ex101to8k07319_04302009.htm


    Exhibit 10.1

     

    
      EXECUTION
COPY

      


      


      FIRST AMENDMENT AND CONSENT
TO CREDIT AGREEMENT

      


      


      THIS FIRST AMENDMENT AND CONSENT TO
CREDIT AGREEMENT (the “Amendment”), dated as
of May 1, 2009, is to that certain Amended and Restated Credit Agreement dated
as of June 21, 2007 (as amended, modified, extended, restated, replaced, or
supplemented from time to time, the “Credit Agreement”),
by and among GENCORP
INC., an Ohio corporation (the “Borrower”), the
subsidiaries of the Borrower from time to time party thereto (the “Guarantors”), the
lenders from time to time party thereto (the “Lenders”), and WACHOVIA BANK, NATIONAL
ASSOCIATION, as administrative agent for the Lenders (the “Administrative
Agent”).  Capitalized terms used herein but not otherwise
defined shall have the meanings ascribed thereto in the Credit
Agreement.

      


      


      W I T N E S S E T
H

      


      WHEREAS, the Lenders have
established credit facilities for the benefit of the Borrower pursuant to the
terms of the Credit Agreement;

      


      WHEREAS, the Borrower has
informed the Administrative Agent that Snappon SA (“Snappon”), a French
subsidiary of the Borrower which is not a Credit Party or Significant Subsidiary
under the Credit Agreement, has had legal judgments rendered against it totaling
approximately $4 million that are immediately due and payable in cash under
French law (the “Snappon
Judgments”); 

      


      WHEREAS, the Borrower has
further informed the Administrative Agent that, rather than appeal or pay the
Snappon Judgments, it may commence voluntary bankruptcy, insolvency or similar
proceedings with respect to Snappon while also recognizing that nonpayment of
the Snappon Judgments to the claimants could result in the claimants initiating
involuntary bankruptcy, insolvency or similar proceedings against Snappon, and
any commencement of voluntary or involuntary bankruptcy, insolvency or similar
proceedings with respect to Snappon (each a “Bankruptcy Event”)
may violate Section
7.1(f) of the Credit Agreement to the extent any such Bankruptcy Event
has not been cured by the Borrower or Snappon or waived by the Required Lenders
within sixty (60) days of any such Bankruptcy Event occurring;

      


      WHEREAS, the Borrower has
requested that the Required Lenders (a) agree to certain amendments to the
Credit Agreement and (b) consent to any Bankruptcy Event; and

      


      WHEREAS, the Required Lenders
are willing to (a) amend the Credit Agreement and (b) consent to any Bankruptcy
Event, in each case subject to the terms and conditions hereof.

      


      NOW, THEREFORE, IN
CONSIDERATION of the agreements herein contained, the parties hereby
agree as follows:

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      


      SECTION
1

      AMENDMENT

      


      1.1            New
Definitions.  The following
definitions are hereby added to Section 1.1 of the Credit Agreement in the
appropriate alphabetical order:

      


      “Refinance Period”
shall mean the time period commencing on the First Amendment Effective Date and
ending on the earlier of (a) the date on which an amendment that permits the
renewal, refinancing or extension of the 4.00% Convertible Notes has been
approved by the Required Lenders and (b) the date on which the Borrower redeems
the 4.00% Convertible Notes in accordance with the terms of Section 6.10 of this
Agreement.

      


      “Snappon Judgments”
shall mean any legal judgments rendered under French law against Snappon SA, a
French subsidiary of the Borrower.

      


      “First Amendment Effective
Date” means May 1, 2009.

      


      1.2            Amendment
to Section 2.1(a).  The second sentence contained in Section
2.1(a) of the Credit Agreement is hereby amended and restated in its entirety as
follows:

      


      “For
purposes hereof, the aggregate principal amount available for Revolving Loan
borrowings hereunder shall be
EIGHTY MILLION
DOLLARS ($80,000,000)
(as such aggregate maximum amount may be reduced from time to time as
provided in Section 2.8, the “Revolving Committed
Amount”); provided that during
the Refinance Period only SIXTY
MILLION DOLLARS ($60,000,000) of the Revolving Committed Amount shall be
available to the Borrower for Revolving Loans and Letters of
Credit.”

      


      1.3            Amendment
to Section 7.1(g).  Section 7.1(g) of the Credit Agreement is
hereby amended and restated in its entirety as follows:

      


      (g)           Judgment
Default.  One or more judgments, orders, decrees or arbitration
awards shall be entered against the Credit Parties or any of their Subsidiaries
involving in the aggregate a liability (to the extent not paid when due or
covered by insurance) of (i) with respect to the Snappon Judgments, $10,000,000
or more and (ii) with respect to all other  judgments, orders, decrees
or arbitration awards, $5,000,000 or more, and all such judgments, orders,
decrees or arbitration awards identified in clauses (i) and (ii) above shall not
have been paid and satisfied, vacated, discharged, stayed or bonded pending
appeal within thirty (30) days from the entry thereof.

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

      


      


      SECTION
2

      CONSENT

      


      2.1           Consent.  Notwithstanding
the provisions of the Credit Agreement to the contrary, the Required Lenders
hereby consent to any Bankruptcy Event and agree that any Bankruptcy Event shall
not violate the provisions of Section 7.1(f) of the Credit
Agreement.

      


      2.2           Effectiveness
of Consent.  This consent
shall be effective only to the extent specifically set forth herein and shall
not (a) be construed as a waiver of any breach or default nor as a waiver of any
breach or default of which the Lenders have not been informed by the Credit
Parties, (b) affect the right of the Lenders to demand compliance by the Credit
Parties with all terms and conditions of the Credit Agreement, except as
specifically consented to pursuant to the terms hereof, (c) be deemed a waiver
of any transaction or future action on the part of the Credit Parties requiring
the Lenders’ or the Required Lenders’ consent or approval under the Credit
Agreement, or (d) except as consented to and waived hereby, be deemed or
construed to be a waiver or release of, or a limitation upon, the Administrative
Agent’s or the Lenders’ exercise of any rights or remedies under the Credit
Agreement or any other Credit Document, whether arising as a consequence of any
Event of Default which may now exist or otherwise, all such rights and remedies
hereby being expressly reserved.

      


      


      SECTION
3

      CONDITIONS TO
EFFECTIVENESS

      


      3.1           Conditions
to Effectiveness.  This Amendment
shall be and become effective as of the date first above written upon
satisfaction of the following conditions (in form and substance reasonably
acceptable to the Administrative Agent) prior to the Amendment or simultaneously
therewith:

      


      (a)           Executed
Amendment.  Receipt by the Administrative Agent of a copy of
this Amendment duly executed by each of the Credit Parties and the
Administrative Agent, on behalf of the Required Lenders.

      


      (b)           Executed
Consents.  Receipt by the Administrative Agent of executed
consents from the Required Lenders (each a “Lender Consent”)
authorizing the Administrative Agent to enter into this Amendment on their
behalf.

      


      (c)           Fees and
Expenses.  The Borrower shall have paid in full (i) all fees
set forth in that certain Engagement Letter, dated April 20, 2009, among the
Borrower, Wachovia and WCM, (ii) to the Administrative Agent for the account of
each Lender that delivers a Lender Consent to the Administrative Agent by 5:00
p.m. (EDT) on April 30, 2009, an amendment fee in an amount equal to 0.05%
multiplied by such Lender’s Revolving Commitment plus outstanding Term
Loans plus the
outstanding amount of such Lender’s Credit-Linked Deposit and (iii) all
reasonable out-of-pocket fees and expenses of the Administrative Agent in
connection with the preparation, execution and delivery of this Amendment,
including without limitation, the reasonable fees and expenses of Moore &
Van Allen PLLC and any other outstanding fees and expenses thereof.

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

      


      (d)           Miscellaneous.  All
other documents and legal matters in connection with the transactions
contemplated by this Amendment shall be reasonably satisfactory in form and
substance to the Administrative Agent and its counsel.

      
 

      


      SECTION
4

      MISCELLANEOUS

      


      4.1           Representations
and Warranties.  Each of the Credit
Parties represents and warrants as follows as of the date hereof, after giving
effect to this Amendment:

      


      (a)           It
has taken all necessary action to authorize the execution, delivery and
performance of this Amendment.

      


      (b)           This
Amendment has been duly executed and delivered by such Person and constitutes
such Person’s valid and legally binding obligations, enforceable in accordance
with its terms, except as such enforceability may be subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors’ rights generally and (ii) general principles
of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity).

      


      (c)           No
consent, approval, authorization or order of, or filing, registration or
qualification with, any Governmental Authority or third party is required in
connection with the execution, delivery or performance by such Person of this
Amendment.

      


      (d)           The
representations and warranties set forth in Article III of the Credit Agreement
(as amended by this Amendment) are true and correct as of the date hereof
(except for those which expressly relate to an earlier date).

      


      (e)           After
giving effect to this Amendment, no event has occurred and is continuing which
constitutes a Default or an Event of Default.

      


      (f)           The
Security Documents continue to create a valid security interest in, and Lien
upon, the Collateral, in favor of the Administrative Agent, for the benefit of
the Lenders, which security interests and Liens are perfected in accordance with
the terms of the Security Documents and prior to all Liens other than Permitted
Liens.

      


      (g)           The
Credit Party Obligations are not reduced or modified by this Amendment and are
not subject to any offsets, defenses or counterclaims.

       

      
        
          
          

        

        
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      4.2           Instrument
Pursuant to Credit Agreement.  This Amendment is
a Credit Document executed pursuant to the Credit Agreement and shall be
construed, administered and applied in accordance with the terms and provisions
of the Credit Agreement.

      


      4.3           Reaffirmation
of Credit Party Obligations.  Each Credit Party
hereby ratifies the Credit Agreement and acknowledges and reaffirms (a) that it
is bound by all terms of the Credit Agreement applicable to it and (b) that it
is responsible for the observance and full performance of its respective Credit
Party Obligations.

      


      4.4           Survival.  Except as
expressly modified and amended in this Amendment, all of the terms and
provisions and conditions of each of the Credit Documents shall remain
unchanged.

      


      4.5           Expenses.  The Borrower
agrees to pay all reasonable costs and expenses of the Administrative Agent in
connection with the preparation, execution and delivery of this Amendment,
including without limitation the reasonable expenses of the Administrative
Agent’s legal counsel.

      


      4.6           Further
Assurances.  The Credit
Parties agree to promptly take such action, upon the request of the
Administrative Agent, as is necessary to carry out the intent of this
Amendment.

      


      4.7           Entirety.  This Amendment
and the other Credit Documents embody the entire agreement among the parties
hereto and thereto and supersede all prior agreements and understandings, oral
or written, if any, relating to the subject matter hereof and
thereof.

      


      4.8           Counterparts.  This Amendment
may be executed in any number of counterparts, each of which when so executed
and delivered shall be an original, but all of which shall constitute one and
the same instrument.  Delivery of executed counterparts of this
Amendment by telecopy or other electronic means shall be effective as an
original and shall constitute a representation that an original shall be
delivered if requested by the Administrative Agent.

      


      4.9           No
Actions, Claims, Etc.  As of the date hereof, each of the
Credit Parties hereby acknowledges and confirms that it has no knowledge of any
actions, causes of action, claims, demands, damages and liabilities of whatever
kind or nature, in law or in equity, against the Administrative Agent, the
Lenders, or the Administrative Agent’s or the Lenders’ respective officers,
employees, representatives, agents, counsel or directors arising from any action
by such Persons, or failure of such Persons to act under this Credit Agreement
on or prior to the date hereof.

      


      4.10         General
Release.  In consideration
of the Administrative Agent entering into this Amendment, each Credit Party
hereby releases the Administrative Agent, the Lenders, and the Administrative
Agent’s and the Lenders’ respective officers, employees, representatives,
agents, counsel and directors from any and all actions, causes of action,
claims, demands, damages and liabilities of whatever kind or nature, in law or
in equity, now known or unknown, suspected or unsuspected to the extent that any
of the foregoing arises from any action or failure to act under the Credit
Agreement on or prior to the date hereof, except, with respect to any such
person being released hereby, any actions, causes of action, claims, demands,
damages and liabilities arising out of such person’s gross negligence, bad faith
or willful misconduct.

       

      
        
          
          

        

        
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      4.11         Waiver of
Jurisdiction; Service of Process; Waiver of Jury Trial.  The jurisdiction,
service of process and waiver of jury trial provisions set forth in Sections
9.13 and 9.16 of the Credit Agreement are hereby incorporated by reference,
mutatis
mutandis.

      


      4.12         Governing
Law.  THIS AGREEMENT
SHALL BE DEEMED TO BE A CONTRACT UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).

      


      4.13         Successors
and Assigns.  This Amendment shall be binding upon and inure to
the benefit of the Credit Parties, the Administrative Agent, the Lenders and
their respective successors and assigns.

      


      [Signature
Pages Follow]

       

      
        
          
          

        

        
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        GENCORP
INC.

        FIRST
AMENDMENT, CONSENT AND WAIVER TO CREDIT AGREEMENT

         

         

      

      The
parties hereto have duly executed this Amendment as of the date first above
written.

      


      


      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            	
                                                    BORROWER:

                                                  	
                                                    GENCORP
      INC.,

                                                  
	 
      	
                                                    an
      Ohio corporation

                                                  
	 
      	 
      
	 
      	 
      
	 
      	
                                                    By: /s/ William M. Lau

                                                  
	 
      	
                                                    Name:
      William M. Lau

                                                  
	 
      	
                                                    Title:  Vice
      President and Treasurer

                                                  
	 
      	 
      
	 
      	 
      
	 
      	 
      
	
                                                    GUARANTORS:

                                                  	
                                                    AEROJET-GENERAL
      CORPORATION,

                                                  
	 
      	
                                                    an
      Ohio corporation

                                                  
	 
      	 
      
	 
      	 
      
	 
      	
                                                    By: /s/ William M. Lau

                                                  
	 
      	
                                                    Name:
      William M. Lau

                                                  
	 
      	
                                                    Title:  Vice
      President and Treasurer

                                                  
	 
      	 
      
	 
      	 
      
	 
      	
                                                    AEROJET
      ORDNANCE TENNESSEE, INC.,

                                                  
	 
      	
                                                    a
      Tennessee corporation

                                                  
	 
      	 
      
	 
      	 
      
	 
      	
                                                    By: /s/ Brian E. Sweeney

                                                  
	 
      	
                                                    Name:
      Brian E. Sweeney

                                                  
	 
      	
                                                    Title:  Vice
      President and
Secretary

                                                  


                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

      


      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      


      


      
        
          
            
              
                
                  
                    
                      
                        
                          
                            	
                                    ADMINISTRATIVE

                                  	 
      
	
                                     AGENT:

                                  	
                                    WACHOVIA BANK, NATIONAL
      ASSOCIATION,

                                  
	 
      	
                                    as
      Administrative Agent on behalf of the Lenders

                                  
	 
      	 
      
	 
      	 
      
	 
      	
                                    By:/s/ Scott Santa Cruz

                                  
	 
      	
                                    Name:
      Scott Santa Cruz

                                  
	 
      	
                                    Title:  Director