Exhibit 10.1
FOURTH SUPPLEMENTAL
INDENTURE
This Fourth Supplemental Indenture,
dated as of September 29, 2008 (this “ Fourth
Supplemental Indenture ”), is among Georgia Gulf
Corporation, a Delaware corporation (together with its successors
and assigns, “ GGC ”), each existing Subsidiary
Guarantor under the Indenture referred to below, and U.S. Bank
National Association, a national banking association (as successor
to SunTrust Bank, a Georgia banking corporation), as trustee under
the Indenture referred to below (the “ Trustee
”).
W I T N E S S E T H:
WHEREAS, GGC, the Subsidiary
Guarantors and the Trustee have heretofore executed and delivered
an Indenture, dated as of December 3, 2003, as amended by that
certain First Supplemental Indenture, dated as of April 24,
2007, by and among GGC, the Subsidiary Guarantors named therein,
and the Trustee, that certain Second Supplemental Indenture, dated
as of May 23, 2008, by and among GGC, the Subsidiary
Guarantors named therein, and the Trustee, and that certain Third
Supplemental Indenture, dated as of June 4, 2008, by and among
GGC, the Subsidiary Guarantors named therein, and the Trustee (as
amended, supplemented, waived or otherwise modified, the “
Indenture ”), providing for the issuance of the
7 1/8% Senior Notes due 2013 of GGC (the “
Securities ”);
WHEREAS, GGC and the Subsidiary
Guarantors desire to execute and deliver this Fourth Supplemental
Indenture to, among other things: (i) amend
Section 6.1 (Events of Default) of the Indenture,
(ii) waive any Defaults and Events of Default, and their
consequences, that may exist as of the date of this Fourth
Supplemental Indenture, (iii) amend certain definitions
contained in the Indenture and add certain definitions thereto, and
(iv) make certain additional conforming amendments to the
Indenture (collectively, the “ Proposed Amendments
”);
WHEREAS, the Board of Directors of
GGC has determined that it is in the best interests of GGC and the
Subsidiary Guarantors to make the Proposed Amendments;
WHEREAS, Section 9.2 of
the Indenture provides that GGC, the Subsidiary Guarantors and the
Trustee may amend the Indenture without notice to any
Securityholder but with the written consent of the Holders of at
least a majority in principal amount of the Securities then
outstanding (the “ Required Consent
”);
WHEREAS, GGC has obtained the
Required Consent;
WHEREAS, pursuant to
Section 6.4 of the Indenture, subject to certain
exceptions, the Holders of a majority in principal amount of the
outstanding Securities, by written notice to the Trustee, may
waive, by their consent, an existing Default or Event of Default
and its consequences;
WHEREAS, the Trustee has received
written notice from the Holders of a majority in principal amount
of the outstanding Securities waiving any Defaults and Events of
Default, and their consequences, that may exist as of the date of
this Fourth Supplemental Indenture; and
WHEREAS, pursuant to
Section 9.2 of the Indenture, GGC, the Subsidiary
Guarantors and the Trustee are authorized to execute and deliver
this Fourth Supplemental Indenture;
NOW, THEREFORE, in consideration of
the foregoing and for other good and valuable consideration, the
receipt of which is hereby acknowledged, GGC, the Subsidiary
Guarantors and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Securities as
follows:
ARTICLE I
Definitions
1.1 Defined Terms
. As used in this Fourth Supplemental Indenture, terms
defined in the Indenture or in the preamble or recitals hereto are
used herein as therein defined, except that the term “
Holders ” in this Fourth Supplemental Indenture shall
refer to the term “Holders” as defined in the Indenture
and the Trustee acting on behalf or for the benefit of such
holders. The words “herein,” “hereof”
and “hereby” and other words of similar import used in
this Fourth Supplemental Indenture refer to this Fourth
Supplemental Indenture as a whole and not to any particular section
hereof.
ARTICLE II
Amendments
2.1 Amendment of
Section 3.7 (Limitation on Affiliate Transactions) .
Section 3.7 of the Indenture is hereby
amended:
(a)
by deleting the
words “ Section 3.4 ” from the end of
clause (1) of Section 3.7(b) and inserting
the following language in lieu thereof:
“Section 4.07 of the 2006
Indenture”.
(b)
by deleting the
words “ Section 3.3 ” from the end of
clause (4) of Section 3.7(b) and inserting
the following language in lieu thereof:
“Section 4.09 of the 2006
Indenture”.
2.2 Amendment of
Section 4.1 (Merger and Consolidation) .
Section 4.1 of the Indenture is hereby amended by
deleting the words “ Section 3.3(a) of this
Indenture” from clause (iii) of Section 4.1
and inserting the following language in lieu thereof:
“Section 4.09(a) of
the 2006 Indenture”.
2.3
Amendment of Section 6.1
(Events of Default ). Section 6.1 of the
Indenture is hereby amended:
2
(a)
by deleting the
words “ 3.3 , 3.4 ,” from clause
(4) of Section 6.1 .
(b)
by inserting the
following language after the word “above” in clause
(5) of Section 6.1 :
“, and other than those
contained in Sections 3.3 or 3.4
”.
(c)
by deleting the
word “or” from the end of clause (9) of
Section 6.1 .
(d)
by deleting the
“.” from the end of clause (10) of
Section 6.1 , and inserting “; or” in lieu
thereof.
(e)
by inserting a
new clause (11) immediately following clause (10) of
Section 6.1 , which clause (11) shall read in its
entirety as follows:
“the Company fails to comply
with or defaults in the performance of, or a breach by the Company
of, any covenant or agreement contained in Section 4.07 or
4.09 of the 2006 Indenture and such default continues for 60 days
after the notice specified below (with such notice only given after
the expiry of the periods permitted to perform an obligation),
regardless of whether any Indebtedness Incurred under the 2006
Indenture has been accelerated prior to its maturity as
contemplated by Section 6.1(6) of this
Indenture.”
(f)
by deleting the
words “(4) or (5)” each time they appear in the
first sentence of the penultimate paragraph of
Section 6.1 and inserting the f
