SECOND AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.1
SECOND AMENDMENT TO CREDIT
AGREEMENT
THIS SECOND AMENDMENT TO CREDIT
AGREEMENT (the “Amendment”), dated as
of March 17,
2010, is by and among GENCORP
INC., an Ohio corporation (the “Borrower”), the
subsidiaries of the Borrower from time to time party thereto (the “Guarantors”), and
WACHOVIA BANK, NATIONAL
ASSOCIATION, as administrative agent for the Lenders (the “Administrative
Agent”). Capitalized terms used herein but not otherwise
defined shall have the meanings ascribed thereto in the Credit
Agreement.
W I T N E S S E T
H
WHEREAS, the Borrower, the
Guarantors, certain banks and financial institutions from time to time party
thereto (the “Lenders”) and the
Administrative Agent are parties to that certain Amended and Restated Credit
Agreement dated as of June 21, 2007 (as amended, modified, extended, restated,
replaced, or supplemented from time to time, the “Credit
Agreement”);
WHEREAS, the Borrower has
requested that the Required Lenders agree to certain amendments to the Credit
Agreement; and
WHEREAS, the Required Lenders
are willing to amend the Credit Agreement subject to the terms and conditions
hereof.
NOW, THEREFORE, IN
CONSIDERATION of the agreements herein contained, the parties hereby
agree as follows:
SECTION
1
AMENDMENT
1.1 New
Definitions. The following
definitions are hereby added to Section 1.1 of the Credit Agreement in the
appropriate alphabetical order:
“4.0625% Convertible
Debentures” shall mean, collectively, those certain 4.0625% Convertible
Subordinated Debentures due 2039 issued by the Borrower, as the same may be
amended, restated, supplemented or otherwise modified from time to time as
permitted hereunder.
“Aggregate Refinancing
Indebtedness Amount” shall have the meaning set forth in Section
6.1(e).
“Debt Repurchase”
shall mean a redemption, repurchase, retirement or other satisfaction or
extinguishment, including, without limitation, by optional redemption, required
repurchase rights, exchange, open market and/or privately negotiated purchases,
of Indebtedness.
“Designated Cash”
shall mean, so long as there are no Revolving Loans outstanding, (a) cash and
Cash Equivalents of the Borrower or any of its Subsidiaries subject to account
control agreements in favor of the Administrative Agent that are in form and
substance reasonably acceptable thereto and (b) cash and Cash Equivalents of the
Borrower or any of its Subsidiaries that are held in a blocked account with the
Administrative Agent or a separate account with an escrow agent, in each case
that are earmarked for the permanent reduction of Indebtedness of any of the
Credit Parties.
“Equity Repurchase”
shall have the meaning set forth in Section 6.10(f).
“GDX Automotive SAS
Judgments” shall mean any legal judgments rendered under French law
against GDX Automotive SAS.
“GenCorp Savings Plan”
shall mean the GenCorp Retirement Savings Plan, a defined contribution plan, as
amended from time to time, which plan includes the GenCorp Stock Fund (a
unitized stock fund that invests primarily in the Capital Stock of the Borrower,
but also has small investments in cash and cash equivalents) that issues units
to plan participants.
“Impacted Lender”
means any Lender as to which (a) the Administrative Agent, the Swingline Lender
or the Issuing Lender has actual knowledge that the Lender has defaulted, and
continues to remain in default, in fulfilling its funding obligations under one
or more other syndicated credit facilities, (b) the Lender or the entity that
Controls the Lender has been deemed insolvent or become subject to a bankruptcy
or other similar proceeding, (c) with respect to which the Federal Deposit
Insurance Corporation has been appointed receiver or conservator by a
federal or state chartering authority or otherwise pursuant to the FDI Act (12
U.S.C. § 11(c)), or (d) the Lender has notified the Administrative
Agent in writing (or issued a public statement) that such Lender will
not fund its obligations under this Agreement.
“Infrastructure
Improvements” shall mean any real estate physical improvements
(including, without limitation, grading, road building, landscaping, utility
installations and other similar development improvements contemplated by or
required for the permitted proposed redevelopment of the property) and related
expenditures for such improvements (including without limitation, planning
documentation, studies, engineering plans and plan fees in support of the
physical improvements and permitting process).
“Refinancing
Indebtedness” shall have the meaning set forth in Section
6.1(e).
“Rescission Offer”
shall mean a rescission offer or offers to be launched by the Borrower under
which the Borrower will offer (using cash and/or Capital Stock) to (a) rescind
and repurchase the units (consisting, in part, of Capital Stock of the
Borrower), including any unrealized losses with respect to such units, sold to
or issued to Persons in the GenCorp Stock Fund of the GenCorp Savings Plan who
may have been deemed to have purchased such units that were “sold” in violation
of Section 5 of the Securities Act of 1933, as amended, or any similar state
laws, (b) make payments to Persons who sold such units at a loss or who have
unrealized losses with respect to such units and (c) pay interest to affected
Persons; provided that the
Rescission Offer shall not include the rescission of units purchased by
participants after the effective date of the Borrower’s registration statement
on Form S-8 dated June 30, 2008.
2
“Second Amendment Effective
Date” shall mean March
17, 2010.
1.2 Deleted
Definitions. The following
definitions are hereby deleted in their entirety from Section 1.1 of the Credit
Agreement:
“Incremental
Term Loan”
“Incurrence
Test”
“Refinance
Period”
1.3 Amendment
to Definition of Applicable Percentage. The definition of
Applicable Percentage set forth in Section 1.1 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
“Applicable
Percentage” shall mean, for any day, a rate per annum equal to (a) 0.625%
with respect to the Commitment Fee, (b) 2.25% with respect to Revolving
Loans and Term Loans that are Alternate Base Rate Loans, (c) 3.25% with
respect to Revolving Loans and Term Loans that are LIBOR Rate Loans and (d)
3.25% with respect to the Revolving LOC Commitment Fee.
1.4 Amendment
to Definition of Cash Equivalents. Clause (c) of the
definition of Cash Equivalents set forth in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
(c) commercial paper and variable or
fixed rate notes issued by any Approved Bank (or by the parent company thereof)
or any variable rate notes issued by, or guaranteed by any domestic corporation
rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the
equivalent thereof) or better by Xxxxx’x and maturing within twelve (12) months
of the date of acquisition,
1.5 Amendment
to Definition of Equity Issuance. The definition of
Equity Issuance set forth in Section 1.1 of the Credit Agreement is hereby
amended by (1) amending and restating clause (v) in its entirety and (2) adding
a new clause (vii) to the end of such definition and making the appropriate
punctuation and grammatical changes thereto, in each case to read as
follows:
(v)
any equity issuance the proceeds of which are used to refinance, or consummate a
Debt Repurchase of, the Existing Subordinated Notes and/or the outstanding Term
Loans, in whole or in part, in each case, as permitted by Section 6.1(e) or
Section 6.10(f)
***
(vii)
any equity issuance issued in connection with the Rescission Offer.
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1.6 Amendment
to Definition of Existing Subordinated Notes. The definition of
Existing Subordinated Notes set forth in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
“Existing Subordinated
Notes” shall mean, collectively, the 9.50% Senior Subordinated Notes, the
2.25% Convertible Notes, the 4.00% Convertible Notes and the 4.0625% Convertible
Debentures, as the same may be amended, restated, supplemented or otherwise
modified from time to time as permitted hereunder.
1.7 Amendment
to Definition of Leverage Ratio. The definition of
Leverage Ratio set forth in Section 1.1 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
“Leverage Ratio” shall
mean, as of any date of determination, the ratio of (i) Consolidated Funded
Debt on such date minus Designated Cash
to (ii) Consolidated EBITDAP.
1.8 Amendment
to Definition of Net Cash Proceeds. The definition of
Net Cash Proceeds set forth in Section 1.1 of the Credit Agreement is
hereby amended by adding the following clause (f) after clause (e) in such
definition (but prior to the phrase “it being understood”) and making the
appropriate punctuation and grammatical changes thereto to read as
follows:
(f)
expenditures incurred or accrued related to any Infrastructure Improvements with
respect to any proposed or planned real estate development related to a
Permitted Real Estate Sale or Permitted Real Estate Transfer; provided that such
expenditures were incurred or accrued on or after December 1, 2007.
1.9 Amendment
to Definition of Non-Cash and Other Adjustments. The definition of
Non-Cash and Other Adjustments set forth in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
“Non-Cash and Other
Adjustments” shall mean (i) charges associated with environmental reserve
adjustments and (ii) all non-cash expenses or income incurred outside the normal
course of business of the Credit Parties including litigation settlements and
awards and other charges relating to legal matters, charges associated with
impairments of tangible and intangible assets and any cancellation of debt
income or similar income or gain realized in connection with the repurchase of
any Indebtedness, including, without limitation, any Debt
Repurchase.
1.10 Amendment
to Definition of Permitted Investments. The definition of
Permitted Investments in Section 1.1 of the Credit Agreement is hereby
amended by (1) amending and restating clause (k) in its entirety and (2) adding
the following clauses (p), (q), (r) and (s) to the end of
such definition and making the appropriate punctuation and grammatical changes
thereto, in each case, to read as follows:
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(k) Guaranty
Obligations permitted pursuant to Section 6.1(e), 6.1(h), 6.1(k) and
6.1(l);
***
(p) the
Rescission Offer;
(q) Debt
Repurchases of the Existing Subordinated Notes to the extent permitted by
Section 6.10;
(r) Equity
Repurchases to the extent permitted by Section 6.10; and
(s) Investments
to the extent permitted by Section 6.4(a).
1.11 Amendment
to Definition of Permitted Real Estate Sales. The definition of
Permitted Real Estate Sales set forth in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
“Permitted Real Estate
Sales” shall mean the sale of any owned real property of a Credit Party
(a) subject to a Lien in favor of the Administrative Agent for the benefit of
the Lenders or (b) not listed on Schedule 1.1(f) as
such schedule may be updated from time to time with the consent of the
Administrative Agent), in each case, that satisfies the following
requirements: (i) no Default or Event of Default shall exist at the
time of such sale or be caused by such sale, (ii) such sale is for Fair Market
Value and (iii) the Net Cash Proceeds of such sale are applied to the Loans to
the extent required pursuant to Section 2.9(b).
1.12 Amendment
to Section 2.1(a). The second sentence of Section 2.1(a) of
the Credit Agreement is hereby amended and restated in its entirety to read as
follows:
For purposes hereof, the aggregate
principal amount available for Revolving Loan borrowings hereunder shall be
SIXTY-FIVE MILLION DOLLARS ($65,000,000) (as such aggregate maximum amount
may be reduced from time to time as provided in Section 2.8, the “Revolving
Committed Amount”).
1.13 Amendment
to Section 2.2(a). The following sentence is hereby added to
the end of Section 2.2(a) of the Credit Agreement to read as
follows:
The
Revolving Issuing Lender shall be under no obligation to issue any Revolving
Letter of Credit if any Revolving Lender is at such time a Defaulting Lender or
an Impacted Lender hereunder, unless the Revolving Issuing Lender has entered
into arrangements satisfactory to the Revolving Issuing Lender with the Borrower
or such Revolving Lender to eliminate the Revolving Issuing Lender’s risk with
respect to such Lender’s Revolving LOC Obligations. The Revolving
Issuing Lender shall provide prompt notice to the Borrower upon becoming aware
of any Defaulting Lender or Impacted Lender.
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1.14 Amendment
to Section 2.3(b)(i). The following sentence is hereby added
to the end of Section 2.3(b)(i) of the Credit Agreement to read as
follows:
Notwithstanding
anything to the contrary contained herein, the Swingline Lender shall not at any
time be obligated to make any Swingline Loan hereunder if any Revolving Lender
is at such time a Defaulting Lender or an Impacted Lender hereunder, unless the
Swingline Lender has entered into arrangements satisfactory to the Swingline
Lender with the Borrower or such Revolving Lender to eliminate the Swingline
Lender’s risk with respect to such Revolving Lender’s obligations in respect of
its Swingline Commitment. The Swingline Lender shall provide prompt
notice to the Borrower upon becoming aware of any Defaulting Lender or Impacted
Lender.
1.15 Amendment
to Section 2.4(a). The parenthetical in the first sentence of
Section 2.4(a) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
(as
such amount may be increased by any Credit-Linked Purchase that is converted to
Term Loans pursuant to Section 2.5(d)(ii), the “Term Loan Committed
Amount”)
1.16 Amendment
to Section 2.5(a)(i)(A). Section 2.5(a)(i)(A) of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
(A)
ONE HUNDRED MILLION DOLLARS ($100,000,000) (as reduced from time to time in
accordance with the terms of Section 2.5(d)(ii) or Section 2.8(a), the “Credit-Linked LOC Committed
Amount”) and
1.17 Amendment
to Section 2.9(b)(vi). Section 2.9(b)(vi) of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
(vi) Issuances of
Equity. Promptly, upon receipt by any Credit Party or any of
its Subsidiaries of proceeds from any Equity Issuance, the Borrower shall prepay
the Loans in an aggregate amount equal to the lesser of (A) 50% of the Net Cash
Proceeds of such Equity Issuance and (B) an amount necessary to, after giving
pro forma effect to any repayments of Indebtedness and other Debt Repurchases,
reduce the Leverage Ratio to less than or equal to 3.0 to 1.0; provided that no
prepayment under this Section 2.9(b)(vi) shall be required with respect to any
Equity Issuance if the Leverage Ratio, after giving pro forma effect to any
repayments of Indebtedness and other Debt Repurchases, is less than or equal to
3.0 to 1.0 (such prepayment to be applied as set forth in clause (x)
below).
1.18 Amendment
to Section 2.21. The first sentence of Section 2.21 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
If
any Lender shall (a) be a Defaulting Lender, (b) be an Impacted Lender or (c)
become affected by any of the changes or events described in Sections 2.16,
2.17, 2.18 or 2.19 and shall petition the Borrower for any increased cost or
amounts thereunder (in the case of any Lender falling under the category of
clause (a), (b) or (c) above, a “Replaced Lender”),
then in such case, the Borrower may, upon at least thirty (30) Business Days’
notice to the Administrative Agent and such Replaced Lender and so long as no
Default or Event of Default has occurred and is continuing, designate a
replacement lender (a “Replacement Lender”)
acceptable to the Administrative Agent in its reasonable discretion, to which
such Replaced Lender shall, subject to its receipt (unless a later date for the
remittance thereof shall be agreed upon by the Borrower and the Replaced Lender)
of all amounts owed to such Replaced Lender under Sections 2.16, 2.17, 2.18 or
2.19, assign at par all (but not less than all) of its rights, obligations,
Loans and Commitments hereunder; provided, that all
amounts owed to such Replaced Lender by the Borrower (except liabilities which
by the terms hereof survive the payment in full of the Loans and termination of
this Agreement) shall be paid in full as of the date of such
assignment.
6
1.19 Deletion
of Section 2.22. Section 2.22 of the Credit Agreement is
hereby deleted in its entirety.
1.20 Amendment
to Section 3.24. The last sentence of Section 3.24 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
Schedule 3.24 may be
updated from time to time by the Borrower to include new Material Contracts
and/or to remove Material Contracts to the extent (a) permitted by Section
6.8(a)(iii) to be cancelled, terminated, not renewed or not extended
or (b) it no longer meets the criteria to qualify as a Material Contract, in
each case, by giving written notice thereof to the Administrative
Agent.
1.21 Amendment
to Section 6.1. Section 6.1(e) of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
(e) (i)
Indebtedness of the Credit Parties and their Subsidiaries (other than the
Permitted Real Estate Entities) pursuant to the Existing Subordinated Notes and
(ii) senior unsecured or subordinated Indebtedness (such Indebtedness, “Refinancing
Indebtedness”) in an aggregate amount not to exceed the sum of
(A) the outstanding Existing Subordinated Notes and outstanding Term Loans
immediately prior to the incurrence of such Refinancing Indebtedness and (B) the
aggregate amount of cash previously used to consummate Debt Repurchases of the
Existing Subordinated Notes, in whole or in part, within the nine (9) month
period prior to the incurrence of such Refinancing Indebtedness (collectively,
the “Aggregate
Refinancing Indebtedness Amount”); provided that (1) no
Default or Event of Default shall have occurred and be continuing or would
result therefrom, (2) the sum of (x) the Existing Subordinated Notes then
outstanding after giving effect to such Refinancing Indebtedness, (y) the Term
Loans then outstanding after giving effect to such Refinancing Indebtedness and
(z) such Refinancing Indebtedness shall not exceed the Aggregate Refinancing
Indebtedness Amount plus an amount equal
to the aggregate costs, fees, accrued interest and call premiums incurred, on or
after the Second Amendment Effective Date, in connection with the Debt
Repurchase or other extinguishment of the Existing Subordinated Notes and/or
Term Loans or in connection with the incurrence of Refinancing Indebtedness, (3)
the Refinancing Indebtedness shall be issued on terms reasonably satisfactory to
the Administrative Agent (such consent not to be unreasonably withheld or
delayed), (4) the maturity date of such Refinancing Indebtedness shall be at
least six (6) months after the Credit-Linked Maturity Date, (5) such Refinancing
Indebtedness shall not be subject to mandatory amortization payments, (6) the
instruments governing such Refinancing Indebtedness shall not contain financial
maintenance covenants and (7) after giving effect to the incurrence of such
Refinancing Indebtedness, the Indebtedness of the Credit Parties and their
Subsidiaries shall not exceed $438,600,000 (i.e. the total Indebtedness of the
Credit Parties and their Subsidiaries as of November 30, 2009) plus an amount equal
to the aggregate costs, fees, accrued interest and call premiums incurred, on or
after the Second Amendment Effective Date, in connection with the Debt
Repurchase or other extinguishment of the Existing Subordinated Notes and/or
Term Loans or in connection with the incurrence of Refinancing
Indebtedness;
7
1.22 Amendment
to Section 6.4. Each of Section 6.4(a)(v) and 6.4(a)(ix) of
the Credit Agreement is hereby amended and restated in its entirety to read as
follows:
(v) the
dissolution, liquidation or winding up of a Subsidiary that is not a Credit
Party; provided
that prior to or simultaneously with any such dissolution, liquidation or
winding up, all assets of such Subsidiary (other than GDX Automotive SAS,
Snappon SA or any other Foreign Subsidiary that is not a Significant Subsidiary)
are transferred to a Credit Party (other than a Permitted Real Estate Entity)
or, to the extent required by law or binding contract, a creditor or creditors
thereof;
(ix) the
grant of certain rights pertaining to “Aggregates” to Granite Construction
Company pursuant to the Agreement Granting Right to Mine Aggregates dated
November 18, 2004 (as amended, restated, supplemented or otherwise modified, the
“Granite
Agreement”);
1.23 Amendment
to Section 6.10. Section 6.10 of the Credit Agreement is
hereby amended by (1) amending and restating clause (c)(ii) in its entirety, (2)
deleting clause (c)(iii) in its entirety and (3) adding the following clause (f)
to the end of such Section and, in each case, making the appropriate punctuation
and grammatical changes thereto, in each case, to read as follows:
(ii) so long as no Event of
Default has occurred and is continuing and no Default or Event of Default would
result therefrom, the Borrower and its applicable Subsidiaries may refinance the
Existing Subordinated Notes, in whole or in part, on the terms set forth in
Section 6.1(e)
***
(f) so
long as no Default has occurred and is continuing, both immediately before and
after giving effect to such Restricted Payment and the Credit Parties are in pro
forma compliance with each of the financial covenants set forth in Section 5.9,
the Borrower and its applicable Subsidiaries may (i) consummate the Rescission
Offer with cash and/or Capital Stock; provided that the
cash and/or Cash Equivalents used to consummate the Rescission Offer shall not
exceed $15,000,000 in the aggregate, (ii) repurchase shares of the Borrower’s
Capital Stock (an “Equity Repurchase”)
in an aggregate amount not to exceed $25,000,000 per fiscal year; provided that (A) at
the time of any such Equity Repurchase, all or substantially all (as determined
by the Administrative Agent) of the 2.25% Convertible Notes shall have been
retired or refinanced, (B) there shall be no Revolving Loans outstanding during
the fifteen (15) days immediately preceding and during the fifteen (15) days
immediately following the date of such Equity Repurchase and (C) the Borrower
shall have at least $25,000,000 of cash and Cash Equivalents on its consolidated
balance sheet after giving effect to such Equity Repurchase and (iii) consummate
a Debt Repurchase, using cash on hand (including, without limitation, net
proceeds from the offering of the 4.0625% Convertible Debentures or from an
equity issuance) or
via the issuance or incurrence of Refinancing Indebtedness, of the 9.50% Senior
Subordinated Notes, the 4.00% Convertible Notes, the 2.25% Convertible Notes
and/or, so long as after giving effect to such Debt Repurchase the Borrower has
cash and Cash Equivalents on hand in an amount equal to or exceeding the amount
necessary to satisfy the 2.25% Convertible Notes in full, the 4.0625%
Convertible Debentures, in whole or in part; provided that (A)
there shall be no Revolving Loans outstanding during the fifteen (15) days
immediately preceding and during the fifteen (15) days immediately following the
date of such Debt Repurchase and (B) the Borrower shall have at least
$25,000,000 of cash and Cash Equivalents on its consolidated balance sheet after
giving effect to such Debt Repurchase.
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1.24 Amendment
to Section 6.12(b). Section 6.12(b) of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
(b)
which the Borrower or any of its Subsidiaries intends to use for substantially
the same purpose as any other property which has been or is to be sold or
transferred by the Borrower or any of its Subsidiaries to any Person (other than
the Borrower or any of its Subsidiaries) in connection with such lease, except
for such sale leasebacks in the amount of $20,000,000 in the aggregate during
the term of this Agreement.
1.25 Amendment
to Section 7.1(f). The last sentence of Section 7.1(f) of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
Notwithstanding the foregoing, (i) with
respect to any Subsidiary that is not a Significant Subsidiary, none of the
events above shall constitute a Default or an Event of Default unless such event
shall not have been cured by the Borrower or applicable Subsidiary or waived by
the Required Lenders within sixty (60) days of such event occurring and (ii)
with respect to GDX Automotive SAS and Snappon SA, none of the events
above shall constitute a Default or an Event of Default if it is deemed by the
Borrower to be in the best interest of the Borrower and it will not have a
Material Adverse Effect.
1.26 Amendment
to Section 7.1(g). Section 7.1(g) of
the Credit Agreement is hereby amended and restated in its entirety to read as
follows:
(g) Judgment
Default. One or more judgments, orders, decrees or arbitration
awards shall be entered against the Credit Parties or any of their Subsidiaries
involving in the aggregate a liability (to the extent not paid when due or
covered by insurance) of (i) with respect to the Snappon Judgments, $10,000,000
or more, (ii) with respect to the GDX Automotive SAS Judgments, $10,000,000 or
more and (iii) with respect to all other judgments, orders, decrees
or arbitration awards, $5,000,000 or more, and all such judgments, orders,
decrees or arbitration awards identified in clauses (i), (ii) and
(iii) above shall not have been paid and satisfied, vacated, discharged, stayed
or bonded pending appeal within thirty (30) days from the entry
thereof.
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SECTION
2
REVOLVING
COMMITTED AMOUNT
AND
CREDIT-LINKED LOC COMMITTED
AMOUNT
Pursuant to Section 2.8(a) of the
Credit Agreement, the Borrower hereby elects to permanently reduce (a) the
Revolving Committed Amount to $65,000,000 and (b) the
Credit-Linked LOC Committed Amount to $100,000,000. The Credit
Parties and the Required Lenders hereby agree that, after giving effect to this
Amendment on the Second Amendment Effective Date (i) the Revolving Committed
Amount shall be reduced to $65,000,000 and (ii) the Credit-Linked LOC Committed
Amount shall be reduced to $100,000,000 and the amount of such reduction of the
Credit-Linked LOC Committed Amount shall be returned to the Credit-Linked
Lenders on a pro rata basis by the Administrative Agent in accordance with
Section 2.6(f) of the Credit Agreement. With respect to the voluntary
commitment reduction made pursuant to this Section, the Required Lenders hereby
waive the voluntary commitment reduction notice required by Section
2.8(a). The Required Lenders hereby acknowledge and agree that the
Refinance Period will terminate as of the Second Amendment Effective
Date.
SECTION
3
CONDITIONS TO
EFFECTIVENESS
3.1 Conditions
to Effectiveness. This Amendment shall become effective as of
the Second Amendment Effective Date upon satisfaction of the following
conditions (in each case, in form and substance reasonably acceptable to the
Administrative Agent):
(a) Executed
Amendment. Receipt by the Administrative Agent of a copy of
this Amendment duly executed by each of the Credit Parties and the
Administrative Agent, on behalf of the Required Lenders.
(b) Executed
Consents. Receipt by the Administrative Agent of executed
consents, in substantially the form of Exhibit A
attached hereto (each a “Lender Consent”),
from the Required Lenders authorizing the Administrative Agent to enter into
this Amendment on their behalf. The delivery by the Administrative
Agent of its signature page to this Amendment shall constitute conclusive
evidence that the Lender Consents from the Required Lenders have been
obtained.
(c) Fees and
Expenses.
(i) The
Administrative Agent shall have received from the Borrower, for the account of
each Lender that executes and delivers a Lender Consent to the Administrative
Agent by 5:00 p.m. (EDT) on or before March 17, 2010 (each such Lender, a
“Consenting
Lender”, and collectively, the “Consenting Lenders”),
an amendment fee in an amount equal to twenty-five (25) basis points on (A) the
aggregate Revolving Commitments of such Consenting Lenders, (B) the outstanding
principal amount of the Term
Loan held by such Consenting Lenders and (C) the outstanding principal amount of
such Consenting Lenders’ Credit-Linked Deposit.
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(ii) The
Administrative Agent shall have received from the Borrower such other fees and
expenses that are payable by the Borrower in connection with the consummation of
the transactions contemplated hereby and Xxxxx & Xxx Xxxxx PLLC shall have
received from the Borrower payment of all documented outstanding fees and
expenses previously incurred and all documented fees and expenses incurred in
connection with this Amendment.
(d) Due
Diligence. The Administrative Agent shall have completed in
form and scope satisfactory thereto its legal due diligence on the Borrower and
its Subsidiaries.
(e) Legal
Opinion. The Administrative Agent shall have received an
opinion from Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP, dated as of the
Second Amendment Effective Date and in form and substance acceptable to the
Administrative Agent.
(f) Miscellaneous. All
other documents and legal matters in connection with the transactions
contemplated by this Amendment shall be reasonably satisfactory in form and
substance to the Administrative Agent and its counsel.
SECTION
4
MISCELLANEOUS
4.1 Representations
and Warranties.
Each of the Credit
Parties represents and warrants as follows as of the Second Amendment Effective
Date, after giving effect to this Amendment:
(a) It
has taken all necessary action to authorize the execution, delivery and
performance of this Amendment.
(b) This
Amendment has been duly executed and delivered by such Person and constitutes
such Person’s valid and legally binding obligation, enforceable against such
Person in accordance with its terms, except as such enforceability may be
subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or similar laws affecting creditors’ rights generally and
(ii) general principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(c) No
consent, approval, authorization or order of, or filing, registration or
qualification with, any Governmental Authority or third party is required in
connection with the execution, delivery or performance by such Person of this
Amendment, except for any required filings with the Securities and Exchange
Commission.
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(d) The
representations and warranties set forth in Article III of the Credit Agreement
(as amended by this Amendment) are true and correct as of the date hereof
(except for those which expressly relate to an earlier date).
(e) After
giving effect to this Amendment, no event has occurred and is continuing which
constitutes a Default or an Event of Default.
(f) The
Security Documents continue to create a valid security interest in, and Lien
upon, the Collateral, in favor of the Administrative Agent, for the benefit of
the Lenders, which security interests and Liens are perfected in accordance with
the terms of the Security Documents and prior to all Liens other than Permitted
Liens.
(g) The
Credit Party Obligations are not reduced or modified by this Amendment and are
not subject to any offsets, defenses or counterclaims.
4.2 Instrument
Pursuant to Credit Agreement. This Amendment is
a Credit Document executed pursuant to the Credit Agreement and shall be
construed, administered and applied in accordance with the terms and provisions
of the Credit Agreement.
4.3 Reaffirmation
of Credit Party Obligations. Each Credit Party
hereby ratifies the Credit Agreement and acknowledges and reaffirms (a) that it
is bound by all terms of the Credit Agreement applicable to it and (b) that it
is responsible for the observance and full performance of its respective Credit
Party Obligations.
4.4 Survival. Except as
expressly modified and amended in this Amendment, all of the terms and
provisions and conditions of each of the Credit Documents shall remain
unchanged.
4.5 Expenses. The Borrower
agrees to pay all reasonable, documented costs and expenses of the
Administrative Agent in connection with the preparation, execution and delivery
of this Amendment, including without limitation the reasonable expenses of the
Administrative Agent’s legal counsel.
4.6 Further
Assurances. The Credit
Parties agree to promptly take such action, upon the request of the
Administrative Agent, as is necessary to carry out the intent of this
Amendment.
4.7 Entirety. This Amendment
and the other Credit Documents embody the entire agreement among the parties
hereto and thereto and supersede all prior agreements and understandings, oral
or written, if any, relating to the subject matter hereof and
thereof.
4.8 Counterparts;
Telecopy. This Amendment
may be executed in any number of counterparts, each of which when so executed
and delivered shall be an original, but all of which shall constitute one and
the same instrument. Delivery of an executed counterpart to this
Amendment by telecopy or other electronic means shall be effective as an
original and shall constitute a representation that an original will be
delivered upon the Administrative Agent’s request.
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4.9 No
Actions, Claims, Etc. As of the date hereof, each of the
Credit Parties hereby acknowledges and confirms that it has no knowledge of any
actions, causes of action, claims, demands, damages and liabilities of whatever
kind or nature, in law or in equity, against the Administrative Agent, the
Lenders, or the Administrative Agent’s or the Lenders’ respective officers,
employees, representatives, agents, counsel or directors arising from any action
by such Persons, or failure of such Persons to act under the Credit Agreement on
or prior to the date hereof.
4.10 Waiver of
Jurisdiction; Service of Process; Waiver of Jury Trial. The jurisdiction,
service of process and waiver of jury trial provisions set forth in Sections
9.13 and 9.16 of the Credit Agreement are hereby incorporated by reference,
mutatis
mutandis.
4.11 Governing
Law. THIS AGREEMENT
SHALL BE DEEMED TO BE A CONTRACT UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).
4.12 Successors
and Assigns. This Amendment shall be binding upon and inure to
the benefit of the Credit Parties, the Administrative Agent, the Lenders and
their respective successors and assigns.
[Signature
Pages Follow]
The
parties hereto have duly executed this Amendment as of the date first above
written.
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BORROWER:
|
||
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an
Ohio corporation
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||
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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, CFO and Secretary | |
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GUARANTORS:
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AEROJET-GENERAL
CORPORATION,
|
|
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an
Ohio corporation
|
||
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By:
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/s/ Xxxxxxxx X. Xxxx | |
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Name:
|
Xxxxxxxx X. Xxxx | |
|
Title:
|
Vice President, CFO and Secretary | |
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AEROJET
ORDNANCE TENNESSEE, INC.,
|
||
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a
Tennessee corporation
|
||
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By:
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/s/ Xxxxx X. Xxxxxxx | |
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Name:
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Xxxxx X. Xxxxxxx | |
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Title:
|
Vice President and Secretary | |
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ADMINISTRATIVE
AGENT:
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WACHOVIA BANK, NATIONAL
ASSOCIATION,
|
|
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as
a Lender and as Administrative Agent on behalf of the Required
Lenders
|
||
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By:
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/s/ Xxxxxx X. XxXxxx Xx. | |
|
Name:
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Xxxxxx X. XxXxxx Xx. | |
|
Title:
|
Director | |
