and such signatures shall be effective as
originals.
Section
4.5. Governing
Law. The
Note
Purchase Agreement as amended by this Second Amendment and the Notes shall
be
construed and enforced in accordance with, and the rights of the parties shall
be governed by, the law of the State of New York excluding choice-of-law
principles of the law of such State that would require the application of the
laws of a jurisdiction other than such State.
Signature
Pages Follow
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| Arch Chemicals, Inc. |
Second
Amendment to
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Note
Purchase
Agreement
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IN WITNESS WHEREOF,
the
Company has executed this Second Amendment to Note Purchase Agreement as
of the
day and year first above written.
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ARCH
CHEMICALS, INC.
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| By: | /s/ W. Xxxx Xxxx | |
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Name: W. Xxxx Xxxx |
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| Its: Treasurer | ||
| Arch Chemicals, Inc. |
Second
Amendment to
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Note
Purchase
Agreement
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This
Second Amendment to Note Purchase Agreement is accepted and agreed to as of
the
day and year first above written.
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ING
USA ANNUITY AND LIFE INSURANCE
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COMPANY
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RELIASTAR
LIFE INSURANCE COMPANY
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SECURITY
LIFE OF DENVER INSURANCE
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COMPANY
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| By: ING Investment Management, LLC, as | ||
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Agent
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By:
/s/ Xxxxx X. Xxxxxxx
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Name:
Xxxxx X. Xxxxxxx
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Title:
Vice President
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| Arch Chemicals, Inc. |
Second
Amendment to
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Note
Purchase
Agreement
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This
Second Amendment to Note Purchase Agreement is accepted and agreed to as of
the
day and year first above written.
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ALLSTATE
LIFE INSURANCE COMPANY
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| By: | /s/ Xxxxxx X. Xxxxxx | |
| Name: Xxxxxx X. Xxxxxx | ||
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| By: | /s/ Xxxxx X. Xxxxxxx | |
| Name: Xxxxx X. Xxxxxxx | ||
| Authorized Signatories | ||
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ALLSTATE
LIFE INSURANCE COMPANY OF
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| By: | /s/ Xxxxxx X. Xxxxxx | |
| Name: Xxxxxx X. Xxxxxx | ||
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| By: | /s/ Xxxxx X. Xxxxxxx | |
| Name: Xxxxx X. Xxxxxxx | ||
| Authorized Signatories | ||
| Arch Chemicals, Inc. |
Second
Amendment to
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Note
Purchase
Agreement
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This
Second Amendment to Note Purchase Agreement is accepted and agreed to as of
the
day and year first above written.
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METROPOLITAN
LIFE INSURANCE COMPANY
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| By: | /s/ Xxxxx X. Xxxxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxxxx | ||
| Title: Director | ||
| Arch Chemicals, Inc. |
Second
Amendment to
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Note
Purchase
Agreement
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This
Second Amendment to Note Purchase Agreement is accepted and agreed to as of
the
day and year first above written.
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NEW
YORK LIFE INSURANCE COMPANY
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| By: | /s/ Xxxxxxxx X. Xxxxxxxxx | |
| Name: Xxxxxxxx X. Xxxxxxxxx | ||
| Title: Investment Vice President | ||
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NEW
YORK LIFE INSURANCE AND ANNUITY
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CORPORATION
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| By New York Life Investment Management | ||
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LLC,
Its Investment Manager
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By: /s/ Xxxxxxxx
X.
Xxxxxxxxx
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Name:
Xxxxxxxx X. Xxxxxxxxx
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Title:
Director
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NEW
YORK LIFE INSURANCE AND ANNUITY
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CORPORATION
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| INSTITUTIONALLY OWNED LIFE INSURANCE | ||
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SEPARATE
ACCOUNT
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| By New York Life Investment Management | ||
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LLC,
its Investment Manager
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By:
/s/
Xxxxxxxx X. Xxxxxxxxx
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Name:
Xxxxxxxx X. Xxxxxxxxx
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Title:
Director
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| Arch Chemicals, Inc. |
Second
Amendment to
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Note
Purchase
Agreement
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This
Second Amendment to Note Purchase Agreement is accepted and agreed to as of
the
day and year first above written.
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THE
OHIO NATIONAL LIFE INSURANCE COMPANY
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| By: | /s/ Xxx X. Xxxxxx | |
| Name: Xxx X. Xxxxxx | ||
| Title: Vice President, Private Placements | ||
SCHEDULE
I
ING
USA
Annuity and Life Insurance Company
c/o
ING
Investment Management LLC
Xxxxxxxxxxx,
Xxxxxxxxx 00000-0000
Security
Life of Denver Insurance Company
c/o
ING
Investment Management LLC
Xxxxxxxxxxx,
Xxxxxxxxx 00000-0000
ReliaStar
Life Insurance Company
c/o
ING
Investment Management LLC
Xxxxxxxxxxx,
Xxxxxxxxx 00000-0000
Metropolitan
Life Insurance Company
Xxx
Xxxx,
Xxx Xxxx 00000-0000
New
York
Life Insurance Company
c/o
New
York Life Investment Management LLC
Xxx
Xxxx,
Xxx Xxxx 00000
New
York
Life Insurance and Annuity Corporation
c/o
New
York Life Investment Management LLC
Xxx
Xxxx,
Xxx Xxxx 00000
New
York
Life Insurance and Annuity Corporation
Institutionally
Owned Life Insurance Separate Account
c/o
New
York Life Investment Management LLC
Xxx
Xxxx,
Xxx Xxxx 00000
Nationwide
Life Insurance Company
Xxxxxxxx,
Xxxx 00000-0000
Nationwide
Life and Annuity Insurance Company
Xxxxxxxx,
Xxxx 00000-0000
The
Canada Life Assurance Company
Xxxxxxxx,
Xxxxxxxx
Xxxxxx
X0X 0X0
Xxxxxx
Life Insurance Company of America
c/o
Great-West Life & Annuity Insurance Company
Xxxxxxxxx,
Xxxxxxxx 00000
SCHEDULE
I
(to
Second Amendment to Note Purchase Agreement)
Erie
Indemnity Company
Xxxx,
Xxxxxxxxxxxx 00000
Erie
Family Life Insurance Company
Xxxx,
Xxxxxxxxxxxx 00000
Erie
Indemnity Company, as attorney in fact,
for
Erie
Insurance Exchange
Xxxx,
Xxxxxxxxxxxx 00000
Erie
Insurance Group Retirement Trust Company
Xxxx,
Xxxxxxxxxxxx 00000
The
Ohio
National Life Insurance Company
Xxxxxxxxxx,
Xxxx 00000
Allstate
Life Insurance Company
Xxxxxxxxxx,
Xxxxxxxx 00000-0000
Allstate
Life Insurance Company of Xxx Xxxx
Xxxxxxxxxx,
Xxxxxxxx 00000-0000
Beneficial
Life Insurance Company
Xxxx
Xxxx
Xxxx, Xxxx 00000
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