Exhibit 10.3
EIGHTH AMENDMENT TO CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO CREDIT
AGREEMENT dated as of June 12, 2009 (the “
Amendment ”) is entered into among Georgia Gulf
Corporation, a Delaware corporation (“ GGC ”),
Royal Group, Inc. (formerly known as Royal Group Technologies
Limited), a Canadian federal corporation (the “ Canadian
Borrower ”; together with GGC, the “
Borrowers ”), the Guarantors, the Lenders party
hereto, Bank of America, National Association, as Domestic
Administrative Agent and Bank of America, National Association
acting through its Canada branch, as Canadian Administrative
Agent. All capitalized terms used herein and not otherwise
defined herein shall have the meanings given to such terms in the
Credit Agreement (as defined below).
RECITALS
WHEREAS, the Borrowers, the
Guarantors, the Lenders, Bank of America, National Association, as
Domestic Administrative Agent, Domestic Collateral Agent and
Domestic L/C Issuer, Bank of America, National Association acting
through its Canada branch, as Canadian Administrative Agent,
Canadian Collateral Agent and Canadian L/C Issuer and The Bank of
Nova Scotia, as Canadian Swing Line Lender entered into that
certain Credit Agreement dated as of October 3, 2006 (as
amended from time to time, the “ Credit Agreement
”); and
WHEREAS, GGC has requested that the
Lenders amend the Credit Agreement as set forth below;
NOW, THEREFORE, in consideration of
the premises and the mutual covenants contained herein, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1.
Amendments .
(a)
The following definitions are hereby added to Section 1.01 of
the Credit Agreement in the appropriate alphabetical
order:
“ Applicable Note Interest
Payments ” means, collectively, the April 15
Interest Payments and the June 15 Interest Payments, or any
portion thereof.
“ June 15 Interest
Payments ” means the interest payments due on
June 15, 2009 under the 2003 Senior Notes.
(b)
The definition of “Consolidated Cash Interest Charges”
in Section 1.01 of the Credit Agreement is hereby amended by
adding the following new sentence at the end thereof:
“For purposes of calculating
Consolidated Cash Interest Charges, the effects of the application
of EITF Issue No. 96-19 shall be
disregarded.”
(c)
The definition of “Consolidated Funded Indebtedness” in
Section 1.01 of the Credit Agreement is hereby amended by
adding the following new sentence at the end thereof:
“For purposes of determining
Consolidated Funded Indebtedness, any adjustments to the amount at
which any Indebtedness is recorded in the consolidated financial
statements of GGC and its Subsidiaries resulting from the
application of EITF Issue No. 96-19 shall be
disregarded.
(d)
The definition of “Consolidated Net Income” in
Section 1.01 of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
“ Consolidated Net
Income ” means, for any period, for GGC and its
Subsidiaries on a consolidated basis, the net income of GGC and its
Subsidiaries for that period (exclusive of, without duplication,
(x) the effect of (1) any extraordinary gain,
(2) any gain or loss (whether or not classified as
extraordinary) in respect of the modification or exchange of debt
instruments in accordance with EITF Issue No. 96-19 or
otherwise (including, for the avoidance of doubt with respect to
the fiscal quarter period ending March 31, 2009, the
“Gain on substantial modification of debt” in the
amount of $121.033 million), (3) any “cancellation of
debt” income or other gain (in each case whether or not
classified as extraordinary) arising from the cancellation of
Indebtedness pursuant to an Exchange Offer or otherwise,
(4) any extraordinary non-cash loss and (5) for any
fiscal quarter period ending prior to the Closing Date, any
extraordinary loss paid in cash during such period and (y) the
income of any Person (other than GGC) in which any other Person
(other than GGC or any Subsidiary or any director holding
qualifying shares in compliance with applicable law) owns an Equity
Interest, except to the extent of the amount of dividends or other
distributions actually paid to GGC or any Subsidiary during such
period), determined on a consolidated basis in accordance with GAAP
for such period.
(e)
The definition of “Exchange Obligations” in
Section 1.01 of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
“ Exchange Obligations
” means (i) Equity Interests (other than Disqualified
Equity Interests) and (ii) [reserved].
(f)
The first sentence of Section 6.07 of the Credit Agreement is
hereby amended by replacing the proviso at the end thereof with the
following:
“; provided that
neither (1) the failure of GGC or any Subsidiary to make any
of the Applicable Note Interest Payments nor (2) any
cross-default occurring under the 2006 Senior Notes Documents, the
2006 Senior Subordinated Notes Documents or the 2003 Senior Notes
Documents solely as a result of the failure to make any of the
Applicable Note Interest Payments shall render inaccurate the
foregoing representation unless any portion of the Applicable Note
Interest Payments remains unpaid on the earlier of (such earlier
date, the “ Cutoff Date ”) (x) the first
date on which holders of 25% or more of the aggregate principal
amount of the outstanding 2006 Senior Notes, 2006 Senior
Subordinated Notes or 2003 Senior Notes (in each case after giving
effect to any amendment, waiver and/or forbearance agreements (each
a “ Waiver/Forbearance Agreement ”) then in
effect) (i) in the case of the 2006 Senior Notes or the 2003
Senior Notes, shall have the right to accelerate (or to instruct
the applicable trustee to accelerate) the Indebtedness under the
2006 Senior Notes or the 2003 Senior Notes, as applicable, or to
exercise (or to instruct the applicable trustee to exercise) any
other remedies against the Company or any of its Subsidiaries or
(ii) in the case of the 2006 Senior Subordinated Notes, shall
have accelerated (or instructed the applicable trustee to
accelerate) the Indebtedness under the 2006 Senior Subordinated
Notes or shall have exercised (or instructed the applicable trustee
to exercise) any other remedies against the Company or any of its
Subsidiaries, in each case as a result of the Company’s
failure to make the Applicable Note Interest Payments, and
(y) July 15, 2009.”
(g)
Section 7.04 of the Credit Agreement is hereby amended by
replacing the proviso at the end thereof with the
following:
2
“; provided that the
failure of any Loan Party to make the Applicable Note Interest
Payments shall not constitute a breach of this covenant unless any
portion of the Applicable Note Interest Payments remains unpaid on
the Cutoff Date.”
(h)
Section 8.01(v) of the Credit Agreement is hereby amended
and restated to read in its entirety as follows:
“(v)
[Reserved]; and”
(i)
Section 8.03(1) of the Credit Agreement is hereby amended
by removing “or any Exchange Obligations issued in exchange
therefor (to the extent such Exchange Obligations are
subordinated)”.
(j)
Section 8.03(p) of the Credit Agreement is hereby amended
and restated to read in its entirety as follows:
“(p)
[Reserved].”
(k)
Section 9.01(f)(i)(A) of the Credit Agreement is hereby
amended by replacing the parenthetical immediately following the
word “due” with the following parenthetical:
“(or, in the case of the
Applicable Note Interest Payments, prior to the Cutoff
Date)”. For avoidance of doubt, it is understood and
agreed that the failure to have made any such payment prior to the
Cutoff Date shall not constitute a Default.
(l)
Section 9.01(f)(i)(B) of the Credit Agreement is hereby
amended by replacing “April 15 Interest Payments”
with “Applicable Note Interest Payments” each time that
it appears therein.
(m)
Section 9.01(n) of the Credit Agreement is hereby amended
by replacing “April 15 Interest Payments” with
“Applicable Note Interest Payments” each time that it
appears therein.
(n)
Section 9.01(o) of the Credit Agreement is hereby amended
by replacing “April 15 Interest Payments” with
“Applicable Note Interest Payments” each time that it
appears therein.
(o)
Section 9.01(p) of the Credit Agreement is hereby amended
by replacing “April 15 Interest Payments” with
“Applicable Note Interest Payments” each time that it
appears therein.
Section 2.
Conditions Precedent . This Amendment shall be
effective upon satisfaction of the following conditions precedent
(the date on which such conditions have been satisfied, the “
Amendment Effective Date ”):
(a)
Receipt by the Domestic Administrative Agent of counterparts of
this Amendment duly executed by the Borrowers, the Guarantors, the
Required Lenders, the Required Domestic Revolving Lenders, the
Required Canadian Revolving Lenders and Bank of America, N.A., as
Administrative Agent;
(b)
Receipt by the Domestic Administrative Agent (i) for the
account of (x) each Lender that has the right under the
Credit Agreement to approve this Amendment and that has executed
this Amendment on or prior to 12:00 noon, New York City time, on
June 12, 2009 and (y) each other Lender that has the
right under the Credit Agreement to approve this
Amendment
3
and that has not been given the
opportunity to access this Amendment and consent thereto (each of
the Lenders described in the foregoing clauses (x) and (y), a
“ Consenting Lender ”), a fee equal to 0.05% of
the aggregate amount of each such Consenting Lender’s
(A) Canadian Revolving Commitment, (B) Canadian Swing
Line Commitment, (C) Domestic Revolving Commitment and
(D) portion of the Term Loan outstanding and (ii) any
fees and expenses of the Administrative Agents (including
reasonable attorneys’ fees of the Administrative Agents) in
connection with the Loan Documents;
(c)
Receipt by BAS of all fees, expenses and other amounts that have
become due and payable to BAS, in its capacity as arranger of the
Amendment, on or prior to the Amendment Effective Date pursuant to
that certain letter agreement dated as of June 10, 2009
between GGC and BAS; and
(d)
Receipt by any Administrative Agent of such other documents,
instruments, agreements and information as reasonably requested by
such Administrative Agent.
Section 3.
Release .
(a)
Each Loan Party and its respective successors, assigns and legal
representatives (collectively, the “ Releasors
”), releases, acquits and forever discharges each
Administrative Agent and each Lender (collectively, the “
Lender Parties ”), and their respective subsidiaries,
parents, affiliates, officers, directors, employees, agents,
attorneys, advisors, successors and assigns, both present and
former (collectively, the “ Lender Party Affiliates
”), from any and all manner of losses, costs, defenses,
damages, liabilities, deficiencies, actions, causes of action,
suits, debts, controversies, damages, judgments, executions,
claims, demands and out-of-pocket expenses whatsoever, asserted or
unasserted, known or unknown, foreseen or unforeseen, in contract,
tort, law or equity (generically, “ Claims ”),
that any Releasor has or may have against any of the Lender Parties
and/or the Lender Party Affiliates by reason of any action, failure
to act, event, statement, accusation, assertion, matter or thing
whatsoever arising from or based on facts occurring prior to the
Amendment Effective Date that arises out of or is connected to the
Loan Documents, the Loans and the Letters of Credit, including but
not limited to any Claims or defense that relates to, in whole or
in part, directly or indirectly: (i) the Credit
Agreement or any other Loan Document or the transactions
contemplated thereby; (ii) the making of any Loans or issuance
of Letters of Credit under the Loan Documents; (iii) any
actual or proposed use by the Loan Parties of the proceeds of the
Loans or Letters of Credit; (iv) any actions or omissions of
any Lender Party or Lender Party Affiliate in connection with the
initiation or continuing exercise of any right or remedy contained
in the Loan Documents at law or in equity; (v) the making or
administration of the Loans, including without limitation, any such
claims and defenses based on fraud, mistake, duress, usury or
misrepresentation, or any other claim based on so-called
“lender liability theories”; (vi) any covenants,
agreements, duties or obligations set forth in the Loan Documents;
(vii) lost profits, (viii) loss of business opportunity,
(ix) increased financing costs, (x) increased legal or
other administrative fees or (xi) damages to business
reputation.
(b)
Each Loan Party, on behalf of itself and its successors, assigns,
and other legal representatives, hereby unconditionally and
irrevocably agrees that it will not sue any Lender Party or Lender
Party Affiliate on the basis of any Claim released, remised and
discharged by such Loan Party pursuant to this
Section 3. If any Loan Party or any of their respective
successors, assigns or other legal representatives violates the
foregoing covenant, each Loan Party, for itself and its successors,
assigns and legal representatives, agrees to pay, in addition to
such other damages as any Lender Party or Lender Party Affiliate
may sustain as a result of such
4
violation, all reasonable and
documented attorneys’ fees and costs incurred by any Lender
Party or Lender Party Affiliate as a result of such
violation.
Section 4.
Miscellaneous .
(a)
GGC shall deliver to the Administrative Agent copies of each
Waiver/Forbearance Agreement immediately upon the effectiveness
thereof, and agrees that its failure to do so within two days after
the effectiveness thereof shall constitute an Event of
Default.
(b)
The Credit Agreement, and the obligations of the Loan Parties
thereunder and under the other Loan Documents, are hereby ratified
and confirmed and shall remain in full force and effect according
to their terms.
(c)
Each Guarantor (a) acknowledges and consents to all of the
terms and conditions of this Amendment, (b) affirms all of its
obligations under the Loan Documents and (c) agrees that this
Amendment and all documents executed in connection herewith do not
operate to reduce or discharge its obligations under the Credit
Agreement or the Loan Documents.
(d)
The Borrowers and the Guarantors hereby represent and warrant as
follows:
(i) &nb
