Exhibit 10.1
SECOND AMENDMENT TO CREDIT AGREEMENT
AND WAIVER
THIS SECOND AMENDMENT TO CREDIT
AGREEMENT AND WAIVER dated as of March 14, 2007 (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 provide the waivers set forth below in Section 1 and also
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:
1.
Waivers .
(a)
Notwithstanding the terms of Section 7.14 of the Credit Agreement,
the Lenders hereby agree that the Canadian Borrower shall not be
required to give the Canadian Collateral Agent or GGC a Lien on its
right, title and interest in and to (a) that certain Lease of
Industrial Building dated November 14, 2006 between OMERS Realty
Corporation and the Canadian Borrower (the “ Industrial
Lease ”); provided that the Industrial Lease is not
extended beyond March 31, 2007 and (b) that certain Lease of
Multi-Tenant Industrial Space dated November 14, 2006 between OMERS
Realty Corporation and the Canadian Borrower (the “
Multi-Tenant Lease ”); provided that the Multi-Tenant
Lease is not extended beyond September 30, 2007.
(b)
Notwithstanding the terms of Section 8.11(a) of the Credit
Agreement, the Lenders hereby agree that the Loan Parties shall not
be required to comply with the terms of Section 8.11(a) of the
Credit Agreement as of the end of the fiscal quarter ending
December 31, 2006.
(c)
The above waivers shall not modify or affect the Loan
Parties’ obligations to comply fully with the terms of
Section 7.14, Section 8.11(a) or any other duty, term, condition or
covenant contained in the Credit Agreement or any other Loan
Document in the future. This waiver is limited solely to the
specific waivers identified above, and nothing contained in this
Amendment shall be deemed to constitute a waiver of any other
rights or remedies the
Administrative Agents or any Lender
may have under the Credit Agreement or any other Loan Document or
under applicable law.
2.
Amendments .
(a)
The following definitions are hereby added to Section 1.01 of the
Credit Agreement in the appropriate alphabetical order to read as
follows:
“ Permitted Canadian
Dispositions ” means, subsequent to the Second Amendment
Effective Date, the sale or disposition by the Canadian Loan
Parties of properties having a fair market value not exceeding
$65,000,000 in the aggregate.
“ Permitted Sale and
Leaseback Transactions ” means, subsequent to the Second
Amendment Effective Date, the sale and leaseback by the Canadian
Loan Parties of properties having a fair market value not exceeding
$125,000,000 in the aggregate.
“ Second Amendment
Effective Date ” means March 14, 2007.
(b)
The proviso in the definition of “ Consolidated EBITDA
” in Section 1.01 of the Credit Agreement is hereby amended
to read as follows:
provided that Consolidated EBITDA for the fiscal quarter
periods ending March 31, 2006, June 30, 2006 and September 30, 2006
shall be deemed to equal the amounts set forth on Schedule
1.01(a) opposite each such fiscal quarter period.
(c)
The definition of “ Consolidated Net Income ” in
Section 1.01 of the Credit Agreement is hereby amended to read 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 extraordinary
non-cash loss, (3) for any fiscal quarter period ending prior to
the Closing Date, any extraordinary loss paid in cash during such
period and (4) for the fiscal quarter ending December 31, 2006, any
charge or loss during such period but only to the extent similar
types of charges or losses were added back to Consolidated EBITDA
in calculating Consolidated EBITDA for the fiscal quarters ending
March 31, 2006, June 30, 2006 and September 30, 2006 pursuant to
the proviso in the definition of Consolidated EBITDA, each in
accordance with GAAP 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.
(d)
Subclause (a) of the definition of “ Domestic L/C
Issuer ” in Section 1.01 of the Credit Agreement is
hereby amended to read as follows:
(a) with respect to the Existing
Domestic Letters of Credit set forth in Schedule 1.01(c) ,
JPMorgan Chase Bank
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(e)
The “.” at the end of the subclause (n) of Section 8.03
of the Credit Agreement is hereby replaced with “; and”
and the following new subclause (o) is hereby added at the end of
Section 8.03 to read as follows:
(o)
Indebtedness of GGC under that certain letter of credit number
issued by Wachovia Bank, National Association in favor of First
Citizens Bank & Trust Company, as trustee, in the face amount
of US$17,736,667.
(f)
Section 2.05(b)(vi)(B)(2) of the Credit Agreement is hereby amended
to read as follows:
(2)
subject to clause (E) below, if the assets subject to any such
Disposition or Involuntary Disposition were owned by the Canadian
Borrower or any of its Canadian Subsidiaries, to the Canadian
Revolving Loans (other than the Bankers’ Acceptance
Advances), a cash collateral account in respect of the
Bankers’ Acceptance Advances and the Canadian Swing Line
Loans and then to Cash Collateralize the Canadian L/C Obligations;
or
(g)
A new Section 2.05(b)(vi)(E) is hereby added to the Credit
Agreement following Section 2.05(b)(vi)(D) to read as
follows:
(E)
with respect to any Net Cash Proceeds received by the Canadian
Borrower or any of its Canadian Subsidiaries from any Permitted
Sale and Leaseback Transaction or any Permitted Canadian
Disposition, the Canadian Borrower may elect to use such Net Cash
Proceeds to prepay the Holdco Loan rather than prepay the Canadian
Obligations in accordance with Section 2.05(b)(vi)(B)(2) ;
provided, that, GGC immediately uses the proceeds received from
such prepayment of the Holdco Loan to prepay the Term Loan (ratably
to the remaining principal amortization payments thereof), or if
the Term Loan has been paid in full, to the Domestic Revolving
Loans and then to Cash Collateralize the Domestic L/C
Obligations.
(h)
Section 8.02(g) of the Credit Agreement is hereby amended to read
as follows:
(g)
Holdco Loan by GGC to Holdco in the aggregate principal amount of
CAN $666,000,000 (as such
aggregate amount may be reduced in accordance with Section
8.12(c) ); provided that (x) such Holdco Loan is evidenced by
the Holdco Note and secured by the assets of Holdco and its
Canadian Subsidiaries pursuant to the Intercompany Security
Documents and such other documentation reasonably satisfactory to
the Domestic Collateral Agent, (y) the rights of GGC under such
Holdco Note and Intercompany Security Documents have been pledged
to the Domestic Collateral Agent pursuant to the Collateral
Assignment Documents and (z) the entire principal amount of such
Holdco Loan remains outstanding for the entire term of this
Agreement (other than reductions in the principal amount thereof
pursuant to any prepayment of the Holdco Loan permitted by
Section 8.12(c) );
(i)
Section 8.02(j) of the Credit Agreement is hereby amended to read
as follows:
(j)
any other Investments (valued on the date each such Investment is
made and without regard to subsequent changes in value) in an
amount not to exceed $25,000,000 in the aggregate at any time
outstanding.
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(j)
Section 8.05 of the Credit Agreement is hereby amended to read as
follows:
8.05
Dispositions .
Make any Disposition other than
(a) the sale of those certain
Subsidiaries and assets identified in the Disposition and
Dissolution Letter, (b) the Permitted Sale and Leaseback
Transactions, (c) the Permitted Canadian Dispositions and (d) any
other Dispositions in which (i) at least 80% of the total consideration
paid in connection therewith shall be cash or Cash Equivalents paid
contemporaneous with consummation of the transaction and shall be
in an amount not less than the fair market value of the property
disposed of, (ii) if such transaction is a Sale and Leaseback
Transaction, such transaction is not prohibited by the terms of
Section 8.14 , (iii) such transaction does not involve the
sale or other disposition of a minority equity interest in any
Subsidiary, (iv) such transaction does not involve a sale or other
disposition of receivables other than (A) receivables owned by or
attributable to other property concurrently being disposed of in a
transaction otherwise permitted under this Section 8.05 and
(B) the sale of accounts receivable pursuant to a permitted
Securitization Transaction and (v) the aggregate fair market value of
all of the assets sold or otherwise disposed of by GGC and its
Subsidiaries in all such transactions in any fiscal year of GGC
pursuant to this clause (d) shall not exceed
$150,000,000.
(k)
Section 8.12(c) of the Credit Agreement is hereby amended to read
as follows:
(c)
(i) Accept or permit to be made any principal payment on the Holdco
Loan (other than any prepayment of the Holdco Loan in accordance
with the terms of Section 2.05(b)(vi)(E) ); provided
, however , prepayments may be made by Holdco, and accepted
by GGC, on the Holdco Loan provided that after giving effect to any
such prepayment the U.S. Dollar Equivalent of the principal amount
outstanding under the Holdco Loan equals or exceeds the sum of (A)
the principal amount of the Term Loan then outstanding and (B) the
Aggregate Domestic Revolving Commitments then in effect, (ii) amend
or modify the Holdco Note or any Intercompany Security Document or
(iii) assign, or consent to any assignment by Holdco or any
Canadian Subsidiary, of the Holdco Note or any Intercompany
Security Document.
(l)
Section 8.14 of the Credit Agreement is hereby amended to read as
follows:
8.14
Sale Leasebacks .
Enter into
subsequent to the Closing Date any Sale and Leaseback Transactions
which, considered in the aggregate with all Sale and Leaseback
Transactions engaged in by GGC and its Subsidiaries subsequent to
the Closing Date, involve properties having a fair market value in
excess of $10,000,000; provided , that the foregoing
limitation shall not apply to (i) temporary, short-term leasebacks
with a term not to exceed six (6) months at a market rent to
facilitate transition following a sale of a business, (ii) other
sale leasebacks of space for convenience where the aggregate lease
payments (undiscounted) for such leases do not exceed $20,000,000
at any time or (iii) the Permitted Sale and Leaseback Transactions;
provided that the Net Cash Proceeds received from any such
Sale and Leaseback Transaction are used by the Loan Parties to
prepay the Obligations to the extent and in the manner required by
Section 2.05 . For the avoidance of doubt, it is
understood and agreed that all Sale and Leaseback Transactions are
Dispositions and therefore subject to the limitations on
Dispositions in Section 8.05 .
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(m)
Schedule 1.01(a) of the Credit Agreement is hereby amended to read
as provided on Schedule 1.01(a) attached hereto.
(n)
Schedule 1.01(c) of the Credit Agreement is hereby amended to
remove the reference to Wachovia Bank, National Association and
that certain letter of credit issued by Wachovia Bank, National
Association referenced thereon.
(o)
Schedule 11.02 of the Credit Agreement is hereby amended to read as
provided on Schedule 11.02 attached hereto.
3.
Conditions Precedent . This Amendment shall become
effective upon 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 the
Administrative Agents.
4.
Miscellaneous .
(a)
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.
(b)
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.
(c)
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.
(d)
The Loan Parties represent and warrant to the Lenders that (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
with the same effect as if made on and as of the date hereof,
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.
(e)
This Amendment may be executed in any number of counterparts, each
of which when so executed and delivered shall be an original, but
all of which shall constitute one and the
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same instrument. Delivery of
an executed counterpart of this Amendment by telecopy shall be
effective as an original and shall constitute a representation that
an executed original shall be delivered.
(f)
THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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