E XHIBIT 10.1
OMNIBUS ASSUMPTION AND ASSIGNMENT
AGREEMENT
THIS OMNIBUS ASSUMPTION AND
ASSIGNMENT AGREEMENT (this “ AGREEMENT ”), dated
as of October 6, 2009, is among ARCH CHEMICALS RECEIVABLES
CORP., a Delaware corporation (the “ Seller ”),
ARCH CHEMICALS, INC., a Virginia corporation, individually (“
Arch ”) and, as servicer (in such capacity, the
“ Servicer ”, and together with the Seller, the
“ Seller Parties ”), THREE PILLARS FUNDING LLC,
a Delaware corporation (“ TPF ”), SUNTRUST
ROBINSON HUMPHREY, INC. (F/K/A SUNTRUST CAPITAL MARKETS, INC.), a
Tennessee corporation, as administrator (the “ Existing
Administrator ”) MARKET STREET FUNDING LLC, a Delaware
limited liability company (“ Market Street ”),
and PNC BANK, NATIONAL ASSOCIATION, a national banking association
(“ PNC ”), as successor administrator (the
“ Successor Administrator ”), and acknowledged
and agreed to by ARCH TREATMENT TECHNOLOGIES, INC., a Virginia
corporation, ARCH WOOD PROTECTION, INC., a Delaware corporation,
and ARCH PERSONAL CARE PRODUCTS, L.P., a New Jersey limited
partnership (collectively, the “ Subsidiary
Originators ”).
BACKGROUND
The Seller, TPF, the Servicer and
the Existing Administrator are parties to that certain Receivables
Purchase Agreement dated as of June 27, 2005 (as amended,
restated, supplemented or otherwise modified prior to giving effect
to any amendment on the date hereof, the “ Receivables
Purchase Agreement ”). Capitalized terms used and not
otherwise defined herein have the respective meaning assigned to
such terms in the Receivables Purchase Agreement.
WHEREAS, TPF and the Existing
Administrator each desires to transfer all of its right, title,
interest and obligations in, to and under the Receivables Purchase
Agreement and the Receivable Interest to Market Street and the
Successor Administrator, as applicable, and each of Market Street
and the Successor Administrator, as applicable, desires to purchase
and assume all of the TPF’s and the Existing
Administrator’s, as applicable, right, title, interest and
obligations in, to and under the Receivables Purchase Agreement and
the Receivable Interest and to become party to the Receivables
Purchase Agreement.
NOW, THEREFORE, for good and
valuable consideration the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. Representations and
Warranties . The Seller desires that each of TPF and the
Existing Administrator transfer, as applicable, all of its right,
title, interest and obligations in, to and under the Receivable
Purchase Agreement, the Receivable Interest, all related property
and Invested Amount and that Market Street becomes a party to the
Receivables Purchase Agreement and the Successor Administrator
becomes the Administrator under the Receivables Purchase Agreement
and upon the terms and subject to the conditions set forth herein.
Each of TPF and the Existing Administrator agrees to transfer, as
applicable, all of its right, title, interest and obligations in,
to and under the Receivables Purchase Agreement, the Receivable
Interest, all related property and the Invested Amount (the “
Transfer ”) on and as of October 6, 2009
(the
“ Closing Date ”). Market
Street and the Successor Administrator, as applicable, agree to
purchase and assume, all of TPF’s and the Existing
Administrator’s, as applicable, right, title, interest and
obligations in, to under the Receivables Purchase Agreement, the
Receivable Interest, all related property and Invested Amount and
Market Street agrees to become a party to the Receivables Purchase
Agreement and the Successor Administrator agrees to become the
Administrator under the Receivables Purchase Agreement. Market
Street and the Successor Administrator shall not be a party to the
Receivables Purchase Agreement for any purpose before the
effectiveness of this Agreement, and immediately after the
effectiveness of this Agreement and the Transfer, Market Street and
the Successor Administrator and the other parties to the
Receivables Purchase Agreement shall amend and restate the
Receivables Purchase Agreement pursuant to the terms of that
certain Amended and Restated Receivables Purchase Agreement, dated
as of October 6, 2009 (the “ Amended and Restated
Receivables Purchase Agreement ”).
Each of the Seller Parties hereby
represents and warrants to Market Street and the Successor
Administrator as of the date hereof, as follows:
(i) the representations and
warranties of such Seller Party contained in
Section 5.1 of the Receivables Purchase Agreement are
true and correct in all material respects on and as the date of the
Transfer as though made on and as of such date (except for
representations and warranties which apply as to an earlier date,
in which case such representations and warranties shall be true and
correct as of such earlier date);
(ii) no event has occurred and is
continuing, or would result from the Transfer, that constitutes a
Amortization Event or Unmatured Amortization Event; and
(iii) the Facility Termination Date
has not occurred.
SECTION 2. Transfer and
Assumption of Purchases; Assignment of Receivable Interest
.
(a) For effect on the Closing Date,
TPF hereby transfers and assigns to Market Street, and Market
Street hereby accepts and assumes TPF’s obligation to fund
Purchases through issuance of Commercial Paper or a Liquidity
Funding pursuant to the terms of the Receivables Purchase Agreement
up to the Purchase Limit. Following such transfer to and assumption
by Market Street, TPF shall no longer have an obligation to fund a
Purchase pursuant to the terms of Receivables Purchase
Agreement.
(b) Upon receipt of the amount
described in Section 5(c) below on the Closing Date,
TPF hereby sells and assigns to Market Street without recourse and
without representation or warranty (except that it is the sole
owner of and has good and marketable title to the portion of
Receivable Interest being transferred hereunder, free of any
Adverse Claim created by it), and Market Street hereby purchases
and assumes TPF’s interest in and to the Receivable Interest,
the Invested Amount related thereto and that portion of TPF’s
other rights and obligations under the Receivable