Exhibit 10
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AMENDED AND RESTATED
RECEIVABLES TRANSFER AGREEMENT
Dated as of May 24, 2000
Among
GGRC CORP.
as Seller
and
GEORGIA GULF CORPORATION
and
GEORGIA GULF CHEMICALS AND VINYLS, LLC
as Initial Servicers
and
BLUE RIDGE ASSET FUNDING CORPORATION
as Purchaser
and
WACHOVIA BANK, N.A.
as Administrative Agent
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TABLE OF CONTENTS
PAGE
ARTICLE I PURCHASES AND REINVESTMENTS............................................................................2
Section 1.1 COMMITMENTS TO PURCHASE; LIMITS ON PURCHASER'S OBLIGATIONS......................................2
Section 1.2 PURCHASE PROCEDURES; ASSIGNMENT OF PURCHASER'S INTERESTS........................................2
Section 1.3 REINVESTMENTS OF CERTAIN COLLECTIONS; PAYMENT OF REMAINING COLLECTIONS..........................3
Section 1.4 FREQUENCY OF COMPUTATION OF ASSET INTEREST......................................................5
ARTICLE II COMPUTATIONAL RULES...................................................................................5
Section 2.1 SELECTION OF ASSET TRANCHES.....................................................................5
Section 2.2 COMPUTATION OF PURCHASER'S TOTAL INVESTMENT AND PURCHASER'S TRANCHE INVESTMENT..................6
Section 2.3 COMPUTATION OF CONCENTRATION LIMITS AND UNPAID BALANCE..........................................6
Section 2.4 COMPUTATION OF EARNED DISCOUNT..................................................................6
Section 2.5 ESTIMATES OF EARNED DISCOUNT RATE, FEES, ETC....................................................7
ARTICLE III SETTLEMENTS..........................................................................................7
Section 3.1 SETTLEMENT PROCEDURES...........................................................................7
Section 3.2 DEEMED COLLECTIONS; REDUCTION OF PURCHASER'S TOTAL INVESTMENT, ETC.............................10
Section 3.3 PAYMENTS AND COMPUTATIONS, ETC.................................................................11
Section 3.4 TREATMENT OF COLLECTIONS AND DEEMED COLLECTIONS................................................12
ARTICLE IV FEES AND YIELD PROTECTION............................................................................12
Section 4.1 FEES...........................................................................................12
Section 4.2 YIELD PROTECTION...............................................................................12
Section 4.3 FUNDING LOSSES.................................................................................14
ARTICLE V CONDITIONS OF PURCHASES...............................................................................15
Section 5.1 CONDITIONS PRECEDENT TO INITIAL PURCHASE.......................................................15
Section 5.2 CONDITIONS PRECEDENT TO ALL PURCHASES AND REINVESTMENTS........................................17
ARTICLE VI REPRESENTATIONS AND WARRANTIES.......................................................................18
Section 6.1 REPRESENTATIONS AND WARRANTIES OF SELLER PARTIES...............................................18
Section 6.2 SPECIAL RESTATEMENT CLOSING DATE REPRESENTATIONS AND WARRANTIES................................22
ARTICLE VII GENERAL COVENANTS OF SELLER PARTIES.................................................................22
Section 7.1 AFFIRMATIVE COVENANTS OF SELLER PARTIES........................................................22
Section 7.2 REPORTING REQUIREMENTS OF SELLER PARTIES.......................................................24
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Section 7.3 NEGATIVE COVENANTS OF SELLER PARTIES...........................................................26
Section 7.4 SEPARATE CORPORATE EXISTENCE OF SELLER.........................................................29
ARTICLE VIII ADMINISTRATION AND COLLECTION......................................................................31
Section 8.1 DESIGNATION OF SERVICERS.......................................................................31
Section 8.2 DUTIES OF SERVICERS............................................................................32
Section 8.3 RIGHTS OF THE ADMINISTRATIVE AGENT.............................................................33
Section 8.4 RESPONSIBILITIES OF SELLER PARTIES.............................................................34
Section 8.5 FURTHER ACTION EVIDENCING PURCHASES AND REINVESTMENTS..........................................35
Section 8.6 APPLICATION OF COLLECTIONS.....................................................................36
ARTICLE IX SECURITY INTEREST....................................................................................36
Section 9.1 GRANT OF SECURITY INTEREST.....................................................................36
Section 9.2 FURTHER ASSURANCES.............................................................................36
Section 9.3 REMEDIES.......................................................................................37
ARTICLE X LIQUIDATION EVENTS....................................................................................37
Section 10.1 LIQUIDATION EVENTS............................................................................37
Section 10.2 REMEDIES......................................................................................39
ARTICLE XI THE ADMINISTRATIVE AGENT.............................................................................40
Section 11.1 AUTHORIZATION AND ACTION......................................................................40
Section 11.2 ADMINISTRATIVE AGENT'S RELIANCE, ETC..........................................................40
Section 11.3 WACHOVIA AND AFFILIATES.......................................................................41
ARTICLE XII ASSIGNMENT OF PURCHASER'S INTEREST..................................................................41
Section 12.1 RESTRICTIONS ON ASSIGNMENTS...................................................................41
Section 12.2 RIGHTS OF ASSIGNEE............................................................................42
Section 12.3 TERMS AND EVIDENCE OF ASSIGNMENT..............................................................42
Section 12.4 RIGHTS OF LIQUIDITY BANKS.....................................................................42
ARTICLE XIII INDEMNIFICATION....................................................................................42
Section 13.1 INDEMNITIES BY SELLER.........................................................................42
Section 13.2 INDEMNITIES BY SERVICERS......................................................................44
ARTICLE XIV MISCELLANEOUS.......................................................................................45
Section 14.1 AMENDMENTS, ETC...............................................................................45
Section 14.2 NOTICES, ETC..................................................................................46
Section 14.3 NO WAIVER; REMEDIES...........................................................................46
Section 14.4 BINDING EFFECT; SURVIVAL......................................................................46
Section 14.5 COSTS, EXPENSES AND TAXES.....................................................................47
Section 14.6 NO PROCEEDINGS................................................................................47
Section 14.7 CONFIDENTIALITY OF SELLER INFORMATION.........................................................48
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Section 14.8 CONFIDENTIALITY OF PROGRAM INFORMATION........................................................50
Section 14.9 CAPTIONS AND CROSS REFERENCES.................................................................51
Section 14.10 INTEGRATION..................................................................................51
Section 14.11 GOVERNING LAW................................................................................52
Section 14.12 WAIVER OF JURY TRIAL.........................................................................52
Section 14.13 CONSENT TO JURISDICTION; WAIVER OF IMMUNITIES................................................52
Section 14.14 EXECUTION IN COUNTERPARTS....................................................................53
Section 14.16 SEVERABILITY OF PROVISIONS...................................................................53
Section 14.17 ORIGINAL TRANSFER AGREEMENT SUPERSEDED.......................................................53
APPENDICES
APPENDIX A Definitions
SCHEDULES
SCHEDULE 6.1(i) Description of Material Adverse Changes
SCHEDULE 6.1(n) List of Offices of Servicer and Seller where Records Are Kept
SCHEDULE 6.1(o) List of Lock-Box Banks
SCHEDULE 14.2 Notice Addresses
EXHIBITS
EXHIBIT 1.2(a) Form of Purchase Request
EXHIBIT 3.1(a) Form of Information Package
EXHIBIT A-1 Form of Lock-Box Agreement
EXHIBIT B Form of Certificate of Financial Officer
EXHIBIT C Credit and Collection Policy
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AMENDED AND RESTATED RECEIVABLES TRANSFER AGREEMENT
Dated as of May 24, 2000
THIS IS AN AMENDED AND RESTATED RECEIVABLES TRANSFER AGREEMENT (this
"AGREEMENT"), among:
(1) GGRC CORP., a Delaware corporation (together with its
successors and permitted assigns, "SELLER"),
(2) GEORGIA GULF CORPORATION, a Delaware corporation (together
with its successors, "GEORGIA GULF"), and GEORGIA GULF CHEMICALS AND VINYLS,
LLC, a Delaware limited liability company (together with its successors, "GGCV"
as initial servicers (the "INITIAL SERVICERS") hereunder (in such capacity,
together with any successor servicer appointed pursuant to SECTION 8.1, each
individually a, "SERVICER" and together, the "SERVICERS"; Georgia Gulf and GGCV,
in its capacity as Servicer, together with Seller, each a "SELLER PARTY" and
collectively the "SELLER PARTIES"),
(3) BLUE RIDGE ASSET FUNDING CORPORATION, a Delaware corporation
(together with its successors and assigns, "PURCHASER"),
(4) WACHOVIA BANK, N.A., a national banking association
("WACHOVIA"), as administrative agent for the Purchaser (in such capacity,
together with any successors thereto in such capacity, the "ADMINISTRATIVE
AGENT").
Unless otherwise indicated, capitalized terms used in this Agreement
are defined in APPENDIX A.
BACKGROUND
1. The Seller is a wholly-owned direct subsidiary of Georgia
Gulf.
2. Georgia Gulf is engaged in the business of manufacturing and
marketing chlorovinyl and aromatic chemicals.
3. GGCV is engaged in the business of manufacturing and marketing
chlorovinyl and aromatic chemicals.
4. Georgia Gulf, GGCV and Georgia Gulf Lake Charles as
Originators and the Seller have entered into the Receivables Purchase Agreement
pursuant to which the Originators have transferred, and hereafter will transfer,
to the Seller all of their respective right, title and interest in and to the
Pool Receivables and certain related property.
5. The Seller Parties, Purchaser and Administrative Agent have
entered into a Receivables Transfer Agreement ("ORIGINAL TRANSFER AGREEMENT"),
as amended to date, pursuant
to which the Seller and Purchaser have agreed, subject to the terms and
conditions contained therein, that the Purchaser will purchase from the Seller
from time to time an undivided percentage interest, referred to herein as the
Asset Interest, in Pool Receivables and related property.
6. The Seller Parties, Purchaser and Administrative Agent desire
to amend and restate the Original Transfer Agreement to make certain
modifications thereto as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto hereby agree as follows:
ARTICLE I
PURCHASES AND REINVESTMENTS
SECTION 1.1 COMMITMENTS TO PURCHASE; LIMITS ON PURCHASER'S
OBLIGATIONS.
Upon the terms and subject to the conditions of this Agreement
(including, without limitation, ARTICLE V), from time to time prior to the
Termination Date, the Seller may request that Purchaser purchase from the Seller
ownership interests in Pool Receivables and Related Assets, and the Purchaser
shall make such purchase (each being a "PURCHASE"); PROVIDED that no Purchase
shall be made by the Purchaser if, after giving effect thereto, either (a) the
sum of Purchaser's Total Investment and aggregate CP Discount would exceed
$75,000,000 (as adjusted pursuant to SECTION 3.2(b)) (the "PURCHASE LIMIT"), or
(b) the Asset Interest would exceed 100% (the "ALLOCATION LIMIT"); and PROVIDED,
FURTHER that each Purchase made pursuant to this SECTION 1.1 shall have a
purchase price equal to at least $1,000,000 and shall be an integral multiple of
$100,000.
SECTION 1.2 PURCHASE PROCEDURES; ASSIGNMENT OF PURCHASER'S
INTERESTS.
(a) PURCHASE REQUEST. Each Purchase from the Seller by the
Purchaser shall be made on notice from the Seller to the Administrative Agent
(who is acting on behalf of the Purchaser) received by the Administrative Agent
not later than 12:00 noon (New York City time) on the second Business Day
preceding the date of such proposed Purchase. Each such notice of a proposed
Purchase shall be substantially in the form of EXHIBIT 1.2(a) and shall specify,
among other items, the desired amount and date of such Purchase. The
Administrative Agent shall promptly upon receipt notify the Purchaser of any
such notice. The Seller may not request more than one Purchase in any calendar
week.
(b) FUNDING OF PURCHASE. On the date of each Purchase, the
Purchaser shall, upon satisfaction of the applicable conditions set forth in
ARTICLE V, make available to the Seller the amount of its Purchase in same day
funds by wire transfer to an account designated in writing by the Seller.
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(c) ASSIGNMENT OF ASSET INTERESTS. The Seller hereby sells,
assigns and transfers to the Purchaser, effective on and as of the date of each
Purchase and each Reinvestment by the Purchaser hereunder, the Asset Interest.
SECTION 1.3 REINVESTMENTS OF CERTAIN COLLECTIONS; PAYMENT OF
REMAINING COLLECTIONS.
(a) On the close of business on each day during the period from
the date of the first Purchase to the Termination Date, the Servicers will, out
of all Collections received on such day from Pool Receivables and Related
Assets:
(i) determine the portion of the Collections attributable
to the Asset Interest by multiplying (A) the amount of such Collections
times (B) the lesser of (1) the Asset Interest and (2) 100%;
(ii) out of the portion of such Collections allocated to
the Asset Interest pursuant to clause (i) of this SECTION 1.3(a), set
aside and hold in trust for the Purchaser an amount equal to the sum of
the estimated amount of Earned Discount accrued in respect of each
Asset Tranche (based on rate information provided by the Administrative
Agent pursuant to SECTION 2.5), all other amounts due to the Purchaser
or the Administrative Agent hereunder and the Purchaser's Share of the
Servicer's Fee (in each case, accrued through such day) and not so
previously set aside;
(iii) apply the Collections allocated to the Asset Interest
pursuant to clause (i) of this SECTION 1.3(a) and not required to be
set aside pursuant to clause (ii) of this SECTION 1.3(a) to the
Purchase from the Seller of ownership interests in Pool Receivables and
Related Assets (each such purchase being a "REINVESTMENT"); PROVIDED
that:
(A) if, after giving effect to such
Reinvestment, (1) the Asset Interest would exceed the
Allocation Limit or (2) the sum of (a) the Purchaser's Total
Investment and (b) the aggregate CP Discount would exceed the
Purchase Limit, then the Servicers shall not reinvest, but
shall set aside and hold in trust for the benefit of the
Purchaser, a portion of such Collections which, together with
other Collections previously set aside and then so held, shall
equal the amount necessary to reduce (x) the sum of (a)
Purchaser's Total Investment and (b) aggregate CP Discount to
the Purchase Limit and (y) the Asset Interest to the
Allocation Limit; and
(B) if any of the conditions precedent to
Reinvestment in clause (a), (b) and (d) of SECTION 5.2,
subject to the proviso set forth therein, are not satisfied,
then the Servicers shall not reinvest any of such remaining
Collections, but shall set them aside and hold them in trust
for the benefit of the Purchaser;
(iv) out of the portion of Collections not allocated to
the Asset Interest pursuant to clause (i) of this SECTION 1.3(a), pay
to the Servicers (in such proportion as
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may from time to time be determined among the Servicers) or set aside
(at the option of the Servicers) the Seller's Share of the Servicer's
Fee accrued through such day and not previously paid; and
(v) pay to the Seller (A) the remaining portion of
Collections not allocated to either (x) the Asset Interest pursuant to
clause (i) of this SECTION 1.3(a) or (y) to the Servicers pursuant to
clause (iv) of this SECTION 1.3(a), and (B) the Collections applied to
Reinvestment pursuant to clause (iii) of this SECTION 1.3(a).
(b) UNREINVESTED COLLECTIONS. The Servicers shall set aside and
hold in trust for the benefit of the Purchaser all Collections which, pursuant
to clause (iii) of SECTION 1.3(a), may not be reinvested in the Pool Receivables
and Related Assets. If, prior to the date when such Collections are required to
be paid to the Administrative Agent for the benefit of the Purchaser pursuant to
SECTION 1.3(c)(iv), the amount of Collections so set aside exceeds the amount,
if any, necessary to reduce (x) the sum of (i) the Purchaser's Total Investment
and (ii) aggregate CP Discount to the Purchase Limit and (y) the Asset Interest
to the Allocation Limit, and the conditions precedent to Reinvestment set forth
in clauses (a), (b) and (d) of SECTION 5.2, subject to the proviso set forth
therein, are satisfied, then the Servicers shall apply such Collections (or, if
less, a portion of such Collections equal to the amount of such excess) to the
making of a Reinvestment.
(c) PAYMENT OF AMOUNTS SET ASIDE.
(i) The Servicers shall pay all amounts set aside
pursuant to SECTION 1.3(a)(ii) in respect of Earned Discount on an
Asset Tranche funded by a Liquidity Funding to the Administrative
Agent, on the Purchaser's behalf, on the last day of the then current
Yield Period for such Asset Tranche as provided in SECTION 3.1.
(ii) The Servicers shall pay all amounts of Collections
set aside pursuant to SECTION 1.3(a)(ii) in respect of Earned Discount
on any Asset Tranche funded by Commercial Paper Notes to the
Administrative Agent, on the Purchaser's behalf, on the last day of the
then current CP Tranche Period for such Asset Tranche, as provided in
SECTION 3.1.
(iii) The Servicers shall pay all amounts of Collections
set aside pursuant to SECTION 1.3(a)(ii) and not applied pursuant to
clauses (i) or (ii) above to the Administrative Agent, on the
Purchaser's behalf, on each Settlement Date for each Settlement Period,
as provided in SECTION 3.1.
(iv) The Servicers shall pay all amounts set aside
pursuant to SECTION 1.3(b) to the Administrative Agent for the account
of the Purchaser (A) on the last day of each Yield Period for any Asset
Tranche funded by a Liquidity Funding, as provided in Section 3.1, in
an amount not exceeding the Purchaser's Tranche Investment of such
Asset Tranche, and (B) on the last day of each CP Tranche Period for
any Asset Tranche funded
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by Commercial Paper Notes, as provided in SECTION 3.1, in an amount not
exceeding the Purchaser's Tranche Investment of such Asset Tranche.
(d) FUNDS UNDER PURCHASE AGREEMENT. Upon the written request of
the Administrative Agent, on the Purchaser's behalf, given at any time when (A)
based on the most recent Information Package, either (x) the Asset Interest
would exceed the Allocation Limit or (y) the sum of (i) the Purchaser's Total
Investment and (ii) the aggregate CP Discount would exceed the Purchase Limit,
or (B) a Liquidation Event or Unmatured Liquidation Event shall have occurred
and be continuing, the Seller shall set aside and hold in trust for the
Purchaser all funds that under the Purchase Agreement would be applied to repay
principal of the Initial Purchaser Note. The Seller may apply such funds only
for the purposes of (A) at any time, purchasing Receivables from the Originators
in accordance with the Purchase Agreement; (B) on the Settlement Date for any
Settlement Period, making payments in accordance with the last sentence of
SECTION 3.1(c)(ii), and (C) on the Settlement Date for any Settlement Period,
if, on the basis of the most recent Information Package, and after giving effect
to any payment made to the Servicers on such date pursuant to the last sentence
of SECTION 3.1(c)(ii), both (x) the sum of (i) Purchaser's Total Investment and
(ii) aggregate CP Discount does not exceed the Purchase Limit and (y) the Asset
Interest does not exceed the Allocation Limit, and provided that no Liquidation
Event or Unmatured Liquidation Event shall have occurred and be continuing,
repaying principal of the Initial Purchaser Note in accordance with this
Agreement and the Purchase Agreement.
SECTION 1.4 FREQUENCY OF COMPUTATION OF ASSET INTEREST.
The Asset Interest shall be computed as provided in SECTION 3.1, as of
the Cut-Off Date for each Settlement Period, after giving effect to the payments
made pursuant to SECTION 3.1. In addition, at any time, the Administrative
Agent, on behalf of the Purchaser, may require the Servicers to provide an
Information Package, based on the information then available to the Servicers,
for purposes of computing the Asset Interest or the Purchase Limit as of any
other date, and the Servicers agree to do so within five (5) (or three (3), if a
Liquidation Event has occurred and is continuing) Business Days of its receipt
of the Administrative Agent's request.
ARTICLE II
COMPUTATIONAL RULES
SECTION 2.1 SELECTION OF ASSET TRANCHES.
The Administrative Agent shall, from time to time for purposes of
computing Earned Discount, divide the Asset Interest into Asset Tranches, and
the applicable Earned Discount Rate may be different for each Asset Tranche. The
maturity of each Asset Tranche may also be different. The Purchaser's Total
Investment and aggregate CP Discount shall be allocated to each Asset Tranche by
the Administrative Agent, on the Purchaser's behalf, to reflect the funding
sources for the Asset Interest, so that:
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(a) there will be one or more Asset Tranches equal to the excess
of the sum of Purchaser's Total Investment and aggregate CP Discount over the
aggregate amount allocated at such time pursuant to clause (b) below, which
Asset Tranche (or Asset Tranches, if more than one) shall reflect the portion of
the Asset Interest funded by Commercial Paper Notes; and
(b) there may be one or more Asset Tranches, selected by the
Administrative Agent, on the Purchaser's behalf, reflecting the portion of the
Asset Interest funded by outstanding Liquidity Fundings.
SECTION 2.2 COMPUTATION OF PURCHASER'S TOTAL INVESTMENT AND
PURCHASER'S TRANCHE INVESTMENT.
In making any determination of Purchaser's Total Investment and any
Purchaser's Tranche Investment, the following rules shall apply:
(a) Purchaser's Total Investment shall not be considered reduced
by any allocation, setting aside or distribution of any portion of Collections
unless such Collections shall have been actually delivered hereunder to the
Administrative Agent, on the Purchaser's behalf;
(b) Purchaser's Total Investment shall not be considered reduced
by any distribution of any portion of Collections if at any time such
distribution is rescinded or must otherwise be returned for any reason; and
(c) if there is any reduction in Purchaser's Total Investment,
there shall be a corresponding reduction in a Purchaser's Tranche Investment
with respect to one or more Asset Tranches selected by the Administrative Agent,
on the Purchaser's behalf, in its reasonable discretion.
SECTION 2.3 COMPUTATION OF CONCENTRATION LIMITS AND UNPAID
BALANCE.
The Obligor Concentration Limits and the aggregate Unpaid Balance of
Pool Receivables of any Obligor and its Affiliated Obligors (if any) shall be
calculated as if such Obligor and its Affiliated Obligors were one Obligor.
SECTION 2.4 COMPUTATION OF EARNED DISCOUNT.
In making any determination of Earned Discount, the following rules
shall apply:
(a) the Administrative Agent, on the Purchaser's behalf, shall
determine the Earned Discount accruing with respect to each Asset Tranche, and
each CP Tranche Period therefor (or, in the case of the Asset Tranche funded by
Liquidity Fundings, each Yield Period), in accordance with the definition of
Earned Discount;
(b) no provision of this Agreement shall require the payment or
permit the collection of Earned Discount in excess of the maximum permitted by
applicable law; and
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(c) Earned Discount for any Asset Tranche shall not be considered
paid by any distribution if at any time such distribution is rescinded or must
otherwise be returned for any reason.
It is the intent of the Purchaser to fund the Asset Interest by the issuance of
Commercial Paper Notes. If for any reason the Purchaser is unable, or determines
that it is undesirable, to issue Commercial Paper Notes to fund the Asset
Interest, or is unable for any reason to repay such Commercial Paper Notes upon
the maturity thereof, the Purchaser will draw on Liquidity Fundings to the
extent available. If the Purchaser funds itself through Liquidity Fundings, the
Earned Discount payable by the Seller will be based on the Bank Rate.
SECTION 2.5 ESTIMATES OF EARNED DISCOUNT RATE, FEES, ETC.
For purposes of determining the amounts required to be set aside by the
Servicers pursuant to SECTION 1.3, the Administrative Agent, on the Purchaser's
behalf, shall notify the Servicers (and, if Georgia Gulf and GGCV are not the
Servicers, the Seller) from time to time of the Purchaser's Tranche Investment
of each Asset Tranche, the Earned Discount Rate applicable to each Asset Tranche
and the rates at which fees and other amounts are accruing hereunder. It is
understood and agreed that (a) the Earned Discount Rate for any Asset Tranche
may change from one applicable Yield Period or CP Tranche Period to the next,
and the Bank Rate used to calculate the Earned Discount Rate may change from
time to time during an applicable Yield Period, (b) certain rate information
provided by the Administrative Agent to the Servicers shall be based upon the
Administrative Agent's good faith estimate, (c) the amount of Earned Discount
actually accrued with respect to an Asset Tranche during any CP Tranche Period
(or, in the case of the Asset Tranche funded by Liquidity Fundings any Yield
Period) may exceed, or be less than, the amount set aside with respect thereto
by the Servicers, and (d) the amount of fees or other amounts payable which have
accrued hereunder with respect to any Settlement Period may exceed, or be less
than, the amount set aside with respect thereto by the Servicers. Failure to set
aside any amount so accrued shall not relieve the Servicers of their respective
obligation to remit Collections to the Administrative Agent, for the benefit of
the Purchaser, with respect to such accrued amount, as and to the extent
provided in SECTION 3.1.
ARTICLE III
SETTLEMENTS
SECTION 3.1 SETTLEMENT PROCEDURES.
The parties hereto will take the following actions with respect to each
Settlement Period:
(a) INFORMATION PACKAGE. On the 18th day of the Calendar Month (if
such day is not a Business Day, then on the next Business Day) following each
Cut-Off Date (each a "REPORTING DATE"), the Servicers shall deliver to the
Administrative Agent, on the Purchaser's behalf, a
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report in the form of EXHIBIT 3.1(a) (each, an "INFORMATION PACKAGE"). The
Information Package shall be accompanied by an electronic file in a form
satisfactory to the Administrative Agent.
(b) EARNED DISCOUNT; OTHER AMOUNTS DUE. On or before 12:00 noon,
Atlanta, Georgia time on the Business Day before the last day of each CP Tranche
Period or Yield Period, as the case may be, the Administrative Agent shall
notify the Servicers of the amount of Earned Discount accrued with respect to
any Asset Tranche corresponding to such CP Tranche Period or Yield Period, as
the case may be. The Servicers shall pay to the Administrative Agent for the
benefit of the Purchaser the amount of such Earned Discount on the last day of
such CP Tranche Period or Yield Period. On or before 12:00 noon, Atlanta,
Georgia time, on the Business Day before each Reporting Date, the Administrative
Agent, on the Purchaser's behalf, shall notify the Servicers of all fees and
other amounts accrued and payable by the Seller under this Agreement during the
prior calendar month, (other than amounts described in clause (c) below). The
Servicers shall pay to the Administrative Agent, for the benefit of the
Purchaser, the amount of fees and other amounts (to the extent of Collections
attributable to the Asset Interest during such Settlement Period) on the
Settlement Date for such month. Such payments shall be made (i) out of amounts
set aside pursuant to SECTION 1.3 for such payment, (ii) in the case of amounts
other than Earned Discount, to the extent that amounts were not set aside
pursuant to SECTION 1.3 for such payment, out of funds paid by the Servicers to
the Seller (which amounts the Seller hereby agrees to pay to the Servicers), and
(iii) in the case of Earned Discount, to the extent that funds were not set
aside pursuant to SECTION 1.3 for such payment (because the actual Earned
Discount for such month was greater than the estimated Earned Discount used in
calculating the Asset Interest during such month), out of funds paid by the
Servicers to the Seller (which amounts the Seller hereby agrees to pay to the
Servicers), up to the aggregate amount of Collections applied to Reinvestment
under SECTION 1.3(a) or (b) during such month.
(c) ASSET INTEREST COMPUTATIONS.
(i) On the Reporting Date for each Settlement Period, the
Servicers shall compute, as of the related Cut-Off Date and based upon
the assumptions in the next sentence, (A) the Asset Interest, (B) the
amount of the reduction or increase (if any) in the Asset Interest
since the next preceding Cut-Off Date, (C) the excess (if any) of the
Asset Interest over the Allocation Limit, and (D) the excess (if any)
of the sum of (1) the Purchaser's Total Investment and (2) the
aggregate CP Discount over the Purchase Limit. Such calculation shall
be based upon the assumptions that (1) the information in the
Information Package is correct, and (2) Collections set aside pursuant
to SECTION 1.3(b) will be paid to the Administrative Agent, for the
benefit of the Purchaser, on the Settlement Date for such Settlement
Period.
(ii) If, according to the computations made pursuant to
clause (i) above, either (x) the Asset Interest exceeds the Allocation
Limit or (y) the sum of (i) the Purchaser's Total Investment and (ii)
the aggregate CP Discount exceeds the Purchase Limit, then on the
Settlement Date for such Settlement Period, the Servicers shall pay to
the Administrative Agent, for the benefit of the Purchaser, (to the
extent of Collections during the related Settlement Period attributable
to all Asset Tranches and not previously
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paid to the Administrative Agent) the amount necessary to reduce both
(A) the sum of the Purchaser's Total Investment and aggregate CP
Discount to the Purchase Limit and (B) the Asset Interest to the
Allocation Limit, SUBJECT, HOWEVER, to the PROVISO to SECTION
1.3(c)(iv). Such payment shall be made out of amounts set aside
pursuant to SECTION 1.3 for such purpose and, to the extent such
amounts were not so set aside, the Seller hereby agrees to pay such
amounts to the Servicers to the extent of Collections applied to
Reinvestment under SECTION 1.3 during the relevant Settlement Period.
(d) ORDER OF APPLICATION. Upon receipt by the Administrative
Agent, on the Purchaser's behalf, of funds distributed pursuant to this SECTION
3.1, the Administrative Agent shall apply them to the items specified in the
subclauses below, in the order of priority of such subclauses:
(i) to accrued Earned Discount, plus any previously
accrued Earned Discount not paid;
(ii) to the Purchaser's Share of the accrued and unpaid
Servicer's Fee (if Servicer is not the Seller or its Affiliate);
(iii) to the Program Fee accrued during such Settlement
Period, plus any previously accrued Program Fee not paid on a prior
Settlement Date;
(iv) to the reduction of Purchaser's Total Investment and
aggregate CP Discount, to the extent such reduction is required under
SECTION 3.1(c);
(v) to other accrued and unpaid amounts owing to the
Purchaser or the Administrative Agent hereunder (except Earned Discount
on any Asset Tranche funded by a Liquidity Funding which has accrued
but is not yet overdue under SECTION 1.3(c));
(vi) to the Purchaser's Share of the accrued and unpaid
Servicer's Fee (if Servicer is the Seller or its Affiliate); and
(vii) to purchase newly originated Receivables during the
Revolving Period.
(e) NON-DISTRIBUTION OF SERVICER'S FEE. The Administrative Agent
hereby consents (which consent may be revoked at any time after the occurrence
and during the continuance of a Liquidation Event), to the retention by the
Servicers of the amounts (if any) set aside pursuant to SECTION 1.3 in respect
of the Servicer's Fee, in which case no distribution shall be made in respect of
Servicer's Fee pursuant to clause (d) above.
(f) DELAYED PAYMENT. If on any day described in this SECTION 3.1
(or in SECTION 1.3(c) in respect of accrued Earned Discount on Asset Tranches
funded by Liquidity Fundings or by the issuance of Commercial Paper Notes),
because Collections during the relevant CP Tranche Period or Yield Period were
less than the aggregate amounts payable, the Servicers shall not make any
payment otherwise required, the next available Collections in respect of the
Asset
9
Interest shall be applied to such payment, and no Reinvestment shall be
permitted hereunder until such amount payable has been paid in full.
SECTION 3.2 DEEMED COLLECTIONS; REDUCTION OF PURCHASER'S TOTAL
INVESTMENT, ETC.
(a) DEEMED COLLECTIONS. If on any day
(i) the Unpaid Balance of any Pool Receivable is
(A) reduced as a result of any defective,
rejected or returned merchandise or services, any cash
discount, or any other adjustment by any Seller Party or any
Affiliate thereof, or as a result of any tariff or other
governmental or regulatory action, or
(B) reduced or canceled as a result of a setoff
in respect of any claim by the Obligor thereof (whether such
claim arises out of the same or a related or an unrelated
transaction), or
(C) reduced on account of the obligation of any
Seller Party or any Affiliate thereof to pay to the related
Obligor any rebate or refund, or
(D) less than the amount included in calculating
the Net Pool Balance for purposes of any Information Package
(for any reason other than such Receivable becoming a
Defaulted Receivable), or
(ii) any of the representations or warranties of the
Seller set forth in SECTION 6.1(j), (l) or (p) were not true when made
with respect to any Pool Receivable, or any of the representations or
warranties of the Seller set forth in SECTION 6.1(l) are no longer true
with respect to any Pool Receivable, or any Pool Receivable is
repurchased by the Originator pursuant to the Purchase Agreement,
then, on such day, the Seller shall be deemed to have received a Collection of
such Pool Receivable
(A) in the case of clause (i) above, in the
amount of such reduction or cancellation or the difference
between the actual Unpaid Balance and the amount included in
calculating such Net Pool Balance, as applicable; and
(B) in the case of clause (ii) above, in the
amount of the Unpaid Balance of such Pool Receivable.
Collections deemed received by the Seller under this SECTION 3.2(a) are herein
referred to as "DEEMED COLLECTIONS".
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(b) SELLER'S OPTIONAL REDUCTION OF PURCHASER'S TOTAL INVESTMENT.
The Seller may at any time elect to reduce the Purchaser's Total Investment as
follows:
(i) the Seller shall give the Administrative Agent, on
the Purchaser's behalf, at least five (5) Business Days' prior written
notice of such reduction (including the amount of such proposed
reduction and the proposed date on which such reduction will commence),
(ii) on the proposed date of commencement of such
reduction and on each day thereafter, the Servicers shall refrain from
reinvesting Collections pursuant to SECTION 1.3 until the amount
thereof not so reinvested shall equal the desired amount of reduction,
and
(iii) the Servicers shall hold such Collections in trust
for the Purchaser, pending payment to the Administrative Agent, as
provided in SECTION 1.3;
PROVIDED that:
(A) the amount of any such reduction shall be in
an amount of $1,000,000 or an integral multiple thereof,
(B) the Seller shall use reasonable efforts to
attempt to choose a reduction amount, and the date of
commencement thereof, so that such reduction shall commence
and conclude in the same Settlement Period, and
(C) unless the Purchaser's Total Investment will
be reduced to zero, after giving effect to such reduction, the
Purchaser's Total Investment will be at least $25,000,000.
SECTION 3.3 PAYMENTS AND COMPUTATIONS, ETC.
(a) PAYMENTS. All amounts to be paid or deposited by the Seller or
the Servicers to the Administrative Agent or any other Person hereunder (other
than amounts payable under SECTION 4.2) shall be paid or deposited in accordance
with the terms hereof no later than 12:00 noon (Atlanta, Georgia time) on the
day when due in lawful money of the United States of America in same day funds
to the Purchaser in care of Wachovia Bank, N.A., ABA #053100494, Account
#8735-098787, for credit: Blue Ridge Asset Funding Corporation, Reference: GGRC
Corp., Attention: John Dillon (336) 732-2690 or to such other account at the
bank named therein or at such other bank as the Administrative Agent on behalf
of the Purchaser may designate by written notice to the Person making such
payment.
(b) LATE PAYMENTS. The Seller or the Servicers, as applicable,
shall, to the extent permitted by law, pay to the Person to whom payment is due
interest on all amounts not paid or deposited when due hereunder at 2% PER ANNUM
above the Alternate Base Rate, payable on
11
demand, PROVIDED, HOWEVER, that such interest rate shall not at any time exceed
the maximum rate permitted by applicable law.
(c) METHOD OF COMPUTATION. All computations of interest, Earned
Discount, any fees payable under SECTION 4.1 and any other fees payable by
Seller to Purchaser or the Administrative Agent hereunder shall be made on the
basis of a year of 360 days for the actual number of days (including the first
day but excluding the last day) elapsed.
SECTION 3.4 TREATMENT OF COLLECTIONS AND DEEMED COLLECTIONS.
The Seller shall forthwith deliver to the Servicers all Deemed
Collections, and the Servicers shall hold or distribute such Deemed Collections
as Earned Discount, accrued Servicer's Fee, repayment of Purchaser's Total
Investment and to other accrued amounts owing hereunder to the same extent as if
such Deemed Collections had actually been received on the date of such delivery
to the Servicers. If Collections are then being paid to the Administrative
Agent, on the Purchaser's behalf, or its designee, or lock boxes or accounts
directly or indirectly owned or controlled by the Administrative Agent, the
Servicers shall forthwith cause such Deemed Collections to be paid to the
Administrative Agent, on the Purchaser's behalf, or its designee or to such lock
boxes or accounts, as applicable, or as the Administrative Agent shall request.
So long as the Seller shall hold any Collections (including Deemed Collections)
required to be paid to the Servicers or the Administrative Agent, it shall hold
such Collections in trust and shall clearly mark its records to reflect such
trust; PROVIDED that unless the Administrative Agent shall have requested it in
writing to do so, the Seller shall not be required to hold such Collections in a
separate deposit account containing only such Collections.
ARTICLE IV
FEES AND YIELD PROTECTION
SECTION 4.1 FEES.
The Seller shall pay to the Administrative Agent and the Purchaser
certain fees from time to time in amounts and payable on such dates as are set
forth in the letter dated May 24, 2000 (as amended from time to time, the "FEE
LETTER") among the Seller, the Purchaser and the Administrative Agent.
SECTION 4.2 YIELD PROTECTION.
If (i) Regulation D or (ii) any Regulatory Change occurring after the
date hereof
(A) shall subject an Affected Party to any tax,
duty or other charge with respect to any Asset Interest owned
by or funded by it, or any obligations or right to make
Purchases or Reinvestments or to provide funding therefor, or
shall change the basis of taxation of payments to the Affected
Party of any Purchaser's Total Investment or Earned Discount
owned by, owed to or funded in whole or in part by it or any
other amounts due
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under this Agreement in respect of the Asset Interest owned by
or funded by it or its obligations or rights, if any, to make
Purchases or Reinvestments or to provide funding therefor
(except for (1) taxes based on, or measured by, net income, or
changes in the rate of tax on or determined by reference to
the overall net income, of such Affected Party imposed by the
United States of America, by the jurisdiction in which such
Affected Party's principal executive office is located and, if
such Affected Party's principal executive office is not in the
United States of America, by the jurisdiction where such
Affected Party's principal office in the United States is
located or, (2) franchise taxes, taxes on, or in the nature
of, doing business taxes or capital taxes); or
(B) shall impose, modify or deem applicable any
reserve (including, without limitation, any reserve imposed by
the Federal Reserve Board, but excluding any reserve included
in the determination of Earned Discount), special deposit or
similar requirement against assets of any Affected Party,
deposits or obligations with or for the account of any
Affected Party or with or for the account of any affiliate (or
entity deemed by the Federal Reserve Board to be an affiliate)
of any Affected Party, or credit extended by any Affected
Party; or
(C) shall change the amount of capital
maintained or required or requested or directed to be
maintained by any Affected Party; or
(D) shall impose any other condition affecting
any Asset Interest owned or funded in whole or in part by any
Affected Party, or its obligations or rights, if any, to make
Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in
which the Federal Deposit Insurance Corporation (or a
successor thereto) assesses, deposit insurance premiums or
similar charges;
and the result of any of the foregoing is or would be
(I) to increase the cost to or to
impose a cost on (x) an Affected Party funding or
making or maintaining any Purchases or Reinvestments,
any purchases, reinvestments, or loans or other
extensions of credit under the Liquidity Agreement,
or any commitment of such Affected Party with respect
to any of the foregoing, or (y) the Administrative
Agent for continuing its or the Seller's relationship
with the Purchaser, in each case, in an amount deemed
to be material by such Affected Party,
(II) to reduce the amount of any sum
received or receivable by an Affected Party under
this Agreement or under the Liquidity Agreement, or
(III) in the reasonable determination of
such Affected Party, to reduce the rate of return on
the capital of an Affected Party as a consequence of
its
13
obligations hereunder or arising in connection
herewith to a level below that which such Affected
Party could otherwise have achieved,
then, within thirty days after demand by such Affected Party (which demand shall
be accompanied by a certificate setting forth, in reasonable detail, the basis
of such demand and the methodology for calculating, and the calculation of, the
amounts claimed by the Affected Party), the Seller shall pay directly to such
Affected Party such additional amount or amounts as will compensate such
Affected Party for such additional or increased cost or such reduction.
(d) Each Affected Party will promptly notify the Seller and the
Administrative Agent of any event of which it has knowledge (including any
future event that, in the judgment of such Affected Party, is reasonably certain
to occur) which will entitle such Affected Party to compensation pursuant to
this SECTION 4.2; PROVIDED, HOWEVER, any failure to give or delay in giving such
notification shall not adversely affect the rights of any Affected Party to such
compensation.
(e) In determining any amount provided for or referred to in this
Section 4.2, an Affected Party may use any reasonable averaging and attribution
methods (consistent with its ordinary business practices) that it (in its
reasonable discretion) shall deem applicable. Any Affected Party when making a
claim under this SECTION 4.2 shall submit to the Seller the above-referenced
certificate as to such increased cost or reduced return (including calculation
thereof in reasonable detail), which statement shall, in the absence of
demonstrable error, be conclusive and binding upon the Seller.
SECTION 4.3 FUNDING LOSSES.
In the event that the Purchaser or any Liquidity Bank shall actually
incur any loss or expense (including, without limitation, any loss or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by the Purchaser or such Liquidity Bank to make any Liquidity Funding
or maintain any Liquidity Funding) as a result of (a) any settlement with
respect to the Purchaser's Tranche Investment of any Asset Tranche funded by a
Liquidity Funding being made on any day other than the scheduled last day of an
applicable Yield Period with respect thereto (it being understood that the
foregoing shall not apply to any portion of the Purchasers' Total Investment
that is accruing Earned Discount calculated by reference to the Alternate Base
Rate), or (b) any Purchase not being made in accordance with a request therefor
under SECTION 1.2, or (c) any settlement with respect to the Purchaser's Tranche
Investment of any Asset Tranche funded by Commercial Paper Notes being made on
any day other than the scheduled last day of the applicable CP Tranche Period
with respect thereto, then, upon written notice from the Administrative Agent to
the Seller and the Servicers, the Seller shall pay to the Servicers, and the
Servicers shall pay to the Administrative Agent for the Account of the Purchaser
or such Liquidity Bank, the amount of such loss or expense. Such written notice
(which shall include the methodology for calculating, and the calculation of,
the amount of such loss or expense, in reasonable detail) shall, in the absence
of demonstrable error, be conclusive and binding upon the Seller and the
Servicers.
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ARTICLE V
CONDITIONS OF PURCHASES
SECTION 5.1 CONDITIONS PRECEDENT TO INITIAL PURCHASE.
The initial Purchase pursuant to this Agreement is subject to the
condition precedent that the Administrative Agent, on the Purchaser's behalf,
shall have received, on or before the date of such initial Purchase, the
following each (unless otherwise indicated) dated such date and in form and
substance reasonably satisfactory to the Administrative Agent:
(a) The Purchase Agreement and all other Transaction Documents,
duly executed by the parties thereto;
(b) A certificate of the Secretary or Assistant Secretary of each
Seller Party certifying the names and true signatures of the officers authorized
on its behalf to sign this Agreement and the other Transaction Documents to be
delivered by it hereunder (on which certificate the Administrative Agent and the
Purchaser may conclusively rely until such time as the Administrative Agent, on
the Purchaser's behalf, shall receive from such Seller Party a revised
certificate meeting the requirements of this SUBSECTION (b));
(c) The Articles or Certificate of Incorporation of each Seller
Party, duly certified by the Secretary of State of such Seller Party's state of
incorporation, as of a recent date acceptable to Administrative Agent, on the
Purchaser's behalf, in each case together with a copy of the by-laws of such
Seller Party, duly certified by the Secretary or an Assistant Secretary of such
Seller Party;
(d) A true and complete copy of the resolutions of the Board of
Directors of each Seller Party authorizing the execution, delivery and
performance of this Agreement and the Transaction Documents to which it is a
party and the transactions contemplated hereby and thereby;
(e) Copies of good standing certificates for each Seller Party,
issued by the Secretaries of State of the state of incorporation of such Seller
Party and the state where such Seller Party's principal place of business is
located;
(f) Acknowledgment copies (or other evidence of filing reasonably
acceptable to the Administrative Agent, on the Purchaser's behalf,) of (i)
proper financing statements (Form UCC-1), in such form as the Administrative
Agent, on the Purchaser's behalf, may reasonably request, naming Georgia Gulf
and GGCV as the debtors and the sellers of the Receivables and Related Assets,
the Seller as the secured party and purchaser thereof and the Purchaser as
assignee, and (ii) financing statements (Form UCC-1), in such form as the
Administrative Agent, on the Purchaser's behalf, may reasonably request, naming
the Seller as the debtor and seller of an undivided percentage interest in the
Pool Receivables and Related Assets and the Purchaser as the secured party and
purchaser thereof, or other, similar instruments or documents, as may be
15
necessary or, in the opinion of the Administrative Agent, on the Purchaser's
behalf, desirable under the UCC or any comparable law of all appropriate
jurisdictions to perfect the sale by Georgia Gulf and GGCV to the Seller of, and
the Purchaser's undivided percentage interest in, the Pool Receivables and
Related Assets;
(g) Search reports provided in writing to the Administrative
Agent, on the Purchaser's behalf, (i) listing all effective financing statements
that name any Seller Party as debtor and that are filed in the jurisdictions in
which filings were made pursuant to SUBSECTION (f) above and in such other
jurisdictions that the Administrative Agent shall reasonably request, together
with copies of such financing statements (none of which (other than any of the
financing statements described in SUBSECTION (f) above) shall cover any
Receivables or Related Assets) and (ii) listing all tax liens and judgment liens
(if any) filed against any debtor referred to in clause (i) above in the
jurisdictions described therein and showing no such Liens;
(h) The Subordinated Notes, duly executed by Seller;
(i) A favorable opinion of Jones, Day, Reavis & Pogue, counsel to
the Seller Parties, as to:
(i) the existence of a "true sale" of the Receivables
from the Originators to the Seller under the Purchase Agreement;
(ii) the inapplicability of the doctrine of substantive
consolidation to the Seller, Georgia Gulf and GGCV in connection with
any bankruptcy proceeding involving any Seller Party;
(iii) the creation of a first priority perfected security
interest in favor of the Purchaser in (A) all the Pool Receivables and
Related Assets (and including specifically any undivided interest
therein retained by the Seller hereunder), (B) the rights of the Seller
in, to and under the Purchase Agreement and the other Transaction
Documents and (C) all proceeds of any of the foregoing;
(iv) due authorization, execution, delivery,
enforceability and other corporate matters of the Seller Parties as to
the Transaction Documents; and
(v) such other matters as the Administrative Agent,
acting on behalf of the Purchaser, may reasonably request.
(j) A PRO FORMA Information Package, prepared as of the Cut-Off
Date of April 30, 2000;
(k) A report in form and substance satisfactory to the
Administrative Agent, on the Purchaser's behalf, from the Initial Due Diligence
Auditor as to a pre-closing due diligence audit by the Initial Due Diligence
Auditor;
16
(l) The Liquidity Agreement, in form and substance satisfactory to
the Administrative Agent, on the Purchaser's behalf, duly executed by the
Purchaser, the Liquidity Agent and each Liquidity Bank;
(m) With respect to Georgia Gulf and GGCV, a consolidated balance
sheet, income statement and statement of cashflows as at March 31, 2000 and with
respect to the Seller, a balance sheet, income statement and statement of
cashflows as at March 31, 2000, each of the foregoing together with a
certification of the chief financial officer, treasurer or corporate controller
in the form attached hereto as Exhibit B; and
(n) Such other agreements, instruments, certificates, opinions and
other documents as the Administrative Agent may reasonably request.
(o) Georgia Gulf and GGCV shall pay to the Administrative Agent
the structuring fee set forth in the Fee Letter on or before the date this
Agreement is executed.
SECTION 5.2 CONDITIONS PRECEDENT TO ALL PURCHASES AND
REINVESTMENTS.
Each Purchase (including the initial Purchase) and each Reinvestment
shall be subject to the further conditions precedent that on the date of such
Purchase or Reinvestment the following statements shall be true (and the Seller,
by accepting the amount of such Purchase or by receiving the proceeds of such
Reinvestment, and each other Seller Party, upon such acceptance or receipt by
the Seller, shall be deemed to have certified that):
(a) the representations and warranties contained in SECTION 6.1 are
correct in all material respects on and as of such day as though made on and as
of such day and shall be deemed to have been made on such day (except to the
extent of changes resulting from transactions contemplated or permitted by this
Agreement or to the extent of changes that have otherwise been consented to by
the Administrative Agent on behalf of the Purchaser),
(b) no event has occurred and is continuing, or would result from such
Purchase or Reinvestment, that constitutes a Liquidation Event or Unmatured
Liquidation Event,
(c) after giving effect to each proposed Purchase or Reinvestment, (x)
the sum of (i) Purchaser's Total Investment and (ii) the aggregate CP Discount
will not exceed the Purchase Limit and (y) the Asset Interest will not exceed
the Allocation Limit,
(d) the Termination Date shall not have occurred,
(e) in the case of a Purchase, the Administrative Agent shall have
timely received an appropriate notice of the proposed Purchase in accordance
with SECTION 1.2(a),
(f) the Servicers shall have delivered to the Administrative
Agent, on the Purchaser's behalf, a completed Information Package as of the
applicable Reporting Date, and
17
(g) such other agreements, instruments, certificates, opinions and
other documents as the Administrative Agent may reasonably request have been
delivered.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1 REPRESENTATIONS AND WARRANTIES OF SELLER PARTIES.
Each Seller Party represents and warrants as to itself as follows:
(a) ORGANIZATION AND GOOD STANDING; OWNERSHIP. Each Seller Party
has been duly organized and is validly existing as a corporation in good
standing under the laws of the State of its incorporation, with power and
authority to own its properties and to conduct its business as such properties
are presently owned and such business is presently conducted. The Seller had at
all relevant times, and now has, all necessary power, authority, and legal right
to acquire and own the Pool Receivables and Related Assets. Georgia Gulf or GGCV
owns directly all the issued and outstanding capital stock of the Seller.
(b) DUE QUALIFICATION. Each Seller Party is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business requires such qualification,
licenses or approvals, except where the failure to be so qualified or have such
licenses or approvals would not have a Material Adverse Effect.
(c) POWER AND AUTHORITY; DUE AUTHORIZATION. Each Seller Party (i)
has all necessary power, authority and legal right (A) to execute and deliver
this Agreement and the other Transaction Documents to which it is a party, (B)
to carry out the terms of the Transaction Documents to which it is a party, (C)
in the case of the Servicers, to service the Receivables and the Related Assets
in accordance with this Agreement and the Sale Agreement, and (D) in the case of
the Seller, sell and assign the Asset Interest on the terms and conditions
herein provided, and (ii) has duly authorized by all necessary corporate action
the execution, delivery and performance of this Agreement and the other
Transaction Documents and, in the case of the Seller, the sales and assignments
described in clause (i)(D) above.
(d) VALID SALE; BINDING OBLIGATIONS. (i) This Agreement
constitutes a valid sale, transfer, and assignment of the Asset Interest to the
Purchaser, enforceable against creditors of, and purchasers from, the Seller,
and (ii) this Agreement and each other Transaction Document signed by such
Seller Party constitutes, a legal, valid and binding obligation of such Seller
Party, enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other similar laws from
time to time in effect affecting the enforcement of creditors' rights generally
and by general principles of equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
18
(e) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents and the
fulfillment of the terms hereof and thereof will not (i) conflict with, result
in any breach of any of the terms and provisions of, or constitute (with or
without notice or lapse of time or both) a default under, the articles or
certificate of incorporation or by-laws of such Seller Party, or any material
indenture, loan agreement, receivables purchase agreement, mortgage, deed of
trust, or other agreement or instrument to which such Seller Party is a party or
by which it or any of its properties is bound, (ii) result in the creation or
imposition of any Lien upon any of such Seller Party's properties pursuant to
the terms of any such material indenture, loan agreement, receivables purchase
agreement, mortgage, deed of trust, or other agreement or instrument, other than
this Agreement and the other Transaction Documents, or (iii) violate any law or
any order, rule, or regulation applicable to such Seller Party of any court or
of any federal or state regulatory body, administrative agency, or other
governmental instrumentality having jurisdiction over such Seller Party or any
of its properties.
(f) NO PROCEEDINGS. Except as set forth in the Annual Report of
Georgia Gulf and its subsidiaries on Form 10-K for the year ended December 31,
1999, or in any document filed prior to the date of this Agreement pursuant to
Section 13(a), 14 or 15(d) of the Securities Exchange Act of 1934, there are no
proceedings or investigations pending, or, to such Seller Party's knowledge,
threatened, before any court, regulatory body, administrative agency, or other
tribunal or governmental instrumentality (i) asserting the invalidity of this
Agreement or any other Transaction Document, (ii) seeking to prevent the sale
and assignment of the Receivables under the Purchase Agreement or of the Asset
Interest under this Agreement or the consummation of any of the other
transactions contemplated by this Agreement or any other Transaction Document,
or (iii) that would have a Material Adverse Effect.
(g) BULK SALES ACT. No transaction contemplated hereby requires
compliance with any bulk sales act or similar law.
(h) GOVERNMENT APPROVALS. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority or
regulatory body is required for the due execution, delivery and performance by
such Seller Party of this Agreement and each other Transaction Document to which
it is a party, EXCEPT, in the case of the Seller, for (i) the filing of the UCC
financing statements referred to in ARTICLE V, and (ii) the filing of any UCC
continuation statements and amendments from time to time required in relation to
any UCC financing statements filed in connection with this Agreement, as
provided in SECTION 8.5, all of which, at the time required in ARTICLE V or
SECTION 8.5, as applicable, shall have been duly made and shall be in full force
and effect.
(i) FINANCIAL CONDITION. (i) The consolidated balance sheets of
Georgia Gulf and its consolidated subsidiaries as at December 31, 1999, and the
related statements of income and shareholders' equity of Georgia Gulf and its
consolidated subsidiaries for the fiscal year then ended, certified by Arthur
Andersen, LLP, independent certified public accountants, copies of which have
been furnished to the Administrative Agent, fairly present in all material
respects the consolidated financial condition of Georgia Gulf and its
consolidated subsidiaries as at such date
19
and the consolidated results of the operations of Georgia Gulf and its
consolidated subsidiaries for the period ended on such date, all in accordance
with GAAP consistently applied, (ii) since December 31, 1999 there has been no
material adverse change in any such financial condition, business or operations
except as described in SCHEDULE 6.1(i), (iii) the balance sheets of the Seller
as at December 31, 1999, certified by the chief financial officer, treasurer or
corporate controller of the Seller by means of a Certificate of Financial
Officer in the form attached hereto as Exhibit B, copies of which have been
furnished to the Administrative Agent, fairly present in all material respects
the financial condition, assets and liabilities of the Seller as at such date,
all in accordance with GAAP consistently applied, and (iv) since December 31,
1999, there has been no material adverse change in the Seller's financial
condition, business or operations.
(j) NATURE OF RECEIVABLES. Each Receivable constitutes an
"account" as such term is defined in the UCC.
(k) MARGIN REGULATIONS. The use of all funds obtained by such
Seller Party under this Agreement or any other Transaction Document will not
conflict with or contravene any of Regulations T, U and X promulgated by the
Board of Governors of the Federal Reserve System from time to time.
(l) QUALITY OF TITLE. (i) Each Pool Receivable, together with the
Related Assets, is owned by the Seller free and clear of any Lien (other than
any Lien arising solely as the result of any action taken by the Purchaser (or
any assignee thereof) or by the Administrative Agent); (ii) when the Purchaser
makes a Purchase or Reinvestment, it shall have acquired and shall at all times
thereafter continuously maintain a valid and perfected first priority undivided
percentage ownership interest to the extent of the Asset Interest in each Pool
Receivable, each Related Asset and Collections with respect thereto, free and
clear of any Lien (other than any Lien arising as the result of any action taken
by the Purchaser (or any assignee thereof or by the Administrative Agent); and
(iii) no financing statement or other instrument similar in effect covering any
Pool Receivable, any interest therein, the Related Assets or Collections with
respect thereto is on file in any recording office except such as may be filed
(A) in favor of the Originators in accordance with the Contracts, (B) in favor
of the Seller in connection with the Purchase Agreement or (C) in favor of the
Purchaser or the Administrative Agent in accordance with this Agreement or in
connection with any Lien arising solely as the result of any action taken by the
Purchaser (or any assignee thereof) or by the Administrative Agent.
(m) ACCURATE REPORTS. No Information Package (if prepared by such
Seller Party, or to the extent information therein was supplied by such Seller
Party) or other information, exhibit, financial statement, document, book,
record or report furnished or to be furnished, in each case in writing, by or on
behalf of such Seller Party to the Administrative Agent or the Purchaser
pursuant to this Agreement was or will be inaccurate in any material respect as
of the date it was or will be dated or (except as otherwise disclosed to the
Administrative Agent or the Purchaser at such time) as of the date so furnished,
or contained or (in the case of information or other materials to be furnished
in the future) will contain any material misstatement of fact or omitted or (in
the case of information or other materials to be furnished in the future) will
omit to state a
20
material fact or any fact necessary to make the statements contained therein not
materially misleading in light of the circumstances made or presented.
(n) OFFICES. The principal places of business and chief executive
offices of the Servicers and the Seller are located at the respective addresses
set forth on SCHEDULE 14.2, and the offices where the Servicers and the Seller
keep all their books, records and documents evidencing Pool Receivables, the
related Contracts and all purchase orders and other agreements related to such
Pool Receivables are located at the addresses specified in SCHEDULE 6.1(n) (or
at such other locations, notified to the Administrative Agent, on the
Purchaser's behalf, in accordance with SECTION 7.1(f), in jurisdictions where
all action required by SECTION 8.5 has been taken and completed).
(o) LOCK-BOX ACCOUNTS. The names and addresses of all the Lock-Box
Banks, together with the account numbers of the accounts of the Originators or
the Seller at such Lock-Box Banks, are specified in SCHEDULE 6.1(o) (or have
been notified to and approved by the Administrative Agent, on the Purchaser's
behalf, in accordance with SECTION 7.3(d)).
(p) ELIGIBLE RECEIVABLES. Each Receivable included in the Net Pool
Balance as an Eligible Receivable on the date of any Purchase, Reinvestment or
computation of Net Pool Balance shall be an Eligible Receivable on such date.
(q) SERVICING PROGRAMS. No license or approval is required for the
Administrative Agent's use of any program used by the Servicers in the servicing
of the Receivables, other than those which have been obtained and are in full
force and effect.
(r) YEAR 2000 COMPLIANCE. Each Seller Party and any Subsidiaries
are Year 2000 Compliant and Ready.
(s) COMPLIANCE WITH CREDIT AND COLLECTION POLICY. With respect to
each Pool Receivable, each Seller Party has complied in all material respects
with the Credit and Collection Policy.
(t) NAMES. In the past five years, the Seller has not used any
corporate names, trade names or assumed names other than the name in which it
has executed this Agreement.
(u) OWNERSHIP OF THE SELLER. Georgia Gulf or GGCV own, directly or
indirectly, 100% of the issued and outstanding capital stock of the Seller, free
and clear of any Lien. Such capital stock is validly issued, fully paid and
nonassessable, and there are no options, warrants or other rights to acquire
securities of the Seller.
(v) INVESTMENT COMPANY. No Seller Party is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended from time
to time, or any successor statute.
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(w) TAXES. Each Seller Party has filed all material tax returns
and reports required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except to the extent any failure
to file such returns or reports or pay such taxes or charges would not result in
a Material Adverse Effect.
(x) RESTRICTIONS ON TRANSFERS. No Contract requires the prior
written consent of an Obligor or contains any other restriction relating to the
transfer or assignment of rights of payment under such Contract which are
legally enforceable (other than a consent or waiver of such restriction that has
been obtained prior to the Restatement Closing Date).
Section 6.2 .SPECIAL RESTATEMENT CLOSING DATE REPRESENTATIONS AND
WARRANTIES.
Each Seller Party hereby represents as to itself, as of the Restatement
Closing Date, as follows:
(a) NO MATERIAL ADVERSE CHANGE. From November 10, 1999 to the date
hereof, there has been no change in the condition (financial or otherwise),
business, operations or prospects of any Seller Party, in the ability of any
Seller Party to perform its obligations hereunder or in the collectibility of
the Receivables which change may have a Material Adverse Effect.
(b) CREDIT AND COLLECTION POLICIES. From November 10, 1999 to the
date hereof, there have been no changes in the Sellers' Credit and Collection
Policies.
(c) ERISA. From November 10, 1999 to the date hereof, each Seller
Party has been in compliance in all material respects with ERISA and no lien in
favor of the Pension Benefit Guaranty Corporation on any of the Receivables
existed, was pending or to any Seller Party's knowledge threatened.
(d) NO LIQUIDATION EVENT. From November 10, 1999 to the date
hereof, no event has occurred and is continuing, or has resulted from a Purchase
or a Reinvestment, that constitutes a Liquidation Event or Unmatured Liquidation
Event.
ARTICLE VII
GENERAL COVENANTS OF SELLER PARTIES
SECTION 7.1 AFFIRMATIVE COVENANTS OF SELLER PARTIES.
From the date hereof until the Final Payout Date, unless the
Administrative Agent shall otherwise consent in writing:
(a) COMPLIANCE WITH LAWS, ETC. Each Seller Party will comply in
all material respects with all applicable laws, rules, regulations and orders,
including those with respect to the
22
Pool Receivables and related Contracts, except where the failure to so comply
would not individually or in the aggregate have a Material Adverse Effect.
(b) PRESERVATION OF CORPORATE EXISTENCE. Each Seller Party will
preserve and maintain its corporate existence, rights, franchises and privileges
in the jurisdiction of its incorporation, and qualify and remain qualified in
good standing as a foreign corporation in each jurisdiction where the failure to
preserve and maintain such existence, rights, franchises, privileges and
qualification would have a Material Adverse Effect.
(c) AUDITS. Each Seller Party will (i) at any time and from time
to time upon not less than five (5) Business Days' notice (unless a Liquidation
Event has occurred and is continuing (or the Administrative Agent, on the
Purchaser's behalf, believes in good faith that a Liquidation Event has occurred
and is continuing), in which case no such notice shall be required) during
regular business hours, permit the Administrative Agent, on the Purchaser's
behalf, or any of its agents or representatives, (A) to examine and make copies
of and abstracts from all books, records and documents (including, without
limitation, computer tapes and disks) in the possession or under the control of
such Seller Party relating to Pool Receivables, including, without limitation,
the related Contracts and purchase orders and other agreements, and (B) to visit
the offices and properties of such Seller Party for the purpose of examining
such materials described in clause (i)(A) next above, and to discuss matters
relating to Pool Receivables or such Seller Party's performance hereunder with
any of the officers or employees of such Seller Party having knowledge of such
matters; (ii) permit the Administrative Agent or any of its agents or
representatives, upon not less than five (5) Business Days' notice from the
Administrative Agent (unless a Liquidation Event has occurred and is continuing
(or the Administrative Agent believes in good faith that a Liquidation Event has
occurred and is continuing) in which case no such notice shall be required), to
meet with the independent auditors of such Seller Party, to review such
auditors' work papers and otherwise to review with such auditors the books and
records of such Seller Party with respect to the Pool Receivables and Related
Assets; and (iii) without limiting the provisions of clause (i) or (ii) next
above, from time to time, at the expense of such Seller Party, permit certified
public accountants or other auditors acceptable to the Administrative Agent to
conduct a review of such Seller Party's books and records with respect to the
Pool Receivables and Related Assets; PROVIDED, that, so long as no Liquidation
Event has occurred and is continuing, (A) such reviews shall not be done more
than four (4) times in any one calendar year and (B) the Seller Parties shall
only be responsible for the costs and expenses of one such review in any one
calendar year.
(d) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. The Servicers will
maintain and implement administrative and operating procedures (including,
without limitation, an ability to recreate records evidencing Pool Receivables
in the event of the destruction of the originals thereof), and keep and
maintain, all documents, books, records and other information reasonably
necessary or advisable for the collection of all Pool Receivables (including,
without limitation, records adequate to permit the daily identification of
outstanding Unpaid Balances by Obligor and related debit and credit details of
the Pool Receivables).
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(e) PERFORMANCE AND COMPLIANCE WITH RECEIVABLES AND CONTRACTS.
Each Seller Party will, at its expense, timely and fully perform and comply with
all material provisions, covenants and other promises, if any, required to be
observed by it under the Contracts related to the Pool Receivables and all
agreements related to such Pool Receivables.
(f) LOCATION OF RECORDS. Each Seller Party will keep its chief
place of business and chief executive office, and the offices where it keeps its
records concerning the Pool Receivables, all related Contracts and all
agreements related to such Pool Receivables (and all original documents relating
thereto), at the address(es) of the Servicers and Seller referred to in SECTION
6.1(N) or, upon 30 days' prior written notice to the Administrative Agent, at
such other locations in jurisdictions where all action required by SECTION 8.5
shall have been taken and completed.
(g) CREDIT AND COLLECTION POLICIES. Each Seller Party will comply
with the Credit and Collection Policy in regard to each Pool Receivable and the
related Contract.
(h) PURCHASE AGREEMENT. The Seller will perform and comply with
all of its covenants and agreements set forth in the Purchase Agreement, and
will enforce the performance by the Originators of its obligations under the
Purchase Agreement.
(i) COLLECTION BANK AGREEMENT. All Obligors shall be instructed to
make payments on Receivables directly to a Lock-Box Account in the name of the
Seller which is the subject of a Lock-Box Agreement. If, notwithstanding the
foregoing, any Collections are paid directly to any Seller Party, such Seller
Party, shall deposit the same (with any necessary endorsements) to such a
Lock-Box Account within two (2) Business Days after receipt thereof. Upon demand
of the Administrative Agent, either the Seller or the Initial Servicers shall
establish a segregated account at Wachovia which is subject to a perfected
security interest in favor of the Administrative Agent, for the benefit of the
Secured Parties (the "COLLECTION ACCOUNT"), into which all deposits from time to
time in Lock-Box Accounts, and all other Collections, are concentrated pending
application in accordance with the terms of this Agreement.
SECTION 7.2 REPORTING REQUIREMENTS OF SELLER PARTIES.
From the date hereof until the Final Payout Date, unless the
Administrative Agent, on Purchaser's behalf, shall otherwise consent in writing:
(a) QUARTERLY FINANCIAL STATEMENTS. Georgia Gulf will furnish to
the Administrative Agent, on the Purchaser's behalf, as soon as available and in
any event within 50 days after the end of each of the first three quarters of
each fiscal year of Georgia Gulf, copies of its consolidated, and, to the extent
otherwise available, consolidating balance sheets and related statements of
income and statements of cash flow, showing the financial condition of Georgia
Gulf and its consolidated Subsidiaries as of the close of such fiscal quarter
and the results of its operations and the operations of such Subsidiaries during
such fiscal quarter and the then elapsed portion of the fiscal year, together
with a Certificate of Financial Officer in the form attached hereto as Exhibit B
executed by the chief financial officer, treasurer or corporate controller of
Georgia Gulf.
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(b) ANNUAL FINANCIAL STATEMENTS. Georgia Gulf will furnish to the
Administrative Agent, as soon as available and in any event within 95 days after
the end of each fiscal year of Georgia Gulf, copies of its consolidated and
consolidating balance sheets and related statements of income and statements of
cash flow, showing the financial condition of Georgia Gulf and its consolidated
Subsidiaries as of the close of such fiscal year and the results of its
operations and the operations of such Subsidiaries during such year, all audited
by Arthur Andersen LLP or other independent public accountants of recognized
national standing acceptable to the Administrative Agent and accompanied by an
opinion of such accountants (which shall not be qualified in any material
respect) to the effect that such consolidated financial statements fairly
present the financial condition and results of operations of Georgia Gulf on a
consolidated basis (except as noted therein) in accordance with GAAP
consistently applied;
(c) ANNUAL FINANCIAL STATEMENTS-GGCV. GGCV will furnish to the
Administrative Agent, as soon as available and in any event within 95 days after
the end of each fiscal year of GGCV, copies of the financial statements of GGCV,
consisting of at least a balance sheet of GGCV for such year and statements of
earnings, cash flows and shareholders' equity, setting forth in each case in
comparative form corresponding figures from the preceding fiscal year, together
with a Certificate of Financial Officer in the form attached hereto as Exhibit B
executed by the chief financial officer, treasurer or corporate controller of
GGCV;
(d) ANNUAL FINANCIAL STATEMENTS-SELLER. The Seller will furnish to
the Administrative Agent, as soon as available and in any event within 95 days
after the end of each fiscal year of the Seller, copies of the financial
statements of the Seller, consisting of at least a balance sheet of the Seller
for such year and statements of earnings, cash flows and shareholders' equity,
setting forth in each case in comparative form corresponding figures from the
preceding fiscal year, together with a Certificate of Financial Officer in the
form attached hereto as Exhibit B executed by the chief financial officer,
treasurer or corporate controller of the Seller;
(e) REPORTS TO HOLDERS AND EXCHANGES. In addition to the reports
required by SUBSECTIONS (a), (b), (c) and (d) next above, promptly upon the
Administrative Agent's request, Georgia Gulf and GGCV will furnish to the
Administrative Agent, on Purchaser's behalf, copies of any reports specified in
such request which Georgia Gulf and GGCV send to any of its securityholders, and
any reports or registration statements that Georgia Gulf and GGCV file with the
Securities and Exchange Commission or any national securities exchange other
than registration statements relating to employee benefit plans and to
registrations of securities for selling securities;
(f) ERISA. Promptly after the filing or receiving thereof, each
Seller Party will furnish to the Administrative Agent, on Purchaser's behalf,
copies of all reports and notices with respect to any Reportable Event defined
in Article IV of ERISA which any Seller Party files under ERISA with the
Internal Revenue Service, the Pension Benefit Guaranty Corporation or the U.S.
Department of Labor or which such Seller Party receives from the Pension Benefit
Guaranty Corporation;
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(g) LIQUIDATION EVENTS, ETC. As soon as possible and in any event
within three (3) Business Days after obtaining knowledge of the occurrence of
any Liquidation Event or any Unmatured Liquidation Event, each Seller Party will
furnish to the Administrative Agent, on the Purchaser's behalf, a written
statement of the chief financial officer, treasurer or chief accounting officer
of such Seller Party setting forth details of such event and the action that
such Seller Party will take with respect thereto;
(h) LITIGATION. As soon as possible and in any event within ten
Business Days of any Seller Party's knowledge thereof, such Seller Party will
furnish to the Administrative Agent, on the Purchaser's behalf, notice of (i)
any litigation, investigation or proceeding which may exist at any time which
could reasonably be expected to have a Material Adverse Effect and (ii) any
development in previously disclosed litigation which development could
reasonably be expected to have a Material Adverse Effect;
(i) CHANGE IN CREDIT AND COLLECTION POLICY. Prior to its effective
date, each Seller Party will furnish to the Administrative Agent, on the
Purchaser's behalf, notice of (i) any material change in the character of such
Seller Party's business, and (ii) any material change in the Credit and
Collection Policy;
(j) RATINGS. Within one Business Day of the occurrence thereof,
each Seller Party will furnish to the Administrative Agent, on the Purchaser's
behalf, notice of any downgrading or withdrawal of any rating of any
Indebtedness of Georgia Gulf or GGCV by any rating agency; and
(k) OTHER. Promptly, from time to time, each Seller Party will
furnish to the Administrative Agent, on the Purchaser's behalf, such other
information, documents, records or reports respecting the Receivables or the
condition or operations, financial or otherwise, of such Seller Party as the
Administrative Agent may from time to time reasonably request in order to
protect the interests of the Administrative Agent or Purchaser under or as
contemplated by this Agreement.
SECTION 7.3 NEGATIVE COVENANTS OF SELLER PARTIES.
From the date hereof until the Final Payout Date, without the prior
written consent of the Administrative Agent:
(a) SALES, LIENS, ETC. (i) No Seller Party will, except as
otherwise provided herein and in the other Transaction Documents, sell, assign
(by operation of law or otherwise) or otherwise dispose of, or create or suffer
to exist any Lien upon or with respect to, any Pool Receivable or any Related
Asset, or any interest therein, or any account to which any Collections of any
Pool Receivable are sent, or any right to receive income or proceeds from or in
respect of any of the foregoing (except, prior to the execution of Lock-Box
Agreements, set-off rights of any bank at which any such account is maintained),
and (ii) no Seller Party will assert any interest in the Receivables, except as
the Servicers.
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(b) EXTENSION OR AMENDMENT OF RECEIVABLES. No Seller Party will,
except as otherwise permitted in SECTION 8.2(c), extend, amend or otherwise
modify the terms of any Pool Receivable, or amend, modify or waive any material
term or condition of any Contract related thereto in any way that adversely
affects the collectibility of any Pool Receivable or the Purchaser's rights
therein.
(c) CHANGE IN BUSINESS OR CREDIT AND COLLECTION POLICY. No Seller
Party will make or permit to be made any change in the character of its business
or in the Credit and Collection Policy, which change would, in either case,
impair the collectibility of any significant portion of the Pool Receivables or
otherwise adversely affect the interests or remedies of the Purchaser under this
Agreement or any other Transaction Document.
(d) CHANGE IN PAYMENT INSTRUCTIONS TO OBLIGORS. No Seller Party
will add or terminate any bank as a Lock-Box Bank from those listed in SCHEDULE
6.1(o) or, after Lock-Box Accounts have been delivered pursuant to SECTION
7.1(i), make any change in its instructions to Obligors regarding payments to be
made to the Seller or the Servicers or payments to be made to any Lock-Box Bank
(except for a change in instructions solely for the purpose of directing
Obligors to make such payments to another existing Lock-Box Bank), unless each
such Lock-Box Account is in the name of the Seller and the Administrative Agent
shall have received prior written notice of such addition, termination or change
and the Administrative Agent shall have received duly executed copies of
Lock-Box Agreements with each Lock-Box Bank.
(e) DEPOSITS TO COLLECTION ACCOUNT. No Seller Party will deposit
or otherwise credit, or cause or permit to be so deposited or credited, to the
Collection Account, any cash or cash proceeds other than Collections of Pool
Receivables.
(f) CHANGES TO OTHER DOCUMENTS. The Seller will not enter into any
amendment or modification of, or supplement to, the Purchase Agreement or
Seller's Certificate of Incorporation.
(g) RESTRICTED PAYMENTS BY SELLER. The Seller will not (i)
purchase or redeem any shares of the capital stock of the Seller, (ii) declare
or pay any dividends thereon (other than stock dividends), make any distribution
to stockholders or set aside any funds for any such purpose or (iii) pay any
principal amount of the Subordinated Notes (as defined in the Purchase
Agreement), EXCEPT that the Seller may pay all or a portion of such principal
amount on the Settlement Date for any Settlement Period, after making any
payment required to be made by Seller on such Settlement Date in accordance with
the last sentence of SECTION 3.1(c)(ii) if after giving effect to such payment
the sum of the Purchaser's Total Investment and the Earned Discount does not
exceed the Purchase Limit and the Asset Interest does not exceed the Allocation
Limit and Seller's net worth (determined in accordance with GAAP) is not less
than $2,250,000. The Seller may, on the Restatement Closing Date, make a
one-time increase in the principal amount of the Subordinated Notes which
increase is not in consideration of the payment of the Purchase Price for any
Receivables under the Purchase Agreement; PROVIDED, however, that such increase
shall not exceed, in the aggregate, _______ dollars ($_____); and PROVIDED,
FURTHER, however, that both (x) upon such increase there is a corresponding and
equal
27
decrease in the shareholders' equity and (y) after giving effect to such
increase in the principal amount of the Subordinated Notes and decrease in
shareholders' equity, the Seller's new worth (determined in accordance with
GAAP) is not less than $2,250,000.
(h) SELLER INDEBTEDNESS. The Seller will not incur or permit to
exist any indebtedness or liability on account of deposits or advances or for
borrowed money or for the deferred purchase price of any property or services,
except (i) indebtedness of Seller to the Originators incurred in accordance with
the Purchase Agreement, (ii) current accounts payable arising under the
Transaction Documents and not overdue and (iii) other current accounts payable
arising in the ordinary course of business and not overdue, in an aggregate
amount at any time outstanding not to exceed $4,500.
(i) NEGATIVE PLEDGES. No Seller Party will enter into or assume
any agreement (other than this Agreement and the other Transaction Documents)
prohibiting the creation or assumption of any Lien upon any Pool Receivables or
Related Assets, whether now owned or hereafter acquired, except as contemplated
by the Transaction Documents, or otherwise prohibiting or restricting any
transaction contemplated hereby or by the other Transaction Documents.
(j) CHANGE OF NAME. Seller will not change its name, any trade
name or corporate structure, or commence the use of any new trade name unless it
has given the Administrative Agent at least 30 days prior written notice thereof
and has taken all steps necessary to continue the perfection of the Purchaser's
interest, including the filing of amendments to the UCC financing statements
filed pursuant to SECTION 5.1(f).
(k) MERGERS, CONSOLIDATIONS AND ACQUISITIONS. The Seller will not
merge into or consolidate with any other Person, or permit any other Person to
merge into or consolidate with it, or purchase, lease or otherwise acquire (in
one transaction or a series of transactions) all or substantially all of the
assets of any other Person (whether directly by purchase, lease or other
acquisition of all or substantially all of the assets of such Person or
indirectly by purchase or other acquisition of all or substantially all of the
capital stock of such other Person) other than the acquisition of the
Receivables and Related Assets pursuant to the Purchase Agreement and the sale
of an interest in the Pool Receivables and Related Assets hereunder.
(l) DISPOSITION OF ASSETS. Except pursuant to this Agreement, the
Seller will not sell, lease, transfer, assign or otherwise dispose of (in one
transaction or in a series of transactions) any Receivables and Related Assets.
(m) AMENDMENTS TO OTHER AGREEMENTS. The Seller hereby covenants
and agrees with the Purchaser that, for so long as the Agreement is in effect,
unless the Administrative Agent on behalf of the Purchaser otherwise consents in
writing, the Seller will not agree to permit Georgia Gulf or GGCV to amend,
agree to permit any such Person to amend or consent to the amendment of (a) the
definition of "Permitted Receivables Transaction" in SECTION 1.1 of the Credit
Agreement, (b) the definition of "Transferred Receivables" in SECTION 1.1 of the
Collateral Agreement and (c) the Credit Agreement or the Collateral Agreement in
a manner that would
28
cause a breach of any representation, warranty or covenant by either the Seller,
Georgia Gulf or GGCV under this Agreement or any other Transaction Document.
SECTION 7.4 SEPARATE CORPORATE EXISTENCE OF SELLER.
Each Seller Party hereby acknowledges that the Purchaser and the
Administrative Agent are entering into the transactions contemplated hereby in
reliance upon the Seller's identity as a legal entity separate from the
Servicers and its other Affiliates. Therefore, each Seller Party shall take all
steps specifically required by this Agreement or reasonably required by the
Administrative Agent to continue the Seller's identity as a separate legal
entity and to make it apparent to third Persons that the Seller is an entity
with assets and liabilities distinct from those of its Affiliates, and is not a
division of Georgia Gulf or GGCV or any other Person. Without limiting the
foregoing, each Seller Party will take such actions as shall be required in
order that:
(a) The Seller will be a limited purpose corporation whose primary
activities are restricted in its Certificate of Incorporation to purchasing or
otherwise acquiring from the Originators, owning, holding, granting security
interests, or selling interests, in Receivables in the Receivables Pool and
Related Assets, entering into agreements for the selling and servicing of the
Receivables Pool, and conducting such other activities as it deems necessary or
appropriate to carry out its primary activities;
(b) Not less than one member of Seller's Board of Directors (the
"INDEPENDENT DIRECTOR") shall be an individual who is not, and never has been, a
direct, indirect or beneficial stockholder, officer, director, employee,
affiliate, associate, material supplier or material customer of Georgia Gulf or
GGCV or any of its Affiliates. The certificate of incorporation of the Seller
shall provide that (i) at least one member of the Seller's Board of Directors
shall be an Independent Director, (ii) the Seller's Board of Directors shall not
approve, or take any other action to cause the filing of, a voluntary bankruptcy
petition with respect to the Seller unless a unanimous vote of the Seller's
Board of Directors (including the Independent Director) shall approve the taking
of such action in writing prior to the taking of such action and (iii) the
provisions requiring an Independent Director and the provision described in
clauses (i) and (ii) of this paragraph (b) cannot be amended without the prior
written consent of the Independent Director;
(c) The Independent Director shall not at any time serve as a
trustee in bankruptcy for Seller or any Affiliate thereof;
(d) Any employee, consultant or agent of the Seller will be
compensated from the Seller's funds for services provided to the Seller. The
Seller will not engage any agents other than its attorneys, auditors and other
professionals, and a servicer and any other agent contemplated by the
Transaction Documents for the Receivables Pool. The Servicers will be fully
compensated for its services by payment of the Servicer's Fee, and certain
organizational expenses in connection with the formation of Seller;
29
(e) The Seller will contract with the Servicers to perform for the
Seller all operations required on a daily basis to service the Receivables Pool.
The Seller will pay the Servicers the Servicer's Fee pursuant hereto. The Seller
will not incur any material indirect or overhead expenses for items shared with
Georgia Gulf or GGCV (or any other Affiliate thereof) which are not reflected in
the Servicer's Fee. To the extent, if any, that the Seller (or any other
Affiliate thereof) share items of expenses not reflected in the Servicer's Fee,
for legal, auditing and other professional services and directors' fees, such
expenses will be allocated to the extent practical on the basis of actual use or
the value of services rendered, and otherwise on a basis reasonably related to
the actual use or the value of services rendered, it being understood that
Georgia Gulf or GGCV shall pay all expenses relating to the preparation,
negotiation, execution and delivery of the Transaction Documents, including,
without limitation, legal, rating agency and other fees;
(f) The Seller's operating expenses will not be paid by any other
Seller Party or other Affiliate of the Seller;
(g) The Seller will have its own stationery;
(h) The books of account, financial reports and corporate records
of the Seller will be maintained separately from those of Georgia Gulf or GGCV
and each other Affiliate of the Seller;
(i) Any financial statements of any Seller Party or Affiliate
thereof which are consolidated to include the Seller will contain notes in
accordance with GAAP reflecting, and the accounting records and the published
financial statements of the Originators will clearly show, that, for accounting
purposes, the Pool Receivables and Related Assets have been sold by the
Originators to the Seller;
(j) The Seller's assets will be maintained in a manner that
facilitates their identification and segregation from those of the Servicers and
the other Affiliates;
(k) Each Affiliate of the Seller will strictly observe corporate
formalities in its dealings with the Seller, and, except as permitted pursuant
to this Agreement with respect to Collections, funds or other assets of the
Seller will not be commingled with those of any of its Affiliates;
(l) No Affiliate of the Seller will maintain joint bank accounts
with the Seller or other depository accounts with the Seller to which any such
Affiliate (other than in its capacity as the Servicer hereunder or under the
Purchase Agreement) has independent access;
(m) No Affiliate of the Seller shall, directly or indirectly, name
the Seller or enter into any agreement to name the Seller as a direct or
contingent beneficiary or loss payee on any insurance policy covering the
property of any Affiliate of the Seller;
30
(n) Each Affiliate of the Seller will maintain arm's length
relationships with the Seller, and each Affiliate of the Seller that renders or
otherwise furnishes services or merchandise to the Seller will be compensated by
the Seller at market rates for such services or merchandise;
(o) No Affiliate of the Seller will be, nor will it hold itself
out to be, responsible for the debts of the Seller or the decisions or actions
in respect of the daily business and affairs of the Seller. Georgia Gulf, GGCV
and the Seller will immediately correct any known misrepresentation with respect
to the foregoing and they will not operate or purport to operate as an
integrated single economic unit with respect to each other or in their dealing
with any other entity;
(p) The Seller will keep correct and complete books and records of
account and minutes of the meetings and other proceedings of its stockholder and
board of directors, as applicable, and the resolutions, agreements and other
instruments of the Seller will be continuously maintained as official records by
the Seller; and
(q) Each of the Seller, on the one hand, and the Originators, on
the other hand, will conduct its business solely in its own corporate name and
in such a separate manner so as not to mislead others with whom they are
dealing.
ARTICLE VIII
ADMINISTRATION AND COLLECTION
SECTION 8.1 DESIGNATION OF SERVICERS.
(a) GEORGIA GULF AND GGCV AS INITIAL SERVICERS. The servicing,
administering and collection of the Pool Receivables shall be conducted by the
Persons designated as Servicers hereunder from time to time in accordance with
this SECTION 8.1. Until the Administrative Agent, on Purchaser's behalf, gives
to Georgia Gulf and/or GGCV a Successor Notice (as defined in SECTION 8.1(b)),
Georgia Gulf and GGCV are hereby designated as, and hereby agree to perform the
duties and obligations of, Servicer pursuant to the terms hereof.
(b) SUCCESSOR NOTICE: SERVICER TRANSFER EVENTS. Upon receipt by a
Servicer of a notice from the Administrative Agent of the Administrative Agent's
designation, on the Purchaser's behalf, of a new Servicer (a "SUCCESSOR
NOTICE"), each Servicer agrees that it will terminate its activities as Servicer
hereunder in a manner that the Administrative Agent believes will facilitate the
transition of the performance of such activities to the new Servicer, and the
Administrative Agent (or its designee) shall assume each and all of such
terminated Servicer's obligations to service and administer such Receivables, on
the terms and subject to the conditions herein set forth, and each Servicer
shall use its best efforts to assist the Administrative Agent (or its designee)
in assuming such obligations. Without limiting the foregoing, each Servicer
agrees at their joint and several expense, to take all actions necessary to
provide the new Servicer with access to all computer software necessary or
useful in collecting, billing or maintaining records with respect to
Receivables. The Administrative Agent agrees not to give a Successor Notice
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until after the occurrence and during the continuance of any Liquidation Event
(any such event being herein called a "SERVICER TRANSFER EVENT"), in which case
such Successor Notice may be given at any time in the Administrative Agent's
discretion. If any Servicer disputes the occurrence of a Servicer Transfer
Event, such Servicer may take appropriate action to resolve such dispute;
provided that such Servicer must terminate its activities hereunder as Servicer
and allow the newly designated Servicer to perform such activities on the date
provided by the Administrative Agent as described above, notwithstanding the
commencement or continuation of any proceeding to resolve the aforementioned
dispute, if the Administrative Agent, on the Purchaser's behalf, reasonably
determines, in good faith, that such termination is necessary or advisable to
protect the Purchaser's interests hereunder.
(c) SUBCONTRACTS. A Servicer may, with the prior consent of the
Administrative Agent, subcontract with any other Person for servicing,
administering or collecting the Pool Receivables, PROVIDED that the Servicers
shall remain jointly and severally liable for the performance of the duties and
obligations of the Servicers pursuant to the terms hereof and such subservicing
arrangement may be terminated at the Administrative Agent's request, on the
Purchaser's behalf, at anytime after a Successor Notice has been given.
SECTION 8.2 DUTIES OF SERVICERS.
(a) APPOINTMENT; DUTIES IN GENERAL. Each of the Seller, the
Purchaser and the Administrative Agent hereby appoints as its agent the
Servicers, as from time to time designated pursuant to SECTION 8.1, to enforce
its rights and interests in and under the Pool Receivables, the Related Security
and the related Contracts. The Servicers shall take or cause to be taken all
such actions as may be necessary or advisable to collect each Pool Receivable
from time to time, all in accordance with applicable laws, rules and
regulations, with reasonable care and diligence, and in accordance with the
Credit and Collection Policy.
(b) ALLOCATION OF COLLECTIONS; SEGREGATION. The Servicers shall
set aside and hold in trust for the account of the Seller and the Purchaser
their respective allocable shares of the Collections of Pool Receivables in
accordance with SECTION 1.3 but shall not be required (unless otherwise
requested by the Administrative Agent, on the Purchaser's behalf, after the
occurrence of a Liquidation Event) to segregate the funds constituting such
portions of such Collections prior to the remittance thereof in accordance with
said Section. If instructed by the Administrative Agent, on Purchaser's behalf,
after the occurrence of a Liquidation Event, the Servicers shall segregate and
deposit into the Collection Account, the Purchaser's share of Collections of
Pool Receivables, on the second Business Day following receipt by the Servicers
of such Collections in immediately available funds.
(c) MODIFICATION OF RECEIVABLES. So long as no Liquidation Event
and no Unmatured Liquidation Event shall have occurred and be continuing,
Georgia Gulf and GGCV, while they are Servicers, may, only if in accordance with
the Credit and Collection Policy, (i) extend the maturity or adjust the Unpaid
Balance of any Defaulted Receivable as Georgia Gulf and GGCV may reasonably
determine to be appropriate to maximize Collections thereof, and (ii) adjust the
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Unpaid Balance of any Receivable to reflect the reductions or cancellations
described in SECTION 3.2(a).
(d) DOCUMENTS AND RECORDS. Each Seller Party shall deliver to the
Servicers, and the Servicers shall hold in trust for the Seller and the
Purchaser in accordance with their respective interests, all documents,
instruments and records (including, without limitation, computer tapes or disks)
that evidence or relate to Pool Receivables.
(e) CERTAIN DUTIES TO SELLER. The Servicers shall, as soon as
practicable following receipt, turn over to the Seller (i) that portion of
Collections of Pool Receivables representing its undivided percentage interest
therein, less the Seller's Share of the Servicer's Fee, and, in the event that
neither Georgia Gulf and GGCV nor any other Seller Party or Affiliate thereof is
the Servicer, all reasonable and appropriate out-of-pocket costs and expenses of
the Servicer of servicing, collecting and administering the Pool Receivables to
the extent not covered by the Servicer's Fee received by it, and (ii) the
Collections of any Receivable which is not a Pool Receivable. The Servicer, if
other than Georgia Gulf and GGCV or any other Seller Party or Affiliate thereof,
shall, as soon as practicable upon demand, deliver to the Seller all documents,
instruments and records in its possession that evidence or relate to Receivables
of the Seller other than Pool Receivables, and copies of documents, instruments
and records in its possession that evidence or relate to Pool Receivables.
(f) TERMINATION. Each Servicer's authorization under this
Agreement shall terminate upon the Final Payout Date.
(g) POWER OF ATTORNEY. The Seller hereby grants to the Servicers
an irrevocable power of attorney, with full power of substitution, coupled with
an interest, to take in the name of the Seller all steps which are necessary or
advisable to endorse, negotiate or otherwise realize on any writing or other
right of any kind held or transmitted by the Seller or transmitted or received
by the Purchaser (whether or not from the Seller) in connection with any
Receivable.
SECTION 8.3 RIGHTS OF THE ADMINISTRATIVE AGENT.
(a) NOTICE TO OBLIGORS. At any time when a Liquidation Event has
occurred and is continuing, the Administrative Agent may notify the Obligors of
Pool Receivables, or any of them, of the ownership of the Asset Interest by the
Purchaser.
(b) NOTICE TO LOCK-BOX BANKS. At any time following the occurrence
of a Liquidation Event, the Administrative Agent is hereby authorized to give
notice to the Lock-Box Banks, as provided in the Lock-Box Agreements, of the
transfer to the Administrative Agent of dominion and control over the lock-boxes
and related accounts to which the Obligors of Pool Receivables make payments.
The Seller and the Servicers hereby transfer to the Administrative Agent,
effective when the Administrative Agent shall give notice to the Lock-Box Banks
as provided in the Lock-Box Agreements, the exclusive dominion and control over
such lock-boxes and accounts, and shall take any further action that the
Administrative Agent may reasonably request to effect such transfer.
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(c) RIGHTS ON SERVICER TRANSFER EVENT. At any time following the
designation of a Servicer other than Georgia Gulf, GGCV or any Affiliate of
either of them pursuant to SECTION 8.1:
(i) The Administrative Agent may direct the Obligors of
Pool Receivables, or any of them, to pay all amounts payable under any
Pool Receivable directly to the Administrative Agent or its designee.
(ii) Any Seller Party shall, at the Administrative Agent's
request and at such Seller Party's expense, give notice of Purchaser's
ownership and security interests in the Pool Receivables to each
Obligor of Pool Receivables and direct that payments be made directly
to the Administrative Agent or its designee.
(iii) Each Seller Party shall, at the Administrative
Agent's request, (A) assemble all of the documents, instruments and
other records (including, without limitation, computer programs, tapes
and disks) which evidence the Pool Receivables, and the related
Contracts and Related Security, or which are otherwise necessary or
desirable to collect such Pool Receivables, and make the same available
to the successor Servicer at a place selected by the Administrative
Agent, and (B) segregate all cash, checks and other instruments
received by it from time to time constituting Collections of Pool
Receivables in a manner acceptable to the Administrative Agent and
promptly upon receipt, remit all such cash, checks and instruments,
duly endorsed or with duly executed instruments of transfer, to the
successor Servicer.
(iv) Each Seller Party and the Purchaser hereby authorizes
the Administrative Agent, on the Purchaser's behalf, and grants to the
Administrative Agent an irrevocable power of attorney (which shall
terminate on the Final Payout Date), to take any and all steps in such
Seller Party's name and on behalf of the Seller Parties and the
Purchaser which are necessary or desirable, in the determination of the
Administrative Agent, to collect all amounts due under any and all Pool
Receivables, including, without limitation, endorsing any Seller
Party's name on checks and other instruments representing Collections
and enforcing such Pool Receivables and the related Contracts.
SECTION 8.4 RESPONSIBILITIES OF SELLER PARTIES.
Anything herein to the contrary notwithstanding:
(a) CONTRACTS. Each Seller Party shall remain responsible for
performing all of its obligations (if any) under the Contracts related to the
Pool Receivables and under the related agreements to the same extent as if the
Asset Interest had not been sold hereunder, and the exercise by the
Administrative Agent or its designee of its rights hereunder shall not relieve
any Seller Party from such obligations.
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(b) LIMITATION OF LIABILITY. The Administrative Agent and
Purchaser shall not have any obligation or liability with respect to any Pool
Receivables, Contracts related thereto or any other related agreements, nor
shall any of them be obligated to perform any of the obligations of any Seller
Party or any Originator thereunder.
SECTION 8.5 FURTHER ACTION EVIDENCING PURCHASES AND
REINVESTMENTS.
(a) FURTHER ASSURANCES. Each Seller Party agrees that from time to
time, at its expense, it will promptly execute and deliver all further
instruments and documents, and take all further action that the Administrative
Agent or its designee may reasonably request in order to perfect, protect or
more fully evidence the Purchases hereunder and the resulting Asset Interest, or
to enable the Purchaser or the Administrative Agent or its designee to exercise
or enforce any of their respective rights hereunder or under any Transaction
Document in respect thereof. Without limiting the generality of the foregoing,
each Seller Party will:
(i) upon the request of the Administrative Agent, execute
and file such financing or continuation statements, or amendments
thereto or assignments thereof, and such other instruments or notices,
as may be necessary or appropriate, in accordance with the terms of
this Agreement;
(ii) upon the request of the Administrative Agent after
the occurrence and during the continuance of a Liquidation Event, mark
conspicuously each Contract evidencing each Pool Receivable with a
legend, acceptable to the Administrative Agent, evidencing that the
Asset Interest has been sold in accordance with this Agreement; and
(iii) mark its master data processing records evidencing
such Pool Receivables and related Contracts with a legend, acceptable
to the Administrative Agent, evidencing that the Asset Interest has
been sold in accordance with this Agreement.
(b) ADDITIONAL FINANCING STATEMENTS; PERFORMANCE BY ADMINISTRATIVE
AGENT. Each Seller Party hereby authorizes the Administrative Agent, on the
Purchaser's behalf, or its designee to file one or more financing or
continuation statements, and amendments thereto and assignments thereof,
relative to all or any of the Pool Receivables and the Related Assets now
existing or hereafter arising in the name of any Seller Party. If any Seller
Party fails to promptly execute and deliver to the Administrative Agent, on the
Purchaser's behalf, any financing statement or continuation statement or
amendment thereto or assignment thereof requested by the Administrative Agent,
on the Purchaser's behalf, each Seller Party hereby authorizes the
Administrative Agent, on the Purchaser's behalf, to execute such statement on
behalf of such Seller Party. If any Seller Party fails to perform any of its
agreements or obligations under this Agreement, the Administrative Agent or its
designee may (but shall not be required to) itself perform, or cause performance
of, such agreement or obligation, and the reasonable expenses of the
Administrative Agent or its designee incurred in connection therewith shall be
payable by the Seller Parties as provided in SECTION 14.5.
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(c) CONTINUATION STATEMENTS; OPINION. Without limiting the
generality of SUBSECTION (A), the Seller will, not earlier than six (6) months
and not later than three (3) months prior to the fifth anniversary of the date
of filing of the financing statements referred to in SECTION 5.1(F) or any other
financing statement filed pursuant to this Agreement or in connection with any
Purchase hereunder, if the Final Payout Date shall not have occurred:
(i) execute and deliver and file or cause to be filed an
appropriate continuation statement with respect to such financing
statement; and
(ii) deliver or cause to be delivered to the
Administrative Agent an opinion of the counsel for the Seller Parties,
in form and substance reasonably satisfactory to the Administrative
Agent, confirming and updating the opinion delivered pursuant to
Section 5.1(i) to the effect that the Asset Interest hereunder
continues to be a valid and perfected ownership or security interest,
subject to no other Liens of record except as provided herein or
otherwise permitted hereunder.
SECTION 8.6 APPLICATION OF COLLECTIONS.
Any payment by an Obligor in respect of any indebtedness owed by it to
the Originators or the Seller shall, except as otherwise specified by such
Obligor or required by the underlying Contract or law, be applied, FIRST, as a
Collection of any Pool Receivable or Receivables then outstanding of such
Obligor in the order of the age of such Pool Receivables, starting with the
oldest of such Pool Receivables and, SECOND, to any other indebtedness of such
Obligor.
ARTICLE IX
SECURITY INTEREST
SECTION 9.1 GRANT OF SECURITY INTEREST.
To secure all obligations of the Seller arising in connection with this
Agreement and each other Transaction Document, whether now or hereafter
existing, due or to become due, direct or indirect, or absolute or contingent,
including, without limitation, all Indemnified Amounts, payments on account of
Collections received or deemed to be received and fees, in each case pro rata
according to the respective amounts thereof, the Seller hereby assigns and
pledges to the Purchaser and its successors and assigns, for the benefit of the
Secured Parties, and hereby grants to the Purchaser, for the benefit of the
Secured Parties, a security interest in, all of the Seller's right, title and
interest now or hereafter existing in, to and under (a) all the Pool Receivables
and Related Assets (and including specifically any undivided interest therein
retained by the Seller hereunder), (b) the Purchase Agreement and the other
Transaction Documents and (c) all proceeds of any of the foregoing.
SECTION 9.2 FURTHER ASSURANCES.
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The provisions of SECTION 8.5 shall apply to the security interest
granted under SECTION 9.1 as well as to the Purchases, Reinvestments and all the
Asset Interests hereunder.
SECTION 9.3 REMEDIES.
Upon the occurrence of a Liquidation Event, the Purchaser shall have,
with respect to the collateral granted pursuant to SECTION 9.1, and in addition
to all other rights and remedies available to the Purchaser or the
Administrative Agent under this Agreement and the other Transaction Documents or
other applicable law, all the rights and remedies of a secured party upon
default under the UCC.
ARTICLE X
LIQUIDATION EVENTS
SECTION 10.1 LIQUIDATION EVENTS.
The following events shall be "Liquidation Events" hereunder:
(a) Any Servicer (if any Seller Party or Affiliate thereof is
Servicer) or the Seller (in the case of clause (ii) below) (i) shall fail to
perform or observe any term, covenant or agreement that is an obligation of the
Servicers hereunder (other than as referred to in clause (ii) below or in other
paragraphs of this SECTION 10.1) and such failure shall remain unremedied for
thirty (30) days after written notice thereof shall have been given by the
Administrative Agent to the Servicers or the Servicers shall have otherwise
become aware, or (ii) shall fail to make any payment or deposit to be made by it
hereunder when due which failure shall continue for five (5) days; or
(b) Any representation or warranty made or deemed to be made by
any Seller Party (or any of its officers) under this Agreement or any other
Transaction Document or any Information Package or other information or report
delivered pursuant hereto shall prove to have been false or incorrect in any
material respect when made; or
(c) Any Seller Party shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement or any of the other
Transaction Documents on its part to be performed or observed and any such
failure shall remain unremedied for thirty (30) days after written notice
thereof shall have been given by the Administrative Agent to any Seller Party or
such Seller Party shall have otherwise become aware; or
(d) (i) Any Seller Party shall (A) fail to pay any principal or
interest, regardless of amount, due in respect of any Indebtedness when the
aggregate unpaid principal amount is in excess of in the case of the Seller,
$10,750, or in the case of any other Seller Party, $10,000,000 when and as the
same shall become due and payable (after expiration of any applicable grace
period) or (B) fail to observe or perform any other term, covenant, condition or
agreement (after expiration of any applicable grace period) contained in any
agreement or instrument evidencing
37
or governing any such Indebtedness if the effect of any failure referred to in
this clause (B) is to cause, or permit the holder or holders of such
Indebtedness or a trustee on its or their behalf (with or without the giving of
notice, the lapse of time or both) to cause, such Indebtedness to become due
prior to its stated maturity; (ii) any default under any other agreement or
instrument relating to the purchase of receivables in an aggregate amount in
excess of in the case of the Seller, $10,750, or in the case of any other Seller
Party $10,000,000, or any other event, shall occur and shall continue after the
applicable grace period, if any, specified in such agreement or instrument, if
the effect of such default (A) is to permit the termination of the commitment of
any party to such agreement or instrument to purchase receivables or the right
of such Seller Party to reinvest in receivables the principal amount paid by any
party to such agreement or instrument for its interest in receivables or (B) is
to terminate such commitment or right; or (iii) a default or trigger event shall
occur under any asset securitization agreement or arrangement entered into by
any Seller Party for the sale of receivables or an interest therein in excess of
$10,000,000; or
(e) An Event of Bankruptcy shall have occurred and remain
continuing with respect to the Servicers or any Seller Party; or
(f) The rolling three month average Dilution Ratio at any Cut-Off
Date exceeds 5.00%; or
(g) The rolling three month average Default Ratio at any Cut-Off
Date exceeds 2.50%; or
(h) The rolling three month average Delinquency Ratio at (i) any
Cut-Off Date occurring on or prior to August 31, 2000, exceeds 3.25% and (ii),
any Cut-Off Date occurring after August 31, 2000, exceeds 2.50%; or
(i) [RESERVED];
(j) On any Settlement Date, after giving effect to the payments
made under SECTION 3.1(c), (i) the Asset Interest exceeds 100% or (ii) the sum
of (A) the Purchaser's Total Investment and (B) the aggregate CP Discount
exceeds the Purchase Limit; or
(k) There shall have occurred any event which materially adversely
impairs the ability of Georgia Gulf or GGCV to originate Receivables of a credit
quality which are at least of the credit quality of the Receivables included in
the first Purchase, or any other event occurs that is reasonably likely to have
a Material Adverse Effect; or
(l) Any Seller Party is subject to a Change in Control (unless
approved in writing by Purchaser); or
(m) The Internal Revenue Service shall file notice of a lien
pursuant to Section 6323 of the Internal Revenue Code with regard to any of the
Receivables or Related Assets and such lien shall not have been released within
seven (7) days, or the Pension Benefit Guaranty Corporation shall, or shall
indicate its intention to, file notice of a lien pursuant to Section 4068
38
of the Employee Retirement Income Security Act of 1974 with regard to any of the
Receivables or Related Assets; or
(n) Georgia Gulf or GGCV shall make any material change in the
policies as to origination of Receivables or in the Credit and Collection Policy
without the prior written consent of the Administrative Agent; or
(o) The Purchaser, for any reason, does not have a valid,
perfected first priority interest in the Pool Receivables and the Related
Assets; or
(p) a final judgment or judgments shall be rendered against
Georgia Gulf, GGCV, the Seller or any combination thereof for the payment of
money with respect to which an aggregate amount in excess of $10,750 with
respect to the Seller and $10,000,000 with respect to Georgia Gulf and GGCV is
not covered by insurance and the same shall remain undischarged for a period of
30 consecutive days during which execution shall not be effectively stayed, or
any action shall be legally taken by a judgment creditor to levy upon assets or
properties of Georgia Gulf or GGCV or the Seller to enforce any such judgment;
or
(q) a Reportable Event or Reportable Events, or a failure to make
a required installment or other payment (within the meaning of Section 412(n)(1)
of the Code), shall have occurred with respect to any Plan or Plans that
reasonably could be expected to result in liability of Georgia Gulf or GGCV to
the Pension Benefit Guaranty Corporation ("PBGC") or to a Plan in an aggregate
amount exceeding $10,000,000 and, within 30 days after the reporting of any such
Reportable Event to the Administrative Agent, on the Purchaser's behalf, the
Administrative Agent shall have notified Georgia Gulf or GGCV in writing that
(i) the Administrative Agent, on the Purchaser's behalf, has made a
determination that, on the basis of such Reportable Event or Reportable Events
or the failure to make a required payment, there are reasonable grounds (A) for
the termination of such Plan or Plans by the PBGC, (B) for the appointment by
the appropriate United States District Court of a trustee to administer such
Plan or Plans or (C) for the imposition of a lien in favor of a Plan and (ii) as
a result thereof a Liquidation Event exists hereunder; or a trustee shall be
appointed by a United States District Court to administer any such Plan or
Plans; or the PBGC shall institute proceedings to terminate any Plan or Plans;
or
(r) the occurrence of a Servicer Default.
SECTION 10.2 REMEDIES.
(a) OPTIONAL LIQUIDATION. Upon the occurrence of a Liquidation
Event (other than a Liquidation Event described in SECTION 10.1(e)), the
Administrative Agent shall, at the request, or may with the consent, of the
Purchaser, by notice to the Seller declare the Purchase Termination Date to have
occurred and the Liquidation Period to have commenced.
(b) AUTOMATIC LIQUIDATION. Upon the occurrence of a Liquidation
Event described in SECTION 10.1(e), the Purchase Termination Date shall occur
and the Liquidation Period shall commence automatically.
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(c) ADDITIONAL REMEDIES. Upon any Purchase Termination Date
pursuant to this SECTION 10.2, no Purchases or Reinvestments thereafter will be
made, and the Administrative Agent, the Purchaser and Wachovia shall have, in
addition to all other rights and remedies under this Agreement or otherwise, all
other rights and remedies provided under the UCC of each applicable jurisdiction
and other applicable laws, which rights shall be cumulative.
ARTICLE XI
THE ADMINISTRATIVE AGENT
SECTION 11.1 AUTHORIZATION AND ACTION.
Pursuant to agreements entered into with the Administrative Agent, the
Purchaser has appointed and authorized the Administrative Agent (or its
designees) to take such action as agent on its behalf and to exercise such
powers under this Agreement as are delegated to the Administrative Agent by the
terms hereof, together with such powers as are reasonably incidental thereto.
SECTION 11.2 ADMINISTRATIVE AGENT'S RELIANCE, ETC.
The Administrative Agent and its directors, officers, agents or
employees shall not be liable for any action taken or omitted to be taken by it
or them in good faith under or in connection with the Transaction Documents
(including, without limitation, the servicing, administering or collecting Pool
Receivables as Servicer pursuant to SECTION 8.1), except for its or their own
breach of the terms of the applicable terms of the Transaction Documents or its
or their own gross negligence or willful misconduct. Without limiting the
generality of the foregoing, the Administrative Agent: (a) may consult with
legal counsel (including counsel for the Seller), independent certified public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (b) makes no warranty or
representation to the Purchaser or any other holder of any interest in Pool
Receivables and shall not be responsible to the Purchaser or any such other
holder for any statements, warranties or representations made by any Seller
Party in or in connection with any Transaction Document; (c) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of any Transaction Document on the part of
any Seller Party or to inspect the property (including the books and records) of
any Seller Party; (d) shall not be responsible to Purchaser or any other holder
of any interest in Pool Receivables for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of any Transaction Document;
and (e) shall incur no liability under or in respect of this Agreement by acting
upon any notice (including notice by telephone where permitted herein), consent,
certificate or other instrument or writing (which may be by facsimile or telex)
in good faith believed by it to be genuine and signed or sent by the proper
party or parties.
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SECTION 11.3 WACHOVIA AND AFFILIATES.
Wachovia and any of its Affiliates may generally engage in any kind of
business with any Seller Party or any Obligor, any of their respective
Affiliates and any Person who may do business with or own securities of any
Seller Party or any Obligor or any of their respective Affiliates, all as if
Wachovia was not the Administrative Agent, and without any duty to account
therefor to the Purchaser or any other holder of an interest in Pool
Receivables, but in any event subject to SECTION 14.7.
ARTICLE XII
ASSIGNMENT OF PURCHASER'S INTEREST
SECTION 12.1 RESTRICTIONS ON ASSIGNMENTS.
(a) No Seller Party may assign its rights, or delegate its duties
hereunder or any interest herein without the prior written consent of the
Administrative Agent. The Purchaser may not assign its rights hereunder
(although it may delegate its duties hereunder as expressly indicated herein) or
the Asset Interest (or any portion thereof) to any Person without the prior
written consent of the Seller, which consent shall not be unreasonably withheld;
PROVIDED, HOWEVER, that
(i) The Purchaser may assign all of its rights and
interests in the Transaction Documents, together with all its interest
in the Asset Interest, to any Liquidity Bank, Wachovia, or any
Affiliate thereof, or to any "bankruptcy remote" special purpose
entity, the business of which is administered by Wachovia or any
Affiliate thereof (which assignee shall then be subject to this ARTICLE
XII); and
(ii) The Purchaser may assign and grant a security
interest in all of its rights in the Transaction Documents, together
with all of its rights and interest in the Asset Interest, to secure
the Purchaser's obligations under or in connection with the Commercial
Paper Notes, the Liquidity Agreement, and certain other obligations of
the Purchaser incurred in connection with the funding of the Purchases
and Reinvestments hereunder, which assignment and grant of a security
interest shall not be considered an "assignment" for purposes of
SECTION 12.1(b) or, prior to the enforcement of such security interest,
for purposes of any other provision of this Agreement (other than
SECTION 12.3).
(b) The Seller agrees to advise the Administrative Agent within
five Business Days after notice to the Seller of any proposed assignment by the
Purchaser of the Asset Interest (or any portion thereof), not otherwise
permitted under SUBSECTION (a) above, of the Seller's consent or non-consent to
such assignment, and if it does not consent, the reasons therefor. If the Seller
does not consent to such assignment, the Purchaser may immediately or at any
time thereafter assign such Asset Interest (or portion thereof) to any Person or
Persons permitted under SECTION 12.1(a)(i).
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SECTION 12.2 RIGHTS OF ASSIGNEE.
Upon the assignment by the Purchaser in accordance with this ARTICLE
XII, the assignee receiving such assignment shall have all of the rights of the
Purchaser with respect to the Transaction Documents and the Asset Interest (or
such portion thereof as has been assigned).
SECTION 12.3 TERMS AND EVIDENCE OF ASSIGNMENT.
Any assignment of the Asset Interest (or any portion thereof) to any
Person which is otherwise permitted under this ARTICLE XII shall be upon such
terms and conditions as the Purchaser and the assignee may mutually agree, and
may be evidenced by such instrument(s) or document(s) as may be satisfactory to
the Purchaser, the Administrative Agent and the assignee.
SECTION 12.4 RIGHTS OF LIQUIDITY BANKS.
The Seller hereby agrees that, upon notice to the Seller, the Liquidity
Banks may exercise all the rights of the Administrative Agent and the Purchaser
hereunder, with respect to the Asset Interest (or any portions thereof), and
Collections with respect thereto, which are owned by the Purchaser, and all
other rights and interests of the Purchaser in, to or under this Agreement or
any other Transaction Document. Without limiting the foregoing, upon such notice
or at any time thereafter (but subject to any conditions applicable to the
exercise of such rights by the Administrative Agent), the Liquidity Banks may
request the Servicers to segregate the Purchaser's allocable shares of
Collections from the Seller's allocable share, may give a Successor Notice
pursuant to and in accordance with SECTION 8.1(b), may give or require the
Administrative Agent to give notice to the Lock-Box Banks as referred to in
SECTION 8.3(b) and may direct the Obligors of Pool Receivables to make payments
in respect thereof directly to an account designated by them, in each case, to
the same extent as the Administrative Agent might have done.
ARTICLE XIII
INDEMNIFICATION
SECTION 13.1 INDEMNITIES BY SELLER.
(a) GENERAL INDEMNITY. Without limiting any other rights which any
such Person may have hereunder or under applicable law, the Seller hereby agrees
to indemnify each of Wachovia, both individually and as the Administrative
Agent, the Purchaser, the Liquidity Banks, the Liquidity Agent, each of their
respective Affiliates, and all successors, transferees, participants and assigns
and all officers, directors, shareholders, controlling persons, employees and
agents of any of the foregoing (each an "INDEMNIFIED PARTY"), forthwith on
demand, from and against any and all damages, losses, claims, liabilities and
related costs and expenses, including attorneys' fees and disbursements (all of
the foregoing being collectively referred to as "INDEMNIFIED AMOUNTS") awarded
against or incurred by any of them arising out of or relating to the Transaction
Documents or the ownership or funding of the Asset Interest or in respect of any
42
Receivable or any Contract, EXCLUDING, HOWEVER, (a) Indemnified Amounts to the
extent determined by a court of competent jurisdiction to have resulted from
gross negligence or willful misconduct on the part of such Indemnified Party or
(b) recourse (except as otherwise specifically provided in this Agreement) for
Defaulted Receivables. Without limiting the foregoing, the Seller shall
indemnify each Indemnified Party for Indemnified Amounts arising out of or
relating to:
(i) the transfer by any Seller Party of any interest in
any Receivable other than the transfer of Receivables and related
property by the Originators to the Seller pursuant to the Purchase
Agreement, the transfer of an Asset Interest to the Purchaser pursuant
to this Agreement and the grant of a security interest to the Purchaser
pursuant to SECTION 9.1;
(ii) any representation or warranty made by any Seller
Party (or any of its officers) under or in connection with any
Transaction Document, any Information Package or any other information
or report delivered by or on behalf of any Seller Party pursuant
hereto, which shall have been false, incorrect or misleading in any
material respect when made or deemed made or delivered, as the case may
be;
(iii) the failure by any Seller Party to comply with any
applicable law, rule or regulation with respect to any Pool Receivable
or the related Contract, or the nonconformity of any Pool Receivable or
the related Contract with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the
Purchaser an undivided percentage ownership interest, to the extent of
the Asset Interest, in the Receivables in, or purporting to be in, the
Receivables Pool, free and clear of any Lien, other than a Lien arising
solely as a result of an act of Purchaser or the Administrative Agent,
whether existing at the time of any Purchase or Reinvestment of such
Asset Interest or at any time thereafter;
(v) the failure to file, or any delay in filing,
financing statements or other similar instruments or documents under
the UCC of any applicable jurisdiction or other applicable laws with
respect to any Receivables in, or purporting to be in, the Receivables
Pool, whether at the time of any Purchase or Reinvestment or at any
time thereafter;
(vi) any dispute, claim, offset or defense (other than
discharge in bankruptcy) of the Obligor to the payment of any
Receivable in, or purporting to be in, the Receivables Pool (including,
without limitation, a defense based on such Receivables or the related
Contract not being a legal, valid and binding obligation of such
Obligor enforceable against it in accordance with its terms), or any
other claim resulting from the sale of the merchandise or services
related to such Receivable or the furnishing or failure to furnish such
merchandise or services;
(vii) any matter described in clause (i) or (ii) of SECTION
3.2(a);
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(viii) any failure of any Seller Party, as Servicer or
otherwise, to perform its duties or obligations in accordance with the
provisions of ARTICLE III or ARTICLE VIII;
(ix) any product liability claim arising out of or in
connection with merchandise or services that are the subject of any
Pool Receivable;
(x) any claim of breach by any Seller Party of any
related Contract with respect to any Pool Receivable; or
(xi) any tax or governmental fee or charge (but not
including taxes upon or measured by net income), all interest and
penalties thereon or with respect thereto, and all out-of-pocket costs
and expenses, including the reasonable fees and expenses of counsel in
defending against the same, which may arise by reason of the purchase
or ownership of any Asset Interest, or any other interest in the Pool
Receivables or in any goods which secure any such Pool Receivables.
(c) CONTEST OF TAX CLAIM; AFTER-TAX BASIS. If any Indemnified
Party shall have notice of any attempt to impose or collect any tax or
governmental fee or charge for which indemnification will be sought from any
Seller Party under SECTION 13.1(a)(xi), such Indemnified Party shall give prompt
and timely notice of such attempt to the Seller and the Seller shall have the
right, at its expense, to participate in any proceedings resisting or objecting
to the imposition or collection of any such tax, governmental fee or charge.
Indemnification hereunder shall be in an amount necessary to make the
Indemnified Party whole after taking into account any tax consequences to the
Indemnified Party of the payment of any of the aforesaid taxes (including any
deduction) and the receipt of the indemnity provided hereunder or of any refund
of any such tax previously indemnified hereunder, including the effect of such
tax, deduction or refund on the amount of tax measured by net income or profits
which is or was payable by the Indemnified Party.
(d) CONTRIBUTION. If for any reason the indemnification provided
above in this SECTION 13.1 (and subject to the exceptions set forth therein) is
unavailable to an Indemnified Party or is insufficient to hold an Indemnified
Party harmless, whether as a result of such provision being unenforceable or
otherwise unavailable and provided that the damage, loss, claim or liability for
which indemnity is or has been sought is of the type and character otherwise
described above in this SECTION 13.1 (and subject to the exceptions set forth
therein), then the Seller shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by such Indemnified Party on the one hand and the Seller on the other hand but
also the relative fault of such Indemnified Party as well as any other relevant
equitable considerations.
SECTION 13.2 INDEMNITIES BY SERVICERS.
Without limiting any other rights which any Indemnified Party may have
hereunder or under applicable law, the Servicers hereby agree to indemnify each
of the Indemnified Parties
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forthwith on demand, from and against any and all Indemnified Amounts awarded
against or incurred by any of them arising out of or relating to the Servicers'
performance of, or failure to perform, any of its obligations under or in
connection with any Transaction Document, or any representation or warranty made
by the Servicers (or any of its officers) under or in connection with any
Transaction Document, any Information Package or any other information or report
delivered by or on behalf of the Servicers, which shall have been false,
incorrect or misleading in any material respect when made or deemed made or
delivered, as the case may be, or the failure of the Servicers to comply with
any applicable law, rule or regulation with respect to any Pool Receivable or
the related Contract. Notwithstanding the foregoing, in no event shall any
Indemnified Party be awarded any Indemnified Amounts (a) to the extent
determined by a court of competent jurisdiction to have resulted from gross
negligence or willful misconduct on the part of such Indemnified Party or (b)
recourse for Defaulted Receivables.
If for any reason the indemnification provided above in this SECTION
13.2 (and subject to the exceptions set forth therein) is unavailable to an
Indemnified Party or is insufficient to hold an Indemnified Party harmless,
whether as a result of such provision being unenforceable or otherwise
unavailable and provided that the damage, loss, claim or liability for which
indemnity is or has been sought is of the type and character otherwise described
above in this SECTION 13.2 (and subject to the exceptions set forth therein),
then the Servicers shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by such Indemnified Party on the one hand and the Servicers on the other hand
but also the relative fault of such Indemnified Party as well as any other
relevant equitable considerations.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 AMENDMENTS, ETC.
No amendment or waiver of any provision of this Agreement nor consent
to any departure by any Seller Party therefrom shall in any event be effective
unless the same shall be in writing and signed by (a) each Seller Party, the
Administrative Agent and the Purchaser (with respect to an amendment), or (b)
the Administrative Agent and the Purchaser (with respect to a waiver or consent
by them) or any Seller Party (with respect to a waiver or consent by it), as the
case may be, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; PROVIDED,
however, that in the case of any material amendment, waiver or consent, the
Purchaser is required to obtain confirmation from certain rating agencies that
such material amendment, waiver or consent will not result in a withdrawal or
reduction in the short-term ratings of the Purchaser's commercial paper
promissory notes prior to the Purchaser agreeing to such material amendment,
waiver or consent. The parties acknowledge that, before entering into such an
amendment or granting such a waiver or consent, the Purchaser may also be
required to obtain the approval of some or all of the Liquidity Banks or to
obtain confirmation from certain rating agencies that such amendment, waiver or
consent will not result in a withdrawal or reduction of the ratings of the
Commercial Paper Notes. The Administrative
45
Agent shall promptly deliver copies of all amendments to this Agreement to each
of Moody's and S&P.
SECTION 14.2 NOTICES, ETC.
All notices and other communications provided for hereunder shall,
unless otherwise stated herein, be in writing (including facsimile
communication) and shall be personally delivered or sent by express mail or
courier or by certified mail, postage prepaid, or by facsimile, to the intended
party at the address or facsimile number of such party set forth on SCHEDULE
14.2 or at such other address or facsimile number as shall be designated by such
party in a written notice to the other parties hereto. All such notices and
communications shall be effective, (a) if personally delivered or sent by
express mail or courier or if sent by certified mail, when received, and (b) if
transmitted by facsimile, when sent, receipt confirmed by telephone or
electronic means.
SECTION 14.3 NO WAIVER; REMEDIES.
No failure on the part of the Administrative Agent, any Affected Party,
any Indemnified Party, the Purchaser or any other holder of the Asset Interest
(or any portion thereof) to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law. Without limiting the
foregoing, each of Wachovia, individually, and as Administrative Agent and each
Liquidity Bank is hereby authorized by the Seller at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand provisional or final) at any time
held and other indebtedness at any time owing by Wachovia and such Liquidity
Bank to or for the credit or the account of the Seller, now or hereafter
existing under this Agreement, to the Administrative Agent, any Affected Party,
any Indemnified Party or the Purchaser, or their respective successors and
assigns.
SECTION 14.4 BINDING EFFECT; SURVIVAL.
This Agreement shall be binding upon and inure to the benefit of each
Seller Party, the Administrative Agent, the Purchaser and their respective
successors and assigns, and the provisions of SECTION 4.2 and ARTICLE XIII shall
inure to the benefit of the Affected Parties and the Indemnified Parties,
respectively, and their respective successors and assigns; PROVIDED, HOWEVER,
nothing in the foregoing shall be deemed to authorize any assignment not
permitted by SECTION 12.1. This Agreement shall create and constitute the
continuing obligations of the parties hereto in accordance with its terms, and
shall remain in full force and effect until the Final Payout Date. The rights
and remedies with respect to any breach of any representation and warranty made
by Seller pursuant to ARTICLE VI and the indemnification and payment provisions
of ARTICLE XIII and SECTIONS 4.2, 14.5, 14.6, 14.7, 14.8 and 14.15 shall be
continuing and shall survive any termination of this Agreement.
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SECTION 14.5 COSTS, EXPENSES AND TAXES.
In addition to its obligations under ARTICLE XIII, the Seller Parties
jointly and severally agree to pay on demand:
(a) all costs and expenses incurred by the Administrative Agent,
any Liquidity Bank, the Purchaser and their respective Affiliates in connection
with:
(i) the negotiation, preparation, execution and delivery
of this Agreement, the other Transaction Documents or the Liquidity
Agreement, any amendment of or consent or waiver under any of the
Transaction Documents which is requested or proposed by any Seller
Party (whether or not consummated), or the enforcement by any of the
foregoing Persons of, or any actual or claimed breach of, this
Agreement or any of the other Transaction Documents, including, without
limitation, the reasonable fees and expenses of counsel to any of such
Persons incurred in connection with any of the foregoing or in advising
such Persons as to their respective rights and remedies under any of
the Transaction Documents in connection with any of the foregoing, and
(ii) the administration (including periodic auditing as
provided for herein) of this Agreement and the other Transaction
Documents, including, without limitation, all reasonable out-of-pocket
expenses (including reasonable fees and expenses of independent
accountants), incurred in connection with any review of any Seller
Party's books and records either prior to the execution and delivery
hereof or pursuant to SECTION 7.2(g) or 7.1(c)(iii); and
(b) all stamp and other taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing and recording of this
Agreement or the other Transaction Documents (and Seller Parties, jointly and
severally agree to indemnify each Indemnified Party against any liabilities with
respect to or resulting from any delay in paying or omission to pay such taxes
and fees).
SECTION 14.6 NO PROCEEDINGS.
The Servicers hereby agree that it will not institute against the
Seller, or join any Person in instituting against the Seller, each Seller Party,
the Servicers and Wachovia (individually or as Administrative Agent) each hereby
agrees that it will not institute against the Purchaser, or join any other
Person in instituting against the Purchaser, any insolvency proceeding (namely,
any proceeding of the type referred to in the definition of Event of Bankruptcy)
so long as any Commercial Paper Notes issued by the Purchaser shall be
outstanding or there shall not have elapsed one year plus one day since the last
day on which any such Commercial Paper Notes shall have been outstanding.
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SECTION 14.7 CONFIDENTIALITY OF SELLER INFORMATION.
(a) CONFIDENTIAL SELLER INFORMATION. Each party hereto (other than
Seller Parties) acknowledges that certain of the information provided to such
party by or on behalf of the Seller Parties in connection with this Agreement
and the transactions contemplated hereby is or may be confidential, and each
such party severally agrees that, unless Georgia Gulf and GGCV shall otherwise
agree in writing, and except as provided in SUBSECTION (b) of this SECTION 14.7,
such party will not disclose to any other person or entity:
(i) any information regarding, or copies of, any
nonpublic financial statements, reports, schedules and other
information furnished by any Seller Party to the Purchaser or the
Administrative Agent (A) prior to the date hereof in connection with
such party's due diligence relating to the Seller Parties and the
transactions contemplated hereby, or (B) pursuant to SECTION 3.1, 5.1,
6.1(i), 7.1(c) or 7.2, or
(ii) any other information regarding any Seller Party
which is designated by any Seller Party to such party in writing as
confidential
(the information referred to in clauses (i) and (ii) above, whether furnished by
any Seller Party or any attorney for or other representative thereof (each a
"SELLER INFORMATION PROVIDER"), is collectively referred to as the "SELLER
INFORMATION"); PROVIDED, HOWEVER, "Seller Information" shall not include any
information which is or becomes generally available to the general public or to
such party on a nonconfidential basis from a source other than any Seller
Information Provider, or which was known to such party on a nonconfidential
basis prior to its disclosure by any Seller Information Provider.
(b) DISCLOSURE. Notwithstanding SUBSECTION (a) above, each party
may disclose any Seller Information:
(i) to any of such party's independent attorneys,
consultants and auditors, and to any dealer or placement agent for the
Purchaser's commercial paper, who (A) in the good faith belief of such
party, have a need to know such Seller Information, and (B) are
informed by such party of the confidential nature of the Seller
Information and the terms of this SECTION 14.7 and has agreed, verbally
or otherwise, to be bound by the provisions of this SECTION 14.7,
(ii) to any Liquidity Bank, any actual or potential
assignees of, or participants in, any rights or obligations of the
Purchaser, any Liquidity Bank or the Administrative Agent under or in
connection with this Agreement who has agreed to be bound by the
provisions of this SECTION 14.7,
(iii) to any rating agency that maintains a rating for the
Purchaser's commercial paper or is considering the issuance of such a
rating, for the purposes of reviewing the credit of the Purchaser in
connection with such rating,
48
(iv) to any other party to this Agreement (and any
independent attorneys, consultants and auditors of such party), for the
purposes contemplated hereby,
(v) as may be required by any municipal, state, federal
or other regulatory body having or claiming to have jurisdiction over
such party, in order to comply with any law, order, regulation,
regulatory request or ruling applicable to such party,
(vi) subject to SUBSECTION (c) below, in the event such
party is legally compelled (by interrogatories, requests for
information or copies, subpoena, civil investigative demand or similar
process) to disclose such Seller Information, or
(vii) in connection with the enforcement of this Agreement
or any other Transaction Document.
In addition, the Purchaser and the Administrative Agent may disclose on a "no
name" basis to any actual or potential investor in the Purchaser's Commercial
Paper Notes information regarding the nature of this Agreement, the basic terms
hereof (including without limitation the amount and nature of the Purchaser's
commitment and the Purchaser's Total Investment with respect to the Asset
Interest and any other credit enhancement provided by any Seller Party
hereunder), the nature, amount and status of the Pool Receivables, and the
current and/or historical ratios of losses to liquidations and/or outstandings
with respect to the Receivables Pool.
(c) LEGAL COMPULSION. In the event that any party hereto (other
than any Seller Party) or any of its representatives is requested or becomes
legally compelled (by interrogatories, requests for information or documents,
subpoena, civil investigative demand or similar process) to disclose any of the
Seller Information, such party will (or will cause its representative to)
(i) provide Georgia Gulf and GGCV with prompt written
notice so that (A) Georgia Gulf and GGCV may seek a protective order or
other appropriate remedy, or (B) Georgia Gulf and GGCV may, if it so
chooses, agree that such party (or its representatives) may disclose
such Seller Information pursuant to such request or legal compulsion;
and
(ii) unless Georgia Gulf and GGCV agrees that such Seller
Information may be disclosed, make a timely objection to the request or
compulsion to provide such Seller Information on the basis that such
Seller Information is confidential and subject to the agreements
contained in this SECTION 14.7.
In the event such protective order or remedy is not obtained, or Georgia Gulf
and GGCV agree that such Seller Information may be disclosed, such party will
furnish only that portion of the Seller Information which (in such party's good
faith judgment) is legally required to be furnished and will exercise reasonable
efforts to obtain reliable assurance that confidential treatment will be
afforded the Seller Information.
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(d) This SECTION 14.7 shall survive termination of this Agreement.
SECTION 14.8 CONFIDENTIALITY OF PROGRAM INFORMATION.
(a) CONFIDENTIAL INFORMATION. Each party hereto acknowledges that
Wachovia, individually and in its capacity as Administrative Agent, regards the
structure of the transactions contemplated by this Agreement to be proprietary,
and each such party agrees that:
(i) it will not disclose without the prior consent of
Wachovia (other than to the directors, employees, auditors, counsel or
affiliates (collectively, "REPRESENTATIVES") of such party, each of
whom shall be informed by such party of the confidential , nature of
the Program Information (as defined below) and of the terms of this
SECTION 14.8), (A) any information regarding the pricing in, or copies
of, this Agreement, any other Transaction Document or any transaction
contemplated hereby or thereby, (B) any information regarding the
organization, business or operations of the Purchaser generally or the
services performed by Wachovia as the Administrative Agent for the
Purchaser, or (C) any information which is furnished by Wachovia to
such party and which is designated by Wachovia to such party in writing
or otherwise as confidential or not otherwise available to the general
public (the information referred to in clauses (A), (B) and (C) is
collectively referred to as the "PROGRAM INFORMATION"); PROVIDED,
HOWEVER, that such party may disclose any such Program Information (1)
to any other party to this Agreement (and any independent attorneys,
consultants and auditors of any such party) for the purposes
contemplated hereby, (2) as may be required by any municipal, state,
federal or other regulatory body having or claiming to have
jurisdiction over such party, including, without limitation, the
Securities and Exchange Commission and various public utility
commissions having jurisdiction over Georgia Gulf or GGCV, (3) in order
to comply with any law, order, regulation, regulatory request or ruling
applicable to such party, (4) subject to SUBSECTION (c), in the event
such party is legally compelled (by interrogatories, requests for
information or copies, subpoena, civil investigative demand or similar
process) to disclose any such Program Information, or (5) in financial
statements as required by GAAP;
(ii) it will use the Program Information solely for the
purposes of evaluating, administering and enforcing the transactions
contemplated by this Agreement and making any necessary business
judgments with respect thereto; and
(iii) it will, upon demand, return (and cause each of its
representatives to return) to Wachovia, all documents or other written
material received from Wachovia in connection with (a)(i)(B) or (C)
above and all copies thereof made by such party which contain the
Program Information.
(b) AVAILABILITY OF CONFIDENTIAL INFORMATION. This SECTION 14.8
shall be inoperative as to such portions of the Program Information which are or
become generally available to the public or such party on a nonconfidential
basis from a source other than Wachovia or were known to such party on a
nonconfidential basis prior to its disclosure by Wachovia.
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(c) LEGAL COMPULSION TO DISCLOSE. In the event that any party or
anyone to whom such party or its representatives transmits the Program
Information is requested or becomes legally compelled (by interrogatories,
requests for information or documents, subpoena, civil investigative demand or
similar process) to disclose any of the Program Information, such party will
(i) provide Wachovia with prompt written notice so that
Wachovia may seek a protective order or other appropriate remedy
and/or, if it so chooses, agree that such party may disclose such
Program Information pursuant to such request or legal compulsion; and
(ii) unless Wachovia agrees that such Program Information
may be disclosed, make a timely objection to the request or
confirmation to provide such Program Information on the basis that such
Program Information is confidential and subject to the agreements
contained in this SECTION 14.8.
In the event that such protective order or other remedy is not obtained, or
Wachovia agrees that such Program Information may be disclosed, such party will
furnish only that portion of the Program Information which (in such party's good
faith judgment) is legally required to be furnished and will exercise reasonable
efforts to obtain reliable assurance that confidential treatment will be
accorded the Program Information. In the event any Seller Party is required to
file a copy of this Agreement with the SEC or any other Governmental Authority,
it will (A) provide Wachovia with prompt written notice of such requirement and
(B) exercise reasonable efforts to obtain reliable assurance that such
Governmental Authority will give confidential treatment to this Agreement.
(d) SURVIVAL. This Section 14.8 shall survive termination of this
Agreement.
SECTION 14.9 CAPTIONS AND CROSS REFERENCES.
The various captions (including, without limitation, the table of
contents) in this Agreement are provided solely for convenience of reference and
shall not affect the meaning or interpretation of any provision of this
Agreement. Unless otherwise indicated, references in this Agreement to any
Section, Appendix, Schedule or Exhibit are to such Section of or Appendix,
Schedule or Exhibit to this Agreement, as the case may be, and references in any
Section, subsection, or clause to any subsection, clause or subclause are to
such subsection, clause or subclause of such Section, subsection or clause.
SECTION 14.10 INTEGRATION.
This Agreement and the other Transaction Documents contain a final and
complete integration of all prior expressions by the parties hereto with respect
to the subject matter hereof and shall constitute the entire understanding among
the parties hereto with respect to the subject matter hereof, superseding all
prior oral or written understandings.
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SECTION 14.11 GOVERNING LAW.
THIS AGREEMENT, INCLUDING THE RIGHTS AND DUTIES OF THE PARTIES HERETO,
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF GEORGIA WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW, EXCEPT TO
THE EXTENT THAT THE PERFECTION OF THE INTERESTS OF PURCHASER IN THE RECEIVABLES
OR RELATED PROPERTY IS GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF GEORGIA.
SECTION 14.12 WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS
AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR UNDER ANY AMENDMENT, INSTRUMENT OR
DOCUMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH OR ARISING FROM ANY BANKING OR OTHER RELATIONSHIP EXISTING IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT AND AGREES THAT
ANY SUCH ACTION OR PROCEEDING SHALL NOT BE TRIED BEFORE A JURY.
SECTION 14.13 CONSENT TO JURISDICTION; WAIVER OF IMMUNITIES.
EACH SELLER PARTY HEREBY ACKNOWLEDGES AND AGREES THAT:
(a) IT IRREVOCABLY (i) SUBMITS TO THE JURISDICTION, FIRST, OF ANY
UNITED STATES FEDERAL COURT, AND SECOND, IF FEDERAL JURISDICTION IS NOT
AVAILABLE, OF ANY NEW YORK STATE COURT, IN EITHER CASE SITTING IN NEW YORK
COUNTY, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, (ii) AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED ONLY IN SUCH NEW YORK STATE OR FEDERAL COURT AND NOT
IN ANY OTHER COURT, AND (iii) WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY
DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING.
(b) TO THE EXTENT THAT IT HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM THE JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID TO
EXECUTION, EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, IT
HEREBY
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IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER OR IN
CONNECTION WITH THIS AGREEMENT.
SECTION 14.14 EXECUTION IN COUNTERPARTS.
This Agreement may be executed in any number of counterparts and by the
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same Agreement.
SECTION 14.15 NO RECOURSE AGAINST OTHER PARTIES.
The obligations of the Purchaser under this Agreement are solely the
corporate obligations of the Purchaser. No recourse shall be had for the payment
of any amount owing by the Purchaser under this Agreement or for the payment by
the Purchaser of any fee in respect hereof or any other obligation or claim of
or against the Purchaser arising out of or based upon this Agreement, against
Wachovia or against any employee, officer, director, incorporator or stockholder
of the Purchaser. For purposes of this SECTION 14.15, the term "Wachovia" shall
mean and include Wachovia Bank, N.A. and all affiliates thereof and any
employee, officer, director, incorporator, stockholder or beneficial owner of
any of them; PROVIDED, HOWEVER, that the Purchaser shall not be considered to be
an affiliate of the Bank for purposes of this paragraph. Each of the Seller, the
Servicers and the Administrative Agent agree that the Purchaser shall be liable
for any claims that such party may have against the Purchaser only to the extent
the Purchaser has excess funds and to the extent such assets are insufficient to
satisfy the obligations of the Purchaser hereunder, the Purchaser shall have no
liability with respect to any amount of such obligations remaining unpaid and
such unpaid amount shall not constitute a claim against the Purchaser. Any and
all claims against the Purchaser or the Administrative Agent shall be
subordinate to the claims of the holders of Commercial Paper and the Liquidity
Banks.
SECTION 14.16 SEVERABILITY OF PROVISIONS.
Any provision of this Receivables Purchase Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability, without
invalidating the remaining provisions hereof or affecting the validity or
enforceability, of such provision in any other jurisdiction.
SECTION 14.17 ORIGINAL TRANSFER AGREEMENT SUPERSEDED.
As of the date hereof, this Transfer Agreement shall amend and restate
the Original Transfer Agreement in its entirety. The Original Transfer Agreement
shall have no effect whatsoever from and after the date hereof except with
respect to the rights of the parties thereto to seek indemnification from a
Seller Party as provided in the Original Transfer Agreement, or to claim a
breach of a representation, warranty or covenant from the time period from the
Closing Date to the date hereof. From and after the date hereof, and except as
otherwise expressly provided in this SECTION 14.17, the rights and obligations
of the parties evidenced by the
53
Original Transfer Agreement shall be evidenced by this Transfer Agreement and
the other Transaction Documents.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
54
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
GGRC CORP., as Seller
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
GEORGIA GULF CORPORATION, as Initial Servicer
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
GEORGIA GULF CHEMICALS & VINYLS, LLC,
as Initial Servicer
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
55
BLUE RIDGE ASSET FUNDING CORPORATION,
as Purchaser
By: Wachovia Bank N.A. as Attorney in Fact
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
WACHOVIA BANK, N.A.,
as Administrative Agent
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
56
APPENDIX A
DEFINITIONS
This is Appendix A to the Amended and Restated Receivables Transfer
Agreement dated as of May 24, 2000 among GGRC Corp. as Seller, Georgia Gulf
Corporation ("GEORGIA GULF") and Georgia Gulf Chemicals & Vinyls, LLC ("GGCV"),
as initial Servicers, Blue Ridge Asset Funding Corporation, as Purchaser and
Wachovia Bank, N.A., as Administrative Agent (as amended, supplemented or
otherwise modified from time to time, this "AGREEMENT"). Each reference in this
APPENDIX A to any Section, Appendix or Exhibit refers to such Section of or
Appendix or Exhibit to this Agreement.
A. DEFINED TERMS. As used in this Agreement, unless the context
requires a different meaning, the following terms have the meanings indicated
herein below:
"ADJUSTED DILUTION RATIO" means the 12-month rolling average of the Dilution
Ratio.
"ADMINISTRATIVE AGENT" has the meaning set forth in the PREAMBLE.
"AFFECTED PARTY" means each of the Purchaser, each Liquidity Bank, any assignee
or participant of the Purchaser or any Liquidity Bank, Wachovia, any successor
to Wachovia, as Administrative Agent or any sub-agent of the Administrative
Agent.
"AFFILIATE" means with respect to a Person, any other Person controlling,
controlled by, or under common control with, such Person.
"AFFILIATED OBLIGOR" means in relation to any Obligor, an Obligor that is an
Affiliate of such Obligor.
"ALLOCATION LIMIT" has the meaning set forth in SECTION 1.1.
"ALTERNATE BASE RATE" means for any day, the rate per annum equal to the higher
as of such day of (i) the Prime Rate, or (ii) one-half of one percent above the
Federal Funds Rate. For purposes of determining the Alternate Base Rate for any
day, changes in the Prime Rate or the Federal Funds Rate shall be effective on
the date of each such change. The Alternate Base Rate is not necessarily
intended to be the lowest rate of interest determined by Wachovia in connection
with extensions of credit.
"APPLICABLE MARGIN" as defined in the Credit Agreement, as such term may be
amended in the Credit Agreement from time to time; PROVIDED, if the Credit
Agreement shall be terminated, then the term "Applicable Margin" shall have the
same meaning such term had in the Credit Agreement immediately prior to such
termination.
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"ASSET INTEREST" means at any time, the Purchaser's undivided percentage
ownership interest in all outstanding Pool Receivables and all Related Assets
with respect to such Pool Receivables.
On any date, the Asset Interest shall equal the percentage equivalent of the
following fraction:
PTI+RR
-------
NPB
where:
PTI = the sum of the Purchaser's Total Investment and the
aggregate CP Discount;
RR = the Required Reserve; and
NPB = the Net Pool Balance;
PROVIDED, HOWEVER, that the Asset Interest during the Liquidation Period shall
equal 100%.
"ASSET TRANCHE" means at any time a portion of the Asset Interest selected by
the Administrative Agent pursuant to SECTION 2.1.
"BANK RATE" for any Yield Period with respect to any Asset Tranche means:
(a) in the case of any Yield Period other than a Yield Period
described in clause (b), an interest rate PER ANNUM equal to the sum of (A) the
Bank Rate Spread PER ANNUM, PLUS (B) Eurodollar Rate (Reserve Adjusted) for such
Yield Period;
(b) in the case of
(i) any Yield Period commencing on or prior to the first
day of which Purchaser or any Liquidity Bank shall have notified the
Administrative Agent that (A) the introduction of or any change in or
in the interpretation of any law or regulation makes it unlawful, or
any central bank or other Governmental Authority asserts that it is
unlawful, for such Person to fund such Asset Tranche at the rate
described in clause (a), or (B) due to market conditions affecting the
interbank eurodollar market, funds are not reasonably available to such
Person in such market in order to enable it to fund such Asset Tranche
at the rate described in clause (a) (and in the case of subclause (A)
or (B), such Person shall not have subsequently notified the
Administrative Agent that such circumstances no longer exist), or
(ii) any Yield Period as to which the Administrative Agent
does not receive notice or determine, by no later than 12:00 noon
(Atlanta, Georgia time) on the third Business Day preceding the first
day of such Yield Period, that the related Asset Tranche
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will be funded by Liquidity Fundings and not by the issuance of
Commercial Paper Notes,
an interest rate per annum equal to the Alternate Base Rate in effect from time
to time during such Yield Period; it being understood that, in the case of
paragraph (b)(i) above, such rate shall only apply to the Person affected by the
circumstances described in such paragraph (b)(i).
"BANK RATE SPREAD" has the meaning set forth in the Fee Letter.
"BUSINESS DAY" means (i) with respect to any matters relating to the Eurodollar
Rate, a day on which banks are open for business in New York, New York and in
Atlanta, Georgia and on which dealings in Dollars are carried on in the London
interbank market and (ii) for all other purposes, any day other than a Saturday,
Sunday or other day on which banking institutions or trust companies in New
York, New York or Atlanta, Georgia are authorized or obligated by law, executive
order or governmental decree to be closed.
"CAPITAL LEASE OBLIGATIONS" means for any person the obligations of such person
to pay rent or other amounts under any lease of (or other arrangement conveying
the right to use) real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as capital leases on
a balance sheet of such person under GAAP and, for the purposes of this
Agreement, the amount of such obligations at any time shall be the capitalized
amount thereof at such time determined in accordance with GAAP.
"CHANGE IN CONTROL" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Exchange Act and the rules of the SEC thereunder as in effect on
the date hereof) other than Permitted Holders, of shares representing more than
30% of the aggregate ordinary voting power represented by the issued and
outstanding capital stock of Georgia Gulf or GGCV; (b)occupation of a majority
of the seats (other than vacant seats) on the board of directors of Georgia Gulf
or GGCV by Persons who were neither (i) nominated by the board of directors of
Georgia Gulf or GGCV nor (ii) appointed by directors so nominated; or (c) the
acquisition of direct or indirect Control of Georgia Gulf or GGCV by any Person
or group other than Permitted Holders.
"CODE" means the Internal Revenue Code of 1986, as the same may be amended from
time to time.
"COLLATERAL AGREEMENT" means that certain Guarantee and Collateral Agreement
dated as of November 12, 1999 by and among Georgia Gulf, the Subsidiary
Guarantors party thereto and Chase Manhattan Bank as Collateral Agent.
"COLLECTION ACCOUNT" has the meaning set forth in SECTION 7.1(I).
"COLLECTIONS" means, with respect to any Receivable, all funds which either (a)
are received by Seller, the Originator or Servicer from or on behalf of the
related Obligor in payment of any amounts owed (including, without limitation,
purchase prices, finance charges, interest and all
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other charges) in respect of such Receivable, or applied to such amounts owed by
such Obligor (including, without limitation, insurance payments that Seller, the
Originator or Servicer applies in the ordinary course of its business to amounts
owed in respect of such Receivable and net proceeds of sale or other disposition
of repossessed goods or other collateral or property of the Obligor or any other
party directly or indirectly liable for payment of such Receivable and available
to be applied thereon), or (b) are Deemed Collections; PROVIDED that, prior to
such time as Georgia Gulf and GGCV shall cease to be the Servicers, late payment
charges, collection fees and extension fees shall not be deemed to be
Collections.
"COMMERCIAL PAPER NOTES" means the commercial paper promissory notes, if any,
issued by or on behalf of the Purchaser, or that fund the Purchase by the
Purchaser of an Asset Tranche funded at the CP Rate.
"CONTRACT" means a contract between Seller or the Originators and any Person, or
an invoice sent or to be sent by Seller or the Originators, pursuant to or under
which a Receivable shall arise or be created, or which evidences a Receivable. A
`related Contract' or similar reference means rights to payment, collection and
enforcement, and other rights under a Contract to the extent directly related to
a Receivable in the Receivables Pool, but not any other rights under such
Contract.
"CONTROL" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"CP DISCOUNT" means the difference between (x) the Face Amount of any Commercial
Paper Note and (y) the proceeds received by the Purchaser with respect to such
Commercial Paper Note.
"CP RATE" means, with respect to any CP Tranche Period, the rate equivalent to
the rate (or if more than one rate, the weighted average of the rates) at which
Commercial Paper Notes having a term equal to such CP Tranche Period are sold
plus the amount of any placement agent or commercial paper dealer fees incurred
in connection with such sale; PROVIDED, HOWEVER, if the rate (or rates) is a
discounted rate (or rates), the "CP Rate" for such CP Tranche Period shall be
the rate (or, if more than one rate, the weighted average of the rates)
resulting from converting such discount rate (or rates) to an interest-bearing
equivalent rate.
"CP TRANCHE PERIOD" means, a period of up to 270 days commencing on a Business
Day determined by the Administrative Agent in consultation with the Seller
pursuant to Section 1.02. If such CP Tranche Period would end on a day which is
not a Business Day, such CP Tranche Period shall end on the preceding Business
Day.
"CREDIT AGREEMENT" means that certain Credit Agreement dated as of November 12,
1999 by and among the Originator and the Parent, as Borrowers, certain financial
institutions, as the Lenders,
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and Chase Manhattan Bank ("CHASE"), as Agent for the Lenders, as has been
amended and as may be amended, restated, substituted or replaced from time to
time. "CREDIT AND COLLECTION POLICY" means those credit and collection
policies and practices of Georgia Gulf and GGCV relating to Contracts and
Receivables as in effect on the date of this Agreement, in the form of
Exhibit C hereto, as modified without violating SECTION 7.03(c),BUT subject
to compliance with applicable tariffs or state regulations in effect from
time to time.
"CUT-OFF DATE" means the last day of each Settlement Period.
"DAYS SALES OUTSTANDING" or "DSO", means, as of any day, an amount equal to the
product of (x) 91, multiplied by (y) the amount obtained by dividing (i) the
aggregate outstanding balance of Receivables as of the most recent Cut-Off Date,
by (ii) the aggregate amount of Receivables created during the three Settlement
Periods including and immediately preceding such Cut-Off Date.
"DEEMED COLLECTIONS" has the meaning set forth in SECTION 3.2(a).
"DEFAULT HORIZON RATIO" means, as of any Cut-Off Date, the ratio (expressed as a
percentage) of (i) the sum of (a) the aggregate dollar amount of Receivables
generated by the Originators during the immediately preceding four Settlement
Periods ending on such Cut-Off Date and (b) 1/3 of the aggregate dollar amount
of Receivables generated by the Originators during the fifth preceding
Settlement Period DIVIDED by (ii) the Net Pool Balance on such Cut-Off Date.
"DEFAULT RATIO" means at any time, an amount (expressed as a percentage) equal
to a fraction, the numerator of which is equal to the sum of Receivables that
become Defaulted Receivables during the immediately preceding Settlement Period
and the denominator of which is the aggregate dollar amount of Receivables
generated by the Originators during the Settlement Period three months prior to
the immediately preceding Settlement Period.
"DEFAULTED RECEIVABLE" means a Receivable: (a) as to which any payment, or part
thereof, remains unpaid for 61 days or more from the original due date for such
payment; (b) as to which an Event of Bankruptcy has occurred and remains
continuing with respect to the Obligor thereof; or (c) which has been, or would
be written off in accordance with the Originator's Credit and Collection Policy
as uncollectible.
"DELINQUENCY RATIO" means at any time, the percentage equivalent of a fraction,
computed as of the Cut-Off Date for the next preceding Settlement Period, the
numerator of which is the aggregate Unpaid Balance of all Pool Receivables that
are Delinquent Receivables on such Cut-Off Date and the denominator of which is
the aggregate Unpaid Balance of Pool Receivables on such Cut-Off Date.
"DELINQUENT RECEIVABLE" means a Pool Receivable (a) that is not a Defaulted
Receivable and (b) as to which any payment, or part thereof, remains unpaid for
31 days or more from the original due date for such payment.
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"DILUTION" means the amount of any reduction or cancellation of the Unpaid
Balance of a Pool Receivable as described in SECTION 3.2(a).
"DILUTION HORIZON RATIO" means an amount (expressed as a percentage) equal to a
fraction, the numerator of which is the aggregate dollar amount of Receivables
generated by the Originators for the most recent Settlement Period and the
denominator of which is the aggregate balance of the Net Pool Balance as of the
most recent Cut-Off Date.
"DILUTION RATIO" means, an amount (expressed as a percentage) equal to a
fraction, the numerator of which is the total amount of Dilution during the
previous Settlement Period, and the denominator of which is the aggregate dollar
amount of Receivables generated by the Originators during the second preceding
Settlement Period.
"DILUTION RESERVE" means the product of (a) the sum of (i) the product of (A) 2
and (B) the Adjusted Dilution Ratio and (ii) the Dilution Volatility Component
and (b) the Dilution Horizon Ratio.
"DILUTION VOLATILITY COMPONENT" means an amount (expressed as a percentage)
equal to the product of (a) the difference between (i) the highest three month
rolling average Dilution Ratio during the immediately preceding twelve (12)
months and (ii) the Adjusted Dilution Ratio and (b) a fraction, the numerator of
which is the highest three month rolling average Dilution Ratio during the
immediately preceding twelve (12) months and the denominator of which is the
Adjusted Dilution Ratio.
"DOLLARS" means dollars in lawful money of the United States of America.
"DOWNGRADING EVENT" means with respect to any Person the reduction of the rating
with regard to the short-term securities of such Person to below (a) A-1 by
Standard & Poor's Ratings Group, or (b) P-1 by Moody's.
"EARNED DISCOUNT" means, for any Yield Period or any CP Tranche Period, as
applicable, for any Asset Tranche:
PTI X ER X ED + LF
-------------
360
WHERE:
PTI the daily average (calculated at the close of business each
day) of the Purchaser's Tranche Investment in such Asset
Tranche during such Yield Period or CP Tranche Period, as
applicable;
ER the Earned Discount Rate for such Yield Period or CP Tranche
Period;
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ED the actual number of days elapsed during such Yield Period or
CP Tranche Period; and
LF the Liquidation Fee, if any, during such Yield Period or CP
Tranche Period.
"EARNED DISCOUNT RATE" means for any Yield Period or any CP Tranche Period, as
applicable, for any Asset Tranche:
(a) in the case of an Asset Tranche funded by a Liquidity
Funding, either (i) the sum of the Eurodollar Rate (Reserve Adjusted) and the
Applicable Margin or (ii) the Alternate Base Rate, as applicable, for such
Asset Tranche and such Yield Period; and
(b) in the case of an Asset Tranche funded by Commercial Paper
Notes, the CP Rate for such CP Tranche Period;
PROVIDED, HOWEVER, that on any day when any Liquidation Event or Unmatured
Liquidation Event shall have occurred and be continuing, the Earned Discount
Rate for each Asset Tranche shall mean a rate PER ANNUM equal to the Alternate
Base Rate plus 2% PER ANNUM.
"ELIGIBLE RECEIVABLE" means, at any time, a Receivable:
(a) which is a Pool Receivable arising out of the sale by an
Originators in the ordinary course of its business that has been sold or
contributed to Seller pursuant to the Sale Agreement in a "true sale" or "true
contribution" transaction;
(b) as to which the perfection of Purchaser's undivided ownership
interest therein is governed by the laws of a jurisdiction where the Uniform
Commercial Code - Secured Transactions is in force, and which constitutes an
"account" as defined in the Uniform Commercial Code as in effect in such
jurisdiction;
(c) the Obligor of which (i) is a resident of the United
States, or any of its possessions or territories, and is not an Affiliate of
any Seller Party, (ii) has a billing address in the United States, or any of
its possessions or territories and (iii) is not a Governmental Authority;
(d) which is not a Defaulted Receivable at such time;
(e) with regard to which the warranty of the Seller in Section
6.1(l) is true and correct;
(f) the sale of an undivided interest in which does not
contravene or conflict with any law;
(g) which is denominated and payable only in Dollars in the
United States;
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(h) which arises under a Contract that has been duly authorized
and that, together with such Receivable, is in full force and effect and
constitutes the legal, valid and binding obligation of the Obligor of such
Receivable enforceable against such Obligor in accordance with its terms and is
not subject to any dispute, offset, counterclaim or defense whatsoever;
provided, however, that if such dispute, offset, counterclaim or defense affects
only a portion of the Unpaid Balance of such Receivable then such Receivable may
be deemed an Eligible Receivable to the extent of the portion of such Unpaid
Balance which is not so affected;
(i) which, together with the Contract related thereto, does not
contravene in any material respect any laws, rules or regulations applicable
thereto (including, without limitation, laws, rules and regulations relating to
usury, truth in lending, fair credit billing, fair credit reporting, equal
credit opportunity, fair debt collection practices and privacy) and with respect
to which no party to the Contract related thereto is in violation of any such
law, rule or regulation in any material respect if such violation would impair
the collectibility of such Receivable;
(j) which satisfies in all material respects all applicable
requirements of the Credit and Collection Policy;
(k) which, according to the Contract related thereto, is due and
payable within 70 days from the invoice date of such
Receivable;
(l) [Reserved];
(m) the original term of which has not been extended and the
Unpaid Balance of which has not been adjusted more than once; and
(n) which, together with the Contract related thereto, does not
require the prior written consent of an Obligor or contain any other
restriction relating to the transfer or assignment of rights of payment under
the related Contract which are legally enforceable (other than a consent or
waiver of such restriction that has been obtained prior to the Restatement
Closing Date.
"ELIGIBLE RECEIVABLES NET BALANCE" means, at any time, an amount equal to (a)
the aggregate Unpaid Balance of all Eligible Receivables in the Receivables Pool
at such time, MINUS (b) the product of (i) 1.5 and (ii) the Volume Rebate
Accrual at such time.
"ERISA" means the U.S. Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not incorporated) that
is a member of a group of which Georgia Gulf or GGCV is a member and which is
treated as a single employer under Section 414 of the Code.
"EURODOLLAR BUSINESS DAY" means a day of the year as defined in clause (i) of
the definition of Business Day.
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"EURODOLLAR RATE" means for any Yield Period, the rate per annum determined on
the basis of the offered rate for deposits in Dollars of amounts equal or
comparable to the principal amount of the related Liquidity Funding offered for
a term comparable to such Yield Period, which rates appear on the Telerate Page
3750 effective as of 11:00 A.M., London time, two Eurodollar Business Days prior
to the first day of such Yield Period, PROVIDED THAT if no such offered rates
appear on such page, the Eurodollar Rate for such Yield Period will be the
arithmetic average (rounded upwards, if necessary, to the next higher 1/100th of
1%) of rates quoted by not less than two major banks in New York City, selected
by the Administrative Agent, at approximately 10:00 A.M., New York City time,
two Eurodollar Business Days prior to the first day of such Yield Period, for
deposits in Dollars offered by leading European banks for a period comparable to
such Yield Period in an amount comparable to the principal amount of such
Liquidity Funding.
"EURODOLLAR RATE (RESERVE ADJUSTED)" applicable to any Yield Period means a rate
PER ANNUM equal to the quotient obtained (rounded upwards, if necessary, to the
next higher 1/100th of 1%) by DIVIDING (i) the applicable Eurodollar Rate for
such Interest Period by (ii) 1.00 MINUS the Eurodollar Reserve Percentage.
"EURODOLLAR RESERVE PERCENTAGE" means, with respect to any Yield Period, the
maximum reserve percentage, if any, applicable to the Liquidity Bank under
Regulation D during such Yield Period (or if more than one percentage shall be
applicable, the daily average of such percentages for those days in such Yield
Period during which any such percentage shall be applicable) for determining the
Liquidity Bank's reserve requirement (including any marginal, supplemental or
emergency reserves) with respect to liabilities or assets having a term
comparable to such Yield Period consisting or included in the computation of
"Eurocurrency Liabilities" pursuant to Regulation D. Without limiting the effect
of the foregoing, the Eurodollar Reserve Percentage shall reflect any other
reserves required to be maintained by the Liquidity Bank by reason of any
Regulatory Change against (a) any category of liabilities which includes
deposits by reference to which the "London Interbank Offered Rate" or "LIBOR" is
to be determined or (b) any category of extensions of credit or other assets
which include LIBOR-based credits or assets.
"EVENT OF BANKRUPTCY" shall be deemed to have occurred with respect to a Person
if either:
(a) a case or other proceeding shall be commenced, without the
application or consent of such Person, in any court, seeking the liquidation,
reorganization, debt arrangement, dissolution, winding up, or composition or
readjustment of debts of such Person, the appointment of a trustee, receiver,
custodian, liquidator, assignee, sequestrator or the like for such Person or all
or substantially all of its assets, or any similar action with respect to such
Person under any law relating to bankruptcy, insolvency, reorganization, winding
up or composition or adjustment of debts, and such case or proceeding shall
continue undismissed, or unstayed and in effect, for a period of 60 consecutive
days; or an order for relief in respect of such Person shall be entered in an
involuntary case under the federal bankruptcy laws or other similar laws now or
hereafter in effect; or
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(b) such Person shall commence a voluntary case or other
proceeding under any applicable bankruptcy, insolvency, reorganization, debt
arrangement, dissolution or other similar law now or hereafter in effect, or
shall consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other similar
official) for, such Person or for any substantial part of its property, or
shall make any general assignment for the benefit of creditors, or shall be
adjudicated insolvent, or admit in writing its inability to, pay its debts
generally as they become due, or, if a corporation or similar entity, its
board of directors shall vote to implement any of the foregoing.
"EXCESS CONCENTRATION AMOUNT" means, as of any date, the sum of the amounts by
which the aggregate Unpaid Balance of Receivables of each Obligor exceeds the
Obligor Concentration Limit for such Obligor.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FACE AMOUNT" means, with respect to any Commercial Paper Note, the face amount
stated thereon in the case of any Commercial Paper Note issued on a discount
basis, and the principal amount stated thereon plus the amount of all interest
scheduled to accrue on such Commercial Paper Note through its stated maturity
date in the case of any Commercial Paper Note issued on an interest bearing
basis.
"FEDERAL FUNDS RATE" means, for any day, the rate PER ANNUM (rounded upwards, if
necessary, to the next higher 1/100th of 1%) equal to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Domestic Business Day next
succeeding such day, PROVIDED THAT (i) if the day for which such rate is to be
determined is not a Domestic Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Domestic Business
Day as so published on the next succeeding Domestic Business Day, and (ii) if
such rate is not so published for any day, the Federal Funds Rate for such day
shall be the average rate charged to the Administrative Agent on such day on
such transactions, as reasonably determined by the Administrative Agent.
"FEDERAL RESERVE BOARD" means the Board of Governors of the Federal Reserve
System, or any successor thereto or to the functions thereof.
"FEE LETTER" has the meaning set forth in SECTION 4.1.
"FINAL PAYOUT DATE" means the date following the Termination Date on which
Purchaser's Total Investment shall have been reduced to zero and all other
amounts payable by Seller under the Transaction Documents shall have been paid
in full.
"GAAP" means generally accepted accounting principles set forth in the opinions
and pronouncements of the Accounting Principles Board of the American Institute
of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board
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or in such other statements by such accounting profession, which are applicable
to the circumstances as of the date of determination.
"GOVERNMENTAL AUTHORITY" means any Federal, state, local or foreign court or
governmental agency, authority, instrumentality or regulatory body.
"GUARANTEE" means any obligation, contingent or otherwise, of any person
guaranteeing or having the economic effect of guaranteeing any Indebtedness of
any other person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, and including any obligation of such person, direct or indirect, (a)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or to purchase (or to advance or supply funds for the purchase
of) any security for the payment of such Indebtedness, (b) to purchase property,
securities or services for the purpose of assuring the owner of such
Indebtedness of the payment of such Indebtedness or (c) to maintain working
capital, equity capital or other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such
Indebtedness; PROVIDED HOWEVER that the term Guarantee shall not include
endorsements for collection or deposit, in either case, in the ordinary course
of business.
"INDEBTEDNESS" of any person means, without duplication, (a) all obligations of
such person for borrowed money or with respect to deposits or advances of any
kind, (b) all obligations of such person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such person upon which interest
charges are customarily paid, (d) all obligations of such person under
conditional sale or other title retention agreements relating to property or
assets purchased by such person, (e) all obligations of such person issued or
assumed as the deferred purchase price of property or services (other than trade
payables incurred in the ordinary course of business), (f) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such person, whether or not the obligations secured thereby have
been assumed, but limited, if such obligations are without recourse to such
person, to the lesser of the principal amount of such Indebtedness or the fair
market value of such property, (g) all Guarantees by such person of Indebtedness
of others, (h) all Capital Lease Obligations of such person, (i) all obligations
of such person in respect of interest rate protection agreements, foreign
currency exchange agreements or other interest or exchange rate hedging
arrangements (the amount of any such obligation to be the amount that would be
payable upon the acceleration, termination or liquidation thereof) and (j) all
obligations of such person as an account party in respect of letters of credit
and bankers' acceptances. The Indebtedness of any person shall include the
Indebtedness of any partnership in which such person is a general partner.
"INDEMNIFIED AMOUNTS" has the meaning set forth in SECTION 13.1.
"INDEMNIFIED PARTY" has the meaning set forth in SECTION 13.1.
"INFORMATION PACKAGE" has the meaning set forth in SECTION 3.1(a).
A-11
"INITIAL DUE DILIGENCE AUDITOR" means such person designated by the
Administrative Agent as the initial due diligence auditor.
"INITIAL SERVICER" has the meaning set forth in the PREAMBLE.
"LIEN" means any security interest, lien, encumbrance, pledge, assignment, title
retention, similar claim, right or interest.
"LIQUIDATION EVENT" has the meaning set forth in SECTION 10.1.
"LIQUIDATION FEE" means, for each Asset Tranche (or portion thereof) for each
day in any Yield Period or CP Tranche Period (computed without regard to clause
(iii) of the proviso of the definition of "YIELD PERIOD"), the amount, if any,
by which:
(a) the additional Earned Discount (calculated without taking into
account any Liquidation Fee) which would have accrued on the reductions of the
Purchaser's Tranche Investment with respect to such Asset Tranche during such
Yield Period or CP Tranche Period (as so computed) if such reductions had not
been made, EXCEEDS
(b) the income, if any, received by Purchaser from investing the
proceeds of such reductions of the Purchaser's Tranche Investment.
"LIQUIDATION PERIOD" means the period commencing on the date on which the
conditions precedent to Purchases and Reinvestment set forth in SECTION 5.2 are
not satisfied (or expressly waived by Purchaser) and the Administrative Agent
shall have notified Seller and Servicer in writing that the Liquidation Period
has commenced, and ending on the Final Payout Date.
"LIQUIDITY AGENT" means Wachovia, as agent for the Liquidity Banks under the
Liquidity Agreement, or any successor to Wachovia in such capacity.
"LIQUIDITY AGREEMENT" means and includes (a) the Liquidity Asset Purchase
Agreement dated as of the date hereof among Purchaser, Wachovia, as
Administrative Agent, Wachovia, as Liquidity Agent, and Wachovia and/or one or
more other banks or other financial institutions, as Liquidity Banks, and (b)
any other agreement hereafter entered into by Purchaser providing for the
purchase of assets or the making of loans or other extensions of credit to
Purchaser secured by a direct or indirect security interest in the Asset
Interest (or any portion thereof), to support all or part of Purchaser's payment
obligations under the Commercial Paper Notes or to provide an alternate means of
funding Purchaser's investments in accounts receivable or other financial
assets, and under which the amount available from such extensions of credit is
limited to an amount calculated by reference to the value or eligible unpaid
balance of such accounts receivable or other financial assets or any portion
thereof or the level of deal-specific credit enhancement available with respect
thereto, as such Liquidity Agreement or other agreement may be amended,
supplemented or otherwise modified from time to time.
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"LIQUIDITY BANK" means any one of, and "LIQUIDITY BANKS" means all of, the
commercial lending institutions that are at any time parties to the Liquidity
Agreement as liquidity providers thereunder.
"LIQUIDITY FUNDING" means a purchase made by the Liquidity Bank (or simultaneous
purchases made by the Liquidity Banks) pursuant to the Liquidity Agreement.
"LOCK-BOX ACCOUNT" means any bank account into which Collections are deposited
or transferred.
"LOCK-BOX AGREEMENT" means a letter agreement, in substantially the form of
EXHIBIT A-1, among Servicer, Purchaser, the Administrative Agent, Seller and any
Lock-Box Bank.
"LOCK-BOX BANK" means any of the banks holding one or more lock-boxes or
Lock-Box Accounts receiving Collections from Pool Receivables.
"LOSS RESERVE" means the product (expressed as a percentage) of (a) 2.5, (b) the
highest rolling three month average Default Ratio during the immediately
preceding twelve (12) months and (c) the most recently calculated Default
Horizon Ratio.
"MATERIAL ADVERSE EFFECT" with respect to any event or circumstance, means a
material adverse effect on:
(a) (i) the assets, operations, business or financial condition of
Seller or (ii) the business, assets, operations or financial condition of
Georgia Gulf or GGCV and its Subsidiaries, taken as a whole, which could
reasonably be expected to have a material adverse effect on the creditworthiness
of Georgia Gulf or GGCV;
(b) the ability of any Seller Party to perform its obligations under
this Agreement or any other Transaction Document;
(c) the validity or enforceability of this Agreement or any other
Transaction Document, or the validity, enforceability or collectibility of a
material portion of the Receivables Pool; or
(d) the status, existence, perfection, priority or enforceability of
Purchaser's interest in the Receivables Pool.
"MOODY'S" means Moody's Investors Service, Inc.
"NET POOL BALANCE" means, at any time, an amount equal to (i) the Eligible
Receivables Net Balance at such time, MINUS (ii) the Excess Concentration Amount
at such time.
"OBLIGOR" means a Person obligated to make payments with respect to a
Receivable, including any guarantor thereof.
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"OBLIGOR CONCENTRATION LIMIT" means, at any time, in relation to the aggregate
Unpaid Balance of Receivables owed by any single Obligor and its Affiliated
obligors (if any):
(a) for Obligors who have a short-term unsecured debt rating (or
in the absence thereof, the equivalent long-term unsecured senior debt rating)
currently assigned to them by Standard & Poor's and Moody's, the applicable
concentration limit shall be determined according to the following table (and,
if such Obligor is rated by both agencies and has a split rating, the applicable
rating will be the lower of the two):
Allowable
% of Eligible
S&P Rating and Moody's Rating Receivables Net
Balance
A-1+ P-1 10%
A-1 P-1 8%
A-2 P-2 6%
A-3 P-3 4%; or
(b) for Obligors who do not have either a long-term unsecured
senior debt rating or a short-term unsecured debt rating listed above from
both Moody's and S&P, who are not rated by either Moody's or S&P or who have
either a long-term unsecured senior debt rating or a short-term unsecured
debt rating listed above from either of Moody's or S&P, but neither a
long-term unsecured senior debt rating nor a short-term unsecured debt rating
from the other rating agency, 4% of the Eligible Receivables Net Balance at
such time; or
(c) the Administrative Agent may consider top obligators of
Georgia Gulf for special obligor status ("Special Obligor") which may result
in an increase in the applicable Obligor Concentration Limit; PROVIDED,
however, any such Special Obligor designation shall not take effect without
the confirmation to the Administrative Agent by each of Moody's and S&P of
such designation.
"ORIGINATOR" means each of Georgia Gulf, GGCV or Georgia Gulf Lake Charles in
their capacity as originator under the Purchase Agreement.
"PERMITTED HOLDERS" means all members of the board of directors of Georgia Gulf
or GGCV on the date hereof and all officers of Georgia Gulf or GGCV on the date
hereof.
"PERSON" means an individual, partnership, corporation (including a business
trust), joint stock company, trust, unincorporated association, joint venture,
government or any agency or political subdivision thereof or any other entity.
"PLAN" means any pension plan subject to the provisions of Title IV of ERISA or
Section 412 of the Code which is maintained for employees of Georgia Gulf or
GGCV or any ERISA Affiliate.
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"POOL RECEIVABLE" means a Receivable in the Receivables Pool.
"PRIME RATE" refers to that interest rate so denominated and set by Wachovia
from time to time as an interest rate basis for borrowings. The Prime Rate is
but one of several interest rate bases used by Wachovia. Wachovia lends at
interest rates above and below the Prime Rate.
"PROGRAM FEE" has the meaning set forth in the Fee Letter.
"PROGRAM INFORMATION" has the meaning set forth in SECTION 14.8(a)(I).
"PURCHASE" has the meaning set forth in SECTION 1.1.
"PURCHASE AGREEMENT" means the Amended and Restated Receivables Purchase
Agreement dated as of May 24, 2000 among the Servicer, the Originators and the
Seller.
"PURCHASE LIMIT" has the meaning set forth in SECTION 1.1.
"PURCHASE TERMINATION DATE" means that day on which a Liquidation Event has
occurred and is continuing, and
(a) the Administrative Agent declares a Purchase Termination Date
in a notice to Seller in accordance with SECTION 10.2(a); or
(b) in accordance with SECTION 10.2(b), becomes the Purchase
Termination Date automatically.
"PURCHASER" has the meaning set forth in the PREAMBLE.
"PURCHASER'S SHARE" of any amount at any time means the lesser of (i) the most
recently calculated Asset Interest and (ii) 100%.
"PURCHASER'S TOTAL INVESTMENT" means at any time with respect to the Asset
Interest an amount equal to (a) the aggregate of the amounts theretofore paid to
Seller for any purchase pursuant to SECTION 1.1 AND 1.2, LESS (b) the aggregate
amount of Collections theretofore received and actually distributed to Purchaser
on account of such Purchaser's Total Investment pursuant to SECTION 1.3.
"PURCHASER'S TRANCHE INVESTMENT" means in relation to any Asset Tranche the
amount of the Purchaser's Total Investment allocated by the Administrative Agent
to that Asset Tranche pursuant to SECTION 2.1, PROVIDED, that at all times the
aggregate amounts allocated to all Asset Tranches shall equal the Purchaser's
Total Investment.
"QUALIFYING LIQUIDITY BANK" means a Liquidity Bank with a rating of its
short-term securities equal to or higher than (i) A-1 by Standard & Poor's and
(ii) P-1 by Moody's.
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"RECEIVABLE" means any right to payment from a Person, whether constituting an
account, chattel paper, instrument or general intangible and includes the right
to payment of any interest or finance charges and other amounts with respect
thereto.
"RECEIVABLES POOL" means at any time the Aggregate Eligible Receivables and
other Receivables which have been sold by the Originator to Seller.
"REGULATION D" means Regulation D of the Board of Governors of the Federal
Reserve System, as the same may be amended or supplemented from time to time.
"REGULATORY CHANGE" means any change after the date of this Agreement in United
States (federal, state or municipal) or foreign laws or regulations (including
Regulation D) or the adoption or making after such date of any interpretations,
directives or requests applying to a class of banks (including the Liquidity
Bank) of or under any United States (federal, state or municipal) or foreign,
laws, or regulations (whether or not having the force of law) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof.
"REINVESTMENT" has the meaning set forth in SECTION 1.3 (a) (iii).
"RELATED ASSETS" means (a) all rights to, but not any obligations under, all
related Contracts and Related Security related to any Pool Receivables, (b) all
rights and interests of Seller under the Sale Agreement in relation to any Pool
Receivables, (c) all books and records evidencing or otherwise relating to any
Pool Receivables, (d) all Lock-Box Accounts and all cash and investments
therein, to the extent constituting or representing the items in the following
clause (e) and (e) all Collections in respect of, and other proceeds of, any
Pool Receivables or any other Related Assets.
"RELATED SECURITY" means, with respect to any Pool Receivable, all of Seller's
(in the case of usage in the Receivables Purchase Agreement) or the Originator's
(in the case of usage in the Sale Agreement) right, title and interest in and
to: (a) all Contracts that relate to such Pool Receivable; (b) all merchandise
(including returned merchandise), if any, relating to the sale which gave rise
to such Pool Receivable; (c) all security deposits and other security interests
or liens and property subject thereto from time to time purporting to secure
payment of such Pool Receivable, whether pursuant to the Contract related to
such Pool Receivable or otherwise; (d) all UCC financing statements covering any
collateral securing payment of such Pool Receivable (but only to the extent of
the interest of Purchaser in the respective Pool Receivable); (e) all guarantees
and other agreements or arrangements of whatever character from time to time
supporting or securing payment of such Pool Receivable whether pursuant to the
Contract related to such Pool Receivable or otherwise; and (f) all insurance
policies, and all claims thereunder, related to such Pool Receivable, in each
case to the extent directly related to rights to payment, collection and
enforcement, and other rights with respect to such Pool Receivable. The interest
of Purchaser in any Related Security is only to the extent of Purchaser's
undivided percentage interest, as more fully described in the definition of
Asset Interest.
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"REPORTABLE EVENT" means any reportable event as defined in Section 4043(b) of
ERISA or the regulations issued thereunder with respect to a Plan (other than a
Plan maintained by an ERISA Affiliate which is considered an ERISA Affiliate
only pursuant to subsection (m) or (o) of Section 414 of the Code).
"REPORTING DATE" has the meaning set forth in SECTION 3.1(a).
"REQUIRED RESERVE" means, on any day during a Settlement Period, an amount equal
to the product of (a) the Required Reserve Factor and (b) the Net Pool Balance
on such day.
"REQUIRED RESERVE FACTOR" means, on any day during a Settlement Period, an
amount equal to the greater of (a) the Required Reserve Factor Floor and (b) the
sum of (i) the Loss Reserve, (ii) the Dilution Reserve, (iii) the Yield Reserve,
and (iv) the Servicing Reserve.
"REQUIRED RESERVE FACTOR FLOOR" means, the sum of (a) 16% and (b) the product of
(i) the Adjusted Dilution Ratio and (ii) the Dilution Horizon Ratio.
"RESTATEMENT CLOSING DATE" means the date on which all conditions to the
effectiveness of this Agreement and other Transaction Documents shall have been
satisfied in the opinion of the Company.
"REVOLVING PERIOD" means the period beginning on the Closing Date and ending on
the earlier of (i) the day on which a Liquidation Event occurs and (ii) the
Termination Date.
"S&P" means Standard & Poor's Ratings Service.
"SEC" means the Securities and Exchange Commission.
"SECURED PARTIES" means Purchaser, the Administrative Agent, the Indemnified
Parties and the Affected Parties.
"SELLER" has the meaning set forth in the PREAMBLE.
"SELLER INFORMATION" has the meaning set forth in SECTION 14.7(a).
"SELLER INFORMATION PROVIDER" has the meaning set forth in SECTION 14.7(a).
"SELLER PARTY" and "SELLER PARTIES" have the meanings set forth in the PREAMBLE.
"SELLER'S SHARE" of any amount means 100% minus the lesser of (i) the most
recently calculated Asset Interest and (ii) 100%.
"SERVICER" has the meaning set forth in the PREAMBLE.
"SERVICER DEFAULT" means, with respect to any Servicer, any one of the following
events:
A-17
(a) any failure by the Servicer to make any payment, transfer or
deposit or to give instructions or notice to the Administrative Agent as
required by this Agreement including, without limitation, delivery of any
Information Package and, (i) in the case of failure to deliver a Information
Package such failure shall remain unremedied for two (2) Business Days after the
earliest to occur of (A) written notice thereof shall have been given by the
Administrative Agent to such Servicer or (B) such Servicer shall have otherwise
become aware of such failure and (ii) in the case of failure to make any payment
or deposit to be made by such Servicer such failure shall remain unremedied for
one (1) Business Day;
(b) any failure on the part of such Servicer duly to observe or
perform in any material respect any other covenants or agreements of such
Servicer set forth in this Agreement or any other Transaction Document to which
such Servicer is a party, which failure continues unremedied for a period of 10
days after the first to occur of (i) the date on which written notice of such
failure requiring the same to be remedied shall have been given to such Servicer
by the Administrative Agent and (ii) the date on which such Servicer becomes
aware thereof;
(c) any representation, warranty or certification made by such
Servicer in this Agreement or in any certificate delivered pursuant to this
Agreement shall prove to have been incorrect when made, which continues to be
unremedied for a period of 10 days after the first to occur of (i) the date on
which written notice of such incorrectness requiring the same to be remedied
shall have been given to such Servicer by the Administrative Agent and (ii) the
date on which such Servicer becomes aware thereof;
(d) any bankruptcy, insolvency or similar event occurs with
respect to such Servicer; or
(e) any change in the control of such Servicer which takes the
form of either a merger or consolidation in which such Servicer is not the
surviving entity.
"SERVICER TRANSFER EVENT" has the meaning set forth in SECTION 8.1(b).
"SERVICER'S FEE" means an amount equal to (x) the Servicer's Fee Rate, TIMES (y)
the aggregate Unpaid Balance of the Pool Receivables at the close of business on
the first day of such Settlement Period, TIMES (z) 1/360.
"SERVICER'S FEE RATE" means 1% per annum.
"SERVICING RESERVE" means the product (expressed as a percentage) of (a) the
Servicer's Fee Rate and (b) a fraction the numerator of which is the Twelve
Month DSO and the denominator of which is 360.
"SETTLEMENT DATE" means two (2) Business Days following each Reporting Date.
"SETTLEMENT PERIOD" means
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(a) the period from the date of the initial Purchase to the last
day of the Fiscal Month in which such date occurs; and
(b) thereafter, each period from the last day of the next
preceding Settlement Period to the last day of the next following Fiscal
Month;
PROVIDED, HOWEVER, that the last Settlement Period shall end on the Final Payout
Date.
"SIGNIFICANT SUBSIDIARY" means a Subsidiary meeting any one of the following
conditions; (a) the investments in and advances to such Subsidiary by Georgia
Gulf's or GGCV's and the other Subsidiaries, if any, as at the end of Georgia
Gulf's or GGCV's latest fiscal quarter exceeded 10% of the total assets of
Georgia Gulf or GGCV and its Subsidiaries at such date, computed and
consolidated in accordance with GAAP; or (b) Georgia Gulf's or GGCV's and the
other Subsidiaries' proportionate share of the total assets (after intercompany
eliminations) of such Subsidiary as at the end of Georgia Gulf's or GGCV's
latest fiscal quarter exceeded 10% of the total assets of Georgia Gulf or GGCV
and its Subsidiaries at such date, computed and consolidated in accordance with
GAAP; or (c) the equity in the income from continuing operations before income
taxes, extraordinary items and cumulative effect of a change in accounting
principle of such Subsidiary for the period of four consecutive fiscal quarters
ending at the end of Georgia Gulf's or GGCV's latest fiscal quarter exceeded 10%
of such income of Georgia Gulf or GGCV and its Subsidiaries for such period,
computed and consolidated in accordance with GAAP; or (d) such Subsidiary is the
parent of one or more Subsidiaries and, together with such Subsidiaries would,
if considered in the aggregate, constitute a Significant Subsidiary.
"SUBORDINATED NOTE" has the meaning set forth in the Purchase Agreement.
"SUBSIDIARY" of any Person means (i) a corporation more than 50% of whose stock
of any class or classes having by the terms thereof ordinary voting power to
elect a majority of the directors of such corporation (irrespective of whether
or not at the time stock of any class or classes of such corporation shall have
or might have voting power by reason of the happening of any contingency) is at
the time owned or controlled by such Person, directly or indirectly through
Subsidiaries, and (ii) any partnership, association, joint venture or other
entity in which such Person, directly or indirectly through Subsidiaries, has
more than a 50% equity interest at the time.
"SUCCESSOR NOTICE" has the meaning set forth in SECTION 8.1(b).
"TERMINATION DATE" means the earliest of
(a) the date of termination (whether by scheduled expiration,
termination on default or otherwise) of the Liquidity Banks' commitments under
the Liquidity Agreement (unless such commitments are renewed, extended or
replaced on or before such date); the Purchase Termination Date;
A-19
(b) the date designated by Seller as the "Termination Date" on not
less than five (5) Business Days' notice to the Administrative Agent, PROVIDED
that on such date the Purchaser's Total Investment has been reduced to zero, all
accrued Earned Discount and fees have been paid in full and all other amounts
due to Purchaser and the Administrative Agent have been paid in full;
(c) 364 days from the date hereof;
(d) the date on which either of the following shall occur:
(i) A Downgrading Event with respect to a Liquidity Bank
shall have occurred and been continuing for not less than 45 days, (ii)
the Downgraded Liquidity Bank shall not have been replaced by a
Qualifying Liquidity Bank pursuant to a Liquidity Agreement in form
and substance acceptable to Purchaser and the Administrative Agent,
and (iii) the commitment of such Downgraded Liquidity Bank under the
Liquidity Agreement shall not have been funded or collateralized in
such a manner that such Downgrading Event will not result in a
reduction or withdrawal of the credit rating applied to the
Commercial Paper Notes by any of the rating agencies then rating the
Commercial Paper Notes; or
(ii) Purchaser shall become an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
"TRANSACTION DOCUMENTS" means this Agreement, the Lock-Box Agreements, the
Purchase Agreement, the Fee Letter and the other documents to be executed and
delivered in connection herewith.
"TURNOVER DAYS" at any time during a Settlement Period means the product of (a)
the quotient of (i) the aggregate Unpaid Balance of the Receivables as of the
first day of the next preceding Settlement Period, divided by (ii) the aggregate
amount of Collections received on all Receivables during such next preceding
Settlement Period, times (b) the number of days in such next preceding
Settlement Period.
"TWELVE MONTH DSO" means for any day, the highest Days Sales Outstanding that
occurred during the twelve (12) month period ending on such date of calculation.
"UCC" means the Uniform Commercial Code as from time to time in effect in the
applicable jurisdiction or jurisdictions.
"UNMATURED LIQUIDATION EVENT" means any event which, with the giving of notice
or lapse of time, or both, would become a Liquidation Event.
"UNPAID BALANCE" of any Receivable means at any time the unpaid amount thereof,
but EXCLUDING all late payment charges, delinquency charges and extension or
collection fees.
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"VOLUME REBATE" means a reduction or cancellation of the Unpaid Balance of a
Pool Receivable as described in Section 3.2(a)(i)(c).
"VOLUME REBATE ACCRUAL" means, at any time, the balance of all accrual accounts
that any Seller Party establishes to reserve for Volume Rebates earned by all
Obligors.
"YEAR 2000 COMPLIANT AND READY" as used herein means that (A) the Seller
Parties' and their Subsidiaries' hardware and software systems with respect to
the operation of its business and its general business plan, (i) handle date
information involving any and all dates including accepting input, providing
output and performing date calculations in whole or in part; (ii) operate
accurately and without interruption on and in respect of any and all dates and
without any change in performance; (iii) store and provide date input
information without creating any ambiguity as to the century and; (B) the Seller
Parties have developed alternative plans to ensure business continuity in the
event of the failure of any or all items (i) through (iii) above.
"YIELD PERIOD" means, with respect to any Asset Tranche funded by a Liquidity
Funding,
(a) the period commencing on the date of the initial Purchase of
the Asset Interest, the making of such Liquidity Funding or the creation of such
Asset Tranche pursuant to SECTION 2.1 (whichever is latest) and ending such
number of days thereafter as the Administrative Agent shall select; and
(b) each period commencing on the last day of the immediately
preceding Yield Period for the related Asset Tranche and ending such number of
days thereafter as the Administrative Agent shall select;
PROVIDED, HOWEVER, that
(i) any such Yield Period (other than a Yield Period consisting of
one day) which would otherwise end on a day that is not a Business Day shall be
extended to the next succeeding Business Day (unless the related Asset Tranche
shall be accruing Earned Discount at a rate determined by reference to
Eurodollar Rate (Reserve Adjusted), in which case if such succeeding Business
Day is in a different calendar month, such Yield Period shall instead be
shortened to the next preceding Business Day);
(ii) in the case of Yield Periods of one day for any Asset Tranche,
(A) the initial Yield Period shall be the date such Yield Period commences as
described in clause (a) above; and (B) any subsequently occurring Yield Period
which is one day shall, if the immediately preceding Yield Period is more than
one day, be the last day of such immediately preceding Yield Period, and if the
immediately preceding Yield Period is one day, shall be the next day following
such immediately preceding Yield Period; and
(iii) in the case of any Yield Period for any Asset Tranche which
commences before the Termination Date and would otherwise end on a date
occurring after such
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Termination Date, such Yield Period shall end on such Termination Date and the
duration of each such Yield Period which commences on or after the Termination
Date for such Asset Tranche shall be of such duration as shall be selected by
the Administrative Agent.
"YIELD RESERVE" means, on any date of determination, the product of (a) 1.5, (b)
the Alternate Base Rate and (c) a fraction, the numerator of which is the Twelve
Month DSO and the denominator of which is 360.
B. OTHER TERMS. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP. All terms herein shall be
construed in accordance with GAAP. All terms used in Article 9 of the UCC in the
State of New York, and not specifically defined herein, are used herein as
defined in such Article 9.
C. COMPUTATION OF TIME PERIODS. Unless otherwise stated in this
Agreement, in the computation of a period of time from a specified date to a
later specified date, the word "from" means "from and including" and the words
"to" and "until" each mean "to but excluding".
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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SCHEDULE 6.1(i)
DESCRIPTIONS OF MATERIAL ADVERSE CHANGES
A-23
SCHEDULE 6.1(n)
LIST OF OFFICES OF SERVICER AND SELLER WHERE RECORDS ARE KEPT
Seller:
GGRC Corp.
400 Perimeter Center Terrace, Suite 595
Atlanta, Georgia 30346
Servicers:
Georgia Gulf Corporation
Highway 405
Plaquemine, Louisiana 70764
and
400 Perimeter Center Terrace, Suite 595
Atlanta, Georgia 30346
Georgia Gulf Chemicals and Vinyls, LLC
400 Perimeter Center Terrace, Suite 595
Atlanta, Georgia 30346
SCHEDULE 6.1(o)
LIST OF LOCK-BOX BANKS
MAIN OFFICE ADDRESS & ACCOUNT NUMBER
SCHEDULE 14.2
NOTICE ADDRESSES
Seller:
GGRC Corp.
400 Perimeter Center Terrace, Suite 595
Atlanta, Georgia 30346
Attention: Samuel M. Hensley
Facsimile No.: (404) 395-4572
Telephone No.: (404) 395-4577
Servicers:
Georgia Gulf Corporation
400 Perimeter Center Terrace, Suite 595
Atlanta, Georgia 30346
Attention: Samuel M. Hensley
Facsimile No.: (404) 395-4572
Telephone No.: (404) 395-4577
Georgia Gulf Chemicals and Vinyls, LLC
400 Perimeter Center Terrace, Suite 595
Atlanta, Georgia 30346
Attention: Samuel M. Hensley
Facsimile No.: (770) 395-4572
Telephone No.: 770) 395-4577
Purchaser:
Blue Ridge Asset Funding Corporation
c/o: Wachovia Bank, N.A., as Administrator
100 North Main Street
Winston-Salem, NC 27150
Attention: John Dillon
Telephone: (336) 732-2690
Telecopy: (336) 732-5021
With a copy to:
Blue Ridge Asset Funding Corporation
c/o: AMACAR Group, L.L.C.
6707-D Fairview Road
Charlotte, North Carolina 28210
Attention: Douglas K. Johnson
Telephone: (704) 365-0569
Telecopy: (704) 365-1362
Administrative Agent:
Wachovia Bank, N.A.
191 Peachtree Street, Suite 423
Atlanta, GA 30303
Attention: Elizabeth Wagner
Facsimile No.: 404-332-5152
Telephone No.: 404-332-1398
EXHIBIT 1.2 (a)
FORM OF PURCHASE REQUEST
Wachovia Bank, N.A.
191 Peachtree Street, N.E., GA-423
Atlanta, Georgia 30303
Attention: Elizabeth Wagner
Ladies and Gentlemen:
Reference is made to the Amended and Restated Receivables Transfer Agreement
dated as of May 24, 2000 (as amended, supplemented or otherwise modified from
time to time, the "TRANSFER AGREEMENT") among GGRC Corp., as Seller, Georgia
Gulf Corporation and Georgia Gulf Chemicals and Vinyls, LLC, as Initial
Servicers (and together with Seller, collectively referred to as the "SELLER
PARTIES"), Blue Ridge Asset Funding Corporation, as purchaser (the "PURCHASER")
and Wachovia Bank N.A., as administrative agent for Purchaser (the
"ADMINISTRATIVE AGENT"). Capitalized terms defined in the Transfer Agreement are
used herein with the same meanings.
I. Each of the Seller Parties hereby certifies, represents and
warrants to the Purchaser and the Administrative Agent that on and as of the
Purchase Date (as hereinafter defined):
(a) all applicable conditions precedent set forth in ARTICLE V of
the Transfer Agreement have been satisfied;
(b) each of its respective representations and warranties
contained in SECTION 6.1 of the Transfer Agreement will be true and
correct, in all material respects, as if made on and as of the Purchase
Date (except to the extent of changes resulting from transactions
contemplated or permitted by the Transfer Agreement or to the extent of
changes that have otherwise been consented to by the Administrative
Agent on behalf of the Purchaser);
(c) no event will have occurred and is continuing, or would result
from the requested Purchase, that constitutes a Liquidation Event or
Unmatured Liquidation Event;
(d) after giving effect to the requested Purchase, Purchaser's
Total Investment and aggregate CP Discount will not exceed the
available Purchase Limit, and the Asset Interest will not exceed the
Allocation Limit; and
(e) the Termination Date shall not have occurred.
II. The undersigned, as Seller hereby requests that the Purchaser
make a Purchase on ___________, _____ (the "PURCHASE DATE") as follows:
$ - Face value of maturing CP
$ - Principal paydown by Seller (via Collection Account)
$____________ - Discount to be paid by Seller (via Collection
Account)
- Minimum net proceeds needed from rolling CP
to effect Purchase in required amount
$ - Requested face value CP to mature on ____________
$____________ - Requested face value CP to mature on ____________
$ - aggregate requested face value CP to be issued on
Purchase Date
IN WITNESS WHEREOF, the Seller and the Initial Servicers have caused
this Purchase Request to be executed and delivered as of this ____ day of
- -----------, -----.
GGRC Corp., as Seller
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
Georgia Gulf Corporation, as Initial Servicer
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
Georgia Gulf Chemicals and Vinyls LLC,
as Initial Servicer
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
EXHIBIT 3.1(a)
FORM OF INFORMATION PACKAGE
[GRAPHIC OMITTED]
[GRAPHIC OMITTED]
[GRAPHIC OMITTED]
EXHIBIT A-1
FORM OF LOCK-BOX AGREEMENT
[LETTERHEAD OF THE INITIAL SERVICER]
_______________, ___, 2000
[LOCK-BOX BANK]
Ladies and Gentlemen:
Reference is made to our lock-box account no. _____________ maintained with you
(the "ACCOUNT") pursuant to a lockbox agreement between the undersigned and you,
the terms and conditions of which are incorporated herein by reference (the
"LOCKBOX AGREEMENT"). Pursuant to an Amended and Restated Receivables Purchase
Agreement, dated as of May 24, 2000, as amended, supplemented or otherwise
modified from time to time, among the undersigned, as seller, and GGRC Corp., as
purchaser, we have sold and/or may hereafter sell to GGRC Corp. certain of the
accounts, chattel paper, instruments or general intangibles (collectively,
"RECEIVABLES") with respect to which payments are or may hereafter be made to
the Account. Pursuant to an Amended and Restated Receivables Transfer Agreement,
dated as of May 24, 2000 (as amended, supplemented or otherwise modified from
time to time, the "RECEIVABLES TRANSFER AGREEMENT"), among GGRC Corp., as
seller, the undersigned, as initial servicers (GGRC Corp. and the undersigned
being referred to hereinafter collectively as the "SELLER Parties"), Blue Ridge
Asset Funding Corporation ("BLUE RIDGE"), as purchaser and Wachovia Bank, N.A.,
as administrative agent (the "ADMINISTRATIVE AGENT"). GGRC Corp. has assigned
and/or may hereafter assign to Blue Ridge an undivided percentage interest in
the Receivables.
For purposes of this letter agreement, Wachovia Bank, N.A. is acting as
Administrative Agent for Blue Ridge. We hereby transfer exclusive ownership and
control of the Account to the Administrative Agent, for the benefit of Blue
Ridge, subject only to the condition subsequent that the Administrative Agent
shall have given you notice of its election to assume such ownership and
control, which notice shall be substantially in the form attached hereto as
ANNEX A.
We hereby irrevocably instruct you, at all times from and after the date of your
receipt of notice from the Administrative Agent of its assumption of control of
the Account as described above, (i) to make all payments to be made by you out
of or in connection with the Account directly to the Administrative Agent in
accordance with the instructions of the Administrative Agent, (ii) to hold all
moneys and instruments delivered to the Account or any lockbox administered by
you for the order of the Administrative Agent (for the benefit of Blue Ridge),
(iii) to refrain from initiating any transfer from the Account to any Seller
Party and (iv) to change the name of the Account to "Wachovia Bank, N.A., as
Administrative Agent for Blue Ridge Asset Funding Corporation". The
Administrative Agent agrees to execute your standard wire transfer
A-1-1
documentation in effect from time to time, or other customary documentation
related to wire transfers, prior to the initiation of any wire transfers.
We also hereby notify you that, at all times from and after the date of your
receipt of notice from the Administrative Agent as described above, the
Administrative Agent shall be irrevocably entitled to exercise in our place and
stead any and all rights in respect of or in connection with the Account,
including, without limitation, (a) the right to specify when payments are to be
made out of or in connection with the Account and (b) the right to require
preparation of duplicate monthly bank statements on the Account for the
Administrative Agent's audit purposes and mailing of such statements directly to
the Administrative Agent at an address specified by the Administrative Agent.
Notices from the Administrative Agent and other notices or communications under
this letter agreement may be personally served or sent by facsimile or by
certified mail, return receipt requested, or by express mail or courier, to the
address or facsimile number set forth under the signature of the relevant party
to this letter agreement (or to such other address or facsimile number as the
relevant party shall have designated by written notice to the party giving the
aforesaid notice or other communication). Notwithstanding the foregoing, any
notice delivered by you may be delivered by regular mail. If notice is given by
facsimile, it will be deemed to have been received when the notice is sent and
receipt is confirmed by telephone or other electronic means. All other notices
will be deemed to have been received when actually received or, in the case of
personal delivery, delivered.
By executing this letter agreement, you acknowledge the existence of the
Administrative Agent's right to ownership and control of the Account and its
ownership (on behalf of Blue Ridge and GGRC Corp. as the parties having
interests in such amounts) of the amounts from time to time on deposit therein,
and agree that from the date hereof the Account shall be maintained by you for
the benefit of, and amounts from time to time therein held by you for, the
Administrative Agent (on behalf of Blue Ridge and GGRC Corp.) on the terms
provided herein. Except as otherwise provided in this letter agreement, payments
to the Account are to be processed in accordance with the standard procedures
currently in effect. All service charges and fees with respect to the Account
shall continue to be payable by us as under the arrangements currently in
effect.
By executing this letter agreement, you irrevocably waive and agree not to
assert, claim or endeavor to exercise, irrevocably bar and estop yourself from
asserting, claiming or exercising, and acknowledge that you have not heretofore
received a notice, writ, order or any form of legal process from any other party
asserting, claiming or exercising, any right of set-off, banker's lien or other
purported form of claim with respect to the Account or any funds from time to
time therein. Except for your right to payment of your service charges and fees
and your right to make deductions for returned items, you shall have no rights
in the Account or funds therein. To the extent you may ever have such rights,
you hereby expressly subordinate all such rights to all rights of the
Administrative Agent.
A-1-2
You may terminate this letter agreement by canceling the Account maintained with
you, which cancellation and termination shall become effective only upon 90
days' prior written notice thereof from you to the Administrative Agent.
Incoming mail addressed to the Account received after such cancellation shall be
forwarded in accordance with the Administrative Agent's instructions. This
letter agreement may also be terminated upon written notice to you by the
Administrative Agent stating that the Receivables Transfer Agreement is no
longer in effect. Except as otherwise provided in this paragraph, this letter
agreement may not be terminated or amended without the prior written consent of
the Administrative Agent.
Notwithstanding any other provision of this letter agreement, it is agreed by
the parties hereto that you shall not be liable to Blue Ridge or the
Administrative Agent for any action taken by you or any of your directors,
officers, agents or employees in accordance with this letter agreement at the
request of the Administrative Agent, except for your or such person's own gross
negligence or willful misconduct.
This letter agreement may be executed by the signatories hereto in several
counterparts, each of which shall be deemed to be an original and all of which
shall together constitute but one and the same letter agreement. This letter
agreement shall be governed by and interpreted under the laws of the State of
New York.
Please acknowledge your agreement to the terms set forth in this letter
agreement by signing the six copies of this letter agreement enclosed herewith
in the space provided below and returning each of such signed copies to the
Administrative Agent.
Very truly yours,
Georgia Gulf Corporation
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Address for notice:
400 Perimeter Center Terrace, Suite 595
Atlanta, Georgia 30346
Attention: Samuel M. Hensley
Facsimile No.: 404-395-4572
A-1-3
Georgia Gulf Chemicals and Vinyls, LLC
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
Address for notice:
400 Perimeter Center Terrace, Suite 595
Atlanta, Georgia 30346
Attention: Samuel M. Hensley
Facsimile No.: 770-395-4572
A-1-4
Accepted and confirmed as of
the date first written above:
BLUE RIDGE ASSET FUNDING CORPORATION,
as Purchaser
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Address for notice:
100 North Main Street
Winston-Salem, NC 27150
Attention: John Dillon
Telephone: (336) 732-2690
Telecopy: (336) 732-5021
With a copy to:
Blue Ridge Asset Funding Corporation
c/o AMACAR Group, L.L.C.
6707-D Fairview Road
Charlotte, North Carolina 28210
Attention: Douglas K. Johnson
Telephone: (704) 365-0569
Telecopy: (704) 365-1362
WACHOVIA BANK, N.A.,
as Administrative Agent
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Address for notice:
191 Peachtree Street, N.E., GA-423
Atlanta, Georgia 30303
Attention: Elizabeth Wagner
Facsimile: (404) 332-5152
A-1-5
Acknowledged and agreed to as of the date first written above:
GGRC Corp.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Address for notice:
400 Perimeter Center Terrace, Suite 595
Atlanta, Georgia 30346
Attention: Samuel M. Hensley
Facsimile No.: 770-395-4572
[LOCKBOX BANK]
By:
-----------------------------------------
Name
---------------------------------------
Title:
--------------------------------------
Address for notice:
- ------------------------------
- ------------------------------
- ------------------------------
Attention:
------------------
Facsimile No:
---------------
A-1-6
ANNEX A to
Lock-Box Agreement
[FORM OF NOTICE OF ASSUMPTION OF CONTROL OF ACCOUNT]
[LETTERHEAD OF WACHOVIA BANK, N.A.]
__________________, 2000
[NAME OF LOCK-BOX BANK]
[ADDRESS OF LOCK-BOX BANK]
__________________________________
__________________________________
Re: [NAME OF SELLER]
LOCK-BOX ACCOUNT NO.
Ladies and Gentlemen:
Reference is made to the letter agreement dated __________ __, 2000 (as amended,
supplemented or otherwise modified from time to time, the "LETTER Agreement")
among GGRC Corp., Georgia Gulf Corporation, Georgia Gulf Chemicals and Vinyls,
LLC, Blue Ridge Asset Funding Corporation (the "PURCHASER"), Wachovia Bank,
N.A., as Administrative Agent for the Purchaser, and you, concerning the
above-described lock-box account (the "ACCOUNT").
We hereby give you notice of our assumption of ownership and control of the
Account as provided in the Letter Agreement.
We hereby instruct you to make all payments to be made by you out of or in
connection with the Account [DIRECTLY TO THE UNDERSIGNED, AT [OUR ADDRESS SET
FORTH ABOVE], FOR THE ACCOUNT OF [BLUE RIDGE ASSET FUNDING CORPORATION] (ACCOUNT
NO. ___________)].
[OTHER INSTRUCTIONS]
Very truly yours,
WACHOVIA BANK N.A.,
as Administrative Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT B
[NAME OF COMPANY]
FORM OF CERTIFICATE OF FINANCIAL OFFICER
This Certificate is made pursuant to the provisions of the Amended and Restated
Receivables Transfer Agreement dated as of May 24, 2000 (the "AGREEMENT") among
GGRC Corp., as Seller, Georgia Gulf Corporation and Georgia Gulf Chemicals and
Vinyls, LLC, as Initial Servicers, Blue Ridge Asset Funding Corporation, as
Purchaser, and Wachovia Bank, N.A., as Administrative Agent. The capitalized
terms used, but not defined, herein have the meanings assigned to them in the
Agreement.
The undersigned [CHIEF FINANCIAL OFFICER/TREASURER/CONTROLLER] of [NAME OF
COMPANY] (the "COMPANY") hereby certifies that the financial statements being
delivered concurrently herewith fairly present the financial condition and
results of operations of the Company in accordance with generally accepted
accounting principles consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes.
[NAME OF COMPANY]
Name:
------------------------------
Title:
-----------------------------
Dated:
---------------------------
B-1
EXHIBIT C
[NAME OF SELLER]
CREDIT AND COLLECTION POLICY
C-1