Exhibit 10.1
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT dated as of May 10, 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 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. Amendments.
(a) The following definition is hereby added to Section 1.01 of the Credit Agreement in the appropriate alphabetical order to read as follows:
“Third Amendment Effective Date” means May 10, 2007.
(b) The definition of “Applicable Rate” in Section 1.01 of the Credit Agreement is hereby amended to read as follows:
“Applicable Rate” means (a) with respect to the Revolving Loans that are Base Rate Loans, Eurodollar Rate Loans or Bankers’ Acceptance Advances, Letters of Credit and Commitment Fees, the following percentages per annum, based upon the Consolidated Adjusted Leverage Ratio as set forth in the most recent Compliance Certificate received by the Domestic Administrative Agent pursuant to Section 7.02(b):
Pricing Tier | | Consolidated Adjusted Leverage Ratio | | Commitment Fees | | Eurodollar Rate Loans and Letter of Credit Fee | | Bankers Acceptance Advances | | Base Rate Loans | |
1 | | ³ 5.00:1.00 | | 0.50 | % | 2.50 | % | 2.50 | % | 1.50 | % |
2 | | ³ 4.50:1.0 < 5.00:1.00 | | 0.50 | % | 2.375 | % | 2.375 | % | 1.375 | % |
3 | | ³ 4.00:1.0 < 4.50:1.00 | | 0.50 | % | 2.00 | % | 2.00 | % | 1.00 | % |
4 | | ³ 3.50:1.0 < 4.00:1.00 | | 0.375 | % | 1.75 | % | 1.75 | % | 0.75 | % |
5 | | ³ 3.00:1.0 < 3.50:1.00 | | 0.375 | % | 1.50 | % | 1.50 | % | 0.50 | % |
6 | | ³ 2.50:1.0 < 3.00:1.00 | | 0.375 | % | 1.25 | % | 1.25 | % | 0.25 | % |
7 | | < 2.50:1.00 | | 0.375 | % | 1.00 | % | 1.00 | % | 0.00 | % |
and (b) with respect to the Term Loan, the following percentages per annum, based upon the Consolidated Adjusted Leverage Ratio as set forth in the most recent Compliance Certificate received by the Domestic Administrative Agent pursuant to Section 7.02(b):
Pricing Tier | | Consolidated Adjusted Leverage Ratio | | Term Loan Eurodollar Rate Loans | | Term Loan Base Rate Loans | |
1 | | ³ 5.00:1.00 | | 2.50 | % | 1.50 | % |
2 | | ³ 3.50:1.0 < 5.00:1.00 | | 2.00 | % | 1.00 | % |
3 | | < 3.50:1.00 | | 1.75 | % | 0.75 | % |
Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Adjusted Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 7.02(b); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Tier 1 with respect to both pricing grids shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall continue to apply until the first Business Day immediately following the date a Compliance Certificate is delivered in accordance with Section 7.02(b), whereupon the Applicable Rate shall be adjusted based upon the calculation of the Consolidated Adjusted Leverage Ratio contained in such Compliance Certificate. Notwithstanding the foregoing, (i) the Applicable Rate for Revolving Loans, Bankers’ Acceptance Advances, Letters of Credit and Commitment Fees in effect from the Third Amendment Effective Date through the first Business Day immediately following the date a Compliance Certificate is required to be delivered pursuant to Section 7.02(b) for the fiscal quarter ending March 31, 2007 shall be determined based upon Pricing Tier 1 in the first pricing grid and (ii) the Applicable Rate for the Term Loan in effect from the Third Amendment Effective Date through the first Business Day immediately following the date a Compliance Certificate is required to be delivered pursuant to Section 7.02(b) for the fiscal quarter ending March 31, 2007 shall be determined based upon Pricing Tier 1 in the second pricing grid.
(c) The definition of “Canadian Letter of Credit Sublimit” in Section 1.01 of the Credit Agreement is hereby amended to read as follows:
“Canadian Letter of Credit Sublimit” means an amount equal to US$80,000,000. The Canadian Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Canadian Revolving Commitments.
(d) The definition of “Consolidated EBITDA” in Section 1.01 of the Credit Agreement is hereby amended to read as follows:
“Consolidated EBITDA” means, for any period, for GGC and its Subsidiaries on a consolidated basis, the sum of (a) Consolidated Net Income for such period, plus (b) to the extent deducted in determining such Consolidated Net Income for such period, the
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aggregate amount of (i) interest expense, (ii) income tax expense, (iii) depreciation and amortization (including without limitation amortization of debt issuance costs), (iv) non-cash charges (including any non-cash charges resulting from purchase accounting adjustment entries associated with the Royal Acquisition in an aggregate amount not to exceed $17,999,000 for the fiscal quarter ending December 31, 2006 and in an aggregate amount not to exceed $2,101,000 for the fiscal quarter ending March 31, 2007) which do not represent a cash item in such period or any future period and (v) for the fiscal quarter ending December 31, 2006 only, forward contract losses during such period related to the forward contracts purchased by GGC to protect against fluctuations in the US$/CAN$ exchange rate in an aggregate amount not to exceed $4,997,000. For purposes of this definition, “interest” shall include yield, discount or other similar financing costs pursuant to any Securitization Transaction; 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.
(e) Clause (b) in the definition of “Domestic L/C Issuer” in Section 1.01 of the Credit Agreement is hereby amended to read as follows:
(b) with respect to all other Domestic Letters of Credit, Bank of America, JPMorgan Chase Bank and one other Domestic Revolving Lender who has been selected by GGC and who has agreed to act as a Domestic L/C Issuer hereunder in accordance with the terms hereof, or any successor issuer of Domestic Letters of Credit hereunder.
(f) The following sentence is hereby added at the end of the definition of “Domestic Letter of Credit” in Section 1.01 of the Credit Agreement:
The Lenders agree that the letters of credit identified on Schedule 1.01(e) are Domestic Letters of Credit under this Agreement and shall be subject to and governed by the terms and conditions of this Agreement.
(g) The following sentence is hereby added at the end of Section 7.01(b) of the Credit Agreement:
Notwithstanding the foregoing provisions of this Section 7.01(b), (x) the Loan Parties shall have until the earlier of the date that is sixty (60) days after the end of the fiscal quarter of GGC ending March 31, 2007 or the date such information is filed with the SEC to deliver the financial statements required by this Section 7.01(b) for such fiscal quarter, (y) the Loan Parties shall have until the earlier of the date that is sixty (60) days after the end of the fiscal quarter of GGC ending June 30, 2007 or the date such information is filed with the SEC to deliver the financial statements required by this Section 7.01(b) for such fiscal quarter and (z) the Loan Parties shall have until the earlier of the date that is fifty (50) days after the end of the fiscal quarter of GGC ending September 30, 2007 or the date such information is filed with the SEC to deliver the financial statements required by this Section 7.01(b) for such fiscal quarter.
(h) Section 8.11 of the Credit Agreement is hereby amended to read as follows:
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8.11 Financial Covenants.
(a) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage Ratio as of the end of any fiscal quarter of GGC to be less than the ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ending | | Consolidated Interest Coverage Ratio | |
March 31, 2007 | | 1.50:1.0 | |
June 30, 2007 | | 1.50:1.0 | |
September 30, 2007 | | 1.50:1.0 | |
December 31, 2007 | | 1.75:1.0 | |
March 31, 2008 | | 1.75:1.0 | |
June 30, 2008 | | 2.00:1.0 | |
September 30, 2008 | | 2.00:1.0 | |
December 31, 2008 | | 2.25:1.0 | |
March 31, 2009 | | 2.50:1.0 | |
June 30, 2009 | | 2.50:1.0 | |
September 30, 2009 | | 2.75:1.0 | |
December 31, 2009 and thereafter | | 3.00:1.0 | |
(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of the end of any fiscal quarter of GGC to be greater than the ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ending | | Consolidated Leverage Ratio | |
March 31, 2007 | | 6.50:1.0 | |
June 30, 2007 | | 8.50:1.0 | |
September 30, 2007 | | 8.25:1.0 | |
December 31, 2007 | | 7.00:1.0 | |
March 31, 2008 | | 6.25:1.0 | |
June 30, 2008 | | 6.25:1.0 | |
September 30, 2008 | | 5.75:1.0 | |
December 31, 2008 | | 5.25:1.0 | |
March 31, 2009 | | 4.75:1.0 | |
June 30, 2009 | | 4.25:1.0 | |
September 30, 2009 | | 4.00:1.0 | |
December 31, 2009 | | 3.75:1.0 | |
March 31, 2010 and thereafter | | 3.50:1.0 | |
(i) Section 8.15 of the Credit Agreement is hereby amended to read as follows:
8.15 Capital Expenditures.
Permit Consolidated Capital Expenditures during any fiscal year to exceed an amount equal to the amount set forth opposite such fiscal year below:
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Fiscal Year | | Consolidated Capital Expenditures | |
2007 | | $ | 100,000,000 | |
2008 | | $ | 90,000,000 | |
2009 and thereafter | | $ | 135,000,000 | |
(j) A new Schedule 1.01(e) is hereby added to the Credit Agreement to read as provided on Schedule 1.01(e) attached hereto.
2. Conditions Precedent. This Amendment shall be effective upon satisfaction of the following conditions precedent:
(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 and 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 each Lender who executes this Amendment on or before May 10, 2007, an agreed upon fee on the aggregate amount of each such 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); and
(c) Receipt by any Administrative Agent of such other documents, instruments, agreements and information as reasonably requested by such Administrative Agent.
3. 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
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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 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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