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Exhibit 10.1
SECOND AMENDMENT
TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") dated as of June 3, 1999 is by and among Astec Industries,
Inc., a Tennessee corporation ("Astec"), Astec Financial Services, Inc., a
Tennessee corporation ("AFS"; Astec and AFS are sometimes referred to herein
individually as a "Borrower" and collectively as the "Borrowers"), the
financial institutions parties hereto in their capacities as lenders
(individually, a "Lender" and collectively, the "Lenders") and The First
National Bank of Chicago, as agent (the "Agent").
RECITALS
WHEREAS, the Borrowers, the Lenders and the Agent have entered into a
certain Second Amended and Restated Credit Agreement dated as of November 24,
1997 and amended by a First Amendment and Waiver dated as of October 30, 1998
(as so amended, the "Credit Agreement"; all capitalized terms used but not
otherwise defined herein shall have the respective meanings ascribed thereto in
the Credit Agreement), pursuant to which the Lenders have provided certain
revolving credit, letter of credit and swing line facilities to the Borrowers,
which facilities are guaranteed by certain guarantors defined therein;
WHEREAS, the Borrowers have requested an increase (the "Commitment
Increase") in the Aggregate Commitment in the amount of $20,000,000, and the
Lenders are willing, on the terms and conditions set forth herein, to grant the
Commitment Increase; and
WHEREAS, the Borrowers, the Lenders and the Agent wish to amend
certain other provisions of the Credit Agreement on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the terms and conditions set forth
herein, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the Borrowers, the Lenders and
the Agent hereby agree as follows:
Section 1. Amendments.
1.1. Article I of the Credit Agreement is hereby amended as follows:
(a) By substituting the dollar amount "$90,000,000" for the
dollar amount "$70,000,000" in the definition of the term "Aggregate
Commitment" contained therein.
(b) By substituting the dollar amount "$70,000,000" for the
dollar amount "$50,000,000" in the definition of the term "Aggregate
Tranche A Sublimit" contained therein.
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(c) By substituting the dollar amount "$40,000,000" for the
dollar amount "$30,000,000" in the definition of the term "Aggregate
Tranche B Sublimit" contained therein.
(d) By restating in its entirety the definition of the term
"Guarantor" contained therein to read as follows:
"`Guarantor' means Heatec, Inc., a Tennessee corporation,
Roadtec, Inc., a Tennessee corporation, Trencor, Inc., a Texas
corporation (formerly known as Trencor Jetco, Inc.), Telsmith, Inc., a
Delaware corporation, Astec Transportation, Inc., a Tennessee
corporation, Production Engineered Products, Inc., a Nevada
corporation, Astec, Inc., a Tennessee corporation, CEI Enterprises,
Inc., a Tennessee corporation, AFS, Astec Investments, Inc., a
Tennessee corporation, Xxxxxxx-Pioneer, Inc., a Tennessee corporation,
Astec Holdings, Inc., a Tennessee corporation, Xxxxxxx Crushers
International, Inc., a Tennessee corporation, each other Person that
becomes a party to the Guaranty pursuant to the terms hereof and their
respective successors and assigns."
(e) By inserting the following definition after the definition
of the term "Percentage" and before the definition of the term
"Permitted Recourse Lease Sales":
"`Permitted Acquisition' means an Acquisition of the capital
stock or other equity interests in a Person or the assets of a Person
engaged in the production of aggregate processing and mining
equipment, hot mix asphalt production equipment, thermal heating and
storage equipment, mobile road construction equipment, trenching
equipment or pavement analyzing equipment, that has been approved or
consented to by the board of directors or equivalent governing body of
such Person."
1.2. Section 6.16 of the Credit Agreement is hereby amended by
restating in its entirety paragraph (i) thereof to read as follows::
"(i) Permitted Acquisitions by Astec or by Wholly-Owned
Subsidiaries of Astec formed for the purpose of making such
Acquisitions; provided, however, that (i) the aggregate purchase
price (including any portion thereof that is deferred) of such
Acquisitions, including consideration in the form of cash, cash
equivalents and common stock and assumed Indebtedness and Indebtedness
paid at the time of the consummation thereof, does not exceed
$60,000,000 during any one fiscal year, (ii) the aggregate purchase
price (including any portion thereof that is deferred) of such
Acquisitions, including consideration in the form of cash and cash
equivalents only and assumed Indebtedness and Indebtedness paid at the
time of the consummation thereof, does not exceed $25,000,000 during
any one fiscal year, (iii) no Unmatured Default or Default has
occurred and is continuing or will result therefrom and Astec submits
a certificate to the Agent at the time of the consummation of each
such Acquisition to such effect and certifying that the Credit Parties
are and will be in
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compliance on a pro forma basis with the financial and other covenants
hereunder after giving effect to such Acquisition, (iv) 100% of the
outstanding capital stock or other equity interests in any acquired
Person must be and, except as permitted by Section 6.13, shall remain
directly owned by Astec or by a Wholly-Owned Subsidiary of Astec
formed for the purpose of making such Acquisition, and (v) each
Subsidiary acquired or formed in connection with each such Acquisition
becomes a party to the Guaranty by executing and delivering to the
Agent a joinder agreement in form and substance satisfactory to the
Agent, and delivers to the Agent such evidence of requisite corporate
action and opinions of counsel as the Agent may reasonably request;"
1.3. Section 6.13 of the Credit Agreement is hereby
amended by restating in its entirety the last sentence thereof to read as
follows:
"Each of the Subsidiaries of Astec shall at all times be a
Wholly-Owned Subsidiary of Astec."
1.4. Section 6.22.3 of the Credit Agreement is hereby
restated in its entirety to read as follows:
"6.22.3. Rentals. The Borrowers will not, nor will they
permit any Credit Party to, create, incur or suffer to exist
obligations for Rentals in excess of $6,000,000 during any one fiscal
year on a non-cumulative basis in the aggregate for the Credit
Parties."
1.5. Section 6.23 of the Credit Agreement is hereby
restated in its entirety to read as follows:
"6.23. Fixed Asset Expenditures. The Borrowers will not, nor
will they permit any Credit Party to, expend, or be committed to
expend, in the acquisition of fixed assets, in excess of eight percent
(8%) of Consolidated Net Revenue during any one fiscal year on a
non-cumulative basis in the aggregate for the Credit Parties."
1.6. Schedule I to the Credit Agreement is hereby restated
in its entirety to read in the form of Schedule I hereto.
2. Reference to and Effect on the Credit Agreement.
2.1. Except as specifically amended hereby, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed.
2.2. The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of the
Lenders or the Agent under the Credit Agreement or any of the other Loan
Documents, or constitute a waiver of any provision of the Credit Agreement or
any of the other Loan Documents. Upon the effectiveness of this Amendment, each
reference in the Credit Agreement to "this Agreement," "hereunder," "hereof"
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or words of similar import shall mean and be a reference to the Credit
Agreement as amended hereby.
2.3. Each Guarantor joins in this Amendment solely for the purpose of
consenting to the terms hereof, and each Guarantor hereby unconditionally
consents to the terms of this Amendment and fully ratifies and affirms the
Guaranty, after giving effect to this Amendment, and Astec Holdings, Inc.
("Astec Holdings") and Xxxxxxx-Pioneer, Inc. ("KPI") join in this Amendment, in
addition, for the purpose of confirming that the Obligations under the Credit
Agreement, as amended by this Amendment, and KPI's guaranty thereof pursuant to
the Guaranty constitute "Senior Debt" as defined in the Subordination Agreement
dated as of December 2, 1997 (the "Subordination Agreement") between Astec
Holdings and the Agent, and fully ratify and affirm the Subordination
Agreement, after giving effect to this Amendment.
3. Representations and Warranties. To induce the Lenders and the
Agent to execute this Agreement, the Borrowers represent and warrant to the
Lenders and the Agent as follows:
3.1. The Borrowers have all requisite power and authority to execute,
deliver and perform this Amendment.
3.2. The execution, delivery and performance of this Amendment (i)
have been duly authorized by all necessary corporate action of the Borrowers
and (ii) will not (A) violate (1) any provision of law, statute, rule or
regulation or the articles/certificate of incorporation or other constitutive
documents or the by-laws or regulations of the Borrowers, (2) any order of any
court, or any rule, regulation or order of any other agency of government
binding upon the Borrowers, or (3) any provisions of any material indenture,
agreement or other instrument to which the Borrowers are a party, or by which
the Borrowers or any of their properties or assets is or may be bound, or (B)
be in conflict with, result in a breach of or constitute (alone or with notice
or lapse of time or both) a default under any indenture, agreement or other
instrument referred to in clause (ii)(A)(3) above.
3.3. This Amendment constitutes the legal, valid and binding
obligation of Borrowers enforceable in accordance with its terms.
3.4. The representations and warranties in the Loan Documents are true
and correct in all material respects with the same effect as though made on and
as of the date hereof.
3.5. The Borrowers are in compliance with all of the terms and
provisions set forth in the Credit Agreement and the other Loan Documents and
no Default or Unmatured Default has occurred and is continuing.
4. Conditions. This Amendment shall become effective as of the date
(the "Amendment Effective Date") upon which the following conditions shall have
been satisfied:
4.1. The Agent shall have executed a counterpart of this Amendment and
received the following, all of which shall be in form and substance
satisfactory to the Agent and its counsel:
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(a) counterparts of this Amendment executed by the Borrowers,
the Guarantors and the Lenders;
(b) a Tranche A Note and Tranche B Note payable to the order
of each Lender duly executed by Astec in the amount of such Lender's
Tranche A Commitment and Tranche B Commitment, respectively (after
giving effect to the Commitment Increase);
(c) a certificate of the Secretary or Assistant Secretary of
each Credit Party with respect to attached resolutions of its Board of
Directors authorizing the execution and delivery of this Amendment,
which certificate shall also be to the effect that the articles or
certificate of incorporation and by-laws of such Credit Party
delivered to the Agent at the time of the initial Credit Extension
continue to be in full force and effect and have not been amended (or
if any such Credit Party did not deliver to the Agent copies of its
articles or certificate of incorporation and by-laws at such time,
copies thereof, certified by its Secretary or Assistant Secretary);
(d) a certificate of good standing or existence for each
Credit Party, certified by the appropriate governmental officer in
such Credit Party's jurisdiction of incorporation;
(e) an incumbency certificate, executed by the Secretary or
Assistant Secretary of each Guarantor that has not theretofore
delivered such a certificate to the Agent, which shall identify by
name and title and bear the signature of the officers of such
Guarantor authorized to execute this Amendment and the Loan Documents,
upon which certificate the Lenders and the Agent shall be entitled to
rely until informed of any change in writing by Astec;
(f) a written opinion of counsel for each Credit Party,
addressed to the Agent and the Lenders; and
(g) such other documents as any Lender or its counsel may
have reasonably requested.
4.2. Astec shall have paid the following fees:
(a) an up-front fee in the amount set forth in the
Abbreviated Term Sheet for the Amendment and Increase dated May 5,
1999 (the "Term Sheet"), payable to the Agent, for the ratable benefit
of the Lenders based their respective shares of the Commitment
Increase,
(b) an arrangement fee to Banc One Capital Markets, Inc. in
accordance with the Fee Letter dated May 5, 1999 among First Chicago,
Banc One Capital Markets, Inc. and Astec,
(c) amendment fees to Amsouth Bank and First American
National Bank in the respective amounts set forth in the Term Sheet,
and
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(d) all fees, costs and expenses required to be paid by it
pursuant to Section 6.3 hereof and for which an invoice has been
submitted to it.
4.3. The Borrowers shall have paid to the Agent for the
account of each Lender in accordance with its Percentage (before giving effect
to this Amendment) the Commitment Fee accrued to and including the Amendment
Effective Date.
4.4. The Borrowers shall have repaid all Tranche A Revolving
Loans and Tranche B Revolving Loans and reborrowed Tranche A Revolving Loans
and Tranche B Revolving Loans from each of the Lenders in the amounts necessary
to cause the aggregate outstanding principal amount of Revolving Loans of each
Lender to equal the product of the aggregate outstanding principal amount of
Revolving Loans, multiplied by such Lender's Percentage (after giving effect to
this Amendment).
4.5. The Borrowers shall have paid the Lenders all amounts
required to be paid pursuant to Section 3.5 of the Credit Agreement in
connection with the repayment of Revolving Loans on the Amendment Effective
Date.
Promptly following the Amendment Effective Date, the
Lenders shall return to Astec the Tranche A Notes and Tranche B Notes delivered
by Astec at the time of the initial Credit Extension.
5. Reallocation of Percentages. Effective as of the
Amendment Effective Date, the Percentage of each Lender shall be the percentage
set forth opposite its name on Schedule 1 hereto, and on the Amendment Effective
Date, the participations in the Facility Letters of Credit deemed to have been
purchased by the Lenders pursuant to Section 2.11.5(a) of the Credit Agreement
shall be reallocated so that the Lenders shall be deemed to have purchased
participations in the Facility Letters of Credit in the amount of their
respective Percentages thereof (after giving effect to this Amendment).
6. Miscellaneous.
6.1. This Amendment, including all schedules attached hereto,
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes all other understandings, oral or written, with
respect to the subject matter hereof.
6.2. This 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.
6.3. In accordance with Section 9.7 of the Credit Agreement,
the Borrowers agree, jointly and severally, to promptly pay all reasonable
fees, costs and expenses incurred by the Agent in connection with the
preparation, execution and delivery of this Amendment.
6.4. The Borrowers acknowledge and agree that as of the date
hereof they have no offsets or claims against the Lenders or the Agent under
the Loan Documents or under other agreements between the Borrowers and the
Lenders, or any defenses to the Lenders' or the Agent's enforcement of their
rights and remedies under the Loan Documents.
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6.5. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
6.6. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
6.7. This Amendment shall be binding upon each of the parties
hereto and their respective successors and assigns, except that the Borrowers
may not assign their rights or obligations hereunder without the written
consent of the Lenders and the Agent.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the Borrowers, the Lenders, the Guarantors and the
Agent have executed this Amendment as of the date first above written.
ASTEC INDUSTRIES, INC. ASTEC FINANCIAL SERVICES, INC.
By:_____________________________ By:______________________________
Print Name:_____________________ Print Name:______________________
Title:__________________________ Title: __________________________
Address: 0000 Xxxxxx Xxxxxx Address: 0000 Xxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000 Xxxxxxxxxxx, Xxxxxxxxx 00000
Telecopy: (000) 000-0000 Telecopy: (000) 000-0000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Attention: X. XxXxxx Hall Attention: Xxxxxx X. Xxxx
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IN WITNESS WHEREOF, the Borrowers, the Lenders, the Guarantors and the
Agent have executed this Amendment as of the date first above written.
HEATEC, INC. TELSMITH, INC.
By:_______________________________ By:________________________________
Its:______________________________ Its:_______________________________
ROADTEC, INC. ASTEC TRANSPORTATION, INC.
By:_______________________________ By:________________________________
Its:______________________________ Its:_______________________________
TRENCOR, INC. PRODUCTION ENGINEERED
PRODUCTS, INC.
By:_______________________________ By:________________________________
Its:______________________________ Its:_______________________________
ASTEC, INC. CEI ENTERPRISES, INC.
By:_______________________________ By:________________________________
Its:______________________________ Its:_______________________________
XXXXXXX-PIONEER, INC. ASTEC HOLDINGS, INC.
By:_______________________________ By:________________________________
Its:______________________________ Its:_______________________________
ASTEC INVESTMENTS, INC. XXXXXXX CRUSHERS
INTERNATIONAL, INC.
By: By:
Its: Its:
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IN WITNESS WHEREOF, the Borrowers, the Lenders, the Guarantors and the
Agent have executed this Amendment as of the date first above written.
THE FIRST NATIONAL BANK OF
CHICAGO, INDIVIDUALLY AND AS AGENT
By:____________________________________
Print Name:____________________________
Title:_________________________________
Address: Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxx X. XxXxxxx
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IN WITNESS WHEREOF, the Borrowers, the Lenders, the
Guarantors and the Agent have executed this Amendment as of the date first
above written.
FIRST AMERICAN NATIONAL BANK
By:_____________________________________
Print Name:_____________________________
Title:__________________________________
Address: Xxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
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IN WITNESS WHEREOF, the Borrowers, the Lenders, the Guarantors and the
Agent have executed this Amendment as of the date first above written.
AMSOUTH BANK
By: __________________________________
Print Name: __________________________
Title: _______________________________
Address: 000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
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