Exhibit 10.1


 




 





CREDIT
AGREEMENT


 


dated as of


 


November 12,
1999


 


and amended
and restated as of


 


November 23,
2004


 


among


 


GEORGIA GULF
CORPORATION


 


The ELIGIBLE
SUBSIDIARIES Referred to Herein


 


The LENDERS
Party Hereto


 


JPMORGAN CHASE
BANK, N.A.

(formerly known as JPMORGAN CHASE BANK and as

THE CHASE MANHATTAN BANK),

as Administrative Agent, Syndication Agent and Collateral Agent


 


and


 


BANK OF
AMERICA, N.A.,

as Documentation Agent


 










 


J.P. MORGAN
SECURITIES INC. and

BANC OF AMERICA SECURITIES LLC

as Co-Lead Arrangers

and Joint Book Managers




 





 





















 


TABLE
OF CONTENTS


 


	
  ARTICLE 1

  	
   

  
	
  DEFINITIONS

  	
   

  
	
   

  	
   

  
	
  SECTION 1.01. 

  	
  Defined Terms

  	
   

  
	
  SECTION 1.02. 

  	
  Classification of Loans and Borrowings

  	
   

  
	
  SECTION 1.03. 

  	
  Terms Generally

  	
   

  
	
  SECTION 1.04. 

  	
  Accounting Terms; GAAP

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  ARTICLE 2

  	
   

  
	
  THE CREDITS

  	
   

  
	
   

  	
   

  
	
  SECTION 2.01. 

  	
  Commitments

  	
   

  
	
  SECTION 2.02. 

  	
  Loans and Borrowings

  	
   

  
	
  SECTION 2.03. 

  	
  Requests for Borrowings

  	
   

  
	
  SECTION 2.04. 

  	
  Letters of Credit

  	
   

  
	
  SECTION 2.05. 

  	
  Funding of Borrowings

  	
   

  
	
  SECTION 2.06. 

  	
  Interest Elections

  	
   

  
	
  SECTION 2.07. 

  	
  Termination and Reduction of Commitments

  	
   

  
	
  SECTION 2.08. 

  	
  Repayment of Loans; Evidence of Debt

  	
   

  
	
  SECTION 2.09. 

  	
  [intentionally
  deleted]

  	
   

  
	
  SECTION 2.10. 

  	
  Prepayment of Loans

  	
   

  
	
  SECTION 2.11. 

  	
  Fees

  	
   

  
	
  SECTION 2.12. 

  	
  Interest

  	
   

  
	
  SECTION 2.13. 

  	
  Alternate Rate of Interest

  	
   

  
	
  SECTION 2.14. 

  	
  Increased Costs

  	
   

  
	
  SECTION 2.15. 

  	
  Break Funding Payments

  	
   

  
	
  SECTION 2.16. 

  	
  Taxes

  	
   

  
	
  SECTION 2.17. 

  	
  Payments Generally; Pro Rata Treatment;
  Sharing of Set-Offs

  	
   

  
	
  SECTION 2.18. 

  	
  Mitigation Obligations; Replacement of
  Lenders

  	
   

  
	
  SECTION 2.19. 

  	
  Termination of Designation of Eligible
  Subsidiary as a Borrower

  	
   

  
	
   

  	
   

  
	
  ARTICLE 3

  	
   

  
	
  REPRESENTATIONS AND WARRANTIES OF THE
  COMPANY

  	
   

  
	
   

  	
   

  
	
  SECTION 3.01. 

  	
  Organization; Powers

  	
   

  
	
  SECTION 3.02. 

  	
  Authorization; Enforceability

  	
   

  
				



 





















 


	
  SECTION 3.03. 

  	
  Governmental Approvals; No Conflicts

  	
   

  
	
  SECTION 3.04. 

  	
  Financial Condition; No Material Adverse
  Change

  	
   

  
	
  SECTION 3.05. 

  	
  Properties

  	
   

  
	
  SECTION 3.06. 

  	
  Litigation and Environmental Matters

  	
   

  
	
  SECTION 3.07. 

  	
  Compliance with Laws and Agreements

  	
   

  
	
  SECTION 3.08. 

  	
  Investment and Holding Company Status

  	
   

  
	
  SECTION 3.09. 

  	
  Taxes

  	
   

  
	
  SECTION 3.10. 

  	
  ERISA

  	
   

  
	
  SECTION 3.11. 

  	
  Disclosure

  	
   

  
	
  SECTION 3.12. 

  	
  Subsidiaries

  	
   

  
	
  SECTION 3.13. 

  	
  Insurance

  	
   

  
	
  SECTION 3.14. 

  	
  Labor Matters

  	
   

  
	
  SECTION 3.15. 

  	
  Solvency

  	
   

  
	
  SECTION 3.16. 

  	
  Regulations U and X

  	
   

  
	
  SECTION 3.17. 

  	
  No Burdensome Restrictions

  	
   

  
	
  SECTION 3.18. 

  	
  Security Documents

  	
   

  
	
   

  	
   

  
	
  ARTICLE 4

  	
   

  
	
  CONDITIONS

  	
   

  
	
   

  	
   

  
	
  SECTION 4.01. 

  	
  Effectiveness

  	
   

  
	
  SECTION 4.02. 

  	
  Each Credit Event

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
   

  
	
  AFFIRMATIVE COVENANTS

  	
   

  
	
   

  	
   

  
	
  SECTION 5.01. 

  	
  Financial Statements and Other Information

  	
   

  
	
  SECTION 5.02. 

  	
  Notices of Material Events

  	
   

  
	
  SECTION 5.03. 

  	
  Information Regarding Collateral

  	
   

  
	
  SECTION 5.04. 

  	
  Existence; Conduct of Business

  	
   

  
	
  SECTION 5.05. 

  	
  Payment of Obligations

  	
   

  
	
  SECTION 5.06. 

  	
  Maintenance of Properties

  	
   

  
	
  SECTION 5.07. 

  	
  Insurance

  	
   

  
	
  SECTION 5.08. 

  	
  Casualty and Condemnation

  	
   

  
	
  SECTION 5.09. 

  	
  Books and Records; Inspection and Audit Rights

  	
   

  
	
  SECTION 5.10. 

  	
  Compliance with Laws; Material Contracts

  	
   

  
	
  SECTION 5.11. 

  	
  Use of Proceeds and Letters of Credit

  	
   

  
	
  SECTION 5.12. 

  	
  Additional Subsidiaries

  	
   

  
	
  SECTION 5.13. 

  	
  Further Assurances

  	
   

  
	
  SECTION 5.14. 

  	
  Landlord and Warehouseman Waivers

  	
   

  



 


ii





















 


	
  ARTICLE 6

  	
   

  
	
  NEGATIVE COVENANTS

  	
   

  
	
   

  	
   

  
	
  SECTION 6.01. 

  	
  Indebtedness; Certain Equity Securities

  	
   

  
	
  SECTION 6.02. 

  	
  Liens

  	
   

  
	
  SECTION 6.03. 

  	
  Fundamental Changes

  	
   

  
	
  SECTION 6.04. 

  	
  Investments, Loans, Advances, Guarantees
  and Acquisitions

  	
   

  
	
  SECTION 6.05. 

  	
  Asset Sales

  	
   

  
	
  SECTION 6.06. 

  	
  Hedging Agreements

  	
   

  
	
  SECTION 6.07. 

  	
  Restricted Payments; Certain Payments of
  Indebtedness; Synthetic Purchase Agreements

  	
   

  
	
  SECTION 6.08. 

  	
  Transactions with Affiliates

  	
   

  
	
  SECTION 6.09. 

  	
  Restrictive Agreements

  	
   

  
	
  SECTION 6.10. 

  	
  Amendment of Material Documents

  	
   

  
	
  SECTION 6.11. 

  	
  Accounting Changes

  	
   

  
	
  SECTION 6.12. 

  	
  Sale and Leaseback

  	
   

  
	
  SECTION 6.13. 

  	
  Bank Accounts

  	
   

  
	
  SECTION 6.14. 

  	
  Capital Expenditures

  	
   

  
	
  SECTION 6.15. 

  	
  Leverage Ratio

  	
   

  
	
  SECTION 6.16. 

  	
  Interest Coverage Ratio

  	
   

  
	
   

  	
   

  
	
  ARTICLE 7

  	
   

  
	
  EVENTS
  OF DEFAULT

  	
   

  
	
   

  	
   

  
	
  ARTICLE 8

  	
   

  
	
  THE AGENT

  	
   

  
	
   

  	
   

  
	
  ARTICLE 9

  	
   

  
	
  REPRESENTATIONS AND WARRANTIES OF ELIGIBLE
  SUBSIDIARIES

  	
   

  
	
   

  	
   

  
	
  SECTION
  9.01. 

  	
  Organization; Power

  	
   

  
	
  SECTION 9.02. 

  	
  Authorization; Enforceability; Contravention

  	
   

  
	
   

  	
   

  
	
  ARTICLE 10

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  
	
  SECTION 10.01. 

  	
  Notices

  	
   

  
	
  SECTION 10.02. 

  	
  Waivers; Amendments

  	
   

  
	
  SECTION 10.03. 

  	
  Expenses; Indemnity; Damage Waiver

  	
   

  
	
  SECTION 10.04. 

  	
  Successors and Assigns

  	
   

  
					



 


iii





















 


	
  SECTION 10.05. 

  	
  Survival

  	
   

  
	
  SECTION 10.06. 

  	
  Counterparts; Integration

  	
   

  
	
  SECTION 10.07. 

  	
  Severability

  	
   

  
	
  SECTION 10.08. 

  	
  Right of Setoff

  	
   

  
	
  SECTION 10.09. 

  	
  Governing Law; Jurisdiction; Consent to
  Service of Process

  	
   

  
	
  SECTION 10.10. 

  	
  WAIVER OF JURY TRIAL

  	
   

  
	
  SECTION 10.11. 

  	
  Headings

  	
   

  
	
  SECTION 10.12. 

  	
  Confidentiality

  	
   

  
	
  SECTION 10.13. 

  	
  Interest Rate Limitation

  	
   

  
	
  SECTION 10.14. 

  	
  USA PATRIOT Act

  	
   

  



 


iv





















 


	
  SCHEDULES:

  
	
   

  
	
  Schedule 1.01 — Existing Letters of Credit

  
	
  Schedule 2.01 — Revolving Commitments

  
	
  Schedule 3.05 — Real Property

  
	
  Schedule 3.06 — Disclosed Matters

  
	
  Schedule 3.12 — Subsidiaries

  
	
  Schedule 6.01 — Existing Indebtedness

  
	
  Schedule 6.02 — Existing Liens

  
	
  Schedule 6.04 — Existing Investments

  
	
  Schedule 6.09 — Existing Restrictions

  
	
  Schedule 6.13 — Bank Accounts

  
	
   

  
	
  EXHIBITS:

  
	
   

  
	
  Exhibit A — Form of Assignment and
  Acceptance

  
	
  Exhibit B — Form of Opinion of Jones Day

  
	
  Exhibit C — Form of Election to Terminate

  
	
  Exhibit D — Form of Collateral Agreement

  



 





















 


CREDIT AGREEMENT dated as of
November 12, 1999 and amended and restated as of November 23, 2004 among
GEORGIA GULF CORPORATION, the ELIGIBLE SUBSIDIARIES referred to herein, the
LENDERS party hereto, and JPMORGAN CHASE BANK, N.A. (formerly known as JPMORGAN
CHASE BANK and as THE CHASE MANHATTAN BANK), as Administrative Agent,
Syndication Agent and Collateral Agent.


 


WHEREAS, pursuant to the Credit
Agreement dated as of November 12, 1999 and amended and restated as of December
3, 2003, as further amended (the “Existing Credit Agreement”), among Georgia
Gulf Corporation, the Eligible Subsidiaries referred to therein, the lenders
party thereto (the “Existing Lenders”), the Existing Lenders agreed to extend credit
to Georgia Gulf Corporation and the Eligible Subsidiaries;


 


WHEREAS, Georgia Gulf
Corporation and the Eligible Subsidiaries have requested that the Existing
Credit Agreement be amended and restated as hereinafter provided; and


 


WHEREAS, it is the intent of
the parties hereto that this Agreement not constitute a novation of the
obligations and liabilities of Georgia Gulf Corporation and the Eligible
Subsidiaries existing under the Existing Credit Agreement or evidence repayment
of all or any of such obligations and liabilities (other than the Tranche D
Term Loans (as defined in the Existing Credit Agreement) being prepaid on the
2004 Amendment and Restatement Date (as hereafter defined)) and that this
Agreement amend and restate in its entirety the Existing Credit Agreement and
re-evidence such obligations and liabilities;


 


NOW, THEREFORE, the parties
hereto hereby agree that on the 2004 Amendment and Restatement Date, the
Existing Credit Agreement will be amended and restated in its entirety as
follows:


 


ARTICLE 1


DEFINITIONS


 


SECTION 1.01.  Defined
Terms.  As used in this Agreement,
the following terms have the meanings specified below:


 


“ABR”, when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.


 


1





















 


“Adjusted LIBO Rate” means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.


 


“Administrative Agent” means JPMorgan Chase Bank, N.A.
(formerly known as JPMorgan Chase Bank and as The Chase Manhattan Bank), in its
capacity as administrative agent for the Lenders hereunder.


 


“Administrative Questionnaire” means an Administrative
Questionnaire in a form supplied by the Administrative Agent.


 


“Affiliate” means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.


 


 “Agent”
means JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank and as
The Chase Manhattan Bank), in its capacities as Administrative Agent and
Collateral Agent, collectively, or in either of such capacities, as the context
may require.


 


“Alternate Base Rate” means, for any day, a rate per annum
equal to the greatest of (a) the Prime Rate in effect on such day and
(b) the Federal Funds Effective Rate in effect on such day plus 1⁄2 of
1%.  Any change in the Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.


 


“Applicable Percentage” means, with respect to any Lender, the
percentage of the total Revolving Commitments represented by such Lender’s
Revolving Commitment.  If the Revolving
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Revolving Commitments most recently in effect, giving
effect to any assignments.


 


“Applicable Rate” means, for any day (a) with respect to any
ABR Loan or Eurodollar Loan, the applicable rate per annum set forth below
under the caption “ABR Spread” or “Eurodollar Spread”, as the case may be,
based upon the Leverage Ratio as of the most recent determination date; and (b)
with respect to the commitment fees payable hereunder, the applicable rate per
annum set forth below under the caption “Commitment
Fee Rate”, based upon the Leverage Ratio as of the most recent
determination date:


 


2





















 


	
  Leverage Ratio

  	
   

  	
  ABR Spread

  	
   

  	
  Eurodollar

  Spread

  	
   

  	
  Commitment

  Fee Rate

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 1 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  less than 1.0:1

  	
   

  	
  0

  	
  %

  	
  0.75

  	
  %

  	
  0.20

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 2 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  equal to or greater than 1.0:1 and less
  than 1:5:1

  	
   

  	
  0

  	
  %

  	
  1.00

  	
  %

  	
  0.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 3 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  equal to or greater than 1:5:1 and less
  than 2.5:1

  	
   

  	
  0.25

  	
  %

  	
  1.25

  	
  %

  	
  0.375

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 4 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  equal to or greater than 2.5:1 and less
  than or equal to 3.5:1

  	
   

  	
  0.50

  	
  %

  	
  1.50

  	
  %

  	
  0.375

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 5 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  greater than 3.5:1

  	
   

  	
  0.75

  	
  %

  	
  1.75

  	
  %

  	
  0.50

  	
  %

  



 


For purposes
of the foregoing, (i) the Leverage Ratio shall be determined as of the end of
each fiscal quarter of the Company’s fiscal year based upon the Company’s
consolidated financial statements delivered pursuant to Section 5.01(a) or (b)
and (ii) each change in the Applicable Rate resulting from a change in the
Leverage Ratio shall be effective during the period commencing on and including
the date of delivery to the Administrative Agent of such consolidated financial
statements indicating such change and ending on the date immediately preceding
the effective date of the next such change; provided
that, solely for purposes of calculating the Leverage Ratio to determine the
Applicable Rate, the term Indebtedness shall exclude Indebtedness pursuant to
any Permitted Receivables Transaction; and provided
further that the Leverage Ratio
shall be deemed to be in Category 5 (A) at any time that an Event of Default
has occurred and is continuing or (B) if the Company fails to deliver the
consolidated financial statements required to be delivered by it pursuant to
Section 5.01(a) or (b), during the period from the expiration of the time for
delivery thereof until such consolidated financial statements are delivered.


 


“Assignment and Acceptance” means an
assignment and acceptance entered into by a Lender and an assignee (with the
consent of any party whose consent is required by Section 10.04), and
accepted by the Administrative Agent, in the form of Exhibit A or any
other form approved by the Administrative Agent.


 


“Board” means the Board of Governors of the
Federal Reserve System of the United States of America.


 


3





















 


“Borrower” means the Company or any Eligible
Subsidiary, as the context may require, and their respective successors, and “Borrowers” means all of the foregoing.  When used in connection with a specific Loan,
Borrowing or Letter of Credit, the term “Borrower”
means the obligor (or proposed obligor) with respect thereto.  As the context may require, the terms “Borrower” and “Borrowers” include the Company in its capacity as guarantor of
the Obligations of the Eligible Subsidiaries.


 


“Borrowing” means Loans of the same Type to
the same Borrower, made, converted or continued on the same date and, in the
case of Eurodollar Loans, as to which a single Interest Period is in effect.


 


“Borrowing Request” means a request by any
Borrower for a Borrowing in accordance with Section 2.03.


 


“Business Day” means any day that is not a
Saturday, Sunday or other day on which commercial banks in New York City are
authorized or required by law to remain closed; provided that, when used in connection with a Eurodollar
Loan, the term “Business Day”
shall also exclude any day on which banks are not open for dealings in dollar
deposits in the London interbank market.


 


“Capital Expenditures” means, for any
period, (a) the additions to property, plant and equipment and other capital
expenditures of the Company and its consolidated Subsidiaries that are (or
would be) set forth in a consolidated statement of cash flows of the Company
for such period prepared in accordance with GAAP and (b) Capital Lease
Obligations incurred by the Company and its consolidated Subsidiaries during
such period, but excluding expenditures for the restoration or replacement of
fixed assets to the extent financed by (i) the proceeds of an insurance policy
maintained by the Company or any of its Subsidiaries covering casualty losses
with respect to real or personal property or improvements, (ii) the proceeds of
any condemnation proceeding with respect to the assets of the Company or any
Subsidiary, and (iii) any proceeds received as a payment under any indemnity
provision of the Asset Purchase Agreement.


 


“Capital Lease Obligations” of any Person
means 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 the amount of such obligations shall be the capitalized
amount thereof 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 Securities and Exchange Commission thereunder as in effect on the date
hereof) other than Permitted Holders, of shares representing more 


 


4





















 


than 30% of the aggregate ordinary voting
power represented by the issued and outstanding capital stock of the Company;
(b) occupation of a majority of the seats (other than vacant seats) on the
board of directors of the Company by Persons who were neither (i) nominated by
the board of directors of the Company nor (ii) appointed by directors so
nominated; (c) the acquisition of direct or indirect Control of the Company by
any Person or group other than Permitted Holders; or (d) the occurrence of a “Change
of Control” as defined in the Existing Notes or Existing Indentures or the
documents under which any extensions, renewals or replacements thereof are
issued.


 


“Change in Law” means (a) the adoption of
any law, rule or regulation after the date of this Agreement, (b) any change in
any law, rule or regulation or in the interpretation or application thereof by
any Governmental Authority after the date of this Agreement or (c) compliance
by any Lender or the Issuing Bank (or, for purposes of Section 2.14(b), by any
lending office of such Lender or by such Lender’s or the Issuing Bank’s holding
company, if any) with any request, guideline or directive (whether or not
having the force of law) of any Governmental Authority made or issued after the
date of this Agreement.


 


“Code” means the Internal Revenue Code of
1986, as amended from time to time.


 


“Collateral” means any and all “Collateral”, as defined in any applicable
Security Document.


 


“Collateral Agent” means JPMorgan Chase
Bank, N.A. (formerly known as JPMorgan Chase Bank and as The Chase Manhattan
Bank), in its capacity as collateral agent for the Secured Parties (as defined
in the Collateral Agreement) in connection with the Collateral Agreement.


 


“Collateral Agreement” means the Guarantee
and Collateral Agreement among the Company, the Eligible Subsidiaries, the
other Subsidiary Loan Parties and the Administrative Agent, substantially in
the form of Exhibit D.


 


“Collateral and Guarantee Requirement” means
the requirement that:


 


(a)       the Collateral Agent
shall have received from each Loan Party either (i) a counterpart of the
Collateral Agreement duly executed and delivered on behalf of such Loan Party
or (ii) in the case of any Person that becomes a Loan Party after the Effective
Date, a supplement to the Collateral Agreement, in the form specified therein,
duly executed and delivered on behalf of such Loan Party;


 


(b)       all outstanding Equity
Interests of each Eligible Subsidiary and each other Subsidiary owned by or on
behalf of any Loan Party shall have been pledged pursuant to the Collateral
Agreement (except that the Loan Parties shall not be required


 


5





















 


to pledge more than 65% of the outstanding
voting Equity Interests of any Foreign Subsidiary that is not a Loan Party
unless the Required Lenders have requested that it do so and the Company
reasonably determines that it will not suffer any materially adverse tax
consequences as a result of such pledge) and the Collateral Agent shall have
received certificates or other instruments representing all such Equity
Interests, together with stock powers, or other instruments of transfer with
respect thereto, endorsed in blank;


 


(c)       all Indebtedness of the
Company and each Subsidiary that is owing to any Loan Party shall be evidenced
by a promissory note and shall have been pledged pursuant to the Collateral
Agreement and the Collateral Agent shall have received all such promissory
notes, together with instruments of transfer with respect thereto endorsed in
blank;


 


(d)       all documents and
instruments, including Uniform Commercial Code financing statements, required
by law or reasonably requested by the Collateral Agent to be filed, registered
or recorded to create the Liens intended to be created by the Collateral
Agreement and perfect such Liens to the extent required by, and with the
priority required by, the Collateral Agreement, shall have been filed,
registered or recorded or delivered to the Collateral Agent for filing,
registration or recording;


 


(e)       the Collateral Agent
shall have received (i) counterparts of a Mortgage with respect to each
Mortgaged Property duly executed and delivered by the record owner of such
Mortgaged Property, (ii) a policy or policies of title insurance issued by a
nationally recognized title insurance company insuring the Lien of each such
Mortgage as a valid first Lien on the Mortgaged Property described therein,
free of any other Liens except as expressly permitted by Section 6.02,
together with such endorsements, coinsurance and reinsurance as the
Administrative Agent or the Required Lenders may reasonably request, and (iii)
such surveys, abstracts, appraisals, legal opinions and other documents as the
Administrative Agent or the Required Lenders may reasonably request with
respect to any such Mortgage or Mortgaged Property; and


 


(f)        each Loan Party shall
have obtained all consents and approvals required to be obtained by it in
connection with the execution and delivery of all Security Documents to which
it is a party, the performance of its obligations thereunder and the granting
by it of the Liens thereunder.


 


“Company” means Georgia
Gulf Corporation, a Delaware corporation.


 


“Consolidated Cash Interest Expense”
means, for any period, the excess of (a) the sum of (i) the interest expense
(including imputed interest expense in respect of Capital Lease Obligations) of
the Company and the Subsidiaries for such period, determined on a consolidated
basis, (ii) any interest accrued during such period in respect of Indebtedness
of the Company or any Subsidiary that is required to be


 


6





















 


capitalized rather than included in
consolidated interest expense for such period in accordance with GAAP, plus
(iii) any cash payments (other than fees and expenses paid in connection with
the closing under this Agreement and any premiums paid in connection with the
redemption of the Existing Notes) made during such period in respect of
obligations referred to in clause (b)(ii) below that were amortized or accrued
in a previous period, minus (b) the sum of (i) to the extent included in such
consolidated interest expense for such period, non-cash amounts
attributable to amortization of financing costs paid in a previous period, plus
(ii) to the extent included in such consolidated interest expense for such
period, non-cash amounts attributable to amortization of debt discounts
or accrued interest payable in kind for such period.  For purposes of this definition, “interest”
shall include yield, discount or other similar financing costs pursuant to any
Permitted Receivables Transaction.


 


“Consolidated  EBITDA” means, for any period, the sum of:


 


(a)     consolidated net income of
the Company and its consolidated Subsidiaries for such period (exclusive
of (x) the effect of any extraordinary gain or loss in accordance with GAAP and
(y) the income of any Person (other than the Company) in which any other Person
(other than the Company or any Subsidiary or any director holding qualifying
shares in compliance with applicable law) owns an Equity Interest, except to
the extent of the amount of dividends or other distributions actually paid to
the Company or any Subsidiary during such period, and inclusive of the
income or loss of any Person accrued prior to the date it becomes a Subsidiary
or is merged into or consolidated with the Company or any Subsidiary or the
date that such Person’s assets are acquired by the Company or any Subsidiary), plus


 


(b)     to the extent deducted in
determining such consolidated net income, the aggregate amount of (i) interest
expense, (ii) income tax expense and (iii) depreciation and amortization
(including without limitation amortization of debt issuance costs) and other
similar non-cash charges.


 


For purposes of this definition, “interest” shall include yield,
discount or other similar financing costs pursuant to any Permitted Receivables
Transaction.


 


“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.


 


“Default” means any event
or condition which constitutes an Event of Default or which upon notice, lapse
of time or both would, unless cured or waived, become an Event of Default.


 


7





















 


“Disclosed Matters” means
the actions, suits and proceedings disclosed in Schedule 3.06.


 


“dollars” or “$” refers to lawful money of the United
States of America.


 


“Effective Date” means
November 12, 1999.


 


“Election to Terminate”
means an Election to Terminate substantially in the form of Exhibit C.


 


“Eligible  Subsidiary” means any of Vinyls, Plastics
and GG Lake Charles as to which an Election to Terminate shall not have been
delivered to the Administrative Agent.


 


“Environmental Laws” means
all laws, rules, regulations, codes, ordinances, orders, decrees, judgments,
injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management, release or
threatened release of any Hazardous Material or to health and safety matters.


 


“Environmental Liability”
means any liability, contingent or otherwise (including any liability for
damages, costs of environmental remediation, fines, penalties or indemnities),
of the Company or any Subsidiary directly or indirectly resulting from or based
upon (a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release
or threatened release of any Hazardous Materials into the environment or (e)
any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.


 


“Equity  Interests” means shares of capital stock,
partnership interests, membership interests in a limited liability company,
beneficial interests in a trust or other equity interests in a Person.


 


“ERISA” means the 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, together with the
Company, is treated as a single employer under Section 414(b) or (c) of
the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the
Code, is treated as a single employer under Section 414 of the Code.


 


“ERISA Event” means
(a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an


 


8





















 


event for which the 30-day notice
period is waived); (b) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined
in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by the
Company or any of its ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Plan; (e) the receipt by the
Company or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (f) the incurrence by the Company or any of its
ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Company or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Company or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.


 


“Eurodollar”, when used in
reference to any Loan or Borrowing, refers to whether such Loan, or the Loans
comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.


 


“Event of Default” has the
meaning assigned to such term in Article 7.


 


“Exchange Act” means the
Securities Exchange Act of 1934, as amended.


 


“Excess Cash Flow” means,
for any fiscal year, the sum (without duplication) of:


 


(a)     Consolidated EBITDA for
such period; plus


 


(b)     cash interest income and
extraordinary cash income of the Company and its consolidated Subsidiaries (to
the extent not included in Consolidated EBITDA); minus


 


(c)  Capital Expenditures for
such period (except to the extent attributable to the incurrence of Capital
Lease Obligations or otherwise financed by incurring Long-Term Indebtedness); minus


 


(d)  cash interest expense and
extraordinary cash expense of the Company and its consolidated Subsidiaries for
such period (to the extent included in Consolidated EBITDA); minus


 


(e)  cash payments with respect to taxes made during such period; minus


 


(f)  payments made pursuant to
Section 6.07(a)(ii) or (iii).


 


9





















 


“Excluded Taxes” means,
with respect to the Administrative Agent, any Lender, the Issuing Bank or any
other recipient of any payment to be made by or on account of any obligation of
any Borrower hereunder, (a) income or franchise taxes imposed on (or measured
by) its net income by the United States of America, or by the jurisdiction
under the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable
lending office is located, (b) any branch profits taxes imposed by the United
States of America or any similar tax imposed by any other jurisdiction
described in clause (a) above and (c) in the case of a Foreign Lender (other
than an assignee pursuant to a request by the Company under Section 2.18(b)),
any withholding tax that (i) is in effect and would apply to amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office), except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from any Borrower with respect to any withholding tax pursuant to
Section 2.16(a), or (ii) is attributable to such Foreign Lender’s failure to comply
with Section 2.16(e).


 


“Existing Credit Agreement”
has the meaning set forth in the first recital of this Agreement.


 


“Existing  Indentures” means (i) the Indenture dated
as of November 15, 1995 between the Company and LaSalle Bank National Association
(formerly known as LaSalle National Bank), as Trustee, as supplemented by the
First Supplemental Indenture dated as of November 12, 1999 between the Company
and LaSalle Bank National Association, as Trustee, and the Second Supplemental
Indenture dated as of November 12, 1999 between Vinyls (as successor company to
the Company) and LaSalle Bank National Association, as Trustee and (ii) the
Indenture dated as of December 3, 2003 between the Company and SunTrust Bank,
as Trustee.


 


“Existing Letters of Credit”
means the Letters of Credit listed in Schedule 1.01.


 


“Existing  Notes” means the 75/8% Notes due 2005 and the 71/8% Senior Notes due December 15, 2013 issued pursuant to
the Existing Indentures.


 


“Federal Funds Effective Rate”
means, for any day, the weighted average (rounded upwards, if necessary, to the
next 1/100 of 1%) of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a
Business Day, the average (rounded upwards, if necessary, to the next 1/100 of
1%) of the quotations for such day for such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.


 


10





















 


“Financial Officer” means
the chief financial officer, principal accounting officer, treasurer or
controller of the Company.


 


“Financing Transactions”
means the execution, delivery and performance by each Loan Party of the Loan
Documents to which it is to be a party, the borrowing of Loans, the use of the
proceeds thereof and the issuance of Letters of Credit hereunder.


 


“Foreign Lender” means any
Lender that is organized under the laws of a jurisdiction other than that in
which the Company is located.  For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.


 


“Foreign Subsidiary” means
any Subsidiary that is organized under the laws of a jurisdiction other than
the United States of America or any State thereof or the District of Columbia.


 


“GAAP” means generally
accepted accounting principles in the United States of America.


 


“Gallman Indebtedness”
means all liabilities and obligations of the Company and Vinyls in respect of
$17,000,000 in aggregate original principal amount of industrial development
revenue bonds due May 1, 2009 issued by the Mississippi Business Finance
Corporation, including, without limitation, reimbursement obligations and
obligations in respect of letters of credit issued in connection therewith,
which liabilities and obligations of the Company and Vinyls are secured only by
Vinyls’ existing and future real and personal property located at its Gallman,
Mississippi facility.


 


“GG Lake Charles” means
Georgia Gulf Lake Charles, LLC, a Delaware limited liability company and a
wholly owned Subsidiary of the Company.


 


“GGRC  Corp.” means GGRC Corp., a Delaware
corporation and wholly owned special purpose Subsidiary of the Company.


 


“Governmental Authority”
means the government of the United States of America, any other nation or any
political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.


 


“Guarantee” of or by any
Person (the “guarantor”) means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the “primary obligor”)
in any manner, whether directly or indirectly, and including any obligation of


 


11





















 


the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation or to purchase (or to advance
or supply funds for the purchase of) any security for the payment thereof,
(b) to purchase or lease property, securities or services for the purpose
of assuring the owner of such Indebtedness or other obligation of the payment
thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or (d)
as an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.


 


“Hazardous Materials”  means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.


 


“Hedging Agreement” means
any interest rate protection agreement, foreign currency exchange agreement,
commodity price protection agreement or other interest or currency exchange
rate or commodity price hedging arrangement.


 


“Incentive  Equity  Plan”
means any of (i) the Company’s 1998 Incentive Equity Plan, (ii) the Company’s
Amended and Restated 2002 Equity and Performance Incentive Plan and (iii) any
substantially similar incentive equity plan adopted from time to time by the
Company or any of its Subsidiaries, in each case as the same shall be amended,
supplemented or otherwise modified and in effect from time to time.


 


“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
acquired by such Person, (e) all obligations of such Person in respect of
the deferred purchase price of property or services (excluding current accounts
payable 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 Indebtedness secured
thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person,
(i) all obligations, contingent or otherwise, of such Person as an account
party in respect of letters of credit and letters of guaranty, (j) all
obligations, contingent or otherwise, of such Person in respect of bankers’
acceptances, (k) all Equity Interests of such Person which are subject to
redemption otherwise than at


 


12





















 


the sole option of such Person and (l) to the
extent not otherwise included, indebtedness or other similar obligations
(including, if applicable, net investment amounts) pursuant to any Permitted
Receivables Transaction.  The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person’s ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.


 


“Indemnified Taxes” means
Taxes other than Excluded Taxes.


 


“Information Memorandum”
means the Confidential Information Memorandum dated October, 2004 relating to
the Company and the Transactions.


 


“Interest Election Request”
means a request by the relevant Borrower to convert or continue a Borrowing in
accordance with Section 2.06.


 


“Interest Payment Date”
means (a) with respect to any ABR Loan, the last day of each March, June,
September and December, and (b) with respect to any Eurodollar Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Eurodollar Borrowing with an Interest Period of more
than three months’ duration, each day prior to the last day of such Interest
Period that occurs at intervals of three months’ duration after the first day
of such Interest Period.


 


“Interest Period” means,
with respect to any Eurodollar Borrowing, the period commencing on the date of
such Borrowing and ending on the numerically corresponding day in the calendar
month that is one, two, three or six months thereafter (or twelve months
thereafter if, at the time of the relevant Borrowing, all Lenders participating
therein agree to make an Interest Period of such duration available), as the relevant
Borrower may elect, provided,
that (i) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day
and (ii) any Interest Period that commences on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period.  For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter
shall be the effective date of the most recent conversion or continuation of
such Borrowing.


 


“Issuing Bank” means
JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank and as The
Chase Manhattan Bank), in its capacity as the issuer of Letters of Credit hereunder,
and its successors in such capacity as provided in Section 2.04(i).  The Issuing Bank may, in its discretion,
arrange for one or more


 


13





















 


Letters of Credit to be issued by Affiliates
of the Issuing Bank, in which case the term “Issuing
Bank” shall include any such Affiliate with respect to Letters of
Credit issued by such Affiliate.


 


“LC Disbursement” means a
payment made by the Issuing Bank pursuant to a Letter of Credit.


 


“LC Exposure” means, at any
time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of
Credit at such time plus (b) the aggregate amount of all LC Disbursements that
have not yet been reimbursed by or on behalf of the Borrowers at such time.  The LC Exposure of any Lender at any time
shall be its Applicable Percentage of the total LC Exposure at such time.


 


“Lenders” means the
Persons listed on Schedule 2.01 and any other Person that shall have
become a party hereto pursuant to an Assignment and Acceptance, other than any
such Person that ceases to be a party hereto pursuant to an Assignment and
Acceptance.


 


“Letter of Credit” means
any letter of credit issued pursuant to this Agreement (including, without
limitation, the Existing Letters of Credit).


 


“Leverage Ratio” means, on
the last day of any fiscal quarter or fiscal year of the Company, the ratio of
Indebtedness as of such date to Consolidated EBITDA for the period of four
consecutive fiscal quarters of the Company ended on such date.


 


“LIBO Rate” means, with
respect to any Eurodollar Borrowing for any Interest Period, the rate appearing
on Page 3750 of the Dow Jones Market Service (or on any successor or substitute
page of such Service, or any successor to or substitute for such Service,
providing rate quotations comparable to those currently provided on such page
of such Service, as determined by the Administrative Agent from time to time
for purposes of providing quotations of interest rates applicable to dollar
deposits in the London interbank market) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, as
the rate for dollar deposits with a maturity comparable to such Interest
Period.  In the event that such rate is
not available at such time for any reason, then the “LIBO Rate” with respect to such Eurodollar Borrowing for such
Interest Period shall be the rate at which dollar deposits of $5,000,000 and
for a maturity comparable to such Interest Period are offered by the principal
London office of the Administrative Agent in immediately available funds in the
London interbank market at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period.


 


“Lien” means, with respect
to any asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or of such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital


 


14





















 


lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.


 


“Loan Documents” means
this Agreement, any promissory note issued by a Borrower pursuant to Section
2.08(e) hereof, the Letters of Credit, the Collateral Agreement and the other
Security Documents.


 


“Loan Parties” means the
Borrowers and the other Subsidiary Loan Parties, and “Loan  Party”
means any one of them as the context may require.


 


“Loans” means the loans
made by the Lenders to the Borrowers pursuant to this Agreement.


 


“Long-Term Indebtedness”
means any Indebtedness that, in accordance with GAAP, constitutes (or, when
incurred, constituted) a long-term liability.


 


“Material Adverse Change”
means any event, development or circumstance that has had or could reasonably
be expected to have material adverse effect on (a) the business, assets,
operations, prospects or condition, financial or otherwise, of the Company and
the Subsidiaries taken as a whole, (b) the validity or enforceability of
any Loan Document or (c) the rights or remedies of, or benefits available
to, the Administrative Agent or the Lenders under any Loan Document.


 


“Material Indebtedness”
means Indebtedness (other than the Loans and Letters of Credit), or obligations
in respect of one or more Hedging Agreements, of any one or more of the Company
and its Subsidiaries in an aggregate principal amount exceeding
$10,000,000.  For purposes of determining
Material Indebtedness, the “principal amount” of the obligations of the Company
or any Subsidiary in respect of any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that the
Company or such Subsidiary would be required to pay if such Hedging Agreement
were terminated at such time.


 


“Moody’s” means Moody’s
Investors Service, Inc.


 


“Mortgage” means a
mortgage, deed of trust, assignment of leases and rents, leasehold mortgage or
other security document granting a Lien on any Mortgaged Property to secure the
Obligations.  Each Mortgage shall be
satisfactory in form and substance to the Administrative Agent.


 


“Mortgaged Property”
means, initially, each parcel of real property and the improvements thereto
owned by a Loan Party and identified on Schedule 3.05, and


 


15





















 


includes each other parcel of real property
and improvements thereto with respect to which a Mortgage is granted pursuant
to Section 5.12 or 5.13.


 


“Multiemployer
Plan” means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.


 


“Net Proceeds” means, with
respect to any event, (a) the cash proceeds received in respect of such event
including (i) any cash received in respect of any non-cash proceeds, but
only as and when received, (ii) in the case of a casualty, insurance proceeds,
and (iii) in the case of a condemnation or similar event, condemnation awards
and similar payments, net of (b) the sum of (i) all reasonable fees and out-of-pocket
expenses paid by the Company and the Subsidiaries to third parties (other than
Affiliates) in connection with such event, (ii) in the case of a sale or other
disposition of an asset (including pursuant to a casualty or condemnation), the
amount of all payments required to be made by the Company and the Subsidiaries
as a result of such event to repay Indebtedness (other than Loans) secured by
such asset or otherwise subject to mandatory prepayment as a result of such
event, and (iii) the amount of all taxes paid (or reasonably estimated to be
payable) by the Company and the Subsidiaries, and the amount of any reserves
established by the Company and the Subsidiaries to fund contingent liabilities
reasonably estimated to be payable, in each case during the year that such
event occurred or the next succeeding year and that are directly attributable
to such event (as determined reasonably and in good faith by the chief financial
officer of the Company).


 


“Obligations” has the
meaning assigned to such term in the Collateral Agreement.


 


“Other Taxes” means any
and all present or future recording, stamp, documentary excise, transfer,
sales, property or similar taxes, charges or levies arising from any payment
made under any Loan Document or from the execution, delivery or enforcement of,
or otherwise with respect to, any Loan Document.


 


“PBGC” means the Pension
Benefit Guaranty Corporation referred to and defined in ERISA and any successor
entity performing similar functions.


 


“Perfection Certificate”
has the meaning set forth in the Collateral Agreement.


 


“Permitted  Acquisition” has the meaning set forth in
Section 6.04.


 


“Permitted Encumbrances”
means:


 


(a)     Liens imposed by law for
taxes that are not yet due or are being contested in compliance with
Section 5.05;


 


16





















 


(b)     carriers’, warehousemen’s,
mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law,
arising in the ordinary course of business and securing obligations that are
not overdue by more than 30 days or are being contested in compliance with
Section 5.05;


 


(c)     pledges and deposits made
in the ordinary course of business in compliance with workers’ compensation,
unemployment insurance and other social security laws or regulations;


 


(d)     deposits to secure the
performance of bids, trade contracts, leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature, in each
case in the ordinary course of business;


 


(e)     judgment liens in respect
of judgments that do not constitute an Event of Default under clause (k) of
Article 7;


 


(f)      easements, zoning
restrictions, rights-of-way and similar encumbrances on real property imposed
by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of business of the
Company or any Subsidiary; and


 


(g)     with respect to each
Mortgaged Property, those Liens and other matters described on Exhibit B to the
Mortgage for such Mortgaged Property;


 


provided that the
term “Permitted Encumbrances”
shall not include any Lien securing Indebtedness.


 


“Permitted Holders” means
all members of the board of directors of the Company on the date hereof and all
officers of the Company on the date hereof.


 


“Permitted Investments”
means:


 


(a)     direct obligations of, or
obligations the principal of and interest on which are unconditionally
guaranteed by, the United States of America (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the United
States of America), in each case maturing within one year from the date of
acquisition thereof;


 


(b)     investments in commercial
paper maturing within 90 days from the date of acquisition thereof and having,
at such date of acquisition, a rating of not less than A-2 from S&P and P-2
from Moody’s (or the equivalent rating);


 


17





















 


(c)     investments in
certificates of deposit, banker’s acceptances and time deposits maturing within
90 days from the date of acquisition thereof issued or guaranteed by or placed
with, and money market deposit accounts issued or offered by, any domestic
office of any Lender or any other commercial bank organized under the laws of
the United States of America or any State thereof which has a combined capital
and surplus and undivided profits of not less than $500,000,000; and


 


(d)     fully collateralized
repurchase agreements with a term of not more than 30 days for securities
described in clause (a) above and entered into with a financial
institution satisfying the criteria described in clause (c) above.


 


“Permitted  Joint  Venture”
has the meaning set forth in Section 6.05.


 


“Permitted  Joint  Venture
Dispositions” has the meaning set
forth in Section 6.05.


 


“Permitted  Receivables  Transaction” means a transaction or series of transactions in
which the Company or any Subsidiary sells or otherwise transfers an interest in
accounts receivable and assets incidental thereto to one or more third party
purchasers, or to a special purpose entity that borrows against such accounts
receivable or sells such accounts receivable to one or more third party
purchasers.


 


“Person” means any natural
person, corporation, limited liability company, trust, joint venture,
association, company, partnership, Governmental Authority or other entity.


 


“Plan” means any employee
pension benefit plan (other than a Multiemployer Plan) subject to the
provisions of Title IV of ERISA or Section 412 of the Code or
Section 302 of ERISA, and in respect of which the Company or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069
of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.


 


“Plastics” means North
America Plastics, LLC, a Delaware limited liability company and a wholly owned
Subsidiary of the Company.


 


“Praxair PIK Note” means
the 6.526% payable-in-kind note, dated as of November 7, 1997, issued by the
Company to Praxair, Inc., a Delaware corporation, in an initial principal
amount of $7,440,000 (interest on and principal of which are payable in cash in
2012) and assumed by Vinyls pursuant to the Consent Agreement dated as of
November 12, 1999.


 


“Prime Rate” means the
rate of interest per annum publicly announced from time to time by JPMorgan
Chase Bank N.A. as its prime rate in effect at its principal


 


18





















 


office in New York City; each change in the
Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.


 


“Register” has the meaning
set forth in Section 10.04.


 


“Regulated Activity” means
any generation, treatment, storage, recycling, transportation or disposal of
any Hazardous Materials.


 


“Related Fund” means, with
respect to any Lender (or proposed assignee which becomes a Lender pursuant to
Section 10.04(b)) that is a fund that invests in bank loans, any other fund
that invests in bank loans and is advised or managed by the same investment
advisor as such Lender, or by an Affiliate of such Lender or investment
advisor.


 


“Related Parties” means,
with respect to any specified Person, such Person’s Affiliates and the
respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.


 


“Release” means any
discharge, emission or release, including a “Release” as defined in CERCLA at
42 U.S.C. Section 9601(22). The term “Released” shall have a corresponding
meaning.


 


“Repaid Subordinated Debt”
means the 103/8% Senior Subordinated Notes due 2007, which are no longer
outstanding.


 


“Required Lenders” means,
at any time, Lenders having Revolving Exposures and unused Revolving
Commitments representing at least 51% of the sum of the total Revolving
Exposures and unused Revolving Commitments at such time.


 


“Restricted Payment” means
any dividend or other distribution (whether in cash, securities or other
property) with respect to any shares of any class of capital stock of the
Company or any Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any such shares of capital stock of the Company or any Subsidiary or any
option, warrant or other right to acquire any such shares of capital stock of
the Company or any Subsidiary (including any payment in respect of Equity Interests
under a Synthetic Purchase Agreement).


 


“Revolving Availability Period”
means the period from and including the Effective Date to but excluding the
earlier of (x) the Revolving Maturity Date and (y) the date of termination of
the Revolving Commitments.


 


“Revolving Commitment”
means, with respect to each Lender, the commitment, if any, of such Lender to
make Loans and to acquire participations in


 


19





















 


Letters of Credit hereunder, expressed as an
amount representing the maximum aggregate amount of such Lender’s Revolving
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.07 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 10.04.  The initial amount of each Lender’s Revolving
Commitment is set forth on Schedule 2.01 under the heading “Revolving Commitment”, or in the Assignment
and Acceptance pursuant to which such Lender shall have assumed its Revolving
Commitment, as applicable.  The aggregate
amount of the Lenders’ Revolving Commitments as of the 2004 Amendment and
Restatement Date is $170,000,000.


 


“Revolving Exposure”
means, with respect to any Lender at any time, the sum of the outstanding principal
amount of such Lender’s Loans and its LC Exposure at such time.


 


“Revolving Maturity Date”
means November 23, 2009.


 


“Sale-Leaseback Transaction”
means any arrangement with any Person providing for the leasing by the Company
or any Subsidiary of any property that, or of any property similar to and used
for substantially the same purposes as any other property that, has been or is
to be sold, assigned, transferred or otherwise disposed of by the Company or
any of its Subsidiaries to such Person with the intention of entering into such
a lease.


 


“S&P” means Standard
& Poor’s.


 


“Security Documents” means
the Collateral Agreement, the Mortgages, the Collateral Agreement Supplements
(as defined in the Collateral Agreement), the Issuer Control Agreements (as
defined in the Collateral Agreement), the Securities Account Control Agreements
(as defined in the Collateral Agreement), the Intellectual Property Security
Agreements (as defined in the Collateral Agreement) and each other pledge
agreement, security agreement, mortgage or other instrument, agreement or other
instrument or document executed and delivered pursuant to the Loan Documents
(including, without limitation, Section 5.12 or 5.13) to secure any of the
Obligations.


 


“Statutory Reserve Rate”
means a fraction (expressed as a decimal), the numerator of which is the number
one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Board to which
the Administrative Agent is subject, with respect to the Adjusted LIBO Rate,
for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the
Board).  Such reserve percentages shall
include those imposed pursuant to such Regulation D.  Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of


 


20





















 


or credit for proration, exemptions or
offsets that may be available from time to time to any Lender under such
Regulation D or any comparable regulation. 
The Statutory Reserve Rate shall be adjusted automatically on and as of
the effective date of any change in any reserve percentage.


 


“subsidiary” means, with
respect to any Person (the “parent”)
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent’s consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held,
or (b) that is, as of such date, otherwise Controlled, by the parent or
one or more subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent.


 


“Subsidiary” means any
subsidiary of the Company.


 


“Subsidiary Loan Party”
means (a) each Eligible Subsidiary, (b) any other Subsidiary (other than GGRC
Corp.) that is not a Foreign Subsidiary and (c) any Foreign Subsidiary that the
Required Lenders have requested to become a party to the Collateral Agreement,
and “Subsidiary Loan Parties” means any two or more of them.


 


“Synthetic Purchase Agreement”
means any agreement pursuant to which the Company or a Subsidiary is or may
become obligated to make any payment (i) in connection with the purchase by any
third party of any Equity Interests or subordinated Indebtedness or (ii) the
amount of which is determined by reference to the price or value at any time of
any Equity Interests or subordinated Indebtedness; provided that no phantom stock or similar plan providing for
payments only to current or former directors, officers or employees of the
Company or the Subsidiaries (or to their heirs or estates) shall be deemed to
be a Synthetic Purchase Agreement.


 


“Taxes” means any and all
present or future taxes, levies, imposts, duties, deductions, charges or
withholdings imposed by any Governmental Authority.


 


“Transactions” means the
Financing Transactions and the prepayment on the 2004 Amendment and Restatement
Date of the Tranche D Term Loans (as defined in the Existing Credit Agreement).


 


“2004 Amendment and Restatement Date”
means the date on which the conditions specified in Section 4.01 are satisfied
(or waived in accordance with Section 10.02).


 


21























 


“Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined
by reference to the Adjusted LIBO Rate or the Alternate Base Rate.


 


“Vinyls”
means Georgia Gulf Chemicals & Vinyls, LLC, a Delaware limited liability
company and a wholly owned Subsidiary of the Company.


 


“Wachovia
Purchase Agreement” means the Amended and Restated Receivables
Purchase Agreement dated as of November 12, 2004, among GGRC Corp., as
Seller, the Company and Georgia Gulf Chemicals & Vinyls, LLC, as servicers,
Blue Ridge Asset Funding Corporation and Victory Receivables Corporation, as
Purchasers, The Bank of Tokyo-Mitsubishi, Ltd., New York Branch, as purchaser
agent, and Wachovia Bank, National Association, as purchaser agent and
Administrative Agent, as such agreement is amended from time to time.


 


“Withdrawal
Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.


 


SECTION 1.02.  Classification
of Loans and Borrowings.  For purposes of this
Agreement, Loans may be classified and referred to by Type (e.g., a “Eurodollar
Loan”).  Borrowings also may
be classified and referred to by Type (e.g.,
a “Eurodollar Borrowing”).


 


SECTION 1.03.  Terms
Generally.  The definitions of terms
herein shall apply equally to the singular and plural forms of the terms
defined.  Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms.  The words “include”, “includes”
and “including” shall be deemed to be followed by the phrase “without
limitation”.  The word “will” shall be
construed to have the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (c) the words “herein”, “hereof”
and “hereunder”, and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words “asset” and “property” shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.


 


22





















 


SECTION 1.04.  Accounting
Terms; GAAP.  Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided that, if the Company notifies the
Administrative Agent that the Company requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof in
GAAP or in the application thereof on the operation of such provision (or if
the Administrative Agent notifies the Company that the Required Lenders request
an amendment to any provision hereof for such purpose), regardless of whether
any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of
GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended
in accordance herewith.


 


 


ARTICLE 2


THE CREDITS


 


SECTION 2.01.  Commitments.   Subject to the terms and conditions set forth
herein, each Lender agrees to make Loans to the Borrowers from time to time
during the Revolving Availability Period in an aggregate principal amount that
will not result in such Lender’s Revolving Exposure exceeding such Lender’s
Revolving Commitment.  Within the
foregoing limits and subject to the terms and conditions set forth herein, any
Borrower may borrow, prepay and reborrow Loans.


 


SECTION 2.02.  Loans
and Borrowings.  (a) Each Loan shall be made
as part of a Borrowing consisting of Loans of the same Type made by the Lenders
ratably in accordance with their respective Revolving Commitments.  The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the
Revolving Commitments of the Lenders are several and no Lender shall be responsible
for any other Lender’s failure to make Loans as required.


 


(b)               Subject to Section 2.13, each
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
relevant Borrower may request in accordance herewith. Each Lender at its option
may make any Eurodollar Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided
that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement.


 


(c)                At the commencement of each Interest
Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than
$5,000,000.  At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of


 


23





















 


$500,000 and not less than $2,000,000; provided that an ABR Borrowing may be in
an aggregate amount that is equal to the entire unused balance of the total
Revolving Commitments or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.04(e). Borrowings of more than
one Type may be outstanding at the same time; provided
that there shall not at any time be more than a total of ten Eurodollar
Borrowings outstanding.


 


(d)               Notwithstanding any other provision of
this Agreement, the Borrower shall not be entitled to request, or to elect to
convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Revolving Maturity Date.


 


SECTION 2.03.  Requests
for Borrowings.  To request a Borrowing, the
relevant Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m.,
New York City time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 10:00
a.m., New York City time, on the date of the proposed Borrowing; provided that any such notice of an ABR
Borrowing to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.04(e) may be given not later than 12:00 noon, New York City
time, on the date of the proposed Borrowing. 
Each such telephonic Borrowing Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of
a written Borrowing Request in a form approved by the Administrative Agent and
signed by the relevant Borrower.  Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:


 


(i)                                     the aggregate
amount of such Borrowing;


 


(ii)                                  the date of such
Borrowing, which shall be a Business Day;


 


(iii)                               whether such Borrowing
is to be an ABR Borrowing or a Eurodollar Borrowing;


 


(iv)                              in the case of a
Eurodollar Borrowing, the initial Interest Period to be applicable thereto,
which shall be a period contemplated by the definition of the term “Interest
Period”; and


 


(v)                                 the location and
number of the Borrower’s account to which funds are to be disbursed, which
shall comply with the requirements of Section 2.05.


 


If no election as to the Type of Borrowing is
specified, then the requested Borrowing shall be a Eurodollar Borrowing with an
Interest Period of one month’s duration. 
If no Interest Period is specified with respect to any requested
Eurodollar Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month’s duration.


 


24





















 


Promptly following receipt of a Borrowing
Request in accordance with this Section, the Administrative Agent shall advise
each Lender of the details thereof and of the amount of such Lender’s Loan to
be made as part of the requested Borrowing.


 


SECTION 2.04.  Letters
of Credit.  (a) General. 
Subject to the terms and conditions set forth herein, any Borrower may
request the issuance of Letters of Credit for its own account, in a form
reasonably acceptable to the Administrative Agent and the Issuing Bank, at any
time and from time to time during the Revolving Availability Period.  In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by a Borrower to,
or entered into by a Borrower with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.


 


(b)               Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions.  To request the issuance of a Letter of Credit
(or the amendment, renewal or extension of an outstanding Letter of Credit),
the relevant Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the Issuing
Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance
of the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with paragraph (c)
of this Section), the amount of such Letter of Credit, the name and address of
the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit.  If requested by the Issuing Bank, the relevant
Borrower also shall submit a letter of credit application on the Issuing Bank’s
standard form in connection with any request for a Letter of Credit.  A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension
of each Letter of Credit the relevant Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the LC Exposure shall not exceed $30,000,000 and (ii) the
total Revolving Exposures shall not exceed the total Revolving Commitments.


 


(c)                Expiration
Date.  Each Letter of Credit
shall expire at or prior to the close of business on the earlier of
(i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, one year after
such renewal or extension) and (ii) the date that is five Business Days
prior to the Revolving Maturity Date.


 


(d)               Participations.  By the issuance of a Letter of Credit (or an amendment
to a Letter of Credit increasing the amount thereof) and without any further
action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby
grants to each Lender,


 


25





















 


and each Lender hereby acquires from the
Issuing Bank, a participation in such Letter of Credit equal to such Lender’s
Applicable Percentage of the aggregate amount available to be drawn under such
Letter of Credit.  In consideration and
in furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
the Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement
made by the Issuing Bank and not reimbursed by the Borrower on the date due as
provided in paragraph (e) of this Section, or of any reimbursement payment
required to be refunded to the Borrower for any reason.  Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Revolving Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction
whatsoever.


 


(e)                Reimbursement.  If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the relevant Borrower shall
reimburse such LC Disbursement by paying to the Administrative Agent an amount
equal to such LC Disbursement not later than 12:00 noon, New York City time, on
the date that such LC Disbursement is made, if the Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., New York City time, on such
date, or, if such notice has not been received by the Borrower prior to such
time on such date, then not later than 12:00 noon, New York City time, on (i)
the Business Day that the Borrower receives such notice, if such notice is
received prior to 10:00 a.m., New York City time, on the day of receipt, or
(ii) the Business Day immediately following the day that the Borrower receives
such notice, if such notice is not received prior to such time on the day of
receipt; provided that the
Borrower may, subject to the conditions to borrowing set forth herein, request
in accordance with Section 2.03 that such payment be financed with an ABR
Borrowing in an equivalent amount and, to the extent so financed, the Borrower’s
obligation to make such payment shall be discharged and replaced by the
resulting ABR Borrowing.  If the Borrower
fails to make such payment when due, the Administrative Agent shall notify each
Lender of the applicable LC Disbursement, the payment then due from the
Borrower in respect thereof and such Lender’s Applicable Percentage
thereof.  Promptly following receipt of
such notice, each Lender shall pay to the Administrative Agent its Applicable
Percentage of the payment then due from the Borrower, in the same manner as
provided in Section 2.05 with respect to Loans made by such Lender (and Section 2.05
shall apply, mutatis mutandis, to
the payment obligations of the Lenders), and the Administrative Agent shall promptly
pay to the Issuing Bank the amounts so received by it from the Lenders.  Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the
Issuing Bank or, to the extent that Lenders have made payments pursuant to this
paragraph to reimburse the Issuing Bank, then to such Lenders and the Issuing
Bank as their interests may appear.  Any
payment made by a Lender pursuant to this paragraph to reimburse


 


26





















 


the Issuing Bank for any LC Disbursement
(other than the funding of ABR Loans as contemplated above) shall not
constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.


 


(f)                  Obligations
Absolute.  Each Borrower’s
obligation to reimburse LC Disbursements as provided in paragraph (e) of
this Section shall be absolute, unconditional and irrevocable, and shall
be performed strictly in accordance with the terms of this Agreement under any
and all circumstances whatsoever and irrespective of (i) any lack of validity
or enforceability of any Letter of Credit or this Agreement, or any term or
provision therein, (ii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment by
the Issuing Bank under a Letter of Credit against presentation of a draft or
other document that does not comply with the terms of such Letter of Credit, or
(iv) any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of setoff
against, such Borrower’s obligations hereunder. 
Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor
any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of
Credit or any payment or failure to make any payment thereunder (irrespective
of any of the circumstances referred to in the preceding sentence), or any
error, omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of the Issuing Bank; provided
that the foregoing shall not be construed to excuse the Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by each
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by the Issuing Bank’s failure to exercise care when determining
whether drafts and other documents presented under a Letter of Credit comply with
the terms thereof.  The parties hereto
expressly agree that, in the absence of gross negligence or wilful misconduct
on the part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each
such determination.  In furtherance of
the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the Issuing Bank may, in its
sole discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.


 


27





















 


(g)               Disbursement
Procedures.  The Issuing Bank
shall, promptly following its receipt thereof, examine all documents purporting
to represent a demand for payment under a Letter of Credit.  The Issuing Bank shall promptly notify the
Administrative Agent and the relevant Borrower by telephone (confirmed by telecopy)
of such demand for payment and whether the Issuing Bank has made or will make
an LC Disbursement thereunder; provided
that any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse the Issuing Bank and the Lenders with
respect to any such LC Disbursement.


 


(h)               Interim
Interest.  If the Issuing Bank
shall make any LC Disbursement, then, unless the Borrower shall reimburse such
LC Disbursement in full on the date such LC Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower
reimburses such LC Disbursement, at the rate per annum then applicable to ABR
Loans; provided that, if the
Borrower fails to reimburse such LC Disbursement when due pursuant to
paragraph (e) of this Section, then Section 2.12(c) shall apply.  Interest accrued pursuant to this paragraph
shall be for the account of the Issuing Bank, except that interest accrued on
and after the date of payment by any Lender pursuant to paragraph (e) of this Section to
reimburse the Issuing Bank shall be for the account of such Lender to the
extent of such payment.


 


(i)                   Replacement
of the Issuing Bank.  The
Issuing Bank may be replaced at any time by written agreement among the
Company, the Administrative Agent, the replaced Issuing Bank and the successor
Issuing Bank.  The Administrative Agent
shall notify the Lenders of any such replacement of the Issuing Bank.  At the time any such replacement shall become
effective, the Company shall pay all unpaid fees accrued for the account of the
replaced Issuing Bank pursuant to Section 2.11(b).  From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of the Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the term “Issuing
Bank” shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require.  After the replacement of an
Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of an Issuing Bank
under this Agreement with respect to Letters of Credit issued by it prior to
such replacement, but shall not be required to issue additional Letters of
Credit.


 


(j)                   Cash
Collateralization.  If any
Event of Default shall occur and be continuing, on the Business Day that any
Borrower receives notice from the Administrative Agent or the Required Lenders
(or, if the maturity of the Loans has been accelerated, Lenders with LC
Exposure representing at least 51% of the total LC Exposure) demanding the
deposit of cash collateral pursuant to this paragraph, such Borrower shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash
equal to the


 


28





















 


LC Exposure as of such date plus any accrued
and unpaid interest thereon; provided
that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without
demand or other notice of any kind, upon the occurrence of any Event of Default
with respect to any Borrower described in clause (h) or (i) of Article 7.  Each such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrowers under this Agreement.  The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such
account.  Other than any interest earned
on the investment of such deposits, which investments shall be made at the
option and sole discretion of the Administrative Agent and at the Borrowers’
risk and expense, such deposits shall not bear interest.  Interest or profits, if any, on such
investments shall accumulate in such account. 
Moneys in such account shall be applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for the satisfaction
of the reimbursement obligations of the Borrowers for the LC Exposure at such
time or, if the maturity of the Loans has been accelerated (but subject to the
consent of Lenders with LC Exposure representing at least 51% of the total LC
Exposure), be applied to satisfy other obligations of the Borrowers under this
Agreement.  If any Borrower is required
to provide an amount of cash collateral hereunder as a result of the occurrence
of an Event of Default, such amount (to the extent not applied as aforesaid)
shall be returned to such Borrower promptly (and in any event within three
Business Days) after all Events of Default have been cured or waived.


 


SECTION 2.05.  Funding
of Borrowings.  (a) Each Lender shall make
each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders.  The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent in New York City and designated by the
Borrower in the applicable Borrowing Request; provided
that ABR Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.04(e) shall be remitted by the Administrative Agent
to the Issuing Bank.


 


(b)               Unless the Administrative Agent shall
have received notice from a Lender prior to the proposed date of any Borrowing
that such Lender will not make available to the Administrative Agent such
Lender’s share of such Borrowing, the Administrative Agent may assume that such
Lender has made such share available on such date in accordance with paragraph
(a) of this Section and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount with


 


29





















 


interest thereon, for each day from and
including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (i) in the case
of such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation or (ii) in the case of the Borrower, the
interest rate applicable to ABR Loans. 
If such Lender pays such amount to the Administrative Agent, then such
amount shall constitute such Lender’s Loan included in such Borrowing.


 


SECTION 2.06.  Interest
Elections.  (a) Each Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. 
Thereafter, the Borrower may elect to convert such Borrowing to a
different Type or to continue such Borrowing and, in the case of a Eurodollar
Borrowing, may elect Interest Periods therefor, all as provided in this
Section.  The Borrower may elect different
options with respect to different portions of the affected Borrowing, in which
case each such portion shall be allocated ratably among the Lenders holding the
Loans comprising such Borrowing, and the Loans comprising each such portion
shall be considered a separate Borrowing.


 


(b)               To make an election pursuant to this
Section, the relevant Borrower shall notify the Administrative Agent of such
election by telephone by the time that a Borrowing Request would be required
under Section 2.03 if the Borrower were requesting a Borrowing of the Type
resulting from such election to be made on the effective date of such
election.  Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
relevant Borrower.


 


(c)                Each telephonic and written Interest
Election Request shall specify the following information in compliance with Section 2.02
and paragraph (f) of this Section:


 


(i)                                     the Borrowing to
which such Interest Election Request applies and, if different options are
being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to
be specified pursuant to clauses (iii) and (iv) below shall be specified for
each resulting Borrowing);


 


(ii)                                  the effective date of
the election made pursuant to such Interest Election Request, which shall be a
Business Day;


 


(iii)                               whether the resulting
Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and


 


30





















 


(iv)                              if the resulting
Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable
thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.


 


If any such Interest Election Request
requests a Eurodollar Borrowing but does not specify an Interest Period, then
the Borrower shall be deemed to have selected an Interest Period of one month’s
duration.


 


(d)               Promptly following receipt of an
Interest Election Request, the Administrative Agent shall advise each Lender of
the details thereof and of such Lender’s portion of each resulting Borrowing.


 


(e)                If the Borrower fails to deliver a
timely Interest Election Request with respect to a Eurodollar Borrowing prior
to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing.  Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the Administrative
Agent, at the request of the Required Lenders, so notifies the Company then, so
long as an Event of Default is continuing (i) no outstanding Borrowing may be
converted to or continued as a Eurodollar Borrowing and (ii) unless repaid,
each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of
the Interest Period applicable thereto.


 


SECTION 2.07.  Termination
and Reduction of Commitments.  (a) Unless previously
terminated, the Revolving Commitments shall terminate on the Business Day
immediately preceding the Revolving Maturity Date.


 


(b)               The Company may at any time terminate,
or from time to time reduce, the Revolving Commitments; provided that (i) each reduction of the
Revolving Commitments shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000 and (ii) the Company shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Loans in accordance with Section 2.10, the
sum of the Revolving Exposures would exceed the total Revolving Commitments.


 


(c)                The Company shall notify the
Administrative Agent of any election to terminate or reduce the Revolving
Commitments under paragraph (b) of this Section at least three
Business Days prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof.  Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof.  Each notice delivered by the Company pursuant
to this Section shall be irrevocable; provided
that a notice of termination of the Revolving Commitments delivered by the
Company may state that such notice is conditioned upon the effectiveness of
other


 


31





















 


credit facilities, in which case such notice
may be revoked by the Company (by notice to the Administrative Agent on or
prior to the specified effective date) if such condition is not satisfied.  Any termination or reduction of the Revolving
Commitments shall be permanent.  Each
reduction of the Revolving Commitments shall be made ratably among the Lenders
in accordance with their respective Revolving Commitments.


 


SECTION 2.08.  Repayment
of Loans; Evidence of Debt.  (a) Each Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Lender the then unpaid principal amount of each Loan made to it by such
Lender on the Revolving Maturity Date.


 


(b)               Each Lender shall maintain in accordance
with its usual practice an account or accounts evidencing the indebtedness of
each Borrower to such Lender resulting from each Loan made to such Borrower by
such Lender, including the amounts of principal and interest payable and paid
to such Lender from time to time hereunder.


 


(c)                The Administrative Agent shall maintain
accounts in which it shall record (i) the amount of each Loan made
hereunder, the Type thereof and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become
due and payable from each Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent hereunder for the
account of the Lenders and each Lender’s share thereof.


 


(d)               The entries made in the accounts
maintained pursuant to paragraph (b) or (c) of this Section shall
be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the failure of any Lender or
the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligation of any Borrower to repay the Loans in
accordance with the terms of this Agreement.


 


(e)                Any Lender may request that Loans made
by such Lender to any Borrower be evidenced by a promissory note of such
Borrower.  In such event, each relevant
Borrower shall prepare, execute and deliver to such Lender a promissory note
payable to the order of such Lender (or, if requested by such Lender, to such
Lender and its registered assigns) and in a form approved by the Administrative
Agent.  Thereafter, the Loans evidenced
by such promissory note and interest thereon shall at all times (including
after assignment pursuant to Section 10.04) be represented by one or more
promissory notes in such form payable to the order of the payee named therein
(or, if such promissory note is a registered note, to such payee and its
registered assigns).


 


SECTION 2.09.  
[intentionally deleted].


 


32





















 


SECTION 2.10.  Prepayment
of Loans.  (a) The Borrowers shall
have the right at any time and from time to time to prepay any Borrowing in
whole or in part, subject to the requirements of this Section.


 


(b)               Prior to any prepayment of Borrowings
hereunder, the Company shall select the Borrowing or Borrowings to be prepaid
and shall specify such selection in the notice of such prepayment pursuant to
paragraph (c) of this Section; provided
that each prepayment of Borrowings shall be applied to prepay ABR Borrowings
before any other Borrowings.


 


(c)                The Company shall notify the Administrative
Agent by telephone (confirmed by telecopy) of any prepayment hereunder not
later than 11:00 a.m., New York City time, three Business Days before the date
of prepayment.  Each such notice shall be
irrevocable and shall specify the prepayment date, the principal amount of each
Borrowing or portion thereof to be prepaid; provided
that, if a notice of optional prepayment is given in connection with a
conditional notice of termination of the Revolving Commitments as contemplated
by Section 2.07, then such notice of prepayment may be revoked if such
notice of termination is revoked in accordance with Section 2.07.  Promptly following receipt of any such
notice, the Administrative Agent shall advise the Lenders of the contents
thereof.  Each partial prepayment of any
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Borrowing of the same Type as provided in Section 2.02.  Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing.  Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.12.


 


SECTION 2.11.  Fees.  (a)
The Company agrees to pay to the Administrative Agent for the account of each
Lender a commitment fee, which shall accrue at the Applicable Rate on the
average daily unused amount of the Revolving Commitment of such Lender during
the period from and including the date of this Agreement to but excluding the
date on which such Revolving Commitment terminates.  Accrued commitment fees shall be payable in
arrears, on the last day of March, June, September and December of
each year and on the date on which the Revolving Commitments terminate,
commencing on the first such date to occur after the date hereof.  All commitment fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).  For purposes of computing commitment fees, a
Revolving Commitment of a Lender shall be deemed to be used to the extent of
the outstanding Revolving Loans and LC Exposure of such Lender.


 


(b)               The Company agrees to pay (i) to the
Administrative Agent for the account of each Lender a participation fee with
respect to its participations in Letters of Credit, which shall accrue at the
same Applicable Rate as interest on Eurodollar Loans on the average daily
amount of such Lender’s LC Exposure (excluding any portion thereof


 


33





















 


attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date on which such Lender’s Revolving Commitment terminates and
the date on which such Lender ceases to have any LC Exposure, and (ii) to the
Issuing Bank a fronting fee, which shall accrue at the rate or rates per annum
separately agreed upon between the Company and the Issuing Bank on the average
daily amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date of termination of the
Revolving Commitments and the date on which there ceases to be any LC Exposure,
as well as the Issuing Bank’s standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder.  Participation fees
and fronting fees accrued through and including the last day of March, June, September and
December of each year shall be payable on the third Business Day following
such last day, commencing on the first such date to occur after the Effective
Date; provided that all such fees
shall be payable on the date on which the Revolving Commitments terminate and
any such fees accruing after the date on which the Revolving Commitments
terminate shall be payable on demand. 
Any other fees payable to the Issuing Bank pursuant to this paragraph
shall be payable within 10 days after demand. 
All participation fees and fronting fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).


 


(c)                The Company agrees to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Company and the Administrative
Agent.


 


(d)               All fees payable hereunder shall be paid
on the dates due, in immediately available funds, to the Administrative Agent
(or to the Issuing Bank, in the case of fees payable to it) for distribution,
in the case of commitment fees and participation fees, to the Lenders entitled
thereto.  Fees paid shall not be
refundable under any circumstances.


 


SECTION 2.12.  Interest.  (a)
The Loans comprising each ABR Borrowing shall bear interest at the
Alternate Base Rate plus the Applicable Rate.


 


(b)               The Loans comprising each Eurodollar
Borrowing shall bear interest at the Adjusted LIBO Rate for the Interest Period
in effect for such Borrowing plus the Applicable Rate.


 


(c)                Notwithstanding the foregoing, if any
principal of or interest on any Loan or any fee or other amount payable by any
Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of
overdue principal of any Loan, 2% plus the rate otherwise applicable to such
Loan as provided in the preceding paragraphs of this Section or (ii) in
the case of any


 


34





















 


other amount, 2% plus the rate applicable to
ABR Loans as provided in paragraph (a) of this Section.


 


(d)               Accrued interest on each Loan shall be
payable in arrears on each Interest Payment Date for such Loan and upon
termination of the Revolving Commitments; provided
that (i) interest accrued pursuant to paragraph (c) of this Section shall
be payable on demand, (ii) in the event of any repayment or prepayment of any
Loan (other than a prepayment of an ABR Loan prior to the end of the Revolving
Availability Period), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii)
in the event of any conversion of any Eurodollar Loan prior to the end of the
current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion.


 


(e)                All interest hereunder shall be
computed on the basis of a year of 360 days, except that interest computed by
reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days
(or 366 days in a leap year), and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last
day).  The applicable Alternate Base Rate
or Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.


 


SECTION 2.13.  Alternate
Rate of Interest.  If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:


 


(a)                the Administrative Agent determines
(which determination shall be conclusive absent manifest error) that adequate
and reasonable means do not exist for ascertaining the Adjusted LIBO Rate for
such Interest Period; or


 


(b)               the Administrative Agent is advised by
the Required Lenders that the Adjusted LIBO Rate for such Interest Period will
not adequately and fairly reflect the cost to such Lenders (or Lender) of making
or maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period;


 


then the Administrative Agent shall give
notice thereof to the Company and the Lenders by telephone or telecopy as
promptly as practicable thereafter and, until the Administrative Agent notifies
the Company and the Lenders that the circumstances giving rise to such notice
no longer exist, (i) any Interest Election Request that requests the conversion
of any Borrowing to, or continuation of any Borrowing as, a Eurodollar
Borrowing shall be ineffective and (ii) if any Borrowing Request requests a
Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.


 


35





















 


SECTION 2.14.  Increased
Costs.  (a) If any Change in Law
shall:


 


(i)                                     impose, modify or
deem applicable any reserve, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by, any
Lender (except any such reserve requirement reflected in the Adjusted LIBO
Rate) or the Issuing Bank; or


 


(ii)                                  impose on any Lender
or the Issuing Bank or the London interbank market any other condition
affecting this Agreement or Eurodollar Loans made by such Lender or any Letter
of Credit or participation therein;


 


and the result of any of the foregoing shall
be to increase the cost to such Lender of making or maintaining any Eurodollar
Loan (or of maintaining its obligation to make any such Loan) or to increase
the cost to such Lender or the Issuing Bank of participating in, issuing or
maintaining any Letter of Credit or to reduce the amount of any sum received or
receivable by such Lender or the Issuing Bank hereunder (whether of principal,
interest or otherwise), then the Company will pay (or cause the relevant Borrowers
to pay) to such Lender or the Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Lender or the Issuing Bank, as the
case may be, for such additional costs incurred or reduction suffered.


 


(b)               If any Lender or the Issuing Bank
determines that any Change in Law regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender’s or the Issuing
Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding
company, if any, as a consequence of this Agreement or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the Issuing Bank, to a level below that which such Lender or
the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could
have achieved but for such Change in Law (taking into consideration such Lender’s
or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing
Bank’s holding company with respect to capital adequacy), then from time to
time the Company will pay (or cause the relevant Borrowers to pay) to such
Lender or the Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or the Issuing Bank or such Lender’s or
the Issuing Bank’s holding company for any such reduction suffered.


 


(c)                A certificate of a Lender or the
Issuing Bank setting forth the amount or amounts necessary to compensate such
Lender or the Issuing Bank or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section shall be delivered
to the Company and shall be conclusive absent manifest error, provided that the determination of such
amount or amounts is made on a reasonable basis.  The Company shall pay (or cause to be paid)
to such Lender or the Issuing Bank, as the case may be, the amount shown as due
on any such certificate within 10 days after receipt thereof.


 


36





















 


(d)               Failure or delay on the part of any Lender
or the Issuing Bank to demand compensation pursuant to this Section shall
not constitute a waiver of such Lender’s or the Issuing Bank’s right to demand
such compensation; provided that
the Borrower shall not be required to compensate a Lender or the Issuing Bank
pursuant to this Section for any increased costs or reductions incurred
more than 90 days prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or the Issuing Bank’s
intention to claim compensation therefor; provided
further that, if the Change in Law giving rise to such increased
costs or reductions is retroactive, then the 90-day period referred to above
shall be extended to include the period of retroactive effect thereof.


 


SECTION 2.15.  Break
Funding Payments.  In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of
an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section 2.10(c)
and is revoked in accordance therewith), or (d) the assignment of any
Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Company pursuant to Section 2.18,
then, in any such event, the relevant Borrower shall compensate each Lender for
the loss, cost and expense attributable to such event.  In the case of a Eurodollar Loan, such loss,
cost or expense to any Lender shall be deemed to include an amount determined
by such Lender to be the excess, if any, of (i) the amount of interest which
would have accrued on the principal amount of such Loan had such event not
occurred, at the Adjusted LIBO Rate that would have been applicable to such
Loan, for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period
for such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for dollar deposits of
a comparable amount and period from other banks in the eurodollar market.  A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this Section shall
be delivered to the relevant Borrower and shall be conclusive absent manifest
error.  The relevant Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days
after receipt thereof.


 


SECTION 2.16.  Taxes.  (a)
Any and all payments by or on account of any obligation of any Borrower hereunder
or under any other Loan Document shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if any Borrower shall be required to deduct
any Indemnified Taxes or Other Taxes from such payments, then (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable


 


37





















 


to additional sums payable under this
Section) the Administrative Agent, Lender or Issuing Bank (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and
(iii) such Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.


 


(b)               In addition, each Borrower shall pay any
Other Taxes to the relevant Governmental Authority in accordance with
applicable law.


 


(c)                The relevant Borrower shall indemnify
the Administrative Agent, each Lender and the Issuing Bank, within 10 days
after written demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes paid by the Administrative Agent, such Lender or the Issuing Bank,
as the case may be, on or with respect to any payment by or on account of any
obligation of such Borrower hereunder or under any other Loan Document
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority.  A certificate as to the amount of such
payment or liability delivered to the relevant Borrower by a Lender or the
Issuing Bank, or by the Administrative Agent on its own behalf or on behalf of
a Lender or the Issuing Bank, shall be conclusive absent manifest error.


 


(d)               As soon as practicable after any payment
of Indemnified Taxes or Other Taxes by a Borrower to a Governmental Authority,
such Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.


 


(e)                To the extent permitted by then
applicable law, any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Company is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Company (with a
copy to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed
by applicable law or reasonably requested by the Company as will permit such
payments to be made without withholding or at a reduced rate.


 


SECTION 2.17.  Payments
Generally; Pro Rata Treatment; Sharing of Set-Offs.  (a)
Each Borrower shall make each payment required to be made by it hereunder or
under any other Loan Document (whether of principal, interest, fees or
reimbursement of LC Disbursements, or of amounts payable under Section 2.14,
2.15 or 2.16, or otherwise) prior to 12:00 noon, New York City time, on the
date when due, in


 


38





















 


immediately available funds, without set-off
or counterclaim.  Any amounts received
after such time on any date may, in the discretion of the Administrative Agent,
be deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon. 
All such payments shall be made to the Administrative Agent at its
offices at 270 Park Avenue, New York, New York 10017, except payments to be
made directly to the Issuing Bank as expressly provided herein and except that
payments pursuant to Sections 2.14, 2.15, 2.16 and 10.03 shall be made directly
to the Persons entitled thereto and payments pursuant to other Loan Documents
shall be made to the Persons specified therein. 
The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly
following receipt thereof.  If any
payment under any Loan Document shall be due on a day that is not a Business
Day, the date for payment shall be extended to the next succeeding Business
Day, and, in the case of any payment accruing interest, interest thereon shall
be payable for the period of such extension. 
All payments under each Loan Document shall be made in dollars.


 


(b)               If at any time insufficient funds are
received by and available to the Administrative Agent to pay fully all amounts
of principal, unreimbursed LC Disbursements, interest and fees then due
hereunder, such funds shall be applied (i) first, towards payment of interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, towards payment of principal and unreimbursed LC Disbursements
then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of principal and unreimbursed LC Disbursements then due to
such parties.


 


(c)                If any Lender shall, by exercising any
right of set-off or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Loans or participations in LC
Disbursements resulting in such Lender receiving payment of a greater
proportion of the aggregate principal of and interest then due on its Loans
made to any Borrower, or participations in LC Disbursements on behalf of such
Borrower, than the proportion received by any other Lender in respect of the
aggregate amount of principal and interest then due with respect to the Loans
and participations in LC Disbursements to the same Borrower held by such
Lender, then the Lender receiving such greater proportion shall purchase (for cash
at face value) participations in the Loans and participations in LC
Disbursements of such Borrower held by other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans made to such Borrower and participations in LC
Disbursements on behalf such Borrower; provided
that (i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by a Borrower pursuant to and in
accordance


 


39





















 


with the express terms of this Agreement or
any payment obtained by a Lender as consideration for the assignment of or sale
of a participation in any of its Loans or participations in LC Disbursements to
any assignee or participant, other than to the Company or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph shall
apply).  Each Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Borrower in the amount of such participation.


 


(d)               Unless the Administrative Agent shall
have received notice from a Borrower prior to the date on which any payment is
due from such Borrower to the Administrative Agent for the account of the
Lenders or the Issuing Bank hereunder that such Borrower will not make such
payment, the Administrative Agent may assume that such Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the Issuing Bank, as the case may be, the amount
due.  In such event, if such Borrower has
not in fact made such payment, then each of the Lenders or the Issuing Bank, as
the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation.


 


(e)                If any Lender shall fail to make any
payment required to be made by it pursuant to Section 2.04(d) or (e),
2.05(b), 2.17(d) or 10.03(c), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of such Lender
to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.


 


SECTION 2.18.  Mitigation
Obligations; Replacement of Lenders.  (a)
If any Lender requests compensation under Section 2.14, or if any Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then
such Lender shall, at the request of the Company, use reasonable efforts to
designate a different lending office for funding or booking its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.14
or 2.16, as the case may be, in the future and (ii) would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender as determined by such Lender in its sole discretion.  The Company hereby


 


40





















 


agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or
assignment.


 


(b)               If any Lender requests compensation
under Section 2.14, or if any Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.16, or if any Lender defaults in its
obligation to fund Loans hereunder, then the Company may, at its sole expense
and effort, upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 10.04), all its interests,
rights and obligations under this Agreement to an assignee that shall assume
such obligations (which assignee (x) shall be selected by the Company and (y)
may be another Lender, if a Lender accepts such assignment); provided that (i) the Company shall have
received the prior written consent of the Administrative Agent and the Issuing
Bank, which consent shall not unreasonably be withheld, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal of its
Loans and participations in LC Disbursements, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder and under the other Loan
Documents, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Company (in the case of all other amounts)
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.14 or payments required to be made pursuant
to Section 2.16, such assignment will result in a material reduction in such
compensation or payments.  A Lender shall
not be required to make any such assignment and delegation if, prior thereto,
as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Company to require such assignment and delegation cease to apply.


 


SECTION 2.19.  Termination
of Designation of Eligible Subsidiary as a Borrower.  The
Company may at any time terminate the status of any Subsidiary as an Eligible
Subsidiary for purposes of this Agreement by delivering to the Administrative
Agent an Election to Terminate duly executed on behalf of such Subsidiary and
the Company in such number of copies as the Administrative Agent may request.
The delivery of such an Election to Terminate shall not affect any obligation
of such Subsidiary theretofore incurred under this Agreement or the other Loan
Documents or any rights of the Lenders and the Administrative Agent against
such Subsidiary or against the Company in its capacity as guarantor of the
obligations of such Subsidiary.  The
Administrative Agent shall promptly notify the Lenders of its receipt of any
Election to Terminate.


 


41





















 


ARTICLE 3


REPRESENTATIONS AND WARRANTIES OF THE COMPANY


 


The Company represents and warrants to the
Lenders that:


 


SECTION 3.01.  Organization;
Powers.  Each of the Company and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Change, is qualified to do business
in, and is in good standing in, every jurisdiction where such qualification is
required.


 


SECTION 3.02.  Authorization;
Enforceability.  The Transactions to be
entered into by each Loan Party are within such Loan Party’s corporate or
limited liability company powers and have been duly authorized by all necessary
corporate or limited liability company and, if required, stockholder
action.  This Agreement has been duly
executed and delivered by each Borrower and constitutes, and each other Loan
Document to which any Loan Party is to be a party, when executed and delivered
by such Loan Party, will constitute, a legal, valid and binding obligation of
such Borrower or such Loan Party (as the case may be), enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally
and subject to general principles of equity, regardless of whether considered
in a proceeding in equity or at law.


 


SECTION 3.03.  Governmental
Approvals; No Conflicts.  The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other
action by, any Governmental Authority, except such as have been obtained or
made and are in full force and effect and except filings necessary to perfect
Liens created under the Loan Documents, (b) will not violate any applicable law
or regulation or the charter, by-laws or other organizational documents of the
Company or any of its Subsidiaries or any order of any Governmental Authority,
(c) will not violate or result in a default under any indenture (including,
without limitation, the Existing Indentures), agreement or other instrument
binding upon the Company or any of its Subsidiaries or its assets, or give rise
to a right thereunder to require any payment to be made by the Company or any
of its Subsidiaries, and (d) will not result in the creation or imposition of
any Lien on any asset of the Company or any of its Subsidiaries, except Liens
created under the Loan Documents.


 


SECTION 3.04.  Financial
Condition; No Material Adverse Change.  (a)
The Company has heretofore furnished to the Lenders its consolidated balance
sheet and statements of income, stockholders’ equity and cash flows (i) as of
and for the fiscal year ended December 31, 2003, reported on by Deloitte
& Touche, LLP, independent public accountants, and (ii) as of and for the
fiscal quarter and the portion of the fiscal


 


42





















 


year ended September 30, 2004, in each
case certified by a Financial Officer. 
Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Company and
its consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to normal year-end audit adjustments and the
absence of footnotes in the case of the statements referred to in clause (ii)
above.


 


(b)               Except as disclosed in the financial
statements referred to above or the notes thereto or in the Information
Memorandum and except for the Disclosed Matters, after giving effect to the
Transactions, none of the Company or its Subsidiaries has, as of the 2004
Amendment and Restatement Date, any material contingent liabilities, long-term
commitments outside the ordinary course of business or material unrealized
losses.


 


(c)                Since December 31, 2003, there has
been no Material Adverse Change.


 


SECTION 3.05.  Properties.  (a)
Each of the Company and its Subsidiaries has good title to, or valid leasehold
interests in, all its real and personal property material to its business
(including its Mortgaged Properties), except for minor defects in title that do
not interfere with its ability to conduct its business as currently conducted
or to utilize such properties for their intended purposes.


 


(b)               Each of the Company and its Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, copyrights, patents
and other intellectual property material to its business, and the use thereof
by the Company and its Subsidiaries does not infringe upon the rights of any
other Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Change.


 


(c)                Schedule 3.05 sets forth the
address of each parcel real property that is owned or leased by the Company or
any of its Subsidiaries as of the 2004 Amendment and Restatement Date, and on
which the Company or any of its Subsidiaries conducts a material amount of
business or maintains any material assets.


 


(d)               As of the 2004 Amendment and Restatement
Date, neither the Company nor any of its Subsidiaries has received notice of,
or has knowledge of, any pending or contemplated condemnation proceeding
affecting any Mortgaged Property or any sale or disposition thereof in lieu of
condemnation.  Neither any Mortgaged
Property nor any interest therein is subject to any right of first refusal,
option or other contractual right to purchase such Mortgaged Property or
interest therein.


 


SECTION 3.06.  Litigation
and Environmental Matters.  (a) There are no actions,
suits or proceedings by or before any arbitrator or Governmental Authority
pending against or, to the knowledge of the Company, threatened against or
affecting the


 


43





















 


Company or any of its Subsidiaries
(i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Change (other
than the Disclosed Matters) or (ii) that involve any of the Loan Documents
or the Transactions.


 


(b)               The Company and each of its Subsidiaries
have obtained all permits, certificates, licenses, approvals, registrations and
other authorizations which are required under all applicable Environmental
Laws, except to the extent failure to have any such permit, certificate,
license, approval, registration or authorization could not reasonably be
expected to result in a Material Adverse Change. The Company and each of its
Subsidiaries are in compliance with the terms and conditions of all such
permits, certificates, licenses, approvals, registrations and authorizations,
and are also in compliance with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules and
timetables contained in any applicable Environmental Law or in any notice or
demand letter from any regulatory authority issued, entered, promulgated or
approved thereunder, except to the extent failure to comply could not reasonably
be expected to result in a Material Adverse Change.


 


(c)                Except for such matters, individually
or in the aggregate, which could not reasonably be expected to exceed
$10,000,000 in liability to the Company or any Subsidiary (after taking into
consideration the existence of any viable indemnification provided by any third
party to the Company or any Subsidiary),


 


(i)                                     No notice,
notification, demand, request for information, citation, summons or order has
been issued and remains pending, no complaint has been filed and remains
pending, no penalty has been assessed which remains outstanding and, to the
best knowledge of the Company after due inquiry, no investigation or review is
pending or threatened by any governmental entity or other Person with respect
to (1) any alleged failure by the Company or any of its Subsidiaries to have
any environmental permit, certificate, license, approval, registration or
authorization required in connection with the conduct of the business of the
Company or any of its Subsidiaries, (2) any alleged failure by the Company or
any of its Subsidiaries to comply in all material respects with the terms and
conditions of any such permit, certificate, license, approval, registration or
authorization or of any other limitation, restriction, condition, standard,
prohibition, requirement, obligation, schedule or timetable contained in
any applicable Environmental Law, (3) any Regulated Activity or (4) any Release
of any Hazardous Materials;


 


(ii)                                  Neither the Company
nor its Subsidiaries nor the businesses conducted by such Persons nor, to the
best knowledge of the Company or any of its Subsidiaries after due inquiry, any
other Person, other than in compliance with applicable Environmental Laws, has
disposed of or placed, held, located or otherwise handled, any Hazardous
Materials on, under or at any property now or


 


44





















 


previously owned, operated or leased by the Company or any of its
Subsidiaries, and none of such properties has been used (whether by the Company
or any of its Subsidiaries or, to the best knowledge of the Company or any of
its Subsidiaries after due inquiry, by any other Person) as a dump site or
storage (whether permanent or temporary) site for any Hazardous Materials; and


 


(A)                              no polychlorinated
biphenyls (PCBs), radioactive material, urea formaldehyde or lead is nor in the
prior five years has been present at any property now or previously owned,
operated or leased by the Company or any of its Subsidiaries, other than lead
used in the manufacture of certain products which is handled in compliance with
law;


 


(B)                                no
asbestos is or has been present in airborne or friable form at any property now
or previously owned, operated or leased by the Company or any of its
Subsidiaries, and there has been no asbestos present at previously owned or
leased properties which was not addressed in compliance with applicable laws;


 


(C)                                there
are no underground storage tanks, active or abandoned for which the Company is
legally responsible, which have been used to store or which otherwise contain
or have contained any Hazardous Materials at any property now or previously
owned, operated or leased by the Company or any of its Subsidiaries; and


 


(D)                               no
Hazardous Materials have been Released in a reportable quantity or are present
at, on or under any property now or previously owned, operated or leased by the
Company or any of its Subsidiaries.


 


(iii)                               None of the Company, any
of its Subsidiaries, or any of the businesses conducted by such Persons has
transported or arranged for the transportation (directly or indirectly) of any
Hazardous Materials to any location which is listed or, to the knowledge of the
Company, proposed for listing on the National Priorities List promulgated
pursuant to CERCLA (“NPL”), or the
Comprehensive Environmental Response, Compensation and Liability Information
System (“CERCLIS”) or on any
similar federal, state, foreign or local list or which is the subject of
federal, state, foreign or local enforcement actions or, to the best knowledge
of the Company after due inquiry, other investigations which may lead to claims
against the Company or any of its Subsidiaries for clean-up costs, remedial
work, damages to natural resources or for personal injury claims, including,
but not limited to, claims under CERCLA;


 


(iv)                              All oral or written
notifications of a Release of Hazardous Materials required to be filed under
any applicable Environmental Law have


 


45





















 


been filed by or on behalf of the Company and
its Subsidiaries and no such Release would result in a liability of the Company
or any Subsidiary of the Company, and no property now or previously owned,
operated or leased by the Company or any of its Subsidiaries is listed or, to
the knowledge of the Company or any of its Subsidiaries after due inquiry,
proposed for listing, on the NPL or on CERCLIS or any similar federal, state,
foreign or local list of sites requiring investigation or clean-up which may
lead to claims for clean-up costs, remedial work, damages to natural resources
or for personal injury claims, including, but not limited to, claims under
CERCLA;


 


(v)           No
Hazardous Materials generated by the Company or any of its Subsidiaries have
been stored, recycled, treated or Released, except in compliance with
applicable Environmental Laws or as reported under applicable Environmental
Laws, or disposed of by the Company or any of its Subsidiaries at any location;


 


(vi)                              There are no Liens
arising under or pursuant to any applicable Environmental Laws on property now
owned, operated or leased by the Company or any of its Subsidiaries, and no
actions by any governmental entity have been taken or are in process which
could subject any of such properties to such Liens, and no notice or restriction
relating to the presence of any Hazardous Materials at any such property is
required to be placed in any deed to such property; and


 


(vii)                           There are no existing
liabilities or potential liabilities of the Company or any Subsidiary arising
out of or relating to Environmental Laws. The Company conducts and has
conducted all such environmental investigations, studies, audits, tests,
reviews or other analyses in relation to all properties and facilities now or
previously owned, operated or leased by the Company or any of its Subsidiaries
which are required under applicable Environmental Laws and maintains such
records and reports for the time periods prescribed under applicable
Environmental Laws.


 


(d)               For purposes of subsection (c),
representations given with respect to the Company and its Subsidiaries shall be
deemed given also with respect to any matters which could result in
Environmental Liabilities, to the extent successor liability could be imposed
on the Company or any of its Subsidiaries.


 


(e)                Sasol North America, Inc. (formerly
known as Condea Vista Company) has met in all material respects all of its
obligations under the Asset Purchase Agreement dated as of August 30, 1999
and the Site Access Corporation and Remedial Control Agreement dated as of August 30,
1999, each between Sasol North America, Inc. 
(formerly known as Condea Vista Company) and the Company, to indemnify,
perform, reimburse, pay or otherwise fully comply with the terms of such
agreement, and neither


 


46





















 


the Company nor any Subsidiary has any
reasonable expectation that there will be a cessation or refusal of such
indemnification, performance, reimbursement or payment by such indemnifying
party in any material respect.


 


SECTION 3.07.  Compliance
with Laws and Agreements.  Each of the Company and its
Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures
(including, without limitation, the Existing Indentures), agreements and other
instruments binding upon it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Change.  No Default
has occurred and is continuing.


 


SECTION 3.08.  Investment
and Holding Company Status.   Neither the Company nor any of its
Subsidiaries is (a) an “investment company” as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (b) a “holding
company” as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935.


 


SECTION 3.09.  Taxes.  Each
of the Company and its Subsidiaries has timely filed or caused to be filed all
Tax returns and reports required to have been filed and has paid or caused to
be paid all Taxes required to have been paid by it, except (a) any Taxes
that are being contested in good faith by appropriate proceedings and for which
the Company or such Subsidiary, as applicable, has set aside on its books adequate
reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Change.


 


SECTION 3.10.  ERISA.  No
ERISA Event has occurred or is reasonably expected to occur that, when taken
together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse
Change.  The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did
not, as of the date of the most recent financial statements reflecting such
amounts, exceed the fair market value of the assets of such Plan, and there are
no underfunded Plans (based on the assumptions used for purposes of Statement
of Financial Accounting Standards No. 87).


 


SECTION 3.11.  Disclosure.  The
Company has disclosed to the Lenders all agreements, instruments and corporate
or other restrictions to which the Company or any of its Subsidiaries is
subject, and all other matters known to any of them, that, individually or in
the aggregate, could reasonably be expected to result in a Material Adverse
Change.  Neither the Information
Memorandum nor any of the other reports, financial statements, certificates or
other information furnished by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or any other Loan Document or delivered hereunder or


 


47





















 


thereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, taken as a whole, in
the light of the circumstances under which they were made, not misleading; provided that, with respect to projected
financial information, the Company represents only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time.


 


SECTION 3.12.  Subsidiaries.    Schedule 3.12 sets forth the name of,
and the ownership interest of the Company in, each Subsidiary of the Company
and identifies each Subsidiary that is a Subsidiary Loan Party, in each case as
of the 2004 Amendment and Restatement Date.


 


SECTION 3.13.  Insurance.  The
Company and its Subsidiaries have paid all premiums due in respect of all
insurance maintained by or on behalf of the Company and its Subsidiaries as of
the 2004 Amendment and Restatement Date. 
The Company believes that such insurance is adequate.


 


SECTION 3.14.  Labor
Matters.  As of the 2004 Amendment
and Restatement Date, there are no strikes, lockouts or slowdowns against the
Company or any Subsidiary pending or, to the knowledge of the Company,
threatened.  The hours worked by and
payments made to employees of the Company and the Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Federal,
state, local or foreign law dealing with such matters.  All payments due from the Company or any
Subsidiary, or for which any claim may be made against the Company or any
Subsidiary, on account of wages and employee health and welfare insurance and
other benefits, have been paid or accrued as a liability on the books of the
Company or such Subsidiary.  The
consummation of the Transactions will not give rise to any right of termination
or right of renegotiation on the part of any union under any collective
bargaining agreement to which the Company or any Subsidiary is bound.


 


SECTION 3.15.  Solvency.  Immediately
after the consummation of the Transactions to occur on the 2004 Amendment and
Restatement, and immediately following the making of each Loan made on the 2004
Amendment and Restatement Date and after giving effect to the application of
the proceeds of such Loans, (i) the fair value of the assets of each Loan
Party, at a fair valuation, will exceed its debts and liabilities,
subordinated, contingent or otherwise; (ii) the present fair saleable value of
the property of each Loan Party will be greater than the amount that will be
required to pay the probable liability of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (iii) each Loan Party will be able to pay its
debts and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (iv) each Loan Party will not have
unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be conducted
following such date.


 


48










 















 


SECTION 3.16.  Regulations
U and X.  Neither the Company nor any
of its Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing
or carrying margin stock (within the meaning of Regulation U or X of the Board
of Governors of the Federal Reserve System) and no part of the proceeds of any
Borrowing hereunder will be used to purchase or carry any such margin stock.


 


SECTION 3.17.  No
Burdensome Restrictions.  Except for the Disclosed
Matters, no contract, lease, agreement or other instrument to which the Company
or any of its Subsidiaries is a party or by which any of its property is bound
or affected, no charge, corporate restriction, judgment, decree or order and no
provision of applicable law or governmental regulation has resulted in or is
reasonably expected to result in a Material Adverse Change.


 


SECTION 3.18.  Security
Documents.   Each of the representations and warranties
made by the Loan Parties in the Security Documents is true and correct.


 


 


ARTICLE 4


CONDITIONS


 


SECTION 4.01.  Effectiveness.  The
obligations of the Lenders to make Loans and of the Issuing Bank to issue
Letters of Credit hereunder on and after the 2004 Amendment and Restatement
Date shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 10.02):


 


(a)           The Administrative
Agent (or its counsel) shall have received from each party hereto either
(i) a counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may include
telecopy transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.


 


(b)           The Administrative
Agent shall have received a favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the 2004 Amendment and
Restatement Date) of each of (i) Jones Day, counsel for the Loan Parties,
substantially in the form of Exhibit B, and (ii) if requested by the
Administrative Agent, local counsel in each jurisdiction where a Mortgaged
Property is located, in form and substance satisfactory to the Administrative
Agent, and, in the case of each such opinion required by this paragraph,
covering such other matters relating to the Loan Parties, the Loan Documents or
the Transactions as the Required Lenders shall reasonably request.  The Company hereby requests each of Jones Day
and, if requested by the Administrative Agent, such local counsel to deliver
such opinions.


 


49





















 


(c)           The Administrative
Agent shall have received such documents and certificates as the Administrative
Agent or its counsel may reasonably request relating to the organization,
existence and good standing of each Loan Party, the authorization of the
Transactions and any other legal matters relating to the Loan Parties, the Loan
Documents or the Transactions, all in form and substance satisfactory to the Administrative
Agent and its counsel.


 


(d)           The Administrative
Agent shall have received a certificate, dated the 2004 Amendment and
Restatement Date and signed by the President, a Vice President or a Financial
Officer of the Company, confirming compliance with the conditions set forth in
paragraphs (a) and (b) of Section 4.02.


 


(e)           The Administrative
Agent shall have received all fees and other amounts due and payable on or
prior to the 2004 Amendment and Restatement Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses (including
fees, charges and disbursements of counsel) required to be reimbursed or paid
by any Loan Party hereunder or under any other Loan Document.


 


(f)            After giving effect
to the Transactions, neither the Company nor any of its Subsidiaries shall have
outstanding any shares of preferred stock or any Indebtedness, other than (i)
Indebtedness incurred under the Loan Documents consisting of (x) LC Exposure
and (y) Loans (if any) borrowed on the 2004 Amendment and Restatement Date,
(ii) the Existing Notes, (iv) the Gallman Indebtedness, (v) the Praxair PIK
Note, (vi) customary obligations with respect to Permitted Receivables
Transactions arising under the Wachovia Purchase Agreement and (vii) other
Indebtedness set forth on Schedule 6.01. 
The Administrative Agent shall have received such evidence as it may
reasonably require that the Tranche D Term Loans (as defined in the Existing
Credit Agreement) are being prepaid in full, together with all accrued interest
thereon, on the Amendment and Restatement Date.


 


The Administrative Agent shall notify the Company and the Lenders of
the 2004 Amendment and Restatement Date, and such notice shall be conclusive
and binding.  Notwithstanding the
foregoing, the obligations of the Lenders hereunder shall not become effective
unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.02)
at or prior to 3:00 p.m., New York City time, on December 15, 2004.


 


SECTION 4.02.  Each
Credit Event.   The obligation of each Lender to make a Loan
on the occasion of any Borrowing, and of the Issuing Bank to issue, amend,
renew or extend any Letter of Credit, is subject to the satisfaction of the
following conditions:


 


(a)           The representations
and warranties of each Loan Party set forth in the Loan Documents shall be true
and correct on and as of the date of such Borrowing or 


 


50





















 


the date of issuance, amendment, renewal or extension of such Letter of
Credit, as applicable.


 


(b)           At the time of and
immediately after giving effect to such Borrowing or the issuance, amendment,
renewal or extension of such Letter of Credit, as applicable, no Default shall
have occurred and be continuing.


 


Each Borrowing and each issuance, amendment, renewal or extension of a
Letter of Credit shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a)
and (b) of this Section.


 


 


ARTICLE 5


AFFIRMATIVE COVENANTS


 


Until the Revolving Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full and all Letters of Credit shall have expired or
terminated and all LC Disbursements shall have been reimbursed, the Company
covenants and agrees with the Lenders that:


 


SECTION 5.01.  Financial
Statements and Other Information.  The Company will furnish to
the Administrative Agent and each Lender:


 


(a)           as soon as available
and in any event within 65 days after the end of each fiscal year of the
Company, its audited consolidated balance sheet and related statements of
income, stockholders’ equity and cash flows as of the end of and for such year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all reported on by Deloitte & Touche LLP or other independent
public accountants of recognized national standing (without a “going concern”
or like qualification or exception and without any qualification or exception
as to the scope of such audit or any other material qualification or exception)
to the effect that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of the
Company and its consolidated Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied;


 


(b)           as soon as available
and in any event within 40 days after the end of each of the first three
fiscal quarters of each fiscal year of the Company, its consolidated balance
sheet and related statements of income, stockholders’ equity and cash flows, as
of the end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the previous fiscal 


 


51





















 


year, all certified by one of
its Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Company and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;


 


(c)           concurrently with
any delivery of financial statements under clause (a) or (b) above, a
certificate of a Financial Officer of the Company (i) certifying as to
whether a Default has occurred and, if a Default has occurred, specifying the
details thereof and any action taken or proposed to be taken with respect
thereto, (ii) setting forth reasonably detailed calculations demonstrating
compliance with Sections 6.14 to 6.16 inclusive, and (iii) stating
whether any change in GAAP or in the application thereof has occurred since the
date of the Company’s audited financial statements referred to in Section 3.04
and, if any such change has occurred, specifying the effect of such change on
the financial statements accompanying such certificate;


 


(d)           concurrently with
any delivery of financial statements under clause (a) above, a certificate
of the accounting firm that reported on such financial statements stating
whether they obtained knowledge during the course of their examination of such
financial statements of any Default (which certificate may be limited to the
extent required by accounting rules or guidelines);


 


(e)           promptly after the
same become publicly available, copies of all periodic and other reports, proxy
statements and other materials filed by the Company or any Subsidiary with the
Securities and Exchange Commission, or any Governmental Authority succeeding to
any or all of the functions of said Commission, or with any national securities
exchange, as the case may be; and


 


(f)            promptly following
any request therefor, such other information regarding the operations, business
affairs and financial condition of the Company or any Subsidiary, or compliance
with the terms of any Loan Document, as the Administrative Agent or any Lender
may reasonably request.


 


SECTION 5.02.  Notices
of Material Events.  The Company will furnish to
the Administrative Agent and each Lender prompt written notice of the
following:


 


(a)           the occurrence of
any Default;


 


(b)           the filing or
commencement of any action, suit or proceeding by or before any arbitrator or
Governmental Authority against or affecting the Company or any Affiliate
thereof that, if adversely determined, could reasonably be expected to result
in a Material Adverse Change;


 


52





















 


(c)           the occurrence of
any ERISA Event that, alone or together with any other ERISA Events that have
occurred, could reasonably be expected to result in liability of the Company
and its Subsidiaries in an aggregate amount exceeding $5,000,000;


 


(d)           any complaint,
order, citation, notice or other written communication from any Person with
respect to, or if the Company becomes aware after due inquiry of, (i) the
existence or alleged existence of any Environmental Liability or other
liability resulting from any air emission, water discharge, noise emission,
asbestos, or any other environmental, health or safety matter at, upon, under
or within any property now or previously owned, leased, operated or used by the
Company or any of its Subsidiaries or any part thereof, or due to the
operations or activities of the Company, any Subsidiary or any other Person on
or in connection with such property or any part thereof (including receipt by
the Company or any Subsidiary of any notice of the happening of any event
involving the release or cleanup of any Hazardous Materials), (ii) any release
on such property or any part thereof in a quantity that is reportable under any
applicable Environmental Law, (iii) the commencement of any cleanup pursuant to
or in accordance with any applicable Environmental Law of any Hazardous
Materials on or about such property or any part thereof and (iv) any
pending or threatened proceeding for the termination, suspension or non-renewal
of any permit required under any applicable Environmental Law, in each of cases
(i), (ii), (iii) and (iv), which results in, or could reasonably be expected to
result in, liability of the Company or any Subsidiary in excess of $10,000,000
individually or in the aggregate;


 


(e)           any other
development that results in, or could reasonably be expected to result in, a
Material Adverse Change; and


 


(f)            the first date on
which all obligations then due and owing under the Wachovia Purchase Agreement
have been paid in full.


 


Each notice delivered under this Section shall be accompanied by a
statement of a Financial Officer or other executive officer of the Company
setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.


 


SECTION 5.03.  Information
Regarding Collateral.  (a) The Company agrees
promptly to notify the Administrative Agent if any material portion of the
Collateral is damaged or destroyed.


 


(b)           Each year, on the
anniversary of the Effective Date, the Company shall deliver to the
Administrative Agent a certificate of a Financial Officer and the chief legal
officer of the Company (i) setting forth, with respect to each Loan Party, the
information required pursuant to Section 1(a) and 2 of the Perfection
Certificate or confirming that there has been no change in such information
since the date of the Perfection Certificate delivered on the Effective Date or
the date of the most recent 


 


53





















 


certificate delivered pursuant to this Section and (ii) certifying
that all Uniform Commercial Code financing statements (including fixture
filings, as applicable) or other appropriate filings, recordings or
registrations, including all refilings, rerecordings and reregistrations,
containing a description of the Collateral have been filed of record in each
governmental, municipal or other appropriate office in each jurisdiction
identified pursuant to clause (i) above to the extent necessary to protect and
perfect the security interests under the Collateral Agreement for a period of
not less than 18 months after the date of such certificate (except as noted
therein with respect to any continuation statements to be filed within such
period).


 


SECTION 5.04.  Existence;
Conduct of Business.  The Company will, and will
cause each of its Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its legal existence and
the rights, licenses, permits, privileges, franchises, patents, copyrights,
trademarks and trade names material to the conduct of its business; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03.


 


SECTION 5.05.  Payment
of Obligations.  The Company will, and will
cause each of its Subsidiaries to, pay its Indebtedness and other obligations,
including Tax liabilities, before the same shall become delinquent or in
default, except where (a) the validity or amount thereof is being contested in
good faith by appropriate proceedings, (b) the Company or such Subsidiary has
set aside on its books adequate reserves with respect thereto in accordance
with GAAP, (c) such contest effectively suspends collection of the contested
obligation and the enforcement of any Lien securing such obligation and (d) the
failure to make payment pending such contest could not reasonably be expected
to result in a Material Adverse Change.


 


SECTION 5.06.  Maintenance
of Properties.  The Company will, and will
cause each of its Subsidiaries to, keep and maintain all property material to
the conduct of its business in good working order and condition (taking into
consideration the condition of such properties at the time such properties were
acquired by the Company or such Subsidiary), ordinary wear and tear excepted.


 


SECTION 5.07.  Insurance.  (a)
The Company will, and will cause each of its Subsidiaries to, maintain, with
financially sound and reputable insurance companies selected by the Company
that customarily write insurance for the risks covered thereby in the amounts
contemplated thereby:


 


(i)        fire and extended coverage insurance, on
a replacement cost basis, with respect to all personal property and
improvements to real property, in such amounts as are customarily maintained by
companies in the same or similar business operating in the same or similar
locations;


 


54





















 


(ii)       commercial general liability insurance
against claims for bodily injury, death or property damage occurring upon,
about or in connection with the use of any properties owned, occupied or
controlled by it, providing coverage on an occurrence basis with a combined
single limit of not less than $250,000,000 and including the broad form CGL
endorsement;


 


(iii)      business interruption insurance, insuring
against loss of gross earnings for a period of not less than 12 months arising
from any risks or occurrences required to be covered by insurance pursuant to
clause (i) above; and


 


(iv)      such other insurance as may be required by
law or as is usually carried by companies of established repute engaged in the
same or similar business, owning similar properties, and located in the same
general areas as the Company and its Subsidiaries.


 


Deductibles or self-insured retention shall not exceed $4,000,000 for
fire and extended coverage policies, $3,500,000 for commercial general
liability policies or 90 days for business interruption policies.


 


(b)           Fire and extended
coverage policies (and any policies required to be maintained pursuant to
paragraph (c) below) maintained with respect to any Collateral shall be
endorsed or otherwise amended to include (i) a non-contributing mortgage clause
(regarding improvements to real property) and lenders’ loss payable clause
(regarding personal property), in each case in favor of the Administrative
Agent and providing for losses thereunder to be payable to the Administrative
Agent or its designee as sole loss payee, (ii) a provision to the effect that
neither the Company, the Administrative Agent nor any other party shall be a
coinsurer and (iii) such other provisions as the Administrative Agent may
reasonably require from time to time to protect the interests of the
Lenders.  Commercial general liability
policies shall be endorsed to name the Administrative Agent as an additional
insured.  Business interruption policies
shall name the Administrative Agent as sole loss payee.  Each such policy referred to in this
paragraph also shall provide that it shall not be canceled, modified or not
renewed (i) by reason of nonpayment of premium except upon not less than 10
days’ prior written notice thereof by the insurer to the Administrative Agent
(giving the Administrative Agent the right to cure defaults in the payment of
premiums) or (ii) for any other reason except upon not less than 30 days’ prior
written notice thereof by the insurer to the Administrative Agent.  The Company shall deliver to the
Administrative Agent, prior to the cancellation, material modification or
nonrenewal of any such policy of insurance, a copy of a renewal or replacement
policy (or other evidence of renewal of a policy previously delivered to the
Administrative Agent) together with evidence satisfactory to the Administrative
Agent of payment of the premium therefor.


 


55





















 


(c)           If at any time the
area in which any Mortgaged Property is located is designated (i) a “flood
hazard area” in any Flood Insurance Rate Map published by the Federal Emergency
Management Agency (or any successor agency), the Company shall obtain flood
insurance in such total amount as the Administrative Agent or the Required
Lenders may from time to time require, and otherwise comply with the National
Flood Insurance Program as set forth in the Flood Disaster Protection Act of
1973, as amended from time to time, or (ii) a “Zone 1” area, the Company shall
obtain earthquake insurance in such total amount as the Administrative Agent or
the Required Lenders may from time to time require.


 


SECTION 5.08.  Casualty
and Condemnation.  (a) The Company will
furnish to the Administrative Agent and the Lenders prompt written notice of
(i) any casualty or other insured damage to any portion of any Collateral (x)
having a fair value in excess of $5,000,000 or (y) having, together with all
other Collateral that has been subject to any casualty or insured damage, an
aggregate fair value in excess of $25,000,000 or (ii) the commencement of any
action or proceeding for the taking of any Collateral or any part thereof or
interest therein under power of eminent domain or by condemnation or similar
proceeding.


 


(b)           If any event
described in paragraph (a) of this Section results in Net Proceeds
(whether in the form of insurance proceeds, condemnation award or otherwise),
such Net Proceeds shall be paid over to the Company unless a Default has
occurred and is continuing.  If a Default
has occurred and is continuing, the Administrative Agent is authorized to
collect such Net Proceeds, and if, during the continuance of a Default, such
Net Proceeds are received by the Company or any Subsidiary, such Net Proceeds
shall be paid over to the Administrative Agent.


 


SECTION 5.09.  Books
and Records; Inspection and Audit Rights.  The
Company will, and will cause each of its Subsidiaries to, keep proper books of
record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities.  The Company will, and will cause each of its
Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably requested;
provided that if and for so long
as no Default shall have occurred and be continuing, the Company shall not be
required to permit more than one such examination or inspection by each Lender
during any fiscal year of the Company.


 


SECTION 5.10.  Compliance
with Laws; Material Contracts.  (a) The Company will, and
will cause each of its Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority (including, without
limitation, all Environmental Laws and ERISA and the respective rules and
regulations thereunder) 


 


56





















 


applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Change.


 


(b)           The Company will,
and will cause each of its Subsidiaries to, comply with all material provisions
of all material contracts to which the Company or such Subsidiary, as the case
may be, is a party.


 


SECTION 5.11.  Use
of Proceeds and Letters of Credit.  The
proceeds of the Loans borrowed on the 2004 Amendment and Restatement Date will
be used only for the payment by the Company of amounts required to refinance
the Tranche D Term Loans (as defined in the Existing Credit Agreement).  The proceeds of all other Loans will be used
only to finance the working capital needs and general corporate purposes of the
Company and its Subsidiaries.  No part of
the proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the Regulations of the Board,
including Regulations U and X. 
Letters of Credit will be issued only to finance the working capital
needs and general corporate purposes of the Company and its Subsidiaries, and
will not be used, whether directly or indirectly, for any purpose that entails
a violation of any of the Regulations of the Board, including Regulations U and
X.


 


SECTION 5.12.  Additional
Subsidiaries.  If any additional
Subsidiary is formed or acquired after the Effective Date, the Company will,
within three Business Days after such Subsidiary is formed or acquired, notify
the Administrative Agent and the Lenders thereof and cause the Collateral and
Guarantee Requirement to be satisfied with respect to such Subsidiary (if it is
a Subsidiary Loan Party) and with respect to any Equity Interest in or
Indebtedness of such Subsidiary owned by or on behalf of any Loan Party.


 


SECTION 5.13.  Further
Assurances.  (a) The Company will, and
will cause each Subsidiary Loan Party to, execute any and all further
documents, financing statements, agreements and instruments, and take all such
further actions (including the filing and recording of financing statements, fixture
filings, mortgages, deeds of trust and other documents), which may be required
under any applicable law, or which the Administrative Agent or the Required
Lenders may reasonably request, to cause the Collateral and Guarantee
Requirement to be and remain satisfied, all at the expense of the Loan
Parties.  The Company also agrees to
provide to the Administrative Agent, from time to time upon request, evidence
reasonably satisfactory to the Administrative Agent as to the perfection and
priority of the Liens created or intended to be created by the Security
Documents.


 


(b)           If any material
assets (including any real property or improvements thereto or any interest
therein) are acquired by the Company or any Subsidiary Loan Party after the
Effective Date (other than assets constituting Collateral under the Collateral
Agreement that become subject to the Lien of the Collateral Agreement upon
acquisition thereof), the Company will notify the Administrative Agent and the
Lenders 


 


57





















 


thereof, and, if requested by the Administrative Agent or the Required
Lenders, the Company will cause such assets to be subjected to a Lien securing
the Obligations and will take, and cause the Subsidiary Loan Parties to take,
such actions as shall be necessary or reasonably requested by the
Administrative Agent to grant and perfect such Liens, including actions
described in paragraph (a) of this Section, all at the expense of the Loan
Parties.


 


SECTION 5.14.  Landlord
and Warehouseman Waivers.  The Company shall use its
best efforts to deliver to the Administrative Agent waivers of contractual and
statutory landlord’s, landlord’s mortgagee’s and warehouseman’s Liens in form
and substance satisfactory to the Administrative Agent under each existing
lease, warehouse agreement or similar agreement to which the Company or any
Subsidiary is a party; provided that
unless the Administrative Agent agrees otherwise, such waivers will in any
event be incorporated when the existing lease, warehouse agreement or similar
agreement is amended, renewed or extended and the Company will use its best
efforts to obtain waivers of both contractual and statutory landlord’s,
landlord’s mortgagee’s and warehouseman’s Liens in form and substance
satisfactory to the Administrative Agent in connection with each new lease,
warehouse agreement or similar agreement entered into by the Company or any
Subsidiary.


 


 


ARTICLE 6


NEGATIVE COVENANTS


 


Until the Revolving Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, the Company covenants and agrees with
the Lenders that:


 


SECTION 6.01.  Indebtedness;
Certain Equity Securities.  (a) The Company will not,
and will not permit any Subsidiary to, create, incur, assume or permit to exist
any Indebtedness, except:


 


(i)       Indebtedness created under the Loan
Documents;


 


(ii)      Indebtedness of the Company (and, without
duplication, Guarantees thereof by the Subsidiary Loan Parties) in an aggregate
principal amount at any time outstanding not to exceed $525,000,000 less
the sum of (x) the Revolving Commitments (or, if the Revolving Commitments have
terminated, the Revolving Exposures) and (y) the aggregate principal amount of
all principal payments made with the proceeds of Asset Dispositions (as defined
in the Existing Indentures) permanently reducing the commitments or principal
amounts otherwise permitted to be outstanding pursuant to this clause (ii); 


 


58





















 


provided that such
Indebtedness (A) matures no earlier than November 23, 2010, (B) provides
for principal repayments of no more than 5% of the initial commitments or
principal amount per annum until after November 23, 2009, and (C) is
governed by provisions relating to representations and warranties, covenants,
events of default and remedies which are no more favorable, taken as a whole,
to the holders thereof than the provisions set forth in this Agreement;


 


(iii)     the Existing Notes and extensions, renewals
and replacements of the Existing Notes (a) that do not increase the outstanding
principal amount or result in an initial principal repayment date earlier than
May 24, 2010 and (b) the material terms of which are at least as favorable to
the obligors thereunder as the material terms of the Existing Notes;


 


(iv)     the Gallman Indebtedness;


 


(v)      the Praxair PIK Note;


 


(vi)     other Indebtedness existing on the date
hereof and set forth in Schedule 6.01 and extensions, renewals and
replacements of any such Indebtedness (a) that do not increase the outstanding
principal amount thereof or result in an earlier maturity date or decreased
weighted average life thereof and (b) the material terms of which are at least
as favorable to the obligors thereunder as the material terms of the refinanced
Indebtedness;


 


(vii)    Indebtedness of the Company to any
Subsidiary and of any Subsidiary to the Company or any other Subsidiary; provided that Indebtedness of any
Subsidiary that is not a Loan Party to the Company or any Subsidiary Loan Party
shall be subject to Section 6.04;


 


(viii)   Guarantees by the Company of Indebtedness of
any Subsidiary and by any Subsidiary of Indebtedness of the Company or any
other Subsidiary; provided that
Guarantees by the Company or any Subsidiary Loan Party of Indebtedness of any
Subsidiary that is not a Loan Party shall be subject to Section 6.04;


 


(ix)      Indebtedness of the Company or any Subsidiary
incurred to finance the acquisition, construction or improvement of any fixed
or capital assets, including Capital Lease Obligations and any Indebtedness
assumed in connection with the acquisition of any such assets or secured by a
Lien on any such assets prior to the acquisition thereof, and extensions,
renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier maturity date or
decreased weighted average life thereof; provided
that (A) such Indebtedness is incurred prior to or within 90 days after such
acquisition or the completion of such 


 


59





















 


construction or improvement and (B) the aggregate principal amount of
Indebtedness permitted by this clause (ix) shall not exceed $15,000,000 at any
time outstanding;


 


(x)       customary obligations arising under any
Permitted Receivables Transaction; and


 


(xi)      other unsecured Indebtedness; provided that, at the time of the
incurrence of such other Indebtedness, (a) no Default or Event of Default has
occurred and is continuing, or would result from such incurrence, and (b) after
giving effect to such incurrence, the Company shall be in compliance on a pro
forma basis with Sections 6.15 and 6.16 (assuming that such Indebtedness bears
interest during any portion of the applicable measurement period prior to the
date of such incurrence equal to the average interest rate applicable to the
Loans during such period).


 


(b)           The Company will not
permit any Subsidiary to issue any preferred stock or other preferred Equity
Interests.


 


SECTION 6.02.  Liens.  The
Company will not, and will not permit any Subsidiary to, create, incur, assume
or permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts
receivable) or rights in respect of any thereof, except:


 


(i)             Liens
created under the Loan Documents, which Liens may also secure Indebtedness
permitted pursuant to Section 6.01(a)(ii) on the same basis as the “Additional
Bonds Secured Obligations” (as defined in the Security Documents);


 


(ii)            Permitted
Encumbrances;


 


(iii)           Liens
securing the Gallman Indebtedness in accordance with the definition thereof;


 


(iv)           any
Lien on any property or asset of the Company or any Subsidiary existing on the
2004 Amendment and Restatement Date and set forth in Schedule 6.02; provided that (i) such Lien shall not
apply to any other property or asset of the Company or any Subsidiary and (ii)
such Lien shall secure only those obligations which it secures on the date
hereof and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof;


 


(v)            any
Lien existing on any property or asset prior to the acquisition thereof by the
Company or any Subsidiary or existing on any property or asset of 


 


60





















 


any Person that becomes a Subsidiary after the date hereof prior to the
time such Person becomes a Subsidiary; provided
that (A) such Lien is not created in contemplation of or in connection
with such acquisition or such Person becoming a Subsidiary, as the case may be,
(B) such Lien shall not apply to any other property or assets of the
Company or any Subsidiary and (C) such Lien shall secure only those obligations
which it secures on the date of such acquisition or the date such Person
becomes a Subsidiary, as the case may be and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof;


 


(vi)           Liens
on fixed or capital assets acquired, constructed or improved by the Company or
any Subsidiary; provided that
(A) such security interests secure Indebtedness permitted by
clause (ix) of Section 6.01(a), (B) such security interests and
the Indebtedness secured thereby are incurred prior to or within 90 days
after such acquisition or the completion of such construction or improvement,
(C) the Indebtedness secured thereby does not exceed 80% of the cost of acquiring,
constructing or improving such fixed or capital assets and (D) such
security interests shall not apply to any other property or assets of the
Company or any Subsidiary; and


 


(vii)          Liens
on assets of the Company and its Subsidiaries in connection with a Permitted
Receivables Transaction.


 


SECTION 6.03.  Fundamental
Changes.  (a) The Company will not,
and will not permit any Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
liquidate or dissolve, except that, if at the time thereof and immediately
after giving effect thereto no Default shall have occurred and be continuing
(i) any Person organized under the laws of the United States of America or
one of its States may merge into the Company in a transaction in which the
Company is the surviving corporation, (ii) any Person organized under the
laws of the United States of America or one of its States may merge into any
Subsidiary in a transaction in which the surviving entity is a Subsidiary and
(if any party to such merger is a Subsidiary Loan Party) is a Subsidiary Loan
Party and (iii) any Subsidiary (other than an Eligible Subsidiary) may
liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Company and is not
materially disadvantageous to the Lenders; provided
that any such merger involving a Person that is not a wholly owned Subsidiary
immediately prior to such merger shall not be permitted unless also permitted
by Section 6.04; and provided
further that any Subsidiary may
merge with any other Person in connection with a disposition of such Subsidiary
permitted by Section 6.05.


 


(b)           The Company will
not, and will not permit any of its Subsidiaries to, engage to any material
extent in any business other than businesses of the type 


 


61





















 


conducted by the Company and its Subsidiaries on the date of execution
of this Agreement and businesses reasonably related thereto.


 


SECTION 6.04.  Investments,
Loans, Advances, Guarantees and Acquisitions .  The
Company will not, and will not permit any of its Subsidiaries to, purchase,
hold or acquire (including pursuant to any merger with any Person that was not
a wholly owned Subsidiary prior to such merger) any capital stock, evidences of
indebtedness or other securities (including any option, warrant or other right
to acquire any of the foregoing) of, make or permit to exist any loans or
advances to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person, or purchase or otherwise
acquire (in one transaction or a series of transactions) any assets of any
other Person constituting a business unit, except:


 


(a)           Permitted
Acquisitions;


 


(b)           Permitted
Investments;


 


(c)           investments existing
on the 2004 Amendment and Restatement Date and set forth on Schedule 6.04,
to the extent such investments would not be permitted under any other clause of
this Section;


 


(d)           investments by the
Company and its Subsidiaries existing on the date hereof in Equity Interests in
(i) their respective wholly owned Subsidiaries, (ii) PHH Monomers LLC, a
Louisiana limited liability company and (iii) Vinyl Solutions, LLC, a Delaware
limited liability company; provided
that (x) any such Equity Interests held by a Loan Party shall be pledged
pursuant to the Collateral Agreement (subject to the limitations applicable to
Equity Interests of a Foreign Subsidiary referred to in the definition of “Collateral
and Guarantee Agreement”) and (y) except as set forth in paragraph (a) of this
Section, the aggregate amount of investments by Loan Parties in, and loans and
advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of,
Persons that are not Loan Parties shall not exceed $5,000,000 at any time
outstanding;


 


(e)           loans or advances
made by the Company to any Subsidiary and made by any Subsidiary to the Company
or any other Subsidiary; provided
that (i) any such loans and advances made by a Loan Party shall be evidenced by
a promissory note pledged pursuant to the Collateral Agreement and (ii) the
aggregate principal amount of investments in Subsidiaries that are not Loan
Parties shall be subject to the limitation set forth in clause (d) above;


 


(f)            Guarantees
constituting Indebtedness permitted by Section 6.01; provided that (i) a Subsidiary shall not
Guarantee any subordinated Indebtedness unless (A) such Subsidiary also has
Guaranteed the Obligations pursuant to the Collateral Agreement and (B) such
Guarantee of subordinated Indebtedness is subordinated to such Guarantee


 


62





















 


of the Obligations on terms no less favorable to the Lenders than the
subordination provisions of the Repaid Subordinated Debt, and (ii) the
aggregate principal amount of Indebtedness of Subsidiaries that are not Loan
Parties that is Guaranteed by any Loan Party shall be subject to the limitation
set forth in clause (d) above;


 


(g)           investments received
in connection with the bankruptcy or reorganization of, or settlement of
delinquent accounts and disputes with, customers and suppliers, in each case in
the ordinary course of business;


 


(h)           operating deposit
accounts;


 


(i)            prepaid expenses in
the ordinary course of business;


 


(j)            subject to Section 6.08
hereof, Investments in accounts and chattel paper (in each case, as defined in
the Uniform Commercial Code), and notes receivable acquired in the ordinary
course of business as presently conducted; and


 


(k)           Permitted
Receivables Transactions.


 


For purposes of this Section 6.04, a “Permitted Acquisition” shall mean any acquisition by the
Company or any Subsidiary of any asset or Equity Interests or other security of
any other Person (including any acquisition by way of merger); provided that (x) at the time of effecting
(but without giving pro forma effect to) such acquisition, the Company shall be
in compliance with Section 6.15 hereof (assuming that the amount of
Indebtedness outstanding immediately prior to such acquisition was outstanding
as of the end of the most recent fiscal quarter), (y) after giving pro forma
effect to such acquisition, the Company would have been in compliance with
Sections 6.15 and 6.16 hereof on the last day of the period of four fiscal
quarters most recently ended prior to the date of such acquisition (calculated
on the assumption that such acquisition occurred at the beginning of such
period of four fiscal quarters), and (z) both before and immediately after
giving effect to such acquisition, no Default or Event of Default shall have
occurred and be continuing; and provided
further that the term “Permitted
Acquisition” shall exclude any transaction in which the Company
initiates or participates as a member of a “group” (as that term is used for
the purposes of Section 13(d)(3) of the Exchange Act or the rules and
regulations of the Securities and Exchange Commission thereunder) or as a “participant”
or a “participant in a solicitation” (as defined in Rule 14a-11 under the
Exchange Act) in (i) a tender offer for the Equity Interests of any Person if
the board of directors (or other similar body) of such Person recommends, in a Schedule 14D-9
filed under the Exchange Act, or otherwise, that holders of Equity Interests of
such Person not tender their Equity Interests pursuant to such tender offer or
(ii) in any solicitation of any proxy, consent or authorization for the
purposes of opposing the board of directors (or other similar body) of any
Person.


 


63





















 


SECTION 6.05.  Asset
Sales.  The Company will not, and
will not permit any of its Subsidiaries to, sell, transfer, lease or otherwise
dispose of any asset, including any capital stock or other ownership interest
of any Subsidiary, nor will the Company permit any of its Subsidiaries to issue
any additional shares of such Subsidiary’s capital stock or other ownership
interest in such Subsidiary, except:


 


(a)           sales of inventory,
used or surplus equipment and Permitted Investments in the ordinary course of
business;


 


(b)           sales, transfers and
dispositions to the Company or a Subsidiary and Permitted Joint Venture
Dispositions; provided that any
such sales, transfers or dispositions to a Person other than a Loan Party shall
be made in compliance with Section 6.08;


 


(c)           dispositions of
bonds issued in connection with the Gallman Indebtedness;


 


(d)           Permitted
Receivables Transactions; and


 


(e)           sales, transfers and
dispositions of assets (other than Equity Interests in a Subsidiary) that are
not permitted by any other clause of this Section; provided that the aggregate fair market value of all assets
sold, transferred or otherwise disposed of after the 2004 Amendment and
Restatement Date in reliance upon this clause (e) shall not exceed $15,000,000
during any fiscal year of the Company;


 


provided that,
except in the case of any sale, transfer or disposition to a Loan Party
pursuant to subsection (b) above, all sales, transfers and other
dispositions permitted hereby shall be made for fair value; and


 


provided  further that, except in the case of any
sale, transfer or disposition pursuant to subsection (b) above, all sales,
transfers and other dispositions permitted hereby shall be made for at least
80% cash consideration.


 


For purposes of this Section 6.05, “Permitted  Joint  Venture Dispositions” shall mean sales,
transfers or dispositions of assets in an aggregate amount not to exceed
$50,000,000 during the term of this Agreement to Permitted Joint Ventures; provided that (y) after giving pro forma
effect to any such sale, transfer or disposition, the Company would have been
in compliance with Sections 6.15 and 6.16 hereof on the last day of the period
of four fiscal quarters most recently ended prior to the date of such sale,
transfer or disposition (calculated on the assumption that such sale, transfer
or disposition occurred at the beginning of such period of four fiscal
quarters), and (z) both before and immediately after giving effect to any such
sale, transfer or disposition, no Default or Event of Default shall have
occurred and be continuing


 


64





















 


For purposes of this Section 6.05, “Permitted  Joint  Venture” shall mean (a) any corporation,
association or other business entity (other than a partnership) of which 50% of
the total voting power of Equity Interests entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time of determination owned or Controlled,
directly or indirectly by the Company or one of more Subsidiary Loan Parties or
a combination thereof and (b) any partnership, joint venture, limited liability
company or similar entity of which (i) 50% of the capital accounts,
distribution rights, total Equity Interests and voting interests or general or
limited partnership interests, as applicable, are owned or Controlled, directly
or indirectly by the Company or one or more Subsidiary Loan Parties or a
combination thereof, whether in the form of membership, general, special or
limited partnership interests or otherwise and (ii) either the Company or a
Subsidiary Loan Party is a Controlling general partner or no other Person
Controls such entity; provided
that no Person shall be a “Permitted Joint Venture” unless and until (A) all
Equity Interests in such Person held by a Loan Party are pledged pursuant to
the Collateral Agreement, (B) such Person does not have any Indebtedness for
borrowed money at any time (other than Indebtedness owing to the owners of
Equity Interests in such Permitted Joint Venture, the Company or any Subsidiary
Loan Party), (C) the organizational documents of such Person and the other
documentation governing such Person do not contain any restriction on
distributions to the Company or the Subsidiary Loan Parties and (D) such Person
is engaged only in a business of the type conducted by the Company and its
Subsidiaries on the date of execution of this Agreement and businesses
reasonably related thereto .


 


SECTION 6.06.  Hedging
Agreements.  The Company will not, and
will not permit any of its Subsidiaries to, enter into any Hedging Agreement,
other than Hedging Agreements entered into in the ordinary course of business
to hedge or mitigate risks to which the Company or any Subsidiary is exposed in
the conduct of its business or the management of its liabilities.


 


SECTION 6.07.  Restricted
Payments; Certain Payments of Indebtedness; Synthetic Purchase Agreements.  (a)
The Company will not, and will not permit any Subsidiary to, declare or make,
or agree to pay or make, directly or indirectly, any Restricted Payment, except
(i) Subsidiaries may declare and pay dividends ratably with respect to their
capital stock, (ii) the Company may purchase shares of Restricted Stock (as
defined in any Incentive Equity Plan) from employees of the Company or its
Subsidiaries upon termination of such employees’ employment, in accordance with
an Incentive Equity Plan in amounts not to exceed $2,000,000 during any fiscal
year and $10,000,000 in the aggregate after the 2004 Amendment and Restatement
Date and during the term of this Agreement, and (iii) the Company may make
Restricted Payments in addition to those permitted pursuant to the foregoing
clauses if (A) no Default shall have occurred and be continuing and (B) after
giving effect to any such payment, the cumulative amount of all payments made
in reliance on this clause (iii) after the 2004 Amendment and Restatement Date
does not exceed the sum of 


 


65





















 


$50,000,000 plus 50% of Cumulative Net Income calculated on the
date of such payment.


 


For purposes of this Section 6.07, “Cumulative  Net  Income” means, on any date of
determination, the cumulative amount of net income, if any (less the cumulative
amount of net loss, if any), of the Company and its Subsidiaries, determined on
a consolidated basis, for each fiscal quarter of the Company from and including
the fiscal quarter ended December 31, 2004 to and including the fiscal
quarter of the Company most recently ended prior to such date of determination
for which financial statements are in existence.


 


(b)           The Company will
not, and will not permit any Subsidiary to, make or agree to pay or make,
directly or indirectly, any payment or other distribution (whether in cash,
securities or other property) of or in respect of principal of or interest on
any Indebtedness, or any payment or other distribution (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement, acquisition, cancellation
or termination of any Indebtedness (including any payment in respect of
subordinated Indebtedness under a Synthetic Purchase Agreement), except:


 


(i)             payment
of Indebtedness created under the Loan Documents;


 


(ii)            payment
of regularly scheduled interest and principal payments as and when due in
respect of any Indebtedness, other than payments in respect of subordinated
Indebtedness prohibited by the subordination provisions thereof;


 


(iii)           refinancings
of Indebtedness to the extent permitted by Section 6.01; and


 


(iv)           payment
of secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness.


 


(c)           The Company will
not, and will not permit any Subsidiary to, enter into or be party to, or make
any payment under, any Synthetic Purchase Agreement unless (i) in the case of
any Synthetic Purchase Agreement related to any Equity Interests, (A) the
payments required to be made thereunder are limited to the amount permitted
under paragraph (a) of this Section 6.07 and (B) the obligations of the
Company and the Subsidiaries thereunder are subordinated to the Obligations on
terms satisfactory to the Required Lenders; and (ii) in the case of any
Synthetic Purchase Agreement related to any subordinated Indebtedness, (A) the
payments required to be made thereunder are limited to the amount permitted
under paragraph (b) of this Section 6.07 of this Agreement and (B) the
obligations of the Company and the Subsidiaries thereunder are subordinated to
the Obligations to at least the same extent as the subordinated Indebtedness to
which such Synthetic Purchase Agreement relates.  The Company shall 


 


66





















 


promptly deliver to the Administrative Agent a copy of any Synthetic
Purchase Agreement to which it becomes party.


 


SECTION 6.08.  Transactions
with Affiliates.  The Company will not, and
will not permit any Subsidiary to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, make any investment in, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) transactions in the
ordinary course of business that are at prices and on terms and conditions not
less favorable to the Company or such Subsidiary than could be obtained on an
arm’s-length basis from unrelated third parties, (b) transactions between or
among the Company and the Subsidiary Loan Parties not involving any other
Affiliate, (c) any Restricted Payment permitted by Section 6.07, and (d)
any investment permitted by Section 6.04; provided
that (a) any Affiliate of the Company who is an individual may serve as a
director, officer or employee of the Company and receive reasonable
compensation or indemnification in connection with his or her services in such
capacity and (b) the Company may pay commissions to Georgia Gulf Export
Corporation on sales of qualified “Export Property” (as defined in Section 927
of the Code) in accordance with Section 925 of the Code and the rules and
regulations thereunder.


 


SECTION 6.09.  Restrictive
Agreements.  The Company will not, and
will not permit any Subsidiary to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of the Company or any Subsidiary to
create, incur or permit to exist any Lien upon any of its property or assets,
(b) the ability of any Subsidiary to pay dividends or other distributions with
respect to any shares of its capital stock or to make or repay loans or
advances to the Company or any other Subsidiary or to Guarantee Indebtedness of
the Company or any other Subsidiary or (c) the ability of the Company to repay
loans or advances to any Subsidiary or to Guarantee Indebtedness of any
Subsidiary; provided that (i) the
foregoing shall not apply to restrictions and conditions imposed by law or by
any Loan Document, document under which any Indebtedness permitted by Section 6.01(a)(ii)  is issued or document evidencing any
Permitted Receivables Transaction, (ii) the foregoing shall not apply to
restrictions and conditions existing on the date hereof identified on Schedule 6.09
(but shall apply to any extension or renewal of, or any amendment or
modification expanding the scope of, any such restriction or condition), (iii)
the foregoing shall not apply to customary restrictions and conditions
contained in agreements relating to the sale of a Subsidiary pending such sale,
provided such restrictions and conditions apply only to the Subsidiary that is
to be sold and such sale is permitted hereunder, (iv) clause (a) of the
foregoing shall not apply to restrictions or conditions imposed by any
agreement relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing such
Indebtedness and (v) clause (a) of the foregoing shall not apply to customary
provisions in leases and other contracts restricting the assignment thereof.


 


67





















 


SECTION 6.10.  Amendment
of Material Documents.  The Company will not, and
will not permit any Subsidiary to, consent to any modification, supplement or
waiver of any of the provisions of (a) the Praxair PIK Note or (b) promissory
notes or other instruments evidencing Indebtedness permitted to exist under Section 6.01
(each document and instrument described in clauses (a)-(b) hereof, a “Material  Contract”)
in any respect to the extent such modification, supplement or waiver would
impair materially the benefit to the Company or the Lenders of such Material
Contract (it being understood that any modification, supplement or waiver of
any Material Contract which adversely affects the rights of the Lenders under
the Loan Documents or could reasonably be expected to result in a Material
Adverse Change shall be deemed to impair materially the benefit of such
Material Contract to the Company or the Lenders for purposes hereof), without
the prior written consent of the Administrative Agent (with the approval of the
Required Lenders). The Company will not, and will not permit any Subsidiary to,
request or consent to any amendment, modification or waiver of any of its
rights under any document under which any subordinated Indebtedness has been
issued, the Existing Indentures or the Existing Notes without the prior written
consent of the Required Lenders.


 


SECTION 6.11.  Accounting
Changes.  The Company will not change
its fiscal year from a fiscal year ending December 31.  The Company will not adopt any non-mandatory
change in GAAP or the application thereof without 30 days’ prior notice to the
Lenders, accompanied, in the case of any material change, by evidence of
concurrence in such change by the public accounting firm regularly employed by
the Company.


 


SECTION 6.12.  Sale
and Leaseback.  Neither the Company nor any
of its Subsidiaries will engage in any Sale-Leaseback Transactions which,
considered in the aggregate with all Sale-Leaseback Transactions engaged in by
the Company and its Subsidiaries after the 2004 Amendment and Restatement Date
and during the term of this Agreement, involve properties having a fair market
value in excess of $10,000,000.


 


SECTION 6.13.  Bank
Accounts.  Other than as set forth on Schedule 6.13,
the Company has no bank accounts or other deposit accounts. Neither the Company
nor any Subsidiary Loan Party will maintain any accounts with any bank or
financial institution having outstanding daily collected balances at any one
time exceeding $2,000,000 in the aggregate, other than (i) the Collateral
Account referred to in the Collateral Agreement, and (ii) any accounts (x)
maintained solely to collect amounts collected in connection with a Permitted
Receivables Transaction or (y) maintained solely to meet payroll disbursements
with respect to employees of the Company or the Subsidiary Loan Parties; provided that the daily collected balances
of such payroll accounts shall not, when added together with the daily
collected balances outstanding under any other accounts of the Company and the
Subsidiary Loan Parties (other than the Collateral Account described above),
exceed $4,000,000.


 


68





















 


SECTION 6.14.  Capital
Expenditures.  For any fiscal year of the
Company, Capital Expenditures shall not exceed the sum of:


 


(i)             $40,000,000,
plus


 


(ii)            for
each fiscal year beginning on or after January 1, 2005, 50% of Excess Cash
Flow for the prior fiscal year, plus


 


(iii)           an
amount equal to the excess of the aggregate amount of Capital Expenditures
permitted under this Section prior to January 1, 2004 over the
aggregate amount of Capital Expenditures made during such period, plus


 


(iv)           an
amount equal to the excess (if any) of (A) the aggregate amount of Capital
Expenditures permitted by clauses (i) – (iii) above for all fiscal years of the
Company beginning on or after January 1, 2004 and ending prior to such
fiscal year over (B) the aggregate amount of Capital Expenditures made in such
prior fiscal years.


 


For purposes of this Section 6.14, “Capital
Expenditures” shall not include expenditures otherwise permitted under this
Agreement to purchase or otherwise acquire (in one transaction or a series of
transactions) any assets of any other Person constituting a business unit.


 


SECTION 6.15.  Leverage
Ratio.  At the last day of any
fiscal quarter of the Company, the Leverage Ratio will not exceed 3.75:1.


 


SECTION 6.16.  Interest
Coverage Ratio.  At the last day of any
fiscal quarter of the Company, the ratio of (a) Consolidated EBITDA to (b)
Consolidated Cash Interest Expense, in each case for the period of four
consecutive fiscal quarters ending on such date, will not be less than 3.0:1.


 


 


ARTICLE 7


EVENTS OF DEFAULT


 


If any of the following events (“Events of Default”) shall occur:


 


(a)           any
Borrower shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become
due and payable, whether at the due date thereof or at a date fixed for prepayment
thereof or otherwise, and such failure shall continue unremedied for a period
of one Business Day;


 


69










 















 


(b)                                 any Borrower shall
fail to pay any interest on any Loan or any fee or any other amount (other than
an amount referred to in clause (a) of this Article) payable under this
Agreement or any other Loan Document, when and as the same shall become due and
payable, and such failure shall continue unremedied for a period of three
Business Days;


 


(c)                                  any representation or
warranty made or deemed made by or on behalf of the Company or any Subsidiary
in or in connection with any Loan Document or any amendment or modification
thereof or waiver thereunder, or in any report, certificate, financial
statement or other document furnished pursuant to or in connection with any
Loan Document or any amendment or modification thereof or waiver thereunder,
shall prove to have been incorrect in any material respect when made or deemed
made;


 


(d)                                 any
Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02(a), 5.04 (with respect to the existence of such
Borrower) or 5.11 or in Article 6;


 


(e)                                  any Loan Party shall
fail to observe or perform any covenant, condition or agreement contained in
any Loan Document (other than those specified in clause (a), (b) or (d) of this
Article), and such failure shall continue unremedied for a period of
30 days after notice thereof from the Administrative Agent to the Company
(which notice will be given at the request of any Lender);


 


(f)                                    the
Company or any Subsidiary shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material
Indebtedness when due or within any applicable grace period for such payment;


 


(g)                                 any event or condition
occurs that results in any Material Indebtedness becoming due prior to its
scheduled maturity or that enables or permits (with or without the giving of
notice, the lapse of time or both) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any
Material Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall
not apply to secured Indebtedness that becomes due as a result of the voluntary
sale or transfer of the property or assets securing such Indebtedness;


 


(h)                                 an involuntary
proceeding shall be commenced or an involuntary petition shall be filed seeking
(i) liquidation, reorganization or other relief in respect of the Company
or any Subsidiary or its debts, or of a substantial part of its assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Company or any
Subsidiary or for a substantial part of its assets, and, in any such case, such
proceeding or petition shall continue


 


70





















 


undismissed for
60 days or an order or decree approving or ordering any of the foregoing
shall be entered;


 


(i)                                     the Company or any
Subsidiary shall (i) voluntarily commence any proceeding or file any
petition seeking liquidation, reorganization or other relief under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter
in effect, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in clause
(h) of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for
the Company or any Subsidiary or for a substantial part of its assets,
(iv) file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the
benefit of creditors or (vi) take any action for the purpose of effecting
any of the foregoing;


 


(j)                                     the
Company or any Subsidiary shall become unable, admit in writing its inability
or fail generally to pay its debts as they become due;


 


(k)                                  one or more judgments
for the payment of money in an aggregate amount in excess of $10,000,000 shall
be rendered against the Company, any Subsidiary or any combination thereof and
the same shall remain undischarged (and provision shall not be made for such
discharge) for a period of 30 consecutive days during which execution
shall not be effectively stayed, (ii) the Company or such Subsidiary shall not,
within said period of 30 days, or such longer period during which execution of
the same shall have been stayed, appeal therefrom and cause the execution
thereof to be stayed during such appeal, or (iii) such judgment or judgments
shall not be discharged (or provisions shall not be made for such discharge)
within 30 days after a decision has been reached with respect to such appeal
and the related stay has been lifted, or (iv) any action shall be legally taken
by a judgment creditor to attach or levy upon any assets of the Company or any
Subsidiary to enforce any such judgment;


 


(l)                                     an
ERISA Event shall have occurred that, in the opinion of the Required Lenders,
when taken together with all other ERISA Events that have occurred, could
reasonably be expected to result in liability of the Company and its
Subsidiaries in an aggregate amount exceeding $10,000,000;


 


(m)                               any Lien purported to be
created under any Security Document shall cease to be, or shall be asserted by
any Loan Party not to be, a valid and perfected Lien on any Collateral, with
the priority required by the applicable Security Document, except (i) as a
result of the sale or other disposition of the applicable Collateral in a
transaction permitted under the Loan Documents, (ii) as a result of the
Administrative Agent’s failure to maintain possession of any stock
certificates, promissory notes or other instruments delivered to it under the
Collateral Agreement or (iii) as a result of the Collateral Agent’s failure to
make any required filing of a continuation statement under


 


71





















 


the Uniform
Commercial Code or, after a request in writing from the Company, any other
required filing with respect to such Lien;


 


(n)                                 a
Change in Control shall occur; or


 


(o)                                 the
Guarantee of any Subsidiary Loan Party under the Collateral Agreement shall at
any time fail to constitute a valid and binding agreement of such Subsidiary
Loan Party, or any party shall so assert in writing;


 


then, and in every such event (other than an event with respect to any
Borrower described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Company,
take either or both of the following actions, at the same or different
times:  (i) terminate the Revolving Commitments, and thereupon
the Revolving Commitments shall terminate immediately, and (ii) declare
the Loans then outstanding to be due and payable in whole (or in part, in which
case any principal not so declared to be due and payable may thereafter be
declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of each Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by each Borrower; and in case of
any event with respect to any Borrower described in clause (h) or (i) of this
Article, the Revolving Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of each Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by each Borrower.


 


ARTICLE 8


THE AGENT


 


Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Agent as its agent and authorizes the Agent to take such actions on its behalf
and to exercise such powers as are delegated to the Agent by the terms of the
Loan Documents, together with such actions and powers as are reasonably
incidental thereto.


 


The bank serving as the Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Agent, and such bank and its Affiliates may
accept deposits from, lend money to and generally engage in any kind of
business with the Company or any Subsidiary or other Affiliate thereof as if it
were not the Agent hereunder.


 


72





















 


The Agent shall not have any duties or obligations except those
expressly set forth in the Loan Documents. 
Without limiting the generality of the foregoing, (a) the Agent
shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) the Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated by the
Loan Documents that the Agent is required to exercise in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 10.02), and (c)
except as expressly set forth in the Loan Documents, the Agent shall not have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Company or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Agent or any of its
Affiliates in any capacity.  The Agent
shall not be liable for any action taken or not taken by it with the consent or
at the request of the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary under the circumstances as provided in Section 10.02)
or in the absence of its own gross negligence or wilful misconduct.  The Agent shall not be deemed to have
knowledge of any Default unless and until written notice thereof is given to
the Agent by the Company or a Lender (or, in the case of the Collateral Agent,
until receipt of advice from the Administrative Agent), and the Agent shall not
be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document
delivered thereunder or in connection therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth
in Article 4 or elsewhere in any Loan Document, other than to confirm
receipt of items expressly required to be delivered to the Agent.


 


The Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person.  The Agent also may rely upon any statement
made to it orally or by telephone and believed by it to be made by the proper
Person, and shall not incur any liability for relying thereon.  The Agent may consult with legal counsel (who
may be counsel for any Loan Party), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.


 


The Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by the
Agent.  The Agent and any such sub-agent
may perform any and all its duties and exercise its rights and powers through
their respective Related Parties.  The
exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent
and to the Related Parties of the Agent and


 


73





















 


any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Agent.


 


Subject to the appointment and acceptance of a successor the
Administrative Agent as provided in this paragraph, the Administrative Agent
may resign at any time by notifying the Lenders, the Issuing Bank and the
Company.  Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Company, to
appoint a successor.  If no successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders and the Issuing Bank, appoint a successor Administrative
Agent which shall be a bank with an office in New York, New York, or an
Affiliate of any such bank.  Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder.  The fees payable by the
Company to a successor Administrative Agent shall be the same as those payable to
its predecessor unless otherwise agreed between the Company and such
successor.  After the Administrative
Agent’s resignation hereunder, the provisions of this Article and Section 10.03
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while it was acting as
Administrative Agent.


 


Each Lender acknowledges that it has, independently and without
reliance upon the Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. 
Each Lender also acknowledges that it will, independently and without
reliance upon the Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or related agreement or any document furnished
hereunder or thereunder.


 


Neither JPMorgan Chase Bank, N.A. nor Bank of
America, N.A. shall have any responsibility,
obligation or liability under the Loan Documents in its capacity as Syndication
Agent or Documentation Agent, respectively.


 


74





















 


ARTICLE 9


REPRESENTATIONS AND WARRANTIES OF ELIGIBLE
SUBSIDIARIES


 


Each Eligible Subsidiary represents and warrants to the Lenders that:


 


SECTION 9.01.  Organization; Power.  It
is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization, has all requisite power and authority to carry on
its business as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Change, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.  All of the Equity Interests of such Eligible
Subsidiary are directly or indirectly owned by the Company.


 


SECTION 9.02.  Authorization; Enforceability; Contravention.  The Transactions to be
entered into by such Eligible Subsidiary are within its limited liability
company powers, have been duly authorized by all necessary limited liability
company action, require no action by or in respect of, or filing with, any
Governmental Authority and do not contravene, or constitute a default under,
any provision of applicable law or regulation or of its organizational
documents or of any agreement or other instrument binding upon the Company or
such Eligible Subsidiary, or result in the creation or imposition of any Lien
on any asset of the Company or any of its Subsidiaries, except Liens created
under the Loan Documents.  This Agreement
has been duly executed and delivered by such Eligible Subsidiary and
constitutes, and each other Loan Document to which such Eligible Subsidiary is
to be a party, when executed and delivered by it, will constitute, a legal,
valid and binding obligation of such Eligible Subsidiary, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally
and subject to general principles of equity, regardless of whether considered
in a proceeding in equity or at law.


 


ARTICLE 10


MISCELLANEOUS


 


SECTION 10.01.  Notices.  Except
in the case of notices and other communications expressly permitted to be given
by telephone, all notices and other communications provided for herein shall be
in writing and shall be delivered by hand or overnight courier service, mailed
by certified or registered mail or sent by telecopy, as follows:


 


(a)                                  if to the Company, to
it at 115 Perimeter Center Place, Suite 460, Atlanta, Georgia 30346, Attention
of Joel I. Beerman, Vice President and General Counsel  (Telecopy
No. (770) 390-9673), with a copy to the same address,
Attention of Mark Buckis, Corporate Controller (Telecopy No. (770)
395-4572);


 


75





















 


(b)                                 if to any Eligible
Subsidiary, to it c/o the Company at 115 Perimeter Center Place, Suite 460,
Atlanta, Georgia 30346, Attention of Joel I. Beerman, Vice President and
General Counsel  (Telecopy No. (770) 390-9673),
with a copy to the same address, Attention of Mark Buckis, Corporate Controller
(Telecopy No. (770) 395-4572);


 


(c)                                  if to the
Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and Agency Services
Group, 1111 Fannin Street, 10th Floor, Houston, Texas 77002,
Attention of Jaime Garcia (Telecopy No. (713) 427-6307), with a copy to
JPMorgan Chase Bank, N.A., 4th Floor, 270 Park Avenue, New York, New
York 10017, Attention of Peter Dedousis (Telecopy No. (212) 270-5100);


 


(d)                                 if to the Issuing
Bank, to JPMorgan Chase Bank, N.A., Treasury & Securities Services, SBY
Production Tampa, 10420 Highland Mn Drive - BL 2, Floor 4, Tampa, Florida
33610, Attention of James Alonzo (Telecopy No. (813) 432-5161), and


 


(e)                                  if
to any Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.


 


Any party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties hereto.  All notices and other communications given to
any party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt.


 


SECTION 10.02.  Waivers; Amendments.  (a)
No failure or delay by the Administrative Agent, the Issuing Bank or any Lender
in exercising any right or power hereunder or under any other Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof
or the exercise of any other right or power. 
The rights and remedies of the Administrative Agent, the Issuing Bank
and the Lenders hereunder and under the other Loan Documents are cumulative and
are not exclusive of any rights or remedies that they would otherwise have.  No waiver of any provision of any Loan
Document or consent to any departure by any Loan Party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given.  Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default at the time.


 


                                                (b)                                 Except
as provided in clause (c) below, neither this Agreement nor any other Loan
Document nor any provision hereof or thereof may be waived, amended or modified
except, in the case of this Agreement, pursuant to an agreement or agreements
in writing entered into by the Company and the Required Lenders or, in the case
of any


 


76





















 


other Loan Document, pursuant to an agreement or agreements in writing
entered into by the Administrative Agent and the Loan Party or Loan Parties
that are parties thereto, in each case with the consent of the Required
Lenders; provided that no such
agreement shall (i) increase the Revolving Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the maturity of any Loan, or the required date of reimbursement
of any LC Disbursement, or any date for the payment of any interest or fees
payable hereunder, or reduce the amount of, waive or excuse any such payment,
or postpone the scheduled date of expiration of any Revolving Commitment,
without the written consent of each Lender affected thereby, (iv) change Section 2.17(b)
or (c) in a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender, (v) change any of the
provisions of this Section or the percentage set forth in the definition
of “Required Lenders” or any other provision of any Loan Document specifying
the number or percentage of Lenders required to waive, amend or modify any
rights thereunder or make any determination or grant any consent thereunder,
without the written consent of each Lender; provided
that the definition of “Required Lenders” may be amended with the consent of the
Required Lenders to include term loans (in addition to Revolving Exposures and
unused Revolving Commitments) therein in connection with an amendment of this
Agreement that adds one or more term loan tranches, (vi) release the Company or
any Subsidiary Loan Party from its Guarantee under the Collateral Agreement
(except as expressly provided in the Collateral Agreement), or limit its
liability in respect of such Guarantee, without the written consent of each
Lender, (vii) except as expressly provided in clause (c) below or in the
Security Documents, release all or substantially all of the Collateral from the
Liens of the Security Documents, without the written consent of each Lender
affected thereby, or (viii) amend the definition of “Interest Period” such that
an Interest Period applicable to any Borrowing could exceed six months (before
giving effect to the provisions set forth in the proviso to the definition of “Interest
Period”) without the agreement of each Lender participating in such Borrowing; provided further that no such agreement
shall, unless signed by an Eligible Subsidiary, (i) subject such Eligible
Subsidiary to any additional obligation, (ii) increase the principal of or rate
of interest on any outstanding Loan made to such Eligible Subsidiary, (iii)
accelerate the stated maturity of any outstanding Loan to such Eligible
Subsidiary or (iv) change any provisions of this Section; provided further that no such agreement
shall amend, modify or otherwise affect the rights or duties of the Administrative
Agent or the Issuing Bank without the prior written consent of the
Administrative Agent or the Issuing Bank, as the case may be.  Notwithstanding the foregoing provisions
relating to amendments requiring Lender consent (but subject to the second proviso
in this paragraph (b) relating to Eligible Subsidiaries), any provision of this
Agreement may be amended by an agreement in writing entered into by the
Company, the Required Lenders and the Administrative Agent (and, (x) if its
rights or obligations are affected thereby, the Issuing Bank and (y) if
required pursuant to the second proviso of this paragraph, the Eligible
Subsidiaries) if (i) by the terms of such


 


77





















 


agreement the Revolving Commitment of each Lender not consenting to the
amendment provided for therein shall terminate upon the effectiveness of such
amendment and (ii) at the time such amendment becomes effective, each Lender
not consenting thereto receives payment in full of the principal of and
interest accrued on each Loan made by it and all other amounts owing to it or
accrued for its account under this Agreement and the other Loan Documents.


 


(c)               Notwithstanding anything to the contrary
in any Loan Document:


 


(i)                                     the Security
Documents may be amended without the consent of any Lender to that extent
deemed advisable by the Collateral Agent in its sole discretion to secure, as
permitted under Section 6.02(i), Indebtedness permitted under Section 6.01(a)(ii) (which amendments may include, without limitation,
provisions analogous to those already set forth in the Security Documents for “Additional
Bonds Secured Obligations”); and


 


(ii)                                  all or any portion of
the Collateral will be released without the consent of any Lender, upon the
written request of the Company, at any time when the Company’s long-term senior
unsecured Indebtedness is rated at or above BBB- by S&P and Baa3 by Moody’s
and the “Additional Bonds Secured Obligations” (as defined in the Security
Documents) have been paid in full, and so long (but only so long) as such
Indebtedness is so rated the provisions relating to Collateral in this
Agreement shall not apply.


 


SECTION 10.03.  Expenses; Indemnity; Damage Waiver.  (a)
The Company shall pay (i) all reasonable out-of-pocket expenses incurred by the
Agent and its Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Agent, in connection with the syndication of
the credit facilities provided for herein, the preparation, negotiation,
execution, delivery and administration of the Loan Documents or any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder, (iii) all fees (if any) payable by the Agent
to third parties in connection with satisfaction of the conditions set forth in
Article 4 hereof and (iv) all out-of-pocket expenses incurred by the
Agent, the Issuing Bank or any Lender, including the fees, charges and
disbursements of any counsel for the Administrative Agent, the Issuing Bank or
any Lender, in connection with the enforcement or protection of its rights in
connection with the Loan Documents, including its rights under this Section, or
in connection with the Loans made or Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.


 


78





















 


(b)                                 The Company shall
indemnify the Agent, the Issuing Bank and each Lender, and each Related Party
of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of
any Loan Document or any other agreement or instrument contemplated hereby, the
performance by the parties to the Loan Documents of their respective
obligations thereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the
use of the proceeds therefrom (including any refusal by the Issuing Bank to
honor a demand for payment under a Letter of Credit if the documents presented
in connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any Mortgaged Property or any other property
owned or operated by the Company or any of its Subsidiaries, or any
Environmental Liability related in any way to the Company or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is
a party thereto; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or related expenses are determined by
a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of such Indemnitee.


 


(c)                                  To the extent that
the Company fails to pay any amount required to be paid by it to the Agent or
the Issuing Bank under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Agent or the Issuing Bank, as the case may be,
such Lender’s pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Agent in its capacity as
Administrative Agent or Collateral Agent, or against the Issuing Bank in its
capacity as such.  For purposes hereof, a
Lender’s “pro rata share” shall be determined based upon its share of the sum
of the total Revolving Exposures and unused Revolving Commitments at the time.


 


(d)                                 To the extent
permitted by applicable law, no Borrower shall assert, and each Borrower hereby
waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this
Agreement or any agreement or instrument contemplated hereby, the Transactions,
any Loan or Letter of Credit or the use of the proceeds thereof.


 


79





















 


(e)                                  All amounts due under
this Section shall be payable not later than five days after written
demand therefor.


 


SECTION 10.04.  Successors and Assigns.  (a)
The provisions of this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns permitted
hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit),
except that no Borrower may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by any Borrower without such consent shall be
null and void).  Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.


 


(b)                                 Any Lender may assign
to one or more assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Revolving Commitment and the
Loans at the time owing to it); provided
that (i) except in the case of an assignment to a Lender, an Affiliate of
a Lender or a Related Fund of a Lender, the Administrative Agent, the Company
and the Issuing Bank must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld or delayed), (ii) except in
the case of an assignment to a Lender, an Affiliate of a Lender or a Related
Fund of a Lender or an assignment of the entire remaining amount of the
assigning Lender’s Revolving Commitment or Loans, the amount of the Revolving
Commitment or Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$5,000,000 unless each of the Company and the Administrative Agent otherwise
consent, (iii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under
this Agreement (iv) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500; provided
that only one such fee shall be due in respect of a simultaneous assignment to
more than one Related Fund, and (v) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; and provided further
that (x) any consent of the Company otherwise required under clause (i) of this
paragraph shall not be required if an Event of Default has occurred and is
continuing and (y) any consent of the Company otherwise required under clause
(ii) of this paragraph shall not be required if an Event of Default under
clause (h) or (i) of Article 7 has occurred and is continuing.  Subject to acceptance and recording thereof
pursuant to paragraph (d) of this Section, from and after the effective
date specified in each Assignment and Acceptance the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this


 


80





















 


Agreement, and the assigning Lender thereunder shall, to the extent of
the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and
10.03).  Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.


 


(c)                                  The Administrative
Agent, acting for this purpose as an agent of the Borrowers, shall maintain at
one of its offices in The City of New York a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Revolving Commitment of, and principal amount
of the Loans and LC Disbursements owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, and the Borrowers, the Administrative Agent, the Issuing Bank and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by the Borrowers, the Issuing Bank and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.


 


(d)                                 Upon its receipt of a
duly completed Assignment and Acceptance executed by an assigning Lender and an
assignee, the assignee’s completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written
consent to such assignment required by paragraph (b) of this Section, the
Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. 
No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.


 


(e)                                  Any Lender may,
without the consent any of the Borrowers, the Administrative Agent or the
Issuing Bank, sell participations to one or more banks or other entities (a “Participant”) in all or a portion of such
Lender’s rights and obligations under this Agreement (including all or a
portion of its Revolving Commitment and the Loans owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (iii) the Borrowers, the Administrative Agent, the
Issuing Bank and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under
this Agreement.  Any agreement or
instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right
to enforce the Loan Documents and to approve any amendment, modification or
waiver


 


81





















 


of any provision
of the Loan Documents; provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification or
waiver described in the first proviso to Section 10.02(b) that affects
such Participant.  Subject to paragraph
(f) of this Section, each Borrower agrees that each Participant shall be
entitled to the benefits of Sections 2.14, 2.15 and 2.16 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to paragraph
(b) of this Section.  To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 10.08
as though it were a Lender, provided such Participant agrees to be subject to Section 2.17(c)
as though it were a Lender.


 


(f)                                    A Participant shall
not be entitled to receive any greater payment under Section 2.14 or 2.16
than the applicable Lender would have been entitled to receive with respect to
the participation sold to such Participant, unless the sale of the participation
to such Participant is made with the Company’s prior written consent.  A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.16
unless the Company is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrowers, to comply with Section 2.16(e)
as though it were a Lender.


 


(g)                                 Any Lender may at any
time pledge or assign a security interest in all or any portion of its rights
under this Agreement to secure obligations of such Lender, including any pledge
or assignment to secure obligations to a Federal Reserve Bank, and any Lender
that is a fund that invests in bank loans may, without the consent of the
Administrative Agent or the Company, pledge all or a portion of its rights
under this Agreement and any notes issues pursuant hereto to its trustee in
support of its obligations to its trustee or its noteholders; provided that any foreclosure or exercise
of remedies by such trustee shall be subject in all respects to the provisions
of this Section regarding assignments. This Section shall not apply
to any such pledge or assignment of a security interest; provided that no such pledge or assignment
of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.


 


SECTION 10.05.  Survival.  All
covenants, agreements, representations and warranties made by the Loan Parties
in the Loan Documents and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of the Loan Documents and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or knowledge
of any Default or incorrect representation or warranty at the time any credit
is extended hereunder, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any fee or any other
amount payable under this


 


82





















 


Agreement is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Revolving Commitments
have not expired or terminated.  The
provisions of Sections 2.14, 2.15, 2.16 and 10.03 and Article 8 shall
survive and remain in full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of the Loans, the
expiration or termination of the Letters of Credit and the Revolving Commitments
or the termination of this Agreement or any provision hereof.


 


SECTION 10.06.  Counterparts; Integration.  This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract.  This Agreement, the other Loan Documents and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof.  On and after the 2004 Amendment and
Restatement Date, this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.  Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of
a manually executed counterpart of this Agreement.


 


SECTION 10.07.  Severability.  Any
provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.


 


SECTION 10.08.  Right of Setoff.  If
an Event of Default shall have occurred and be continuing, each Lender and each
of its Affiliates is hereby authorized 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 obligations at any time owing by such Lender or Affiliate to or for the
credit or the account of any Borrower against any of and all the obligations of
such Borrower now or hereafter existing under this Agreement held by such
Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement and although such obligations may be unmatured.  The rights of each Lender under this Section are
in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.


 


SECTION 10.09.  Governing
Law; Jurisdiction; Consent to Service of Process.  (a)
This Agreement shall be construed in accordance with and governed by the law of
the State of New York.


 


83





















 


(b)                                 Each Borrower hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action
or proceeding arising out of or relating to any Loan Document, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court.  Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.  Nothing in this
Agreement or any other Loan Document shall affect any right that the
Administrative Agent, the Issuing Bank or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan
Document against any Borrower or its properties in the courts of any
jurisdiction.


 


(c)                                  Each Borrower hereby
irrevocably and unconditionally waives, to the fullest extent it may legally
and effectively do so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Agreement or any other Loan Document in any court referred to in paragraph
(b) of this Section.  Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.


 


(d)                                 Each party to this
Agreement irrevocably consents to service of process in the manner provided for
notices in Section 10.01.  Nothing
in this Agreement or any other Loan Document will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.


 


SECTION 10.10.  WAIVER OF JURY TRIAL.  EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY).  EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.


 


84





















 


SECTION 10.11.  Headings.  Article and
Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this
Agreement.


 


SECTION 10.12.  Confidentiality.  Each
of the Administrative Agent, the Issuing Bank and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ directors,
officers, employees and agents, including accountants, legal counsel and other
advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by (i)
any regulatory authority, (ii) the National Association of Insurance
Commissioners or similar organization or (iii) any nationally recognized agency
that requires access to information about a Lender’s investment portfolio in
connection with ratings issued with respect to such Lender, (c) to the
extent required by applicable laws or regulations or by any subpoena or similar
legal process, (d) to any other party to this Agreement, (e) in connection with
the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, (i) to any assignee
of or Participant in, or any prospective assignee of or Participant in, any of
its rights or obligations under this Agreement or (ii) to any direct or
indirect contractual counterparty to swap agreements or such contractual
counterparty’s professional advisor, (g) with the consent of the Company or
(h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent, the Issuing Bank or any Lender on a nonconfidential
basis from a source other than the Company. 
For the purposes of this Section, “Information”
means all information received from the Company relating to the Company or its
business, other than any such information that is available to the Administrative
Agent, the Issuing Bank or any Lender on a nonconfidential basis prior to
disclosure by the Company; provided
that, in the case of information received from the Company after the date
hereof, such information is clearly identified at the time of delivery as
confidential.  Any Person required to maintain the confidentiality of Information as provided
in this Section shall be considered to have complied with its obligation
to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.


 


SECTION 10.13.  Interest Rate Limitation.  Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated
as interest on such Loan under applicable law (collectively the “Charges”), shall exceed the maximum lawful
rate (the “Maximum Rate”) which
may be contracted for, charged, taken, received or reserved by the Lender
holding such Loan in accordance with applicable law, the rate of interest


 


85





















 


payable in respect of such Loan hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to the
extent lawful, the interest and Charges that would have been payable in respect
of such Loan but were not payable as a result of the operation of this Section shall
be cumulated and the interest and Charges payable to such Lender in respect of
other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received
by such Lender.


 


SECTION 10.14.  USA PATRIOT Act.  Each
Lender hereby notifies the Company and the Eligible Subsidiaries that pursuant
to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001)) (the “Act”), it is required to obtain,
verify and record information that identifies the Borrowers, which information
includes the name and address of the Borrowers and other information that will
allow such Lender to identify the Borrowers in accordance with the Act.


 


86





















 


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.


 


	
   

  	
  GEORGIA GULF CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ JOEL I. BEERMAN

  	
   

  
	
   

  	
   

  	
  Name:

  	
  JOEL I. BEERMAN

  
	
   

  	
   

  	
  Title:

  	
  VICE PRESIDENT

  
	
   

  	
   

  
	
   

  	
  GEORGIA GULF CHEMICALS &

  VINYLS, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ JOEL I. BEERMAN

  	
   

  
	
   

  	
   

  	
  Name:

  	
  JOEL I. BEERMAN

  
	
   

  	
   

  	
  Title:

  	
  VICE PRESIDENT

  
	
   

  	
   

  
	
   

  	
  GEORGIA GULF LAKE CHARLES,

  LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ JOEL I. BEERMAN

  	
   

  
	
   

  	
   

  	
  Name:

  	
  JOEL I. BEERMAN

  
	
   

  	
   

  	
  Title:

  	
  VICE PRESIDENT

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.

  (formerly known as JPMORGAN

  CHASE BANK and as THE CHASE

  MANHATTAN BANK), as

  Administrative Agent, Syndication

  Agent and Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ PETER A. DEDOUSIS

  	
   

  
	
   

  	
   

  	
  Name:

  	
  PETER A. DEDOUSIS

  
	
   

  	
   

  	
  Title:

  	
  MANAGING DIRECTOR

  
					



 





















 


	
  LENDERS

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ PETER A. DEDOUSIS

  	
   

  
	
   

  	
   

  	
  Name:

  	
  PETER A. DEDOUSIS

  
	
   

  	
   

  	
  Title:

  	
  MANAGING DIRECTOR

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ COLLEEN M. BRISCOE

  	
   

  
	
   

  	
   

  	
  Name:

  	
  COLLEEN M. BRISCOE

  
	
   

  	
   

  	
  Title:

  	
  VICE PRESIDENT

  
	
   

  	
   

  
	
   

  	
  BANK OF TOKYO-MITSUBISHI

  TRUST COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ R. TOYOSHIMA

  	
   

  
	
   

  	
   

  	
  Name:

  	
  R. TOYOSHIMA

  
	
   

  	
   

  	
  Title:

  	
  AUTHORIZED SIGNATORY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LASALLE BANK NATIONAL

  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ ERIC HARVEY

  	
   

  
	
   

  	
   

  	
  Name:

  	
  ERIC HARVEY

  
	
   

  	
   

  	
  Title:

  	
  AVP

  
	
   

  	
   

  
								



 





















 


	
   

  	
  MIZUHO CORPORATE BANK,

  LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ RAYMOND VENTURA

  	
   

  
	
   

  	
   

  	
  Name:  RAYMOND VENTURA

  
	
   

  	
   

  	
  Title:    SENIOR VICE PRESIDENT

  
	
   

  	
   

  
	
   

  	
  SUNTRUST BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ KELLY GUNTER

  	
   

  
	
   

  	
   

  	
  Name:  KELLY GUNTER

  
	
   

  	
   

  	
  Title:    VICE PRESIDENT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WACHOVIA BANK, NATIONAL

  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ BARBARA VAN MEERTAN

  	
   

  
	
   

  	
   

  	
  Name:  BARBARA VAN MEERTAN

  
	
   

  	
   

  	
  Title:    DIRECTOR

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PNC BANK, NATIONAL

  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ JAMES A. FINK

  	
   

  
	
   

  	
   

  	
  Name:  JAMES A. FINK

  
	
   

  	
   

  	
  Title:    MANAGING DIRECTOR

  
	
   

  	
   

  
	
   

  	
  RBC CENTURA BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ WILLIAM B. NIXON

  	
   

  
	
   

  	
   

  	
  Name:  WILLIAM B. NIXON

  
	
   

  	
   

  	
  Title:    MANAGING DIRECTOR

  
											



 





















 


	
   

  	
  UFJ BANK LIMITED

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ GARY WEISS

  	
   

  
	
   

  	
   

  	
  Name:

  	
  GARY WEISS

  
	
   

  	
   

  	
  Title:

  	
  VICE PRESIDENT

  
	
   

  	
   

  
					



 





















 


Schedule 1.01


Existing Letters of Credit


 


	
  Number

  	
   

  	
  Beneficiary

  	
   

  	
  Amount

  	
   

  	
  Current Expiration Date

  	
   

  
	
  P-298425

  	
   

  	
  Texas Commission on Environmental Quality

  	
   

  	
  $

  	
  139,438

  	
   

  	
  March 2, 2005

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  P-299488

  	
   

  	
  Secretary Louisiana Department of Environmental Quality

  	
   

  	
  $

  	
  1,851,987

  	
   

  	
  March 31, 2005

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  P-299491

  	
   

  	
  Secretary Louisiana Department of Environmental Quality

  	
   

  	
  $

  	
  2,717,582

  	
   

  	
  March 31, 2005

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  P-299486

  	
   

  	
  Secretary Louisiana Department of Environmental Quality

  	
   

  	
  $

  	
  665,048

  	
   

  	
  March 31, 2005

  	
   

  



 





















 


Schedule 2.01


Commitment Schedule


 


	
   

  	
   

  	
  Revolving

  Commitments

  	
   

  
	
  JPMorgan Chase Bank, N.A.

  	
   

  	
  $

  	
  20,000,000.00

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  20,000,000.00

  	
   

  
	
  Bank of Tokyo-Mitsubishi Trust Company

  	
   

  	
  $

  	
  17,000,000.00

  	
   

  
	
  LaSalle Bank, N.A.

  	
   

  	
  $

  	
  17,000,000.00

  	
   

  
	
  Mizuho Corporate Bank, Ltd.

  	
   

  	
  $

  	
  17,000,000.00

  	
   

  
	
  SunTrust Bank

  	
   

  	
  $

  	
  17,000,000.00

  	
   

  
	
  Wachovia Bank, National Association

  	
   

  	
  $

  	
  17,000,000.00

  	
   

  
	
  PNC Bank, National Association

  	
   

  	
  $

  	
  15,000,000.00

  	
   

  
	
  RBC Centura Bank

  	
   

  	
  $

  	
  15,000,000.00

  	
   

  
	
  UFJ Bank Limited

  	
   

  	
  $

  	
  15,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  170,000,000.00

  	
   

  



 





















 


SCHEDULE 3.05


Real Property


 


	
  I.

  	
  Owned Real Estate

  
	
   

  	
   

  
	
   

  	
  1.

  	
  20043 Highway 51

  Gallman, MS 39083

  
	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  3503 Pasadena Freeway

  Pasadena, TX 77501

  
	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  26100 Highway 405

  Plaquemine, LA 70764

  
	
   

  	
   

  	
   

  
	
   

  	
  4.

  	
  56505 A Evergreen Road

  Plaquemine, LA 70764

  
	
   

  	
   

  	
   

  
	
   

  	
  5.

  	
  Highway 21

  Tiptonville, TN 38079

  
	
   

  	
   

  	
   

  
	
   

  	
  6.

  	
  715 Highway 25-South

  Aberdeen, MS 39730

  
	
   

  	
   

  	
   

  
	
   

  	
  7.

  	
  210 Industrial Drive North

  Madison, MS 39110

  
	
   

  	
   

  	
   

  
	
   

  	
  8.

  	
  1600 VCM Plant Road

  Westlake, LA 70669

  
	
   

  	
   

  	
   

  
	
   

  	
  9.

  	
  10068 Summit Drive

  Prairie, MS 39756

  
	
   

  	
   

  	
   

  
	
   

  	
  10.

  	
  5200 Southeast 59th

  Oklahoma City, OK 73135

  



 





















 


	
  II.

  	
  Leased Real Property

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  11211 Industriplex Boulevard

  Suite 200

  Baton Rouge, LA 70809-4111

  
	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  2900 North Loop West

  Suite 1200

  Houston, TX 77092

  
	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  115 Perimeter Center Place

  Suite 460

  Atlanta, GA 30346

  



 





















SCHEDULE 3.06


Disclosed Matters


 


 


None


 





















 


SCHEDULE 3.12


Subsidiaries


 


 




	
  Subsidiary Name

  	
   

  	
  Ownership interest

  of Company

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Georgia Gulf Chemicals & Vinyls, LLC*

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Georgia Gulf Lake Charles, LLC*

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Georgia Gulf Europe, ApS

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  GGRC Corp.

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  GG Terminal Management Corporation*

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Great River Oil & Gas Corporation*

  	
   

  	
  100

  	
  %

  






 


 










* Subsidiary Loan Party


 





















 


SCHEDULE 6.01


Existing
Indebtedness


 


 


None


 





















 


SCHEDULE 6.02


Existing Liens


 


 


Judgment lien Filed in Mortgage Book 309,
Entry 136, Iberville Parish, Louisiana, October 29, 1997:


 


Ricky McSwain, et al. v. Duff-Norton Company
and Georgia Gulf Corporation, No. 40599, Division: C,
18th Judicial Court, Parish of Iberville, State of Louisiana, October 20,
1997


 


The obligations which were secured by the
aforementioned judgment lien have been satisfied in full, although notice of
the lien remains of record in the official records of the Iberville Parish,
Louisiana, real property records.  The Company is in the process of clearing
notice of the lien from the official records.


 





















 


SCHEDULE 6.04


Existing
Investments


 


 


None


 





















 


SCHEDULE 6.09


Restrictive
Agreements and Conditions


 


 


None


 





















 


SCHEDULE 6.13


Bank
Accounts or Other Deposit Accounts


 


 


Georgia Gulf Corporation


 


Master account


JPMorgan Chase Bank


New York, NY


ABA No.: 021-000-021


Account Number:  910-2624-310


 


Euro account


JPMorgan Chase Bank


London, United Kingdom


Account Number:  22174602


 


Lockbox


Wachovia Bank of Georgia


Atlanta, GA


ABA No.: 
061-000-227


Account Number:  2000183406671


 


Disbursements


JPMorgan Chase Bank


Wilmington, DE


1.           Account Number:  6301-464099-509


2.           Account Number:  6301-464115-509


 


 


GGRC Corp.


 


Lockbox


Wachovia Bank


Atlanta, GA


ABA No.: 
061-000-227


Account Number:  2000143117968


 


Disbursement


PNC Bank


Wilmington, DE


Account Number:  58-0546-5786


 





















 


Georgia Gulf Europe ApS


 


JPMorgan Chase Bank


London, United Kingdom


Account Number:  22174601


 


Georgia Gulf Lake Charles LLC


 


JPMorgan Chase Bank


Wilmington, DE


Account Number:  6301-506089-509


 





















 


EXHIBIT A


 


 


ASSIGNMENT AND ACCEPTANCE


 


AGREEMENT dated as of                ,
        among [NAME OF ASSIGNOR] (the “Assignor”) and [NAME OF ASSIGNEE] (the “Assignee”).


 


WHEREAS, this Assignment and Acceptance (the “Agreement”) relates to the Credit Agreement
dated as of November 12, 1999 among Georgia Gulf Corporation (the “Company”),
the Eligible Subsidiaries referred to therein (together with the Company, the “Borrowers”),
the Assignor and the other Lenders party thereto and JPMorgan Chase Bank, N.A.
(formerly known as JPMorgan Chase Bank and The Chase Manhattan Bank), as
Administrative Agent (the “Administrative
Agent”), Syndication Agent and Collateral Agent (as amended and
restated as of November 23, 2004 and further amended from time to time,
the “Credit Agreement”);


 


[WHEREAS, as provided under the Credit
Agreement, the Assignor has a Revolving Commitment to make Loans to the
Borrowers and participate in Letters of Credit in an aggregate principal amount
at any time outstanding not to exceed $               ;]


 


[WHEREAS, Loans made to the Borrowers by the
Assignor under the Credit Agreement in the aggregate principal amount of $               
are outstanding at the date hereof;]


 


[WHEREAS, Letters of Credit with a total amount
available for drawing thereunder of $               
are outstanding at the date hereof; and]


 


WHEREAS, the Assignor proposes to assign to
the Assignee all of the rights of the Assignor under the Credit Agreement in
respect of a portion of its Revolving Commitment thereunder in an amount equal
to $               
(the “Revolver Assigned Amount”),
together with a corresponding portion of each of its outstanding Loans and its
LC Exposure, and the Assignee proposes to accept such assignment and assume the
corresponding obligations of the Assignor under the Credit Agreement;


 


NOW, THEREFORE, in consideration of the
foregoing and the mutual agreements contained herein, the parties hereto agree
as follows:


 


SECTION 1. 
Definitions. 
All capitalized terms not otherwise defined herein
have the respective meanings set forth in the Credit Agreement.


 


SECTION 2. 
Assignment. 
The Assignor hereby assigns and sells to the Assignee
all of the rights of the Assignor under the Credit Agreement to the extent of
the Revolver Assigned Amount and a corresponding portion of each of its
outstanding Loans and its LC


 


A-1





















 


Exposure, and the Assignee hereby accepts
such assignment from the Assignor and assumes all of the obligations of the
Assignor under the Credit Agreement to the extent of the Revolver Assigned
Amount and the corresponding portion of each of its Loans and its LC
Exposure.  Upon the execution and
delivery hereof by the Assignor and the Assignee [and by the Company, the
Administrative Agent and the Issuing Bank](1) and the payment of the amounts
specified in Section 3 required to be paid on the date hereof (i) the
Assignee shall, as of the date hereof, succeed to the rights and be obligated
to perform the obligations of a Lender under the Credit Agreement with a
Revolving Commitment in an amount equal to the Revolver Assigned Amount and
acquire the rights of the Assignor with respect to a corresponding portion of
each of its outstanding Loans and (ii) the Revolving Commitment of the Assignor
shall, as of the date hereof, be reduced by the Revolver Assigned Amount, and
the Assignor shall be released from its obligations under the Credit Agreement
to the extent such obligations have been assumed by the Assignee.  The assignment provided for herein shall be
without recourse to the Assignor.


 


SECTION 3. 
Payments. 
As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor
on the date hereof in Federal funds the amount heretofore agreed between them.(2)  Commitment fees
and letter of credit participation fees accrued before the date hereof are for
the account of the Assignor and such fees accruing on and after the date hereof
with respect to the Assigned Amount are for the account of the Assignee.  Each of the Assignor and the Assignee agrees
that if it receives any amount under the Credit Agreement which is for the
account of the other party hereto, it shall receive the same for the account of
such other party to the extent of such other party’s interest therein and
promptly pay the same to such other party.


 


[SECTION 4. 
Consent of the Company, the Administrative
Agent and the Issuing Bank. 
This Agreement is conditioned upon the consent of the
Company, the Administrative Agent and the Issuing Bank pursuant to Section 9.04(b)
of the Credit Agreement.]1


 


SECTION 5. 
Non-Reliance on Assignor.  The
Assignor makes no representation or warranty in connection with, and shall have
no responsibility with respect to, the solvency, financial condition or
statements of any Loan Party, or the validity and enforceability of any Loan
Party’s obligations under the Loan Documents or any note issued
thereunder.  The Assignee acknowledges
that it has, independently and without reliance on the Assignor, and based on
such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and will continue to
be responsible for 


 










(1)                                  Delete if consent is not required.


 


(2)                                  Amount should combine principal together with
accrued interest and breakage compensation, if any, to be paid by the Assignee,
net of any portion of any upfront fee to be paid by the Assignor to the
Assignee.  It may be preferable in an
appropriate case to specify these amounts generically or by formula rather than
as a fixed sum.


 


A-2





















 


making its own independent appraisal of the
business, affairs and financial condition of the Loan Parties.


 


SECTION 6. 
Governing Law. 
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.


 


SECTION 7. 
Counterparts. 
This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.


 


A-3





















 


IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be executed and delivered by their duly authorized
officers as of the date first above written.


 


	
   

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


[The
undersigned consent to the foregoing assignment.


 


	
   

  	
  [GEORGIA GULF CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:]

  
	
   

  	
   

  
	
   

  	
  [JPMORGAN CHASE BANK, N.A., as

  Administrative Agent and Issuing Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:]

  
	
   

  	
   

  
					



 


A-4





















 


EXHIBIT B


 


FORM
OF OPINION OF JONES DAY


 


 


November 23,
2004


 


To the Lenders and the Agent


Referred to Below


c/o JPMorgan
Chase Bank, N.A.


(formerly known as
JPMorgan Chase Bank


and The Chase
Manhattan Bank),


as Administrative
Agent, Syndication


Agent, and
Collateral Agent


270 Park Avenue


New York, New York 10017


 


 


Re:                               That
certain Amended and Restated Credit Agreement dated as of November 23,
2004 (the “Credit Agreement”), by and among Georgia Gulf Corporation, a
Delaware corporation (the “Company”), the Eligible Subsidiaries referred to
below, the Lenders party thereto, and JPMorgan Chase Bank, N.A. (formerly known
as The Chase Manhattan Bank and JPMorgan Chase Bank), as Administrative Agent,
Syndication Agent, and Collateral Agent (in such capacities, as the case may
be, the “Agent”), which Credit Agreement amends and restates that certain
Credit Agreement dated as of November 12, 1999, by and among the Company,
the Eligible Subsidiaries (and North America Plastics, LLC, which was merged
into Vinyls (as defined below) prior to the date hereof), the Lenders party
thereto, and the Agent, as amended up to but not including the date hereof


 


Ladies/Gentlemen:


 


We have acted as counsel for the Company,
Georgia Gulf Chemicals & Vinyls, LLC, a Delaware limited liability company
(“Vinyls”), and Georgia Gulf Lake Charles, LLC, a Delaware limited liability
company (“GG Lake Charles”; Vinyls and GG Lake Charles, together, the “Eligible
Subsidiaries” and each, an “Eligible Subsidiary”), in connection with the
Credit Agreement.  The Company and the
Eligible Subsidiaries are 


 


B-1





















 


each referred to herein as a “Borrower”
and, collectively, as the “Borrowers.” 
This opinion is delivered to you pursuant to Section 4.01(b) of the
Credit Agreement.  Capitalized terms used
herein and not otherwise defined herein have the meanings assigned to such
terms in the Credit Agreement.  With your
permission, all assumptions and statements of reliance herein have been made
without any independent investigation or verification on our part except to the
extent otherwise expressly stated, and we express no opinion with respect to
the subject matter or accuracy of the assumptions or items upon which we have
relied.


 


In connection with the opinions expressed
herein, we have examined such documents, records, and matters of law as we have
deemed necessary for the purposes of this opinion.  We have examined, among other documents, the
following:


 


(a)                                                                An
executed copy of the Credit Agreement;


 


(b)                                                               An
executed copy of that certain Guarantee and Collateral Agreement dated as of November 12,
1999, by and among the Company, the “Subsidiary Guarantors” party thereto, ,
and JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank and The
Chase Manhattan Bank); and


 


(c)                                                                The
Officer’s Certificate of each Borrower delivered to us in connection with this
opinion, copies of which are attached hereto as Annex A (as to each such
Borrower, the “Officer’s Certificate” and, collectively, the “Officer’s
Certificates”).


 


In all such examinations, we have assumed the
legal capacity of all natural persons executing documents, the genuineness of
all signatures, the authenticity of original and certified documents and the
conformity to original or certified copies of all copies submitted to us as
conformed or reproduction copies.  As to
all questions of fact relevant to the opinions expressed herein, we have relied
upon, and assume the accuracy of, representations and warranties contained in
the Credit Agreement and certificates and oral or written statements and other
information of or from representatives of the Borrowers and others and assume
compliance on the part of all parties to the Credit Agreement with their
covenants and agreements contained therein. 
As to the factual matters and legal conclusions set forth or expressed
in the first three sentences of paragraph (a) below, we have relied solely upon
certificates of public officials.  With
respect to the opinions expressed in clauses (ii) and (iv)(A) of paragraph (b)
below, our opinions are limited (x) to our actual knowledge, if any, of each Borrower’s
specially regulated business activities and properties based solely upon the
Officer’s Certificates and without any independent investigation or
verification on our part and (y) to our review of only those laws and
regulations that, in our experience, are normally applicable to transactions of
the type contemplated by the Credit Agreement.


 


B-2





















 


To the extent it may be relevant to the
opinions expressed herein, we have assumed that the parties to the Credit
Agreement other than the Borrowers have the power to enter into and perform
their obligations thereunder and to consummate the transactions contemplated
thereby and that the Credit Agreement has been duly authorized, executed and
delivered by, and the Credit Agreement constitutes the legal, valid and binding
obligation of, such parties.


 


Based upon the foregoing, and subject to the
limitations, qualifications and assumptions set forth herein, we are of the
opinion that:


 


(a)                            The
Company is a corporation duly incorporated and existing in good standing under
the laws of the State of Delaware.  Each
Eligible Subsidiary is a limited liability company duly formed and existing in
good standing under the laws of the State of Delaware.  Each of the Borrowers is authorized or
qualified to do business and in good standing as a foreign corporation in each
jurisdiction listed below the name of such Borrower on Annex B
hereto.  The Company has the corporate
power and authority to conduct its business as now being conducted by it and to
enter into and perform its obligations under the Credit Agreement.  Each Eligible Subsidiary has the limited
liability company power and authority to conduct its business as now being
conducted by it and to enter into and perform its obligations under the Credit
Agreement.


 


(b)                           The
execution and delivery by each Borrower of the Credit Agreement, and the
performance by each Borrower of its obligations thereunder and under the Credit
Agreement, (i) have been authorized by all necessary corporate or limited
company action by such Borrower, as the case may be, and (ii) do not require
under present law any filing or registration by such Borrower with, or approval
or consent to such Borrower of, any governmental agency or authority of the States
of New York or Georgia, or the State of Delaware pursuant to any provision of
the Delaware General Corporation Law (“DGCL”) or the Delaware Limited Liability
Company Act (“DLLCA”), or of the United States of America, that has not been
made or obtained, except those required in the ordinary course of business in
connection with the performance by such Borrower of its obligations under
certain covenants contained in the Credit Agreement, (iii) do not contravene
any provision of the Certificate of Incorporation and By-laws or the
Certificate of Formation and Operating Agreement or Limited Liability Company
Agreement, as applicable, of such Borrower, (iv) do not violate (A) any present
law, or present regulation of any governmental agency or authority, of the
States of New York or Georgia or the United States of America applicable to
such Borrower or its property, (B) the DGLC or the DLLCA, or (C) any agreement
binding upon such Borrower or its property, or any court decree or order
binding upon such Borrower or its property (this opinion being limited (x) to
those agreements, decrees or orders that have been identified to us in the 


 


B-3





















 


Officer’s Certificates and (y) in that we
express no opinion with respect to any violation not readily ascertainable from
the face of any such agreement, decree or order, or arising under or based upon
any cross default provision insofar as it relates to a default under an
agreement not so identified to us, or arising under or based upon any covenant
of a financial or numerical nature or requiring computation) and (v) will not
result in or require the creation or imposition of any security interest or
lien upon any of such Borrower’s properties pursuant to the provisions of any agreement
binding upon such Borrower or its properties, other than any rights of set-off
or other liens in favor of the Agent arising under the Credit Agreement, the
agreements executed in connection therewith, or applicable law (this opinion
being limited to those agreements that have been identified to us in the
Officer’s Certificates).


 


(c)                            The
Credit Agreement has been duly executed and delivered on behalf of each
Borrower and constitutes a valid and binding obligation of such Borrower,
enforceable in accordance with its terms.


 


(d)                           The
borrowings by the Borrowers under the Credit Agreement and the application of
the proceeds thereof as provided in the Credit Agreement will not violate
Regulation T, U or X of the Board of Governors of the Federal Reserve System.


 


(e)                            Neither
the Company nor any of its Subsidiaries is an “investment company” within the
meaning of the Investment Company Act of 1940, as amended, or a “holding
company,” or an “affiliate” of a “holding company,” or of a “subsidiary company”
of a “holding company,” within the meaning of the Public Utility Holding
Company Act of 1935, as amended.


 


(f)                              In
and of themselves, the execution and delivery of the Credit Agreement, and the
Borrowers’ performance of their respective obligations thereunder and under the
Credit Agreement, have no effect on the attachment and perfection of the
security interests in favor of the Agent (for the benefit of the “Secured
Parties” (as such term is defined in the Collateral Agreement)) in the
Collateral.  With respect to the
attachment and perfection of the security interests in favor of the Agent (for
the benefit of the Secured Parties) in the Collateral, the Agent and the
Lenders are entitled to rely on our opinions expressed paragraphs (f), (g),
(h), (i), (j), (k), and (l) in our opinion letter dated November 12, 1999,
and delivered in connection with the original execution and delivery of the
Loan Documents (the “Original Opinion”), subject to all qualifications,
assumptions, exceptions, and limitations set forth in the Original Opinion and
with the assumption on our part that there have been no amendments,
terminations, or other modifications to the “Financing Statements” described in
the Original Opinion.


 


B-4





















 


The opinions set forth above are subject to
the following qualifications:


 


(A)                              Our
opinions above as to enforceability are subject to (i) applicable bankruptcy,
insolvency, reorganization, fraudulent transfer, voidable preference,
moratorium or similar laws, and related judicial doctrines, from time to time
in effect affecting creditors’ rights and remedies generally, or affecting the
rights and remedies of creditors of federally insured financial institutions
generally and (ii) general principles of equity (including, without limitation,
standards of materiality, good faith, fair dealing and reasonableness,
equitable defenses and limits on the availability of equitable remedies),
whether such principles are considered in a proceeding at law or in equity.


 


(B)                                We
express no opinion as to the enforceability of any provision in the Credit
Agreement:


 


(i)                                           establishing
standards for the performance of the obligations of good faith, diligence,
reasonableness and care prescribed by the Uniform Commercial Code as in effect
in the State of New York (the “NY UCC”);


 


(ii)                                        relating to indemnification, contribution or exculpation in
connection with violations of any securities laws or statutory duties or public
policy;


 


(iii)                                     relating to exculpation of any party in connection with its
own negligence that a court would determine in the circumstances under
applicable law to be unfair or insufficiently explicit;


 


(iv)                                    providing that any Lender or other person or entity may
exercise set-off rights other than in accordance with and pursuant to
applicable law;


 


(v)                                       relating to forum selection to the extent the forum is a
federal court;


 


(vi)                                    relating
to forum selection to the extent that any relevant action or proceeding does
not arise out of or relate to such document or to the extent that the
enforceability of any such provision is to be determined by any court other
than a court of the State of New York;


 


B-5





















 


(vii)                                 relating to choice of governing law to the extent that the
enforceability of any such provision is to be determined by any court other
than a court of the State of New York;


 


(viii)                              requiring
or relating to payment of interest (or discount or equivalent amounts) or any
premium or “make whole” payment at a rate or in an amount, after the maturity
or after or upon acceleration of the respective liabilities evidenced or
secured thereby or after or during the continuance of any default, event of
default or other circumstance, or upon prepayment, that a court would determine
in the circumstances under applicable law to be commercially unreasonable or a
penalty or a forfeiture;


 


(ix)                                      creating a trust or other fiduciary relationship;


 


(x)                                         specifying
that provisions thereof may be waived only in writing, to the extent that an
oral agreement or an implied agreement by trade practice or course of conduct
has been created that modifies any provision of such document; or


 


(xi)                                      giving any person or entity the power to accelerate
obligations or to foreclose upon collateral without any notice to the relevant
Borrower.


 


(C)                                Our
opinions as to enforceability are subject to the effect of generally applicable
rules of law that:


 


(i)                                           limit
the availability of a remedy under certain circumstances when another remedy
has been elected;


 


(ii)                                        may,
where less than all of a contract may be unenforceable, limit the
enforceability of the balance of the contract to circumstances in which the
unenforceable portion is not an essential part of the agreed exchange; and


 


(iii)                                     govern and afford judicial discretion regarding the
determination of damages and entitlement to attorneys’ fees and other costs.


 


(D)                               We
express no opinion as to the enforceability of (i) any purported waiver,
release, variation, disclaimer, consent or other agreement to similar effect
(all of the foregoing, collectively, a “Waiver”) by any Borrower under the
Credit Agreement to the extent limited by the 


 


B-6





















 


provisions of
the NY UCC or other provisions of applicable law (including judicial decisions),
or to the extent that such a Waiver applies to a right, claim, duty, defense or
ground for discharge otherwise existing or occurring as a matter of law
(including judicial decisions), except to the extent that such a Waiver is
effective under and is not prohibited by or void or invalid under the
provisions of the NY UCC or other provisions of applicable law (including
judicial decisions).


 


The opinions expressed herein are limited to
the federal laws of the United States of America, the laws of the States of New
York and Georgia and, to the extent relevant to the opinions expressed in
paragraphs (a), (b) and (c) above or as otherwise expressly set forth herein,
the DGCL and the DLLCA, each as currently in effect.


 


We express no opinion as to the compliance or
noncompliance, or the effect of the compliance or noncompliance, of any of the
addressees or any other person or entity with any state or federal laws or
regulations applicable to any of them by reason of their status as or
affiliation with a federally insured depository institution.  Our opinions are limited to those expressly
set forth herein, and we express no opinions by implication.


 


The opinions expressed herein are solely for
the benefit of the addressees hereof in connection with the transaction
referred to herein and may not be relied on by such addressees for any other
purpose or in any manner or for any purpose by any other person or entity.


 


Very truly
yours,


 


B-7





















 


ANNEX A


 


OFFICERS’ CERTIFICATES


 


(from GGC, Vinyls, and Lake Charles)


 


B-8





















 


ANNEX B


 


FOREIGN
QUALIFICATIONS


 


Georgia Gulf Corporation


California, Georgia, Illinois, Louisiana,
Mississippi, New Jersey, Ohio, Tennessee, Texas


 


Georgia Gulf Chemicals & Vinyls, LLC


California, Georgia, Illinois, Louisiana,
Mississippi, New Jersey, North Carolina, Ohio, Oklahoma, Tennessee, Texas


 


Georgia Gulf Lake Charles, LLC


Georgia, Louisiana


 


B-9





















 


EXHIBIT C


 


 


FORM
OF ELECTION TO TERMINATE


 


 


                    ,
20     


 


JPMORGAN CHASE BANK, N.A.


(formerly known as
JPMORGAN CHASE BANK


and as THE CHASE
MANHATTAN BANK),


as Administrative
Agent for


the Lenders party
to the Credit


Agreement dated as of November 12, 1999


among GEORGIA
GULF CORPORATION,


the Eligible
Subsidiaries referred to therein,


such Lenders and
JPMorgan Chase Bank, N.A.


(formerly known as
JPMorgan Chase Bank and as


The Chase Manhattan Bank) as Administrative


Agent, Syndication Agent and Collateral Agent


(as amended, the “Credit Agreement”)


 


Dear Sirs:


 


Reference is made to the Credit Agreement
described above.  Terms not defined
herein which are defined in the Credit Agreement have for purposes hereof the
meanings provided therein.


 


The undersigned, [name of Eligible
Subsidiary], a [jurisdiction of formation] limited liability company, hereby
elects to terminate its status as an Eligible Subsidiary for purposes of the
Credit Agreement, effective as of the date hereof.  The undersigned represents and warrants that
all principal and interest on all Loans made to the undersigned and all other
amounts payable by the undersigned pursuant to the Credit Agreement have been
paid in full on or before the date hereof. 
Notwithstanding the foregoing, this Election to Terminate shall not
affect any obligation of the undersigned heretofore incurred under the Credit
Agreement, any promissory note issued thereunder or any other Loan Document.


 


C-1





















 


This instrument shall be construed in
accordance with and governed by the laws of the State of New York.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [NAME OF ELIGIBLE SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


The undersigned confirms that the status of [Name of Eligible Subsidiary]
as an Eligible Subsidiary for purposes of the Credit Agreement described above
is terminated as of the date hereof.


 


	
   

  	
  GEORGIA GULF CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


Receipt of the above Election to Terminate is acknowledged on and as of
the date set forth above.


 


 


	
   

  	
  JPMORGAN CHASE BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
  

  	
  Name:

  
	
   

  	
  Title:

  



 


C-2