Exhibit 10.3
CONSENT AND AGREEMENT IN
CONNECTION WITH AMENDED AND RESTATED RECEIVABLES PURCHASE
AGREEMENT
THIS CONSENT AND AGREEMENT IN
CONNECTION WITH AMENDED AND RESTATED RECEIVABLES PURCHASE
AGREEMENT , dated as of September 10, 2008 (this
“ Consent ”), is entered into by and among GGRC
Corp. (as “ Seller ”), Georgia Gulf Corporation
(“ Georgia Gulf ”), Royal Mouldings Limited
(“ Royal Mouldings ”), and Georgia Gulf
Chemicals and Vinyls, LLC (individually and together with Georgia
Gulf and Royal Mouldings, the “ Servicers ,” and
the Servicers, together with Seller, the “ Seller
Parties ”), Variable Funding Capital Company LLC (as
successor in interest to Variable Funding Capital Corporation
(successor in interest to Blue Ridge Asset Funding Corporation)),
(“ VFCC ”), Victory Receivables Corporation
(“ Victory ” and as a purchaser, a “
Purchaser ,” and together with VFCC, the “
Purchasers ”), Wachovia Bank, National Association
(individually and as a purchaser agent for the VFCC Purchaser
Group, the “ VFCC Purchaser Agent ,” and as
administrative agent, the “ Administrative Agent
”) and The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York
Branch (f/k/a The Bank of Tokyo-Mitsubishi, Ltd., New York Branch)
(individually and as purchaser agent for the Victory Purchaser
Group, the “ Victory Purchaser Agent ,” and
together with the VFCC Purchaser Agent and the Administrative
Agent, the “ Agents ”). Capitalized terms
used and not otherwise defined herein are used as defined in the
Agreement (as defined below).
WHEREAS
, the Seller Parties, the Purchasers and the
Agents have entered into that certain Amended and Restated
Receivables Purchase Agreement, dated as of November 12, 2004
(as the same may be amended, restated or otherwise modified from
time to time, the “Agreement” );
WHEREAS, the Servicers have entered into that certain
Fourth Amendment to Credit Agreement, dated as of the date hereof
(the “ Credit Agreement Amendment ,” a copy of
which is attached hereto as Exhibit 1), which has the effect
of amending certain defined terms in the Credit Agreement (the
“ Definition Amendments ”), which terms are used
in certain defined terms from the Credit Agreement that have been
incorporated by reference into the Agreement, and the Servicers
have requested that the Agents, and the Agents have agreed, to
consent to the Definition Amendments;
NOW THEREFORE
, in consideration of the premises and the other
mutual covenants contained herein, the parties agree as
follows:
SECTION 1. Consent
to Definition Amendments .
Each of the Agents and the
Purchasers hereby consents to the amendments made in the Credit
Agreement Amendment to any of the defined terms from the Credit
Agreement that are used in the definitions of “Consolidated
EBITDA,” “Interest Coverage Ratio,”
“Interest Coverage Ratio Trigger Level,”
“Leverage Ratio” and “Leverage Ratio Trigger
Level.”
Accordingly, from and after the date
hereof, such terms will be defined as set forth on Annex A
hereto.
SECTION 2.
Representations and Warranties .
As of the date hereof, each Seller
Party hereby (i) reaffirms all representations and warranties
made by it in the Agreement (as amended hereby) and agrees that all
such covenants, representations and warranties shall be deemed to
have been restated as of the Effective Date of this Consent (except
with respect to any representation or warranty that by its terms is
made as of a specific date, in which case, each such representation
or warranty shall be true and correct as of such specified date)
and (ii) represents and warrants to each Purchaser and each
Agent that no Pledge Default has occurred and is continuing and
that neither the Credit Agreement nor the Collateral Agreement has
been amended or modified in a manner that would cause a breach of
any representation, warranty or covenant by either such Seller
Party under the Agreement or any other Transaction Document (after
giving effect to the terms of this Consent). Each Seller Party each
further represents and warrants, as to itself, to each Purchaser
and each Agent that: (i) the execution and delivery by it of
this Consent are within its corporate or limited liability company
powers, have been duly authorized by all necessary corporate or
limited liability company action, will not violate any requirement
of law applicable to it or any of its contractual obligations and
will not result in, or require, the creation or imposition of any
Lien on any of its properties, (ii) no authorization or
approval or other action by, and no notice or filing with, any
Governmental Authority is required, and which has not been obtained
or made, for the due execution, delivery and performance by it of
this Consent, (iii) this Consent is its legal, valid and
binding obligation, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting
creditors’ rights generally and by general principles of
equity and (iv) it is in compliance with all applicable
requirements of law where the failure to be in compliance is
reasonably likely to have a Material Adverse Effect. The
representations and warranties set forth above shall survive the
execution of this Consent.
SECTION 3.
Effectiveness and Effect .
This Consent shall become effective
as of the date (the “ Effective Date ”) on which
the Administrative Agent shall have received:
(a) counterparts of this Consent, duly executed by each of the
parties hereto, and (b) counterparts of a Fourth Amended and
Restated Fee Letter, duly executed by each of the Agents, the
Purchasers and the Seller Parties. Each of the Agents, the
Purchasers and the Seller Parties agree that this Consent has
complied with Section 14.1 of the Agreement.
SECTION 4.
Reference to and Effect on the Agreement and the Related
Documents .
Upon the effectiveness of this
Consent, each reference in the Agreement to “this
Agreement”, “hereunder”, “hereof”,
“herein” or words of like import shall mean and be, and
any references to the Agreement in any other document, instrument
or agreement executed and/or delivered in connection with the
Agreement shall mean and be, a reference to the Agreement as
amended hereby.
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SECTION 5.
Governing Law .
THIS CONSENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF)
OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW.
SECTION 6.
Severability .
Each provision of this Consent shall
be severable from every other provision of this Consent for the
purpose of determining the legal enforceability of any provision
hereof, and the unenforceability of one or more provisions of this
Consent in one jurisdiction shall not have the effect of rendering
such provision or provisions unenforceable in any other
jurisdiction.
SECTION 7.
Counterparts .
This Consent may be executed in one
or more counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the
same instrument. To the maximum extent permitted by
applicable law, a signed counterpart of this Consent delivered by
facsimile or as a pdf or other image file attached to an electronic
mail message shall have the same force and effect as an originally
executed counterpart.
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IN WITNESS
WHEREOF, each of the
parties hereto have caused this Consent to be executed by their
respective officers thereunto duly authorized as of the day and
year first above written.
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GGRC CORP.
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By:
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/s/ Joel I. Beerman
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Name: Joel I. Beerman
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Title: Vice President
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GEORGIA GULF CORPORATION
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By:
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/s/ Joel I. Beerman
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Name: Joel I. Beerman
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Title: Vice President
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GEORGIA GULF CHEMICALS AND VINYLS,
LLC
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By:
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/s/ Joel I. Beerman
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Name: Joel I. Beerman
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Title: Vice President
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ROYAL MOULDINGS LIMITED
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By:
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/s/ Joel I. Beerman
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Name: Joel I. Beerman
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Title: Vice President
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VARIABLE FUNDING CAPITAL COMPANY LLC
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BY: WACHOVIA CAPITAL MARKETS, LLC, AS
ATTORNEY-IN-FACT
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By:
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/s/ Haojin Wu
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Name: Haojin Wu
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Title: Vice President
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WACHOVIA BANK, NATIONAL ASSOCIATION, as Purchase
Agent for the VFCC Group
and as Administrative Agent
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By:
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/s/ William P. Rutkowski
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Name: William P. Rutkowski
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Title: Vice President
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VICTORY RECEIVABLES CORPORATION
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By:
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/s/ Louise E. Colby
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Name: Louise E. Colby
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Title: Vice President
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THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD.,
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NEW YORK BRANCH, as Purchaser Agent for the
Victory Group
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By:
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/s/ Aditya Reddy
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Name: Aditya Reddy
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Title: Vice President
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6
ANNEX A
TO
CONSENT AND AGREEMENT IN CONNECTION WITH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
As used in the Agreement:
“Attributable
Indebtedness” means, on any date, (a) in respect of any
Capital Lease (as defined in the Credit Agreement)of any Person,
the capitalized amount thereof that would appear on a balance sheet
of such Person prepared as of such date in accordance with GAAP,
(b) in respect of any Synthetic Lease Obligation (as defined
in the Credit Agreement), the capitalized amount of the remaining
lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance
with GAAP if such lease were accounted for as a Capital Lease and
(c) in respect of any Securitization Transaction (as defined
in the Credit Agreement) of any Person, the outstanding principal
amount of such financing, after taking into account reserve
accounts and making appropriate adjustments, determined by the
Domestic Administrative Agent (as defined in the Credit
Agreement)in its reasonable judgment.
“Consolidated Cash
Interest Charges” means, for any period, for Georgia Gulf and its
Subsidiaries on a consolidated basis, the excess of (a) the
sum of (i) the interest expense (including imputed interest
expense under Capital Leases (as defined in the Credit Agreement))
for such period, in accordance with GAAP, plus (ii) the
implied interest component of Synthetic Leases (as defined in the
Credit Agreement) with respect to such period, plus (iii) any
interest accrued during such period in respect of Indebtedness that
is required to be capitalized rather than included in consolidated
interest expense for such period in accordance with GAAP, plus
(iv) any cash payments (other than fees and expenses paid in
connection with the closing under thi
