EXHIBIT 10.6
AMENDMENT NO. 2
TO
CREDIT AGREEMENT
AMENDMENT NO. 2 TO CREDIT AGREEMENT, dated as of May 14, 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 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 7.11 of the Credit Agreement is amended by (i) deleting the
word "and" at the end of clause (xvi) thereof, (ii) deleting the
period at the end of clause (xvii) thereof and substituting therefor
"; and" and (iii) adding the following new clause (xviii) to such
Section 7.11 immediately after clause (xvii) thereof:
"(xviii) for the sale (1) by GenTek Holding Corporation of
all of the issued and outstanding shares of capital stock of
Krone International Holding Inc. and Krone Digital Communications
Inc. and (2) by GenTek Holding Corporation and/or certain of its
Affiliates of certain related intellectual property, all pursuant
to and in accordance with the terms of that certain Share
Purchase Agreement, dated March 25, 2004, among GenTek Holding
Corporation, Krone International Holding Inc., Krone Digital
Communications Inc., the Parent and ADC Telecommunications, Inc.
heretofore delivered to the Agent, as the same may be amended,
modified or waived from time to time with the prior written
consent of the Agent; provided, that (i) the Net Proceeds of such
sale are used immediately upon receipt to repay the Revolving
Loans and pay other Obligations in accordance with Section 3.3
(and in any event prior to being used to repay or pay any other
amounts owing by the Parent or any of its Subsidiaries), (ii)
immediately after giving effect to the repayment and payment of
the Obligations required under clause (i) above, there shall be
no Revolving Loans outstanding and (iii) within 10 days of such
sale, each Letter of Credit either constituting a German Letter
of Credit or backing up a German Letter of Credit shall have been
returned to the Bank for cancellation."
2.2 Section 7.12 of the Credit Agreement is amended by adding the
following sentence to the end of such Section:
"Further, notwithstanding the above limitations:
(i) GenTek Holding Corporation may make a cash Distribution (of
the type referred to in clause (a) of such defined term) to the
Parent of a portion of the Net Proceeds of the sale permitted
under Section 7.11 (xviii) remaining after making the payments
required under clause (i) of the proviso to such Section 7.11
(xviii) in an amount which is necessary to repay in full the Debt
owing under the Term Loan Agreement and to redeem the Class A
Warrants issued pursuant to the Plan of Reorganization, but only
so long as concurrently upon the Parent's receipt thereof the
Parent uses those monies for such purposes;
(ii) the Parent may redeem the Class A Warrants referred to in
clause (i) above in the manner and as provided in such clause
(i); and
(iii) the Parent may repurchase on the open market, at fair
market value or at a discount, shares of its common stock;
provided, that (x) the aggregate purchase price for all such
repurchases shall not exceed $5,000,000 during the term of this
Agreement, (y) no Default or Event of Default shall have occurred
and be continuing on the date of any such repurchase or would be
caused as a result thereof and (z) no such repurchase shall be
made from any Affiliate of any Loan Party."
2.3 Section 7.16 of the Credit Agreement is amended by adding the
following at the end of the penultimate sentence of such Section
immediately before the period:
"and the Parent may prepay in full (and only in full) all Debt
owing under the Term Loan Agreement with the Net Proceeds from
the sale permitted under Section 7.11 (xviii) remaining after
making the payments required under
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clause (i) of the proviso to such Section 7.11 (xviii), so long
as concurrently with such prepayment from such Net Proceeds all
Liens securing any such Debt are discharged and terminated"
2.4 The defined term "Fixed Charges" in Annex A to the Credit Agreement is
amended by adding the phrase "or pursuant to the penultimate sentence
of Section 7.16" at the end of clause (A) thereof immediately after
the words "pursuant to Section 7.16(iii)(z)".
2.5 Schedule 6.9 to the Credit Agreement is amended to add the following
Debt existing on the Closing Date:
"Intercompany loan from Krone, Incorporated. to GenTek Holding
Corporation (formerly General Chemical Corporation) in the amount
of $45,022,655.71
"Intercompany loan by GenTek Financial Services Limited to Krone
Holding Inc., which loan may be assumed by GenTek Holding
Corporation"
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; and
(b) the Agent shall have received, in form and substance satisfactory
to the Agent, a fully executed fee letter (the "Fee Letter"), dated the date
hereof, between the Parent and the Agent and the Parent shall have paid to the
Agent all of the fees set forth in the Fee Letter.
SECTION 4 KRONE SALE CONFIRMATION AND AGREEMENT. Each of the Lenders
party hereto confirms and agrees that the Agent is hereby authorized,
simultaneously with the consummation of the sale permitted under Section 7.11
(xviii) of the Credit Agreement as amended by this Agreement and satisfaction of
the conditions set forth in such Section 7.11 (xviii) (other than the condition
in clause (iii) to the proviso thereof), to (i) release each of Krone
International Holding Inc, Krone Digital Communications Inc. and their
respective Subsidiaries from their respective obligations under the Credit
Agreement and other Loan Documents (including, without limitation, their
guarantee obligations under Article 13 of the Credit Agreement), (ii) release
from the pledge of the Agent any and all equity interests in Krone International
Holding Inc., Krone Digital Communications Inc. and their respective
Subsidiaries held by the Agent and return to the Parent on their behalf any and
all stock certificates and other instruments evidencing such equity interests
(and, in each instance, related stock powers) in the possession of the Agent and
(iii) release any and all security interests in favor of the Agent in (x) any
assets and properties of Krone International Holding Inc, Krone Digital
Communications Inc. and their respective Subsidiaries and (y) any intellectual
property of any other Loan Parties that is being sold in such sale. Each of the
parties hereto acknowledges and agrees that, upon the consummation of the sale
permitted under Section 7.11
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(xviii) of the Credit Agreement as amended by this Agreement and satisfaction of
the conditions set forth in such Section 7.11 (xviii) (other than the condition
in clause (iii) to the proviso thereof), none of Krone International Holding
Inc, Krone Digital Communications Inc. nor any of their respective Subsidiaries
shall (i) be Borrowers, Subsidiary Guarantors or Loan Parties or (ii) have any
rights or obligations under the Credit Agreement or any other Loan Document.
SECTION 5 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 6 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 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 7 MISCELLANEOUS.
7.1 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.
7.2 Delivery of an executed counterpart of a signature page by
telecopier shall be effective as delivery of a manually executed counterpart.
7.3 This Amendment shall be governed by, and construed and interpreted
in accordance with, the laws of the State of New York.
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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:
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Title:
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"AGENT"
BANK OF AMERICA, N.A., as the Agent
By:
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Title:
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"U.S. LENDERS"
BANK OF AMERICA, N.A., as a U.S. Lender
By:
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Title:
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FLEET CAPITAL CORPORATION, as a U.S. Lender
By:
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Title:
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THE CIT GROUP/BUSINESS CREDIT, INC., as a
U.S. Lender
By:
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Title:
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XXXXX FARGO FOOTHILL, LLC, as a U.S. Lender
By:
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Title:
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CONGRESS FINANCIAL CORPORATION, as a
U.S. Lender
By:
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Title:
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