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EXHIBIT 10.14
FWT, INC.
FIRST AMENDMENT
TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is dated
as of February _, 1998, and entered into by and among FWT, Inc., a Texas
corporation ("COMPANY"), the financial institutions listed on the signature
pages hereof ("LENDERS") and BT Commercial Corporation, as agent for Lenders
("AGENT"), and is made with reference to that certain Credit Agreement dated as
of November 12, 1997 (the "CREDIT AGREEMENT"), by and among Company, Lenders and
Agent. Capitalized terms used herein without definition shall have the same
meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Company and Lenders desire to amend the Credit Agreement to
(i) permit Company to carry forward up to fifty percent of its unused
Consolidated Capital Expenditures to the succeeding fiscal year; (ii) to amend
the financial covenants for the period ending October 30, 1998; and (iii) make
certain other amendments as set forth below;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 7: COMPANY'S NEGATIVE COVENANTS
A. INDEBTEDNESS. Subsection 7.1(v) of the Credit Agreement is
hereby amended by deleting it in its entirety and substituting the following
therefor:
"(v) Company may become and remain liable with respect to up to
$100,000,000 in aggregate principal amount of Indebtedness evidenced by the
Bridge Notes (as well as any payment-in-kind Bridge Notes issued in lieu
of cash interest thereon) and (a) Indebtedness evidenced by the Conversion
Notes, to the extent such Indebtedness has been converted from Indebtedness
under the Bridge Notes in accordance with the terms of the Bridge Note
Agreement (as well as any payment-in-kind Bridge Notes issued in lieu of
cash interest thereon), (b) Up to $105,000,000 in aggregate principal
amount of indebtedness evidenced by the Takeout Securities issued pursuant
to the Takeout Securities Indenture, so long as all of the then outstanding
Bridge Notes, the Conversion Notes, or the Exchange Notes are refinanced in
their entirety from the net proceeds of such Takeout Securities, and (c)
Indebtedness
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evidenced by the Exchange Notes issued pursuant to the Exchange Note
Indenture to the extent such Indebtedness has been exchanged for an equal
principal amount of the Conversion Notes (as well as any payment-in-kind
Bridge Notes issued in lieu of cash interest thereon);"
B. MINIMUM INTEREST COVERAGE RATIO. Subsection 7.6A of the Credit
Agreement is hereby amended by deleting the first line of the table set forth
therein in its entirety and substituting the following therefor:
" PERIOD INTEREST COVERAGE RATIO
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Closing Date to October 30, 1998 1.10:1.00"
C. MAXIMUM LEVERAGE RATIO. Subsection 7.6B of the Credit Agreement
is hereby amended by deleting the first line of the table set forth therein in
its entirety and substituting the following therefor:
" PERIOD MAXIMUM LEVERAGE RATIO
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Closing Date to October 30, 1998 10.85:1.00"
D. MINIMUM CONSOLIDATED EBITDA. Subsection 7.6C of the Credit
Agreement is hereby amended by deleting the first line of the table set forth
therein in its entirety and substituting the following therefor:
MINIMUM CONSOLIDATED
" PERIOD EBITDA
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Closing Date to October 30,1998 $10,000,000"
E. CONSOLIDATED CAPITAL EXPENDITURES. Subsection 7.8 of the Credit
Agreement is hereby amended by adding the following provision to subsection 7.8
immediately following the table contained in subsection 7.8:
", provided that such amount for any period set forth above may be increased by
an amount equal to fifty percent (50%) of the excess, if any, of the amount
permitted for the preceding period as set forth above over the actual amount of
Consolidated Capital Expenditures for such previous period."
Section 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "FIRST AMENDMENT
EFFECTIVE DATE"):
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A. On or before the First Amendment Effective Date, Company shall
deliver to Lenders the following, each, unless otherwise noted, dated the First
Amendment Effective Date:
1. Signature and incumbency certificates of its officers executing
this Amendment; and
2. Executed copies of this Amendment.
B. Requisite Lenders shall have executed this Amendment.
C. On or before the First Amendment Effective Date, all corporate and
other proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Agent, acting on behalf of Lenders, and its counsel shall be
satisfactory in form and substance to Agent and such counsel, and Agent and such
counsel shall have received all such counterpart originals or certified copies
of such documents as Agent may reasonably request.
SECTION 3. COMPANY'S REPRESENTATIONS AND WARRANITIES
In order to induce Lenders to enter into this Amendment and to amend
the Credit Agreement in the manner provided herein, Company represents and
warrants to each Lender that the following statements are true, correct and
complete:
A. CORPORATE POWER AND AUTHORITY Company has all requisite corporate
power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement as amended by this Amendment (the "AMENDED AGREEMENT").
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary corporate action on the part of Company.
C. NO CONFLICT. The execution and delivery by Company of this
Amendment and the performance by Company of the Amended Agreement do not and
will not (i) violate any provision of any law or any governmental rule or
regulation applicable to Company or any of its Subsidiaries, the Certificate or
Articles of Incorporation or Bylaws of Company or any of its Subsidiaries or any
order, judgment or decree of any court or other agency of government binding on
Company or any of its Subsidiaries, (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of Company or any of its Subsidiaries, (iii) result in or
require the creation or imposition
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of any Lien upon any of the properties or assets of Company or any of its
Subsidiaries (other than Liens created under any of the Loan Documents in favor
of Agent on behalf of Lenders), or (iv) require any approval of stockholders or
any approval or consent of any Person under any Contractual Obligation of
Company or any of its Subsidiaries.
D. GOVERNMENTAL CONSENTS. The execution and delivery by Company of
this Amendment and the performance by Company of the Amended Agreement do not
and will not require any registration with, consent or approval of, or notice
to, or other action to, with or by, any federal, state or other governmental
authority or regulatory body
E. BINDING OBLIGATION. This Amendment and the Amended Agreement have
been duly executed and delivered by Company and are the legally valid and
binding obligations of Company, enforceable against Company in accordance with
their respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability.
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the First Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
G. ABSENCE OF DEFAULT. No event has occurred and is continuing or
will result from the consummation of the transactions contemplated by this
Amendment that would constitute an Event of Default or a Potential Event of
Default.
Section 4. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(i) On and after the First Amendment Effective Date, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement, and
each reference in the other Loan Documents to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Amended Agreement.
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(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of Agent
or any Lender under, the Credit Agreement or any of the other Loan
Documents.
B. FEES AND EXPENSES. Company acknowledges that all costs, fees and
expenses as described in subsection 10.2 of the Credit Agreement incurred by
Agent and its counsel with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of Company.
C. HEADINGS. Section and subsection 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 or be given any substantive effect.
D. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
FWT, Inc.
By:
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Title:
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BT COMMERCIAL CORPORATION, INDIVIDUALLY
AND AS AGENT
By:
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Title:
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