EXECUTION COPY
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CREDIT AGREEMENT
among
GENTEK INC.,
NOMA COMPANY,
The Several Lenders From Time to Time Party Hereto,
THE BANK OF NOVA SCOTIA,
as Syndication Agent,
BANKERS TRUST COMPANY,
as Documentation Agent,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
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Dated as of April 30, 1999, as amended and restated as of August 9, 2000
and as of August 1, 2001
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X.X. XXXXXX SECURITIES INC.,
As Arranger and as Book Manager
CREDIT AGREEMENT, dated as of April 30, 1999, as amended and
restated as of August 9, 2000 and as amended and restated as of August 1, 2001
(this "Second Amendment and Restatement"), amending and restating the Credit
Agreement, dated as of April 30, 1999, as amended and restated as of August 9,
2000 (this "Agreement" or the "Credit Agreement"), among GENTEK INC., a Delaware
corporation (the "Company"), NOMA COMPANY, a Nova Scotia unlimited liability
company (the "Canadian Borrower," and, together with the Company, the
"Borrowers"), the several banks and other financial institutions or entities
from time to time parties thereto (the "Lenders"), THE CHASE MANHATTAN BANK, as
Administrative Agent for the Lenders (in such capacity, the "Administrative
Agent"), THE BANK OF NOVA SCOTIA, as syndication agent for the Lenders (in such
capacity, the "Syndication Agent") and BANKERS TRUST COMPANY, as documentation
agent for the Lenders (in such capacity, the "Documentation Agent").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement the Lenders have
agreed to make, and have made, certain extensions of credit to the Borrowers;
WHEREAS, the Company has requested that the Lenders amend, and
the Lenders have agreed to amend, restate and waive certain of the provisions of
the Credit Agreement upon the terms and subject to the conditions set forth
below;
WHEREAS, certain of the amendments to the Credit Agreement set
forth herein are intended to be permanent (the "Permanent Amendments"), and
certain of the amendments to the Credit Agreement set forth herein are intended
to be in effect (the "Temporary Amendments") only during the Temporary Amendment
Period (as hereinafter defined);
NOW, THEREFORE, the parties hereto hereby agree that the
Credit Agreement will be amended as follows:
1. Amendment and Restatement. The parties hereto hereby agree
that the Credit Agreement shall be amended and restated by incorporating the
Credit Agreement by reference herein with the amendments thereto as expressly
set forth herein.
2. Defined Terms. Capitalized terms used herein and not
otherwise defined are used herein as defined in the Credit Agreement.
3. Permanent Amendments. The following amendments, waivers and
limitations shall be permanent amendments to the Credit Agreement:
3A. Amendment to Subsection 1.1. (a) Subsection 1.1 of the
Credit Agreement is hereby amended by adding the following defined terms in
proper alphabetical order:
"Canadian Guarantee and Collateral Agreement": the Canadian
Guarantee and Pledge Agreement, as amended and restated in connection
with the execution and
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delivery of the Second Amendment and Restatement in order to create
a security interest in certain personal property, to be executed and
delivered by the Canadian Borrower and each Canadian Subsidiary
Guarantor, in the form approved by the Administrative Agent, as the
same may be amended, supplemented or otherwise modified from time to
time.
"Guarantee and Collateral Agreement": the Guarantee and Pledge
Agreement, as amended and restated in connection with the execution and
delivery of the Second Amendment and Restatement in order to create a
security interest in certain personal property, to be executed and
delivered by the Borrowers and each Subsidiary Guarantor, in the form
approved by the Administrative Agent, as the same may be amended,
supplemented or otherwise modified from time to time.
"Mortgages": each of the mortgages and deeds of trust made or
to be made by any Loan Party in favor of, or for the benefit of, the
Administrative Agent for the benefit of the Lenders, in the form
approved by the Administrative Agent (with such changes thereto as
shall be advisable under the law of the jurisdiction in which such
mortgage or deed of trust is to be recorded), as the same may be
amended, modified or supplemented from time to time.
"Mortgaged Properties": the real properties listed on Schedule
I to the Second Amendment and Restatement, as to which the
Administrative Agent for the benefit of the Lenders shall be granted a
Lien pursuant to the Mortgages unless Contractual Obligations existing
on the Second Amendment and Restatement Effective Date prohibit the
granting of a Mortgage thereon.
"Second Amendment and Restatement": the Second Amendment and
Restatement dated as of August 1, 2001 to this Agreement.
"Second Amendment and Restatement Effective Date": the date on
which the Second Amendment and Restatement becomes effective in
accordance with its terms.
"Temporary Amendment Period": the period beginning on the
Second Amendment and Restatement Effective Date and ending on the
earliest of (i) December 31, 2002, (ii) the date when the Company
returns to compliance with the financial covenants as set forth in
subsections 7.1(a), (b) and (c) of this Agreement as in effect prior to
the Second Amendment and Restatement Effective Date (but calculated
after giving effect to the amendments to the definitions of
"Consolidated Net Income", "Interest Coverage Ratio", "Leverage Ratio"
and "Senior Leverage Ratio" set forth in Section 3A of the Second
Amendment and Restatement) as demonstrated in a Compliance Certificate
delivered pursuant to subsection 6.2(b) of the Credit Agreement, unless
concurrently with the delivery of such certificate the Company notifies
the Administrative Agent that it elects not to have the Temporary
Amendment Period terminate at such time, and (iii) the date of the
repayment of any Term Loans and/or Revolving Credit Loans (as selected
by the Company) from Net Cash Proceeds from issuance of Capital Stock
of a Borrower in accordance with subsection 2.9(j) if such repayment
returns the Company into compliance with the financial covenants set
forth in subsections 7.1(a), (b) and (c) of this Agreement as in effect
prior to the Second
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Amendment and Restatement Effective Date (but calculated after giving
effect to amendments to the definitions of "Consolidated Net Income,"
"Interest Coverage Ratio," "Leverage Ratio" and "Senior Leverage Ratio"
set forth in Section 3A of the Second Amendment and Restatement),
unless concurrently with such repayment the Company notifies the
Administrative Agent that it elects not to have the Temporary Amendment
Period terminate at such time. In any event, the financial covenants
set forth in Sections 4C, 4D and 4E of the Second Amendment and
Restatement shall not extend beyond December 31, 2002, at which time,
the financial covenants as set forth in subsections 7.1(a), (b) and (c)
of this Agreement as in effect prior to the Second Amendment and
Restatement Effective Date (but calculated after giving effect to the
amendments to the definitions of "Consolidated Net Income," "Interest
Coverage Ratio," "Leverage Ratio" and "Senior Leverage Ratio" set forth
in Section 3A of the Second Amendment) shall be in effect.
(b) The definition of "Consolidated Net Income" set forth in
subsection 1.1 of the Credit Agreement is amended by adding the following at the
end thereof:
In addition, for the purposes of clarity and notwithstanding
anything in the foregoing to the contrary, the parties
expressly stipulate that for the purposes of such calculation,
(i) the restructuring charges taken by the Company in the
second fiscal quarter of 2001 (which will be for approximately
$140 million), of which the cash portion of such restructuring
charges shall not exceed $15,000,000, shall be added back to
Consolidated Net Income for such quarter to the extent such
charge reduced Consolidated Net Income for such quarter, and
(ii) the entire amount of restructuring charges proposed to be
taken by the Company in the third or fourth fiscal quarter of
2001, of which the cash portion of such restructuring charges
shall not exceed $5,000,000, shall be added back to
Consolidated Net Income for the quarter in which such charge
is taken (if and to the extent such charge is taken) and
reduces Consolidated Net Income for such quarter, provided
that this sentence shall not be effective for purposes of the
Pricing Grid.
(c) The definition of "Interest Coverage Ratio" set forth in
subsection 1.1 of the Credit Agreement is amended by adding the following at the
end thereof:
In the event the Company repays any Term Loans and/or
Revolving Credit Loans (as selected by the Company) from any
Net Cash Proceeds from issuance of Capital Stock of a Borrower
within 5 Business Days of receipt thereof, then for purposes
of calculating the Interest Coverage Ratio for the last day of
the fiscal quarter preceding the date of such repayment and
the last day of each of the four fiscal quarters ending on or
after the date of such repayment (i) Interest Coverage Ratio
shall be recalculated on a pro forma basis to give effect to
such repayment as if such Loans were repaid on the first day
of the period of four consecutive fiscal quarters preceding
the date of such repayment and (ii) Consolidated Interest
Expense shall not include any interest expense in respect of
such Loans (including amortization of original issue discount,
interest portion of any deferred payment obligation, or any
amortization or write-off of debt issuance costs in respect
thereof).
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(d) The definition of "Leverage Ratio" set forth in subsection
1.1 of the Credit Agreement is amended by adding the following at the end
thereof:
In the event the Company repays any Term Loans and/or
Revolving Credit Loans (as selected by the Company) from any
Net Cash Proceeds from issuance of Capital Stock of a Borrower
within 5 Business Days of receipt thereof, then the Leverage
Ratio shall be recalculated on a pro forma basis to give
effect to such repayment as if such Loans were repaid on the
first day of the fiscal quarter preceding the date of such
repayment.
(e) The definition of "Net Cash Proceeds" set forth in
subsection 1.1 of the Credit Agreement is amended by deleting the word "and"
which appears at the end of paragraph (b) and adding the following new paragraph
(c) at the end of such definition:
and (c) when used in respect of the issuance of Capital Stock
by the Company, the gross cash proceeds received by the
Company in Cash and Cash Equivalents from such issuance less
all legal expenses, commissions, taxes and other fees and
expenses incurred or to be incurred in connection therewith.
(f) The definition of "Senior Leverage Ratio" set forth in
subsection 1.1 of the Credit Agreement is amended by adding the following at the
end thereof:
In the event the Company repays any Term Loans and/or
Revolving Credit Loans (as selected by the Company) from any
Net Cash Proceeds from the issuance of Capital Stock of a
Borrower within 5 Business Days of receipt thereof, Senior
Leverage Ratio shall be recalculated on a pro forma basis to
give effect to such repayment as if such Loans were repaid on
the first day of the fiscal quarter preceding the date of such
repayment.
(g) References in the Credit Agreement and the other Loan
Documents to the "Guarantee and Pledge Agreement" and "Canadian Guarantee and
Pledge Agreement" shall be deemed to be references to the "Guarantee and
Collateral Agreement" and "Canadian Guarantee and Collateral Agreement"
respectively.
3B. Amendment to Subsection 4.20. Subsection 4.20 of the
Credit Agreement is amended by adding the following new paragraph (c):
(c) Each of the Mortgages will be, upon execution thereof,
effective to create in favor of the Administrative Agent, for the
benefit of the Lenders (or, in the case of Mortgaged Properties located
in Canada to the extent permitted by Contractual Obligations existing
on the Second Amendment and Restatement Effective Date, the Tranche B
Term Loan Lenders), a legal, valid and enforceable Lien on the
Mortgaged Properties described therein and proceeds thereof, and when
the Mortgages are filed in the offices described therein such Mortgage
shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the Loan Parties in the Mortgaged
Properties and the proceeds thereof, as security for the Obligations
(as defined in the relevant Mortgage), in each case prior in right to
any other Person to the extent permitted by Contractual Obligations
existing on the Second Amendment and Restatement
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Effective Date and Liens permitted by Section 7.3. Schedule I to the
Second Amendment and Restatement lists each parcel of real property in
the United States and Canada owned in fee simple by the Company or any
of the Subsidiary Guarantors as of the Second Amendment and Restatement
Effective Date which, as of such date, has a value, in the reasonable
opinion of the Company, in excess of $1,000,000.
3C. Amendment to Subsection 6.10. Subsection 6.10 of the
Credit Agreement is amended by adding the following new paragraphs (e) and (f):
(e) With respect to any fee interest in any real property
having a value (together with improvements thereof) of at least
$1,000,000 acquired after the Second Amendment and Restatement
Effective Date by the Company or any Subsidiary Guarantor (other than
any such real property subject to a Lien expressly permitted by
subsection 7.3(g) or (h)), promptly, but in any event within 45 days of
the acquisition of such real property (i) execute and deliver a first
priority Mortgage (subject to Contractual Obligations existing on the
Second Amendment and Restatement Effective Date), in favor of the
Administrative Agent, for the benefit of the Lenders, covering such
real property, (ii) deliver to the Administrative Agent (x) a
satisfactory recent title report with respect to such real property
from counsel or a title company satisfactory to the Administrative
Agent and, if, in the sole discretion of the Administrative Agent, such
title report shows substantial defects in title or is inconclusive as
to title and any such defect or inconclusivity materially affects the
present use or fair market value of such real property or the Lien of
the Mortgage or the enforceability thereof, take such action as is
reasonably necessary or desirable to cure such defects and/or confirm
title including without limitation obtaining Lender title insurance
policies and/or surveys, in each case in form and substance reasonably
satisfactory to the Administrative Agent and (y) any consents or
estoppels reasonably deemed necessary or advisable by the
Administrative Agent in connection with such Mortgage, each of the
foregoing in form and substance reasonably satisfactory to the
Administrative Agent, (iii) if requested by the Administrative Agent,
deliver to the Administrative Agent legal opinions relating to the
matters described above, which opinions shall be in form and substance,
and from counsel, reasonably satisfactory to the Administrative Agent
(It is the Lenders' current intention not to require that the Company
and its Subsidiary Guarantors deliver title policies or surveys with
respect to real property subject to Mortgages); and (iv) provide to the
Administrative Agent evidence that all fees, costs, charges, mortgage
recording taxes, filing fees, disbursements and other similar payments
to be made in connection therewith any Mortgage, title report (and, if
required by the Lenders, title insurance and/or surveys) and local
counsel have been paid.
(f) With respect to any property acquired after the Second
Amendment and Restatement Effective Date by the Company or any
Subsidiary Guarantor (other than (x) any property described in
paragraph (a), (b), (c),(d) or (e) above, (y) any property subject to a
Lien expressly permitted by subsection 7.3(g) or (h), and (z) any
property subject to an existing Contractual Obligation which prohibits
the granting of a Lien thereon) as to which the Administrative Agent,
for the benefit of the Lenders, does not have a perfected Lien,
promptly (i) execute and deliver to the Administrative Agent such
amendments to the Guarantee and Collateral Agreement, Canadian
Guarantee and
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Collateral Agreement or such other documents as the Administrative
Agent deems necessary or advisable to grant to the Administrative
Agent, for the benefit of the Lenders, a security interest in such
property and (ii) take all actions necessary or advisable to grant to
the Administrative Agent, for the benefit of the Lenders, a perfected
first priority security interest in such property, including the filing
of Uniform Commercial Code financing statements in such jurisdictions
as may be required by the Guarantee and Collateral Agreement, Canadian
Guarantee and Collateral Agreement or by law or as may be reasonably
requested by the Administrative Agent.
3D. Waivers of Subsection 7.1. The Lenders waive compliance,
during the Temporary Amendment Period, with subsection 7.1 of the Credit
Agreement for each fiscal quarter ending during the Temporary Amendment Period,
as such subsection is in effect immediately prior to the Second Amendment and
Restatement Effective Date. For the avoidance of doubt, the waiver provided by
this Section 3D shall not waive compliance by the Borrowers, during the
Temporary Amendment Period, with the financial covenants set forth in Section 4
of the Second Amendment and Restatement.
3E. Amendment to Subsection 7.2(m). Subsection 7.2(m) of the
Credit Agreement is amended by deleting the amount "$20,000,000" and
substituting, in lieu thereof, the amount "$40,000,000".
3F. Amendment to Subsection 7.2(o). Subsection 7.2(o) of the
Credit Agreement is amended by deleting the phrase "of Krone International
Holdings Inc."
3G. Amendment to Subsection 7.2(q). Subsection 7.2(q) of the
Credit Agreement is amended by deleting the phrase "other Indebtedness of the
Company or its Subsidiaries" and substituting, in lieu thereof, the following:
(i) during the Temporary Amendment Period, any Permitted
Subordinated Indebtedness or senior unsecured indebtedness incurred
solely by the Company, but only if 100% of the Net Cash Proceeds
thereof shall be applied on the date of such incurrence towards the
prepayment of the Term Loans and the reduction of the Revolving Credit
Commitments as set forth in subsection 2.9(f) and subject to subsection
2.9(e), and (ii) after the Temporary Amendment Period, any Permitted
Subordinated Indebtedness or senior unsecured Indebtedness incurred
solely by the Company.
3H. Amendment to Subsection 7.3(l). Subsection 7.3(l) of the
Credit Agreement is amended by deleting the phrase "of Krone International
Xxxxxxx Xxx."
0X. Amendment to Annex A. Annex A of the Credit Agreement is
hereby amended by deleting the Pricing Grid for Loans and Commitment Fees and
substituting, in lieu thereof, the Pricing Grid attached hereto as Annex A.
4. Temporary Amendments
The following amendments and limitations shall be effective
only during the Temporary Amendment Period and shall be of no further force or
effect upon the termination of the Temporary Amendment Period.
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4A. Amendment to Subsection 2.9. Subsection 2.9 of the Credit
Agreement is amended by adding the following clause (j) at the end thereof:
(j) If any Capital Stock of the Company or the Canadian
Borrower shall be issued (other than any Capital Stock issued to
directors, officers or employees of, or consultants or advisors to, the
Borrowers and their Subsidiaries), an amount equal to 50% of the Net
Cash Proceeds thereof (other than Net Cash Proceeds concurrently
applied to finance a Permitted Acquisition, or which the Company
certifies will be applied within the next 90 days to finance a
Permitted Acquisition) shall be applied within 5 Business Days of the
date of such issuance toward the repayment of the Revolving Credit
Loans or the prepayment of the Term Loans, as selected by the Company;
provided that no prepayment shall be required under this clause (j)
unless and until the Net Cash Proceeds received by the Company from the
issuance of Capital Stock in a fiscal year exceeds $2,000,000, and then
in the amount of such excess.
4B. Amendment to Subsection 2.9(d). Subsection 2.9(d) of the
Credit Agreement is hereby amended by (i) deleting the amounts "$20,000,000" and
"$50,000,000" and substituting therefor the amounts "$10,000,000" and
"$25,000,000", respectively, and (ii) adding the phrase "from Asset Sales" after
the phrase "received in any fiscal year.".
4C. Amendment to Subsection 7.1(a). Subsection 7.1(a) of the
Credit Agreement is amended by deleting subsection 7.1(a) and substituting, in
lieu thereof, the following:
(a) Senior Leverage Ratio. Permit the Senior Leverage Ratio as
at the last day of any fiscal quarter of the Company occurring during
any period set forth below to be greater than the ratio set forth below
opposite such period:
Period Senior Leverage Ratio
------ ---------------------
July 1, 2001 - September 30, 2001 4.40 to 1.00
October 1, 2001 - December 31, 2001 4.70 to 1.00
January 1, 2002 - March 31, 2002 4.85 to 1.00
April 1, 2002 - June 30, 2002 4.45 to 1.00
July 1, 2002 - September 30, 2002 4.25 to 1.00
October 1, 2002 - December 31, 2002 4.00 to 1.00
4D. Amendment to Subsection 7.1(b). Subsection 7.1(b) of the
Credit Agreement is amended by deleting subsection 7.1(b) and substituting, in
lieu thereof, the following:
(b) Leverage Ratio. Permit the Leverage Ratio as at the last
day of any fiscal quarter of the Company occurring during any period set forth
below to be greater than the ratio set forth below opposite such period:
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Period Leverage Ratio
------ --------------
July 1, 2001 - September 30, 2001 5.65 to 1.00
October 1, 2001- December 31, 2001 6.10 to 1.00
January 1, 2002 - March 31, 2002 6.25 to 1.00
April 1, 2002 - June 30, 2002 5.75 to 1.00
July 1, 2002 - September 30, 2002 5.50 to 1.00
October 1, 2002 - December 31, 2002 5.20 to 1.00
4E. Amendment to Subsection 7.1(c). Subsection 7.1(c) of the
Credit Agreement is amended by deleting subsection 7.1(c) and substituting, in
lieu thereof, the following:
(c) Interest Coverage Ratio. Permit the Interest Coverage
Ratio as at the last day of any fiscal quarter of the Company occurring
during any period set forth below to be less than the ratio set forth
below opposite such period:
Interest Coverage
Period Ratio
------ -----
July 1, 2001 - September 30, 2001 2.05 to 1.00
October 1, 2001- December 31, 2001 1.90 to 1.00
January 1, 2002 - March 31, 2002 1.85 to 1.00
April 1, 2002 - June 30, 2002 2.00 to 1.00
July 1, 2002 - September 30, 2002 2.05 to 1.00
October 1, 2002 - December 31, 2002 2.15 to 1.00
4F. Amendment to Subsection 7.2(g). Subsection 7.2(g) of the
Credit Agreement is amended by deleting subsection 7.2(g) in its entirety.
4G. Amendment to Subsection 7.3(h). Subsection 7.3(h) of the
Credit Agreement is amended by replacing the section reference "7.2(g)" with the
section reference "7.2(m)", by deleting the word "and" immediately preceding
paragraph (iii) and by adding the following new paragraph (iv):
and (iv) during the Temporary Amendment Period, the aggregate
amount of Indebtedness secured by such Liens shall not exceed
$20,000,000.
4H. Amendment to Subsection 7.3(m). Subsection 7.3(m) of the
Credit Agreement is amended by deleting the amount "$40,000,000" and
substituting therefor the amount "$20,000,000".
4I. Amendments to Subsection 7.8(a). (a) Subsection 7.8(a) of
the Credit Agreement is amended by deleting clause (B) from the first paragraph
thereof and substituting therefore the following:
(B) the aggregate amount of all Restricted Payments made
during each of 2001 and 2002 shall not exceed $7,500,000.
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(b) Subsection 7.8(a) of the Credit Agreement is amended by
adding the word "or" before clause (iii) and deleting the phrase "(iv) make or
commit to make any Capital Expenditures pursuant to clause (b)(ii) of subsection
7.9."
4J. Amendment to Subsection 7.9. Subsection 7.9 of the Credit
Agreement is amended by deleting Subsection 7.9 and substituting, in lieu
thereof, the following:
7.9 Limitation on Capital Expenditures. Make or
commit to make (by way of the acquisition of securities of a
Person or otherwise) any expenditure in respect of the
purchase or other acquisition of fixed or capital assets
(excluding any such asset acquired in connection with normal
replacement and maintenance programs properly charged to
current operations) ("Capital Expenditures") except (a) from
the proceeds of any Reinvestment Deferred Amount and (b) for
expenditures in the ordinary course of business not exceeding,
in the aggregate for the Company and its Subsidiaries, (i)
$62,000,000, in the aggregate, during the third and fourth
fiscal quarters of fiscal year 2001 (considered as one period)
and (ii) $70,000,000, in the aggregate, for fiscal year 2002
plus up to 100% of any permitted amount that was not expended
during the third and fourth fiscal quarters of fiscal year
2001.
4K. Amendment to Subsection 7.10(f). Subsection 7.10(f) of the
Credit Agreement is amended by adding the following at the end thereof:
provided further that consideration for such acquisition paid
by the Company and its Subsidiaries shall be limited to the
Net Cash Proceeds of the Capital Stock of the Company plus the
amounts permitted by clauses (h) and (i) of this subsection
7.10 plus an additional amount not to exceed $10,000,000.
4L. Amendment to Subsection 7.10(h). Subsection 7.10(h) of the
Credit Agreement is amended by deleting the amount "$50,000,000" and
substituting therefor the amount "$20,000,000" and by adding the following at
the end thereof:
; provided further that any amount utilized by the Company
pursuant to this subsection 7.10(h) shall have the effect of
reducing any and all allowances provided for by subsection 7.9
(the Limitation on Capital Expenditures) of this Agreement by
that same amount in the fiscal year such amount was utilized.
5. General
5A. Effectiveness. This Second Amendment and Restatement shall
become effective on the date the following conditions are satisfied:
(a) the Administrative Agent shall have received counterparts
of this Second Amendment and Restatement duly executed by the Borrowers and the
Required Lenders and acknowledged by the other Loan Parties, and
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(b) the Company shall have paid all fees and expenses,
including legal fees, required to be paid to the Administrative Agent and the
Lenders in connection with this Second Amendment and Restatement.
5B. Second Amendment and Restatement Fee. The Company shall
pay to the Administrative Agent, for the account of each Lender which delivers
to the Administrative Agent an executed copy of this Second Amendment and
Restatement on or prior to the Second Amendment and Restatement Effective Date,
a Second Amendment and Restatement fee equal to 0.25% of the sum of such
Lender's Revolving Credit Commitment and Term Loans on the Second Amendment and
Restatement Effective Date, payable on the Second Amendment and Restatement
Effective Date.
5C. Conditions Subsequent. The Borrowers agree that on or
prior to October 30, 2001:
(a) Each document (including any Uniform Commercial Code
financing statement) required by the Security Documents or under law or
reasonably requested by the Administrative Agent to be filed, registered or
recorded in order to create in favor of the Administrative Agent, for the
benefit of the Lenders, a perfected Lien on the Collateral described therein,
prior and superior in right to any other Person (other than with respect to
Liens expressly permitted by Section 7.3), shall be in proper form for filing,
registration or recordation.
(b) The Administrative Agent shall have received a Mortgage
with respect to each Mortgaged Property, executed and delivered by a duly
authorized officer of each party thereto.
(c) The Administrative Agent shall have received promptly
(notwithstanding the foregoing), but in an event no later than September 30,
2001, (x) a recent title report with respect to each Mortgaged Property from
counsel or a title company satisfactory to the Administrative Agent; and, if, in
the sole discretion of the Administrative Agent, such title report shows
substantial defects in title or is inconclusive as to title and any such defect
or inconclusivity materially affects the present use or fair market value of
such real property or the Lien of the Mortgage or the enforceability thereof,
take such action on or prior to, October 30, 2001 as is reasonably necessary or
desirable to cure such defects and/or confirm title, provided, that such October
30, 2001 deadline may be extended by the Administrative Agent if the
Administrative Agent shall determine in its reasonable discretion additional
time is required considering the nature of such defects and/or title
inconclusivity including without limitation obtaining Lender title insurance
policies and/or surveys, in each case in form and substance reasonably
satisfactory to the Administrative Agent; and (y) a copy of all recorded
documents referred to, or listed as exceptions to title in, any title report or
reports delivered in connection with a Mortgage and a copy of all other material
documents affecting title to the Mortgaged Properties or the Lien of the
Mortgage.
(d) To the extent required by applicable law, the
Administrative Agent shall have received (A) a policy of flood insurance that
(1) covers any parcel of improved real property that is encumbered by any
Mortgage (2) is written in an amount not less than the outstanding principal
amount of the indebtedness secured by such Mortgage that is reasonably allocable
to such real property or the maximum limit of coverage made available with
respect to the
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particular type of property under the National Flood Insurance
Act of 1968, whichever is less, and (3) has a term ending not later than the
maturity of the Indebtedness secured by such Mortgage and (B) confirmation that
the Borrower has received the notice required pursuant to Section 208(e)(3) of
Regulation H of the Board.
(e) If reasonably requested by the Administrative Agent, the
Administrative Agent shall have received the results of a recent lien search in
each of the jurisdictions where assets of the Loan Parties are located, and such
search shall reveal no liens on any of the assets of the Loan Parties except for
Liens (i) permitted by Section 7.3 or (ii) discharged on or pursuant to
documentation reasonably satisfactory to the Administrative Agent.
(f) If requested by the Administrative Agent, the
Administrative Agent shall have received corporate and other documents
(including legal opinions) reasonably satisfactory to it with respect to the
matters described in this Section 5C.
(g) It is the Lenders' current intention not to require that
the Company and its Subsidiary Guarantors deliver title policy or surveys with
respect to real property subject to Mortgages.
(h) The Administrative Agent shall have received evidence that
all reasonable fees, costs, charges, mortgage recording taxes, filing fees,
disbursements and other similar payments to be made in connection therewith, any
Mortgage, title report (and, if required by the Lenders, title insurance and/or
surveys) and local counsel have been paid.
(i) Failure to satisfy the conditions set forth in this
Section 5C shall be deemed to be an Event of Default under paragraph (d) of
Section 8.1.
5D. Continuing Effect; No Other Amendments. (a) Except as
expressly amended or waived hereby, all of the terms and provisions of the
Credit Agreement and the other Loan Documents are and shall remain in full force
and effect.
(b) The Borrowers hereby represent and warrant that the
representations and warranties contained in the Credit Agreement and the other
Loan Documents are true and correct in all material respects on the Second
Amendment and Restatement Effective Date as though made on and as of such date,
except for changes permitted by the Credit Agreement, except for the matters
contemplated by this Second Amendment and Restatement and except that
representations and warranties originally made as of a specified date shall be
true and correct as of such specified date. The amendments and waivers contained
herein shall not constitute an amendment or waiver of any other provision of the
Credit Agreement or the other Loan Documents or for any purpose except as
expressly set forth herein.
(c) GOVERNING LAW; Counterparts. THIS SECOND AMENDMENT AND
RESTATEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
(d) This Second Amendment and Restatement may be executed in
any number of counterparts, all of which counterparts, taken together, shall
constitute one and the same
13
instrument. This Second Amendment and Restatement may be delivered by facsimile
transmission of the relevant signature pages hereof.
[Signature pages follow]
IN WITNESS WHEREOF, the parties have caused this Second
Amendment and Restatement to be duly executed and delivered by their respective
proper and duly authorized officers as of the day and year first above written.
GENTEK INC.
By:___________________________________
Name:
Title:
NOMA COMPANY
By:___________________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent, as an Issuing Bank and
as a Lender
By:___________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, as
Syndication Agent
By___________________________________
Name:
Title:
15
Annex A
PRICING GRID FOR LOANS AND COMMITMENT FEES
==================================================================
Revolving Credit, Tranche A
Term Loan and Additional
Tranche A Term Loan Facilities
------------------------------------------------------------------
Applicable
Margin for Applicable
Eurodollar Margin for ABR Commitment
Pricing Ratio Loans Loans Fee Rate
------------------------------------------------------------------
> 4.25 2.75% 1.50% 0.50%
------------------------------------------------------------------
>3.75 <= 4.25 2.50% 1.25% 0.50%
------------------------------------------------------------------
>3.25 <= 3.75 2.25% 1.00% 0.45%
------------------------------------------------------------------
<= 3.25 2.00% 0.75% 0.40%
==================================================================
On and after the Second Amended and Restated Effective Date,
the Applicable Margin for Tranche B Term Loans and Tranche C Term Loans shall be
3.50% for Eurodollar Loans and 2.25% for ABR Loans.
Changes in the Applicable Margin and Commitment Fee Rate
resulting from changes in the Pricing Ratio (as defined below) shall become
effective on the date (the "Adjustment Date") on which financial statements are
delivered to the Lenders pursuant to subsection 6.1 (but in any event not later
than the 60th day after the end of each of the first three quarterly periods of
each fiscal year or the 90th day after the end of each fiscal year, as the case
may be) and shall remain in effect until the next change to be effected pursuant
to this paragraph. If any financial statements referred to above are not
delivered within the time periods specified above, then, until such financial
statements are delivered, the Pricing Ratio as at the end of the fiscal period
that would have been covered thereby shall for the purposes of this definition
be deemed to be greater than 4.25 to 1. In addition, at all times while an Event
of Default shall have occurred and be continuing, the Pricing Ratio shall for
the purposes of this definition be deemed to be greater than 4.25 to 1. Each
determination of the Pricing Ratio pursuant to this definition shall be made
with respect to the period of four consecutive fiscal quarters of the Company
ending at the end of the period covered by the relevant financial statements.
Notwithstanding the foregoing, prior to the first Adjustment Date to occur after
the Second Amendment and Restatement Effective Date, the Pricing Ratio shall for
purposes of this definition be deemed to be greater than 4.25 to 1.0.
"Pricing Ratio" means, as at the last day of any fiscal
quarter of the Company, the Pro Forma Ratio of (a) Funded Debt as at such day to
(b) Consolidated Cash Flow for the period of four fiscal quarters ending on such
day.
16
"Funded Debt" means, as to any Person, all Indebtedness of
such Person that matures more than one year from the date of its creation or
matures within one year from such date but is renewable or extendible, at the
option of such Person, to a date more than one year from such date or arises
under a revolving credit or similar agreement that obligates the lender or
lenders to extend credit during a period of more than one year from such date,
including all current maturities and current sinking fund payments in respect of
such Indebtedness whether or not required to be paid within one year from the
date of its creation and, in the case of the Company or the Canadian Borrower,
Indebtedness in respect of the Loans. Notwithstanding anything in the foregoing
to the contrary, Funded Debt shall exclude Indebtedness and Guarantee
Obligations of a Person in respect of reclamation bonds, performance bonds,
letters of credit and surety bonds required by the applicable statutes or laws
of the relevant jurisdiction or by relevant Government Authorities (or, in the
case of such letters of credit, issued for insurance purposes).
