FIRST AMENDMENT TO CREDIT AGREEMENT AND WAIVER
Exhibit 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT AND WAIVER
THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND WAIVER (the “Amendment”), dated as of
August 31, 2005, is to that certain Credit Agreement dated as of December 6, 2004 (as it may be
amended, modified, supplemented or restated from time to time, the “Credit Agreement”), by
and among GENCORP INC., an Ohio corporation (the “Borrower”), the subsidiaries of the
Borrower from time to time party thereto (the “Guarantors”), the lenders from time to time
party thereto (the “Lenders”), 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 Lenders have established credit facilities for the benefit of the Borrower
pursuant to the terms of the Credit Agreement;
WHEREAS, the Borrower has requested a certain amendment and a waiver to the Credit Agreement;
WHEREAS, the Required Lenders are willing to amend the Credit Agreement and provide such
waiver, 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
AMENDMENT
1.1 The definition of “Permitted Investments” found in Section 1.1 of the Credit Agreement is
hereby amended by re-ordering clause (m) to (n) and adding a new clause (m) to read as follows and
by making the appropriate grammatical and punctuation changes thereto:
(m) loans in connection with the AFC Sale in an amount not to exceed the lesser of (i)
$30,000,000 and (ii) 25% of the total consideration for the AFC Sale; provided that
such loans and advances shall be specifically subordinated in right of payment to the prior
payment of the Credit Party Obligations and contain subordination and other terms acceptable
to the Administrative Agent.
SECTION 2
WAIVER
WAIVER
2.1 The Required Lenders hereby waive compliance with the Fixed Charge Coverage Ratio from
June 1, 2005 to (but not including) November 30, 2005 (the “Subject Period”);
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provided, that the Borrower shall demonstrate in the certificate of a Responsible
Officer delivered pursuant to Section 5.2(b) for the fiscal quarter ending August 31, 2005 that the
Fixed Charge Coverage Ratio for the four quarter period ending on such date, calculated on a pro
forma basis after giving effect to the AFC Sale, shall be greater than or equal to 1.10 to 1.0 and
failure to so demonstrate shall make this waiver null and void. Except for the specific, one-time
limited waiver set forth above, nothing set forth herein or contemplated hereby is intended to
constitute a waiver of (i) any rights or remedies available to the Lenders or the Administrative
Agent under the Credit Agreement or any other Credit Document or under applicable law (all of which
rights and remedies are hereby expressly reserved by the Lenders and the Administrative Agent) or
(ii) the Credit Parties’ obligation to comply fully with any duty, term, condition, obligation or
covenant contained in the Credit Agreement and the other Credit Documents.
SECTION 3
CONDITIONS TO EFFECTIVENESS
CONDITIONS TO EFFECTIVENESS
3.1 This Amendment shall be and become effective as of the date first above written upon
receipt by the Administrative Agent of the following:
(a) counterparts of this Amendment, which shall have been duly executed by the Borrower
and the Required Lenders; and
(b) projected Fixed Charge Coverage Ratio calculations for the period ending August 31,
2005, in form and substance satisfactory to the Required Lenders.
SECTION 4
MISCELLANEOUS
MISCELLANEOUS
4.1 Representations and Warranties. Each of the Credit Parties represents and
warrants as follows as of the date hereof, 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 obligations, enforceable 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.
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(d) The representations and warranties set forth in Article III of the Credit Amendment
are true and correct as of the date hereof (except for those which expressly relate to an
earlier date).
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 Acknowledgement of Guarantors; Ratification of Obligations. The Guarantors
acknowledge and consent to all of the terms and conditions of this Amendment and agree that this
Amendment and all documents executed in connection herewith do not operate to reduce or discharge
the Guarantors’ obligations under the Credit Documents. Except as modified hereby, the Credit
Agreement is ratified and affirmed by the Credit Parties, and shall continue to be in full force
and effect in accordance with its respective terms.
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 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 Entirety. This Amendment and the other Credit Documents embody the entire
agreement among the parties hereto and supersede all prior agreements and understandings, oral or
written, if any, relating to the subject matter hereof.
4.7 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 executed counterparts of this Amendment
by telecopy shall be effective as an original and shall constitute a representation that an
original shall be delivered.
4.8 Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT UNDER AND GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
PRINCIPLES THEREOF (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
4.9 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.
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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.
[Signature Pages Follow]
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FIRST AMENDMENT AND WAIVER AGREEMENT
The parties hereto have duly executed this Amendment as of the date first above written.
BORROWER: | GENCORP INC., | |||||||
an Ohio corporation | ||||||||
By: | /s/ Xxxxx X. Xxxx | |||||||
Name: | Xxxxx X. Xxxx | |||||||
Title: | Chairman | |||||||
GUARANTORS: | AEROJET-GENERAL CORPORATION, | |||||||
an Ohio corporation | ||||||||
By: | /s/ Xxxxx X. Xxxx | |||||||
Name: | Xxxxx X. Xxxx | |||||||
Title: | Chairman | |||||||
AEROJET ORDNANCE TENNESSEE, INC., | ||||||||
a Tennessee corporation | ||||||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
Name: | Xxxxxxx X. Xxxxxx | |||||||
Title: | Chairman | |||||||
AEROJET FINE CHEMICALS LLC, | ||||||||
a Delaware limited liability company | ||||||||
By: | /s/ Xxxxxx Carleone | |||||||
Name: | Xxxxxx Carleone | |||||||
Title: | President |
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FIRST AMENDMENT AND WAIVER AGREEMENT
LENDERS: | WACHOVIA BANK, NATIONAL ASSOCIATION, | |||||||
individually in its capacity as a | ||||||||
Lender and in its capacity as Administrative Agent | ||||||||
By: | /s/ Xxxxx Santa Xxxx | |||||||
Name: | Xxxxx Santa Xxxx | |||||||
Title: | Director |
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FIRST AMENDMENT AND WAIVER AGREEMENT
AVL CBNA Loan Funding LLC for itself or as | ||||||||
Agent for AVL CFPI Loan Funding LLC | ||||||||
as a Lender | ||||||||
By: | /s/ Xxxx Xxxxx | |||||||
Name: | Xxxx Xxxxx | |||||||
Title: | as Attorney-in-Fact |
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FIRST AMENDMENT AND WAIVER AGREEMENT
The Bank of New York | ||||||||
as a Lender | ||||||||
By: | /s/ Xxxxx Xxxxxx | |||||||
Name: | Xxxxx Xxxxxx | |||||||
Title: | Assistant Vice President |
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FIRST AMENDMENT AND WAIVER AGREEMENT
The Bank of Nova Scotia | ||||||||
as a Lender | ||||||||
By: | Xxxx Xxxxxxx | |||||||
Name: | Xxxx Xxxxxxx | |||||||
Title: | Director |
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FIRST AMENDMENT AND WAIVER AGREEMENT
Bayerische Hypo- und Vereinsbank AG, New York Branch | ||||||||
as a Lender | ||||||||
By: | /s/ Xxxxx Xxxxx | |||||||
Name: | Xxxxx Xxxxx | |||||||
Title: | Director | |||||||
By: | /s/ Xxxx Xxxxxxxxxx | |||||||
Name: | Xxxx Xxxxxxxxxx | |||||||
Title: | Associate Director |
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FIRST AMENDMENT AND WAIVER AGREEMENT
CELERITY CLO LIMITED | ||||||||
By: TCW Advisors, Inc. | ||||||||
as Agent | ||||||||
as a Lender | ||||||||
By: | /s/ G. Xxxxx Xxxxxx | |||||||
Name: | G. Xxxxx Xxxxxx | |||||||
Title: | Vice President | |||||||
By: | /s/ Xxxxxxx Xxx | |||||||
Name: | Xxxxxxx Xxx | |||||||
Title: | Vice President |
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FIRST AMENDMENT AND WAIVER AGREEMENT
EMERALD ORCHARD LIMITED | ||||||||
as a Lender | ||||||||
By: | /s/ Xxxxxx Xxxxxxxx | |||||||
Name: | Xxxxxx Xxxxxxxx | |||||||
Title: | Loans Officer |
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GENCORP INC.
FIRST AMENDMENT AND WAIVER AGREEMENT
FIRST 2004-I CLO, LTD | ||||||||
By: TCW Advisors, Inc. | ||||||||
its Collateral Manager | ||||||||
as a Lender | ||||||||
By: | /s/ G. Xxxxx Xxxxxx | |||||||
Name: | G. Xxxxx Xxxxxx | |||||||
Title: | Vice President | |||||||
By: | /s/ Xxxxxxx Xxx | |||||||
Name: | Xxxxxxx Xxx | |||||||
Title: | Vice President |
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GENCORP INC.
FIRST AMENDMENT AND WAIVER AGREEMENT
FIRST 2004-II CLO, LTD. | ||||||||
By: TCW Advisors, Inc. | ||||||||
its Collateral Manager | ||||||||
as a Lender | ||||||||
By: | /s/ G. Xxxxx Xxxxxx | |||||||
Name: | G. Xxxxx Xxxxxx | |||||||
Title: | Vice President | |||||||
By: | /s/ Xxxxxxx Xxx | |||||||
Name: | Xxxxxxx Xxx | |||||||
Title: | Vice President |
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GENCORP INC.
FIRST AMENDMENT AND WAIVER AGREEMENT
Highland Floating Rate Advantage Fund | ||||||||
By: Highland Capital Management, L.P., as Collateral Manager | ||||||||
By: Strand Advisors, Inc., Its Investment Advisor | ||||||||
as a Lender | ||||||||
By: | /s/ Xxx Xxxxxxxxx | |||||||
Name: | Xxx Xxxxxxxxx | |||||||
Title: | Senior Vice President | |||||||
Strand Advisors, Inc., General Partner of | ||||||||
Highland Capital Management, L.P. |
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GENCORP INC.
FIRST AMENDMENT AND WAIVER AGREEMENT
Highland Legacy Limited | ||||||||
By: Highland Capital Management, L.P., as Collateral Manager | ||||||||
By: Strand Advisors, Inc., Its Investment Advisor | ||||||||
as a Lender | ||||||||
By: | /s/ Xxxx Xxxxxxxx | |||||||
Name: | Xxxx Xxxxxxxx | |||||||
Title: | Assistant Treasurer | |||||||
Strand Advisors, Inc., General Partner of | ||||||||
Highland Capital Management, L.P. | ||||||||
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GENCORP INC.
FIRST AMENDMENT AND WAIVER AGREEMENT
Jefferson – Pilot Life Insurance Company | ||||||||
By: TCW Advisors, Inc. | ||||||||
as its Investment Advisor | ||||||||
as a Lender | ||||||||
By: | /s/ G. Xxxxx Xxxxxx | |||||||
Name: | G. Xxxxx Xxxxxx | |||||||
Title: | Vice President | |||||||
By: | /s/ Xxxxxxx Xxx | |||||||
Name: | Xxxxxxx Xxx | |||||||
Title: | Vice President |
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GENCORP INC.
FIRST AMENDMENT AND WAIVER AGREEMENT
JPMORGAN CHASE BANK, N.A. | ||||||||
as a Lender | ||||||||
By: | /s/ Xxxxx Xxxxx | |||||||
Name: | Xxxxx Xxxxx | |||||||
Title: | Vice President |
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GENCORP INC.
FIRST AMENDMENT AND WAIVER AGREEMENT
NATIONAL CITY BANK | ||||||||
as a Lender | ||||||||
By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||||||
Name: | Xxxxxxx X. Xxxxxxxxx | |||||||
Title: | Vice President |
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GENCORP INC.
FIRST AMENDMENT AND WAIVER AGREEMENT
Southfork CLO, Ltd. | ||||||||
By: Highland Capital Management, L.P., as Collateral Manager | ||||||||
By: Strand Advisors, Inc., Its General Partner | ||||||||
as a Lender | ||||||||
By: | /s/ Xxxx Xxxxxxxx | |||||||
Name: | Xxxx Xxxxxxxx | |||||||
Title: | Assistant Treasurer | |||||||
Strand Advisors, Inc., General Partner of | ||||||||
Highland Capital Management, L.P. |
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GENCORP INC.
FIRST AMENDMENT AND WAIVER AGREEMENT
TCW SELECT LOAN FUND, LIMITED | ||||||||
By: TCW Advisors, Inc. as its | ||||||||
Collateral Manager | ||||||||
as a Lender | ||||||||
By: | /s/ G. Xxxxx Xxxxxx | |||||||
Name: | G. Xxxxx Xxxxxx | |||||||
Title: | Vice President | |||||||
By: | /s/ Xxxxxxx Xxx | |||||||
Name: | Xxxxxxx Xxx | |||||||
Title: | Vice President |
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GENCORP INC.
FIRST AMENDMENT AND WAIVER AGREEMENT
TCW Senior Secured Loan Fund | ||||||||
By: TCW Advisors, Inc. | ||||||||
as its Investment Advisor | ||||||||
as a Lender | ||||||||
By: | /s/ G. Xxxxx Xxxxxx | |||||||
Name: | G. Xxxxx Xxxxxx | |||||||
Title: | Vice President | |||||||
By: | /s/ Xxxxxxx Xxx | |||||||
Name: | Xxxxxxx Xxx | |||||||
Title: | Vice President |
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GENCORP INC.
FIRST AMENDMENT AND WAIVER AGREEMENT
VELOCITY CLO, LTD. | ||||||||
By: TCW Advisors, Inc. | ||||||||
its Collateral Manager | ||||||||
as a Lender | ||||||||
By: | /s/ G. Xxxxx Xxxxxx | |||||||
Name: | G. Xxxxx Xxxxxx | |||||||
Title: | Vice President | |||||||
By: | /s/ Xxxxxxx Xxx | |||||||
Name: | Xxxxxxx Xxx | |||||||
Title: | Vice President |
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GENCORP INC.
FIRST AMENDMENT AND WAIVER AGREEMENT
XXXXX FARGO BANK, N.N. | ||||||||
as a Lender | ||||||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
Name: | Xxxxxxx X. Xxxxxx | |||||||
Title: | Vice President |
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GENCORP INC.
FIRST AMENDMENT AND WAIVER AGREEMENT
WIND River CLO I Ltd. | ||||||||
By: XxXxxxxxx Investment Management, LLC, as Manager | ||||||||
as a Lender | ||||||||
By: | /s/ Xxxxxxxx X. Xxxx | |||||||
Name: | Xxxxxxxx X. Xxxx | |||||||
Title: | Vice President |
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