Item No. 4.5
Exhibit A
Execution Copy
AMENDMENT NO. 1
TO CREDIT AGREEMENT AND
AMENDMENT NO. 1 TO POST CLOSING AGREEMENT
This AMENDMENT NO. 1 TO CREDIT AGREEMENT AND AMENDMENT NO. 1 TO POST
CLOSING AGREEMENT (this "Amendment"), dated as of January 26, 2001 (the
"Effective Date") is made among GENCORP INC., an Ohio corporation ("Borrower"),
BANKERS TRUST COMPANY, for itself, as a Lender and as Administrative Agent for
the Lenders ("Administrative Agent"), and the other Lenders signatory to the
hereinafter defined Credit Agreement.
RECITALS
A. The Administrative Agent, the Lenders and the Borrower are party to
that certain Credit Agreement dated as of December 28, 2000 (as amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement").
B. On and subject to the terms and conditions hereof, the
Administrative Agent, the Lenders and the Borrower wish to amend certain
provisions of the Credit Agreement.
C. Pursuant to that certain Post Closing Agreement dated December 28,
2000 among the Borrower and the Administrative Agent (the "Post Closing
Agreement"), the Borrower has agreed to take or cause to be taken on its behalf
certain actions with respect to Collateral to be provided to the Administrative
Agent on behalf of the Secured Creditors.
D. The Borrower has requested that the Lenders provide additional time
for the Borrower to take such actions under the Post Closing Agreement by
amending the Post Closing Agreement as set forth herein.
E. On and subject to the terms and conditions hereof, the
Administrative Agent, the Lenders and the Borrower wish to amend certain
provisions of the Post Closing Agreement.
F. This Amendment shall constitute a Loan Document and these Recitals
shall be construed as part of this Amendment; capitalized terms used herein
without definition are so used as defined in the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto agree as follows:
1. Amendments to Credit Agreement. Subject to the conditions set forth
in Section 4 hereof, the Credit Agreement is hereby amended as follows:
(a) The definition of "Standby Letters of Credit" contained in
Article I of the Credit Agreement is hereby deleted in its entirety and
the following is substituted therefor:
""Standby Letters of Credit" means any of the
irrevocable standby letters of credit issued for the account
of the Borrower or any of its Subsidiaries pursuant to this
Agreement, in form acceptable to the Facing Bank, together
with any increases or decreases in the Stated Amount thereof
and any renewals, amendments and/or extensions thereof."
(b) Subsection (a)(i) of Section 2.10 of the Credit Agreement
is hereby amended by inserting the words "or any of its Subsidiaries"
immediately following the words "for the account of the Borrower".
(c) Subsection (b)(C) of Section 2.10 of the Credit Agreement
is hereby amended by inserting the words "or any of its Subsidiaries"
immediately following the words "the Borrower".
2. Amendments to Post Closing Agreement. Subject to the conditions set
forth in Section 4 hereof, the Post Closing Agreement is amended as follows:
(a) Paragraph 2 of the Post Closing Agreement is amended by
deleting the words "sixty (60)" where they appear in the first line of
paragraph 2 and replacing such words with the words "ninety (90)".
(b) Paragraph 3 of the Post Closing Agreement is amended by
deleting the words "sixty (60)" where they appear in the first line of
paragraph 3 and replacing such words with the words "ninety (90)".
(c) Paragraph 4 of the Post Closing Agreement is amended by
deleting the words "thirty (30)" where they appear in the first line of
paragraph 4 and replacing such words with the words "sixty (60)".
(d) Subparagraphs (a), (b) and (c) of Paragraph 7 of the Post
Closing Agreement are deleted in their entirety and the following are
substituted therefor:
"(a) amend Annex B to the Subsidiary Pledge Agreement
to reflect the pledge by Penn International Inc. of its pro
rata share of 65% of the total stock of GDX Automotive BV;
(b) amend Annex B to the Borrower Pledge Agreement to
reflect the pledge by the Borrower of its pro rata share of
65% of the total stock of GDX Automotive BV;
(c) execute documentation, make filings and
otherwise take such actions and deliver such documents as the
Administrative Agent may require to (i) cause Penn
International Inc. to grant a lien and security interest to
the Collateral Agent for the benefit of the Lenders of its pro
rata share of 65% of the total stock of GDX Automotive BV and
to perfect such security interest and (ii) cause the Borrower
to grant a lien and security interest to the Collateral Agent
for the benefit of the Lenders of its pro rata share of 65% of
the total stock of GDX
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Automotive BV and to perfect such security interest, all under
the laws of the Netherlands;"
(e) Subparagraphs (a) and (g) of Paragraph 12 of the Post
Closing Agreement are deleted in their entirety and the following are
substituted therefor in the appropriate alphabetical order:
"(a) (i) grant mortgages on its real estate located
in (A) Batesville, Arkansas, (B) Marion, Indiana, and (C)
Wabash, Indiana and (ii) use its best efforts to grant a
leasehold mortgage on its real estate located in Berger,
Missouri;"
"(g) execute documentation, make filings and
otherwise take such actions and deliver or cause to be
delivered such documents, including, without limitation,
landlord's consents and estoppel letters as the Administrative
Agent may require in order to create, perfect and preserve the
Collateral Agent's security interest and mortgage or leasehold
mortgage, as applicable, in the real estate-related Collateral
and to carry into effect the purposes of this paragraph 12."
3. Representations and Warranties. As of the date hereof, the Borrower
hereby represents and warrants to the Administrative Agent and the Lenders as
follows:
(a) After giving effect to this Amendment (i) no Unmatured
Event of Default or Event of Default shall have occurred or be
continuing and (ii) the representations and warranties of the Borrower
contained in the Loan Documents shall each be true and correct in all
material respects at and as of the date hereof to the same extent as
though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date in
which event such representation and warranties shall be true and
correct as of such specified date.
(b) The execution, delivery and performance, as the case may
be, by the Borrower of this Amendment and the other documents and
transactions contemplated hereby are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate action
(including, without limitation, all necessary shareholder approvals) of
the Borrower, shall have received all necessary governmental approvals,
and do not and will not contravene or conflict with any provision of
law applicable to the Borrower, the certificate or articles of
incorporation or bylaws of the Borrower, or any order, judgment or
decree of any court or other agency of government or any contractual
obligation binding upon the Borrower.
(c) Each of this Amendment, the Credit Agreement, the Post
Closing Agreement and any other Loan Document is the legal, valid and
binding obligation of the Borrower enforceable against the Borrower in
accordance with its respective terms, except to the extent
enforceability is limited by bankruptcy, insolvency or similar laws
affecting the rights of creditors generally or by application of
general principles of equity.
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4. Conditions. This Amendment shall become effective as of the
Effective Date, provided that as of the Effective Date (except as otherwise
noted), this Amendment, duly executed by the Borrower, the Subsidiary
Guarantors, the Administrative Agent and the Required Lenders, shall have been
received by the Administrative Agent.
5. Affirmation of Subsidiary Guarantors. By its signature set forth
below, each Subsidiary Guarantor hereby confirms to the Administrative Agent and
the Lenders that, after giving effect to this Amendment and the transactions
contemplated hereby, the Subsidiary Guaranty of such Subsidiary Guarantor and
each other Loan Document to which such Subsidiary Guarantor is a party continues
in full force and effect and is the legal, valid and binding obligation of such
Subsidiary Guarantor, enforceable against such Subsidiary Guarantor in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
6. Successors and Assigns. This Amendment shall be binding on and shall
inure to the benefit of the Borrower, the Administrative Agent, the Lenders and
their respective successors and assigns; provided that the Borrower may not
assign its rights, obligations, duties or other interests hereunder without the
prior written consent of the Administrative Agent and the Lenders. The terms and
provisions of this Amendment are for the purpose of defining the relative rights
and obligations of the Borrower, the Administrative Agent and the Lenders with
respect to the transactions contemplated hereby and there shall be no third
party beneficiaries of any of the terms and provisions of this Amendment.
7. Entire Agreement. This Amendment, the Credit Agreement (as amended
hereby), the Post Closing Agreement (as amended hereby) and the other Loan
Documents constitute the entire agreement of the parties with respect to the
subject matter hereof.
8. Incorporation of Credit Agreement. The provisions contained in
Sections 12.9 and 12.10 of the Credit Agreement are incorporated herein by
reference to the same extent as if reproduced herein in their entirety with
respect to this Amendment.
9. Amendment; Waiver. The parties hereto agree and acknowledge that
nothing contained in this Amendment in any manner or respect limits or
terminates any of the provisions of the Credit Agreement, the Post Closing
Agreement or any of the other Loan Documents other than as amended as expressly
set forth herein and further agree and acknowledge that the Credit Agreement (as
amended hereby), the Post Closing Agreement (as amended hereby) and each of the
other Loan Documents remain and continue in full force and effect and are hereby
ratified and confirmed. Except to the extent expressly set forth herein, the
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any rights, power or remedy of the Lenders or the Administrative Agent
under the Credit Agreement, the Post Closing Agreement or any other Loan
Document, nor constitute a waiver of any provision of the Credit Agreement, the
Post Closing Agreement or any other Loan Document. No delay on the part of any
Lender or the Administrative Agent in exercising any of their respective rights,
remedies, powers and privileges under the Credit Agreement, the Post Closing
Agreement or any of the Loan Documents or partial or single exercise thereof,
shall constitute a waiver thereof. On and
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after the Effective Date each reference in the Credit Agreement or the Post
Closing Agreement to "this Agreement," "hereunder," "hereof," "herein" or words
of like import, and each reference to the Credit Agreement or to the Post
Closing Agreement in the Loan Documents and all other documents delivered in
connection with the Credit Agreement shall mean and be a reference to the Credit
Agreement or the Post Closing Agreement, as applicable, as amended hereby.
10. Captions. Section captions used in this Amendment are for
convenience only, and shall not affect the construction of this Amendment.
11. Severability. Whenever possible each provision of this Amendment
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Amendment shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Amendment.
12. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument. Delivery of an
executed counterpart of a signature page to this Amendment by telecopy shall be
effective as delivery of a manually executed counterpart of this Amendment.
[signature pages follow]
5
IN WITNESS WHEREOF, this Amendment has been duly executed as of the
date first written above.
GENCORP INC.
By: /s/ TERRY L. HALL
--------------------------------
Name: Terry L. Hall
Title: Senior Vice President and
Chief Financial Officer
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 to Post Closing Agreement
AEROJET-GENERAL CORPORATION,
as Subsidiary Guarantor
By: /s/ TERRY L. HALL
--------------------------------
Name: Terry L. Hall
Title: Vice President
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 to Post Closing Agreement
AEROJET ORDNANCE TENNESSEE, INC.,
as Subsidiary
By: /s/ TERRY L. HALL
--------------------------------
Name: Terry L. Hall
Title: Vice President
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 to Post Closing Agreement
GENCORP PROPERTY INC., as Subsidiary
Guarantor
By: /s/ TERRY L. HALL
--------------------------------
Name: Terry L. Hall
Title: President
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 to Post Closing Agreement
PENN INTERNATIONAL INC, as Subsidiary
Guarantor
By: /s/ TERRY L. HALL
---------------------------------
Name: Terry L. Hall
Title: President
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 to Post Closing Agreement
GDX LLC, as Subsidiary Guarantor
By: /S/ TERRY L. HALL
--------------------------------
Name: Terry L. Hall
Title: President
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 Post Closing Agreement
GDX AUTOMOTIVE INC.,
as Subsidiary Guarantor
By: /s/ Yasmin R. Seyal
--------------------------------
Name: Yasmin R. Seyal
Title: Treasurer
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 Post Closing Agreement
BANKERS TRUST COMPANY
as Lender and as Administrative Agent
By: /s/ Marguerite Sutton
--------------------------------
Name: Marguerite Sutton
Title: Vice President
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 Post Closing Agreement
BANKERS ONE, NA.
as Lender
By: /s/ Stephanie A. Mack
---------------------------------
Name: Stephanie A. Mack
Title: Commercial Banking Officer
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 Post Closing Agreement
ABN AMRO Bank N.V.,
as Lender
By: /s/ R. Clay Jackson
--------------------------------
Name: R. Clay Jackson
Title: Senior Vice President
By: /s/ Gina M. Brusatori
--------------------------------
Name: Gina M. Brusatori
Title: Senior Vice President
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 Post Closing Agreement
THE BANK OF NEW YORK
as Lender
By: /s/ Mehrasa Raygani
-------------------------------
Name: Mehrasa Raygani
Title: Assistant Vice President
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 Post Closing Agreement
THE BANK OF NOVA SCOTIA
as Lender
By: /s/ Mark Sparrow
--------------------------------
Name: Mark Sparrow
Title: Director
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 Post Closing Agreement
NATIONAL CITY BANK
as Lender
By: /s/ Tom Gurbach
--------------------------------
Name: Tom Gurbach
Title: Vice President
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 Post Closing Agreement
THE NORTHERN TRUST COMPANY,
as Lender
By: /S/ David J. Mitchell
--------------------------------
Name: David J. Mitchell
Title: Vice President
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 Post Closing Agreement
WELLS FARGO BANK, N.A.,
as Lender
By: /s/ Daniel G. Adams
--------------------------------
Name: Daniel G. Adams
Title: Vice President
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 Post Closing Agreement
CONTINENTAL ASSURANCE CORPORATION
as Lender
By: TCW Asset Management Company
As Attorney-in-Fact
By: /s/ Richard F. Kurth
--------------------------------
Name: Richard F. Kurth
Title: Vice President
By: /s/ Mark L. Gold
--------------------------------
Name: Mark L. Gold
Title: Managing Director
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 Post Closing Agreement
KATONAH II, LTD
as Lender
By: Katonah Capital LLC, as Manager
By: /s/ Joyce C. DeLucca
--------------------------------
Name: Joyce C. De Lucca
Title: Managing Principal
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 Post Closing Agreement
KZH CRESENT LLC
as Lender
By: /s/ Kimberly Rowe
--------------------------------
Name: Kimberly Rowe
Title: Authorized Agent
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 Post Closing Agreement
KZH CRESENT-2 LLC
as Lender
By: /s/ Kimberly Rowe
--------------------------------
Name: Kimberly Rowe
Title: Authorized Agent
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 Post Closing Agreement
KZH CRESENT-3 LLC
as Lender
By: /s/ Kimberly Rowe
--------------------------------
Name: Kimberly Rowe
Title: Authorized Agent
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 Post Closing Agreement
SEQUILS I, LTD.,
as Lender
By: TWC Advisers, Inc.
as its Collateral Manager
By: /s/ Richard F. Kurth
--------------------------------
Name: Richard F. Kurth
Title: Vice President
By: /s/ Mark L. Gold
--------------------------------
Name: Mark L. Gold
Title: Managing Director
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 Post Closing Agreement
SEQUILS IV, LTD.
as Lender
By: /s/ Richard F. Kurth
--------------------------------
Name: Richard F. Kurth
Title: Vice President
By: /s/ Mark L. Gold
--------------------------------
Name: Mark L. Gold
Title: Managing Director
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 Post Closing Agreement
TCW LEVERAGED INCOME TRUST IV, LP.,
as Lender
By: TWC (LINC IV), L.L.C.
as General Partner
By: TWC Asset Management Company,
As managing member of the General Partner
By: /s/ Richard F. Kurth
-------------------------------------------
Name: Richard F. Kurth
Title: Vice President
By: /s/ Mark L. Gold
-------------------------------------------
Name: Mark L. Gold
Title: Managing Director
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 Post Closing Agreement
TORONTO DOMINION (NEW YORK), INC.,
as Lender
By: Stacey Malek
--------------------------------
Name: Stacey Malek
Title: Vice President
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 Post Closing Agreement
UNITED OF OMAHA
LIFE INSURANCE
COMPANY, as Lender
By: TCW Asset Management
Company,
its Investment Advisor
By: /s/ Richard F. Kurth
--------------------------------
Name: Richard F. Kurth
Title: Vice President
By: /s/ Mark L. Gold
--------------------------------
Name: Mark L. Gold
Title: Managing Director
Signature Page to Amendment No. 1
to Credit Agreement
and Amendment No. 1 Post Closing Agreement
Execution Copy
AMENDMENT NO. 2
TO CREDIT AGREEMENT, AMENDMENT NO. 2
TO POST CLOSING AGREEMENT, AMENDMENT NO. 1
TO COLLATERAL AGREEMENTS AND LIMITED WAIVER
This AMENDMENT NO. 2 TO CREDIT AGREEMENT, AMENDMENT NO. 2 TO POST
CLOSING AGREEMENT, AMENDMENT NO. 1 TO COLLATERAL AGREEMENTS AND LIMITED WAIVER
(this "Amendment No. 2"), dated as of August 31, 2001 (the "Effective Date") is
made among GENCORP INC., an Ohio corporation ("Borrower"), BANKERS TRUST
COMPANY, for itself, as a Lender and as Administrative Agent for the Lenders
("Administrative Agent"), and the other Lenders signatory to the hereinafter
defined Credit Agreement.
RECITALS
A. The Administrative Agent, the Lenders and the Borrower are
party to that certain Credit Agreement dated as of December 28, 2000 (as amended
by that certain Amendment No. 1 to Credit Agreement and Amendment No. 1 to Post
Closing Agreement dated as of January 26, 2001 ("Amendment No. 1") and as
further amended, restated, supplemented or otherwise modified from time to time,
the "Credit Agreement").
B. On and subject to the terms and conditions hereof, the
Administrative Agent, the Lenders and the Borrower wish to amend certain
provisions of the Credit Agreement.
C. Pursuant to that certain Post Closing Agreement dated December
28, 2000 among the Borrower and the Administrative Agent (as amended by
Amendment No. 1 and as further amended, restated, supplemented or otherwise
modified from time to time, the "Post Closing Agreement"), the Borrower has
agreed to take or cause to be taken on its behalf certain actions with respect
to Collateral to be provided to the Administrative Agent on behalf of the
Secured Creditors.
D. The Borrower has requested that the Lenders provide additional
time for the Borrower to take such actions under the Post Closing Agreement by
amending, and on a limited basis waiving, certain provisions of the Post Closing
Agreement as set forth herein.
E. On and subject to the terms and conditions hereof, the
Administrative Agent, the Lenders and the Borrower wish to amend and waive, on a
limited basis, certain provisions of the Post Closing Agreement.
F. The Administrative Agent and the Borrower are party to that
certain Borrower Security Agreement dated as of December 28, 2000 (as amended,
restated, supplemented or otherwise modified from time to time, the "Borrower
Security Agreement"), the Administrative Agent and the Borrower are party to
that certain Borrower Pledge Agreement dated as of December 28, 2000 (as
amended, restated, supplemented or otherwise modified from time to
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time, the "Borrower Pledge Agreement"), the Administrative Agent and certain
Subsidiaries of the Borrower (the "Assignors") are party to that certain
Subsidiary Security Agreement dated as of December 28, 2000 (as amended,
restated, supplemented or otherwise modified from time to time, the "Subsidiary
Security Agreement") and the Administrative Agent and certain Subsidiaries of
the Borrower (the "Pledgors") are party to that certain Subsidiary Pledge
Agreement dated as of December 28, 2000 (as amended, restated, supplemented or
otherwise modified from time to time, the "Subsidiary Pledge Agreement").
G. On and subject to the terms and conditions hereof, to reflect
changes in the Uniform Commercial Code applicable thereto, the Administrative
Agent (with the consent of the Required Lenders) and the Borrower wish to amend
certain provisions of the Borrower Security Agreement and the Borrower Pledge
Agreement, the Administrative Agent (with the consent of the Required Lenders)
and the Assignors wish to amend certain provisions of the Subsidiary Security
Agreement and the Administrative Agent (with the consent of the Required
Lenders) and the Pledgors wish to amend certain provisions of the Subsidiary
Pledge Agreement.
H. This Amendment No. 2 shall constitute a Loan Document and
these Recitals shall be construed as part of this Amendment; capitalized terms
used herein without definition are so used as defined in the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto agree as follows:
1. Amendments to Credit Agreement. Subject to the conditions set
forth in Section 10 hereof, the Credit Agreement is hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is amended by
deleting the definitions of "Scheduled Term A Repayments", "Scheduled
Term B Repayments", "Subordination Agreement" and "Subsidiary
Guarantor" in their entirety and by inserting the following definitions
of "Scheduled Term A Repayments", "Scheduled Term B Repayments", and
"Subsidiary Guarantor" in lieu thereof in the appropriate alphabetical
order:
"Scheduled Term A Repayments" means, with respect to
the principal payments on the Term A Loans for each date set
forth below, the Dollar amount set forth opposite thereto, as
reduced from time to time pursuant to Sections 4.3 and 4.4:
Term A Loan Scheduled
Repayment Date Repayment Amount
--------------------- ----------------
March 28, 2001 $3,750,000.00
June 28, 2001 $3,750,000.00
September 28, 2001 $2,373,903.51
December 28, 2001 $2,373,903.51
3
Term A Loan Scheduled Repayment
Repayment Date Amount
--------------------- ---------
March 28, 2002 $4,747,807.02
June 28, 2002 $4,747,807.02
September 28, 2002 $4,747,807.02
December 28, 2002 $4,747,807.02
March 28, 2003 $4,747,807.02
June 28, 2003 $4,747,807.02
September 28, 2003 $4,747,807.02
December 28, 2003 $4,747,807.02
March 28, 2004 $4,747,807.02
June 28, 2004 $4,747,807.02
September 28, 2004 $4,747,807.02
December 28, 2004 $4,747,807.02
March 28, 2005 $7,121,710.52
June 28, 2005 $7,121,710.52
September 28, 2005 $7,121,710.52
December 28, 2005 $7,121,710.49
"Scheduled Term B Repayments" means, with respect to
the principal payments on the Term B Loans for each date set
forth below, the Dollar amount set forth opposite thereto, as
reduced from time to time pursuant to Sections 4.3 and 4.4:
Term B Loan Scheduled Repayment
Repayment Date Amount
--------------------- ---------
March 28, 2001 $500,000.00
June 28, 2001 $500,000.00
September 28, 2001 $664,886.93
December 28, 2001 $664,886.93
March 28, 2002 $664,886.93
June 28, 2002 $664,886.93
September 28, 2002 $664,886.93
December 28, 2002 $664,886.93
March 28, 2003 $664,886.93
June 28, 2003 $664,886.93
September 28, 2003 $664,886.93
December 28, 2003 $664,886.93
March 28, 2004 $664,886.93
June 28, 2004 $664,886.93
September 28, 2004 $664,886.93
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December 28, 2004 $ 664,886.93
March 28, 2005 $ 664,886.93
June 28, 2005 $ 664,886.93
September 28, 2005 $ 664,886.93
December 28, 2005 $ 664,886.93
March 28, 2006 $ 664,886.93
June 28, 2006 $ 664,886.93
September 28, 2006 $ 664,886.93
December 28, 2006 $250,662,000.03
""Subsidiary Guarantor" means each Material Domestic
Subsidiary of the Borrower, any Domestic Subsidiary of the
Borrower which is a party to the Subsidiary Guaranty and any
Subsidiary of the Borrower that becomes a party to the
Subsidiary Guaranty or delivers a guaranty pursuant to Section
7.12 or 7.14."
(b) Section 7.1 of the Credit Agreement is amended by
inserting the following new subsection (d) immediately after subsection
(c) therein:
"(d) Interim Financial Statements. Within thirty
(30) days after the end of the Fiscal Year of the Borrower
ended as of November 30, 2001, unaudited financial statements
consisting of a consolidated and consolidating balance sheet
and statement of stockholders' equity of the Borrower and its
Subsidiaries as at the end of such Fiscal Year and a
consolidated and consolidating statement of income of the
Borrower and its Subsidiaries for such Fiscal Year, all in
reasonable detail and certified on behalf of the Borrower by a
Responsible Officer of the Borrower as having been prepared,
to the best knowledge of such Responsible Officer, in
accordance with generally accepted accounting principles
consistently applied (other than for normal year-end
adjustments and, unless then required by the Borrower's
reporting obligations to the Securities and Exchange
Commission or by generally accepted accounting principles,
footnote disclosure); provided, however, if as of November 30,
2001, the EIS Business Sale has occurred, this Section 7.1(d)
shall not apply to the Borrower."
(c) Subsection (b) of Section 7.2 of the Credit Agreement
is deleted in its entirety and the following is substituted in lieu
thereof:
"(b) Officer's Certificates. Concurrently with
the delivery of the financial statements referred to in
Sections 7.1(a), 7.1(b) and 7.1(d) (if such statements are
required to be delivered by the terms of said Section 7.1(d)),
a certificate of a Responsible Financial Officer substantially
in the form of Exhibit 7.2(b) stating that, to the best of
such officer's knowledge, (i) such financial statements
present fairly, in accordance with GAAP, the financial
condition and results of operations of the Borrower and its
Subsidiaries for the period referred to therein (subject, in
the case of interim statements, to normal recurring
adjustments), (ii) no Event of Default or Unmatured Event of
Default has occurred, except as specified in such certificate
and, if so specified, the action
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which the Borrower proposes to take with respect thereto,
which certificate shall set forth detailed computations to the
extent necessary to establish the Borrower's compliance with
the covenants set forth in Article IX of this Agreement and
(iii) setting forth the then current outstanding amount of
each Intercompany Loan;"
(d) The last sentence of Section 8.1 of the Credit
Agreement is deleted in its entirety and the following is substituted
in lieu thereof:
"Notwithstanding the foregoing clauses (a) through
(g) of this Section 8.1, the Borrower agrees that it will not,
nor will it permit any of its Subsidiaries to pledge, encumber
or otherwise suffer to exist thereon any Lien (other than
Customary Permitted Liens), on (w) any real property owned by
the Borrower or any of its Subsidiaries which is located in
the State of California or the State of Nevada, (x) the
Borrower's membership interest in AFC or the Borrower's rights
as lender under the AFC Credit Agreement, (y) the Borrower's
interest in the capital stock of Next Pharma or (z) (A) the
Borrower's interest in the capital stock of GDX Automotive
(Pribor) s.r.o. and of LNR Capital s.r.o. or (B) any real or
personal property of either GDX Automotive (Pribor) s.r.o. or
LNR Capital s.r.o."
(e) Subsections (g) and (h) of Section 8.2 of the Credit
Agreement are deleted in their entirety and the following are
substituted in lieu thereof:
"(g) unsecured Indebtedness of the Borrower and
its Subsidiaries to the Borrower or any of its Subsidiaries;
provided, however, that (x) in the case of such intercompany
Indebtedness consisting of a loan or advance by a Credit
Party, each such loan or advance made on or after the Closing
Date shall be evidenced by an Intercompany Note payable to the
Credit Party, in form and substance satisfactory to
Administrative Agent, which Intercompany Notes shall be
delivered and pledged to the Collateral Agent as part of the
Collateral, and (y) in the case of such intercompany
Indebtedness consisting of a loan or advance to a Subsidiary
of the Borrower which is not a Credit Party, each such loan or
advance, together with all other outstanding Indebtedness
permitted by this clause (g)(y), plus the amount of all
outstanding Indebtedness referred to in clause (h)(y) below
that is incurred by Subsidiaries that are not Credit Parties,
shall not exceed in the aggregate at any time $60,000,000
(without giving effect to Indebtedness issued as consideration
in, or to provide all or any portion of the funds utilized to
consummate the Draftex Acquisition);
(h) Indebtedness incurred by a Foreign
Subsidiary to the Borrower or any of its Subsidiaries;
provided, however, that (x) in the case of such Indebtedness
consisting of a loan or advance by a Credit Party, each such
loan or advance made on or after the Closing Date shall be
evidenced by an Intercompany Note payable to the Credit Party,
in form and substance satisfactory to Administrative Agent,
which Intercompany Notes shall be delivered and pledged to the
Collateral Agent as part of the Collateral and (y) in the case
of such Indebtedness consisting of a loan or advance to a
Foreign Subsidiary of the
5
Borrower which is not a Credit Party, each such loan or
advance, together with all other outstanding Indebtedness
permitted by this clause (h)(y), plus the amount of all
outstanding Indebtedness referred to in clause (g)(y) above
that is incurred by Foreign Subsidiaries that are not Credit
Parties, shall not exceed in the aggregate at any time
$60,000,000 (without giving effect to Indebtedness issued as
consideration in, or to provide all or any portion of the
funds utilized to consummate the Draftex Acquisition);"
(f) Subsection (k) of Section 8.2 of the Credit Agreement
is amended by deleting the word "and" immediately before the phrase
"(y) to support obligations of Subsidiaries" in the first sentence and
inserting the word "or" in lieu thereof.
(g) Subsection (n) of Section 8.2 of the Credit Agreement
is amended by deleting the phrase "; and" and inserting in lieu thereof
";".
(h) Subsection (o) of Section 8.2 of the Credit Agreement
is amended by (i) deleting the phrase "; and" immediately before the
phrase "(4) GenCorp's and AFC's obligations under the Indemnity
Agreement" and inserting ";" in lieu thereof, and (ii) inserting the
following immediately after clause (4) therein:
"and (5) GenCorp's obligation to make advances to AFC
in accordance with the AFC Credit Facility and AFC's
obligation to repay such advances; and"
(i) Section 8.2 of the Credit Agreement is amended by
inserting the following new subsection (p) immediately after subsection
(o) therein:
"(p) Indebtedness of the Borrower consisting of
unsecured Guarantee Obligations in favor of the United States
Environmental Protection Agency which are incurred on behalf
of Aerojet in connection with the EIS Business Sale or in
connection with future carve-outs of restricted real property;
provided, that such Guarantee Obligations permitted under this
clause (p) shall not at any time exceed $100,000,000."
(j) Subsection (g) of Section 8.7 of the Credit Agreement
is deleted in its entirety and the following is substituted in lieu
thereof:
"(g) the Borrower may make intercompany loans and
advances (x) to any of its Wholly-Owned Subsidiaries, any
Subsidiary of the Borrower may make intercompany loans and
advances to the Borrower, and any Subsidiary of the Borrower
may make intercompany loans and advances to any other
Wholly-Owned Subsidiary of the Borrower (collectively,
"Intercompany Loans"), in accordance with and to the extent
permitted by Section 8.2(g) and (h) and (y) to AFC in
accordance with the terms and conditions of the AFC Credit
Facility;"
(k) Section 9.3 of the Credit Agreement is deleted in its
entirety and the following is substituted in lieu thereof:
6
"Section 9.3 Interest Coverage Ratio.
The Borrower will not permit the Interest Coverage
Ratio for any Test Period ending on the last day of each
Fiscal Quarter set forth below to be less than the ratio set
forth opposite such date:
Fiscal Quarter Ratio
--------------- -----
February 28, 2001 3.50 to 1.00
May 31, 2001 3.50 to 1.00
August 31, 2001 2.75 to 1.00
November 30, 2001 3.50 to 1.00
February 28, 2002 3.75 to 1.00
May 31, 2002 3.75 to 1.00
August 31, 2002 3.75 to 1.00
November 30, 2002 and thereafter 4.00 to 1.00"
(l) Section 9.4 of the Credit Agreement is amended by
deleting the ratio "3.25 to 1.00" directly across from the Fiscal
Quarter ended August 31, 2001 and by inserting the ratio "4.25 to 1.00"
in lieu thereof.
2. Reallocation of Certain Commitments and Loans. In order to provide
financial flexibility and additional liquidity to the Borrower prior to the
completion of the EIS Business Sale, the Borrower hereby requests approval by
the Lenders of the following actions:
(a) that the Term B Commitment be increased by
an aggregate principal amount of $65,625,000.03 (the "Term B
Commitment Increase Amount"), subject to the terms and
conditions of this Amendment No. 2, such that the aggregate
principal amount of the Term B Commitment shall equal
$264,625,000.03 as of the date of this Amendment No. 2; and
Bank One, NA, BT and ABN Amro Bank, B.V. each hereby agree to
advance, severally, the entire amount of the Term B Commitment
Increase Amount on the terms and conditions set forth in this
Amendment No. 2, namely that: (i) $6,666,666.67 principal
amount of Revolving Loans outstanding as of the date hereof
and owing to BT and $6,666,666.67 principal amount of
Revolving Loans outstanding as of the date hereof and owing to
Bank One, NA, shall be reallocated from the Revolving Facility
to the Term B Facility in satisfaction (together with the
reallocation described in (ii) below) of the funding of the
Term B Commitment Increase Amount, provided, that such
reallocation of Loans from the Revolving Facility shall not
cause a reduction in the Revolving Commitments of either BT or
Bank One, NA (other than in accordance with (b) below); and
(ii) $20,083,333.35 principal amount of Term A Loans
outstanding as of the date hereof and owing to BT,
$20,083,333.35 principal amount of Term A Loans outstanding as
of the date hereof and owing to Bank One, NA, and
$12,124,999.99 principal amount of Term A Loans outstanding as
of the date hereof and owing to ABN Amro Bank, B.V., shall be
reallocated from the Term A Facility to the Term B Facility in
satisfaction (together with the reallocation described in (i)
above) of the funding of the
7
Term B Commitment Increase Amount, thereby reducing the
aggregate principal amount of the Term A Facility to
$90,208,333.31 as of the date of this Amendment No. 2;
(b) that, on or prior to the earlier of 5:00
p.m. (New York City time) (a) on October 15, 2001 or (b) on
the date of closing of the EIS Business Sale, the Borrower
shall cause the Revolving Commitment to be permanently
reduced, in part, in the aggregate principal amount of
$13,333,333.34, and shall cause any Revolving Loans relating
thereto to be paid in full, provided, that such reduction of
Revolving Commitment and repayment of Revolving Loans, if any,
shall be applied solely to the Revolving Commitments and/or
related Revolving Loans, as the case may be, of BT and Bank
One, NA, on a pro rata basis, and shall not apply to the
Revolving Commitments or Revolving Loans of any other
Revolving Lender;
(c) that, upon the effectiveness of this
Amendment No. 2, (i) Schedule 1.1(a) to the Credit Agreement
shall be deemed modified to reflect the revised Term A
Commitment and the revised Term B Commitment and (ii) in all
necessary respects, the Credit Agreement, including, without
limitation, Sections 4.1, 4.3, 4.4(k) and 4.5 of the Credit
Agreement, shall be deemed amended without further action by
any Lender to reflect such revised Term A Commitment and
revised Term B Commitment and the terms of this Section 2 of
this Amendment No. 2; and
(d) Bank One, NA, BT and ABN Amro Bank, B.V.
each hereby agree to waive any compensation which they are
otherwise entitled to pursuant to Section 3.5 of the Credit
Agreement for funding losses resulting from the reallocation
of Loans described in the preceding clauses.
3. Amendments to Post Closing Agreement. Subject to the conditions set
forth in Section 10 hereof, the Post Closing Agreement is hereby amended as
follows:
(a) Paragraph 2 (including the subsections
therein) of the Post Closing Agreement is deleted in its
entirety and the words "Intentionally Omitted" are substituted
in lieu thereof.
(b) Paragraph 3 (including the subsections
therein) of the Post Closing Agreement is deleted in its
entirety and the words "Intentionally Omitted" are substituted
in lieu thereof.
(c) Subparagraph (a) of Paragraph 4 of the Post
Closing Agreement is amended by deleting the phrase "GDX LLC"
where it appears and by inserting the phrase "HENNIGES
Elastomer-und Kunststofftechnik GmbH & Co. KG" in lieu
thereof.
(d) Paragraph 8 of the Post Closing Agreement is
amended by deleting the first line thereof and clauses (a),
(b) and (c) in their entirety and by inserting the phrase
"Intentionally Omitted" in lieu thereof.
8
(e) Subparagraph (b) of Paragraph 9 of the Post
Closing Agreement is deleted in its entirety and the following
is substituted in lieu thereof:
"(b) execute documentation, make filings
and otherwise take such actions and deliver such
documents as the Administrative Agent may require to
cause the Borrower to grant a lien and security
interest to the Collateral Agent for the benefit of
the Lenders in 65% of the stock of GDX Automotive SAS
and to perfect such security interest, all under the
laws of France;"
(f) Paragraph 10 (including the subsections
therein) of the Post Closing Agreement is deleted in its
entirety and the words "Intentionally Omitted" are substituted
in lieu thereof.
(g) Subparagraph (a) of Paragraph 11 of the Post
Closing Agreement is deleted in its entirety and the following
is substituted in lieu thereof:
"(a) execute documentation, make filings
and otherwise take such actions and deliver such
documents as the Administrative Agent may require to
cause Penn International Inc. to grant a lien and
security interest to the Collateral Agent for the
benefit of the Lenders in 65% of the stock of GenCorp
GmbH and to perfect such security interest, all under
the laws of Germany;"
(h) (i) Subparagraph (c) of Paragraph 11 of the Post
Closing Agreement is amended by deleting the phrase "; and" and by
inserting "." in lieu thereof, and (ii) subparagraph (d) of Paragraph
11 of the Post Closing Agreement is deleted in its entirety.
(i) Subparagraph (a) of Paragraph 12 of the Post Closing
Agreement is amended by deleting the phrase "Berger, Missouri" where it
appears in clause (ii) and by inserting the phrase "New Haven,
Missouri" in lieu thereof.
4. Amendments to Borrower Security Agreement. Subject to the conditions
set forth in Section 10 hereof, the Borrower Security Agreement is amended as
follows:
(a) Article I of the Borrower Security Agreement is
amended by deleting the definition of "Investment Property" in its
entirety and inserting in lieu thereof the following:
""Investment Property" shall have the meaning
ascribed thereto in Section 9-102 of the New York UCC and
shall include, without limitation (i) all securities, whether
certificated or uncertificated, including, without limitation,
stocks, bonds, interests in limited liability companies,
partnership interests, treasury securities, certificates of
deposit, and mutual fund shares; (ii) all securities
entitlements of the Borrower, including without limitation,
the rights of the Borrower to any securities account and the
financial assets held by a securities intermediary in such
securities account and any free credit balance or other money
owing by any securities intermediary with respect to that
account; (iii) all
9
securities accounts held by the Borrower; (iv) all commodity
contracts held by the Borrower; and (v) all commodity accounts
held by the Borrower."
(b) Article I of the Borrower Security Agreement is
amended by inserting the following definitions in the appropriate
alphabetical order:
"Deposit Accounts" shall have the meaning provided in
the New York UCC.
"Letter-of-Credit Rights" shall have the meaning
provided in the New York UCC".
"Software" shall have the meaning provided in the New
York UCC.
"Supporting Obligations" shall have the meaning
provided in the New York UCC.
(c) Subsection (a) of Section 2.1 of the Borrower
Security Agreement is deleted in its entirety and the following is
substituted in lieu thereof:
"(a) As security for the prompt and complete payment
and performance when due of all of the Obligations, the
Borrower does hereby collaterally assign and transfer unto the
Collateral Agent, for the benefit of the Secured Creditors,
and does hereby pledge and grant to the Collateral Agent for
the benefit of the Secured Creditors, a continuing security
interest of first priority (subject to Liens evidenced by
Permitted Filings and other Permitted Liens) in, all of the
right, title and interest of the Borrower in, to and under all
of the personal property of the Borrower, wherever located,
whether now existing or hereafter from time to time acquired,
including the following: (i) each and every Receivable, (ii)
all Contracts, together with all Contract Rights, (iii) all
Inventory, (iv) all Equipment, (v) all Marks, together with
the registrations and right to all renewals thereof, and the
goodwill of the business of the Borrower symbolized by the
Marks, (vi) all Patents and Copyrights, and all reissues,
renewals or extensions thereof, (vii) all Software of the
Borrower and all intellectual property rights therein and all
other proprietary information of the Borrower, including, but
not limited to, Trade Secrets, (viii) all other Goods, General
Intangibles, Chattel Paper, Documents, Investment Property and
Instruments, (ix) all Supporting Obligations and
Letter-of-Credit Rights, (x) all cash, accounts, deposits,
Deposit Accounts, securities and insurance policies now or at
any time hereafter in the possession or under control of the
Borrower or its respective bailees and any interest thereon,
(xi) all other personal property of the Borrower, whether now
owned or hereafter acquired, (xii) all documents of title
evidencing or issued with respect to any of the foregoing, and
(xiii) all Proceeds and products of any and all of the
foregoing (including, without limitation, all insurance and
claims for insurance effected or held for the benefit of the
Borrower in respect thereof) (all of the above, collectively,
the "Collateral")."
10
(d) Section 3.7 of the Borrower Security Agreement is
deleted in its entirety and the following is substituted in lieu
thereof:
"3.7. Trade Names; Change of Name. The Borrower has
not operated nor does operate in any jurisdiction under, or in
the preceding 12 months has had nor has operated in any
jurisdiction under, any trade names, fictitious names or other
names (including, without limitation, any names of divisions
or operations) except its legal name (which is as set forth in
the preamble of this Agreement) and such other trade,
fictitious or other names as are listed on Annex D hereto. The
Borrower shall not change its legal name nor assume or operate
in any jurisdiction under any trade, fictitious or other name
in any manner which might make any financing statement or
continuation statement filed in connection therewith seriously
misleading within the meaning of Section 9-506 of the UCC
unless and until (i) it shall have given to the Collateral
Agent not less than 30 days' prior written notice of its
intention so to do, clearly describing such new name and the
jurisdictions in which such new name shall be used and
providing such other information in connection therewith as
the Collateral Agent may reasonably request, (ii) with respect
to such new name, it shall have taken all action to maintain
the security interest of the Collateral Agent in the
Collateral intended to be granted hereby at all times fully
perfected and in full force and effect, (iii) at the request
of the Collateral Agent, it shall have furnished an opinion of
counsel reasonably acceptable to the Collateral Agent to the
effect that all financing or continuation statements and
amendments or supplements thereto have been filed in the
appropriate filing office or offices, and (iv) upon its
reasonable request, the Collateral Agent shall have received
evidence that all other actions (including, without
limitation, the payment of all filing fees and taxes, if any,
payable in connection with such filings) have been taken, in
order to perfect (and maintain the perfection and priority of)
the security interest granted hereby."
(e) Article III of the Borrower Security Agreement is
amended by inserting the following immediately after Section 3.7
therein:
"3.8. State of Incorporation. The state of
incorporation of the Borrower is Ohio. The Borrower shall not
change the state in which it is incorporated. The Borrower
shall preserve its corporate existence and not, in one
transaction or a series of related transactions, merge into or
consolidate with any other entity, or sell all or
substantially all of its assets."
(f) Article IV of the Borrower Security Agreement is
amended by (i) inserting the words "OTHER COLLATERAL" to the title of
said Article immediately after the words "RIGHTS; INSTRUMENTS;" and
(ii) inserting the following immediately after Section 4.6 therein:
"4.7. Other Collateral. If the Borrower owns or
acquires any Deposit Accounts, Investment Property,
Letter-of-Credit Rights or electronic chattel paper
constituting Collateral, the Borrower will within 15 days
notify the Collateral
11
Agent thereof, and upon request by the Collateral Agent will
cooperate with the Collateral Agent in obtaining control with
respect to such Collateral. The Borrower will not create any
Chattel Paper without placing a legend on the Chattel Paper
acceptable to the Collateral Agent indicating that the
Collateral Agent has a security interest in the Chattel
Paper."
(g) Section 7.4 of the Borrower Security Agreement is
deleted in its entirety and the following is substituted in lieu
thereof:
"7.4. Financing Statements. The Borrower authorizes
the Collateral Agent to file such financing statements, in
form acceptable to the Collateral Agent, as the Collateral
Agent may from time to time request or as are necessary or
desirable in the opinion of the Collateral Agent to establish
and maintain a valid, enforceable, first priority perfected
security interest (subject only to Permitted Liens) in the
Collateral as provided herein and the other rights and
security contemplated hereby all in accordance with the UCC or
other relevant law as enacted from time to time in any
relevant jurisdiction. The Borrower will pay any applicable
filing fees, recordation taxes and related expenses relating
to its Collateral."
5. Amendments to Subsidiary Security Agreement. Subject to the
conditions set forth in Section 10 hereof, the Subsidiary Security Agreement is
hereby amended as follows:
(a) Article I of the Subsidiary Security Agreement is
amended by deleting the definition of "Investment Property" in its
entirety and substituting in lieu thereof the following:
""Investment Property" shall have the meaning
ascribed thereto in Section 9-102 of the New York UCC and
shall include, without limitation (i) all securities, whether
certificated or uncertificated, including, without limitation,
stocks, bonds, interests in limited liability companies,
partnership interests, treasury securities, certificates of
deposit, and mutual fund shares; (ii) all securities
entitlements of any Assignor, including without limitation,
the rights of any Assignor to any securities account and the
financial assets held by a securities intermediary in such
securities account and any free credit balance or other money
owing by any securities intermediary with respect to that
account; (iii) all securities accounts held by any Assignor;
(iv) all commodity contracts held by any Assignor; and (v) all
commodity accounts held by any Assignor."
(b) Article I of the Subsidiary Security Agreement is
amended by inserting the following definitions in the appropriate
alphabetical order:
""Deposit Accounts" shall have the meaning provided
in the New York UCC.
"Letter-of-Credit Rights" shall have the meaning
provided in the New York UCC.
12
"Software" shall have the meaning provided in the New
York UCC.
"Supporting Obligations" shall have the meaning
provided in the New York UCC."
(c) Subsection (a) of Section 2.1 of the Subsidiary
Security Agreement is deleted in its entirety and the following is
substituted in lieu thereof:
"(a) As security for the prompt and complete
payment and performance when due of all of the Obligations,
each Assignor does hereby collaterally assign and transfer
unto the Collateral Agent, for the benefit of the Secured
Creditors, and does hereby pledge and grant to the Collateral
Agent for the benefit of the Secured Creditors, a continuing
security interest of first priority (subject to Liens
evidenced by Permitted Filings and other Permitted Liens) in,
all of the right, title and interest of such Assignor in, to
and under all of the personal property of such Assignor,
wherever located, whether now existing or hereafter from time
to time acquired, including the following: (i) each and every
Receivable, (ii) all Contracts, together with all Contract
Rights, (iii) all Inventory, (iv) all Equipment, (v) all
Marks, together with the registrations and right to all
renewals thereof, and the goodwill of the business of such
Assignor symbolized by the Marks, (vi) all Patents and
Copyrights, and all reissues, renewals or extensions thereof,
(vii) all Software of the Borrower and all intellectual
property rights therein and all other proprietary information
of such Assignor, including, but not limited to, Trade
Secrets, (viii) all other Goods, General Intangibles, Chattel
Paper, Documents, Investment Property and Instruments, (ix)
all Supporting Obligations and Letter-of-Credit Rights, (x)
all cash, accounts, deposits, Deposit Accounts, securities and
insurance policies now or at any time hereafter in the
possession or under control of such Assignor or its respective
bailees and any interest thereon, (xi) all other personal
property of such Assignor, whether now owned or hereafter
acquired, (xii) all documents of title evidencing or issued
with respect to any of the foregoing, and (xiii) all Proceeds
and products of any and all of the foregoing (including,
without limitation, all insurance and claims for insurance
effected or held for the benefit of such Assignor in respect
thereof) (all of the above, collectively, the "Collateral").
(d) Section 3.7 of the Subsidiary Security Agreement is
deleted in its entirety and the following is substituted in lieu
thereof:
"3.7. Trade Names; Change of Name. Each Assignor
has not operated nor does operate in any jurisdiction under,
or in the preceding 12 months has had nor has operated in any
jurisdiction under, any trade names, fictitious names or other
names (including, without limitation, any names of divisions
or operations) except its legal name (which is as set forth in
Annex B to this Agreement) and such other trade, fictitious or
other names as are listed on Annex D hereto. Each Assignor
shall not change its legal name nor assume or operate in any
jurisdiction under any trade, fictitious or other name in any
manner which might make any financing statement or
continuation statement filed in connection therewith
13
seriously misleading within the meaning of Section 9-506 of
the UCC unless and until (i) it shall have given to the
Collateral Agent not less than 30 days' prior written notice
of its intention so to do, clearly describing such new name
and the jurisdictions in which such new name shall be used and
providing such other information in connection therewith as
the Collateral Agent may reasonably request, (ii) with respect
to such new name, it shall have taken all action to maintain
the security interest of the Collateral Agent in the
Collateral intended to be granted hereby at all times fully
perfected and in full force and effect, (iii) at the request
of the Collateral Agent, it shall have furnished an opinion of
counsel reasonably acceptable to the Collateral Agent to the
effect that all financing or continuation statements and
amendments or supplements thereto have been filed in the
appropriate filing office or offices, and (iv) upon its
reasonable request, the Collateral Agent shall have received
evidence that all other actions (including, without
limitation, the payment of all filing fees and taxes, if any,
payable in connection with such filings) have been taken, in
order to perfect (and maintain the perfection and priority of)
the security interest granted hereby."
(e) Article III of the Subsidiary Security Agreement is
amended by inserting the following immediately after Section 3.7
therein:
"3.8. State of Incorporation. The state of
incorporation of each Assignor is set forth on Annex B hereto.
Each Assignor shall not change the state in which it is
incorporated. Each Assignor shall preserve its corporate
existence and not, in one transaction or a series of related
transactions, merge into or consolidate with any other entity,
or sell all or substantially all of its assets."
(f) Article IV of the Subsidiary Security Agreement is
amended by (i) inserting the words "OTHER COLLATERAL" to the title of
said Article immediately after the words "RIGHTS; INSTRUMENTS;" and
(ii) inserting the following immediately after Section 4.6 therein:
"4.7. Other Collateral. If any Assignor owns or
acquires any Deposit Accounts, Investment Property,
Letter-of-Credit Rights or electronic chattel paper
constituting Collateral, such Assignor will within 15 days
notify the Collateral Agent thereof, and upon request by the
Collateral Agent will cooperate with the Collateral Agent in
obtaining control with respect to such Collateral. Each
Assignor will not create any Chattel Paper without placing a
legend on the Chattel Paper acceptable to the Collateral Agent
indicating that the Collateral Agent has a security interest
in the Chattel Paper."
(g) Section 7.4 of the Subsidiary Security Agreement is
deleted in its entirety and the following is substituted in lieu
thereof:
"7.4. Financing Statements. Each Assignor
authorizes the Collateral Agent to file such financing
statements, in form acceptable to the Collateral Agent, as the
Collateral Agent may from time to time request or as are
necessary
14
or desirable in the opinion of the Collateral Agent to
establish and maintain a valid, enforceable, first priority
perfected security interest (subject only to Permitted Liens)
in the Collateral as provided herein and the other rights and
security contemplated hereby all in accordance with the UCC or
other relevant law as enacted from time to time in any
relevant jurisdiction. Each Assignor will pay any applicable
filing fees, recordation taxes and related expenses relating
to its Collateral."
(h) Annex B of the Subsidiary Security Agreement is
deleted in its entirety and Annex B attached to this Amendment No. 2 is
substituted in lieu thereof.
6. Amendments to Borrower Pledge Agreement. Subject to the conditions
set forth in Section 10 hereof, the Borrower Pledge Agreement is hereby amended
as follows:
(a) Section 2.2 of Borrower Pledge Agreement is amended
by inserting the word "Pledged" immediately preceding the word "Notes"
in the first sentence thereof.
(b) Section 2.3 of Borrower Pledge Agreement is deleted
in its entirety and the following is substituted in lieu thereof:
"2.3. Uncertificated Securities. Notwithstanding
anything to the contrary contained in Sections 2.1 and 2.2
hereof, if any Securities (whether now owned or hereafter
acquired) are uncertificated securities, the Pledgor shall
promptly notify the Pledgee thereof, and shall promptly take
all actions required to perfect the security interest of the
Pledgee under applicable law (including cooperating with the
Collateral Agent in obtaining control with respect to such
Securities). The Pledgor further agrees to take such actions
as the Pledgee deems reasonably necessary or desirable to
effect the foregoing and to permit the Pledgee to exercise any
of its rights and remedies hereunder, and agrees to provide an
opinion of counsel reasonably satisfactory to the Pledgee with
respect to any such pledge of uncertificated Securities
promptly upon request of the Pledgee."
7. Amendments to Subsidiary Pledge Agreement. Subject to the conditions
set forth in Section 10 hereof, the Subsidiary Pledge Agreement is hereby
amended as follows:
(a) Section 2.2 of Subsidiary Pledge Agreement is amended
by inserting the word "Pledged" immediately preceding the word "Notes"
in the first sentence thereof.
(b) Section 2.3 of Subsidiary Pledge Agreement is deleted
in its entirety and the following is substituted in lieu thereof:
"2.3. Uncertificated Securities. Notwithstanding
anything to the contrary contained in Sections 2.1 and 2.2
hereof, if any Securities (whether now owned or hereafter
acquired) are uncertificated securities, the respective
Pledgor shall promptly notify the Pledgee thereof, and shall
promptly take all actions required to perfect the security
interest of the Pledgee under applicable law
15
(including cooperating with the Collateral Agent in obtaining
control with respect to such Securities). Each Pledgor further
agrees to take such actions as the Pledgee deems reasonably
necessary or desirable to effect the foregoing and to permit
the Pledgee to exercise any of its rights and remedies
hereunder, and agrees to provide an opinion of counsel
reasonably satisfactory to the Pledgee with respect to any
such pledge of uncertificated Securities promptly upon request
of the Pledgee."
8. Limited Waiver. The Lenders hereby waive (a) for the period
commencing April 1, 2001 and ending on September 15, 2001, any Event of Default
or Unmatured Event of Default arising solely as a result of the Borrower's
failure to meet, in the time frames provided therein, the requirements of
Paragraphs 4, 9 and 12 of the Post Closing Agreement (as amended by Amendment
No. 1) and (b) for the period commencing May 31, 2001 and ending on October 31,
2001, any Event of Default or Unmatured Event of Default arising solely as a
result of the Borrower's failure to meet, in the time frame provided therein,
the requirements of Section 7.11 of the Credit Agreement (as amended by
Amendment No. 1). Upon expiration of the waiver set forth in clause (a) of the
preceding sentence without compliance by the Borrower with the requirements
specified therein, such waiver shall be automatically revoked and the
requirements of the Post Closing Agreement (as amended by Amendment No. 1)
waived thereby shall again be in full force with retroactive effect to the dates
specified in the Post Closing Agreement (as amended by Amendment No. 1). Upon
expiration of the waiver set forth in clause (b) of the second preceding
sentence without compliance by the Borrower with the requirements specified
therein, such waiver shall be automatically revoked and the requirements of the
Credit Agreement (as amended by Amendment No. 1) waived thereby shall again be
in full force with retroactive effect to the date specified in the Credit
Agreement (as amended by Amendment No. 1). In each case, following such
expiration and noncompliance as described in the respective preceding sentences,
the Administrative Agent and the Lenders shall have all rights and remedies
under the Post Closing Agreement, the Credit Agreement and any other Loan
Document or otherwise that the Administrative Agent and the Lenders would have
had if any such waiver had never been granted.
9. Representations and Warranties. As of the date hereof, the Borrower
hereby represents and warrants to the Administrative Agent and the Lenders as
follows:
(a) After giving effect to this Amendment No. 2 (i) no
Unmatured Event of Default or Event of Default shall have occurred or
be continuing and (ii) the representations and warranties of the
Borrower contained in the Loan Documents shall each be true and correct
in all material respects at and as of the date hereof to the same
extent as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date in
which event such representation and warranties shall be true and
correct as of such specified date.
(b) The execution, delivery and performance, as the case
may be, by the Borrower of this Amendment No. 2 and the other documents
and transactions contemplated hereby are within the Borrower's
corporate powers, have been duly authorized by all necessary corporate
action (including, without limitation, all necessary shareholder
approvals) of the Borrower, shall have received all necessary
governmental
16
approvals, and do not and will not contravene or conflict with any
provision of law applicable to the Borrower, the certificate or
articles of incorporation or bylaws of the Borrower, or any order,
judgment or decree of any court or other agency of government or any
contractual obligation binding upon the Borrower.
(c) Each of this Amendment No. 2, the Credit Agreement,
the Post Closing Agreement and any other Loan Document is the legal,
valid and binding obligation of the Borrower enforceable against the
Borrower in accordance with its respective terms, except to the extent
enforceability is limited by bankruptcy, insolvency or similar laws
affecting the rights of creditors generally or by application of
general principles of equity.
10. Conditions. This Amendment No. 2 shall become effective as of
the date first above written; provided, that the Administrative Agent shall have
received:
(a) counterparts of this Amendment No. 2 duly executed by
the Borrower, the Subsidiary Guarantors, the Assignors (solely with
respect to Section 5 above), the Pledgors (solely with respect to
Section 7 above), the Administrative Agent and the percentage of
Lenders required by the Credit Agreement; and
(b) from the Borrower all fees and expenses of legal
counsel due and payable pursuant to Section 12.4 of the Credit
Agreement (to the extent then invoiced).
11. Affirmation of Subsidiary Guarantors. By its signature set
forth below, each Subsidiary Guarantor hereby confirms to the Administrative
Agent and the Lenders that, after giving effect to this Amendment No. 2 and the
transactions contemplated hereby, the Subsidiary Guaranty of such Subsidiary
Guarantor and each other Loan Document to which such Subsidiary Guarantor is a
party continues in full force and effect and is the legal, valid and binding
obligation of such Subsidiary Guarantor, enforceable against such Subsidiary
Guarantor in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability.
12. Amendment Fee. The Borrower hereby agrees to pay, without
setoff, deduction or counterclaim, a non-refundable amendment fee for the
account of each Lender, other than the Agents or ABN Amro Bank, N.V., that has
executed and delivered (including delivery of way of telecopy) a copy of this
Amendment No. 2 to the attention of Kay McNab at Winston & Strawn, 35 West
Wacker Drive, Chicago, Illinois 60601, telecopy number 312-558-5700, at or prior
to noon, New York City time, on Friday, August 31, 2001, in an amount equal to
0.10% of such Lender's Commitment. The aggregate amount of such amendment fee
shall be paid at or prior to noon, New York City time, on Tuesday, September 4,
2001 to the Administrative Agent for the pro rata account of the Lenders
entitled to receive such amendment fee.
13. Successors and Assigns. This Amendment No. 2 shall be binding
on and shall inure to the benefit of the Borrower, the Administrative Agent, the
Lenders and their respective successors and assigns; provided that the Borrower
may not assign its rights, obligations, duties or other interests hereunder
without the prior written consent of the Administrative Agent and the Lenders.
The terms and provisions of this Amendment No. 2 are for the purpose of defining
the
17
relative rights and obligations of the Borrower, the Administrative Agent and
the Lenders with respect to the transactions contemplated hereby and there shall
be no third party beneficiaries of any of the terms and provisions of this
Amendment No. 2.
14. Entire Agreement. This Amendment No. 2, the Credit Agreement
(as amended hereby), the Post Closing Agreement (as amended hereby) and the
other Loan Documents (as amended hereby, if applicable) constitute the entire
agreement of the parties with respect to the subject matter hereof.
15. Incorporation of Credit Agreement. The provisions contained in
Sections 12.4, 12.9 and 12.10 of the Credit Agreement are incorporated herein by
reference to the same extent as if reproduced herein in their entirety with
respect to this Amendment No. 2.
16. Amendment; Waiver. The parties hereto agree and acknowledge
that nothing contained in this Amendment No. 2 in any manner or respect limits
or terminates any of the provisions of the Credit Agreement, the Post Closing
Agreement or any of the other Loan Documents other than as amended as expressly
set forth herein and further agree and acknowledge that the Credit Agreement (as
amended hereby), the Post Closing Agreement (as amended hereby) and each of the
other Loan Documents (as amended hereby, if applicable) remain and continue in
full force and effect and are hereby ratified and confirmed. Except to the
extent expressly set forth herein, the execution, delivery and effectiveness of
this Amendment No. 2 shall not operate as a waiver of any rights, power or
remedy of the Lenders or the Administrative Agent under the Credit Agreement,
the Post Closing Agreement or any other Loan Document, nor constitute a waiver
of any provision of the Credit Agreement, the Post Closing Agreement or any
other Loan Document. No delay on the part of any Lender or the Administrative
Agent in exercising any of their respective rights, remedies, powers and
privileges under the Credit Agreement, the Post Closing Agreement or any of the
Loan Documents or partial or single exercise thereof, shall constitute a waiver
thereof. On and after the Effective Date each reference in the Credit Agreement
or the Post Closing Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import, and each reference to the Credit Agreement,
the Post Closing Agreement in the Loan Documents and all other documents
delivered in connection with the Credit Agreement shall mean and be a reference
to the Credit Agreement, the Post Closing Agreement, the Borrower Security
Agreement, the Subsidiary Security Agreement, the Borrower Pledge Agreement or
the Subsidiary Pledge Agreement, as applicable, as amended hereby.
17. Captions. Section captions used in this Amendment No. 2 are
for convenience only, and shall not affect the construction of this Amendment
No. 2.
18. Severability. Whenever possible each provision of this
Amendment No. 2 shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Amendment No. 2 shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Amendment.
18
19. Counterparts. This Amendment No. 2 may be executed in any
number of counterparts and by the different parties on separate counterparts,
and each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. Delivery
of an executed counterpart of a signature page to this Amendment No. 2 by
telecopy shall be effective as delivery of a manually executed counterpart of
this Amendment No. 2.
[signature pages follow]
19
IN WITNESS WHEREOF, this Amendment No. 2 has been duly executed as of
the date first written above.
GENCORP INC.
By: /s/ Yasmin R. Seyal
-----------------------------------
YASMIN R. SEYAL
Treasurer
Signature Page to Amendment No. 2
AEROJET-GENERAL CORPORATION, as
Subsidiary Guarantor, Assignor and Pledgor
By: /s/ Yasmin R. Seyal
-----------------------------------
YASMIN R. SEYAL
Treasurer
Signature Page to Amendment No. 2
AEROJET ORDNANCE TENNESSEE, INC., as
Subsidiary Guarantor, Assignor and Pledgor
By: /s/ Brian E. Sweeney
-----------------------------------
BRIAN E. SWEENEY
Vice President and Secretary
Signature Page to Amendment No. 2
GENCORP PROPERTY INC., as Subsidiary
Guarantor, Assignor and Pledgor
By: /s/ Yasmin R. Seyal
-----------------------------------
YASMIN R. SEYAL
Treasurer
Signature Page to Amendment No. 2
PENN INTERNATIONAL INC., as Subsidiary
Guarantor, Assignor and Pledgor
By: /s/ Robert C. Anderson
-----------------------------------
ROBERT C. ANDERSON
Secretary
Signature Page to Amendment No. 2
GDX LLC, as Subsidiary Guarantor, Assignor
and Pledgor
By: /s/ Yasmin R. Seyal
------------------------------------
YASMIN R. SEYAL
Treasurer
Signature Page to Amendment No. 2
GDX AUTOMOTIVE INC., as
Subsidiary Guarantor, Assignor and Pledgor
By: /s/ Yasmin R. Seyal
-------------------------------------
YASMIN R. SEYAL
Treasurer
Signature Page to Amendment No. 2
BANKERS TRUST COMPANY,
as Lender, Administrative Agent and
Collateral Agent
By: /s/ Marguerite Sutton
------------------------------------
Name: Marguerite Sutton
Title: Vice President
Signature Page to Amendment No. 2
BANK ONE, NA,
as Lender
By: /s/ Karen C. Ryan
------------------------------------
Name: Karen C. Ryan
Title: Vice President
Signature Page to Amendment No. 2
ABN AMRO Bank N.V.,
as Lender
By: /s/ Peter Hsu
-----------------------------------
Name: PETER HSU
Title: Vice President
By: /s/ Edward John Hill III
------------------------------------
Name: EDWARD JOHN HILL III
Title: Assistant Vice President
Signature Page to Amendment No. 2
THE BANK OF NEW YORK,
as Lender
By: /s/ Lisa Y. Brown
------------------------------------
Name: Lisa Y. Brown
Title Vice President
Signature Page to Amendment No. 2
BANK OF NOVA SCOTIA,
as Lender
By: /s/Mark Sparrow
---------------------------------
Name: Mark Sparrow
Title: Director
Signature Page to Amendment No. 2
THE NORTHERN TRUST COMPANY,
as Lender
By: /s/Melissa A. Whitson
-------------------------------------
Name: Melissa A. Whitson
Title: Vice President
Signature Page to Amendment No. 2
WELLS FARGO BANK, N.A.,
as Lender
By: /s/ Rick A. Souza
-------------------------------------
Name: Rick A. Souza
Title: Vice President
Signature Page to Amendment No. 2
CONTINENTAL ASSURANCE COMPANY,
as Lender
By: TCW Asset Management Company,
By: /s/ Richard F. Kurth
------------------------------------
Name: RICHARD F. KURTH
Title: Vice President
By: /s/ Mark L. Gold
------------------------------------
Name: MARK l. GOLD
Title: Managing Director
Signature Page to Amendment No. 2
KATONAH II, LTD ,
as Lender
By: Katonah Capital LLC, as Manager
By: /s/ Ralph Della Rocca
-----------------------------------
Name: Ralph Della Rocca
Title: Authorized Officer Katonah Capital,
LLC As Manager
Signature Page to Amendment No. 2
KZH CRESCENT LLC,
as Lender
By: /s/ Brian Turkfeld
------------------------------------
Name: BRIAN TURKFELD
Title: Authorized Agent
Signature Page to Amendment No. 2
KZH CRESCENT-2 LLC,
as Lender
By: /s/ Brian Turkfeld
-----------------------------------
Name: BRIAN TURKFELD
Title: Authorized Agent
Signature Page to Amendment No. 2
KZH CRESCENT-3 LLC,
as Lender
y: /s/ Brian Turkfeld
----------------------------------
Name: BRIAN TURKFELD
Title: Authorized Agent
Signature Page to Amendment No. 2
SEQUILS I, LTD.,
as Lender
By: TCW Advisers, Inc.
as its Collateral Manager
By: /s/ Richard F. Kurth
-----------------------------------
Name: Richard F. Kurth
Title: Vice President
By: /s/ Mark L. Gold
-----------------------------------
Name: Mark L. Gold
Title: Managing Director
Signature Page to Amendment No. 2
SEQUILS IV, LTD.,
as Lender
By: TCW Advisers, Inc.
as its Collateral Manager
By: /s/ Richard F. Kurth
------------------------------------
Name: Richard F. Kurth
Title: Vice President
By: /s/ Mark L. Gold
------------------------------------
Name: Mark L. Gold
Title: Managing Director
Signature Page to Amendment No. 2
TCW LEVERAGED INCOME TRUST IV, L.P.,
as Lender
By: TCW (LINC IV), L.L.C.,
as General Partner
By: TCW Asset Management Company,
as managing member of the General Partner
By: /s/ Richard F. Kurth
------------------------------------
Name: Richard F. Kurth
Title: Vice President
By: /s/ Mark L. Gold
------------------------------------
Name: Mark L. Gold
Title: Managing Director
Signature Page to Amendment No. 2
TORONTO DOMINION (NEW YORK), INC.,
as Lender
By: /s/ Stacey Malek
------------------------------------
Name: STACEY MALEK
Title: Vice President
Signature Page to Amendment No. 2
UNITED OF OMAHA LIFE INSURANCE
COMPANY, as Lender
By: TCW Asset Management Company,
its Investment Advisor
By: /s/ Richard F. Kurth
-----------------------------------
Name: RICHARD F. KURTH
Title: Vice President
By: /s/ Mark L. Gold
-------------------------------
Name: MARK L. GOLD
Title: Managing Director
Signature Page to Amendment No. 2
FIRST UNION NATIONAL BANK,
as Lender
By: /s/ Frederick E. Blumer
---------------------------
Name: FREDERICK E. BLUMER
Title: Vice President
Signature Page to Amendment No. 2
CIGNA COLLATERALIZED HOLDINGS 1999-1
CDO, LIMITED, as Lender
By: /s/ John P. Connor
---------------------------
Name: John P. Connor
Title: Vice President
Signature Page to Amendment No. 2
CAPTIVA II FINANCE LTD.,
as Lender
By: /s/ David Dyer
-------------------
Name: DAVID DYER
Title: Director
Signature Page to Amendment No. 2
Execution Copy
LIMITED WAIVER
This LIMITED WAIVER (this "Waiver"), dated as of October 15, 2001, is
made among GENCORP INC., an Ohio corporation (the "Borrower"), BANKERS TRUST
COMPANY, for itself, as Lender and as Administrative Agent for the Lenders (the
"Administrative Agent"), and the other Lenders signatory to the hereinafter
defined Credit Agreement.
RECITALS
A. The Administrative Agent, the Lenders and the Borrower are
party to that certain Credit Agreement dated as of December 28, 2000 (as amended
by that certain Amendment No. 1 to Credit Agreement and Amendment No. 1 to Post
Closing Agreement dated as of January 26, 2001 (the "Amendment No. 1") and by
that certain Amendment No. 2 to Credit Agreement, Amendment No. 2 to Post
Closing Agreement, Amendment No. 1 to Collateral Agreements and Limited Waiver
dated as of August 31, 2001 (the "Amendment No. 2")) (collectively, the "Credit
Agreement"). Unless otherwise specified herein, capitalized terms used in this
Waiver shall have the meanings ascribed to them by the Facility Agreement.
B. Pursuant to Amendment No. 2, the Borrower agreed to cause the
Revolving Commitment to be permanently reduced in part, and Revolving Loans
relating thereto to be repaid, on the earlier of 5:00 p.m. (New York City time)
(a) on October 15, 2001 or (b) the date of closing of the EIS Business Sale
C. The Borrower has requested a waiver of, and the Lenders wish
to waive, on a limited basis the provision of Amendment No. 2 described in B.
above on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual
execution hereof and other good and valuable consideration, the parties hereto
agree as follows:
1. Limited Waiver. The Lenders hereby waive, for the
period commencing October 15, 2001 and ending on October 31, 2001, any Event of
Default or Unmatured Event of Default arising solely out of the Borrower's
breach of Section 2(b) of Amendment No. 2 as result of the Borrower's failure to
permanently reduce the Revolving Commitment and repay Revolving Loans as
required by the terms of said Section. Upon expiration of the waiver set forth
in the preceding sentence without compliance by the Borrower with the
requirements specified therein, such waiver shall be automatically revoked and
the requirements of the Credit Agreement (as amended by Amendment No. 1 and
Amendment No. 2) waived thereby shall again be in full force with retroactive
effect to the dates specified in the Credit Agreement (as amended by Amendment
No. 1 and Amendment No. 2). In such case, following such expiration and
noncompliance as described in the preceding sentences, the Administrative Agent
and the Lenders shall have all rights and remedies under the Credit Agreement
(as amended by Amendment No. 1 and Amendment No. 2) and any other Loan Document
or otherwise that the
Administrative Agent and the Lenders would have had if any such waiver had never
been granted.
2. Representation and Warranty. As an inducement to the
Lenders to grant the foregoing waiver, the Borrower represents and warrants
that, after giving effect to this Waiver, as of the date hereof (a) there exists
no Event of Default or Unmatured Event of Default and (b) the representations
and warranties contained in the Credit Agreement are true and correct except to
the extent any such representation or warranty is stated to relate solely to an
earlier date, in which case such representation or warranty shall have been true
and correct on and as of such earlier date.
3. Effective Time. This Waiver shall become effective
upon the execution and delivery hereof by the Borrower, the Administrative Agent
and the Required Lenders.
4. Miscellaneous.
(a) The execution, delivery and effectiveness of
this Waiver shall not operate as a waiver of any right, power or remedy
of the Administrative Agent or any Lender under the Credit Agreement or
any Loan Document, nor constitute a waiver of any Event of Default,
Unmatured Event of Default, condition or provision of the Credit
Agreement or any Loan Document, except as specifically set forth
herein. Except as specifically waived above, the Credit Agreement and
the other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed. The Borrower hereby reaffirms its
obligations under the Credit Agreement and all of the other Loan
Documents to which it is a party.
(b) Section headings in this Waiver are included
herein for convenience of reference only and shall not constitute a
part of this Waiver for any other purposes.
(c) This Waiver may be executed in any number of
counterparts, each of which when so executed shall be deemed an
original but all such counterparts shall constitute one and the same
instrument
5. Affirmation of Subsidiary Guarantors. By its
signature set forth below, each Subsidiary Guarantor hereby confirms to the
Administrative Agent and the Lenders that, after giving effect to this Waiver
and the transactions contemplated hereby, the Subsidiary Guaranty of such
Subsidiary Guarantor and each other Loan Document to which such Subsidiary
Guarantor is a party continues in full force and effect and is the legal, valid
and binding obligation of such Subsidiary Guarantor, enforceable against such
Subsidiary Guarantor in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles relating
to enforceability.
6. Successors and Assigns. This Waiver shall be binding
on and shall inure to the benefit of the Borrower, the Administrative Agent, the
Lenders and their respective successors and assigns; provided that the Borrower
may not assign its rights, obligations, duties or other interests hereunder
without the prior written consent of the Administrative Agent and the
2
Lenders. The terms and provisions of this Waiver are for the purpose of defining
the relative rights and obligations of the Borrower, the Administrative Agent
and the Lenders with respect to the transactions contemplated hereby and there
shall be no third party beneficiaries of any of the terms and provisions of this
Waiver.
7. Incorporation of Credit Agreement. The provisions
contained in Sections 12.4, 12.9 and 12.10 of the Credit Agreement are
incorporated herein by reference to the same extent as if reproduced herein in
their entirety with respect to this Amendment No. 2.
8. Counterparts. This Waiver may be executed in any
number of counterparts and by the different parties on separate counterparts,
and each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. Delivery
of an executed counterpart of a signature page to this Waiver by telecopy shall
be effective as delivery of a manually executed counterpart of this Waiver.
[signature pages follow]
3
IN WITNESS WHEREOF, this Waiver. has been duly executed as of the date first
written above.
GENCORP INC.
By: /s/ Yasmin R. Seyal
-------------------------------------
YASMIN R. SEYAL
Signature Page to Limited Waiver
AEROJET-GENERAL CORPORATION,
as Subsidiary Guarantor
By: /s/ Yasmin R. Seyal
-------------------------------------
Name: YASMIN R. SEYAL
Signature Page to Limited Waiver
AEROJET ORDANCE TENNESSEE, INC., as
Subsidiary Guarantor, Assignor and Pledgor
By: /s/ Brian E. Sweeney
-------------------------------------
BRIAN E. SWEENEY
Vice President and Secretary
Signature Page to Limited Waiver
GENCORP PROPERTY INC., as Subsidiary
Guarantor, Assignor and Pledgor
By: /s/ Yasmin R. Seyal
-------------------------------------
YASMIN R. SEYAL
Signature Page to Limited Waiver
PENN INTERNATIONAL INC., as Subsidiary
Guarantor, Assignor and Pledgor
By: /s/ Terry L. Hall
-------------------------------------
TERRY L. HALL
Signature Page to Limited Waiver
GDX LLC, as Subsidiary Guarantor,
Assignor and Pledgor
By: /s/ Yasmin R. Seyal
-------------------------------------
YASMIN R. SEYAL
Signature Page to Limited Waiver
GDX AUTOMOTIVE INC., as Subsidiary
Guarantor, Assignor and Pledgor
By: /s/ Yasmin R. Seyal
-------------------------------------
YASMIN R. SEYAL
Signature Page to Limited Waiver
BANKERS TRUST COMPANY,
as Lender, Administrative Agent and
Collateral Agent
By: /s/ Marguerite Sutton
-------------------------------------
Name: Marguerite Sutton
Title: Vice President
Signature Page to Limited Waiver
BANK ONE, NA,
as Lender
By: /s/ Stephen C. Price
-------------------------------------
Name: Stephen C. Price
Title: First Vice President
Signature Page to Limited Waiver
ABN AMRO Bank, N.V.,
as Lender
By: /s/ Mary L. Honda
-------------------------------------
Name: MARY L. HONDA
Title: Group Vice President
By: /s/ Edward John Hill III
-------------------------------------
Name: EDWARD JOHN HILL III
Title: Assistant Vice President
Signature Page to Limited Waiver
THE BANK OF NEW YORK,
as Lender
By: /s/ Elizabeth Ying
-------------------------------------
Name: Elizabeth Ying
Title Vice President
Signature Page to Limited Waiver
BANK OF NOVA SCOTIA,
as Lender
By: /s/ Mark Sparrow
-------------------------------------
Name: Mark Sparrow
Title: Director
Signature Page to Limited Waiver
NATIONAL CITY BANK,
as Lender
By: /s/ Tom Gurbach
-------------------------------------
Name: Tom Gurbach
Title: Vice President
Signature Page to Limited Waiver
THE NORTHERN TRUST COMPANY,
as Lender
By: /s/ Patrick J. Connelly
-------------------------------------
Name: Patrick J. Connelly
Title: Vice President
Signature Page to Limited Waiver
WELLS FARGO BANK, N.A.,
as Lender
By: /s/ Rick A. Souza
-------------------------------------
Name: Rick A. Souza
Title: Vice President
Signature Page to Limited Waiver
KATONAH II, LTD.,
as Lender
By: Katonah Capital LLC, as Manager
By: /s/ Ralph Della Rocca
-------------------------------------
Name: Ralph Della Rocca
Title: Authorized Officer Katonah
Capital, LLC As Manager
Signature Page to Limited Waiver
TORONTO DOMINION (NEW YORK), INC.,
as Lender
By: /s/ Stacey Malek
-------------------------------------
Name: STACEY MALEK
Title: Vice President
Signature Page to Limited Waiver
FIRST UNION NATIONAL BANK,
as Lender
By: /s/ Frederick E. Blumer
-------------------------------------
Name: Frederick E. Blumer
Title: Vice President
Signature Page to Limited Waiver
LIMITED WAIVER AND TEMPORARY COMMITMENT INCREASE AGREEMENT
This LIMITED WAIVER AND TEMPORARY COMMITMENT INCREASE AGREEMENT (this
"Waiver and Agreement"), dated as of November 20, 2001, is made among GENCORP
INC., an Ohio corporation (the "Borrower"), BANKERS TRUST COMPANY, for itself,
as Lender and as Administrative Agent for the Lenders (the "Administrative
Agent"), and the other Lenders signatory to the hereinafter defined Credit
Agreement.
RECITALS
A. The Administrative Agent, the Lenders and the Borrower are party to
that certain Credit Agreement dated as of December 28, 2000 (as amended by that
certain Amendment No. 1 to Credit Agreement and Amendment No. 1 to Post Closing
Agreement dated as of January 26, 2001 ("Amendment No. 1") and by that certain
Amendment No. 2 to Credit Agreement, Amendment No. 2 to Post Closing Agreement,
Amendment No. 1 to Collateral Agreements and Limited Waiver dated as of August
31, 2001 ("Amendment No. 2")) (collectively, the "Credit Agreement"). Unless
otherwise specified herein, capitalized terms used in this Waiver shall have the
meanings ascribed to them by the Credit Agreement.
B. Pursuant to Amendment No. 2, the Borrower agreed to cause the
Revolving Commitment to be permanently reduced in part, and Revolving Loans
relating thereto to be repaid, on the earlier of 5:00 p.m. (New York City time)
(a) on October 15, 2001 or (b) the date of closing of the EIS Business Sale.
C. The Borrower, the Lenders and the Administrative Agent are party to
that certain Limited Waiver dated as of October 15, 2001, pursuant to which the
Lenders agreed to waive, for the period commencing October 15, 2001 and ending
on October 31, 2001, any Event of Default or Unmatured Event of Default arising
solely out of the Borrower's breach of Section 2(b) of Amendment No. 2 (the
"Waived Section") as result of the Borrower's failure to permanently reduce the
Revolving Commitment and repay Revolving Loans, in part, as required by the
terms of said Section.
D. Acting pursuant to Section 2.8 of the Credit Agreement, the Borrower
has elected to increase the aggregate Revolving Commitment by $2,833,333.33 (the
"Revolving Commitment Increase") to $152,833,333.33, on a temporary basis, and
has notified the Administrative Agent of such election.
E. The Borrower has requested an extension of the limited waiver of the
Waived Section, and has requested certain additional waivers relating to the
Revolving Commitment Increase, and the Lenders are willing, on and subject to
the terms and conditions set forth below, to consent to such extension of the
limited waiver of the Waived Section and to consent to such other waivers, all
as provided below.
NOW, THEREFORE, in consideration of the premises and the mutual
execution hereof and other good and valuable consideration, the parties hereto
agree as follows:
Signature Page to Waiver and Agreement
1. Limited Waiver. The Lenders hereby waive, for the period commencing
October 31, 2001 and ending on December 31, 2001, any Event of Default or
Unmatured Event of Default arising solely out of the Borrower's breach of
Section 2(b) of Amendment No. 2 as result of the Borrower's failure to
permanently reduce the Revolving Commitment and repay Revolving Loans, in part,
as required by the terms of said Section. Upon expiration of the waiver set
forth in the preceding sentence without compliance by the Borrower with the
requirements specified therein, such waiver shall be automatically revoked and
the requirements of the Credit Agreement (as amended by Amendment No. 1 and
Amendment No. 2) waived thereby shall again be in full force with retroactive
effect to the dates specified in the Credit Agreement (as amended by Amendment
No. 1 and Amendment No. 2). In such case, following such expiration and
noncompliance as described in the preceding sentences, the Administrative Agent
and the Lenders shall have all rights and remedies under the Credit Agreement
(as amended by Amendment No. 1 and Amendment No. 2) and any other Loan Document
or otherwise that the Administrative Agent and the Lenders would have had if any
such waiver had never been granted.
2. Temporary Revolving Commitment Increase and related Waivers. In
accordance with Section 2.8 of the Credit Agreement, Bank One, NA hereby agrees
to increase its Revolving Commitment by the amount of $2,833,333.33 (the
"Revolving Commitment Increase"), effective for the period commencing October
31, 2001 and ending on December 31, 2001, for a total Revolving Commitment under
the Credit Agreement of $34,500,000 with respect to such Lender, and each of the
Administrative Agent and the Borrower consents to the foregoing additional,
temporary Revolving Commitment. The Borrower, the Administrative Agent and the
Lenders hereby acknowledge that, pursuant to Section 2.8 of the Credit
Agreement, the Credit Agreement is deemed amended without further action by any
party to reflect the revised Revolving Commitment of Bank One, NA. In connection
with the foregoing Revolving Commitment Increase, the Lenders hereby waive any
terms or conditions precedent provided for in said Section 2.8 of the Credit
Agreement with regard to the implementation of the Revolving Commitment
Increase, including, without limitation, the prescribed minimum amount of such
increase, advance notice of such increase, delivery of financial projections,
and the solicitation of the existing Lenders in connection with such increase,
and the Borrower, the Administrative Agent and the Lenders agree that the
Revolving Commitment Increase shall become effective on the effective date of
this Waiver and Amendment without further action on the part of the Borrower,
the Administrative Agent, Bank One, NA, or the Lenders. On or prior to 5:00 p.m.
(New York City time) on December 31, 2001, the Borrower shall cause the
Revolving Commitment to be permanently reduced, in part, in the aggregate
principal amount of the Revolving Commitment Increase, and shall cause any
Revolving Loans relating thereto to be paid in full.
3. Limitation on Borrowings. Notwithstanding the foregoing paragraphs
1. and 2., the Borrower hereby agrees that at such time as the Borrower shall
request Revolving Loans which, together with the Assigned Dollar Value of all
outstanding Revolving Loans, would cause the then outstanding Revolving Loans
(including the proposed Revolving Loans) to exceed an Assigned Dollar Value of
$146,833,333.33, such proposed Revolving Loans shall be applied by the Borrower
solely to repay in full the Bank One, NA loan facility currently outstanding to
Henniges (as further identified on Schedule 8.2(b) to the Credit Agreement) (the
"Henniges Line of Credit") and, simultaneously with such repayment, the Borrower
shall cause the Henniges
Signature Page to Waiver and Agreement
Line of Credit to be cancelled, with such repayment and cancellation occurring
not later than the second (2nd) Business Day following the distribution of
proceeds of such Revolving Loans to the Borrower from the Administrative Agent;
provided that in no event shall the Henniges Line of Credit be repaid and
cancelled later than November 30, 2001. Upon repayment and cancellation of the
Henniges Line of Credit, the limitation on the Borrower set forth in this
paragraph 3. shall expire and shall no longer apply to the Borrower or to the
aggregate Revolving Commitments.
4. Representation and Warranty. As an inducement to the Lenders to
grant the foregoing waivers, the Borrower represents and warrants that, after
giving effect to this Waiver and Agreement, as of the date hereof (a) there
exists no Event of Default or Unmatured Event of Default and (b) the
representations and warranties contained in the Credit Agreement are true and
correct except to the extent any such representation or warranty is stated to
relate solely to an earlier date, in which case such representation or warranty
shall have been true and correct on and as of such earlier date.
5. Effective Time. This Waiver and Agreement shall become effective
upon the execution and delivery hereof by the Borrower, the Administrative Agent
and the Required Lenders.
6. Miscellaneous.
(a) The execution, delivery and effectiveness of this
Waiver and Agreement shall not operate as a waiver of any right, power
or remedy of the Administrative Agent or any Lender under the Credit
Agreement or any Loan Document, nor constitute a waiver of any Event of
Default, Unmatured Event of Default, condition or provision of the
Credit Agreement or any Loan Document, except as specifically set forth
herein. Except as specifically waived above, the Credit Agreement and
the other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed. The Borrower hereby reaffirms its
obligations under the Credit Agreement and all of the other Loan
Documents to which it is a party.
(b) Section headings in this Waiver and Agreement are included
herein for convenience of reference only and shall not constitute a
part of this Waiver and Agreement for any other purposes.
(c) This Waiver and Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed an
original but all such counterparts shall constitute one and the same
instrument
7. Affirmation of Subsidiary Guarantors. By its signature set forth
below, each Subsidiary Guarantor hereby confirms to the Administrative Agent and
the Lenders that, after giving effect to this Waiver and Agreement and the
transactions contemplated hereby, including, the Revolving Commitment Increase,
the Subsidiary Guaranty of such Subsidiary Guarantor and each other Loan
Document to which such Subsidiary Guarantor is a party continues in full force
and effect and is the legal, valid and binding obligation of such Subsidiary
Guarantor, enforceable against such Subsidiary Guarantor in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting the
Signature Page to Waiver and Agreement
enforcement of creditors' rights generally or by equitable principles relating
to enforceability.
8. Successors and Assigns. This Waiver and Agreement shall be binding
on and shall inure to the benefit of the Borrower, the Administrative Agent, the
Lenders and their respective successors and assigns; provided that the Borrower
may not assign its rights, obligations, duties or other interests hereunder
without the prior written consent of the Administrative Agent and the Lenders.
The terms and provisions of this Waiver and Agreement are for the purpose of
defining the relative rights and obligations of the Borrower, the Administrative
Agent and the Lenders with respect to the transactions contemplated hereby and
there shall be no third party beneficiaries of any of the terms and provisions
of this Waiver and Agreement.
9. Incorporation of Credit Agreement. The provisions contained in
Sections 12.4, 12.9 and 12.10 of the Credit Agreement are incorporated herein by
reference to the same extent as if reproduced herein in their entirety with
respect to this Waiver and Agreement.
10. Counterparts. This Waiver and Agreement may be executed in any
number of counterparts and by the different parties on separate counterparts,
and each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. Delivery
of an executed counterpart of a signature page to this Waiver and Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of
this Waiver and Agreement.
[signature pages immediately follow]
Signature Page to Waiver and Agreement
IN WITNESS WHEREOF, this Waiver. has been duly executed as of the date first
written above.
GENCORP INC.
By: /s/ Yasmin R. Seyal
--------------------------------
YASMIN R. SEYAL
Senior Vice President, Finance
Signature Page to Waiver and Agreement
AEROJET-GENERAL CORPORATION,
as Subsidiary Guarantor
By: /s/ Yasmin R. Seyal
--------------------------------
YASMIN R. SEYAL
Treasurer
Signature Page to Waiver and Agreement
AEROJET ORDANCE TENNESSEE, INC., as
Subsidiary Guarantor, Assignor and Pledgor
By: /s/ Brian E. Sweeney
--------------------------------------
BRIAN E. SWEENEY
Vice President and Secretary
Signature Page to Waiver and Agreement
GENCORP PROPERTY INC., as Subsidiary
Guarantor, Assignor and Pledgor
By: /s/ Yasmin R. Seyal
--------------------------------
YASMIN R. SEYAL
Treasurer
Signature Page to Waiver and Agreement
PENN INTERNATIONAL INC., as Subsidiary
Guarantor, Assignor and Pledgor
By: /s/ Terry L. Hall
-----------------------------------
TERRY L. HALL
President
Signature Page to Waiver and Agreement
GDX LLC, as Subsidiary Guarantor, Assignor and
Pledgor
By: /s/ Yasmin R. Seyal
------------------------------------------
YASMIN R. SEYAL
Treasurer
Signature Page to Waiver and Agreement
GDX AUTOMOTIVE INC.,
as Subsidiary Guarantor, Assignor and Pledgor
By: /s/ Yasmin R. Seyal
------------------------------------------
YASMIN R. SEYAL
Treasurer
Signature Page to Waiver and Agreement
BANKERS TRUST COMPANY,
as Lender, Administrative Agent and Collateral
Agent
By: /s/ Marguerite Sutton
-------------------------------------------
Name: Marguerite Sutton
Title: Vice President
Signature Page to Waiver and Agreement
BANK ONE, NA,
as Lender
By: /s/ Karen C. Ryan
--------------------------------
Name: Karen C. Ryan
Title: Director
Signature Page to Waiver and Agreement
ABN AMRO Bank, N.V.,
as Lender
By: /s/ Mary L. Honda
--------------------------------
Name: MARY L. HONDA
Title: Group Vice President
By: /s/ Edward John Hill III
--------------------------------
Name: EDWARD JOHN HILL III
Title: Assistant Vice President
Signature Page to Waiver and Agreement
THE BANK OF NEW YORK,
as Lender
By: /s/ Elizabeth Ying
--------------------------------
Name: Elizabeth Ying
Title: Vice President
Signature Page to Waiver and Agreement
BANK OF NOVA SCOTIA,
as Lender
By: /s/ Mark Sparrow
--------------------------------
Name: Mark Sparrow
Title: Director
Signature Page to Waiver and Agreement
WELLS FARGO BANK, N.A.,
as Lender
By: /s/ Rick A. Souza
--------------------------------
Name: Rick A. Souza
Title: Vice President
Signature Page to Waiver and Agreement
FIRST UNION NATIONAL BANK,
as Lender
By: /s/ Frederick E. Blumer
--------------------------------
Name: Frederick E. Blumer
Title: Vice President
Signature Page to Waiver and Agreement
LIMITED WAIVER AND AMENDMENT
This LIMITED WAIVER AND AMENDMENT (this "Waiver and Amendment"), dated
as of December 31, 2001, is made among GENCORP INC., an Ohio corporation (the
"Borrower"), BANKERS TRUST COMPANY, for itself, as Lender and as Administrative
Agent for the Lenders (the "Administrative Agent"), and the other Lenders
signatory to the hereinafter defined Credit Agreement.
RECITALS
A. The Administrative Agent, the Lenders and the Borrower are party to
that certain Credit Agreement dated as of December 28, 2000 (as amended by that
certain Amendment No. 1 to Credit Agreement and Amendment No. 1 to Post Closing
Agreement dated as of January 26, 2001 ("Amendment No. 1") and by that certain
Amendment No. 2 to Credit Agreement, Amendment No. 2 to Post Closing Agreement,
Amendment No. 1 to Collateral Agreements and Limited Waiver dated as of August
31, 2001 ("Amendment No. 2")) (collectively, the "Credit Agreement"). Unless
otherwise specified herein, capitalized terms used in this Waiver and Amendment
shall have the meanings ascribed to them by the Credit Agreement.
B. Pursuant to Amendment No. 2, the Borrower agreed to cause the
Revolving Commitment to be permanently reduced in part, and Revolving Loans
relating thereto to be repaid, on the earlier of 5:00 p.m. (New York City time)
(a) on October 15, 2001 or (b) the date of closing of the EIS Business Sale.
C. The Borrower, the Lenders and the Administrative Agent are party to
that certain Limited Waiver dated as of October 15, 2001, pursuant to which the
Lenders agreed to waive, for the period commencing October 15, 2001 and ending
on October 31, 2001, any Event of Default or Unmatured Event of Default arising
solely out of the Borrower's breach of Section 2(b) of Amendment No. 2 (the
"Waived Section") as result of the Borrower's failure to permanently reduce the
Revolving Commitment and repay Revolving Loans, in part, as required by the
terms of said Section.
D. The Borrower, the Lenders and the Administrative Agent are party to
that certain Limited Waiver and Temporary Increase Agreement dated as of
November 20, 2001, pursuant to which (i) the Lenders agreed to waive, for the
period commencing October 31, 2001 and ending on December 31, 2001, any Event of
Default or Unmatured Event of Default arising solely out of the Borrower's
breach of the Waived Section as result of the Borrower's failure to permanently
reduce the Revolving Commitment and repay Revolving Loans, in part, as required
by the terms of said Section and (ii) acting pursuant to Section 2.8 of the
Credit Agreement, the Borrower elected to increase the aggregate Revolving
Commitment by $2,833,333.33 (the "Revolving Commitment Increase") to
$152,833,333.33, on a temporary basis, and Bank One, NA agreed to increase its
Revolving Commitment by the Revolving Commitment Increase for the period
commencing October 31, 2001 and ending on December 31, 2001.
E. By its terms, the Revolving Commitment Increase will terminate on
December 31, 2001 and the aggregate Revolving Commitment of the Lenders after
such date shall be equal to $150,000,000.
F. The Borrower has requested an extension of the limited waiver of the
Waived Section and an amendment of the Credit Agreement to permit its
subsidiary, GenCorp Canada, Inc. to enter into a certain credit arrangement with
The Bank of Nova Scotia, and the Lenders are willing, on and subject to the
terms and conditions set forth below, (i) to consent to such extension of the
limited waiver of the Waived Section and (ii) to amend the Credit Agreement to
provide for the extension of credit to GenCorp Canada, Inc., all as provided
below.
NOW, THEREFORE, in consideration of the premises and the mutual
execution hereof and other good and valuable consideration, the parties hereto
agree as follows:
1. Limited Waiver. The Lenders hereby waive, for the period commencing
December 31, 2001 and ending on February 15, 2002, any Event of Default or
Unmatured Event of Default arising solely out of the Borrower's breach of
Section 2(b) of Amendment No. 2 as result of the Borrower's failure to
permanently reduce the Revolving Commitment and repay Revolving Loans, in part,
as required by the terms of said Section. Upon expiration of the waiver set
forth in the preceding sentence without compliance by the Borrower with the
requirements specified therein, such waiver shall be automatically revoked and
the requirements of the Credit Agreement (as amended by Amendment No. 1 and
Amendment No. 2) waived thereby shall again be in full force with retroactive
effect to the dates specified in the Credit Agreement (as amended by Amendment
No. 1 and Amendment No. 2). In such case, following such expiration and
noncompliance as described in the preceding sentences, the Administrative Agent
and the Lenders shall have all rights and remedies under the Credit Agreement
(as amended by Amendment No. 1 and Amendment No. 2) and any other Loan Document
or otherwise that the Administrative Agent and the Lenders would have had if any
such waiver had never been granted.
2. Amendment of Credit Agreement. Section 8.2 of the Credit Agreement
is hereby amended by (i) in subsection (o) thereof, deleting the word "and"
immediately following the phrase "AFC's obligation to repay such advances" and
inserting in lieu thereof the following ";", (ii) in subsection (p) thereof,
deleting the period immediately following the phrase "any any time exceed
$100,000,000" and inserting in lieu thereof the phrase "; and", and (iii)
inserting the following new subsection (q) immediately after subsection (p)
therein:
"(q) Indebtedness of GenCorp Canada, Inc. under a credit
facility made available by The Bank of Nova Scotia or such other
lender; provided, that the amount of such Indebtedness shall not exceed
$5,000,000 in the aggregate at any one time outstanding."
3. Representation and Warranty. As an inducement to the Lenders to
grant the foregoing waiver and to consent to the foregoing amendment, the
Borrower represents and warrants that, after giving effect to this Waiver and
Amendment, as of the date hereof (a) there exists no Event of Default or
Unmatured Event of Default and (b) the representations and warranties contained
in the Credit Agreement are true and correct except to the extent any such
2
representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty shall have been true and correct on
and as of such earlier date.
4. Effective Time. This Waiver and Amendment shall become effective
upon the execution and delivery hereof by the Borrower, the Administrative Agent
and the Required Lenders.
5. Miscellaneous.
(a) The execution, delivery and effectiveness of this
Waiver and Amendment shall not operate as a waiver of any right, power
or remedy of the Administrative Agent or any Lender under the Credit
Agreement or any Loan Document, nor constitute a waiver of any Event of
Default, Unmatured Event of Default, condition or provision of the
Credit Agreement or any Loan Document, except as specifically set forth
herein. Except as specifically waived or amended above, the Credit
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed. The Borrower hereby
reaffirms its obligations under the Credit Agreement and all of the
other Loan Documents to which it is a party.
(b) Section headings in this Waiver and Amendment are included
herein for convenience of reference only and shall not constitute a
part of this Waiver and Amendment for any other purposes.
(c) This Waiver and Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an
original but all such counterparts shall constitute one and the same
instrument
6. Affirmation of Subsidiary Guarantors. By its signature set forth
below, each Subsidiary Guarantor hereby confirms to the Administrative Agent and
the Lenders that, after giving effect to this Waiver and Amendment and the
transactions contemplated hereby, the Subsidiary Guaranty of such Subsidiary
Guarantor and each other Loan Document to which such Subsidiary Guarantor is a
party continues in full force and effect and is the legal, valid and binding
obligation of such Subsidiary Guarantor, enforceable against such Subsidiary
Guarantor in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability.
7. Successors and Assigns. This Waiver and Amendment shall be binding
on and shall inure to the benefit of the Borrower, the Administrative Agent, the
Lenders and their respective successors and assigns; provided that the Borrower
may not assign its rights, obligations, duties or other interests hereunder
without the prior written consent of the Administrative Agent and the Lenders.
The terms and provisions of this Waiver and Amendment are for the purpose of
defining the relative rights and obligations of the Borrower, the Administrative
Agent and the Lenders with respect to the transactions contemplated hereby and
there shall be no third party beneficiaries of any of the terms and provisions
of this Waiver and Amendment.
3
8. Incorporation of Credit Agreement. The provisions contained in
Sections 12.4, 12.9 and 12.10 of the Credit Agreement are incorporated herein by
reference to the same extent as if reproduced herein in their entirety with
respect to this Waiver and Amendment.
9. Counterparts. This Waiver and Amendment may be executed in any
number of counterparts and by the different parties on separate counterparts,
and each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. Delivery
of an executed counterpart of a signature page to this Waiver and Amendment by
telecopy shall be effective as delivery of a manually executed counterpart of
this Waiver and Amendment.
[signature pages immediately follow]
4
IN WITNESS WHEREOF, this Waiver. has been duly executed as of the date first
written above.
GENCORP INC.
By: /s/ Yasmin R. Seyal
--------------------------------
YASMIN R. SEYAL
Senior Vice President, Finance
Signature Page to Waiver and Amendment
AEROJET-GENERAL CORPORATION,
as Subsidiary Guarantor
By: /s/ Yasmin R. Seyal
------------------------------------
Name: YASMIN R. SEYAL
Title: Treasurer
Signature Page to Waiver and Amendment
AEROJET ORDANCE TENNESSEE, INC., as
Subsidiary Guarantor, Assignor and Pledgor
By: /s/ Brian E. Sweeney
--------------------------------------
BRIAN E. SWEENEY
Vice President and Secretary
Signature Page to Waiver and Amendment
GENCORP PROPERTY INC., as Subsidiary
Guarantor, Assignor and Pledgor
By: /s/ Yasmin R. Seyal
------------------------------------
YASMIN R. SEYAL
Treasurer
Signature Page to Waiver and Amendment
PENN INTERNATIONAL INC., as Subsidiary
Guarantor, Assignor and Pledgor
By: /s/ Terry L. Hall
------------------------------------
TERRY L. HALL
President
Signature Page to Waiver and Amendment
GDX LLC, as Subsidiary Guarantor, Assignor and
Pledgor
By: /s/ Yasmin R. Seyal
------------------------------------------
YASMIN R. SEYAL
Treasurer
Signature Page to Waiver and Amendment
GDX AUTOMOTIVE INC.,
as Subsidiary Guarantor, Assignor and Pledgor
By: /s/ Yasmin R. Seyal
------------------------------------------
YASMIN R. SEYAL
Treasurer
Signature Page to Waiver and Amendment
BANKERS TRUST COMPANY,
as Lender, Administrative Agent and Collateral
Agent
By: /s/ Marguerite Sutton
------------------------------------------
Name: Marguerite Sutton
Title: Vice President
Signature Page to Waiver and Amendment
BANK ONE, NA,
as Lender
By: /s/ Karen C. Ryan
------------------------------------
Name: Karen C. Ryan
Title: Director
Signature Page to Waiver and Amendment
ABN AMRO Bank, N.V.,
as Lender
By: /s/ Terrence J. Ward
------------------------------------
Name: TERRENCE J. WARD
Title: Group Vice President
By: /s/ Wendy E. Pace
------------------------------------
Name: WENDY E. PACE
Title: Assistant Vice President
Signature Page to Waiver and Amendment
THE BANK OF NEW YORK,
as Lender
By: /s/ Lisa Y. Brown
------------------------------------
Name: LISA Y. BROWN
Title: Vice President & Division Head
Signature Page to Waiver and Amendment
NATIONAL CITY BANK,
as Lender
By: /s/ Tom Gurbach
------------------------------------
Name: Tom Gurbach
Title: Vice President
Signature Page to Waiver and Amendment
THE NORTHERN TRUST COMPANY,
as Lender
By: /s/ Joseph A. Wemhoff
------------------------------------
Name: JOSEPH A. WEMHOFF
Title: Vice President
Signature Page to Waiver and Amendment
WELLS FARGO BANK, N.A.,
as Lender
By: /s/ Rick A. Souza
------------------------------------
Name: Rick A. Souza
Title: Vice President
Signature Page to Waiver and Amendment
BANK OF NOVA SCOTIA, as Lender
By: /s/ Mark Sparrow
------------------------------------
Name: MARK SPARROW
Title: Director
Signature Page to Waiver and Amendment
FIRST UNION NATIONAL BANK,
as Lender
By: /s/ Frederick E. Blumer
------------------------------------
Name: FREDERICK E. BLUMER
Title: Vice President
Signature Page to Waiver and Amendment
LIMITED WAIVER
This LIMITED WAIVER (this "Waiver"), dated as of February 15, 2002, is
made among GENCORP INC., an Ohio corporation (the "Borrower"), BANKERS TRUST
COMPANY, for itself, as Lender and as Administrative Agent for the Lenders (the
"Administrative Agent"), and the other Lenders signatory to the hereinafter
defined Credit Agreement.
RECITALS
A. The Administrative Agent, the Lenders and the Borrower are
party to that certain Credit Agreement dated as of December 28, 2000 (as amended
by that certain Amendment No. 1 to Credit Agreement and Amendment No. 1 to Post
Closing Agreement dated as of January 26, 2001 ("Amendment No. 1"), by that
certain Amendment No. 2 to Credit Agreement, Amendment No. 2 to Post Closing
Agreement, Amendment No. 1 to Collateral Agreements and Limited Waiver dated as
of August 31, 2001 ("Amendment No. 2") and by that certain Limited Waiver and
Amendment dated as of December 31, 2001 (the "Limited Waiver and Amendment"))
(collectively, the "Credit Agreement"). Unless otherwise specified herein,
capitalized terms used in this Waiver shall have the meanings ascribed to them
by the Credit Agreement.
B. Pursuant to Amendment No. 2, the Borrower agreed to cause the
Revolving Commitment to be permanently reduced in part, and Revolving Loans
relating thereto to be repaid, on the earlier of 5:00 p.m. (New York City time)
(a) on October 15, 2001 or (b) the date of closing of the EIS Business Sale.
C. The Borrower, the Lenders and the Administrative Agent are
party to that certain Limited Waiver dated as of October 15, 2001, pursuant to
which the Lenders agreed to waive, for the period commencing October 15, 2001
and ending on October 31, 2001, any Event of Default or Unmatured Event of
Default arising solely out of the Borrower's breach of Section 2(b) of Amendment
No. 2 (the "Waived Section") as result of the Borrower's failure to permanently
reduce the Revolving Commitment and repay Revolving Loans, in part, as required
by the terms of said Section.
D. The Borrower, the Lenders and the Administrative Agent are
party to that certain Limited Waiver and Temporary Commitment Increase Agreement
dated as of November 20, 2001, pursuant to which (i) the Lenders agreed to
waive, for the period commencing October 31, 2001 and ending on December 31,
2001, any Event of Default or Unmatured Event of Default arising solely out of
the Borrower's breach of the Waived Section as result of the Borrower's failure
to permanently reduce the Revolving Commitment and repay Revolving Loans, in
part, as required by the terms of said Section and (ii) acting pursuant to
Section 2.8 of the Credit Agreement, the Borrower elected to increase the
aggregate Revolving Commitment by $2,833,333.33 (the "Revolving Commitment
Increase") to $152,833,333.33, on a temporary basis, and Bank One, NA agreed to
increase its Revolving Commitment by the Revolving Commitment Increase for the
period commencing October 31, 2001 and ending on December 31, 2001.
E. The Borrower, the Lenders and the Administrative Agent are
party to the Limited Waiver and Amendment, pursuant to which the Lenders agreed
to waive, for the period commencing December 31, 2001 and ending on February 15,
2002, any Event of Default or Unmatured Event of Default arising solely out of
the Borrower's breach of the Waived Section as result of the Borrower's failure
to permanently reduce the Revolving Commitment and repay Revolving Loans, in
part, as required by the terms of said Section.
F. By its terms, the Revolving Commitment Increase will terminate
on February 15, 2002 and the aggregate Revolving Commitment of the Lenders after
such date shall be equal to $150,000,000.
G. The Borrower has requested an extension of the limited waiver
of the Waived Section, and the Lenders are willing, on and subject to the terms
and conditions set forth below, to consent to such extension of the limited
waiver of the Waived Section, as provided below.
NOW, THEREFORE, in consideration of the premises and the mutual
execution hereof and other good and valuable consideration, the parties hereto
agree as follows:
1. Limited Waiver. The Lenders hereby waive, for the period
commencing February 15, 2002 and ending on the earlier of (i) the date on which
the Borrower has completed an unsecured subordinated debt or equity financing of
not less than $35,000,000 or (ii) March 8, 2002, any Event of Default or
Unmatured Event of Default arising solely out of the Borrower's breach of
Section 2(b) of Amendment No. 2 as result of the Borrower's failure to
permanently reduce the Revolving Commitment and repay Revolving Loans, in part,
as required by the terms of said Section. Upon expiration of the waiver set
forth in the preceding sentence without compliance by the Borrower with the
requirements specified therein, such waiver shall be automatically revoked and
the requirements of the Credit Agreement (as amended by Amendment No. 1,
Amendment No. 2 and the Limited Waiver and Amendment) waived thereby shall again
be in full force with retroactive effect to the dates specified in the Credit
Agreement (as amended by Amendment No. 1, Amendment No. 2 and the Limited Waiver
and Amendment). In such case, following such expiration and noncompliance as
described in the preceding sentences, the Administrative Agent and the Lenders
shall have all rights and remedies under the Credit Agreement (as amended by
Amendment No. 1, Amendment No. 2 and the Limited Waiver and Amendment) and any
other Loan Document or otherwise that the Administrative Agent and the Lenders
would have had if any such waiver had never been granted.
2. Representation and Warranty. As an inducement to the Lenders
to grant the foregoing waiver, the Borrower represents and warrants that, after
giving effect to this Waiver, as of the date hereof (a) there exists no Event of
Default or Unmatured Event of Default and (b) the representations and warranties
contained in the Credit Agreement and the other Loan Documents are true and
correct except to the extent any such representation or warranty is stated to
relate solely to an earlier date, in which case such representation or warranty
shall have been true and correct on and as of such earlier date.
3. Effective Time. This Waiver shall become effective upon the
execution and delivery hereof by the Borrower, the Administrative Agent and the
Required Lenders.
2
4. Miscellaneous.
(a) The execution, delivery and effectiveness of
this Waiver shall not operate as a waiver of any right, power or remedy
of the Administrative Agent or any Lender under the Credit Agreement or
any other Loan Document, or constitute a waiver of any Event of
Default, Unmatured Event of Default, condition or provision of the
Credit Agreement or any other Loan Document, except as specifically set
forth herein. Except as specifically waived above, the Credit Agreement
and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed. The Borrower hereby reaffirms its
obligations under the Credit Agreement and all of the other Loan
Documents to which it is a party.
(b) Section headings in this Waiver are included
herein for convenience of reference only and shall not constitute a
part of this Waiver for any other purposes.
(c) This Waiver may be executed in any number of
counterparts, each of which when so executed shall be deemed an
original but all such counterparts shall constitute one and the same
instrument
6. Affirmation of Subsidiary Guarantors. By its signature set
forth below, each Subsidiary Guarantor hereby confirms to the Administrative
Agent and the Lenders that, after giving effect to this Waiver and the
transactions contemplated hereby, the Subsidiary Guaranty of such Subsidiary
Guarantor and each other Loan Document to which such Subsidiary Guarantor is a
party continues in full force and effect and is the legal, valid and binding
obligation of such Subsidiary Guarantor, enforceable against such Subsidiary
Guarantor in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability.
7. Successors and Assigns. This Waiver shall be binding on and
shall inure to the benefit of the Borrower, the Administrative Agent, the
Lenders and their respective successors and assigns; provided that the Borrower
may not assign its rights, obligations, duties or other interests hereunder
without the prior written consent of the Administrative Agent and the Lenders.
The terms and provisions of this Waiver are for the purpose of defining the
relative rights and obligations of the Borrower, the Administrative Agent and
the Lenders with respect to the transactions contemplated hereby and there shall
be no third party beneficiaries of any of the terms and provisions of this
Waiver.
8. Incorporation of Credit Agreement. The provisions contained in
Sections 12.4, 12.9 and 12.10 of the Credit Agreement are incorporated herein by
reference to the same extent as if reproduced herein in their entirety with
respect to this Waiver.
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9. Counterparts. This Waiver may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument. Delivery of an
executed counterpart of a signature page to this Waiver by telecopy shall be
effective as delivery of a manually executed counterpart of this Waiver.
[signature pages immediately follow]
4
IN WITNESS WHEREOF, this Waiver has been duly executed as of the date
first written above.
GENCORP INC.
By: /s/ Yasmin R. Seyal
-------------------------------------
Name: YASMIN R. SEYAL
Title: Senior Vice President, Finance
Signature Page to GenCorp Waiver
AEROJET-GENERAL CORPORATION,
as Subsidiary Guarantor
By: /s/ Yasmin R. Seyal
-------------------------------------
Name: YASMIN R. SEYAL
Title: Treasurer
Signature Page to GenCorp Waiver
AEROJET ORDNANCE TENNESSEE, INC.,
as Subsidiary
By: /s/ Brian E. Sweeney
-------------------------------------
Name: Brian E. Sweeney
Title: Vice President and Secretary
Signature Page to GenCorp Waiver
PENN INTERNATIONAL INC, as Subsidiary
Guarantor
By: /s/ Yasmin R. Seyal
-------------------------------------
Name: YASMIN R. SEYAL
Title: Treasurer
Signature Page to GenCorp Waiver
GDX LLC, as Subsidiary Guarantor
By: /s/ Yasmin R. Seyal
-------------------------------------
Name: YASMIN R. SEYAL
Title: TREASURER
Signature Page to GenCorp Waiver
GDX AUTOMOTIVE INC.,
as Subsidiary Guarantor
By: /s/ Yasmin R. Seyal
-------------------------------------
Name: Yasmin R. Seyal
Title: Treasurer
Signature Page to GenCorp Waiver
GENCORP PROPERTY INC.,
as Subsidiary Guarantor
By: /s/ Yasmin R. Seyal
-------------------------------------
Name: Yasmin R. Seyal
Title: Treasurer
Signature Page to GenCorp Waiver
BANKERS TRUST COMPANY,
as Lender and Administrative Agent
By: /s/ Gregory Shefrin
-------------------------------------
Name: GREGORY SHEFRIN
Title: Director
Signature Page to GenCorp Waiver
BANK ONE, NA, as Lender
By: /s/ Karen C. Ryan
-------------------------------------
Name: KAREN C. RYAN
Title: Director
Signature Page to GenCorp Waiver
THE BANK OF NEW YORK, as Lender
By: /s/ Lisa Y. Brown
-------------------------------------
Name: LISA Y. BROWN
Title: Vice President & Division
Manager
Title:
Signature Page to GenCorp Waiver
NATIONAL CITY BANK, as Lender
By: /s/ Tom Gurbach
-------------------------------------
Name: TOM GURBACH
Title: Vice President
Signature Page to GenCorp Waiver
THE NORTHERN TRUST COMPANY,
as Lender
By: /s/ Melissa A. Whitson
-------------------------------------
Name: MELISSA A. WHITSON
Title: Vice President
Signature Page to GenCorp Waiver
WELLS FARGO BANK, N.A.,
as Lender
By: /s/ Rick A. Souza
-------------------------------------
Name: RICK A. SOUZA
Title: Vice President
Signature Page to GenCorp Waiver
ABN AMRO Bank N.V.,
as Lender
By: /s/ Terrence J. Ward
-------------------------------------
Name: TERRENCE J. WARD
Title: Group Vice President
By: /s/ Edward John Hill III
-------------------------------------
Name: EDWARD JOHN HILL III
Title: Assistant Vice President
Signature Page to GenCorp Waiver
Execution Copy
AMENDMENT NO. 4 TO CREDIT AGREEMENT AND WAIVER
This AMENDMENT NO. 4 TO CREDIT AGREEMENT AND WAIVER (this "Amendment
No. 4"), dated as of February 28, 2002 (the "Effective Date") is made among
GENCORP INC., an Ohio corporation ("Borrower"), BANKERS TRUST COMPANY, for
itself, as a Lender and as Administrative Agent for the Lenders ("Administrative
Agent"), and the other Lenders signatory to the hereinafter defined Credit
Agreement.
RECITALS
A. The Administrative Agent, the Lenders and the Borrower are
party to that certain Credit Agreement dated as of December 28, 2000 (as amended
by that certain Amendment No. 1 to Credit Agreement and Amendment No. 1 to Post
Closing Agreement dated as of January 26, 2001 ("Amendment No. 1"), that certain
Amendment No. 2 to Credit Agreement, Amendment No. 2 to Post Closing Agreement,
Amendment No. 1 to Collateral Agreements and Limited Waiver dated as of August
31, 2001 ("Amendment No. 2") and that certain Limited Waiver and Amendment dated
as of December 31, 2001 (the "Limited Waiver and Amendment")) (collectively with
Amendment No. 1, Amendment No. 2 and the Limited Waiver and Amendment, and as
further amended, restated, supplemented or otherwise modified from time to time,
the "Credit Agreement").
B. On and subject to the terms and conditions hereof, the
Administrative Agent, the Lenders and the Borrower wish to amend certain
provisions of the Credit Agreement (i) to add a Term C Facility under the Credit
Agreement and (ii) to reflect certain modifications to the Credit Agreement as
set forth herein, all subject to the express terms and conditions specified in
this Amendment No. 4 and, in connection with the actions contemplated by such
amendments, waive certain provisions of the Credit Agreement.
C. On and subject to the terms and conditions hereof, and in
order to cause the Term C Lenders to extend additional credit to the Borrower
through the addition of the Term C Facility, the Borrower wishes to grant to the
Administrative Agent, on behalf of the Initial Term C Lenders, on a first
priority basis, a collateral interest in certain real estate located in
California and Nevada and in certain additional collateral, all subject to the
terms and conditions specified in this Amendment No. 4.
D. On and subject to the terms and conditions hereof, and in
order to cause the Lenders to (i) forbear from enforcement of an Event of
Default resulting from the Borrower's failure to a maintain a certain maximum
leverage ratio or a certain minimum interest coverage, each as of the Borrower's
fiscal quarter ended November 30, 2001, and (ii) amend certain provisions of the
Credit Agreement, including, without limitation, the maximum leverage ratio, the
minimum interest coverage ratio and the fixed charge coverage ratio applicable
to the Borrower under the Credit Agreement as described herein, the Borrower
wishes to grant to the Administrative Agent certain collateral interests, which
shall be held on behalf of the Initial Term C Lenders, on a first priority
basis, and on behalf of certain additional Lenders, on a second or third
priority basis, as the case may be, all subject to the terms and conditions
specified in this Amendment No. 4.
E. This Amendment No. 4 shall constitute a Loan Document and
these Recitals shall be construed as part of this Amendment No. 4; capitalized
terms used herein without definition are so used as defined in the Credit
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto agree as follows:
1. Amendments to Credit Agreement. Subject to the conditions set forth
in Section 6 hereof, the Credit Agreement is hereby amended as follows:
(a) Section 1.1 of the Credit Agreement shall be amended
by deleting the lead-in paragraph to the definition of "Applicable Base
Rate Margin" and by inserting in lieu thereof the following:
""Applicable Base Rate Margin" means at any date, (i) with
respect to Revolving Loans and Term A Loans, the applicable
percentage set forth in the following table under the column
Applicable Base Rate Margin opposite the Most Recent Leverage
Ratio as of such date, (ii) with respect to Term B Loans,
2.25%, and (ii) with respect to Term C Loans, (A) 3.50% with
respect to Term C Loans with Interest Periods commencing on or
prior to June 28, 2002, (B) 4.00% with respect to Term C Loans
with Interest Periods commencing after June 28, 2002 but on or
prior to September 28, 2002, (C) 4.50% with respect to Term C
Loans with Interest Periods commencing after September 28,
2002 but on or prior to December 28, 2002, (D) 5.00% with
respect to Term C Loans with Interest Periods commencing after
December 28, 2002 but on or prior to March 28, 2003, (E) 5.50%
with respect to Term C Loans with Interest Periods commencing
after March 28, 2003 but on or prior to June 28, 2003, (F)
6.00% with respect to Term C Loans with Interest Periods
commencing after June 28, 2003 but on or prior to September
28, 2003, (G) 6.50% with respect to Term C Loans with respect
to Interest Periods commencing after September 28, 2003 but on
or prior to December 28, 2003, (H) 7.00% with respect to Term
C Loans with respect to Interest Periods commencing after
December 28, 2003 but on or prior to March 28, 2004 and (I)
7.50% with respect to Term C Loans with respect to Interest
Periods commencing after March 28, 2004:"
(b) Section 1.1 of the Credit Agreement shall be amended
by deleting the lead-in paragraph to the definition of "Applicable
Eurocurrency Margin" and by inserting in lieu thereof the following:
""Applicable Eurocurrency Margin" means at any date, (i) with
respect to Revolving Loans and Term A Loans, the applicable
percentage set forth in the following table under the column
Applicable Eurocurrency Margin opposite the Most Recent
Leverage Ratio on such date, (ii) with respect to Term B
Loans, 3.25%, and (iii) with respect to Term C Loans, (A)
4.50% with respect to Term C Loans with Interest Periods
commencing on or prior to June 28, 2002, (B) 5.00% with
respect to Term C Loans with Interest Periods commencing after
June 28, 2002 but on or prior to September 28, 2002, (C) 5.50%
with respect to Term C
2
Loans with Interest Periods commencing after September 28,
2002 but on or prior to December 28, 2002, (D) 6.00% with
respect to Term C Loans with Interest Periods commencing after
December 28, 2002 but on or prior to March 28, 2003, (E) 6.50%
with respect to Term C Loans with Interest Periods commencing
after March 28, 2003 but on or prior to June 28, 2003, (F)
7.00% with respect to Term C Loans with Interest Periods
commencing after June 28, 2003 but on or prior to September
28, 2003, (G) 7.50% with respect to Term C Loans with respect
to Interest Periods commencing after September 28, 2003 but on
or prior to December 28, 2003, (H) 8.00% with respect to Term
C Loans with respect to Interest Periods commencing after
December 28, 2003 but on or prior to March 28, 2004 and (I)
8.50% with respect to Term C Loans with respect to Interest
Periods commencing after March 28, 2004:"
(c) Section 1.1 of the Credit Agreement shall be amended
by deleting clause (ii) of the definition of "Asset Disposition" and by
inserting in lieu thereof the following:
"(ii) a sale, transfer or other disposition of real property
by the Borrower or any of its Subsidiaries as part of its
trade or business shall not constitute an "Asset Disposition"
for purposes of this Agreement (provided that such real estate
sales, transfers or other dispositions subject to this clause
(ii), individually or in the aggregate, shall not exceed
$40,000,000 in any Fiscal Year, and provided, further, that
for so long as the Term C Loans shall be outstanding, this
clause (ii) shall not apply)."
(d) Section 1.1 of the Credit Agreement shall be amended
by deleting the definitions of "Commitment", "Facility", "Interest
Payment Date", "Loan", "Maximum Commitment", "Scheduled Repayments",
"Term C Facility", "Term Loans" and "Total Commitment" in their
entirety and by inserting the following definitions of "Commitment",
"Facility", "Interest Payment Date", "Loan", "Maximum Commitment",
"Scheduled Repayments", "Term C Facility", "Term Loans" and "Total
Commitment" in lieu thereof in the appropriate alphabetical order:
"Commitment" means, with respect to each Lender, the aggregate
of the Revolving Commitment, the Term A Commitment, the Term B
Commitment and the Term C Commitment of such Lender and
"Commitments" means such commitments of all of the Lenders
collectively."
"Facility" means any of the credit facilities established
under this Agreement, i.e., the Term A Facility, the Term B
Facility, the Term C Facility or the Revolving Facility."
"Interest Payment Date" means (i) as to any Base Rate Loan,
each Quarterly Payment Date to occur while such Loan is
outstanding, (ii) as to any Eurocurrency Loan, the last day of
the Interest Period applicable thereto and (iii) as to any
Eurocurrency Loan having an Interest Period longer than three
months, each three (3) month anniversary of the first day of
the Interest Period applicable thereto and the last day of the
Interest Period applicable thereto; provided,
3
however, that, in addition to the foregoing, each of (A) the
date upon which both the Revolving Commitments have been
terminated and the Revolving Loans have been paid in full and
(B) the Term A Loan Maturity Date, the Term B Loan Maturity
Date and the Term C Loan Maturity Date shall be deemed to be
an "Interest Payment Date" with respect to any interest which
is then accrued hereunder for such Loan."
"Loan" means any Term A Loan, Term B Loan, Term C Loan,
Revolving Loan or Swing Line Loan and "Loans" means all such
Loans collectively."
"Maximum Commitment" means, when used with reference to any
Lender, the aggregate of such Lender's Term A Commitment, its
Term B Commitment, its Term C Commitment, and its Revolving
Commitment in the amounts not to exceed those set forth
opposite the name of such Lender on Schedule 1.1(a) hereto,
subject to reduction from time to time in accordance with the
terms of this Agreement."
"Scheduled Repayments" means a Scheduled Term A Repayment, a
Scheduled Term B Repayment or a Scheduled Term C Repayment."
"Term C Facility" means the credit facility under this
Agreement evidenced by the Term C Commitments and the Term C
Loans."
"Term Loans" means the Term A Loans, the Term B Loans and the
Term C Loans collectively."
"Total Commitment" means, at the time any determination
thereof is made, the sum of the Term A Commitments, Term B
Commitments, Term C Commitments and the Revolving Commitments
at such time."
(e) Section 1.1 of the Credit Agreement is amended by
inserting the definitions of "1900 Lease", "AFC Assets", "AFC
Collateral", "Amendment No. 4", "Assignment and Pledge Collateral",
"California Collateral Valuation", "California Collateral Valuation
Date", "Equity Capital", "Elliott Note", "Elliott Note Assignment and
Pledge", "Fourth Amendment Effective Date", "Initial Term C Lenders",
"Mortgaged California Real Estate", "Mortgaged Nevada/California Real
Estate", "Nevada/California Collateral Valuation", "Nevada/California
Collateral Valuation Date", "Scheduled Term C Repayments", "Second
Drawing Amount," "Second Term C Lenders", "Subordinated Notes",
"Subordinated Notes Issue Date", "Term C Commitment", "Term C
Commitment Increase Amount", "Term C Lender", "Term C Lenders", "Term C
Loan", "Term C Loan Maturity Date", "Term C Note", "Term C Percentage"
and "Term C Pro Rata Share" in the appropriate alphabetical order:
"1900 Lease" means that certain Lease dated March 1, 1995, by
and between Aerojet and the State of California, acting by and
through the Director of the Department of General Services, as
such agreement may be modified or amended in accordance with
the terms thereof and hereof."
4
"AFC Assets" means all right, title and interest of AFC in, to
and under all of the following, whether now existing or
hereafter from time to time acquired, (i) each and every
receivable, (ii) all contracts, together with all contract
rights, (iii) all inventory, (iv) all equipment, (v) all
trademarks, together with the registrations and right to all
renewals thereof, and the goodwill of the business of AFC
symbolized by the trademarks, (vi) all patents and copyrights,
and all reissues, renewals or extensions thereof, (vii) all
software of AFC and all intellectual property rights therein
and all other proprietary information of AFC, including, but
not limited to, trade secrets, (viii) all other goods, general
intangibles, chattel paper, documents, investment property and
instruments, (ix) all supporting obligations and
letters-of-credit rights, (x) all cash, accounts, deposits,
deposit accounts, securities and insurance policies now or at
any time hereafter in the possession or under control of AFC
or its respective bailees and any interest thereon, (xi) all
other personal property of AFC, whether now owned or hereafter
acquired, (xii) all documents of title evidencing or issued
with respect to any of the foregoing, and (xiii) all proceeds
and products of any and all of the foregoing (including,
without limitation, all insurance and claims for insurance
effected or held for the benefit of AFC in respect thereof)."
"AFC Collateral" has the meaning assigned to that term in
Section 7.19(a)(i)."
"Amendment No. 4" means that certain Amendment No. 4 to Credit
Agreement and Waiver dated as of February 28, 2002, by and
among the Borrower, the Administrative Agent for the Lenders,
and the other Lenders signatory to the Credit Agreement."
"Assignment and Pledge Collateral" has the meaning assigned to
that term in Section 7.19(a)(ii)."
"California Collateral Valuation" means, as of the California
Collateral Valuation Date, the fair market value of the
Mortgaged California Real Estate as reflected in the appraisal
delivered to the Administrative Agent and the Term C Lenders
pursuant to Section 7.19(c)."
"California Collateral Valuation Date" has the meaning
assigned to that term in Section 7.19(c)."
"Equity Capital" means an equity contribution to the Borrower
by a third party which shall be evidenced through an issuance
of Capital Stock by the Borrower and/or any of its
Subsidiaries, the proceeds of which shall be applied in
accordance with Section 4.4(o)."
"Elliott Note" means that certain Promissory Note dated
November 28, 2001 from Elliott Whiterock, LLC in favor of
Aerojet Investments Ltd. in the principal amount of
$20,900,625.00, as secured by that certain Deed of Trust with
5
Assignment of Rents dated November 29, 2001, as such
Promissory Note or Deed may be amended or modified in
accordance with the term thereof and hereof."
"Elliott Note Assignment and Pledge" means, collectively, (i)
that certain endorsement of the Elliot Note dated as of the
Fourth Amendment Effective Date from Aerojet Investments Ltd.
in favor of the Collateral Agent on behalf of the Secured
Creditors, and (ii) that certain Assignment of Deed of Trust
and Secured Indebtedness dated as of the Fourth Amendment
Effective Date from Aerojet Investments Ltd. in favor of the
Collateral Agent on behalf of the Secured Creditors, as such
endorsement or assignment may be amended or modified in
accordance with the term thereof and hereof."
"Fourth Amendment Effective Date" means February 28, 2002."
"Initial Term C Lenders" has the meaning assigned to that term
in Section 2.1(e)(i)."
"Mortgaged California Real Estate" has the meaning assigned to
that term in Section 7.19(a)(iv)."
"Mortgaged Nevada/California Real Estate" has the meaning
assigned to that term in Section 7.19(a)(iii)."
"Nevada/California Collateral Valuation" means, as of the
Nevada/California Collateral Valuation Date, the fair market
value of the Mortgaged Nevada/California Real Estate, the
Elliot Note and the 1900 Lease, all as reflected in the
appraisal (or appraisals) delivered to the Administrative
Agent and the Initial Term C Lenders pursuant to Section
7.19(b)."
"Nevada/California Collateral Valuation Date" has the meaning
assigned to that term in Section 7.19(b)."
"Scheduled Term C Repayments" means, with respect to principal
payments on the Term C Loans, the Dollar amount payable on
each Quarterly Payment Date, commencing on June 28, 2002 (as
such amount may be reduced from time to time pursuant to
Sections 4.3 and 4.4), equal to 2.5% of the principal amount
of the Term C Loans; provided, that the last of such principal
payments shall be in an amount equal to the aggregate
principal amount of the Term C Loans outstanding on the Term C
Loan Maturity Date."
"Second Drawing Amount" has the meaning assigned to that term
in Section 2.1(e)(ii)."
"Second Term C Lenders" has the meaning assigned to that term
in Section 2.1(e)(ii)."
6
"Subordinated Notes" means, collectively, those certain
unsecured subordinated notes to be issued by the Borrower in a
maximum principal amount which shall not exceed $70,000,000 at
any one time outstanding, as the same may be amended,
restated, supplemented or otherwise modified from time to time
as permitted hereunder; provided, that warrants, if any,
issued by the Borrower, directly or indirectly, to the holders
of such unsecured subordinated notes shall not constitute
"Subordinated Notes" for purposes of this definition and shall
not be considered in the calculation of the dollar limitation
described herein."
"Subordinated Notes Issue Date" means the date of issuance of
the Subordinated Notes by the Borrower."
"Term C Commitment" means, with respect to any Term C Lender,
the principal amount set forth opposite such Lender's name on
Schedule 1.1(a) hereto or in any Assignment and Assumption
Agreement under the caption "Amount of Term C Commitment", as
such commitment may be adjusted from time to time pursuant to
this Agreement, and "Term C Commitments" means such
commitments collectively, which commitments equal $25,000,000
in the aggregate as of the date hereof."
"Term C Commitment Increase Amount" has the meaning assigned
to that term in Section 2.1(e)."
"Term C Lender" means any Lender (which for all purposes shall
include the Second Term C Lenders) which has a Term C
Commitment or is owed a Term C Loan (or a portion thereof)."
"Term C Lenders" means, collectively, all of the Term C
Lenders (which for all purposes shall include the Second Term
C Lenders)."
"Term C Loan" and "Term C Loans" have the meanings assigned to
those terms in Section 2.1(e)."
"Term C Loan Maturity Date" means December 28, 2002; provided,
however, that in the event the Borrower has completed an
unsecured subordinated debt or equity financing of not less
than $35,000,000 on or prior to December 28, 2002 in
accordance with the terms of this Agreement, the Term C Loan
Maturity Date shall be amended, on the date of completion of
such financing, to be December 28, 2004 without any further
action on the part of the Term C Lenders or any other Lender
party to this Agreement."
"Term C Note" and "Term C Notes" have the meanings assigned to
those terms in Section 2.2(a)."
"Term C Percentage" means, at any time, a fraction (expressed
as a percentage) the numerator of which is equal to the
aggregate principal amount of all Term C Loans outstanding at
such time and the denominator of which is equal to the
7
aggregate principal amount of all Term Loans outstanding at
such time."
"Term C Pro Rata Share" means, when used with reference to any
Term C Lender and any described aggregate or total amount, an
amount equal to the result obtained by multiplying such
described aggregate or total amount by a fraction the
numerator of which shall be such Term C Lender's then
outstanding Term C Loan and the denominator of which shall be
all then outstanding Term C Loans."
(f) Section 2.1 of the Credit Agreement shall be amended
by inserting the following new subsection (e) immediately after
subsection (d) thereof:
"(e) Term C Loans. (i) Each Term C Lender, severally
and for itself alone, hereby agrees, on the terms and subject
to the conditions hereinafter set forth and in reliance upon
the representations and warranties set forth herein and in the
other Loan Documents, to make a loan (each such loan, a "Term
C Loan" and collectively, the "Term C Loans") to the Borrower
on the Fourth Amendment Effective Date in an aggregate
principal amount equal to the Term C Commitment of such Term C
Lender (the Term C Lenders making loans on the Fourth
Amendment Effective Date shall be collectively referred to
herein as the "Initial Term C Lenders"). The Term C Loans (1)
shall be incurred by the Borrower pursuant to a single
drawing, which shall be on the Fourth Amendment Effective Date
(and the Borrower is hereby deemed to have requested the Term
C Loans be advanced on the Fourth Amendment Effective Date and
the Term C Lenders hereby waive the delivery of a written
Notice of Borrowing from the Borrower in connection with the
initial funding of Term C Loans on the Fourth Amendment
Effective Date), (2) shall be denominated in Dollars, (3)
shall be made as Base Rate Loans and, except as hereinafter
provided, may, at the option of the Borrower, be maintained as
and/or converted into Base Rate Loans or Eurocurrency Loans,
provided, that all Term C Loans made by the Term C Lenders
pursuant to the same Borrowing shall, unless otherwise
specifically provided herein, consist entirely of Term C Loans
of the same Type and (4) shall not exceed for any Lender at
the time of incurrence thereof, such Term C Lender's Term C
Commitment. Each Term C Lender's Term C Commitment shall
expire immediately and without further action on the Fourth
Amendment Effective Date if the Term C Loans are not made on
such date. No amount of a Term C Loan which is repaid or
prepaid by the Borrower may be reborrowed hereunder.
Notwithstanding anything to the contrary herein, the Borrower
may elect only Base Rate Loans or Eurocurrency Loans with a
one month Interest Period until the earlier of (x) ninety (90)
days after the Fourth Amendment Effective Date or (y) the date
upon which the Administrative Agent determines (and notifies
the Borrower) that the primary syndication (and the resultant
addition of Persons as Lenders pursuant to Section 12.8) has
been completed.
(ii) On or prior to March 28, 2002 and so long as no
Event of Default or Unmatured Event of Default has occurred
and is continuing, the Borrower may, upon 10 Business Days'
prior written notice to the Administrative Agent, request on
one occasion that the Term C Commitment be increased by any or
all of the
8
Lenders party to this Agreement as of the date of such
request; provided that (i) no Lender shall be under any
obligation to increase its Term C Commitment or to participate
in the Term C Facility, and (ii) the aggregate amount of any
increase in the Term C Commitment (the "Term C Commitment
Increase Amount") shall not exceed $25,000,000 (the "Second
Drawing Amount"). Such notice shall (A) specify the requested
Term C Commitment Increase Amount; and (B) specify the
effective date of such Term C Commitment increase, which date
shall not be less than 10 Business Days following the date of
such written notice. Any increase in the Term C Commitment
hereunder is subject to the conditions precedent that the
Borrower and the Lenders participating in the Term C
Commitment Increase Amount (collectively, the "Second Term C
Lenders") shall have executed and delivered any documentation
reasonably required by the Administrative Agent to evidence
such increase of the Term C Commitment hereunder. The
documentation of the Term C Commitment Increase Amount shall
reflect such terms and conditions as agreed to by the Borrower
and the Second Term C Lenders, including, without limitation,
the pro rata sharing with the Second Term C Lenders of the
first priority security interest of the Initial Term C Lenders
in the AFC Collateral, the Assignment and Pledge Collateral,
the Mortgaged Nevada/California Real Estate and the Mortgaged
California Real Estate. On the date that the event described
in this Section 2.1(e) become effective, Schedule 1.1(a) shall
be deemed modified to reflect the revised Term C Commitment.
Notwithstanding any other provision of this Agreement, until
such time as the increase in the Term C Commitment described
herein shall have been requested by the Borrower or otherwise
terminated in accordance with the terms of this subclause
(ii), the Borrower shall be prohibited from requesting any
increase in the Revolving Commitment or the Term A Commitment
pursuant to Section 2.8 of the Credit Agreement.
(iii) To the extent the Term C Commitment Increase
Amount is provided to the Borrower pursuant to subclause (ii)
above, the Term C Loans made pursuant to the aggregate Term C
Commitment Increase Amount (i) shall be incurred by the
Borrower pursuant to a single drawing subject to the
conditions set forth in this Section 2.1(e), (ii) shall be
denominated in Dollars, (iii) shall be made as Base Rate Loans
and, except as hereinafter provided, may, at the option of the
Borrower, be maintained as and/or converted into Base Rate
Loans or Eurocurrency Loans, provided, that all Term C Loans
made by the Term C Lenders pursuant to the same Borrowing
shall, unless otherwise specifically provided herein, consist
entirely of Term C Loans of the same Type and (iv) shall not
exceed for any Second Term C Lender at the time of incurrence
thereof such Second Term C Lender's portion of the Term C
Commitment Increase Amount. To the extent made available
pursuant to subclause (ii) above, each Second Term C Lender's
portion of the Term C Commitment Increase Amount shall expire
immediately and without further action on March 28, 2002 if
the Term C Loans with respect to the Term C Commitment
Increase Amount are not made on or before such date.
Notwithstanding anything in this Agreement to the contrary, in
no event shall the Second Term C Lenders make a loan to the
Borrower under the Term C Commitment Increase Amount until
such time as (i) the Borrower has
9
completed an unsecured subordinated debt or equity financing
of not less than the principal amount of $35,000,000 on or
prior to the date of funding of the Second Drawing Amount, on
terms and conditions satisfactory to the Administrative Agent,
(ii) no Unmatured Event of Default or Event of Default has
occurred and is continuing, (iii) the Borrower's final report
on Form 10-K for Fiscal Year ending November 30, 2001 (the
"2001 Form 10-K") has been filed with the SEC, and (iv) Ernst
& Young LLP, the Borrower's independent public accountants,
have not qualified their audit report in any material respect
as to the reliability of the financial statements set forth in
the 2001 Form 10-K."
(g) Subsection (a) of Section 2.2 of the Credit Agreement
shall be amended by (i) deleting the word "and" immediately before the
phrase "(4) if Swing Line Loans," and inserting "," in lieu thereof,
and (ii) inserting immediately prior to the period at the end of such
sentence, the phrase "and (5) if Term C Loans, by a promissory note
(each, a "Term C Note" and, collectively, the "Term C Notes") duly
executed and delivered by the Borrower substantially in the form of
Exhibit 2.2(a)(5) hereto, with blanks appropriately completed in
conformity herewith."
(h) Section 2.6 of the Credit Agreement shall be amended
by inserting immediately after the fourth sentence thereof, the
following sentence:
"Each conversion or continuation of Term C Loans shall be
allocated among the Term C Loans of the Term C Lenders in
accordance with their respective Term C Pro Rata Shares."
(i) Section 2.7 of the Credit Agreement shall be amended
by deleting the first sentence thereof in its entirety and inserting
the following in lieu thereof:
"No later than 1:00 p.m. (local time at the place of funding)
on the date specified in each Notice of Borrowing, each Lender
will make available its Term A Pro Rata Share of Term A Loans,
Term B Pro Rata Share of Term B Loans, Term C Pro Rata Share
of Term C Loans and Revolver Pro Rata Share of Revolving
Loans, as the case may be, of the Borrowing requested to be
made on such date in Dollars or Euro, as the case may be, and
in immediately available funds, at the Payment Office (for the
account of such non-U.S. office of the Administrative Agent as
the Administrative Agent may direct in the case of
Eurocurrency Loans) and the Administrative Agent will make
available to the Borrower at its Payment Office the aggregate
of the amounts so made available by the Lenders not later than
2:00 p.m. (local time in the place of payment)."
(j) Section 2.7 of the Credit Agreement shall be amended
by deleting the third to last sentence thereof in its entirety and
inserting the following in lieu thereof:
"Further, such Lender shall be deemed to have assigned any and
all payments made of principal and interest on its Loans,
amounts due with respect to its Letters of Credit (or its
participations therein) and any other amounts due to it
hereunder first to the Administrative Agent to fund any
outstanding Loans made
10
available on behalf of such Lender by the Administrative Agent
pursuant to this Section 2.7 until such Loans have been funded
(as a result of such assignment or otherwise) and then to fund
Loans of all Lenders other than such Lender until each Lender
has outstanding Loans equal to its Term A Pro Rata Share of
all Term A Loans, its Term B Pro Rata Share of all Term B
Loans, its Term C Pro Rata Share of all Term C Loans, and its
Revolver Pro Rata Share of all Revolving Loans (as a result of
such assignment or otherwise)."
(k) Section 2.9 of the Credit Agreement shall be amended
by deleting the first sentence thereof in its entirety and inserting
the following in lieu thereof:
"All Borrowings of Term A Loans, Term B Loans, Term C Loans
and Revolving Loans under this Agreement shall be loaned by
the Lenders pro rata on the basis of their Term A Commitments,
Term B Commitments, Term C Commitments and Revolving
Commitments, as the case may be."
(l) Subsection (vi) of Section 3.4 of the Credit
Agreement shall be deleted in its entirety and the following is
substituted in lieu thereof:
"(vi) no Interest Period shall extend beyond the Term
A Loan Maturity Date for any Term A Loan, the Term B Loan
Maturity Date for any Term B Loan, the Term C Loan Maturity
Date for any Term C Loan, or the Revolver Termination Date for
any Revolving Loan; and"
(m) Subsection (vii) of Section 3.4 of the Credit
Agreement shall be deleted in its entirety and the following is
substituted in lieu thereof:
"(vii) no Interest Period in respect to any Borrowing
of Term A Loans, Term B Loans or Term C Loans, as the case may
be, shall be selected which extends beyond any date upon which
a mandatory repayment of such Term Loans will be required to
be made under Section 4.4(b), (c) or (l), as the case may be,
if the aggregate principal amount of Term A Loans, Term B
Loans or Term C Loans, as the case may be, which have Interest
Periods which will expire after such date will be in excess of
the aggregate principal amount of Term A Loans, Term B Loans
or Term C Loans, as the case may be, then outstanding less the
aggregate amount of such required prepayment."
(n) Subsection (b) of Section 4.2 of the Credit Agreement
shall be deleted in its entirety and the following is substituted in
lieu thereof:
"(b) Reduction of Term A Commitments, Term B
Commitments and Term C Commitments. The Term A Commitments and
Term B Commitments shall terminate on the Initial Borrowing
Date, after giving effect to the Borrowing of the Term A Loans
and Term B Loans on such date. The Term C Commitments shall
terminate on the Fourth Amendment Effective Date after giving
effect to the Borrowing of the Term C Loans on such date;
provided, however, that in the event of an increase in the
Term C Commitments pursuant to Section 2.1(e), the
11
Term C Commitment Increase Amount shall terminate on the
earlier of (i) the date of the initial funding of Term C Loans
made under the Term C Commitment Increase Amount or (ii) March
28, 2002, in either case, after giving effect to the Borrowing
of Term C Loans on such date."
(o) Subsection (c) of Section 4.2 of the Credit Agreement
shall be deleted in its entirety and the following is substituted in
lieu thereof:
"(c) Proportionate Reductions. Each reduction or
adjustment to the Term Commitments or the Revolving
Commitments pursuant to this Section 4.2 shall apply
proportionately to the Term A Commitment, the Term B
Commitment, the Term C Commitment or the Revolving Commitment,
as the case may be, of each Lender."
(p) Subsection (d) of Section 4.2 of the Credit Agreement
shall be deleted in its entirety and the following is substituted in
lieu thereof:
"(d) Reduction of Commitments. The Commitments (other
than the Term C Commitment) will terminate in their entirety
on January 31, 2001 unless the Initial Borrowing Date has
occurred on or before such date. The Term C Commitment will
terminate in its entirety on the Fourth Amendment Effective
Date after giving effect to the initial Borrowing of the Term
C Loans on such date; provided, however, that in the event of
an increase in the Term C Commitments pursuant to Section
2.1(e), the Term C Commitment Increase Amount shall terminate
on the earlier of (i) the date of the initial funding of Term
C Loans made under the Term C Commitment Increase Amount or
(ii) March 28, 2002, in either case, after giving effect to
the Borrowing of Term C Loans on such date."
(q) Subclause (v) of Section 4.3(a) of the Credit
Agreement shall be deleted in its entirety and the following is
substituted in lieu thereof:
"(v) each voluntary prepayment of Term Loans shall be applied
first to the Scheduled Term C Repayments due within the 12
month period following the date of such prepayment in direct
order of maturity and, thereafter, shall be applied (in each
case, after giving effect to the prepayments made to the
Scheduled Term C Repayments due within such twelve month
period as specified above) to reduce the remaining Scheduled
Term C Repayments on a pro rata basis (based upon the then
remaining principal amount of such Scheduled Term C
Repayments) and, second to the Scheduled Term A Repayments and
Scheduled Term B Repayments due within the 12 month period
following the date of such prepayment in direct order of
maturity and, thereafter, subject to Section 4.5(c) shall be
applied in proportional amounts equal to the Term A Percentage
and the Term B Percentage (in each case, after giving effect
to the prepayments made to the Scheduled Term A Repayments and
the Scheduled Term B Repayments due within such twelve month
period as specified above), as the case may be, of such
remaining prepayment, if any, and within each Term Loan, shall
be applied to
12
reduce the remaining Scheduled Term A Repayments and Scheduled
Term B Repayments on a pro rata basis (based upon the then
remaining principal amount of such Scheduled Term A Repayments
and Scheduled Term B Repayments, respectively)."
(r) The last sentence of Section 4.4(d) of the Credit
Agreement shall be deleted in its entirety and the following is
substituted in lieu thereof:
"Notwithstanding the foregoing or the terms of Section 4.5(a),
if, as of the date of any prepayment from Net Sale Proceeds
required pursuant to this Section 4.4(d), (A) the Borrower has
repaid in full all principal and interest on the Term B Loans
and on the Term C Loans and no amounts remain outstanding to
any Term B Lender with respect to the Term B Loans or to any
Term C Lender with respect to the Term C Loans and (B) the
Leverage Ratio of the Borrower, calculated for the Test Period
ending on the last day of the most recently ended Fiscal
Quarter, is less than 2.50 to 1.00, the Borrower may elect, in
its sole discretion, to apply 100% of such Net Sale Proceeds
(x) to purchase assets used or to be used in the businesses
referred to in Section 8.9, (y) to repay, pro rata, Term A
Loans or (z) to repay, pro rata, Revolving Loans (without a
permanent reduction of the Revolving Commitments)."
(s) Subsection (f) of Section 4.4 of the Credit Agreement
shall be deleted in its entirety and the following is substituted in
lieu thereof:
"(f) Mandatory Payment With Proceeds of Capital Stock. On the
first Business Day after receipt thereof by the Borrower
and/or any of their Subsidiaries, an amount equal to 100% of
the Net Offering Proceeds of the sale or issuance of Capital
Stock of (or cash capital contributions to) the Borrower or
any of their Subsidiaries shall be applied as a mandatory
repayment of principal of the Term Loans pursuant to the terms
of Section 4.5(a) (in each case subject to modification of
such application as set forth in Section 4.5(c)); provided,
however, that notwithstanding the foregoing, Net Offering
Proceeds derived from the issuance of Capital Stock in
accordance with the Equity Capital shall first be applied in
accordance with Section 4.4(o). Notwithstanding the foregoing
or the terms of Section 4.5(a), if, as of the date of any
prepayment from Net Offering Proceeds required pursuant to
this Section 4.4(f), (A) the Borrower has repaid in full all
principal and interest on the Term B Loans and on the Term C
Loans and no amounts remain outstanding to any Term B Lender
with respect to the Term B Loans or to any Term C Lender with
respect to the Term C Loans and (B) the Leverage Ratio of the
Borrower, calculated for the Test Period ending on the last
day of the most recently ended Fiscal Quarter, is less than
2.50 to 1.00, the Borrower may elect, in its sole discretion,
to apply 100% of such Net Offering Proceeds (x) to purchase
assets used or to be used in the businesses referred to in
Section 8.9, (y) to repay, pro rata, Term A Loans or (z) to
repay, pro rata, Revolving Loans (without a permanent
reduction of the Revolving Commitments)."
13
(t) The last sentence of Section 4.4(g) of the Credit
Agreement shall be deleted in its entirety and the following is
substituted in lieu thereof:
"Notwithstanding the foregoing or the terms of Section 4.5(a),
if, as of the date of any prepayment from net cash proceeds of
a Sale and Leaseback Transaction required pursuant to this
Section 4.4(g), (A) the Borrower has repaid in full all
principal and interest on the Term B Loans and on the Term C
Loans and no amounts remain outstanding to any Term B Lender
with respect to the Term B Loans or to any Term C Lender with
respect to the Term C Loans and (B) the Leverage Ratio of the
Borrower, calculated for the Test Period ending on the last
day of the most recently ended Fiscal Quarter, is less than
2.50 to 1.00, the Borrower may elect, in its sole discretion,
to apply 100% of such net cash proceeds (x) to purchase assets
used or to be used in the businesses referred to in Section
8.9, (y) to repay, pro rata, Term A Loans or (z) to repay, pro
rata, Revolving Loans (without a permanent reduction of the
Revolving Commitments)."
(u) The last sentence of Section 4.4(h) of the Credit
Agreement shall be deleted in its entirety and the following is
substituted in lieu thereof:
"Notwithstanding the foregoing or the terms of Section 4.5(a),
if, as of the date of any prepayment from Net Offering
Proceeds required pursuant to this Section 4.4(h), (A) the
Borrower has repaid in full all principal and interest on the
Term B Loans and on the Term C Loans and no amounts remain
outstanding to any Term B Lender with respect to the Term B
Loans or to any Term C Lender with respect to the Term C Loans
and (B) the Leverage Ratio of the Borrower, calculated for the
Test Period ending on the last day of the most recently ended
Fiscal Quarter, is less than 2.50 to 1.00, the Borrower may
elect, in its sole discretion, to apply 100% of such Net
Offering Proceeds (x) to purchase assets used or to be used in
the businesses referred to in Section 8.9, (y) to repay, pro
rata, Term A Loans or (z) to repay, pro rata, Revolving Loans
(without a permanent reduction of the Revolving Commitments)."
(v) Section 4.4(i) of the Credit Agreement shall be
amended by deleting the amount of "10,000,000" in the proviso thereto
and inserting in lieu thereof the amount of "15,000,000".
(w) The last sentence of Section 4.4(j) of the Credit
Agreement shall be deleted in its entirety and the following is
substituted in lieu thereof:
"Notwithstanding the foregoing or the terms of Section 4.5(a),
if, as of the date of any prepayment from net proceeds of any
Recovery Event required pursuant to this Section 4.4(j), (A)
the Borrower has repaid in full all principal and interest on
the Term B Loans and on the Term C Loans and no amounts remain
outstanding to any Term B Lender with respect to the Term B
Loans or to any Term C Lender
14
with respect to the Term C Loans and (B) the Leverage Ratio of
the Borrower, calculated for the Test Period ending on the
last day of the most recently ended Fiscal Quarter, is less
than 2.50 to 1.00, the Borrower may elect, in its sole
discretion, to apply 100% of such net proceeds (x) to purchase
assets used or to be used in the businesses referred to in
Section 8.9, (y) to repay, pro rata, Term A Loans or (z) to
repay, pro rata, Revolving Loans (without a permanent
reduction of the Revolving Commitments)."
(x) Section 4.4 of the Credit Agreement shall be amended
by inserting the following new subsections (l), (m) and (n) immediately
after subsection (k) thereof:
"(l) Scheduled Term C Repayments. The Borrower shall
cause to be paid Scheduled Term C Repayments on the Term C
Loans until the Term C Loans are paid in full in the amounts
and at the times specified in the definition of Scheduled Term
C Repayments to the extent that prepayments have not
previously been applied to such Scheduled Term C Repayments
(and such Scheduled Term C Repayments have not otherwise been
reduced) pursuant to the terms hereof. To the extent not
previously paid, all Term C Loans shall be due and payable on
the Term C Maturity Date.
(m) Mandatory Prepayment Upon Nevada/California
Collateral Valuation. To the extent that the Nevada/California
Collateral Valuation reflects an aggregate fair market value
of less than $50,000,000, on the Business Day following the
Nevada/California Collateral Valuation Date, the Borrower
shall cause to be paid all outstanding Term C Loans and shall
cause the Term C Commitments (to the extent not otherwise
terminated) to be permanently reduced in whole as provided in
Section 4.5(a).
(n) Mandatory Prepayment Upon California Collateral
Valuation. To the extent that the California Collateral
Valuation reflects an aggregate fair market value of less than
$100,000,000, on the Business Day following the California
Collateral Valuation Date, the Borrower shall cause to be paid
all outstanding Term C Loans and shall cause the Term C
Commitments (to the extent not otherwise terminated) to be
permanently reduced in whole as provided in Section 4.5(a).
(o) Mandatory Prepayment Upon Issuance of
Subordinated Notes or Equity Capital. On the Business Day of
receipt thereof by the Borrower, an amount equal to 100% of
the sum of the Net Offering Proceeds of (x) the Subordinated
Notes and (y) the Equity Capital (provided, however, that in
no amount shall the Net Offering Proceeds applied under this
Section 4.4(o) exceed $70,000,000) shall be applied as a
mandatory prepayment to repay outstanding Revolving Loans pro
rata (without a permanent reduction of the Revolving
Commitments). Amounts, if any, remaining after the prepayment
described in the preceding sentence (including, without
limitation, Net Offering Proceeds in excess of the $70,000,000
limitation applicable to this Section 4.4(o) as described
15
above) shall be applied in accordance with the terms of this
Agreement, including, without limitation, the other mandatory
prepayment provisions of this Section 4.4, as applicable."
(y) Section 4.5(a) of the Credit Agreement shall be
deleted in its entirety and the following is substituted in lieu
thereof:
"(a) Prepayments. Subject in all events to the final
proviso set forth in Section 4.4(d), (f), (g), (h) and (j) and
except as otherwise expressly provided in Section 4.4(d), (j),
(k), (m), (n) and (o), all prepayments of principal made by
the Borrower pursuant to Section 4.4 (other than with respect
to 4.4(b), (c) and (l)) shall be applied to repay, first, the
Term C Loans, and second, the Term A Loans and the Term B
Loans (with the Term A Percentage of such repayment to be
applied as a repayment of Term A Loans and the Term B
Percentage of such repayment to be applied as a repayment of
Term B Loans). Any prepayment of Loans pursuant to Section
4.4(d) and (j) shall be applied (i) first, to the payment of
the unpaid principal amount of the Term C Loans, second, to
the payment of the unpaid principal amount of the Term A Loans
and the Term B Loans (with the Term A Percentage of such
repayment to be applied as a repayment of Term A Loans and the
Term B Percentage of such repayment to be applied as a
repayment of Term B Loans), third, to the prepayment of the
then outstanding balance of Swing Line Loans, fourth, to the
payment, pro rata, of the then outstanding balance of the
Revolving Loans, and fifth, to the cash collateralization of
LC Obligations; (ii) within each of the foregoing Loans, first
to the payment of Base Rate Loans and second to the payment of
Eurocurrency Loans; and (iii) with respect to Eurocurrency
Loans, in such order as the Borrower shall request (and in the
absence of such request, as the Administrative Agent shall
determine). Each prepayment of Term Loans made pursuant to
Section 4.4(d), (e), (f), (g), (h) and (j) shall be allocated
first to the Term C Loans and applied on a pro rata basis
against all Scheduled Term C Repayments until all such amounts
are paid in full, second to the Term A Loans and the Term B
Loans based on the aggregate principal amount of the Scheduled
Term A Repayments and the Scheduled Term B Repayments due
within the twelve month period following the date of such
prepayment in direct order of maturity, and, thereafter, shall
be allocated third to the Term A Loans and the Term B Loans in
proportional amounts equal to the Term A Percentage and the
Term B Percentage (in each case, after giving effect to the
prepayments made to the Scheduled Term A Repayments and
Scheduled Term B Repayments due within such twelve month
period as specified above), as the case may be, of such
remaining prepayment, if any, and, within each Term A Loan or
Term B Loan, shall be applied to reduce the remaining
Scheduled Term A Repayments and Scheduled Term B Repayments on
a pro rata basis (based upon the then remaining principal
amount of such Scheduled Term A Repayments and Scheduled Term
B Repayments, respectively). Any prepayment of Term Loans
pursuant to Section 4.4(i) shall be applied, first, pro rata
to each of the Scheduled Term C Repayments until all such
amounts are paid in full and second, pro rata to each of the
Scheduled Term A Repayments and Term B Repayments. Any
prepayment of Loans pursuant to Section 4.4(k) shall be
applied first to a
16
repayment of Term B Loans, applied to the Scheduled Term B
Repayments on a pro rata basis, and second, to repay
outstanding Revolving Loans (without a permanent reduction of
the Revolving Commitment) (and within such Facility, first, to
the prepayment of the then outstanding balance of Swing Line
Loans, second, to the payment, pro rata, of the then
outstanding balance of the Revolving Loans, and third, to the
cash collateralization of LC Obligations), and third, to the
Term A Loans, applied to reduce the Scheduled Term A
Repayments on a pro rata basis. Any repayment of Loans
pursuant to Section 4.4(m) and (n) shall be applied to a
repayment of Term C Loans (allocated to the Scheduled Term C
Repayments on a pro rata basis) and, concurrently therewith,
the Term C Commitments, if any, in effect shall be permanently
reduced to zero. Any prepayment of Loans pursuant to Section
4.4(o) shall be applied to repay outstanding Revolving Loans
(without a permanent reduction of the Revolving Commitment)
(and within such Facility, first, to the prepayment of the
then outstanding balance of Swing Line Loans, second, to the
payment, pro rata, of the then outstanding balance of the
Revolving Loans, and third, to the cash collateralization of
LC Obligations). If any prepayment of Eurocurrency Loans made
pursuant to a single Borrowing shall reduce the outstanding
Loans made pursuant to such Borrowing to an amount less than
the Minimum Borrowing Amount, such Borrowing shall immediately
be converted into Base Rate Loans, in the case of Loans
denominated in Dollars, or into Loans with a 30 day Interest
Period, in the case of Loans denominated in Euro. All
prepayments shall include payment of accrued interest on the
principal amount so prepaid, shall be applied to the payment
of interest before application to principal and shall include
amounts payable, if any, under Section 3.5."
(z) Subsection (a) of Section 6.8 the Credit Agreement
shall be amended by inserting the following sentence immediately
following the only sentence thereof as follows:
"All proceeds of the Term C Loans incurred in accordance with
Section 2.1 hereof shall be used by the Borrower (i) to pay
fees and expenses incurred in connection with the addition of
the Term C Facility (or the increase thereof, if applicable)
and the transactions contemplated in accordance therewith and
(ii) for ongoing working capital needs and general corporate
purposes (other than to voluntarily prepay any Term Loan)."
(aa) Article VII of the Credit Agreement shall be amended
to insert the following new section immediately following Section 7.18
thereof:
"Section 7.19. Addition of Collateral Concurrent with Addition
of Term C Facility and Forbearance of Lenders.
(a) In order to cause the Initial Term C Lenders to
extend additional credit to the Borrower in the form of the
Term C Facility on the Fourth
17
Amendment Effective Date and in order to cause the Lenders to
forbear from certain actions as described in Amendment No. 4,
the Borrower hereby agrees:
(i) to deliver or cause to be delivered to the
Administrative Agent, all in accordance with the
terms of Section 7.12 of this Agreement, on the
Fourth Amendment Effective Date, a pledge by the
Borrower of the Common Stock of AFC and a pledge and
grant of a security interest by AFC of all of the AFC
Assets (collectively, the pledges and the security
interest described herein are referred to as the "AFC
Collateral"), each in favor of the Administrative
Agent (A) on behalf of the Initial Term C Lenders to
secure payment of their respective Term C Loans, a
continuing security interest of first priority in all
the right, title and interest of the Borrower and
AFC, as the case may be, in the AFC Collateral and
(B) on behalf of the Lenders to secure payment of
their respective Obligations, a continuing security
interest of second priority in all the right, title
and interest of the Borrower and AFC, as the case may
be, in the AFC Collateral; and
(ii) to deliver or cause to be delivered to the
Administrative Agent, all on terms and conditions
satisfactory to the Administrative Agent, on the
Fourth Amendment Effective Date, (A) a pledge by
Aerojet Investments Ltd. of the Elliott Note,
together with a pledge by Aerojet Investments Ltd. of
its rights to the Deed of Trust securing the Elliot
Note, all pursuant to the Elliott Note Assignment and
Pledge and (B) an assignment by Aerojet of the 1900
Lease pursuant to a collateral assignment of leases
and rents ((collectively, the pledges and the
assignment described herein are referred to as the
"Assignment and Pledge Collateral"), each of favor of
the Administrative Agent (A) on behalf of the Initial
Term C Lenders to secure payment of their respective
Term C Loans, a continuing security interest of first
priority in all the right, title and interest of
Aerojet Investments Ltd. and Aerojet, as the case may
be, in the Assignment and Pledge Collateral, (B) on
behalf of the Initial Term C Lenders to secure
payment of their respective Revolving Loans and Term
A Loans, a continuing security interest of second
priority in all the right, title and interest of
Aerojet Investments Ltd. and Aerojet, as the case may
be, in the Assignment and Pledge Collateral and (C)
on behalf of the Lenders to secure payment of their
respective Obligations, a continuing security
interest of third priority in all the right, title
and interest of Aerojet Investments Ltd. and Aerojet,
as the case may be, in the Assignment and Pledge
Collateral; and
(iii) to grant a mortgage (or cause its applicable
Subsidiary to grant a mortgage) to the Administrative
Agent, all in accordance with the terms of Section
7.12 of this Agreement, as soon as possible but in no
event later than 30 days after the Fourth Amendment
Effective Date, on the following real property: (A)
two parcels of approximately 800 acres and
18
approximately 400 acres of land located near the
Company's facilities in Rancho Cordova, California,
(B) approximately 400 acres of land located in or
near Chino Hills, California, (C) approximately 10
acres located in Hollywood, California and (D)
approximately 10,000 acres located near Hawthorne,
Nevada, owned by the Borrower or any of its
Subsidiaries holding title of such real property and
as further identified to the Administrative Agent
((A) through (D) are referred to herein collectively
as the "Mortgaged Nevada/California Real Estate"), in
favor of the Administrative Agent (x) on behalf of
the Initial Term C Lenders to secure payment of their
respective Term C Loans, a continuing security
interest of first priority in all the right, title
and interest of the Borrower and such applicable
Subsidiaries, as the case may be, in the Mortgaged
Nevada/California Real Estate, (y) on behalf of the
Initial Term C Lenders to secure payment of their
respective Revolving Loans and Term A Loans, a
continuing security interest of second priority in
all the right, title and interest of the Borrower and
such applicable Subsidiaries, as the case may be, in
the Mortgaged Nevada/California Real Estate, and (z)
on behalf of the Lenders to secure payment of their
respective Obligations, a continuing security
interest of third priority in all the right, title
and interest of the Borrower and such applicable
Subsidiaries, as the case may be, in the Mortgaged
Nevada/California Real Estate; and
(iv) to grant a mortgage (or cause its applicable
Subsidiary to grant a mortgage) to the Administrative
Agent, all in accordance with the terms of Section
7.12 of this Agreement, as soon as possible but in no
event later than 120 days after the Fourth Amendment
Effective Date, on the real property of the Borrower
or any of its Subsidiaries holding such title located
in or near Sacramento, California and as further
identified to the Administrative Agent (the
"Mortgaged California Real Estate"), in favor of the
Administrative Agent (A) on behalf of the Initial
Term C Lenders to secure payment of their respective
Term C Loans, a continuing security interest of first
priority in all the right, title and interest of the
Borrower and such applicable Subsidiaries, as the
case may be, in the Mortgaged California Real Estate,
(B) on behalf of the Initial Term C Lenders to secure
payment of their respective Revolving Loans and Term
A Loans, a continuing security interest of second
priority in all the right, title and interest of the
Borrower and such applicable Subsidiaries, as the
case may be, in the Mortgaged California Real Estate,
and (C) on behalf of the Lenders to secure payment of
their respective Obligations, a continuing security
interest of third priority in all the right, title
and interest of the Borrower and Aerojet, as the case
may be, in the Mortgaged California Real Estate.
(b) Within 60 days after the Fourth Amendment
Effective Date (the "Nevada/California Collateral Valuation
Date"), the Borrower will deliver to the Administrative Agent
and the Initial Term C Lenders, an appraisal (or appraisals)
19
setting forth the fair market value of the Mortgaged
Nevada/California Real Estate, the Elliot Note and the 1900
Lease, in each case as prepared by a nationally recognized
real estate appraisal firm acceptable to the Administrative
Agent and the Initial Term C Lenders. Such appraisal (or
appraisals) shall expressly provide that it (or they) may be
relied upon by the Administrative Agent and the Initial Term C
Lenders.
(c) Within 90 days after the Fourth Amendment
Effective Date (the "California Collateral Valuation Date"),
the Borrower will deliver to the Administrative Agent and the
Term C Lenders, an appraisal setting forth the fair market
value of the Mortgaged California Real Estate prepared by a
nationally recognized real estate appraisal firm acceptable to
the Administrative Agent and the Term C Lenders. Such
appraisal shall expressly provide that it may be relied upon
by the Administrative Agent and the Term C Lenders.
(d) Notwithstanding the foregoing, in the event the
Borrower has repaid in full all principal and interest on the
Term C Loans and no amounts remain outstanding to any Term C
Lender with respect to the Term C Loans and the Term C
Commitments have been permanently reduced in whole, the
Administrative Agent shall release, and is hereby authorized
to release without further action of the Term C Lenders, the
first priority security interest of the Initial Term C Lenders
in the AFC Collateral, the Assignment and Pledge Collateral,
the Mortgaged California Real Estate and the Mortgaged
Nevada/California Real Estate; provided, that in no event
shall the Administrative Agent release or in any way modify
the second priority security interest in the AFC Collateral,
or the second or third priority security interests in the
Assignment and Pledge Collateral, the Mortgaged California
Real Estate and the Mortgaged Nevada/California Real Estate
except in accordance with the terms of this Agreement."
(bb) The last sentence of Section 8.1 of the Credit
Agreement shall be deleted in its entirety and the following sentence
shall be inserted in lieu thereof:
"Notwithstanding the foregoing clauses (a) through (g) of this
Section 8.1, the Borrower agrees that it will not, nor will it
permit any of its Subsidiaries to pledge, encumber or
otherwise suffer to exist thereon any Lien (other than
Customary Permitted Liens or the mortgages provided for in
Section 7.19(a)(iii) and (iv)), on any real property owned by
the Borrower or any of its Subsidiaries which is located in
the State of California or the State of Nevada."
(cc) Section 8.2 of the Credit Agreement is hereby amended
by (i) in subsection (q) thereof, deleting the "." and inserting in
lieu thereof the following phrase "; and" and (ii) inserting the
following new subsection (r) immediately after subsection (q) therein:
20
"(r) Indebtedness of the Borrower arising under the
Subordinated Notes; provided, that the principal amount of
such Indebtedness shall not exceed $70,000,000 in the
aggregate at any one time outstanding."
(dd) Section 8.11 of the Credit Agreement is hereby
amended (i) in subsection (iii) thereof, deleting the word "or", (ii)
in subsection (iv) thereof, deleting the "." and inserting in lieu
thereof the following phrase "; or" and (iii) inserting the following
new subsection (v) immediately after subsection (iv) therein:
"(v) amend, modify or permit the amendment,
termination or modification of any term or provision of the
Elliot Note or the 1900 Lease without the prior written
consent of 66 2/3% of the Initial Term C Lenders."
(ee) Article VIII of the Credit Agreement is hereby
amended by inserting the following new Section 8.14 immediately after
Section 8.13 therein:
"Section 8.14 Sale of Mortgaged Nevada/California Property or
Mortgaged California Property.
Notwithstanding any other provision in this Agreement to the
contrary, including, without limitation, Section 8.3(l), the
Borrower will not, nor will it permit any of its Subsidiaries
to, sell all or any portion of the Mortgaged Nevada/California
Real Estate or the Mortgaged California Real Estate on or
after the Fourth Amendment Effective Date to the extent that
the sum of the estimated fair market value (as determined by
the Borrower in good faith and as agreed to by the
Administrative Agent) of the remaining Mortgaged
Nevada/California Real Estate and the Mortgaged California
Real Estate, together with the appraised fair market value of
the Elliot Note and the 1900 Lease, (assuming the consummation
of such sale) shall be less than an amount equal to (x) the
sum of the total Revolving Commitments, Term A Commitments and
Term C Commitments then outstanding, as adjusted to reflect
any mandatory repayments required from the net proceeds from
such sale of Mortgaged Nevada/California Real Estate or
Mortgaged California Real Estate, multiplied by (y) the number
2.0; provided, however, that this Section 8.14 shall not apply
to sales of Mortgaged Nevada/California Real Estate or
Mortgaged California Real Estate which in the aggregate do not
exceed $25,000,000 in any Fiscal Year, and provided, further,
however, that if as of any date of sale of all or any portion
of the Mortgaged Nevada/California Real Estate or the
Mortgaged California Real Estate, (A) the Borrower has repaid
in full all principal and interest on the Term C Loans and no
amounts remain outstanding to any Term C Lender with respect
to the Term C Loans and (B) the Leverage Ratio of the
Borrower, calculated for the Test Period ending on the last
day of the most recently ended Fiscal Quarter, is less than
2.50 to 1.00, this Section 8.14 shall not apply to the
Borrower or its Subsidiaries."
(ff) Section 9.3 of the Credit Agreement shall be amended
by deleting the ratio set forth opposite the Fiscal Quarter ending
February 28, 2002, and inserting in lieu thereof the ratio of "3.50 to
1.00".
21
(gg) Section 9.4 of the Credit Agreement shall be amended
by deleting the Fiscal Quarters ending February 28, 2002 and May 31,
2002 and the ratios immediately set forth opposite such Fiscal
Quarters, and inserting the following in lieu thereof:
Fiscal Quarter Ratio
-------------- -----
February 28, 2002 3.10 to 1.00
May 31, 2002 3.10 to 1.00
August 31, 2002 2.75 to 1.00
November 30, 2002 and thereafter 2.50 to 1.00"
(hh) Section 9.5 of the Credit Agreement shall be deleted
in its entirety and the following shall be inserted in lieu thereof:
"Section 9.5 Fixed Charge Coverage Ratio.
The Borrower will not permit the Fixed Charge Coverage Ratio
for any Test Period ending on the last day of each Fiscal
Quarter set forth below to be less than the ratio set forth
opposite such date:
Fiscal Quarter Ratio
-------------- -----
February 28, 2002 1.00 to 1.00
May 31, 2002 1.00 to 1.00
August 31, 2002 and thereafter 1.05 to 1.00"
(ii) Section 10.1(l) of the Credit Agreement shall be
amended by (i) deleting the word "Parties" and inserting the word
"Creditors" in lieu thereof and (ii) inserting the phrase "in the order
of priority of interest set forth in such Security Document"
immediately following the phrase "Collateral Agent, for the benefit of
the Secured Creditors".
(jj) Section 10.1 of the Credit Agreement shall be amended
by (i) deleting the "." immediately following the phrase "self-help or
otherwise" in subsection (o) thereof and inserting the phrase "; or" in
lieu thereof, and (ii) inserting the following new subsections
immediately following subsection (o) thereof:
"(p) Failure of Deliveries Benefiting Initial Term C
Lenders. The Borrower or any of its Subsidiaries shall default
(i) in the due performance or observance of any term,
covenant, condition or agreement on its part to be performed
or observed under Sections 7.19(a)(iii) or 7.19(b) or (ii) in
the payment of principal or interest on any of the Term C
Loans when due; or
(q) Failure of Deliveries Benefiting Term C Lenders.
The Borrower or any of its Subsidiaries shall default (i) in
the due performance or observance of any term, covenant,
condition or agreement on its part to be performed or observed
under Sections 7.19(a)(iv) or 7.19(c) or (ii) in the payment
of principal or interest on any of the Term C Loans when due."
22
(kk) The first sentence of the second to last paragraph of
Section 10.1 of the Credit Agreement shall be amended by inserting
immediately following the phrase "all of the Liens and security
interests created pursuant to the Security Documents" the following
phrase "; provided, however, that notwithstanding the foregoing or
anything else in this Agreement to the contrary, in the event of any
Event of Default described in Section 10.1(p) with respect to the
Borrower or any of its Subsidiaries, until such time as the Borrower
has repaid in full all principal and interest on the Term C Loans and
no amounts remain outstanding to any Initial Term C Lender with respect
to the Term C Loans, the Administrative Agent, at the written direction
of 66 2/3% of the Initial Term C Lenders (and without any action or
consent of the Lenders other than the Initial Term C Lenders) shall
take one or more of the actions described in (i) through (v) of this
paragraph, and provided, further, however, that notwithstanding the
foregoing or anything else in this Agreement to the contrary, in the
event of any Event of Default described in Section 10.1(q) with respect
to the Borrower or any of its Subsidiaries, until such time as the
Borrower has repaid in full all principal and interest on the Term C
Loans and no amounts remain outstanding to any Term C Lender with
respect to the Term C Loans, the Administrative Agent, at the written
direction of 66 2/3% of the Term C Lenders (and without any action or
consent of the Lenders other than the Term C Lenders) shall take one or
more of the actions described in (i) through (v) of this paragraph".
(ll) The second paragraph of Section 11.5 of the Credit
Agreement shall be amended by (i) deleting the word "and" immediately
before the phrase "Term B Lender" and inserting "," in lieu thereof,
and (ii) inserting the phrase "and Term C Loan" immediately before the
phrase "and the denominator of which".
(mm) The first sentence of Section 11.6 of the Credit
Agreement shall be amended by (i) deleting the word "and" immediately
before the phrase "Term B Pro Rata Share" and inserting "," in lieu
thereof, and (ii) inserting the phrase "and Term C Pro Rata Share"
immediately before the phrase ", as applicable thereof),".
(nn) Subclause (7) of the second to last sentence of
Section 12.1(a) of the Credit Agreement shall be amended by inserting
immediately before the phrase "without the consent of the Majority
Lenders of the Revolving Facility", the phrase "without the consent of
the Majority Lenders of the Term C Facility, amend the definition of
Term C Pro Rata Share;".
(oo) Subclause (8) of the second to last sentence of
Section 12.1(a) of the Credit Agreement shall be amended by inserting
immediately following the phrase "amend the definition of Scheduled
Term B Repayments,", the phrase "and without the consent of the
Majority Lenders of the Term C Facility, amend the definition of
Scheduled Term C Repayments,".
(pp) The second to last sentence of Section 12.1(a) of the
Credit Agreement shall be amended by (i) deleting the word "or"
immediately prior to subclause (9) and inserting "," in lieu thereof,
and (ii) inserting the phrase ", (10) without the consent of the
Majority Lenders of the Term C Facility, amend, modify or waive the
conditions to funding of the Term C Commitment Increase Amount, (11)
without the consent of each
23
Term C Lender, release the Mortgaged Nevada/California Real Estate, the
Mortgaged California Real Estate, the AFC Collateral or the Assignment
and Pledge Collateral (except, in each case, as expressly provided in
this Agreement), or (12) without the consent of 66 2/3% of the Initial
Term C Lenders, amend, modify or waive the terms of the Mortgaged
Nevada/California Real Estate, the Mortgaged California Real Estate,
the AFC Collateral or the Assignment and Pledge Collateral (other than
with respect to a release as provided in (11) above), including,
without limitation, any repayments required by the terms of this
Agreement as a result of or in connection with such collateral,
including, without limitation, any mandatory prepayments as provided in
Sections 4.4(m) and (n)", immediately after the phrase "amend, modify
or waive any provision of Section 9.4".
(qq) Section 12.1(a) of the Credit Agreement shall be
amended by inserting the following sentence immediately following the
last sentence thereof as follows:
"Notwithstanding the foregoing, prior to the date upon which
the Administrative Agent determines (and notifies the
Borrower) that the primary syndication (and the resultant
addition of Persons as Lenders pursuant to Section 12.8) of
the Term C Facility has been completed, the Borrower and the
Administrative Agent may, without the consent of any Lender,
agree to increase the interest rate pricing of the Term C
Facility."
(rr) Subclause (i) of the last sentence of Section 12.8(b)
of the Credit Agreement shall be amended by (i) by deleting the word
"and" immediately before the phrase "Scheduled Term B Repayments" and
inserting "," in lieu thereof, and (ii) inserting the phrase ", and
Scheduled Term C Repayments (other than the Term C Loan Maturity Date)"
immediately following the phrase "(other than the Term B Loan Maturity
Date)".
(ss) Subclause (i)(B) of the first sentence of Section
12.8(c) of the Credit Agreement shall be amended by inserting the
phrase "or of the Term C Facility" immediately following the phrase "of
the Term B Facility".
(tt) The last sentence of Section 12.8(c) of the Credit
Agreement shall be amended by inserting the phrase "Term C Pro Rata
Share," immediately following the phrase "Term B Pro Rata Share,".
(uu) Section 12.15(b)(i) is shall be amended by inserting
the following paragraph immediately following subclause (E) thereof:
"Notwithstanding anything in this clause (i) to the contrary,
in no event shall the Administrative Agent or the Collateral
Agent, as the case may be, release the Mortgaged
Nevada/California Real Estate, the Mortgaged California Real
Estate, the AFC Collateral or the Assignment and Pledge
Collateral (except, in each case, as expressly provided in
this Agreement), without the consent of each Term C Lender."
24
(vv) Exhibit 12.8(c) to the Credit Agreement shall be
deleted in its entirety and the Exhibit 12.8(c) attached to this
Amendment No. 4 is substituted in lieu thereof
(ww) Schedule 1.1(a) to the Credit Agreement shall be
amended by inserting a fifth column immediately following the column
titled "Multicurrency Commitment (as a subcomponent of the Revolving
Commitment)" and inserting in such fifth column, the Term C Commitment
amounts in effect as of the Effective Date across from the name of each
Lender which is a Term C Lender as follows:
Lender Term C Commitment
------ -----------------
Bankers Trust Company $21,344,416.53
ABN AMRO Bank N.V. $3,655,583.47
(xx) The Credit Agreement shall be amended to insert the
form of "Exhibit 2.2(a)(5) - Form of Term C Note" immediately following
Exhibit 2.2(a)(4) attached thereto.
2. Waivers and Acknowledgement. Subject to the conditions and
effectiveness of this Amendment No. 4 and otherwise notwithstanding the
provisions of any Loan Document:
(a) the Lenders hereby waive, solely with respect to the Term C
Facility, compliance by the Borrower with Section 2.8 of the Credit Agreement
regarding the addition of the Term C Facility and any increase thereof in
accordance with the Credit Agreement, as amended by this Amendment No. 4, and
hereby acknowledge that the Term C Facility added to the Credit Agreement in
accordance with the terms and provisions of this Amendment No. 4 shall
constitute the Term C Facility described in said Section 2.8.(b);
(b) notwithstanding any other provision of the Credit Agreement or the
other Loan Documents to the contrary, the Lenders hereby acknowledge and agree
that the Mortgaged Nevada/California Real Estate, the Mortgaged California Real
Estate, the AFC Collateral or the Assignment and Pledge Collateral shall
constitute collateral on a first priority security interest basis for the
Initial Term C Lenders with respect to all of the Obligations relating to the
Term C Loans due and owing to the Initial Term C Lenders, and with respect to
the Mortgaged Nevada/California Real Estate, the Mortgaged California Real
Estate and the Assignment and Pledge Collateral shall constitute collateral on a
second priority security interest basis for the Initial Term C Lenders with
respect to all of the Obligations relating to the Term A Loans and Revolving
Loans due and owing to the Initial Term C Lenders. In furtherance of the
foregoing, the Lenders, including the Term A Lenders and the Revolving Lenders,
hereby authorize and consent to the execution by the Administrative Agent or the
Collateral Agent, as the case may be (without any further action of such
Lenders) of such amendments and other modifications to the Security Documents
which the Administrative Agent or the Collateral Agent, as the case may be,
reasonably determines are necessary to reflect the above-described Liens in
favor of the Initial Term C Lenders with respect to the collateral described
above and the priority of payments in favor of the Initial Term C Lenders made
with the proceeds thereof and, in connection with such collateral, the voting
percentages of Initial Term C Lenders required to amend, modify or release such
collateral as further described in Section 12.1(a) of the Credit Agreement (as
amended by this Amendment No. 4) . In addition, the Administrative Agent or the
Collateral Agent, as the case may be, is authorized to execute any amendments or
other modifications to the Security
25
Documents as may be necessary to evidence to reflect the pro rata sharing with
the Second Term C Lenders of the first priority security interest of the Initial
Term C Lenders in the AFC Collateral, the Assignment and Pledge Collateral, the
Mortgaged Nevada/California Real Estate and the Mortgaged California Real
Estate;
(c) the Lenders hereby waive any Event of Default arising under Section
10.1(c)(i) of the Credit Agreement resulting solely from the Borrower's failure
to comply with the ratio applicable to the Fiscal Quarter ended November 30,
2001 as set forth in, and required by, each of Section 9.3 and Section 9.4 of
the Credit Agreement;
(d) the Lenders hereby waive, for the period commencing the Effective
Date and ending on the earlier of (i) the date on which the Borrower has
completed an unsecured subordinated debt or equity financing of not less than
$35,000,000 or (ii) March 28, 2002, any Event of Default or Unmatured Event of
Default arising solely out of the Borrower's breach of Section 2(b) of Amendment
No. 2 as a result of the Borrower's failure to permanently reduce the Revolving
Commitment and repay Revolving Loans, in part, as required by the terms of said
Section. Upon expiration of the waiver set forth in the preceding sentence
without compliance by the Borrower with the requirements specified in said
Section, such waiver shall be automatically revoked and the requirements of the
Credit Agreement waived thereby shall again be in full force with retroactive
effect to the dates specified in the Credit Agreement. In such case, following
such expiration and noncompliance as described in the preceding sentences, the
Administrative Agent and the Lenders shall have all rights and remedies under
the Credit Agreement and any other Loan Document or otherwise that the
Administrative Agent and the Lenders would have had if any such waiver had never
been granted; and
(e) the Lenders hereby waive, for the period commencing the Effective
Date and ending on the date which is ten (10) Business Days following the
Effective Date, any Event of Default or Unmatured Event of Default arising
solely out of the Borrower's breach of Section 7.1(b) of the Credit Agreement as
a result of the Borrower's failure to deliver its audited annual financial
statements for the Fiscal Year ending November 30, 2001 within ninety (90) days
after the end of such Fiscal Year, as required by the terms of said Section.
Upon expiration of the waiver set forth in the preceding sentence without
compliance by the Borrower with the requirements specified in said Section, such
waiver shall be automatically revoked and the requirements of the Credit
Agreement waived thereby shall again be in full force with retroactive effect to
the date specified in the Credit Agreement. In such case, following such
expiration and noncompliance as described in the preceding sentence, the
Administrative Agent and the Lenders shall have all rights and remedies under
the Credit Agreement and any other Loan Document or otherwise that the
Administrative Agent and the Lenders would have had if any such waiver had never
been granted.
26
3. Consent of Lenders to Equity. The Administrative Agent and the
Lenders hereby consent (i) to the issuance by the Borrower of Capital Stock in
connection with the Equity Capital and (ii) to the issuance of warrants of the
Borrower in connection with the Subordinated Notes. The Administrative Agent and
the Lenders further agree that such consents described in the preceding sentence
shall be in satisfaction of the consents required pursuant to Section 8.6(b) of
the Credit Agreement with respect to the actions described in clauses (i) and
(ii), provided that such issuance shall in all other respects be subject to said
Section 8.6(b).
4. Subordination and Intercreditor Acknowledgements by Parties. (a)
Each of the Borrower and the Subsidiary Guarantor covenants and agrees, and the
Term A Lenders and the Revolving Lenders acknowledge and agree that the payment
of any and all of the Term A Loans and the Revolving Loans (i) from the proceeds
of the Mortgaged Nevada/California Real Estate, the Mortgaged California Real
Estate, the AFC Collateral or the Assignment and Pledge Collateral shall be
subordinate and subject in right and time of payment, to the extent and in the
manner set forth in this Amendment No. 4, to the prior indefeasible payment in
full in cash of all Term C Loans of the Initial Term C Lenders (collectively,
the "First Priority Loans") and (ii) from the proceeds of the Mortgaged
Nevada/California Real Estate, the Mortgaged California Real Estate and/or the
Assignment and Pledge Collateral shall be subordinate and subject in right and
time of payment, to the extent and in the manner set forth in this Amendment No.
4, to the prior indefeasible payment in full in cash of all Term A Loans and
Revolving Loans of the Initial Term C Lenders (the "Second Priority Loans").
Each Initial Term C Lender, whether now outstanding or hereafter created,
incurred, assumed or guaranteed, shall be deemed to have acquired Term C Loans
in reliance upon the provisions contained in this Amendment No. 4.
(b) With respect to the Mortgaged Nevada/California Real Estate,
the Mortgaged California Real Estate, the AFC Collateral and/or the Assignment
and Pledge Collateral, the First Priority Loans and, with respect to the
Mortgaged Nevada/California Real Estate, the Mortgaged California Real Estate
and/or the Assignment and Pledge Collateral, the Second Priority Loans shall, in
each case, continue to be treated as senior in priority to the Term A Loans and
Revolving Loans of the Lenders (other than the Initial Term C Lenders which
shall for any purposes constitute Second Priority Loans), and the provisions of
this Amendment No. 4 shall continue to govern the relative rights and priorities
of the Lenders even if all or part of the First Priority Loans or, with respect
to the Mortgaged Nevada/California Real Estate, the Mortgaged California Real
Estate and/or the Assignment and Pledge Collateral, the Second Priority Loans or
the security interests securing the First Priority Loans or, with respect to the
Mortgaged Nevada/California Real Estate, the Mortgaged California Real Estate
and/or the Assignment and Pledge Collateral, the Second Priority Loans are
subordinated (other than the Second Priority Loans being subordinated to the
First Priority Loans), set aside, avoided, invalidated or disallowed in
connection with any dissolution, insolvency or other bankruptcy or winding up
proceeding, or if for any reason the documentation regarding the creation of
such security interests is not executed or delivered by the Borrower or any of
its Subsidiaries, as applicable, or such documentation is not recorded, and this
Amendment No. 4 shall be reinstated if at any time any payment of any of the
First Priority Loans or, with respect to the Mortgaged Nevada/California Real
Estate, the Mortgaged California Real Estate and/or the Assignment and Pledge
Collateral, the Second Priority Loans is rescinded or must otherwise be returned
by any holder of the First Priority Loans or, with respect to the Mortgaged
Nevada/California Real
27
Estate, the Mortgaged California Real Estate and/or the Assignment and Pledge
Collateral, the Second Priority Loans or any representative of such holder.
(c) The Term A Lenders and the Revolving Lenders hereby waive any
rights any Lender may have under applicable law to assert the doctrine of
marshaling or to otherwise require the Administrative Agent, the Collateral
Agent or the Initial Term C Lenders to marshal any property of the Borrower or
any of the guarantors of the First Priority Loans or, with respect to the
Mortgaged Nevada/California Real Estate, the Mortgaged California Real Estate
and/or the Assignment and Pledge Collateral, the Second Priority Loans, for the
benefit of the Term A Lenders and the Revolving Lenders.
(d) THE LENDERS AGREE THAT NO LENDER WILL, NOR WILL ANY LENDER
ENCOURAGE ANY OTHER PERSON TO, AT ANY TIME, CONTEST THE VALIDITY, PERFECTION,
PRIORITY OR ENFORCEABILITY OF THE FIRST PRIORITY LOANS OR THE SECOND PRIORITY
LOANS, THE LOAN DOCUMENTS OR THE LIENS OR SECURITY INTERESTS (INCLUDING WITHOUT
LIMITATION THE PRIORITY OF SUCH LIENS AND SECURITY INTERESTS) OF THE
ADMINISTRATIVE AGENT OR THE COLLATERAL AGENT, AS THE CASE MAY BE, IN FAVOR OF
THE INITIAL TERM C LENDERS IN THE COLLATERAL SECURING THE FIRST PRIORITY LOANS
OR THE SECOND PRIORITY LOANS, AS THE CASE MAY BE, OR THE ORDER OF PAYMENT OF
PROCEEDS, ALL AS DESCRIBED IN SECTION 1(BB) OF THIS AMENDMENT NO. 4 AND AS SET
FORTH IN THE LOAN DOCUMENTS.
5. Representations and Warranties. As of the date hereof, the Borrower
hereby represents and warrants to the Administrative Agent and the Lenders as
follows:
(a) After giving effect to this Amendment No. 4 (i) no
Unmatured Event of Default or Event of Default shall have occurred or
be continuing and (ii) the representations and warranties of the
Borrower contained in the Loan Documents shall each be true and correct
in all material respects at and as of the date hereof to the same
extent as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date in
which event such representation and warranties shall be true and
correct as of such specified date.
(b) The execution, delivery and performance, as the case
may be, by the Borrower of this Amendment No. 4 and the other documents
and transactions contemplated hereby are within the Borrower's
corporate powers, have been duly authorized by all necessary corporate
action (including, without limitation, all necessary shareholder
approvals) of the Borrower, shall have received all necessary
governmental approvals, and do not and will not contravene or conflict
with any provision of law applicable to the Borrower, the certificate
or articles of incorporation or bylaws of the Borrower, or any order,
judgment or decree of any court or other agency of government or any
contractual obligation binding upon the Borrower.
(c) Each of this Amendment No. 4, the Credit Agreement
and any other Loan Document is the legal, valid and binding obligation
of the Borrower enforceable against
28
the Borrower in accordance with its respective terms, except to the
extent enforceability is limited by bankruptcy, insolvency or similar
laws affecting the rights of creditors generally or by application of
general principles of equity.
6. Conditions. This Amendment No. 4 shall become effective as of
the date first above written; provided, that the Administrative Agent shall have
received:
(a) counterparts of this Amendment No. 4 duly executed by
the Borrower, the Subsidiary Guarantors, the
Administrative Agent and the percentage of Lenders
required by the Credit Agreement;
(b) duly executed originals of the Term C Notes executed
by the Borrower;
(c) duly executed originals of a certificate of the Chief
Executive Officer or Chief Financial Officer of the
Borrower and each other Credit Party, dated as of the
date hereof, stating that (A) since November 30, 2000
(i) no event or condition has occurred or is existing
which could reasonably be expected to have a Material
Adverse Effect; (ii) there has been no material
adverse change in the industry in which the Borrower
or such Credit Party operates; (iii) no litigation
has been commenced which, if successful, would have a
Material Adverse Effect or could challenge any of the
transactions contemplated by the Credit Agreement and
the other Loan Documents; (iv) there have been no
Restricted Payments made by the Borrower or any of
its Subsidiaries other than in accordance with the
Credit Agreement; and (v) there has been no material
increase in liabilities, liquidated or contingent,
and no material decrease in assets of any Borrower or
any of its Subsidiaries, and (B) all necessary
governmental (domestic and foreign) and third party
approvals in connection with the Credit Agreement and
the transactions contemplated by this Amendment No. 4
have been obtained and remain in effect;
(d) copies of schedules to the Credit Agreement, updated
from the schedules delivered as of December 28, 2000,
in form and substance satisfactory to the
Administrative Agent and the Required Lenders;
(e) pro forma (after giving effect to this Amendment No.
4, including the initial funding of the Term C
Facility) financial statements in form and substance
satisfactory to the Administrative Agent and the
Required Lenders;
(f) duly executed original of a legal opinion of (i)
Vedder Price Kaufman & Kammholz, special counsel to
the Borrower, (ii) William R. Phillips, General
Counsel of the Borrower, and (iii) Hunter Richey Di
Benedetto & Eisenbeis, LLP, special California
counsel to the Borrower, each dated as of the
Effective Date and in form and substance satisfactory
to the Administrative Agent and the Required Lenders;
29
(g) from the Borrower, without setoff, deduction or
counterclaim, a non-refundable commitment fee for the
account of each Initial Term C Lender that has
executed and delivered (including delivery of way of
facsimile) a copy of this Amendment No. 4 to the
attention of Kay McNab at Winston & Strawn, 35 West
Wacker Drive, Chicago, Illinois 60601, telecopy
number 312-558-5700, at or prior to 2:00 p.m. (New
York City time), on the Effective Date, in an amount
equal to 2.00% of such Lender's Term C Commitment as
of the Effective Date of this Amendment No. 4;
(h) from the Borrower, without setoff, deduction or
counterclaim, a non-refundable amendment fee for the
account of each Lender that has executed and
delivered (including delivery of way of facsimile) a
copy of this Amendment No. 4 to the attention of Kay
McNab at Winston & Strawn, 35 West Wacker Drive,
Chicago, Illinois 60601, telecopy number
312-558-5700, at or prior to 2:00 p.m. (New York City
time), on the Effective Date, in an amount equal to
0.25% of the sum of such Lender's Revolving
Commitment and Term A Loans as of the Effective Date
of this Amendment No. 4; and
(i) from the Borrower all fees and expenses of legal
counsel to the Administrative Agent to the extent
then invoiced.
7. Affirmation of Subsidiary Guarantors. By its signature set forth
below, each Subsidiary Guarantor hereby confirms to the Administrative Agent and
the Lenders that, after giving effect to this Amendment No. 4 and the
transactions contemplated hereby, the Subsidiary Guaranty of such Subsidiary
Guarantor and each other Loan Document to which such Subsidiary Guarantor is a
party continues in full force and effect and is the legal, valid and binding
obligation of such Subsidiary Guarantor, enforceable against such Subsidiary
Guarantor in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability.
8. Successors and Assigns. This Amendment No. 4 shall be binding on and
shall inure to the benefit of the Borrower, the Administrative Agent, the
Lenders and their respective successors and assigns; provided that the Borrower
may not assign its rights, obligations, duties or other interests hereunder
without the prior written consent of the Administrative Agent and the Lenders.
The terms and provisions of this Amendment No. 4 are for the purpose of defining
the relative rights and obligations of the Borrower, the Administrative Agent
and the Lenders with respect to the transactions contemplated hereby and there
shall be no third party beneficiaries of any of the terms and provisions of this
Amendment No. 4.
9. Entire Agreement. This Amendment No. 4, the Credit Agreement (as
amended hereby) and the other Loan Documents constitute the entire agreement of
the parties with respect to the subject matter hereof.
10. Incorporation of Credit Agreement. The provisions contained in
Sections 12.4, 12.9 and 12.10 of the Credit Agreement are incorporated herein by
reference to the same extent as if
30
reproduced herein in their entirety with respect to this Amendment No. 4.
11. Amendment; Waiver. The parties hereto agree and acknowledge that
nothing contained in this Amendment No. 4 in any manner or respect limits or
terminates any of the provisions of the Credit Agreement or any of the other
Loan Documents other than as amended as expressly set forth herein and further
agree and acknowledge that the Credit Agreement (as amended hereby) and each of
the other Loan Documents remain and continue in full force and effect and are
hereby ratified and confirmed. Except to the extent expressly set forth herein,
the execution, delivery and effectiveness of this Amendment No. 4 shall not
operate as a waiver of any rights, power or remedy of the Lenders or the
Administrative Agent under the Credit Agreement or any other Loan Document, nor
constitute a waiver of any provision of the Credit Agreement or any other Loan
Document. No delay on the part of any Lender or the Administrative Agent in
exercising any of their respective rights, remedies, powers and privileges under
the Credit Agreement or any of the Loan Documents or partial or single exercise
thereof, shall constitute a waiver thereof. On and after the Effective Date,
each reference in the Credit Agreement to "this Agreement," "hereunder,"
"hereof," "herein" or words of like import, and each reference to the Credit
Agreement in the Loan Documents and all other documents delivered in connection
with the Credit Agreement shall mean and be a reference to the Credit Agreement,
as amended hereby.
12. Captions. Section captions used in this Amendment No. 4 are for
convenience only, and shall not affect the construction of this Amendment No. 4.
13. Severability. Whenever possible each provision of this Amendment
No. 4 shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Amendment No. 4 shall be prohibited
by or invalid under such law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Amendment No. 4.
14. Counterparts. This Amendment No. 4 may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument. Delivery of an
executed counterpart of a signature page to this Amendment No. 4 by telecopy
shall be effective as delivery of a manually executed counterpart of this
Amendment No. 4.
[signature pages immediately follow]
31
IN WITNESS WHEREOF, this Amendment No. 4 has been duly executed as of
the date first written above.
GENCORP INC.
By: /s/ Yasmin Seyal
-------------------------------------
Name: Yasmin Seyal
Title: Senior Vice President, Finance
Signature Page to Amendment No. 4
and Waiver
AEROJET-GENERAL CORPORATION,
as Subsidiary Guarantor
By: /s/ Yasmin R. Seyal
-------------------------------------
Name: Yasmin R. Seyal
Title: Treasurer
Signature Page to Amendment No. 4
and Waiver
AEROJET ORDNANCE TENNESSEE, INC., as
Subsidiary Guarantor
By: /s/ Brian E. Sweeney
-------------------------------------
Name: Brian E. Sweeney
Title: Vice President and Secretary
Signature Page to Amendment No. 4
and Waiver
GENCORP PROPERTY INC.,
as Subsidiary Guarantor
By: /s/ Yasmin R. Seyal
-------------------------------------
Name: Yasmin R. Seyal
Title: Treasurer
Signature Page to Amendment No. 4
and Waiver
PENN INTERNATIONAL INC.,
as Subsidiary Guarantor
By: /s/ Yasmin R. Seyal
-------------------------------------
Name: Yasmin R. Seyal
Title: Treasuer
Signature Page to Amendment No. 4
and Waiver
GDX LLC, as Subsidiary Guarantor
By: /s/ Yasmin R. Seyal
-------------------------------------
Name: Yasmin R. Seyal
Title: Treasurer
Signature Page to Amendment No. 4
and Waiver
GDX AUTOMOTIVE INC.,
as Subsidiary Guarantor
By: /s/ Yasmin R. Seyal
-------------------------------------
Name: Yasmin R. Seyal
Title: Treasurer
Signature Page to Amendment No. 4
and Waiver
BANKERS TRUST COMPANY,
as Lender and Administrative Agent
By: /s/ Marguerite Sutton
-------------------------------------
Name: Marguerite Sutton
Title: Vice President
Signature Page to Amendment No. 4
and Waiver
BANK ONE, NA,
as Lender
By: /s/ Karen C. Ryan
-------------------------------------
Name: Karen C. Ryan
Title: Director
Signature Page to Amendment No. 4
and Waiver
ABN AMRO Bank N.V.,
as Lender
By: /s/ Terrence J. Ward
-------------------------------------
Name: Terrence J. Ward
Title: Group Vice President
By: /s/ Mary L. Honda
-------------------------------------
Name: Mary L. Honda
Title: Group Vice President
Signature Page to Amendment No. 4
and Waiver
THE BANK OF NEW YORK,
as Lender
By: /s/ Elizabeth T. Ying
-------------------------------------
Name: Elizabeth T. Ying
Title: Vice President
Signature Page to Amendment No. 4
and Waiver
THE BANK OF NOVA SCOTIA,
as Lender
By: /s/ Mark Sparrow
-------------------------------------
Name: Mark Sparrow
Title: Director
Signature Page to Amendment No. 4
and Waiver
NATIONAL CITY BANK,
as Lender
By: /s/ Brian J. Cullina
-------------------------------------
Name: Brian J. Cullina
Title: Senior Vice President
Signature Page to Amendment No. 4
and Waiver
THE NORTHERN TRUST COMPANY,
as Lender
By: /s/ Melissa A. Whitson
-------------------------------------
Name: Melissa A. Whitson
Title: Vice President
Signature Page to Amendment No. 4
and Waiver
WELLS FARGO BANK, N.A.,
as Lender
By: /s/ Scott D. Moldoff
-------------------------------------
Name: Scott D. Moldoff
Title: Vice President
Signature Page to Amendment No. 4
and Waiver