EXHIBIT 4.6(b)
CONFORMED COPY
AMENDMENT TO THE FIVE YEAR
CREDIT AGREEMENT
DATED AS OF JANUARY 27, 1999
This Amendment to the $125,000,000 Five Year Credit Agreement dated as of
January 27, 1999 ("Amendment") is entered into as of January 23, 2002.
RECITALS
This Amendment is entered into in reference to the following facts:
(a) The Five Year Credit Agreement is dated as of January 27,
1999 (as the same may be amended, supplemented or otherwise modified from time
to time, the "Five Year Credit Agreement") among, inter alios, Arch Chemicals,
Inc., Xxxx Corporation, the Lenders and Agents party thereto and JPMorgan Chase
Bank, as Administrative Agent for the Lenders. Capitalized terms used in this
Amendment without definition shall have the respective meanings assigned to them
in the Five Year Credit Agreement.
(b) The Borrower, the Agents and Required Lenders desire to
amend the Five Year Credit Agreement in order to make certain amendments as more
particularly described herein to the financial covenants and certain financial
definitions.
NOW THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto hereby agree as follows:
ARTICLE ONE - AMENDMENT
1.1 Amendment of definition of "Applicable Rate". (a) Item (i) of the
definition of "Applicable Rate" shall be amended by the deletion in its entirety
of the existing table and its substitution with the following:
EXECUTION
"
CONSOLIDATED ABR EURODOLLAR
LEVERAGE RATIO SPREAD SPREAD FACILITY FEE RATE
-------------- ------ ------ -----------------
less than or equal to 0.5 0.000% 0.425% 0.200%
> 0.5 and less than or equal to 1.5 0.000% 0.525% 0.225%
> 1.5 and less than or equal to 2.5 0.000% 0.625% 0.250%
> 2.5 and less than or equal to 3.5 0.000% 0.950% 0.300%
> 3.5 0.50% 1.500% 0.500%
"
(b) Item (ii) of the definition of "Applicable Rate" shall be amended
by the deletion in its entirety of the existing table and its substitution with
the following:
"
SENIOR UNSECURED ABR EURODOLLAR
DEBT RATING SPREAD SPREAD FACILITY FEE RATE
----------- ------ ------ -----------------
A/A3 0.000% 0.325% 0.175%
BBB+ /Baa1 0.000% 0.425% 0.200%
BBB/Baa2 0.000% 0.525% 0.225%
BBB-/Baa3 0.000% 0.625% 0.250%
< BBB-/Baa3 0.000% 0.950% 0.300%
less than or equal to BB+/Ba1 0.50% 1.500% 0.500%
"
1.2 Amendment of Section 6.05. Section 6.05 shall be amended by the
deletion of "the date hereof would not exceed the sum of (x) $65,000,000 plus
(y) 50% of the cumulative Consolidated Net Income of the Company for the period
(taken as one accounting period) since the date hereof" and the substitution
therefor of the words "December 31, 2001 would not exceed the sum of (x)
$40,000,000 plus (y) 50% of the cumulative Consolidated Net Income of the
Company for the period (taken as one accounting period) since December 31,
2001".
2 EXECUTION
1.3 Amendment of Section 6.12. Section 6.12(a) shall be amended by the
deletion at the end of thereof of "3.5:1.0" and its substitution with the
following "the correlative ratio indicated below:
FOR QUARTER PERIOD ENDING CONSOLIDATED LEVERAGE RATIO
------------------------- ---------------------------
December 31, 2001 3.75
March 31, 2002 4.50
June 30, 2002 4.00
September 30, 2002 3.75
December 31, 2002 and thereafter 3.50
ARTICLE TWO - REPRESENTATIONS AND WARRANTIES
2.1 Borrower Representations and Warranties. In order to induce the
Agents and the Lenders to enter into this Amendment, the Borrower represents and
warrants as follows:
(a) The Borrower has the power and authority and has taken all
action necessary to execute, deliver and perform this Amendment and all other
agreements and instruments executed or delivered or to be executed or delivered
in connection herewith and therewith and this Amendment and such other
agreements and instruments constitute the valid, binding and enforceable
obligations of the Borrower.
(b) The Borrower's representations and warranties contained in
the Five Year Credit Agreement are true and correct in all respects on and as of
the date hereof as though made on and as of the date hereof and no Default or
Event of Default has occurred and is continuing as of the date hereof (for the
avoidance of doubt in each case for the purposes of this Section 2.1 (b), after
giving effect to this Amendment and the amendment dated of even date herewith to
the 364-Day Facility).
2.2 Acknowledgment of Borrower. The Borrower expressly acknowledges and
agrees that as of the date hereof, it has no offsets, claims or defenses
whatsoever against any of the Indebtedness or obligations owing under the Five
Year Credit Agreement.
3 EXECUTION
ARTICLE THREE - CONDITIONS PRECEDENT
3.1 Conditions to Effectiveness of this Amendment. The effectiveness of
this Amendment is subject to the satisfaction of the following conditions on or
before the date hereof:
(a) Receipt by the Administrative Agent of copies of this
Amendment duly executed by each of the Borrower, Agents and Required Lenders.
(b) The Borrower shall have paid all fees, costs and expenses
owing to the Administrative Agent and the Administrative Agent's counsel through
the date hereof, including without limitation, in respect of the preparation,
execution and delivery of this Agreement.
(c) The Borrower shall have paid to each Lender executing this
Amendment an amendment fee equal to 0.125% of the total amount of the
Commitments of such Lender under the Five Year Credit Agreement.
ARTICLE FOUR - GENERAL PROVISIONS
4.1 Full Force and Effect. Except as expressly amended hereby, the Five
Year Credit Agreement and all other documents, agreements and instruments
relating thereto are and shall remain unmodified and in full force and effect.
Upon the effectiveness of this Amendment, on and after the date hereof, each
reference in the Five Year Credit Agreement to "this Agreement," "hereunder,"
"hereof," "herein," or words of like import shall mean and be a reference to the
Five Year Credit Agreement as amended hereby, and this Amendment and the Five
Year Credit Agreement shall be read together and construed as a single
instrument.
4.2 Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original and that all of which taken together shall constitute one and the
same instrument, respectively. Delivery of an executed counterpart of this
Amendment by facsimile shall be equally effective as delivery of a manually
executed counterpart of this Amendment. Any party delivering an executed
counterpart by facsimile shall also deliver a manually executed counterpart of
this Amendment, but failure to do so shall not effect the validity,
enforceability, of binding effect of this Amendment.
4 EXECUTION
4.3 Final Agreement. This Amendment is intended by the Borrower, the
Agents and the Lenders to be the final, complete, and exclusive expression of
the agreement between them with respect to the subject matter hereof. This
Amendment supersedes any and all prior oral or written agreements relating to
the subject matter hereof. This Amendment shall be binding upon the parties
hereto and their respective successors and assigns and shall inure to the
benefit of the parties hereto and the successors and assigns of Lenders. The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
the Lenders or the Agents under the Five Year Credit Agreement, nor constitute a
waiver of any provision of the Five Year Credit Agreement.
4.4 Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
5 EXECUTION
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the day and year first above written.
JPMORGAN CHASE BANK,
individually and as Administrative Agent,
By: /s/ Xxxxxxxx Xxxxxxx, Xx.
--------------------------------------
Name: Xxxxxxxx Xxxxxxx, Xx.
Title: Vice President
BANK OF AMERICA, N.A.,
individually and as Syndication Agent,
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
WACHOVIA BANK, N.A.,
individually and as Documentation Agent,
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
BANK ONE, NA
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Commercial Banking Officer
EXECUTION
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
EXECUTION
SUNTRUST BANK
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
By:
--------------------------------------
Name:
Title:
ABN AMRO BANK N.V.
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
EXECUTION
STATE STREET BANK & TRUST COMPANY
By:
--------------------------------------
Name:
Title:
ING (US) CAPITAL LLC
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name:
Title: Managing Director
By:
--------------------------------------
Name:
Title:
EXECUTION
Agreed and accepted:
ARCH CHEMICALS, INC.
By: /s/ W. Xxxx Xxxx
-------------------------
Name: W. Xxxx Xxxx
Title: V.P. and Treasurer
EXECUTION
