Exhibit 10.2
SEVENTH AMENDMENT TO CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO CREDIT
AGREEMENT dated as of May 11, 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:
“ April 15 Interest
Payments ” means the interest payments due on April 15,
2009 under the 2006 Senior Notes and the 2006 Senior Subordinated
Notes.
“ Cutoff Date ”
has the meaning specified in Section 6.07 .
“ Waiver/Forbearance
Agreement ” has the meaning specified in Section
6.07 .
(b)
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 the April
15 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 the April 15 Interest Payments shall render
inaccurate the foregoing representation unless any portion of the
April 15 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 shall have the right (after giving effect to any amendment,
waiver and/or forbearance agreements (each a “
Waiver/Forbearance Agreement ”) then in effect) to
accelerate (or to instruct the applicable trustee to accelerate)
the Indebtedness under the 2006 Senior Notes, the 2006 Senior
Subordinated Notes or the 2003 Senior Notes, respectively, or to
exercise (or to instruct the applicable trustee to exercise) any
other remedies against the Company or any of its Subsidiaries as a
result of the Company’s failure to make the April 15 Interest
Payments and (y) June 15, 2009.”
(c)
Section 7.04 of the Credit Agreement
is hereby amended by replacing the proviso at the end thereof with
the following:
“; provided that the
failure of any Loan Party to make the April 15 Interest Payments
shall not constitute a breach of this covenant unless any portion
of the April 15 Interest Payments remains unpaid on the Cutoff
Date.”
(d)
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 April
15 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.
(e)
Section 9.01(f)(i)(B) of the Credit
Agreement is hereby amended by:
(i)
inserting “(except, with
respect to the 2006 Senior Notes, the 2006 Senior Subordinated
Notes or the 2003 Senior Notes, after giving effect to any
Waiver/Forbearance Agreement then in effect)” immediately
following “the effect of which default or other event”;
and
(ii)
inserting the following proviso
immediately following “demanded” at the end
thereof:
“; provided that,
solely with respect to a default or other event that permits a
trustee on behalf of the holders or beneficiaries of the 2006
Senior Notes, the 2006 Senior Subordinated Notes or the 2003 Senior
Notes to cause, with the giving of notice if required, the
applicable Indebtedness to be demanded or to become due and
payable, if such default or other event results solely from the
failure of GGC or any Subsidiary to make the April 15 Interest
Payments, then such default or other event shall not constitute an
Event of Default pursuant to this Section 9.01(f)(i)(B) unless (x)
any portion of the April 15 Interest Payments remains unpaid on the
Cutoff Date or (y) such trustee shall have caused, with the giving
of notice if required, the applicable Indebtedness to be demanded
or to become due and payable”
(f)
Section 9.01(n) of the Credit
Agreement is hereby amended by adding the following proviso at the
end thereof:
“; provided that the
occurrence of an “Event of Default” under, and as
defined in, the 2003 Senior Notes Documents that results solely
from the failure of GGC or any Subsidiary to make the April 15
Interest Payments (including, for the avoidance of
doubt,
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pursuant to any cross-default
provision) shall not constitute an Event of Default pursuant to
this Section 9.01(n) unless any portion of the April 15 Interest
Payments remains unpaid on the Cutoff Date.”
(g)
Section 9.01(o) of the Credit
Agreement is hereby amended by adding the following proviso at the
end thereof:
“; provided that the
occurrence of an “Event of Default” under, and as
defined in, the 2006 Senior Notes Documents that results solely
from the failure of GGC or any Subsidiary to make the April 15
Interest Payments (including, for the avoidance of doubt, pursuant
to any cross-default provision) shall not constitute an Event of
Default pursuant to this Section 9.01(o) unless any portion of the
April 15 Interest Payments remains unpaid on the Cutoff
Date.”
(h)
Section 9.01(p) of the Credit
Agreement is hereby amended by adding the following proviso at the
end thereof:
“; provided that the
occurrence of an “Event of Default” under, and as
defined in, the 2006 Senior Subordinated Debt Documents that
results solely from the failure of GGC or any Subsidiary to make
the April 15 Interest Payments (including, for the avoidance of
doubt, pursuant to any cross-default provision) shall not
constitute an Event of Default pursuant to this Section 9.01(p)
unless any portion of the April 15 Interest Payments remains unpaid
on the Cutoff Date.”
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 3:00 p.m., New
York City time, on May 11, 2009 and (y) each other Lender that has
the right under the Credit Agreement to approve this Amendment 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 May 6, 2009 between GGC and BAS; and
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(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 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.
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(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)
Each Loan Party has taken all
necessary action to authorize the execution, delivery and
performance of this Amendment.
(ii)
This Amendment has been duly
executed and delivered by the Loan Parties and constitutes each of
the Loan Parties’ legal, valid and binding obligations,
enforceable in accordance with its terms, except as such
enforceability may be limited by Debtor Relief Laws and general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(iii)
No consent, approval, authorization
or order of, or filing, registration or qualification with, any
court or governmental authority or third party is required in
connection with the execution, delivery or performance by any Loan
Party of this Amendment.
(e)
The Loan Parties represent and
warrant to the Lenders that after giving effect to this Amendment
(i) the representations and warranties of the Loan Parties set
forth in Article VI of the Credit Agreement and in each other Loan
Document are true and correct in all material respects as of the
date hereof and will be true and correct in all material respects
as of the Amendment Effective Date with the same effect as if made
on and as of such dates, except to the extent such representations
and warranties expressly relate solely to an earlier date and (ii)
no event has occurred and is continuing which constitutes a Default
or an Event of Default.
(f)
Each Loan Party hereby ratifies and
confirms the security interest in and to all Collateral granted to
the Collateral Agent pursuant to the Collateral Documents and the
perfected, first priority status of such security interest as set
forth therein (subject only to liens which are permitted by the
terms of the Loan Documents to be prior to the Lien of the
Collateral Agent).
(g)
In the eve
