AMENDMENT NO. 9 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.11
EXECUTION VERSION
AMENDMENT NO. 9 TO SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
AMENDMENT NO. 9 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 18, 2011 (this “Amendment”), among NEW ENTERPRISE STONE & LIME CO., INC. (the “Borrower”), the GUARANTORS signatory hereto, MANUFACTURERS AND TRADERS TRUST COMPANY, as Agent (the “Agent”), Issuing Bank, Swing Lender and a Lender, and the other LENDERS party hereto.
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and certain other parties entered into that certain Second Amended and Restated Credit Agreement, dated as of January 11, 2008 (as amended by that certain Amendment No. 1 to Second Amended and Restated Credit Agreement, dated as of February 14, 2008, that certain Waiver and Modification to Second Amended and Restated Credit Agreement, dated as of May 30, 2008, that certain Amendment No. 2 and Modification to Second Amended and Restated Credit Agreement, dated as of June 20, 2008, that certain Amendment No. 3 and Authorization, dated as of January 22, 2009, that certain Amendment No. 4 and Modification and Waiver to Second Amended and Restated First Lien Credit Agreement, dated as of June 18, 2009, that certain Amendment No. 5 to Second Amended and Restated Credit Agreement, dated as of February 23, 2010, that certain Amendment No. 6 to and Waiver of Second Amended and Restated Credit Agreement, dated as of May 27, 2010, that certain Amendment No. 7 to and Waiver of Second Amended and Restated Credit Agreement, dated as of June 22, 2010, and that certain Amendment No. 8 and Waiver to Second Amended and Restated Credit Agreement, dated July 29, 2010, the “Existing Credit Agreement”), which provides for certain extensions of credit to the Borrower, subject to certain terms and conditions; terms not otherwise defined herein are used as defined in the Existing Credit Agreement;
WHEREAS, the Borrower has requested that the Lenders amend the Existing Credit Agreement in certain respects, and the Lenders agree, subject to the terms and conditions set forth herein, to amend the Existing Credit Agreement as more specifically set forth herein (the Existing Credit Agreement, as amended by this Amendment, and as the same may be further amended, restated, modified and/or supplemented from time to time, being referred to as the “Credit Agreement”);
NOW, THEREFORE, in consideration of the agreements herein contained, and for other valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows.
1. AMENDMENTS. Upon satisfaction of the conditions set forth in Section 4 below, the Existing Credit Agreement shall be amended in the manner set forth below:
(a) The grid in Section 6.2 (Fixed Charge Coverage Ratio) is hereby amended and restated in its entirety to read as follows:
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“Fiscal Quarters Ending |
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Fixed Charge Coverage Ratio |
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3/1/10 through 8/31/12 |
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1.05:1.00 |
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9/1/12 and thereafter |
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1.10:1.00” |
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(b) The grid in Section 6.3 (Total Leverage Ratio) is hereby amended and restated in its entirety to read as follows:
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“Fiscal Quarters Ending |
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Total Leverage Ratio |
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3/1/10 through 5/31/11 |
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5.50:1.00 |
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6/1/11 through 8/31/11 |
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5.90:1.00 |
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9/1/11 through 5/31/12 |
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5.60:1.00 |
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6/1/12 and thereafter |
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5.50:1.00” |
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(c) Section 6.4 (Limitation on Capital Expenditure) is hereby amended and restated in its entirety as follows:
“6.4 Limitation on Capital Expenditures.
The Borrower and its Subsidiaries, on a Consolidated basis, shall not permit their Capital Expenditures in the aggregate to exceed $25,000,000 in any fiscal year. This covenant shall be tested as at the end of each fiscal year.”
(d) Clause (g) of Section 7.3 (Investments, Loans, Acquisitions, Etc.) is hereby amended and restated in its entirety as follows:
“(g) acquisitions pursuant to and in accordance with clauses (c) and (d) of the definition of Permitted Acquisitions.”
(e) Subsection 7.4.2 (Tax Expense Distributions) is hereby deleted in its entirety and renamed “Intentionally Omitted.”
(f) Subsection 7.4.5 (Restricted Payments; Other Restricted Payments) is hereby deleted in its entirety.
(g) Section 9.1 of the Existing Loan Agreement (Defined Terms) is hereby amended by adding the following definition, in its correct alphabetical location:
“Amendment No. 9 Closing Date: means May 18, 2011.”
(h) The definition of “Capital Expenditures” in Section 9.1 (Defined Terms) of the Existing Credit Agreement is hereby amended and restated in its entirety as follows:
“Capital Expenditures: for any period the sum of (without duplication) (a) all expenditures during such period for fixed or capital assets (including, but not limited to, the purchase, construction or rehabilitation of equipment or other physical assets) that are required to be capitalized under GAAP, whether or not financed, and (b) all expenditures during such period in respect of Synthetic Leases, for property, plant and equipment. For the sake of clarity, expenditures incurred in Permitted Acquisitions and amounts representing increases in the capitalized amount of the rental fleet made before or after the Amendment No. 9 Closing Date shall constitute Capital Expenditures.”
(i) The definition of “Fixed Charge Coverage Ratio” in Section 9.1 (Defined Terms) of the Existing Credit Agreement is hereby amended and restated in its entirety as follows:
“Fixed Charge Coverage: as of the end of any applicable fiscal quarter, the ratio of:
(1) EBITDAR minus
(a) the lesser of: (i) amount of Non Financed Capital Expenditures (other than Non Financed Capital Expenditures constituting Permitted Acquisitions) less any increase in the capitalized amount of the rental fleet (or plus any decrease in the capitalized amount of the rental fleet), and (ii) the amount of Maximum Capital Expenditures, but the amount set forth in this clause (a) shall not be less than zero, minus
(b) Borrower Taxes (including franchise taxes paid in cash and permitted Restricted Payments payable in respect of shareholder tax) paid in cash, to
(2) Fixed Charges,
in each case for the Borrower and its Subsidiaries, on a Consolidated basis, for the four fiscal quarters then ending.”
(j) Clause (a) of the definition of “Fixed Charges” in Section 9.1 (Defined Terms) of the Existing Credit Agreement is hereby amended in its entirety to read as follows:
“(a) Interest Expense excluding deferred financing fees otherwise included in Interest Expense,”
2. REPRESENTATIONS AND WARRANTIES. In order to induce the Lenders, the Issuing Bank, the Swing Lender and the Agent to agree to amend the Existing Credit Agreement in the manner set forth herein, the Borrower makes the following representations and warranties, which shall survive the execution and delivery of this Amendment:
(a) As of the date hereof, after giving effect to the amendments contained herein, (i) no Default or Event of Default has occurred and is continuing and (ii) there is no default under the Indenture, dated as of August 18, 2010, among the Borrower, as Issuer, and Xxxxx Fargo Bank, National Association, as Trustee;
(b) Each of the representations and warranties of the Borrower and the other Loan Parties made herein and in the other Loan Documents is true and correct in all respects (or in all material respects if any such representation or warranty is not by its terms already qualified as to materiality) both before and after giving effect to the amendments contemplated hereby as though each such representation and warranty were made at and as of the date hereof unless relating solely to an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date (or in all material respects as of such earlier date if any such representation or warranty is not by its terms qualified as to materiality);
(c) The execution, delivery and performance of this Amendment has been duly authorized by all requisite corporate action on the part of the Borrower;
(d) No consent or approval of any third party, including, without limitation, any governmental agency or authority is necessary in connection with the execution, delivery and/or performance of this Amendment and/or the enforceability hereof. Upon satisfaction of the conditions set forth in Section 3 below, this Amendment will constitute the legal, valid and binding obligation of the Borrower, enforceable against it in accordance with the terms hereof; and
(e) All Secured Obligations are due and payable without setoff or counterclaim and the Loan Parties have no claims against the Agent or Lenders.
3. EFFECTIVENESS. The amendments to the Existing Credit Agreement set forth herein shall become effective, as of the date hereof, immediately upon the last to occur of the following:
(a) The Agent shall have executed this Amendment and received counterparts of this Amendment duly executed and delivered on behalf of the Loan Parties and the Majority Lenders;
(b) The Agent shall have received payment by the Borrower of all invoiced out-of-pocket fees, costs, expenses and other amounts required to be paid by the Borrower in connection with the execution and delivery of this Amendment or otherwise under the Loan Documents to the extent such invoices shall have been delivered prior to the date the conditions in clause (a) above are satisfied;
(c) The Borrower shall have paid to the Agent an amendment fee in an amount equal to 25 bps, for the account of each of the Lenders (based on each Lender’s outstanding Term Loans and RC Commitment) who shall have executed and delivered its signature page to this Amendment no later than the time specified, and in accordance with the instructions set forth on Annex A hereto; and
(d) The Agent shall have received such other information as it shall have reasonably requested prior to the date the conditions in clause (a) above are satisfied.
4. MISCELLANEOUS.
(a) Counterparts. This Amendment may be executed in counterparts and by different parties hereto in separate counterparts, each of which, when executed and delivered, shall be deemed to be an original and all of which, when taken together, shall constitute one and the same instrument. A photocopied, facsimile or pdf signature shall be deemed to be the functional equivalent of a manually executed original for all purposes.
(b) Ratification. Except as expressly set forth herein, no amendment to any Loan Document is intended hereby. The Existing Credit Agreement and the other Loan Documents, each as amended by this Amendment, are and shall continue to be in full force and effect. Each of the parties hereto hereby confirms, approves and ratifies in all respects the Existing Credit Agreement, as amended by this Amendment, and each of the parties hereto and each of the Guarantors hereby confirms and ratifies in all respects all of the other agreements, documents and instruments to which such Person is a party and delivered in connection with the Existing Credit Agreement (and/or in connection with this Amendment). Without limiting the generality of the foregoing, the Borrower and the Guarantors, hereby confirm that the pledges and the security interest granted pursuant to the Loan Documents continue to secure all of the Secured Obligations under and ratifies (i) the Existing Credit Agreement as amended hereby and (ii) the other Loan Documents.
(c) Payment of Expenses. Without limiting other payment obligations of the Borrower set forth in the Credit Agreement, the Borrower agrees to pay all reasonable costs and expenses incurred by Agent in connection with the preparation, execution and delivery of this Amendment and any other documents, agreements and/or instruments which may be delivered in connection herewith, including, without limitation, the reasonable fees and expenses of Agent’s counsel, Drinker Xxxxxx & Xxxxx LLP.
(d) Governing Law. This Amendment shall be construed in accordance with, and governed by, the internal laws of the Commonwealth of Pennsylvania, without regard to the choice of law principles of such state.
(e) References. From and after the effective date of this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereof, “hereunder” or words of like import, and all references to the Credit Agreement in any and all agreements, instruments, certificates and other documents, shall be deemed to mean the Credit Agreement amended by this Amendment and as the same may be further amended, modified or supplemented in accordance with the terms thereof.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly executed by their respective, duly authorized officers as of the date first above written.
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NEW ENTERPRISE STONE & LIME CO., INC., as Borrower | |
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By: |
/s/ Xxxx X. Xxxxxxxx, III |
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Name: |
Xxxx X. Xxxxxxxx, III |
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Title: |
Executive Vice President |
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Chief Financial Officer and Secretary |
[Signature Page to Amendment No. 9 Second Amended and Restated
Credit Agreement]
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MANUFACTURERS AND TRADERS TRUST COMPANY, as Agent and Lender | |
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By: |
/s/ Xxxxxx X. Xxxxxx |
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Name: |
Xxxxxx X. Xxxxxx |
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Title: |
Vice President |
[Signature Page to Amendment No. 9 Second Amended and Restated
Credit Agreement]
Acknowledged and agreed to by:
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Guarantors: |
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By: |
/s/ Xxxx X. Xxxxxxxx, III |
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Name: |
Xxxx X. Xxxxxxxx, III |
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Title: |
Vice President and Assistant Secretary |
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PROTECTION SERVICES INC. |
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SCI PRODUCTS INC. |
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WORK AREA PROTECTION CORP. |
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EII TRANSPORT INC. |
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PRECISION SOLAR CONTROLS INC. |
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ASTI TRANSPORTATION SYSTEMS, INC. |
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By: |
/s/ Xxxx X. Xxxxxxxx, III |
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Name: |
Xxxx X. Xxxxxxxx, III |
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Title: |
Vice President and Assistant Secretary, |
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on behalf of each of the foregoing |
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[Signature Page to Amendment No. 9 Second Amended and Restated
Credit Agreement]
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PNC Bank, N.A. | |
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By: |
/s/ Xxxxxxx X. Xxxxxx |
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Name: |
Xxxxxxx X. Xxxxxx |
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Title: |
Vice President |
[Signature Page to Amendment No. 9 Second Amended and Restated
Credit Agreement]
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S & T BANK | |
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By: |
/s/ Xxxxxxx X. Xxxxxxxx |
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Name: |
Xxxxxxx X. Xxxxxxxx |
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Title: |
Senior Vice President |
[Signature Page to Amendment No. 9 Second Amended and Restated
Credit Agreement]
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OCTAGON INVESTMENT PARTNERS VI, LTD. | |
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By: |
/s/ Xxxxxxxx X. Xxxxxx |
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Name: |
Xxxxxxxx X. Xxxxxx |
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Title: |
Senior Director |
[Signature Page to Amendment No. 9 Second Amended and Restated
Credit Agreement]
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FIRST COMMONWEALTH BANK | |
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By: |
/s/ Xxxxxxxx X. Xxxxxx |
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Name: |
Xxxxxxxx X. Xxxxxx |
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Title: |
Senior Vice President |
[Signature Page to Amendment No. 9 Second Amended and Restated
Credit Agreement]
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CITIZENS BANK OF PENNSYLVANIA | |
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As a Lender | |
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By: |
/s/ Xxxxxx X. Xxxx |
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Name: |
Xxxxxx X. Xxxx |
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Title: |
Senior Vice President |
[Signature Page to Amendment No. 9 Second Amended and Restated
Credit Agreement]
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FIFTH THIRD BANK | |
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By: |
/s/ Xxx Xxxxx |
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Name: |
Xxx Xxxxx |
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Title: |
Vice President |
[Signature Page to Amendment No. 9 Second Amended and Restated
Credit Agreement]
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XXXXXX BANK | |
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By: |
/s/ Xxxxx X. Xxxxxxxxx |
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Name: |
Xxxxx X. Xxxxxxxxx |
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Title: |
VP – Relationship Manager |
[Signature Page to Amendment No. 9 Second Amended and Restated
Credit Agreement]
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FIRST NATIONAL BANK OF PA | |
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By: |
/s/ Xxxxxxxx X. Xxxxx |
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Name: |
Xxxxxxxx X. Xxxxx |
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Title: |
Vice President |
[Signature Page to Amendment No. 9 Second Amended and Restated
Credit Agreement]
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KEYBANK N.A. | |
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By: |
/s/ Xxxx X. Xxxxxxxxx |
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Name: |
Xxxx X. Xxxxxxxxx |
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Title: |
Vice President |
[Signature Page to Amendment No. 9 Second Amended and Restated
Credit Agreement]
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SOMERSET TRUST COMPANY | |
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By: |
/s/ Xxxxxx X. Xxxx |
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Name: |
Xxxxxx X. Xxxx, EVP |
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Title: |
Executive Vice President |
[Signature Page to Amendment No. 9 Second Amended and Restated
Credit Agreement]
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TRI STATE CAPITAL BANK | |
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By: |
/s/ Xxxx X. Xxxxxxxxx |
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Name: |
Xxxx X. Xxxxxxxxx |
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Title: |
Relationship Manager |
[Signature Page to Amendment No. 9 Second Amended and Restated
Credit Agreement]
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FIRSTMERIT BANK, N.A. | |
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By: |
/s/ Xxxxxx X. Xxxxxx |
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Name: |
Xxxxxx X. Xxxxxx |
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Title: |
Senior Vice President |
[Signature Page to Amendment No. 9 Second Amended and Restated
Credit Agreement]
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HSBC BANK USA, National Association | |
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By: |
/s/ X.X. Xxxxxxx |
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Name: |
X.X. Xxxxxxx |
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Title: |
Sr. Relationship Manager |
[Signature Page to Amendment No. 9 Second Amended and Restated
Credit Agreement]
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SOVEREIGN BANK | |
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By: |
/s/ Xxxxx Xxxxxxxxx |
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Name: |
Xxxxx Xxxxxxxxx |
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Title: |
SVP – Senior Banker |
[Signature Page to Amendment No. 9 Second Amended and Restated
Credit Agreement]
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FIRST NIAGARA BANK, N.A. | |
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By: |
/s/ Xxxxxxx X. Xxxx |
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Name: |
Xxxxxxx X. Xxxx |
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Title: |
Vice President |
[Signature Page to Amendment No. 9 Second Amended and Restated
Credit Agreement]
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XXXXX SPRING BANK | |
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By: |
/s/ Xxxxx Xxxxxx |
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Name: |
Xxxxx Xxxxxx |
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Title: |
Senior Vice President |
[Signature Page to Amendment No. 9 Second Amended and Restated
Credit Agreement]
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AMMC CLO III, LIMITED | |
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By: |
American Money Management Corp., |
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as Collateral Manager |
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By: |
/s/ Xxxxxxx X. Eng |
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Name: |
Xxxxxxx X. Eng |
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Title: |
Senior Vice President |
[Signature Page to Amendment No. 9 Second Amended and Restated
Credit Agreement]
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AMMC CLO V, LIMITED | |
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By: |
American Money Management Corp., |
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as Collateral Manager |
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By: |
/s/ Xxxxxxx X. Eng |
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Name: |
Xxxxxxx X. Eng |
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Title: |
Senior Vice President |
[Signature Page to Amendment No. 9 Second Amended and Restated
Credit Agreement]
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AMMC CLO VI, LIMITED | |
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By: |
American Money Management Corp., |
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as Collateral Manager |
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By: |
/s/ Xxxxxxx X. Eng |
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Name: |
Xxxxxxx X. Eng |
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Title: |
Senior Vice President |
[Signature Page to Amendment No. 9 Second Amended and Restated
Credit Agreement]
Annex A
Signature pages are required to be delivered no later than 5 p.m. (EST) on Wednesday, May 18, 2011 (or such later time as the Agent may specify in a writing posted on Intralinks) to Xxxxxx Xxxxxxxxx by fax at 000.000.0000 or by email at xxxxxx.xxxxxxxxx@xxx.xxx in order for a Lender to be entitled to the fee referenced in Section 3(c) of the Amendment.
Five (5) originals of the signature page should be sent to Xxxx Xxxxxxxxx at the following address:
Drinker Xxxxxx & Xxxxx LLP
Xxx Xxxxx Xxxxxx, Xxx. 0000
Xxxxxxxxxxxx, XX 00000-0000
tel: 000.000.0000
