Exhibit 10.5
OMNIBUS AMENDMENT NO.
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THIS OMNIBUS AMENDMENT NO. 4 (this
“ Amendment ”), is dated July 27, 2009, and
relates to that certain Amended and Restated Receivables Sale and
Servicing Agreement, dated as of March 17, 2009 (as amended,
supplemented or otherwise modified prior to the date hereof, the
“ Sale Agreement ”), among the entities party
thereto as Originators (the “ Originators ”),
GGRC Corp., a Delaware corporation, as Buyer (in such capacity, the
“ Buyer ”), and Georgia Gulf Corporation, a
Delaware corporation, as Servicer (in such capacity, the “
Servicer ”) and (ii) that certain Second Amended
and Restated Receivables Purchase Agreement, dated as of
March 17, 2009 (as amended, supplemented or otherwise modified
prior to the date hereof, the “ Purchase Agreement
” and together with the Sale Agreement, the “
Agreements ” and each an “ Agreement
”), among GGRC Corp., as Seller (in such capacity, the
“ Seller ”), the “Purchasers” party
thereto (collectively, the “ Purchasers ”) and
General Electric Capital Corporation, as administrative agent (in
such capacity, the “ Administrative Agent ”),
and is hereby made by the Originators, the Buyer, the Servicer, the
Seller, the Purchasers and the Administrative Agent.
Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to them in the Sale Agreement or the Purchase
Agreement, as applicable.
RECITALS:
WHEREAS, the Originators, the Buyer
and the Servicer desire to amend the Sale Agreement on the terms
and conditions set forth herein; and
WHEREAS, the Seller, the Purchasers
and the Administrative Agent desire to amend the Purchase Agreement
on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of
the foregoing premises, the parties hereto agree as
follows:
1.
Amendments to Purchase
Agreement .
Effective as of the “Amendment Effective Date” (as
defined in Section 6 below), the Purchase Agreement is
hereby amended as follows:
(a)
Section 2.12(a) is hereby
amended and restated in its entirety as follows:
“(a) If a Purchaser
becomes a Non-Funding Purchaser, then, so long as such Purchaser
remains a Non-Funding Purchaser in accordance with clause
(b) below, notwithstanding any other provisions of this
Agreement, any amount paid by the Seller for the account of such
Non-Funding Purchaser under this Agreement (whether on account of
Capital Investment, Daily Yield, Fees, Breakage Costs, indemnity
payments or other amounts) will not be paid or distributed to such
Non-Funding Purchaser, but will, so long as such Purchaser is a
Non-Funding Purchaser, instead be retained by the Administrative
Agent in a segregated non-interest bearing account (the “
Non-Funding Purchaser Account ”), until the
Termination Date and will be applied by the Administrative Agent,
to the fullest extent permitted by law, to the making of payments
from time to time in the following order of priority (and the
Non-Funding Purchaser shall have no claims against the Seller, the
Administrative Agent or any Purchaser for making such redirected
payments): first to the payment of amounts, if any, due and
owing by such Non-Funding Purchaser to the Administrative Agent
under this Agreement, together with interest thereon owing at the
Index Rate; second to the payment of Daily Yield due and
payable to the Other Purchasers, ratably among them in accordance
with the amounts of such Daily Yield then due and payable to them;
third to the payment of fees then due and payable to the
Other Purchasers,
ratably among them in accordance
with the amounts of such fees then due and payable to them;
fourth , if as of any Settlement Date the Capital Investment
of any Other Purchaser exceeds its Pro Rata Share (as determined
without giving effect to the proviso in the definition thereof) of
the total Capital Investments, to repay the Capital Investments of
each such Other Purchaser in the amount necessary to eliminate such
excess, pro rata based on the Capital Investments of the Other
Purchasers; fifth , to make any other mandatory reductions
of Capital Investments of the Other Purchasers required under
Section 2.08, pro rata based on the Capital Investment of such
Other Purchasers; sixth to the ratable payment of other
amounts then due and payable to the Other Purchasers; and
seventh to pay any Daily Yield, Capital Investment or other
amounts owing under this Agreement to such Non-Funding Purchaser in
the order of priority set forth in Section 2.08(b)
hereof or as a court of competent jurisdiction may otherwise
direct; provided that funds shall be redirected from the
Non-Funding Purchaser Account to pay amounts owed under clauses
second through sixth solely after application of
other funds on deposit in the Agent Accounts and only to the extent
that such other funds are insufficient to make such payments.
Any funds redirected from the Non-Funding Purchaser Account to make
payments under clauses second through sixth above
shall not be deemed to be payment by the Seller for purposes of
determining whether a Termination Event has occurred and shall not
discharge any obligations of the Seller to make such payment.
To the extent that any Other Purchasers have been paid with amounts
redirected from the Non-Funding Purchaser Account, the Non-Funding
Purchaser shall, from and after payment in full of all interest,
Capital Investment and other amounts owed to the Other Purchaser,
be subrogated to the rights of the Other Purchasers to the extent
of any such payments from the Non-Funding Purchaser Account under
clause seventh above.”
(b)
Schedule 8.01 is hereby amended and
restated in its entirety as “Schedule 8.01” attached
hereto.
(c)
Section (a)(ii) of Annex
5.02(a) is hereby amended to insert the following sentence at
the end thereof:
“Notwithstanding anything in
this Purchase Agreement or any other Related Agreement to the
contrary, if the Seller requests a Capital Purchase or notifies the
Administrative Agent of a reduction in Capital Investment in
connection with the delivery of a Weekly Report in accordance with
the terms hereof, such Weekly Report shall constitute a Capital
Purchase Request or a Reduction Notice, as applicable, for all
purposes hereof (including, without limitation, for purposes of
Section 3.02 hereof.”
(d)
Section 12.07(c) is hereby
amended by adding the following to the end of such
section:
“In addition, if any Purchaser
is a Non-Funding Purchaser, at the Seller’s request, the
Administrative Agent, or a Person acceptable to the Administrative
Agent, shall have the right with the Administrative Agent’s
consent and in the Administrative Agent’s sole discretion
(but shall have no obligation) to purchase from such Non-Funding
Purchaser, and such Non-Consenting Purchaser agrees that it shall,
upon the Administrative Agent’s request, sell and assign to
the Administrative Agent or such Person, all of the Commitments and
Purchaser Interests of such Non-Funding Purchaser for an amount
equal to the Capital Investment held by the Non-Funding Purchaser
and all accrued Daily Yield and Fees with respect thereto through
the date of sale, such purchase and sale to be consummated pursuant
to an executed Assignment Agreement.”
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2.
Amendments to Annex X to the Sale
Agreement and the Purchase Agreement . Effective as of the Amendment Effective
Date, Annex X to the Sale Agreement and the Purchase Agreement is
hereby amended as follows:
(a)
The following definitions are hereby
added to Annex X to the Sale Agreement and the Purchase Agreement
in the appropriate alphabetical order:
“ 2009 Exchange Offering
Memorandum ” means the Amended and Restated Offering
Memorandum and Consent Solicitation Statement, in the form provided
by GGC to the Administrative Agent on July 7, 2009.
“ 2009 Exchange
Transaction ” means the exchange offer transaction on
substantially the terms set forth in 2009 Exchange Offering
Memorandum.
(b)
The definition of “Applicable
Index Rate Margin” is hereby amended and restated in its
entirety as follows:
“ Applicable Index Rate
Margin ” shall mean 3.25% per annum.
(c)
The definition of “Applicable
LIBOR Margin” is hereby amended and restated in its entirety
as follows:
“ Applicable LIBOR
Margin ” shall mean 4.75% per annum.
(d)
Clause (a) of the definition of
“Change of Control” in Annex X to the Sale Agreement
and the Purchase Agreement is hereby amended by inserting
“except to the extent resulting from the consummation of the
2009 Exchange Transaction,” at the beginning
thereof.
(e)
Clause (b) of the definition of
“Change of Control” in Annex X to the Sale Agreement
and the Purchase Agreement is hereby amended by inserting the
following proviso at the end thereof:
“ provided , that none
of the foregoing shall constitute a “Change of Control”
to the extent directly attributable to the reconstitution of the
board of directors of the Parent as contemplated under the terms of
the 2009 Exchange Transaction;”
(f)
The definition of “Change of
Control” in Annex X to the Sale Agreement and the Purchase
Agreement is hereby amended by (i) deleting the period at the
end of clause (f) and inserting a semicolon in the place
thereof, and (ii) inserting the following clause (g) at
the end thereof:
“(g)
the occurrence of a “Change of
Control” (or any comparable term) under, and as defined in,
the documents governing any Exchange Securities (as defined in the
Credit Agreement) or Permitted Junior Refinancing Indebtedness (as
defined in the Credit Agreement).”
(g)
the definition of “Index
Rate” in Annex X to the Sale Agreement and the Purchase
Agreement is hereby amended and restated in its entirety as
follows:
“ Index Rate ”
shall mean, for any day, a floating rate equal to:
(a)
the Applicable Index Rate
Margin
plus
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(b)
the higher of (x) 4.00% and
(y) the greatest of the following (determined by the
Administrative Agent):
(i)
the Prime Rate;
(ii)
the Federal Funds Rate plus 3.00%
per annum;
and
(iii)
the sum of:
(a)
1.50% per annum;
and
(b)(1)
the offered rate for deposits in
United States Dollars as of such date for a three month period in
United States Dollars which appears on Reuters Screen LIBOR01
Page as of 11:00 a.m., London time, on the second full
LIBOR Business Day preceding such day; divided by (b) a
number equal to 1.0 minus the aggregate (but without
duplication) of the rates (expressed as a decimal fraction) of
reserve requirements in effect on the day which is two
(2) LIBOR Business Days to such day (including basic,
supplemental, marginal and emergency reserves under any regulations
of the Board of Governors of the Federal Reserve system or other
governmental authority having jurisdiction with respect thereto, as
now and from time to time in effect) for Eurocurrency funding
(currently referred to as “Eurocurrency liabilities” in
Regulation D of such Board) which are required to be maintained by
a member bank of the Federal Reserve System;
provided that in no event shall the Index Rate for any
day be less than the LIBOR Rate for the Yield Period in which such
day occurs.
3.
Consent to Amendments to Credit
Agreement . The
Administrative Agent, by its signature below, hereby consents to
the execution and delivery by Parent of the Ninth Amendment to
Credit Agreement dated as of the date hereof among Parent, Royal
Group, Inc., the Guarantors party thereto, the lenders party
thereto, and Bank of America, National Association, as Domestic
Administrative Agent and Bank of America, National Association
acting through its Canada branch, as Canadian Administrative Agent
(the “ Ninth Amendment ”).
4.
Limited Waiver
. The Seller, the
Administrative Agent and the Requisite Purchasers hereby waive (the
“ Waiver ”), effective solely for the Waiver
Effectiveness Period (defined in the next sentence), (i) any
Termination Event that may exist under Sections 8.01(c),
8.01(f) or 8.01(x) of the Purchase Agreement, and
(ii) any Event of Servicer Termination that may exist under
Sections 8.01(b), 8.01(e) or 8.01(i) of the Sale
Agreement that arises solely from the failure by the Parent or any
Subsidiary to make the Applicable Note Interest Payments.
“ Waiver Effectiveness Period ” means the period
commencing on July 15, 2009 and ending on the first to occur
of (i) the date on which the 2009 Exchange Transaction shall
have been consummated, (ii) the date of termination or
expiration of the exchange offer contemplated by the 2009 Exchange
Offering Memorandum (as the same may be amended), (iii) the
date on which (x) any of the indebtedness outstanding under
the 2003 Senior Notes, the 2006 Senior Notes or the 2006 Senior
Subordinated Notes shall have been accelerated or (y) any
other exercise of remedies or other enforcement action shall have
been taken with respect to the 2003 Senior Notes, the 2006 Senior
Notes or the 2006 Senior Subordinated Notes in accordance with the
terms thereof and (iv) 11:59 p.m. on July 30,
2009. The Waiver granted pursuant to this
Section 4 shall be limited precisely as written,
and
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shall not extend to any other Termination Event
or Event of Servicer Termination under the Purchase Agreement or
the Sale Agreement, or to any Termination Event under Sections
8.01(c), 8.01(f) or 8.01(x) of the Purchase Agreement or
any Event of Servicer Termination under Sections 8.01(b),
8.01(e) or 8.01(i) of the Sale Agreement which may exist
after the end of the Waiver Effectiveness Period.
5.
Representations and
Warranties .
(a)
As of the Amendment Effective Date,
Seller hereby represents and warrants to the Administrative Agent
and the Purchasers that (i) all of the representations and
warranties of Seller in the Related Documents are true and correct
in all material respects on and as of such date as though made to
each such Person on and as of such date (other than representations
and warranties which expressly speak as of a different date, which
representations shall be made only on such date) and (ii) as
of such date, no Incipient Termination Event, Termination Event,
Incipient Servicer Termination Event or Event of Servicer
Termination has occurred and is continuing.
(b)
As of the Amendment Effective Date,
each of the Transaction Parties hereby represents and warrants to
Buyer that (i) all of the representations and warranties of
such Person in the Related Documents are true and correct in all
material respects on and as of such date as though made to each
such Person on and as of such date (other than representations and
warranties which expressly speak as of a different date, which
representations shall be made only on such date) and (ii) as
of such date, no Incipient Termination Event, Termination Event,
Incipient Servicer Termination Event or Event of Servicer
Termination has occurred and is continuing.
6.
Effective Dates
. Subject to the proviso to
this Section 6 , the “ Amendment Effective
Date ” shall occur upon:
(a)
receipt by the Administrative Agent
of: (i) counterparts of this Amendment executed by each of the
Persons identified on the signature pages hereto, (ii) a
fully executed copy of the Ninth Amendment;
(b)
receipt by the Administrative Agent
of (i) for the account of each Purchaser that has executed
this Amendment, a fee equal to 0.25% of the aggregate amount of
each such Purchaser’s Commitment, (ii) all fees and
other amounts to be paid under the fee letter, dated the date
hereof, between the Administrative Agent and the Seller and
(iii) any fees and expenses of the Administrative Agent
(including reasonable attorneys’ fees of the Administrative
Agent) in connection with the Related Documents. Such fees shall be
fully earned and payable upon satisfaction of each of the other
conditions set forth in this Section 6 and shall be
nonrefundable when paid;
(c)
the consummation of the 2009
Exchange Transaction or the consummation of such 2009 Exchange
Transaction substantially simultaneously with the effectiveness of
this amendment; and
(d)
each of the conditions precedent set
forth in Section 5 of the Ninth Amendment shall be
satisfied;
provided , however , that (i) the
consent contemplated by Section 3 hereof and
(ii) the Waiver contemplated pursuant to Section 4
(and no other provision of this Amendment) shall become effective
upon satisfaction of the conditions set forth in Sections
6(a) .
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7.
Reference to and Effect on the
Related Documents .
(a)
As applicable, on and after the
Amendment Effective Date, each reference in any Agreement to
“this Agreement”, “hereunder”,
“hereof” or words of like import, and each reference in
the other Related Documents to such Agreement, shall mean and be a
reference to such Agreement as modified hereby.
(b)
Parent shall deliver to the
Administrative Agent copies of the certificate of designations and
any other documents governing the terms of any Equity Interests
issued in connection with the 2009 Exchange Transaction immediately
upon the effectiveness thereof, and agrees that its failure to do
so within two days after the effectiveness thereof shall constitute
a Termination Event.
(c)
Except as specifically amended or
consented to above, all of the terms of each Agreement and all
other Related Documents remain unchanged and in full force and
effect.
(d)
The execution, delivery and
effectiveness of this Amendment shall not, other than as set forth
herein, operate as a waiver of any right, power or remedy of any
party under any of the Related Documents, nor constitute an
amendment or waiver, other than as set forth herein, of any
provision of any of the Related Documents, nor obligate any such
party to agree to similar consents in the future.
(e)
This Amendment shall constitute a
Related Document.
8.
Miscellaneous
. The headings herein are for
convenience of reference only and shall not alter or otherwise
affect the meaning hereof.
9.
Counterparts
. This Amendment may be
executed in any number of counterparts and by the different parties
hereto in separate counterparts, each of which when so executed and
delivered by facsimile shall be an original, but all of which shall
together constitute one and the same instrument.
10.
GOVERNING LAW
. THIS AMENDMENT AND THE
OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES).
11.
Release .
(a)
The Seller, each Transaction Party
and their respective successors, assigns and legal representatives
(collectively, the “ Releasors ”), releases,
acquits and forever discharges each Administrative Agent and each
Purchaser (collectively, the “ Purchaser Parties
”), and their respective subsidiaries, parents, affiliates,
officers, directors, employees, agents, attorneys, advisors,
successors and assigns, both present and former (collectively, the
“ Purchaser 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 Purchaser Parties and/or the
Purchaser 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 Related
Documents and the Purchases, including but not
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limited to any Claims or defense that relates
to, in whole or in part, directly or indirectly: (i) the
Purchase Agreement or any other Related Document or the
transactions contemplated thereby; (ii) the making of any
Purchases under the Related Documents; (iii) any actual or
proposed use by the Seller of the Purchases; (iv) any actions
or omissions of any Purchaser Party or Purchaser Party Affiliate in
connection with the initiation or continuing exercise of any right
or remedy contained in the Related Documents at law or in equity;
(v) the making or administration of the Purchases, 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 Related 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)
The Seller and each Transaction
Party, on behalf of itself and its successors, assigns, and other
legal representatives, hereby unconditionally and irrevocably
agrees that it will not sue any Purchaser Party or Purchaser Party
Affiliate on the basis of any Claim released, remised and
discharged by the Seller or such Transaction Party pursuant to this
Section 11. If the Seller or any Transaction Party or
any of their respective successors, assigns or other legal
representatives violates the foregoing covenant, the Seller and
each Transaction Party, for itself and its successors, assigns and
legal representatives, agrees to pay, in addition to such other
damages as any Purchaser Party or Purchaser Party Affiliate may
sustain as a result of such violation, all reasonable and
documented attorneys’ fees and costs incurred by any
Purchaser Party or Purchaser Party Affiliate as a result of such
violation.
* * *
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IN WITNESS WHEREOF, the parties
hereto have caused this Amendment to be executed by their
respective signatories thereunto duly authorized as of the date
first above written.
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GEORGIA GULF CORPORATION, as Servicer and as an
Originator
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By:
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/s/ Joel I. Beerman
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Name:
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Joel I. Beerman
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Title:
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Vice President
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GEORGIA GULF CHEMICALS & VINYLS, LLC,
as an Originator
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By:
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/s/ Joel I. Beerman
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Name:
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Joel I. Beerman
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Title:
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Vice President
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GEORGIA GULF LAKE CHARLES, LLC, as an
Originator
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By:
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/s/ Joel I. Beerman
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Name:
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Joel I. Beerman
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Title:
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Vice President
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ROYAL MOULDINGS LIMITED, as an
Originator
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By:
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/s/ Joel I. Beerman
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Name:
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Joel I. Beerman
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Title:
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Vice President
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ROYAL GROUP, INC., as an Originator
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By:
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/s/ Joel I. Beerman
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Name:
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Joel I. Beerman
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Title:
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Vice President
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ROYAL WINDOW AND DOOR PROFILES PLANT 12 INC., as
an Originator
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By:
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/s/ Joel I. Beerman
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Name:
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Joel I. Beerman
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Title:
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Vice President
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ROYAL WINDOW AND DOOR PROFILES PLANT 13 INC., as
an Originator
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By:
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/s/ Joel I. Beerman
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Name:
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Joel I. Beerman
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Title:
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Vice President
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ROYAL WINDOW AND DOOR PROFI
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