PURCHASE AGREEMENT
Exhibit
10.2
THIS
PURCHASE AGREEMENT (this “Agreement”) is made
and entered into as of March 18, 2010 by and among GenCorp Inc., an Ohio
corporation (the “Company”), and each
of the beneficial holders listed on Schedule I hereto
(each, a “Holder,” and
collectively, the “Holders”) of (i) the
Company’s 2 1/4% Convertible Subordinated Debentures due 2024 (the “Convertible Notes”),
which were issued pursuant to an Indenture (the “Convertible Notes
Indenture”), dated as of November 23, 2004, between the Company and The
Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), and/or
(ii) the Company’s 9 1/2% Senior Subordinated Notes due 2013 (the “Subordinated Notes,”
and together with the Convertible Notes, the “Notes”), which were
issued pursuant to an Indenture (as supplemented, the “Subordinated Notes
Indenture”), dated as of August 11, 2003, among the Company, the
Guarantors (as defined therein) and the Trustee.
RECITALS
WHEREAS,
the Company and each Holder have agreed, upon the terms and subject to the
conditions set forth in this Agreement, that the Company shall purchase from
such Holder, and such Holder shall sell to the Company, the principal amount of
the Notes owned by such Holder as listed on Schedule I hereto,
representing all of the Notes owned by such Holder.
NOW,
THEREFORE, in consideration of the premises and mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I -
PURCHASE OF NOTES
Section
1.01. Purchase of
Notes. Upon the terms and subject to the conditions set forth
in this Agreement, each Holder hereby agrees to sell to the Company, and the
Company hereby agrees to purchase from such Holder, at the Closing the principal
amount of the Notes held by such Holder, as set forth opposite such Holder’s
name on Schedule
I hereto, for the purchase price(s) set forth on Schedule I hereto
(the “Purchase
Price”).
Section
1.02. Closing and
Location. The closing of the transactions contemplated hereby
(the “Closing”)
shall take place on the date hereof, or on such other date as shall be mutually
agreed to by the Company and each Holder (the “Closing Date”), at
the offices of Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP, Park Avenue
Tower, 65 East 55th
Street, New York, New York, or such other place as shall be mutually agreed to
by the Company and each Holder.
Section
1.03. Delivery. At
the Closing, (a) each Holder shall effect by book entry, in accordance with the
applicable procedures of the Depository Trust Company and the terms of the
Convertible Notes Indenture or the Subordinated Notes Indenture, as the case may
be, the delivery to the Company (or to its designee which may be the Trustee for
the benefit of the Company) of the Notes held by such Holder as set forth
opposite such Holder’s name on Schedule I and such
Notes shall be cancelled or the amount outstanding under global certificates
representing the Notes shall be decreased by the amount of Notes delivered
hereunder and (b) the Company shall pay to each Holder such Holder’s Purchase
Price by wire transfer of immediately available funds to an account designated
in writing by such Holder.
Section
1.04. Consummation of
Closing. All acts, deliveries and confirmations comprising the
Closing, regardless of chronological sequence, shall be deemed to occur
contemporaneously and simultaneously upon the occurrence of the last act,
delivery or confirmation of the Closing and none of such acts, deliveries or
confirmations shall be effective unless and until the last of same shall have
occurred.
Section
1.05. No Transfer of Notes After
the Closing; No Further Ownership Rights in the Notes. Upon
consummation of the Closing, all Notes (or interests therein) purchased pursuant
to this Agreement shall cease to be transferable and there shall be no further
registration of any transfer of any such Notes or interests
therein. From and after the Closing, each Holder shall cease to have
any rights with respect to such Holder’s Notes, including, without limitation,
any payments of accrued and unpaid interest.
ARTICLE II -
REPRESENTATIONS AND WARRANTIES
Section
2.01. Representations and
Warranties of the Company. The Company represents and warrants
to each Holder that the following statements are true, correct and complete as
of the date hereof:
(a) Organization and Good
Standing. The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of its state of
incorporation and has all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business.
(b) Power and
Authority. It has all requisite corporate power and authority
to enter into this Agreement and to carry out the transactions contemplated by,
and perform its obligations under, this Agreement.
(c) Authorization. The
execution and delivery of this Agreement and the performance of its obligations
hereunder have been duly authorized by all necessary corporate action on its
part.
(d) Binding
Obligation. This Agreement is the legally valid and binding
obligation of it, enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or limiting creditors’ rights generally or by
equitable principles relating to enforceability.
(e) No
Conflicts. The execution, delivery and performance by it of
this Agreement do not and will not (i) violate any provision of law, rule or
regulation applicable to it or its organizational or governing documents or (ii)
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any material contractual obligation to which it is
a party.
(f) Governmental
Consents. The execution, delivery and performance by it of
this Agreement do not and will not require any registration or filing with,
consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental or regulatory authority or body other than
pursuant to the Securities Exchange Act of 1934, as amended.
2
Section
2.02. Representations and
Warranties of Each Holder. Each Holder on behalf of itself and
not on behalf of the other Holders represents and warrants to the Company that
the following statements are true, correct and complete as of the date
hereof:
(a) Organization and Good
Standing. It is a form of entity duly organized, validly
existing and in good standing under the laws of its jurisdiction of formation
and has all requisite power and authority to own, lease and operate its
properties and to carry on its business.
(b) Power and
Authority. It has all requisite power and authority to enter
into this Agreement and to carry out the transactions contemplated by, and
perform its obligations under, this Agreement.
(c) Authorization. The
execution and delivery of this Agreement and the performance of its obligations
hereunder have been duly authorized by all necessary action on its
part. Beach Point Capital Management LP is the investment manager of
such Holder and, in such capacity, has the requisite power and authority to, and
by its execution and delivery hereof does hereby, bind such Holder to this
Agreement.
(d) Binding
Obligation. This Agreement is the legally valid and binding
obligation of it, enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or limiting creditors’ rights generally or by
equitable principles relating to enforceability.
(e) No
Conflicts. The execution, delivery and performance by it of
this Agreement do not and will not (i) violate any provision of law, rule or
regulation applicable to it or its organizational or governing documents or (ii)
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any material contractual obligation to which it is
a party.
(f) Governmental
Consents. The execution, delivery and performance by it of
this Agreement do not and will not require any registration or filing with,
consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental or regulatory authority or
body.
(g) Ownership of
Notes. The principal amount of Notes held by it as set forth
on Schedule I
hereto is an accurate amount and represents all of the Notes beneficially owned
by it, and it is the beneficial owner thereof, free and clear of all liens,
claims and encumbrances of any nature whatsoever (other than obligations
pursuant to this Agreement).
ARTICLE
III - MISCELLANEOUS
Section
3.01. Release. Each
party hereto, on behalf of itself and its predecessors, successors and assigns,
hereby unequivocally, irrevocably and unconditionally releases, surrenders,
acquits and forever discharges the other parties hereto and their respective
subsidiaries, directors, officers, stockholders, members, partners, employees,
affiliates, agents, advisors, attorneys, representatives, predecessors,
successors and assigns (collectively, the “Released Parties”),
from any and all actions, causes of action, claims, suits, covenants, contracts,
controversies, agreements, promises, indemnities, damages, judgments, remedies,
demands and liabilities, of any nature whatsoever, in law, at equity or
otherwise incurred prior to or as of the date hereof (collectively, the “Claims”), whether
direct, derivative or otherwise, which have been, may be or ever could be
asserted against any of the Released Parties, either for itself or otherwise for
or on behalf of any other person, in connection with the Notes, the Convertible
Notes Indenture and/or the Subordinated Notes Indenture, as the case may be, or
the negotiations relating to or consummation of this Agreement or any of the
transactions contemplated hereby, other than any Claims arising under this
Agreement.
3
Section
3.02. Successors and
Assigns. This Agreement is intended to bind and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. None of the parties may assign or delegate all or any part
of its rights or obligations hereunder without the prior written consent of the
other parties.
Section
3.03. Entire
Agreement. This Agreement constitutes the entire understanding
and agreement among the parties hereto with regard to the subject matter hereof
and supersedes all prior agreements with respect thereto.
Section
3.04. Effectiveness;
Amendments. This Agreement shall not become effective and
binding on a party hereto unless and until a counterpart signature page to this
Agreement has been executed and delivered by such party. Once
effective, this Agreement may not be modified, amended or supplemented, nor may
any provision be waived, except in a writing signed by the Company and each of
the Holders.
Section
3.05. Severability. Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
Section
3.06. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
Agreement. Delivery of an executed signature page of this Agreement
by telecopier or e-mail shall be effective as delivery of a manually executed
signature page of this Agreement.
Section
3.07. Headings. The
headings of the sections and subsections of this Agreement are inserted for
convenience only and shall not affect the interpretation hereof.
Section
3.08. Representations and Releases
to Survive. The respective agreements, representations,
warranties and other statements of the Company and of each Holder set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of such Holder or the
Company, as the case may be, and will survive the execution and delivery of this
Agreement and the consummation of the transactions contemplated
hereby. The provisions of Section 3.01 shall survive the termination
or cancellation of this Agreement.
4
Section
3.09. Governing Law;
Jurisdiction. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, regardless of
the laws that might otherwise govern under applicable principles of conflict of
laws of the State of New York. The parties hereby irrevocably submit
to the non-exclusive jurisdiction of any federal or state court located within
the borough of Manhattan of the City, County and State of New York over any
dispute arising out of or relating to this Agreement or any of the transactions
contemplated hereby. The parties hereby irrevocably waive, to the
fullest extent permitted by applicable law, jury trial and any objection which
they may now or hereafter have to the laying of venue of any such dispute
brought in such court or any defense of inconvenient forum for the maintenance
of such dispute. Each of the parties hereto agrees that a judgment in
any such dispute may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law.
Section
3.10. Notices. All
demands, notices, requests, consents and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered by
courier service, messenger, telecopy, electronic mail, or if duly deposited in
the mails, by certified or registered mail, postage prepaid-return receipt
requested, to the following addresses, or such other addresses as may be
furnished hereafter by notice in writing, to the following parties:
(a) If
to the Company, to:
Facsimile
No.: (000) 000-0000
Attn:
Xxxxxxxx X. Xxxx, Vice President, Chief Financial Officer and
Secretary
Email:
Xxxxx.Xxxx@Xxxxxxx.xxx
(Mail address)
P.O. Box
537012 (Bldg 20019)
Xxxxxxxxxx,
Xxxxxxxxxx 00000-0000
(Overnight delivery
address)
Xxxxxxx
00 xxx Xxxxxxx Xxxx
Xxxx
00000 - XX 0000
Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
with a
copy to (which copy shall not constitute notice):
Xxxxxx
Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
Park
Avenue Tower
00 Xxxx
00xx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Facsimile
No.: (000) 000-0000
Attn:
Xxxxxxx X. Xxxxxxxx, Esq.
Email:
xxxxxxxxx@xxxxxxxxx.xxx
(b) If
to a Holder, to its address set forth on its signature page hereto or such other
address as provided to the parties in writing.
Section
3.11. Specific
Performance. Each party hereto recognizes and acknowledges
that a breach by it of any covenants or agreements contained in this Agreement
will cause the other party(ies) to sustain damages for which such party(ies)
would not have an adequate remedy at law for money damages, and therefore each
party hereto agrees that in the event of any such breach the other party(ies)
may seek the remedy of specific performance of such covenants and agreements and
injunctive and other equitable relief (without the requirement to post bond or
other security) in addition to any other remedy to which such party may be
entitled, at law or in equity.
Section
3.12. Remedies
Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any right, power or
remedy thereof by any party shall not preclude the simultaneous or later
exercise of any other such right, power or remedy by such party.
Section
3.13. No
Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
Section
3.14. No Third Party
Beneficiaries. This Agreement is not intended to be for the
benefit of, and shall not be enforceable by, any person who or which is not a
party hereto.
Section
3.15. No Joint
Liability. The Company acknowledges and agrees that each
Holder is entering into this Agreement for its own account and not for or on
behalf of any of the other Holders party hereto. The obligations,
representations, warranties and any other responsibilities of the Holders
hereunder are several and not joint. In no event shall any Holder
have any liability whatsoever for the obligations, representations, warranties
or any other responsibilities of any of the other Holders party
hereto.
Section
3.16. Representation by
Counsel. Each of the Company and each Holder acknowledges that
it has been represented by counsel in connection with this Agreement and the
transactions contemplated by this Agreement. Accordingly, any rule of
law or any legal decision that would provide any party with a defense to the
enforcement of the terms of this Agreement against such party based upon lack of
legal counsel shall have no application and is expressly waived.
[Signature
Pages Follow]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
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By:
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/s/
Xxxxxxxx X. Xxxx
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Name:
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Xxxxxxxx
X. Xxxx
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Title:
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Vice
President, Chief Financial Officer and
Secretary
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BEACH
POINT CAPITAL MANAGEMENT LP,
in its capacity as investment manager on behalf of each of the Holders listed in Schedule I |
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By:
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/s/ Xxxx Xxxxxxxxx | ||
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Name:
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Xxxx Xxxxxxxxx | ||
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Title:
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Senior Portfolio Manager | ||
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Notice
Address:
Beach
Point Capital Management LP
00000
Xxxxxxxx Xxxx., Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
Facsimile
No.: 000-000-0000
Attn:
Xxxxxxxx X. Xxxxxxx
Email:
xxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
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SIGNATURE
PAGE TO PURCHASE AGREEMENT
