|
Exhibit 10.29
THIRD AMENDMENT TO
FIRST LIEN
CREDIT AND GUARANTY
AGREEMENT
AND WAIVER
THIS THIRD AMENDMENT TO FIRST LIEN
CREDIT AND GUARANTY AGREEMENT AND WAIVER dated as of March 19, 2007
(the “ Agreement ”)
is entered into among GENTEK INC., a Delaware corporation (
“ Holdings
”), GENTEK HOLDING, LLC, a
Delaware limited liability company (the “
Borrower ”), certain Subsidiaries of the Borrower, as
Guarantors, the Lenders party hereto, Bank of America, N.A.
( “BOFA
”), as Collateral Agent and
Co-Administrative Agent and General Electric Capital Corporation,
as Co-Administrative Agent. All capitalized terms used herein and
not otherwise defined herein shall have the meanings given to such
terms in the Credit Agreement (as defined below).
RECITALS
WHEREAS, Holdings, the Borrower, the
Guarantors, the Lenders, Goldman Sachs Credit Partners L.P., as
Joint Lead Arranger, Sole Bookrunner and Syndication Agent, Banc of
America Securities LLC, as Joint Lead Arranger, General Electric
Capital Corporation, as Co-Administrative Agent and Bank of
America, N.A., as Collateral Agent and Co-Administrative Agent
entered into that certain First Lien Credit and Guaranty Agreement
dated as of February 28, 2005 (as amended or modified from time to
time, the “ Credit
Agreement ”);
WHEREAS, Noma Holding Inc. (the
“ Selle
r”) sold certain assets (the
“ Transferred
Assets ”) to
Electrical Components International, Inc. (the “
Purchaser ”) pursuant to that certain Asset Purchase
Agreement dated as of December 22, 2006 among the Purchaser, the
Seller and Holdings;
WHEREAS, the Borrower has requested
that the Lenders permit the Borrower to prepay the Second Lien Term
Loans in full with the Net Asset Sale Proceeds received from the
sale of the Transferred Assets and the proceeds of the Term B Loans
(as defined below);
WHEREAS, the Borrower has also
requested that the Lenders amend the Credit Agreement as set forth
below;
NOW, THEREFORE, in consideration of the
premises and the mutual covenants contained herein, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
1.
Waiver . Subject to the other terms and conditions of this
Agreement, notwithstanding the terms of Section 2.14(a) of the
Credit Agreement and Section 6.5 of the Credit Agreement, the
Lenders hereby agree that (a) the Borrower shall not be required to
prepay the Loans with the Net Asset Sale Proceeds from the sale of
the Transferred Assets and (b) the Borrower may prepay the Second
Lien Term Loans with the proceeds of the Term B Loan;
provided that the Borrower uses the Net Asset Sale Proceeds
from the sale of the Transferred Assets and the proceeds of the
Term B Loan to repay the Second Lien Term Loans in full on the
Third Amendment Effective Date. The above waivers shall not modify
or affect the Credit Parties’ obligations to comply fully
with the terms of Section 2.14(a), Section 6.5 or any other duty,
term, condition or covenant contained in the Credit Agreement or
any other Credit Document in the future. This waiver is limited
solely to the specific waivers identified in this Section 1, and
nothing contained in this Agreement shall be deemed to constitute a
waiver of any other rights or remedies that the Co-Administrative
Agents or any Lender may have under the Credit Agreement or any
other Credit Document or under applicable law.
2.
Amendments . The Credit Agreement is hereby amended as
follows:
(a)
The
following definitions are hereby added to Section 1.1 of the Credit
Agreement in the appropriate alphabetical order and shall read as
follows:
“Excepted Asset
Sales” means those
Asset Sales described on Schedule 1.1(d) hereto.
“Term B Loan”
means a Term B Loan made by a Lender to
Borrower pursuant to Section 2.1(c) .
“ Term B Loan Commitment ” means the commitment of a Lender to make or
otherwise fund a Term B Loan and “Term B Term Loan Commitments”
means such commitments of all Lenders
in the aggregate. The amount of each Lender’s Term B Loan
Commitment, if any, is set forth on Appendix A-3 or in the
applicable Assignment Agreement, subject to any adjustment or
reduction pursuant to the terms and conditions hereof. The
aggregate amount of the Term B Loan Commitments as of the Third
Amendment Effective Date is $50,000,000.
“Term B Loan
Exposure” means, with
respect to any Lender, as of any date of determination, the
outstanding principal amount of the Term B Loans of such Lender;
provided, at any time prior to the making of the Term B Loans, the
Term B Loan Exposure of any Lender shall be equal to such
Lender’s Term B Loan Commitment.
“Term B Loan
Installment” as
defined in Section 2.12(b) .
“Term B Loan Installment
Date” as defined in
Section 2.12(b) .
“Term B Loan Maturity
Date” means the
earlier of (i) February 28, 2011, and (ii) the date that all Term B
Loans shall become due and payable in full hereunder, whether by
acceleration or otherwise.
“Term B Loan
Note” means a
promissory note in the form of Exhibit B-4, as it may be amended,
supplemented or otherwise modified from time to time.
“Third Amendment Effective
Date” means March 19,
2007.
(b)
Part
(i) of the definition of “Applicable Margin” in Section
1.1 of the Credit Agreement is hereby amended to read as
follows:
(i) with respect to
Term Loans and Term B Loans that are (a) Eurodollar Rate Loans,
2.25% per annum and (b) Base Rate Loans, 1.25% per annum;
provided , that in the event the Loans are rated B1 or better
by Moody’s then the Applicable Margin shall be (a) 2.00% per
annum with respect to Eurodollar Rate Loans and (b) 1.00% per annum
with respect to Base Rate Loans;
(c)
The
definition of “Class” in Section 1.1 of the Credit
Agreement is hereby amended to read as follows:
“Class”
means (i) with respect to Lenders, each
of the following classes of Lenders: (a) Lenders having Term Loan
Exposure, (b) Lenders having Term B Loan
2
Exposure and (c)
Lenders having Revolving Exposure (including Swing Line Lender),
and (ii) with respect to Loans, each of the following classes of
Loans: (a) Term Loans, (b) Term B Loans and (c) Revolving Loans
(including Swing Line Loans).
(d)
The
definition of “Commitment” in Section 1.1 of the Credit
Agreement is hereby amended to read as follows:
“Commitment”
means any Revolving Commitment, Term
Loan Commitment or Term B Loan Commitment.
(e)
The
second parenthetical in the definition of “Consolidated
Excess Cash Flow” in Section 1.1 of the Credit Agreement is
hereby amended to read as follows:
(excluding (i)
repayments of Revolving Loans or Swing Line Loans except to the
extent the Revolving Commitments are permanently reduced in
connection with such repayments and (ii) repurchases of Term Loans
and Term B Loans made pursuant to Section 2.13(c))
(f)
Part
(c) of the definition of “Interest Period” in Section
1.1 of the Credit Agreement is hereby amended to read as
follows:
(c)(i) no Interest
Period with respect to any portion of the Term Loans shall extend
beyond the Term Loan Maturity Date and (ii) no Interest Period with
respect to any portion of the Term B Loans shall extend beyond the
Term B Loan Maturity Date;
(g)
The
definition of “Loan” in Section 1.1 of the Credit
Agreement is hereby amended to read as follows:
“Loan”
means a Term Loan, a Term B Loan, a
Revolving Loan and a Swing Line Loan.
(h)
The
definition of “Pro Rata Share” in Section 1.1 of the
Credit Agreement is hereby amended to read as follows:
“Pro Rata
Share” means (i) with
respect to all payments, computations and other matters relating to
the Term Loan of any Lender, the percentage obtained by dividing
(a) the Term Loan Exposure of that Lender by (b) the aggregate Term
Loan Exposure of all Lenders; (ii) with respect to all payments,
computations and other matters relating to the Term B Loan of any
Lender, the percentage obtained by dividing (a) the Term B Loan
Exposure of that Lender by (b) the aggregate Term B Loan Exposure
of all Lenders and (iii) with respect to all payments, computations
and other matters relating to the Revolving Commitment or Revolving
Loans of any Lender or any Letters of Credit issued or
participations purchased therein by any Lender or any
participations in any Swing Line Loans purchased by any Lender, the
percentage obtained by dividing (a) the Revolving Exposure of that
Lender by (b) the aggregate Revolving Exposure of all Lenders. For
all other purposes with respect to each Lender, “Pro Rata
Share” means the percentage obtained by dividing (A) an
amount equal to the sum of the Term Loan Exposure, Term B Loan
Exposure and the Revolving Exposure of that Lender, by (B) an
amount equal to the sum of the aggregate Term Loan Exposure, Term B
Loan Exposure and the aggregate Revolving Exposure of all
Lenders.
3
(i)
The
definition of “Requisite Class Lenders” in Section 1.1
of the Credit Agreement is hereby amended to read as
follows:
“Requisite Class
Lenders” means, at any
time of determination, (i) for the Class of Lenders having Term
Loan Exposure, Lenders holding more than 50% of the aggregate Term
Loan Exposure of all Lenders; (ii) for the Class of Lenders having
Term B Loan Exposure, Lenders holding more than 50% of the
aggregate Term B Loan Exposure of all Lenders; and (iii) for the
Class of Lenders having Revolving Exposure, Lenders holding more
than 50% of the aggregate Revolving Exposure of all
Lenders.
(j)
The definition of “Requisite Lenders” in Section 1.1 of
the Credit Agreement is hereby amended to read as
follows:
“Requisite
Lenders” means one or
more Lenders having or holding Term Loan Exposure, Term B Loan
Exposure and/or Revolving Exposure and representing more than 50%
of the sum of (i) the aggregate Term Loan Exposure of all Lenders,
(ii) the aggregate Term B Loan Exposure of all Lenders and (iii)
the aggregate Revolving Exposure of all Lenders.
(k)
The
definition of “Type of Loan” in Section 1.1 of the
Credit Agreement is hereby amended to read as follows:
“Type of
Loan” means (i) with
respect to either Term Loans, Term B Loans or Revolving Loans, a
Base Rate Loan or a Eurodollar Rate Loan, and (ii) with respect to
Swing Line Loans, a Base Rate Loan.
(l)
New
Sections 2.1(c) and (d) are hereby added to the Credit Agreement to
read as follows:
(c)
Term B Loan Commitments
. Subject to the terms and conditions
hereof, each Lender severally agrees to make, on the Third
Amendment Effective Date, a Term B Loan to the Borrower in an
amount equal to such Lender’s Term B Loan Commitment.
Borrower may make only one borrowing under the Term B Loan
Commitment which shall be on the Third Amendment Effective Date.
Any amount borrowed under this Section 2.1(c) and subsequently
repaid or prepaid may not be reborrowed. Subject to Sections
2.13(a) and 2.14, all amounts owed hereunder with respect to the
Term B Loans shall be paid in full no later than the Term B Loan
Maturity Date. Each Lender’s Term B Loan Commitment shall
terminate immediately and without further action on the Third
Amendment Effective Date after giving effect to the funding of such
Lender’s Term B Loan Commitment on such date. The Term B
Loans may consist of Eurodollar Rate Loans or Base Rate Loans, as
further provided herein.
(d)
Borrowing Mechanics for Term B
Loans . Borrower shall
deliver to BOFA a fully executed Funding Notice (y) three Business
Days prior to the Third Amendment Effective Date in the case of
Term B Loans which are Eurodollar Rate Loans and (z) one Business
Day prior to the Third Amendment Effective Date in the case of Term
B Loans which are Base Rate Loans. Promptly upon receipt by BOFA of
such notice, BOFA shall notify each Lender of the proposed
borrowing. Each Lender shall make its Term B Loan available to BOFA
in immediately available funds by wire transfer of same day funds
in Dollars, at the Principal Office designated by BOFA. BOFA shall
make the proceeds of the Term B Loan available to the Borrower on
the Third
4
Amendment Effective
Date by causing an amount of same day funds in Dollars equal to the
proceeds of the Term B Loan to be credited to the account of the
Borrower at the Principal Office designated by BOFA or to such
other account as may be designated in writing to BOFA by the
Borrower.
(m)
Section
2.5(a) of the Credit Agreement is hereby amended to read as
follows:
(a)
Pro Rata Shares
. All Loans shall be made, and all
participations purchased, by Lenders simultaneously and
proportionately to their respective Pro Rata Shares, it being
understood that no Lender shall be responsible for any default by
any other Lender in such other Lender’s obligation to make a
Loan requested hereunder or purchase a participation required
hereby nor shall any Term Loan Commitment, Term B Loan Commitment
or any Revolving Commitment of any Lender be increased or decreased
as a result of a default by any other Lender in such other
Lender’s obligation to make a Loan requested hereunder or
purchase a participation required hereby.
(n)
The last sentence of Section 2.5(b) of the Credit Agreement is
hereby amended to read as follows:
Nothing in this
Section 2.5(b) shall be deemed to relieve any Lender from its
obligation to fulfill its Term Loan Commitments, Term B Loan
Commitments and Revolving Commitments hereunder or to prejudice any
rights that the Borrower may have against any Lender as a result of
any default by such Lender hereunder.
(o)
The following sentence is hereby added at the end of Section 2.6 of
the Credit Agreement:
The proceeds of the
Term B Loans shall be applied by the Borrower to repay the Second
Lien Term Loans on the Third Amendment Effective Date.
(p)
Section
2.7(c) of the Credit Agreement is hereby amended to read as
follows:
(c)
Notes . If so requested by any Lender by written notice to
the Borrower (with a copy to Administrative Agents) at least two
Business Days prior to the Closing Date, or at any time thereafter,
the Borrower shall execute and deliver to such Lender (and/or, if
applicable and if so specified in such notice, to any Person who is
an assignee of such Lender pursuant to Section 10.6) on the Closing
Date (or, if such notice is delivered after the Closing Date,
promptly after Borrower’s receipt of such notice) a Note or
Notes to evidence such Lender’s Term Loan, Term B Loan,
Revolving Loan or Swing Line Loan, as the case may be.
(q)
Clause (i) in Section 2.8(a) of the Credit Agreement is hereby
amended to read as follows:
(i)
in the
case of Term Loans, Term B Loans and Revolving Loans:
(r)
The
first sentence of Section 2.8(c) of the Credit Agreement is hereby
amended to read as follows:
(c)
In
connection with Eurodollar Rate Loans there shall be no more than
(i) five (5) Interest Periods outstanding at any time with respect
to Revolving Loans, (ii)
5
five (5) Interest
Periods outstanding at any time with respect to the Term Loans and
(iii) five (5) Interest Periods outstanding at any time with
respect to the Term B Loans.
(s)
Subclauses (ii) and (iii) of Section 2.8(e) of the Credit Agreement
are hereby amended to read as follows:
(ii) with respect to
Term Loans and Term B Loans, shall accrue on a daily basis on and
to the March 31st, June 30th, September 30th and December 31st most
recently ended prior to such payment date and shall be payable in
arrears on each Interest Payment Date; (iii) shall accrue on a
daily basis and shall be payable in arrears upon any prepayment of
Term Loans or Term B Loans, whether voluntary or mandatory, to the
extent accrued on the amount being prepaid;.
(t)
The
language preceding the proviso in Section 2.9(a)(i) of the Credit
Agreement is hereby amended to read as follows:
(i)
to
convert at any time all or any part of any Term Loan, Term B Loan
or Revolving Loan equal to $500,000 and integral multiples of
$100,000 in excess of that amount from one Type of Loan to another
Type of Loan;
(u)
A new
Section 2.12(b) is hereby added to the Credit Agreement following
Section 2.12(a) to read as follows:
(b)
Scheduled Installments for Term B
Loans . The principal
amounts of the Term B Loans shall be repaid in consecutive
quarterly installments (each, a “Term B Loan Installment”
) in the aggregate amounts set forth
below on the four quarterly scheduled Interest Payment Dates
applicable to Term B Loans (each, a “Term B Loan Installment Date”
), commencing June 30, 2007:
| Fiscal Quarter |
Term B Loan
Installments |
| June
30, 2007 |
$125,000 |
| September 30, 2007 |
$125,000 |
| December 31, 2007 |
$125,000 |
| March 31, 2008 |
$125,000 |
| June
30, 2008 |
$125,000 |
| September 30, 2008 |
$125,000 |
| December 31, 2008 |
$125,000 |
| March 31, 2009 |
$125,000 |
| June
30, 2009 |
$125,000 |
| September 30, 2009 |
$125,000 |
| December 31, 2009 |
$125,000 |
| March 31, 2010 |
$125,000 |
| June
30, 2010 |
$12,125,000 |
| September 30, 2010 |
$12,125,000 |
| December 31, 2010 |
$12,125,000 |
| Term B Loan Maturity Date |
$12,125,000 |
Notwithstanding the
foregoing, (x) such Term B Loan Installments shall be reduced in
connection with any voluntary or mandatory prepayments of the Term
B Loans, as the case may be, in accordance with Sections 2.13, 2.14
and 2.15, as applicable; and (y) the
6
| 
