GENCORP INC. as Issuer THE GUARANTORS PARTY HERETO as Guarantors and THE BANK OF NEW YORK TRUST COMPANY, N.A. as Trustee Second Supplemental Indenture Dated as of June 27, 2006 To Indenture Dated as of August 11, 2003, as Amended by the First...
Exhibit
10.1
as Issuer
THE GUARANTORS PARTY HERETO
as Guarantors
and
THE BANK OF NEW YORK TRUST COMPANY, N.A.
as Trustee
Dated
as of June 27, 2006
To Indenture Dated as of August 11, 2003,
as Amended by the First Supplemental Indenture
Dated as of October 29, 2004
as Amended by the First Supplemental Indenture
Dated as of October 29, 2004
91/2% Senior Subordinated Notes due 2013
SECOND
SUPPLEMENTAL INDENTURE, dated as of June 27, 2006 (the “Second Supplemental
Indenture”), between GENCORP INC., an Ohio corporation (the “Issuer”), the guarantors party hereto
(the “Guarantors”) and THE BANK OF NEW YORK TRUST COMPANY, N.A., as trustee (the “Trustee”).
RECITALS
WHEREAS, the Issuer, the guarantors party thereto and the Trustee have heretofore executed and
delivered an Indenture, dated as of August 11, 2003, as amended by the First Supplemental Indenture
dated as of October 29, 2004 (the “Indenture”), pursuant to which the Issuer issued $150,000,000
principal amount of its 91/2% Senior Subordinated Notes due 2013 (the “Notes”), $97,500,000 of which
remain issued and outstanding under the Indenture;
WHEREAS, this Second Supplemental Indenture is being executed pursuant to a Consent
Solicitation Statement of the Issuer, dated June 8, 2006 (the “Statement”), and the related Letter
of Consent;
WHEREAS, Section 9.2 of the Indenture provides that the Issuer, the guarantors and
the Trustee may enter into indentures supplemental to the Indenture for the purpose of changing or
modifying in any manner the rights of the Holders of Notes with the consent of the Holders of at
least a majority in aggregate principal amount of the Notes then outstanding, subject to certain
exceptions specified in Section 9.2 of the Indenture;
WHEREAS, the parties hereto are entering into this Second Supplemental Indenture to
amend Section 4.9 of the Indenture (the “Amendment”);
WHEREAS, the execution and delivery of this Second Supplemental Indenture and the
adoption of the Amendment by the Issuer, the Guarantors and the Trustee has been authorized by the
consent of the Holders of at least a majority in aggregate principal amount of the Notes
outstanding as of the date hereof; and
WHEREAS, the execution and delivery of this Second Supplemental Indenture by the
Issuer have been authorized by resolutions of the Board of Directors of the Issuer, the execution
and delivery of this Second Supplemental Indenture by the Guarantors have been authorized by the
board of directors, manager or members of each Guarantor, and, subject to the conditions set forth
in the Statement, all acts, conditions and requirements necessary to make this Second Supplemental
Indenture a valid and binding agreement in accordance with its terms and for the purposes herein
set forth have been done and taken, and the execution and delivery of this Second Supplemental
Indenture have been in all respects duly authorized.
NOW, THEREFORE, in consideration of the above premises, each party hereto agrees, for
the benefit of the other party and for the equal and ratable benefit of the Holders of the Notes,
as follows:
Section 1. Definitions.
For all purposes of this Second Supplemental Indenture, except as otherwise expressly provided
or unless the context otherwise requires, the terms used herein shall have the respective meanings
assigned to them in the Indenture.
Section 2. Amendment of the Indenture.
Section 4.9(c) of the Indenture is hereby amended and restated to read in its entirety as
follows:
"(c) For purposes of determining compliance with this covenant, in the event that an item of
Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness or is
entitled to be incurred pursuant to the first paragraph of this covenant, in each case, as of the
date of incurrence thereof, the Company shall, in its sole discretion, classify (or later
reclassify in whole or in part, in its sole discretion) such item of Indebtedness in any manner
that complies with this covenant and such Indebtedness shall be treated as having been incurred
pursuant to such clauses or the first paragraph hereof, as the case may be, designated by the
Company; provided, however, that any incurrence of Indebtedness under the Credit Agreement as
Permitted Indebtedness must be incurred pursuant to clause (i) of the definition of Permitted
Indebtedness. For the avoidance of doubt, the Company may also incur Indebtedness under the Credit
Agreement pursuant to the second sentence of Section 4.9(a). Accrual of interest, the accretion of
accreted value and the payment of interest in the form of additional Indebtedness will not be
deemed to be an incurrence of Indebtedness for purposes of this covenant.”
Section 3. Operation of Second Supplemental Indenture.
This Second Supplemental Indenture shall take effect on the date and time that the Trustee
receives a certification of results from Global Bondholder Services Corp., the Issuer’s tabulation
agent, indicating receipt of the consent of the Holders of at least a majority in aggregate
principal amount of the Notes and shall amend the provisions of the Indenture with respect to the
Notes.
Section 4. Concerning the Trustee.
The Trustee accepts the trusts of the Indenture, as supplemented by this Second Supplemental
Indenture, and agrees to perform the same, but only upon the terms and conditions set forth in the
Indenture, as supplemented by this Second Supplemental Indenture, to which the parties hereto and
the Holders from time to time of the Notes agree and, except as expressly set forth in the
Indenture, as supplemented by this Second Supplemental Indenture, shall incur no liability or
responsibility in respect thereof. Without limiting the generality of the foregoing, the Trustee
assumes no responsibility for the correctness of the recitals herein contained, which shall be
taken as the statements of the Issuer. The Trustee makes no representation and shall have no
responsibility as to the validity or sufficiency of this Second Supplemental Indenture.
Section 5. Miscellaneous.
(a) Except as hereby expressly amended, the Indenture is in all respects ratified and
confirmed and all the terms, provisions and conditions thereof shall be and remain in full force
and effect.
(b) All agreements of the Issuer in this Second Supplemental Indenture shall bind the Issuer’s
successors. All agreements of the Trustee in this Second Supplemental Indenture shall bind its
successors.
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(c) THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
(d) If and to the extent that any provision of this Second Supplemental Indenture limits,
qualifies or conflicts with another provision that is required to be included in this Second
Supplemental Indenture or in the Indenture by the Trust Indenture Act, the required provision shall
control.
(e) The titles and headings of the sections of this Second Supplemental Indenture have been
inserted for convenience of reference only, and are not to be considered a part hereof and shall in
no way modify or restrict any of the terms or provisions hereof.
(f) This Second Supplemental Indenture may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall represent one and the same
agreement.
(g) In case any provision of this Second Supplemental Indenture shall be determined to be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions hereof or of the Indenture shall not in any way be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture
to be duly executed, and their respective corporate seals to be hereunto affixed, as of the date
first written above.
| Issuer GENCORP INC. |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Vice President, Law | |||
| Guarantors AEROJET-GENERAL CORPORATION |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
| AEROJET ORDNANCE TENNESSEE, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
| GENCORP PROPERTY INC. |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
| AEROJET INVESTMENTS LTD. |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
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| RKO GENERAL, INC. |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
| Trustee THE BANK OF NEW YORK TRUST COMPANY, N.A. |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Vice President | |||
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