EXHIBIT 10.7
AMENDMENT NO. 3
TO
CREDIT AGREEMENT
AMENDMENT NO. 3 TO CREDIT AGREEMENT, dated as of June 30, 2004 (this
"Amendment"), to that certain Credit Agreement, dated as of November 10, 2003
(as amended, modified, restated or supplemented from time to time, the "Credit
Agreement"), made by and among the financial institutions party thereto from
time to time (the "Lenders"), Bank of America, N.A., as agent for the Lenders
(in its capacity as agent, together with any successor agent, the "Agent"), Banc
of America Securities LLC, as sole book runner and lead arranger, Fleet Capital
Corporation, as syndication agent, The CIT Group/Business Credit, Inc., Xxxxx
Fargo Foothill, LLC and Congress Financial Corporation, as co-documentation
agents, GenTek Inc., a Delaware corporation (the "Parent"), each of the
wholly-owned Domestic Subsidiaries of the Parent party to the Credit Agreement
as a U.S. Borrower from time to time (each a "U.S. Borrower" and collectively,
the "U.S. Borrowers"), Noma Company, a Nova Scotia unlimited liability company
(the "Canadian Borrower" and, together with the U.S. Borrowers, each a
"Borrower" and collectively, the "Borrowers") and the Subsidiary Guarantors.
The Parent has informed the Agent that the Parent, through Noma
Corporation and Noma Technologies Limited Partnership, intends to enter into a
series of agreements with Whirlpool Corporation to (1) acquire Whirlpool
Corporation's Reynosa, Mexico wire harness assembly facility, by purchasing all
of the outstanding and fully voting capital stock of Whirlpool xx Xxxxxxx, X.X.
de C.V. and substantially all of the assets used in such operations for cash and
a promissory note and (2) supply wire harnesses assembled at such facility to
Whirlpool Corporation. In connection therewith, the Borrowers, the Guarantors,
the Required Lenders and the Agent desire to amend the Credit Agreement.
NOW, THEREFORE, subject to the conditions precedent set forth in
Section 3 hereof, the Borrowers, the Guarantors, the Required Lenders and the
Agent hereby agree as follows:
SECTION 1 CAPITALIZED TERMS.
1.1 Capitalized terms used herein and not defined herein shall have the
respective meanings assigned to such terms in the Credit Agreement.
SECTION 2 AMENDMENTS. The Credit Agreement shall be, and upon the
fulfillment of the conditions precedent set forth in Section 3 hereof is,
amended as follows:
2.1 Section 7.15 of the Credit Agreement is amended by (x) deleting the
word "and" at the end of clause (h) thereof, (y) deleting the period
at the end of clause (i) thereof and substituting therefor "; and" and
(z) adding the following new clause (j) to such Section 7.15
immediately after clause (i) thereof:
"(j) unsecured Debt in an aggregate amount not to exceed
$4,400,000 issued by Noma Technologies Limited Partnership and
Noma Corporation to Whirlpool Corporation in connection with the
consummation of the Reynosa Transaction."
2.2 Section 7.22 of the Credit Agreement is amended by (x) deleting the
word "and" at the end of clause (i) thereof, (y) deleting the period
at the end of clause (ii) thereof and substituting therefor "; and"
and (z) adding the following new clause (iii) to such Section 7.22
immediately after clause (ii) thereof:
"(iii) Noma Corporation and Noma Technologies Limited
Partnership may acquire all of the outstanding and fully voting
capital stock of Reynosa pursuant to the Reynosa Transaction."
2.3 Annex A to the Credit Agreement is amended by adding the following
defined terms thereto in the proper alphabetical order:
"Reynosa" means Whirlpool xx Xxxxxxx, X.X. de C.V., a
Mexican variable capital stock corporation.
"Reynosa Purchase Agreement" means that certain Purchase
Agreement dated June 30, 2004 by and among Noma Corporation and
Noma Technologies Limited Partnership, as buyers, and Whirlpool,
as seller.
"Reynosa Supply Agreement" means that certain Whirlpool
Supplier Sourcing Agreement effective the 30th day of June, 2004,
by and between Noma Technologies Limited Partnership and
Whirlpool.
"Reynosa Transaction" means the series of agreements and
related documents to be entered into by and among Noma
Corporation, Noma Technologies Limited Partnership and Whirlpool,
including the Reynosa Purchase Agreement and the Reynosa Supply
Agreement, pursuant to which (i) Noma Corporation and Noma
Technologies Limited Partnership shall, collectively, acquire all
of the outstanding and fully voting capital stock of Reynosa and
Noma Technologies Limited Partnership shall acquire substantially
all of the assets owned by Whirlpool and used in Xxxxxxx'x
industrial operations for a purchase price, payable in cash and a
promissory note, not to exceed $8,400,000 in the aggregate and
(ii) Noma Technologies Limited Partnership shall agree to
continue to assemble and supply to Whirlpool the wire harnesses
that are presently manufactured at the facility in
2
Reynosa, Mexico, and Noma Corporation shall guaranty such
obligations of Noma Technologies Limited Partnership.
"Whirlpool" means Whirlpool Corporation., a Delaware
corporation.
2.4 The defined term "Eligible Accounts" in Annex A to the Credit
Agreement is amended by deleting clause (s) thereof and replacing it
with the following:
"(s) owed by an Account Debtor which, together with any
Affiliates of such Account Debtor, is obligated to such Borrower
respecting Accounts the aggregate unpaid balance of which exceeds
twenty-five percent (25%) (in the case of each of Ford Motor
Company, General Motors Corporation, Daimler Chrysler and each of
their respective Subsidiaries so long as such Person maintains a
credit quality acceptable to the Agent, such higher percentage,
not to exceed fifty percent (50%), as the Agent shall agree to,
and in the case of Whirlpool Corporation and its Subsidiaries so
long as such Person maintains a credit quality acceptable to the
Agent, such higher percentage, not to exceed seventy-five percent
(75%), as the Agent shall agree to) of the aggregate unpaid
balance of all Accounts owed to such Borrower at such time by all
of such Borrower's Account Debtors, but only to the extent of
such excess;"
2.5 The defined term "Restricted Investment" in Annex A to the Credit
Agreement is amended by (w) deleting the word "and" at the end of
clause (p) thereof, (x) deleting the period at the end of clause (q)
thereof and substituting therefor "; and", (y) adding the following
new clause (r) thereto immediately after clause (q) thereof:
"(r) in addition to those Intercompany Foreign Investments
permitted under clauses (i) and (j) above, an Intercompany
Foreign Investment in the form of the acquisition of all of the
outstanding and fully voting capital stock of Reynosa and the
other assets acquired from Whirlpool pursuant to the Reynosa
Transaction; provided that 65% of the capital stock of Reynosa
shall be pledged to the Agent by the applicable Loan Parties
pursuant to a Security Document in form and substance reasonably
satisfactory to the Agent as additional security for all
Obligations of such Loan Party."
and (z) adding "and (r)" in the final paragraph thereof immediately
following the reference to "(h)-(j)" where it appears in such
paragraph.
3
SECTION 3 CONDITIONS PRECEDENT. This Amendment shall become effective
on such date as the following conditions precedent have been satisfied:
(a) counterparts of this Amendment duly executed by the Borrowers, the
Guarantors, the Required Lenders and the Agent shall have been delivered to the
Agent;
(b) the Agent shall have received, in form and substance satisfactory
to the Agent, an amended Schedule I to the U.S. Pledge Agreement reflecting the
pledge of 65% of the voting equity interest in Reynosa, and the parties hereto
agree that the U.S. Pledge Agreement shall be deemed amended to incorporate such
schedule upon receipt by the Agent without further action by the Agent, any
Lender or any Loan Party; and
(c) the Agent shall have received, in form and substance satisfactory
to the Agent, a copy of the fully executed Reynosa Purchase Agreement, the
Xxxxxxx Supply Agreement and the other material documents executed in connection
with the Reynosa Transaction.
SECTION 4 ADDITIONAL COVENANTS.
(a) The Loan Parties shall use their reasonable commercial efforts to
obtain and deliver to the Agent a bailee letter from Whirlpool, with respect to
the inventory provided by Noma Technologies Limited Partnership to Whirlpool on
consignment, in accordance with Section 7.9(b) of the Credit Agreement.
(b) The Loan Parties shall deliver to the Agent, within five (5)
Business Days of the closing of the Reynosa Transaction, certificates
representing 65% of the voting equity interest in Reynosa, together with undated
stock powers executed in blank by a duly authorized officer of the pledgor.
SECTION 5 CONFIRMATION AND AGREEMENT. Each of the Lenders party
hereto confirms and agrees that the guaranty to be provided to Whirlpool by Noma
Corporation of the obligations of Noma Technologies Limited Partnership under
the Reynosa Supply Agreement is permitted under Section 7.14(iv) of the Credit
Agreement, in that it is an unsecured guaranty of obligations incurred in the
ordinary course of business of a Loan Party (not constituting Debt) by another
Loan Party that is the direct parent of such Loan Party.
SECTION 6 REFERENCES TO CREDIT AGREEMENT. From and after the
effectiveness of this Amendment and the amendments contemplated hereby, all
references in the Credit Agreement to "this Agreement", "hereof", "herein", and
similar terms shall mean and refer to the Credit Agreement, as amended and
modified by this Amendment, and all references in other documents to the Credit
Agreement shall mean such agreement as amended and modified by this Amendment.
SECTION 7 RATIFICATION AND CONFIRMATION. The Credit Agreement is
hereby ratified and confirmed and, except as herein agreed, remains in full
force and effect. Each of the Borrowers and the Guarantors represents and
warrants that (i) all representations and
4
warranties contained in the Loan Documents are correct in all material respects
with the same effect as though such representations and warranties had been made
on and as of the date hereof (except to the extent that such representations or
warranties expressly related to a specified prior date) and (ii) there exists no
Default or Event of Default. Each of the Guarantors hereby ratifies its
Guarantee of the Obligations.
SECTION 8 MISCELLANEOUS.
8.1 This Amendment may be executed by the parties hereto individually
or in combination, in one or more counterparts, each of which
shall be an original and all of which shall constitute one and
the same agreement.
8.2 Delivery of an executed counterpart of a signature page by
telecopier shall be effective as delivery of a manually executed
counterpart.
8.3 This Amendment shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New
York.
5
IN WITNESS WHEREOF, the parties have entered into this Amendment on
the date first above written.
GENTEK INC., individually and as Loan Party
Representative for the other Loan Parties
By:
---------------------------------------
Title:
---------------------------------------
"AGENT"
BANK OF AMERICA, N.A., as the Agent
By:
---------------------------------------
Title:
---------------------------------------
"U.S. LENDERS"
BANK OF AMERICA, N.A., as a U.S. Lender
By:
---------------------------------------
Title:
---------------------------------------
FLEET CAPITAL CORPORATION, as a U.S. Lender
By:
---------------------------------------
Title:
---------------------------------------
THE CIT GROUP/BUSINESS CREDIT, INC., as a
U.S. Lender
By:
---------------------------------------
Title:
---------------------------------------
XXXXX FARGO FOOTHILL, LLC, as a U.S. Lender
By:
---------------------------------------
Title:
---------------------------------------
CONGRESS FINANCIAL CORPORATION, as a
U.S. Lender
By:
---------------------------------------
Title:
---------------------------------------
6
