THIS SECOND AMENDMENT TO CREDIT AGREEMENT ("Amendment") is made
and entered into this 15th day of September, 1997, by and among
MATRIX SERVICE COMPANY, a Delaware corporation (hereinafter
referred to as "Matrix"), MATRIX SERVICE, INC., an Oklahoma
corporation (hereinafter to as "MSI"), MIDWEST INDUSTRIAL
CONTRACTORS, INC., a Delaware corporation (hereinafter referred
to as "MIC"), MATRIX SERVICE MID-CONTINENT, INC., an Oklahoma
corporation (hereinafter referred to as "MSM"), PETROTANK
EQUIPMENT, INC., an Oklahoma corporation (hereinafter referred
to as "PEI"), TANK SUPPLY INC., an Oklahoma corporation
(hereinafter referred to as "TSI"), SAN XXXX TANK PIPING
CONSTRUCTION CO., INC., a Delaware corporation (hereinafter
referred to as "SLT"), COLT CONSTRUCTION CO., INC., a Delaware
corporation (hereinafter referred to as "CCC"), MIDWEST
INTERNATIONAL, INC., a Delaware corporation (hereinafter
referred to as "MII"), GEORGIA STEEL ACQUISITION CORPORATION, an
Oklahoma corporation (hereinafter referred to as "GSAC"), GEORGIA
STEEL FABRICATORS, INC., a Georgia corporation (hereinafter
referred to as "GSF"), XXXXX STEEL CONTRACTORS, INC., a Georgia
corporation (hereinafter referred to as "BSC"), WEST COAST
INDUSTRIAL COATINGS, INC., a California corporation (hereinafter
referred to as "WCI"), MIDWEST SERVICE COMPANY, a Delaware
corporation (hereinafter referred to as "MSC"), HEATH
ENGINEERING, LTD., an Ontario corporation (hereinafter referred
to as "HEL"), HEATH (TANK MAINTENANCE) ENGINEERING, LTD., a
United Kingdom corporation (hereinafter referred to as "HTM"),
MAYFLOWER VAPOR SEAL CORPORATION, an Oklahoma corporation
(hereinafter referred to as ("MVS"), GENERAL SERVICE CORPORATION,
a Delaware corporation (hereinafter referred to as "GSC"),
MAINSERVE-ALLENTECH, INC., a Delaware corporation (hereinafter
referred to as "MA"), MAINTENANCE SERVICES, INC., a Delaware
corporation (hereinafter referred to as "MSERV"), and LIBERTY
BANK AND TRUST COMPANY OF TULSA, NATIONAL ASSOCIATION
(hereinafter referred to as the "Bank"). Matrix, MSI, MIC, MSM,
PEI, TSI, SLT, CCC, MII, GSAC, GSF, BSC, WCI, MSC, HEL, HTM,
MVS, GSC, MA and MSERV are hereinafter collectively referred to
as the "Borrowers" and individually as a "Borrower."
RECITALS
A. The Borrowers are parties to that certain Credit Agreement
dated August 30, 1994, as amended by that certain First
Amendment to Credit Agreement dated June 19, 1997 (the same as
further amended, supplemented or otherwise modified from time to
time, being hereinafter referred to as the "Credit Agreement"),
pursuant to which the Bank has established in favor of the
Borrowers, on the terms and conditions set forth therein, (i) a
revolving credit facility in the principal amount not to exceed
$15,000,000.00, (ii) a term loan facility in the original
principal amount not to exceed $5,000,000.00, and (iii) a term
acquisition facility in the original principal amount not to
exceed $5,000,000.00
B. The Borrowers have requested that the Bank: (i) reduce the
rates of interest under the Revolving Note, the Term Note and
the Acquisition Note, (ii) modify Rate Election, Continuation
and Conversion Options, (iii) allow for optional prepayments
under any Tranche, and (iv) expand the time period under which
the Borrowers must provide certain monthly certificates and
reports to the Bank.
C. The Bank has agreed to the foregoing, subject to the terms
and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, and subject to the terms and
conditions set forth herein, the parties agree to amend the
Credit Agreement, effective as of the date hereof, as follows:
1. TERMS DEFINED IN THE CREDIT AGREEMENT. Capitalized terms
used herein and not otherwise defined have the respective
meanings assigned to them in the Credit Agreement.
2. MODIFICATIONS TO APPLICABLE INTEREST RATES. The Bank hereby
agrees to modify the applicable rates of interest chargeable
under the Revolving Note, the Term Note and the Acquisition
Note. In order to effectuate the foregoing, the Credit
Agreement shall be modified in accordance with the following:
A. Modifications to Subsections 2.7.1(a) and 2.7.1(b).
Subsections 2.7.1(a) and 2.7.1(b) of the Credit Agreement,
governing interest rates under the Revolving Note, are hereby
deleted and replaced in their entirety, respectively, by the
following:
(a) Advances included within the Prime Tranche shall bear
interest at a fluctuating rate per annum equal to the Prime Rate
minus three-quarters of one percent (3/4 of 1%), adjusted as of
the date of each change therein.
(b) Advances included within each LIBOR Tranche shall bear
interest at a rate per annum equal to the sum of the LIBOR Rate
applicable to such LIBOR Tranche plus one and one-quarter percent
(1-1/4%).
B. Modifications to Subsections 2.7.2(d)(i) and 2.7.2(d)(ii).
Subsections 2.7.2(d)(i) and 2.7.2(d)(ii) of the Credit Agreement,
governing interest rates under the variable rate option of the
Term Note, are hereby deleted and replaced in their entirety,
respectively, by the following:
(i) Advances included within the Prime Tranche shall bear
interest at a fluctuating rate per annum equal to the Prime Rate
minus one quarter of one percent (1/4 of 1%), adjusted as of the
date of each change therein.
(ii) Advances included within a LIBOR Tranche shall bear
interest at a rate per annum equal to the sum of the LIBOR Rate
applicable to such LIBOR Tranche plus one and three quarters
percent (1-3/4%).
C. Modifications to Subsections 2.7.6(c)(i) and
2.7.6(c)(ii). Subsections 2.7.6(c)(i) and 2.7.6(c)(ii) of the
Credit Agreement (as established in the First Amendment to Credit
Agreement dated June 19, 1997), governing interest rates under
the variable rate option of the Acquisition Note, are hereby
deleted and replaced in their entirety, respectively, by the
following:
(i) Amounts outstanding under the Acquisition Note
included within the Prime Tranche shall bear interest at a
fluctuating rate per annum equal to the Prime Rate minus one
quarter of one percent (1/4 of 1%), adjusted as of the date of
each change therein.
(ii) Amounts outstanding under the Acquisition Note
included within the LIBOR Tranche shall bear interest at a rate
per annum equal to the sum of the LIBOR Rate applicable to such
LIBOR Tranche plus one and three quarters percent (1-3/4%).
3. MODIFICATION OF RATE ELECTIONS. The Bank hereby agrees to
modify the requirements governing Rate Elections under each of
the Credit Facilities. In order to effectuate the foregoing,
the Credit Agreement shall be modified in accordance with the
following:
A. Modifications to Subsection 2.7.3(f). Subsection 2.7.3(f)
of the Credit Agreement is hereby deleted and replaced in its
entirety by the following:
(f) there shall be no limit to the maximum number of
Tranches outstanding under any of the Credit Facilities at any
time; and
B. Modifications to Subsection 2.7.4. Subsections 2.7.4 of the
Credit Agreement is hereby deleted and replaced in its entirety
by the following:
2.7.4 Continuation and Conversion Options. Subject to the
limitations set forth in Subsection 2.7.3 hereof, the Borrowers
may from time to time: (i) elect to continue, on the last day of
the Interest Period therefor, any LIBOR Tranche (or any portion
thereof) to a subsequent Interest Period, (ii) elect to convert,
on the last day of the Interest Period therefor, any LIBOR
Tranche in the Prime Tranche; or (iii) elect to convert, on any
Business Day, the Prime Tranche (or any portion thereof) into a
LIBOR Tranche. The Borrowers shall give the Bank irrevocable
notice of each conversion or continuation either orally or in
writing (by delivering to the Bank a properly completed and
executed Disbursement Request) no later than 5:00 p.m., Tulsa
time, at least one (1) Business Day prior to the conversion or
continuation date; provided, however, that the Borrowers shall
confirm all oral conversion or continuation notices under any of
the Credit Facilities by delivering to the Bank a properly
completed and executed Disbursement Request within three (3)
Business Days after the date of the oral request. Each
conversion or
continuation notice shall specify (i) the proposed conversion or
continuation date (which shall be a Business Day), (ii) the
aggregate amount of the Advances to be converted or continued,
(iii) the nature of the proposed conversion or continuation, and
(iv) in the case of conversion to or continuation as a LIBOR
Tranche, the requested Interest Period. No LIBOR Tranche may be
converted or continued (i) at any time other than on the last
day of the Interest Period applicable thereto, or (ii) at any
time that a Default or Event of Default has occurred and is
continuing.
4. MODIFICATIONS PERMITTING OPTIONAL PREPAYMENTS. The Bank
hereby agrees to permit the Borrowers to make prepayments under
any of the three Notes regardless of the applicable Tranche(s).
In order to effectuate the foregoing, Subsection 2.10 of the
Credit Agreement is hereby deleted and replaced in its entirety
with the following:
2.10 Optional Prepayments. The Borrowers may, at any time
and from time to time, prepay the outstanding principal amount
under any of the Notes, in whole or in part, without premium or
penalty, provided, however, that any partial prepayment on any
Note shall be accompanied by payment of all unpaid accrued
interest. Amounts prepaid on the Term Note or the Acquisition
Note will be applied to the unpaid principal installments of such
Note in the inverse order of maturity.
5. EXPANSION OF TIME PERIOD FOR CERTIFICATES AND REPORTS. The
Bank hereby agrees to expand the time period after the end of
each calendar month in which the Borrowers must furnish to the
Bank completed Borrowing Base and Compliance Certificates and
Accounts Aging Reports. In order to effectuate the foregoing,
the first sentence of Subsection 6.2 of the Credit Agreement
shall be modified by replacing the time reference of "fifteen
(15) days" with the time reference of "thirty (30) days."
6. CONDITIONS. The amendments to the Credit Agreement set
forth in this Amendment shall be effective from and after the
date hereof, but subject to the Borrowers' satisfaction of each
of the following conditions precedent:
6.1 Amendment. The Borrowers shall have duly and validly
authorized, executed and delivered to the Bank this Amendment.
6.2 Resolutions. With respect to each of the Borrowers, the
Bank shall have received a true and correct copy of the
resolutions adopted by its Board of Directors duly authorizing
the borrowings contemplated hereunder and the execution,
delivery and performance of this Amendment.
6.3 Other Matters. The Borrowers shall have provided the Bank
with such reports, information, financial statements, and other
documents as the Bank has reasonably requested to evidence the
Borrowers' compliance with the terms and conditions of this
Amendment and the Credit Agreement.
6.4 Legal Matters. All legal matters incident to this Amendment
and the Credit Facilities shall be satisfactory to the Bank and
its counsel.
6.5 No Defaults. There shall not have occurred and be
continuing any Default or Event of Default.
7. REPRESENTATIONS AND WARRANTIES. All representations and
warranties of the Borrowers contained in Section 5 of the Credit
Agreement are hereby remade and restated as the date hereof and
shall survive the execution and delivery of this Amendment. The
Borrowers further represent and warrant to the Bank that:
7.1 Authority. The Borrowers have all corporate power and
authority and have been duly authorized to execute, deliver and
perform its obligations under this Amendment and the Credit
Agreement.
7.2 Binding Obligations; Enforceability. This Amendment, the
Credit Agreement (as amended by this Amendment), and each of the
Notes are valid and legally binding obligations of the
Borrowers, enforceable in accordance with their respective
terms, except as limited by applicable bankruptcy, insolvency or
other laws affecting the enforcement of creditors' rights
generally.
7.3 No Conflicts. The execution, delivery and performance of
this Amendment and the Credit Agreement (as amended by this
Amendment) by the Borrowers do not and will not (a) conflict
with, result in a breach of the terms, conditions or provisions
of, constitute a default under, or result in any violation of
the Borrowers' Certificates of Incorporation, as amended, or
Bylaws, or any agreement, instrument, undertaking, judgment,
decree, order, writ, injunction, statute, law, rule or
regulation to which either of the Borrowers is subject or by
which the assets of either of the Borrowers are bound or
affected, (b) result in the creation or imposition of any lien,
charge or encumbrance on, or security interest in, any property
now or hereafter owned by the Borrowers, pursuant to the
provisions of any mortgage, indenture, security agreement,
contract, undertaking or other agreement to which either of the
Borrowers is a party, other than the obligations of the
Borrowers in favor of the Bank created by the Loan Documents, or
(c) require any authorization, consent, license, approval or
authorization of, or other action by, notice or declaration to,
registration with, any court or any administrative or
governmental body (domestic or foreign), or, to the extent any
such consent or other action may be required, it has been validly
procured or duly taken.
8. MISCELLANEOUS.
8.1 Effect of Amendment. Except as expressly modified and
amended by this Amendment, all other terms of the Credit
Agreement shall continue in full force and effect in accordance
with their original stated terms and are hereby reaffirmed in
every respect as of the date hereof. To the extent that the
terms of this Amendment are inconsistent with the terms of the
Credit Agreement, this Amendment shall control and the Credit
Agreement shall be amended, modified or supplemented so as to
give full effect to the transactions contemplated by this
Amendment.
8.2 Descriptive Headings. The descriptive headings of the
several paragraphs of this Amendment are inserted for
convenience only and shall not be used in the construction or
the content of this Amendment.
8.3 Reimbursement of Expenses. The Borrowers agree to pay all
reasonable out-of-pocket expenses, including, without limitation,
filing fees, recording costs and reasonable attorney's fees and
expenses, incurred by the Bank in connection with the
preparation of this Amendment.
8.4 Reaffirmation of Security Agreements. By signing below, the
Borrowers hereby ratify and reaffirm the Security Agreements and
agree that the Security Agreements shall continue in full force
and effect in accordance with their terms as security for
payment and performance of all Indebtedness arising under or in
connection with the Credit Agreement (as amended hereby). All
references to the term "Indebtedness" contained in the Credit
Agreement, the Security Agreements and other Loan Documents
shall hereafter be deemed to include all liabilities,
obligations and indebtedness of the Borrowers to the Bank
arising out of or relating to this Amendment.
IN WITNESS WHEREOF, the Borrowers and the Bank have caused this
Agreement to be duly executed in multiple counterparts, each of
which shall be considered an original, effective the date and
year first above written.
MATRIX SERVICE COMPANY,
a Delaware corporation
By: /s/C. Xxxxxxx Xxx
-------------------------
Name: C. Xxxxxxx Xxx
Title: Secretary
MATRIX SERVICE, INC.,
an Oklahoma corporation
By: /s/C. Xxxxxxx Xxx
-------------------------
Name: C. Xxxxxxx Xxx
Title: Secretary
MIDWEST INDUSTRIAL CONTRACTORS, INC.,
a Delaware corporation
By: /s/C. Xxxxxxx Xxx
-------------------------
Name: C. Xxxxxxx Xxx
Title: Secretary
MATRIX SERVICE MID-CONTINENT, INC.,
an Oklahoma corporation
By: /s/C. Xxxxxxx Xxx
-------------------------
Name: C. Xxxxxxx Xxx
Title: Secretary
PETROTANK EQUIPMENT, INC.,
an Oklahoma corporation
By: /s/C. Xxxxxxx Xxx
-------------------------
Name: C. Xxxxxxx Xxx
Title: Secretary
TANK SUPPLY, INC.,
an Oklahoma corporation
By: /s/C. Xxxxxxx Xxx
-------------------------
Name: C. Xxxxxxx Xxx
Title: Secretary
SAN XXXX TANK PIPING CONSTRUCTION CO., INC.,
a Delaware corporation
By: /s/C. Xxxxxxx Xxx
-------------------------
Name: C. Xxxxxxx Xxx
Title: Secretary
COLT CONSTRUCTION CO., INC.,
a Delaware corporation
By: /s/C. Xxxxxxx Xxx
-------------------------
Name: C. Xxxxxxx Xxx
Title: Secretary
MIDWEST INTERNATIONAL, INC.,
a Delaware corporation
By: /s/C. Xxxxxxx Xxx
-------------------------
Name: C. Xxxxxxx Xxx
Title: Secretary
GEORGIA STEEL ACQUISITION CORPORATION,
an Oklahoma corporation
By: /s/C. Xxxxxxx Xxx
-------------------------
Name: C. Xxxxxxx Xxx
Title: Secretary
GEORGIA STEEL FABRICATORS, INC.,
a Georgia corporation
By: /s/C. Xxxxxxx Xxx
-------------------------
Name: C. Xxxxxxx Xxx
Title: Secretary
XXXXX STEEL CONTRACTORS, INC.,
a Georgia corporation
By: /s/C. Xxxxxxx Xxx
-------------------------
Name: C. Xxxxxxx Xxx
Title: Secretary
WEST COAST INDUSTRIAL COATINGS, INC.,
a California corporation
By: /s/C. Xxxxxxx Xxx
-------------------------
Name: C. Xxxxxxx Xxx
Title: Secretary
MIDWEST SERVICE COMPANY,
a Delaware corporation
By: /s/C. Xxxxxxx Xxx
-------------------------
Name: C. Xxxxxxx Xxx
Title: Secretary
HEATH ENGINEERING, LTD.,
an Ontario corporation
By: /s/C. Xxxxxxx Xxx
-------------------------
Name: C. Xxxxxxx Xxx
Title: Secretary
HEATH (TANK MAINTENANCE) ENGINEERING, LTD.,
an United Kingdom corporation
By: /s/C. Xxxxxxx Xxx
-------------------------
Name: C. Xxxxxxx Xxx
Title: Secretary
MAYFLOWER VAPOR SEAL CORPORATION,
an Oklahoma corporation
By: /s/C. Xxxxxxx Xxx
-------------------------
Name: C. Xxxxxxx Xxx
Title: Secretary
GENERAL SERVICE CORPORATION,
a Delaware corporation
By: /s/C. Xxxxxxx Xxx
-------------------------
Name: C. Xxxxxxx Xxx
Title: Secretary
MAINSERVE-ALLENTECH, INC.,
a Delaware corporation
By: /s/C. Xxxxxxx Xxx
-------------------------
Name: C. Xxxxxxx Xxx
Title: Secretary
MAINTENANCE SERVICES, INC.,
a Delaware corporation
By: /s/C. Xxxxxxx Xxx
-------------------------
Name: C. Xxxxxxx Xxx
Title: Secretary
LIBERTY BANK AND TRUST COMPANY
OF TULSA, NATIONAL ASSOCIATION
By: /s/Xxxx X. Xxxxx
-------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President
