Execution Copy
AMENDMENT XX. 0
XXXXXXXXX XX. 0 (this "Amendment"), dated as of May 25, 2004, to the
Credit Agreement, dated as of May 4, 2004 (the "Credit Agreement"), by and among
VALMONT INDUSTRIES, INC., a Delaware corporation (the "Parent Borrower"), the
Qualified Subsidiaries of the Parent Borrower party hereto or which from time to
time become party hereto (each a "Subsidiary Borrower" and, collectively, the
"Subsidiary Borrowers"), the lenders party hereto (each a "Lender" and,
collectively, the "Lenders"), WACHOVIA CAPITAL MARKETS, LLC, as Syndication
Agent, LASALLE BANK NATIONAL ASSOCIATION, COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK INTERNATIONAL," NEW YORK BRANCH, and
U.S. BANK NATIONAL ASSOCIATION, as Co-Documentation Agents, WACHOVIA BANK,
NATIONAL ASSOCIATION, as an Issuing Bank, and THE BANK OF NEW YORK ("BNY"), as
an Issuing Bank, as swing line lender (in such capacity, the "Swing Line
Lender"), and as administrative agent for the Lenders, the Issuing Banks and the
Swing Line Lender (in such capacity, the "Administrative Agent").
RECITALS
I. Capitalized terms used herein which are not otherwise defined herein shall
have the respective meanings ascribed thereto in the Credit Agreement.
II. Under Section 7.13 of the Credit Agreement, all Indebtedness outstanding
under the Private Placement Documents is required to be repaid in full not later
than May 25, 2004 and the Private Placement Documents are required to be
terminated contemporaneously with such repayment.
III. The Parent Borrower (a) has advised the Administrative Agent that, (i)
notwithstanding its timely request to the lenders under the Private Placement
Documents, it was not provided with the computation of the amount required to
repay in full all Indebtedness outstanding under the Private Placement Documents
until May 25, 2004 and (ii) consequently it is unable to make the required
payment and effect the required termination on May 25, 2004 and (b) has
requested that the Lenders extend the time required for such payment and
termination for an additional three Business Days.
Accordingly, in consideration of the Recitals and the terms and
conditions hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the Parent Borrower,
the Lenders and the Administrative Agent hereby agree as follows:
1. Amendment to Section 7.13. Section 7.13 of the Credit Agreement (Private
Placement Debt) is hereby amended by deleting the phrase "15 Business Days"
therefrom and substituting therefor the phrase "20 Business Days."
2. Effectiveness. This Amendment shall become effective when it has been
executed by the Administrative Agent and the Administrative Agent has received
counterparts hereof executed by the Required Lenders and the Credit Parties set
forth on the signature pages hereto.
3. Continuing Validity of Loan Documents. The Parent Borrower hereby (a)
reaffirms and admits the validity and enforceability of each Loan Document and
all of the obligations of each Credit Party thereunder, (b) agrees and admits
that no Credit Party has any defenses to or offsets against any such obligation
and (c) certifies that, immediately after giving effect to this Amendment, (i)
no Default shall exist and (ii) each of the representations and warranties
contained in each Loan Document shall be true and correct with the same effect
as though such representation and warranty had been made on date hereof, except
to the extent such representation and warranty specifically relates to an
earlier date, in which case such representation and warranty shall have been
true and correct on and as of such earlier date.
4. Limitations. In all other respects, the Loan Documents shall remain in full
force and effect, and no amendment or waiver in respect of any term or condition
of any Loan Document shall be deemed (i) to be an amendment or waiver in respect
of any other term or condition contained in any Loan Document or (ii) to
prejudice any right or rights which the Administrative Agent, the Swing Line
Lender, the Issuing Banks, any Lender or the Parent Borrower or Subsidiary
Borrower may now have or may have in the future under or in connection with the
Credit Agreement or any of the Loan Documents.
5. Counterparts. This Amendment may be executed in any number of counterparts
all of which, taken together, shall constitute one agreement. In making proof of
this Amendment, it shall be necessary to produce only the counterpart executed
and delivered by the party to be charged.
6. Governing Law. THIS AMENDMENT IS BEING EXECUTED AND DELIVERED IN, AND IS
INTENDED TO BE PERFORMED IN, THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND
ENFORCEABLE IN ACCORDANCE WITH, AND BE GOVERNED BY, THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
AS EVIDENCE of the agreement by the parties hereto to the
terms and conditions herein contained, each such party has caused this Amendment
to be executed on its behalf.
VALMONT INDUSTRIES, INC.
By: /s/ Xxxxx X. XxXxxxx
------------------------------------------------
Name: Xxxxx X. XxXxxxx
Title: Senior Vice President and Chief
Financial Officer
THE BANK OF NEW YORK,
individually, as an Issuing Bank, as Swing
Line Lender and as Administrative Agent
By: /s/ Xxxx Xxxx Xxxxxxx
------------------------------------------------
Name: Xxxx Xxxx Xxxxxxx
-------------------------------------------
Title: Vice President
-------------------------------------------
Consented to and agreed:
WACHOVIA BANK, NATIONAL ASSOCIATION,
Individually and as Issuing Bank
By: /s/ Xxxxxxx Xxx Xxxxxxx
------------------------------------------------
Name: Xxxxxxx Xxx Xxxxxxx
------------------------------------------
Title: Director
------------------------------------------
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxxx
------------------------------------------
Title: Vice President
------------------------------------------
COOPERATIEVE CENTRALE
RAIFFEISEN - BOERENLEENBANK B.A,
"RABOBANK NEDERLAND", NEW YORK BRANCH
By: /s/ Xxxx Xxxxxxxx
------------------------------------------------
Name: Xxxx Xxxxxxxx
------------------------------------------
Title: Executive Director
------------------------------------------
By: /s/ Xxxxx Xxxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxxx
------------------------------------------
Title: Executive Director
------------------------------------------
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxxx III
------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx III
------------------------------------------
Title: Assistant Vice President
------------------------------------------
BANK OF AMERICA, N.A.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxx X. Xxxxxxx
-----------------------------------------
Title: Managing Director
-----------------------------------------
COMERICA BANK
By: /s/ Xxxxxxx X'Xxxxxx
------------------------------------------------
Name: Xxxxxxx X'Xxxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxx X. Xxxx
------------------------------------------------
Name: Xxxxx X. Xxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
XXXXX FARGO BANK, N.A.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxx X. Xxxxxxx
-----------------------------------------
Title: AVP
-----------------------------------------
ALLIED IRISH BANKS, P.L.C.
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
FIFTH THIRD BANK
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------------------
Name: Xxxx Xxxxxxxxxx
-----------------------------------------
Title: Corporate Banking Officer
-----------------------------------------
KBC BANK, N.V.
By: /s/Xxxxxx Xxxxxxxx
----------------------------------------------
Name: Xxxxxx Xxxxxxxx
---------------------------------------
Title: First Vice President
---------------------------------------
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
--------------------------------------
Title: Vice President
--------------------------------------
AIB DEBT MANAGEMENT LIMITED
By:
---------------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
--------------------------------------
Title: Vice President
--------------------------------------
AGREED AND CONSENTED TO:
PiROD, INC.
VALMONT COATINGS, INC.
NEWMARK INTERNATIONAL, INC.
By: /s/ Xxxxx X. XxXxxxx
------------------------------------------------
Name: Xxxxx X. XxXxxxx
Title: Senior Vice President and Chief Financial Officer
Xxxxx X. XxXxxxx, as Senior Vice President and Chief Financial Officer of each
of the aforementioned corporations, has executed this Amendment No. 1 to Credit
Agreement intending that all entities set forth above his signature shall be
bound by a single signature as if he had executed separately for each of such
entity.
AMENDMENT NO. 2
AMENDMENT NO. 2 (this "Amendment"), dated as of November 1, 2004, to
the Credit Agreement, dated as of May 4, 2004 and amended as of May 25, 2004 (as
so amended, the "Credit Agreement"), by and among VALMONT INDUSTRIES, INC., a
Delaware corporation (the "Parent Borrower"), the Qualified Subsidiaries of the
Parent Borrower party thereto or which from time to time become party thereto
(each a "Subsidiary Borrower" and, collectively, the "Subsidiary Borrowers"),
the lenders party thereto (each a "Lender" and, collectively, the "Lenders"),
WACHOVIA CAPITAL MARKETS, LLC, as Syndication Agent, LASALLE BANK NATIONAL
ASSOCIATION, COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL," NEW YORK BRANCH, and U.S. BANK NATIONAL ASSOCIATION, as
Co-Documentation Agents, WACHOVIA BANK, NATIONAL ASSOCIATION, as an Issuing
Bank, and THE BANK OF NEW YORK ("BNY"), as an Issuing Bank, as swing line lender
(in such capacity, the "Swing Line Lender"), and as administrative agent for the
Lenders, the Issuing Banks and the Swing Line Lender (in such capacity, the
"Administrative Agent").
RECITALS
I. Capitalized terms used herein which are not otherwise defined herein
shall have the respective meanings ascribed thereto in the Credit Agreement.
II. In accordance with Section 7.13 of the Credit Agreement, all
Indebtedness outstanding under the Private Placement Documents was repaid in
full and the Private Placement Documents were terminated contemporaneously with
such repayment.
III. In connection with such prepayment and termination, the Parent
Borrower was required to pay a prepayment penalty, the cost of which was
expected, at the time the Credit Agreement was entered into, to be capitalized.
The Parent Borrower has now been advised such cost must be treated as a charge
against earnings in its financial statements for the fiscal quarter ended June
26, 2004.
IV. The Parent Borrower has requested that the Lenders permit the Parent
Borrower to add back to net income the amount of such charge against earnings in
computing Consolidated EBITDA for purposes of calculating compliance with the
financial ratios set forth in the Credit Agreement (but not for purposes of
calculating the Pricing Level).
Accordingly, in consideration of the Recitals and the terms and conditions
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Parent Borrower, the
Lenders and the Administrative Agent hereby agree as follows:
1. Amendment to Section 1.1 Section 1.1 of the Credit Agreement
(Definitions) is hereby amended by
(a) restating the definition of the term "Consolidated EBITDA" to read
in its entirety as follows:
"Consolidated EBITDA": for any period, net income of the Parent
Borrower and its Subsidiaries, determined on a Consolidated basis
in accordance with GAAP, for such period, plus the sum of,
without duplication, each of the following with respect to the
Parent Borrower and its Subsidiaries, to the extent utilized in
determining such net income: (i) all interest expense, (ii)
provision for income taxes, (iii) depreciation and amortization
and (iv) with respect to the fiscal quarter ended June 26, 2004,
$9,555,000.
(b) amending the definition of the term "Leverage Ratio" by adding a
new proviso at the end thereof, to read in its entirety as follows:
and provided further that, in computing the Leverage Ratio for
purposes of determining any Pricing Level, Consolidated EBITDA,
shall be computed without giving effect to clause (iv) of the
definition of such term.
2. Effectiveness. This Amendment shall become effective when it has been
executed by the Administrative Agent and the Administrative Agent has received
counterparts hereof executed by the Required Lenders and the Credit Parties set
forth on the signature pages hereto.
3. Continuing Validity of Loan Documents. The Parent Borrower hereby (a)
reaffirms and admits the validity and enforceability of each Loan Document and
all of the obligations of each Credit Party thereunder, (b) agrees and admits
that no Credit Party has any defenses to or offsets against any such obligation
and (c) certifies that, immediately after giving effect to this Amendment, (i)
no Default shall exist and (ii) each of the representations and warranties
contained in each Loan Document shall be true and correct with the same effect
as though such representation and warranty had been made on date hereof, except
to the extent such representation and warranty specifically relates to an
earlier date, in which case such representation and warranty shall have been
true and correct on and as of such earlier date.
4. Limitations. In all other respects, the Loan Documents shall remain in
full force and effect, and no amendment or waiver in respect of any term or
condition of any Loan Document shall be deemed (i) to be an amendment or waiver
in respect of any other term or condition contained in any Loan Document or (ii)
to prejudice any right or rights which the Administrative Agent, the Swing Line
Lender, the Issuing Banks, any Lender or the Parent Borrower or Subsidiary
Borrower may now have or may have in the future under or in connection with the
Credit Agreement or any of the Loan Documents.
5. Counterparts. This Amendment may be executed in any number of
counterparts all of which, taken together, shall constitute one agreement. In
making proof of this Amendment, it shall be necessary to produce only the
counterpart executed and delivered by the party to be charged.
6. Governing Law. THIS AMENDMENT IS BEING EXECUTED AND DELIVERED IN, AND IS
INTENDED TO BE PERFORMED IN, THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND
ENFORCEABLE IN ACCORDANCE WITH, AND BE GOVERNED BY, THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
AS EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Amendment to be
executed on its behalf.
VALMONT INDUSTRIES, INC.
By: /s/ Xxxxx X. XxXxxxx
------------------------------------------------
Name: Xxxxx X. XxXxxxx
Title: Senior Vice President and Chief
Financial Officer
THE BANK OF NEW YORK,
individually, as an Issuing Bank, as Swing
Line Lender and as Administrative Agent
By: /s/Xxxx Xxxx Xxxxxxx
------------------------------------------------
Name: Xxxx Xxxx Xxxxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
Consented to and agreed:
WACHOVIA BANK, NATIONAL ASSOCIATION,
Individually and as Issuing Bank
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
COOPERATIEVE CENTRALE
RAIFFEISEN - BOERENLEENBANK B.A,
"RABOBANK NEDERLAND", NEW YORK BRANCH
By: /s/ Xxxx X. Xxxxxx
------------------------------------------------
Name: Xxxx X. Xxxxxx
-----------------------------------------
Title: Executive Director
-----------------------------------------
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------------------
Title: Executive Director
-----------------------------------------
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxxx III
------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx III
-----------------------------------------
Title: Assistant Vice President
-----------------------------------------
BANK OF AMERICA, N.A.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxxx
------------------------------------------
Title: Managing Director
------------------------------------------
COMERICA BANK
By: /s/ Xxxxxxx X'Xxxxxx
------------------------------------------------
Name: Xxxxxxx X'Xxxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------------------
Title: Vice President
------------------------------------------
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------------------
Title: Vice President
------------------------------------------
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
------------------------------------------
Title: Vice President
------------------------------------------
ALLIED IRISH BANKS, P.L.C.
By:/s/ Xxxxxx X. Xxxxxxxxx and Xxxxxx X'Xxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx and Xxxxxx X'Xxxxxxx
------------------------------------------
Title:Vice President / Assistant Vice President
------------------------------------------
FIFTH THIRD BANK
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------------------
Name: Xxxx Xxxxxxxxxx
------------------------------------------
Title: Officer
------------------------------------------
KBC BANK, N.V.
By: /s/ Xxxx-Xxxxxx Diels
------------------------------------------------
Name: Xxxx-Xxxxxx Diels
------------------------------------------
Title: First Vice President
------------------------------------------
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
------------------------------------------
Title: Vice President
------------------------------------------
AIB DEBT MANAGEMENT LIMITED
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxxxxx
------------------------------------------
Title: Vice President
------------------------------------------
By: /s/ Xxxxxx X'Xxxxxxx
------------------------------------------------
Name: Xxxxxx X'Xxxxxxx
------------------------------------------
Title: Assistant Vice President
------------------------------------------
AGREED AND CONSENTED TO:
PiROD, INC.
VALMONT COATINGS, INC.
NEWMARK INTERNATIONAL, INC.
By: /s/ Xxxxx X. XxXxxxx
------------------------------------------------
Name: Xxxxx X. XxXxxxx
Title: Senior Vice President and Chief Financial Officer
Xxxxx X. XxXxxxx, as Senior Vice President and Chief Financial Officer of each
of the aforementioned corporations, has executed this Amendment No. 2 to Credit
Agreement intending that all entities set forth above his signature shall be
bound by a single signature as if he had executed separately for each of such
entity.
Execution Copy
AMENDMENT NO. 3
AMENDMENT NO. 3 (this "Amendment"), dated as of April 8, 2005, to the
Credit Agreement, dated as of May 4, 2004 and amended as of May 25, 2004 and
November 1, 2004 (as so amended, the "Credit Agreement"), by and among VALMONT
INDUSTRIES, INC., a Delaware corporation (the "Parent Borrower"), the Qualified
Subsidiaries of the Parent Borrower party thereto or which from time to time
become party thereto (each a "Subsidiary Borrower" and, collectively, the
"Subsidiary Borrowers"), the lenders party thereto (each a "Lender" and,
collectively, the "Lenders"), WACHOVIA CAPITAL MARKETS, LLC, as Syndication
Agent, LASALLE BANK NATIONAL ASSOCIATION, COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK INTERNATIONAL," NEW YORK BRANCH, and
U.S. BANK NATIONAL ASSOCIATION, as Co-Documentation Agents, WACHOVIA BANK,
NATIONAL ASSOCIATION, as an Issuing Bank, and THE BANK OF NEW YORK ("BNY"), as
an Issuing Bank, as swing line lender (in such capacity, the "Swing Line
Lender"), and as administrative agent for the Lenders, the Issuing Banks and the
Swing Line Lender (in such capacity, the "Administrative Agent").
RECITALS
I. Capitalized terms used herein which are not otherwise defined herein
shall have the respective meanings ascribed thereto in the Credit Agreement.
II. The Parent Borrower has decided to terminate the Aircraft Lease and
replace the aircraft which is the subject thereof (the "Old Aircraft") with a
substitute aircraft (the "Replacement Aircraft");
III. In order to obtain advantageous tax treatment of the foregoing
transaction, the Parent Borrower intends to purchase the Old Aircraft and
exchange it for the Replacement Aircraft in an arrangement qualifying as a
like-kind exchange under Section 1031 of the Code (the "Like-Kind Exchange");
IV. In order to facilitate the Like-Kind Exchange, title to the Replacement
Aircraft will initially be taken by an Exchange Accommodation Titleholder (as
such term is defined in Section 1031 of the Code), which is not a Subsidiary of
the Parent Borrower;
V. The Parent Borrower intends to provide financing to the Exchange
Accommodation Titleholder for the purchase of the Replacement Aircraft;
VI. The Parent Borrower has requested that the Lenders (i) consent to its
advancing of funds to the Exchange Accommodation Titleholder in order to
facilitate the Like-Kind Exchange and (ii) permit the payments required to
terminate the Aircraft Lease and purchase the Old Aircraft and the Lenders are
willing to do so on the terms and conditions hereinafter set forth.
Accordingly, in consideration of the Recitals and the terms and conditions
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Parent Borrower, the
Lenders and the Administrative Agent hereby agree as follows:
1. Amendment to Section 1.1. Section 1.1 of the Credit Agreement
(Definitions) is hereby amended by adding in appropriate alphabetical position
the following new defined terms to read in their entirety as follows:
"Aircraft Like-Kind Exchange": the disposition by the Parent Borrower
of the Old Aircraft and its replacement with the Replacement Aircraft
in a Like-Kind Exchange pursuant to which: (i) the Parent Borrower
will assign the purchase agreement for the Replacement Aircraft to the
Exchange Accommodation Titleholder, (ii) the Parent Borrower will
finance the acquisition by the Exchange Accommodation Titleholder of
the Replacement Aircraft (the "Aircraft Loan"), (iii) the Exchange
Accommodation Titleholder will purchase the Replacement Aircraft, (iv)
the Parent Borrower will purchase the Old Aircraft and transfer it to
the Exchange Accommodation Titleholder, (iii) the Exchange
Accommodation Titleholder will transfer the Replacement Aircraft to
the Parent Borrower (or a grantor trust established by the Parent
Borrower) in exchange for the Old Aircraft and partial cancellation of
the Aircraft Loan, (iv) the Exchange Accommodation Titleholder will
sell the Old Aircraft and apply the proceeds of such sale to repay the
balance of the Aircraft Loan.
"Exchange Accommodation Titleholder": Western Meadowlark Acquisitions,
Inc., a Delaware corporation established by X.X. Xxxxxx Property
Exchange, Inc., which will act as the Exchange Accommodation
Titleholder (as defined in Section 1031 of the Code) to facilitate the
acquisition of the Replacement Aircraft in a Like-Kind Exchange.
"Like-Kind Exchange": a transaction qualifying as a like-kind exchange
under Section 1031 of the Code.
"Old Aircraft": the aircraft which is the subject of the Aircraft
Lease.
"Replacement Aircraft": a Canadair Challenger 604 aircraft.
2. Amendment to Section 8.6. Section 8.6 of the Credit Agreement
(Investments) is hereby amended by adding a new clause (j) at the end thereof,
to read in its entirety as follows:
(j) one or more loans or other advances in an aggregate amount not to
exceed $17,000,000 and for a term not to exceed 185 days to the
Exchange Accommodation Titleholder for the purpose of financing the
acquisition of the Replacement Aircraft by the Exchange Accommodation
Titleholder as part of the Aircraft Like-Kind Exchange.
3. Amendment to Section 8.12. Section 8.12 of the Credit Agreement
(Prepayments of Indebtedness) is hereby amended by restating the parenthetical
phrase appearing therein to read in its entirety as follows:
(other than Indebtedness under the Loan Documents, Indebtedness under
the Wachovia Synthetic Lease Arrangement in effect as of the date
hereof and Indebtedness under the Aircraft Lease in effect as of the
date hereof)
4. Effectiveness. This Amendment shall become effective when it has been
executed by the Administrative Agent and the Administrative Agent has received
counterparts hereof executed by the Required Lenders and the Credit Parties set
forth on the signature pages hereto.
5. Continuing Validity of Loan Documents. The Parent Borrower hereby (a)
reaffirms and admits the validity and enforceability of each Loan Document and
all of the obligations of each Credit Party thereunder, (b) agrees and admits
that no Credit Party has any defenses to or offsets against any such obligation
and (c) certifies that, immediately after giving effect to this Amendment, (i)
no Default shall exist and (ii) each of the representations and warranties
contained in each Loan Document shall be true and correct with the same effect
as though such representation and warranty had been made on date hereof, except
to the extent such representation and warranty specifically relates to an
earlier date, in which case such representation and warranty shall have been
true and correct on and as of such earlier date.
6. Limitations. In all other respects, the Loan Documents shall remain in
full force and effect, and no amendment or waiver in respect of any term or
condition of any Loan Document shall be deemed (i) to be an amendment or waiver
in respect of any other term or condition contained in any Loan Document or (ii)
to prejudice any right or rights which the Administrative Agent, the Swing Line
Lender, the Issuing Banks, any Lender or the Parent Borrower or Subsidiary
Borrower may now have or may have in the future under or in connection with the
Credit Agreement or any of the Loan Documents.
7. Counterparts. This Amendment may be executed in any number of
counterparts all of which, taken together, shall constitute one agreement. In
making proof of this Amendment, it shall be necessary to produce only the
counterpart executed and delivered by the party to be charged.
8. Governing Law. THIS AMENDMENT IS BEING EXECUTED AND DELIVERED IN, AND IS
INTENDED TO BE PERFORMED IN, THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND
ENFORCEABLE IN ACCORDANCE WITH, AND BE GOVERNED BY, THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
AS EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Amendment to be
executed on its behalf.
VALMONT INDUSTRIES, INC.
By: /s/ Xxxxx X. XxXxxxx
------------------------------------------------
Name: Xxxxx X. XxXxxxx
Title: Senior Vice President and Chief
Financial Officer
THE BANK OF NEW YORK,
individually, as an Issuing Bank, as Swing
Line Lender and as Administrative Agent
By: /s/ Xxxx Xxxx Xxxxxxx
------------------------------------------------
Name: Xxxx Xxxx Xxxxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
Consented to and agreed:
WACHOVIA BANK, NATIONAL ASSOCIATION,
Individually and as Issuing Bank
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------------
Title: VP
-----------------------------------------
COOPERATIEVE CENTRALE
RAIFFEISEN - BOERENLEENBANK B.A,
"RABOBANK NEDERLAND", NEW YORK BRANCH
By: /s/ Xxxx Xxxxxxxx
------------------------------------------------
Name: Xxxx Xxxxxxxx
-----------------------------------------
Title: Managing Director
-----------------------------------------
By: /s/ Xxxxx Xxxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxxx
-----------------------------------------
Title: Executive Director
-----------------------------------------
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxxx III
------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx III
-----------------------------------------
Title: Vice President
-----------------------------------------
BANK OF AMERICA, N.A.
By: /s/ Xxxx Xxxxxxx
------------------------------------------------
Name: Xxxx Xxxxxxx
-----------------------------------------
Title: Senior Vice President
-----------------------------------------
COMERICA BANK
By: /s/ Xxxxxxx X'Xxxxxx
------------------------------------------------
Name: Xxxxxxx X'Xxxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
-----------------------------------------
Title: Managing Director
-----------------------------------------
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------------------
Title: Senior Vice President
-----------------------------------------
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
ALLIED IRISH BANKS, P.L.C.
By:
------------------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
FIFTH THIRD BANK
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------------------
Title: Corporate Banking Officer
-----------------------------------------
KBC BANK, N.V.
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxxxx
-----------------------------------------
Title: First Vice President
-----------------------------------------
AIB DEBT MANAGEMENT LIMITED
By:
------------------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
By:
------------------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
AGREED AND CONSENTED TO:
PiROD, INC.
VALMONT COATINGS, INC.
NEWMARK INTERNATIONAL, INC.
By: /s/ Xxxxx X. XxXxxxx
------------------------------------------------
Name: Xxxxx X. XxXxxxx
Title: Senior Vice President and Chief Financial Officer
Xxxxx X. XxXxxxx, as Senior Vice President and Chief Financial Officer of each
of the aforementioned corporations, has executed this Amendment No. 3 to Credit
Agreement intending that all entities set forth above his signature shall be
bound by a single signature as if he had executed separately for each of such
entity.
Execution Copy
AMENDMENT NO. 4
AMENDMENT NO. 4 (this "Amendment"), dated as of May 16, 2005, to the
Credit Agreement, dated as of May 4, 2004 and amended as of May 25, 2004,
November 1, 2004 and April 8, 2005 (as so amended, the "Credit Agreement"), by
and among VALMONT INDUSTRIES, INC., a Delaware corporation (the "Parent
Borrower"), the Qualified Subsidiaries of the Parent Borrower party thereto or
which from time to time become party thereto (each a "Subsidiary Borrower" and,
collectively, the "Subsidiary Borrowers"), the lenders party thereto (each a
"Lender" and, collectively, the "Lenders"), WACHOVIA CAPITAL MARKETS, LLC, as
Syndication Agent, LASALLE BANK NATIONAL ASSOCIATION, COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK INTERNATIONAL," NEW YORK BRANCH, and
U.S. BANK NATIONAL ASSOCIATION, as Co-Documentation Agents, WACHOVIA BANK,
NATIONAL ASSOCIATION, as an Issuing Bank, and THE BANK OF NEW YORK ("BNY"), as
an Issuing Bank, as swing line lender (in such capacity, the "Swing Line
Lender"), and as administrative agent for the Lenders, the Issuing Banks and the
Swing Line Lender (in such capacity, the "Administrative Agent").
RECITALS
I. Capitalized terms used herein which are not otherwise defined herein
shall have the respective meanings ascribed thereto in the Credit Agreement.
II. The Parent Borrower has requested that the Lenders agree to change in
pricing under the Credit Agreement and the Lenders are willing to do so on the
terms and conditions hereinafter set forth.
Accordingly, in consideration of the Recitals and the terms and conditions
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Parent Borrower, the
Lenders and the Administrative Agent hereby agree as follows:
1. Amendment to Section 1.1 Section 1.1 of the Credit Agreement
(Definitions) is hereby amended by
(i) restating the definition of "Revolving Credit Commitment Amount" to
read in its entirety as follows:
"Revolving Credit Commitment Amount": as of any date and with respect
to any Lender, the amount set forth adjacent to its name under the
heading "Revolving Credit Commitment Amount" in Exhibit A on such date
or, in the event that such Lender is not listed in Exhibit A, (i) the
"Revolving Credit Commitment Amount" which such Lender shall have
assumed from another Lender in accordance with Section 11.6 on or
prior to such date or (ii) the "Revolving Credit Commitment Amount"
which such Lender shall have acquired pursuant to an Increase
Supplement executed pursuant to Section 2.5, in each case as the same
may be adjusted from time to time pursuant to Sections 2.5 and 11.6.
(ii) restating the table set forth in the definition of the term
"Applicable Margin" to read in its entirety as follows:
Applicable Eurodollar Applicable
Margin for Revolving Credit Eurodollar
Loans, Core Currency Euro Margin for Term
Pricing Level and Standby LC Margin Loans Trade LC Margin Facility Fee
------------- -------------------- ---------------- --------------- ------------
Pricing Level I 0.500% 0.625% 0.1875% 0.125%
Pricing Level II 0.575% 0.750% 0.2500% 0.175%
Pricing Level III 0.675% 0.875% 0.3000% 0.200%
Pricing Level IV 0.875% 1.125% 0.3750% 0.250%
Pricing Level V 1.125% 1.375% 0.4500% 0.250%
(iii) adding in appropriate alphabetical order the following defined term:
"Amendment No. 4" means Amendment No. 4, dated as of May 16, 2005, to
this Agreement
2. Amendment to Section 2.5 Section 2.5 of the Credit Agreement
(Termination or Reduction of Commitments) is hereby amended by
(i) redesignating such section as "Termination, Reduction or Increase of
Commitments;"
(ii) inserting therein new subsections (d) and (e) to read in their
entirety as follows:
(d) Increases in Commitments. Provided that no Default exists or would
exist immediately before and after giving effect thereto, the Parent
Borrower may at any time and from time to time prior to May 31, 2007, at
its sole cost and expense, request any one or more of the Lenders to
increase its Revolving Credit Commitment Amount (provided, that, the
decision to increase the Revolving Credit Commitment Amount of a Lender
shall be within the sole and absolute discretion of such Lender), or any
other Eligible Assignee reasonably satisfactory to the Administrative Agent
to provide a new Revolving Credit Commitment (any Lender so increasing its
Commitment pursuant to this Section 2.5(d) and any such Eligible Assignee
providing a new Revolving Credit Commitment pursuant to this Section
2.5(d), an "Increased Lender"). In the event a Lender or Eligible Assignee
agrees to become an Increased Lender, the Parent Borrower shall submit to
the Administrative Agent an Increase Supplement in the form of Exhibit A to
Amendment No. 4 (an "Increase Supplement"), duly executed by the Parent
Borrower, the Guarantors and each such Increased Lender. If such Increase
Supplement is in all respects appropriately completed and executed and all
of the other requirements set forth in Sections 2.5(d) and (e) have been
satisfied, the Administrative Agent shall execute such Increase Supplement
and deliver a copy thereof to the Parent Borrower and each such Increased
Lender and the Administrative Agent shall promptly provide notice thereof
to each Lender. Upon execution and delivery of such Increase Supplement,
(A) in the case of each Increased Lender that is already a Lender, such
Lender's Revolving Credit Commitment shall be increased to the Revolving
Credit Commitment Amount set forth in such Increase Supplement, (B) in the
case of each such Eligible Assignee, such Eligible Assignee shall become a
party hereto and shall for all purposes of the Loan Documents be deemed a
"Lender" with a Revolving Credit Commitment in a Revolving Credit
Commitment Amount set forth in such Increase Supplement, and (C) the Parent
Borrower shall contemporaneously therewith execute and deliver to the
Administrative Agent (x) for each Lender providing an increased Revolving
Credit Commitment and requesting a Note pursuant to Section 2.13(d), a Note
in the form of Exhibit Q-1 to this Agreement in the amount of such
increased Revolving Credit Commitment Amount and (y) for each such Eligible
Assignee providing a new Commitment and requesting a Note pursuant to
Section 2.13(d), a Note in the form of Exhibit Q-1 to this Agreement in the
amount of its Revolving Credit Commitment Amount and a Note in the form of
Exhibit Q-3 to this Agreement ; provided, however, that:
(i) the Aggregate Revolving Credit Commitment Amount shall not be
increased on more than two occasions;
(ii) the sum of both increases shall not exceed $50,000,000 after
giving effect to all increases the Aggregate Revolving Credit
Commitment Amount shall not exceed $200,000,000;
(iii) each such increase shall be in an amount not less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof;
(iv) each such Eligible Assignee shall have delivered to the
Administrative Agent and the Parent Borrower all forms, if any, that
are required to be delivered by such Eligible Assignee pursuant to
Section 3.9(e);
(v) upon the Administrative Agent's execution and delivery of an
Increase Supplement in accordance with the terms hereof, the Revolving
Credit Commitment Amount of each Lender and the Aggregate Revolving
Credit Commitment Amount shall be automatically adjusted to include
the Revolving Credit Commitments set forth in each such Increase
Supplement; and
(vi) the Administrative Agent shall have received from each
Eligible Assignee other than a Lender a completed administrative
questionnaire and other items as it shall reasonably request in
connection with such increase.
(e) Adjustments Upon Increase. If Revolving Credit Loans shall be
outstanding immediately after giving effect to an increase pursuant to
Section 2.5(d), upon the Administrative Agent's execution and delivery of
an Increase Supplement in accordance with the terms hereof, each Lender
shall be deemed to have sold and assigned to each applicable Increased
Lender, without recourse, and each applicable Increased Lender shall be
deemed to have purchased and assumed from each Lender the amount of such
Lender's outstanding Revolving Credit Loans as shall be necessary to result
(after giving effect to the assignments of all Lenders) in the Revolving
Credit Loans made by each Lender and by each Increased Lender being equal
to its Revolving Credit Commitment Percentage multiplied by the aggregate
amount of all Revolving Credit Loans outstanding to the Borrowers as of
such date. At the direction of the Administrative Agent, each Increased
Lender shall make all payments to the Administrative Agent and the
Administrative Agent shall make such payments to the Lenders as may be
necessary to carry the foregoing into effect. The Borrowers hereby agree
that any amount that an Increased Lender so pays to another Lender pursuant
to this Section 2.5(e) shall be entitled to all rights of a Lender under
this Agreement and such payments to the Lenders shall constitute Revolving
Credit Loans held by each such Increased Lender under this Agreement and
that each such Increased Lender may, to the fullest extent permitted by
law, exercise all of its rights of payment (including the right of set-off)
with respect to such amounts as fully as if such Increased Lender had
initially advanced to a Borrower the amount of such payments. In connection
with the assignment and acceptance provided in Sections 2.5(d) and 2.5(e),
the Borrowers hereby confirm and agree that each Lender receiving any
payment pursuant to the provisions of Sections 2.5(d) and 2.5(e) may treat
the assignment of Eurodollar Advances as a prepayment of such Eurodollar
Advances for purposes of Section 3.4. Furthermore, in connection with each
such assignment and acceptance:
(i) each Lender: (1) represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it hereunder,
and that such interest is free and clear of any adverse claim; (2)
makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or any other instrument or document
furnished pursuant thereto; and (3) makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of the Borrower or any other Person or the performance or
observance by any Borrower or any other Person of any of its
obligations under this Agreement or any other instrument or document
furnished pursuant hereto;
(ii) each Increased Lender: (1) confirms that it has received a
copy of this Agreement, together with copies of such financial
statements and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into
the Increase Supplement; (2) agrees that it will, independently and
without reliance upon the Administrative Agent or any Lender and based
on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under the Loan Documents; (3) confirms that it is an
Increased Lender permitted by this Agreement; (4) appoints and
authorizes the Administrative Agent to take such action as its agent
on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together
with such powers as are reasonably incidental thereto; (5) agrees that
it will perform in accordance with their terms all of the obligations
which by the terms of the Loan Documents are required to be performed
by it as a Lender; (6) specifies as the addresses for its Applicable
Lending Office for ABR and Eurodollar Advances (and address for
notices) the offices set forth beneath its name on the Increase
Supplement it provides in connection herewith, (7) agrees to deposit
with the Administrative Agent upon its request an amount in
immediately available funds equal to the Revolving Credit Loans
assigned pursuant hereto for distribution to the Lenders, as their
interests may appear, in accordance with Sections 2.5(d) and 2.5(e),
and (8) confirms and agrees that its payment to the Administrative
Agent of the amounts required by Sections 2.5(d) and 2.5(e) shall
indicate its acceptance of all the terms and conditions of the Loan
Documents; and
(iii) the assignment and acceptance provisions of Sections 2.5(d)
and 2.5(e) shall be effective upon the later of the Administrative
Agent's execution and delivery of an Increase Supplement in accordance
with the terms hereof and payment by each Lender, Increased Lender and
the Parent Borrower, as the case may be, of all amounts required to be
paid pursuant Sections 2.5(d) and 2.5(e). Upon such effectiveness, the
Administrative Agent shall make all payments under this Agreement and
the Note(s) in respect of the interests assigned hereby (including,
without limitation, all payments of principal, interest and fees with
respect thereto) to the Increased Lender(s), as their interests may
appear.
3. Section 11.1 of the Credit Agreement (Amendments and Waivers) is,
effective on the date of this Amendment, hereby amended by restating clause (i)
of subsection (a) thereof to read as follows:
(i) increase the Revolving Credit Commitment Amount of any Lender or,
except as provided in Sections 2.5(d) and 2.5(e), the Aggregate Revolving Credit
Commitment Xxxxxx,".
0. Effectiveness. This Amendment shall become effective when (i) it has
been executed by the Administrative Agent and the Administrative Agent has
received counterparts hereof executed by the Lenders and the Credit Parties set
forth on the signature pages hereto and (ii) the Administrative Agent shall have
received from the Parent Borrower, for the ratable benefit of each Lender
executing this Amendment, an amendment fee in an amount for each Lender equal to
the product of (1) the sum of (a) the Revolving Credit Commitment Amount of such
Lender and (b) the outstanding principal amount of the Term Loans of such
Lender, each as of the date of this Amendment, multiplied by (2) 0.050%.
5. Continuing Validity of Loan Documents. The Parent Borrower hereby (a)
reaffirms and admits the validity and enforceability of each Loan Document and
all of the obligations of each Credit Party thereunder, (b) agrees and admits
that no Credit Party has any defenses to or offsets against any such obligation
and (c) certifies that, immediately after giving effect to this Amendment, (i)
no Default shall exist and (ii) each of the representations and warranties
contained in each Loan Document shall be true and correct with the same effect
as though such representation and warranty had been made on date hereof, except
to the extent such representation and warranty specifically relates to an
earlier date, in which case such representation and warranty shall have been
true and correct on and as of such earlier date.
6. Limitations. In all other respects, the Loan Documents shall remain in
full force and effect, and no amendment or waiver in respect of any term or
condition of any Loan Document shall be deemed (i) to be an amendment or waiver
in respect of any other term or condition contained in any Loan Document or (ii)
to prejudice any right or rights which the Administrative Agent, the Swing Line
Lender, the Issuing Banks, any Lender or the Parent Borrower or Subsidiary
Borrower may now have or may have in the future under or in connection with the
Credit Agreement or any of the Loan Documents.
7. Counterparts. This Amendment may be executed in any number of
counterparts all of which, taken together, shall constitute one agreement. In
making proof of this Amendment, it shall be necessary to produce only the
counterpart executed and delivered by the party to be charged.
8. Governing Law. THIS AMENDMENT IS BEING EXECUTED AND DELIVERED IN, AND IS
INTENDED TO BE PERFORMED IN, THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND
ENFORCEABLE IN ACCORDANCE WITH, AND BE GOVERNED BY, THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
AS EVIDENCE of the agreement by the parties hereto to the
terms and conditions herein contained, each such party has caused this Amendment
to be executed on its behalf.
VALMONT INDUSTRIES, INC.
By: /s/ Xxxxx X. XxXxxxx
------------------------------------------------
Name: Xxxxx X. XxXxxxx
Title: Senior Vice President and Chief
Financial Officer
THE BANK OF NEW YORK,
individually, as an Issuing Bank, as Swing
Line Lender and as Administrative Agent
By: /s/ Xxxx Xxxx Xxxxxxx
------------------------------------------------
Name: Xxxx Xxxx Xxxxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
Consented to and agreed:
WACHOVIA BANK, NATIONAL ASSOCIATION,
Individually and as Issuing Bank
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------------------
Title: Director
-----------------------------------------
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
COOPERATIEVE CENTRALE
RAIFFEISEN - BOERENLEENBANK B.A,
"RABOBANK NEDERLAND", NEW YORK BRANCH
By: /s/ Xxxx X. Xxxxxx
------------------------------------------------
Name: Xxxx X. Xxxxxx
-----------------------------------------
Title: Executive Director
-----------------------------------------
By: /s/ Xxxxx Xxxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxxx
-----------------------------------------
Title: Executive Director
-----------------------------------------
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxxx III
------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx III
-----------------------------------------
Title: Vice President
-----------------------------------------
BANK OF AMERICA, N.A.
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
COMERICA BANK
By: /s/ Xxxxxxx X'Xxxxxx
------------------------------------------------
Name: Xxxxxxx X'Xxxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxx Xxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxx
-----------------------------------------
Title: Director
-----------------------------------------
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------------------
Title: Senior Vice President
-----------------------------------------
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
ALLIED IRISH BANKS, P.L.C.
By: /s/ Xxxxxx X. Xxxxxxxxx and Xxxxxx X'Xxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx and Xxxxxx X'Xxxxxxx
-----------------------------------------
Title: Vice President / Assistant Vice President
-----------------------------------------
FIFTH THIRD BANK
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------------------
Title: Corporate Banking Officer
-----------------------------------------
KBC BANK, N.V.
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
By: /s/ Xxxxxxx Xxxxxx
------------------------------------------------
Name: Xxxxxxx Xxxxxx
-----------------------------------------
Title: First Vice President
-----------------------------------------
AIB DEBT MANAGEMENT LIMITED
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
By: /s/ Xxxxxx X'Xxxxxxx
------------------------------------------------
Name: Xxxxxx X'Xxxxxxx
-----------------------------------------
Title: Assistant Vice President
-----------------------------------------
AGREED AND CONSENTED TO:
PiROD, INC.
VALMONT COATINGS, INC.
NEWMARK INTERNATIONAL, INC.
By: /s/ Xxxxx X. XxXxxxx
------------------------------------------------
Name: Xxxxx X. XxXxxxx
Title: Senior Vice President and Chief Financial Officer
Xxxxx X. XxXxxxx, as Senior Vice President and Chief Financial Officer of each
of the aforementioned corporations, has executed this Amendment No. 4 to Credit
Agreement intending that all entities set forth above his signature shall be
bound by a single signature as if he had executed separately for each of such
entity.
EXHIBIT A
FORM OF INCREASE SUPPLEMENT
INCREASE SUPPLEMENT, dated as of _____________, to the Credit Agreement,
dated as of May 4, 2004 and amended as of May 25, 2004, November 1, 2004, April
8, 2005 and May 16, 2005 (as so amended, the "Credit Agreement"), by and among
VALMONT INDUSTRIES, INC., a Delaware corporation (the "Parent Borrower"), the
Qualified Subsidiaries of the Parent Borrower party thereto or which from time
to time become party thereto (each a "Subsidiary Borrower" and, collectively,
the "Subsidiary Borrowers"), the lenders party thereto (each a "Lender" and,
collectively, the "Lenders"), WACHOVIA CAPITAL MARKETS, LLC, as Syndication
Agent, LASALLE BANK NATIONAL ASSOCIATION, COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK INTERNATIONAL," NEW YORK BRANCH, and
U.S. BANK NATIONAL ASSOCIATION, as Co-Documentation Agents, WACHOVIA BANK,
NATIONAL ASSOCIATION, as an Issuing Bank, and THE BANK OF NEW YORK ("BNY"), as
an Issuing Bank, as swing line lender (in such capacity, the "Swing Line
Lender"), and as administrative agent for the Lenders, the Issuing Banks and the
Swing Line Lender (in such capacity, the "Administrative Agent"). Capitalized
terms used herein that are not otherwise defined herein and are defined in the
Credit Agreement shall have the meanings therein defined.
Pursuant to Sections 2.5(d) and (e) of the Credit Agreement, the Parent
Borrower hereby proposes to increase (the "Increase") the Aggregate Revolving
Credit Commitment Amount from $__________ to $_________.
1. Each of the following Lenders has been invited by the Parent Borrower,
and is ready, willing and able to increase its Revolving Credit Commitment
Amount as follows:
Revolving Credit Commitment Amount
Name of Lender (after giving effect to the Increase
-------------- -------------------------------------
------------------ $----------
------------------ $----------
------------------ $----------
2. Each of the following Eligible Assignees has been invited by the Parent
Borrower, and is ready, willing and able to become a "Lender" and assume a
Revolving Credit Commitment under the Credit Agreement as follows:
Name of Proposed
Eligible Assignee Revolving Credit Commitment Amount
------------------ $----------
------------------ $----------
------------------ $----------
3. The proposed effective date for the Increase is ___________________.
4. The Parent Borrower hereby represents and warrants to the Administrative
Agent and each Lender and each such proposed Eligible Assignee that (i)
immediately before and after giving effect to the Increase, no Default or Event
of Default exists or would exist and each of the representations and warranties
set forth in the Loan Documents is true and correct in all material respects
(except to the extent any such representation or warranty expressly relates to
an earlier date, in which case it shall continue to be true as of such earlier
date) and (ii) immediately after giving effect thereto (and taking into account
any prior Increases), the Aggregate Revolving Credit Commitment Amount does not
exceed $200,000,000.
5. Pursuant to Sections 2.5(d) and (e) of the Credit Agreement, by
execution and delivery of this Increase Supplement, together with the
satisfaction of all of the other requirements set forth in said Sections 2.5(d)
and (e), each undersigned Lender and proposed Eligible Assignee (i) shall have,
on and as of the effective date of the Increase, a Revolving Credit Commitment
in a Revolving Credit Commitment Amount equal to the amount set forth above next
to its name and (ii) in the event it is a proposed Eligible Assignee, shall be
and shall be deemed to be a "Lender" under, and as such term is defined in, the
Credit Agreement.
[THE FOLLOWING IS TO BE ADDED IF THE PROPOSED ELIGIBLE ASSIGNEE IS NOT CURRENTLY
A LENDER]
6. Each proposed Eligible Assignee hereby confirms to and agrees with the
Borrowers, the Administrative Agent and the current Lenders as follows:
(a) The Administrative Agent and the Lenders have made no
representation or warranty and shall have no responsibility with respect to
any statements, warranties or representations made in or in connection with
the Credit Agreement or the other Loan Documents or the execution,
legality, validity, enforceability, genuineness, sufficiency,
collectibility or value of the Credit Agreement, the other Loan Documents,
or any other instrument or document furnished pursuant to the Credit
Agreement.
(b) The Administrative Agent and the Lenders have made no
representation or warranty and shall have no responsibility with respect to
the financial condition of the Borrowers and their respective Subsidiaries
or any other Person primarily or secondarily liable in respect of any of
their obligations under the Credit Agreement or any of the other Loan
Documents, or the performance or observance by the Borrowers and their
respective Subsidiaries or any other Person primarily or secondarily liable
in respect of their obligations under the Credit Agreement or any of the
other Loan Documents or any other instrument or document furnished pursuant
thereto.
(c) Each proposed Eligible Assignee confirms that it has received a
copy of the Credit Agreement and the other Loan Documents, together with
copies of the most recent financial statements delivered pursuant to the
Credit Agreement and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Increase Supplement and the documents, instruments and agreements executed
pursuant hereto or in connection herewith.
(d) Each proposed Eligible Assignee will, independently and without
reliance upon the other Lenders or the Administrative Agent and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under the Credit Agreement.
(e) Each proposed Eligible Assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement and the other Loan
Documents as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are reasonably incidental thereto.
(f) Each proposed Eligible Assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender.
(g) Each proposed Eligible Assignee represents and warrants that it is
legally authorized to enter into this Increase Supplement and the
documents, instruments and agreements executed pursuant hereto or in
connection herewith.
IN WITNESS WHEREOF, the parties hereto have caused this Increase Supplement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
VALMONT INDUSTRIES, INC.
By:
------------------------------------------------
Name: Xxxxx X. XxXxxxx
Title: Senior Vice President and Chief
Financial Officer
THE BANK OF NEW YORK,
as Administrative Agent
By:
------------------------------------------------
Name:
Title:
Commitment: $___________ [EXISTING LENDER INCREASING ITS
COMMITMENT], as a Lender
By:
------------------------------------------------
Name:
Title:
Lending Office for Prime Rate and Eurodollar Loans:
Address for Notices:
Commitment: $___________ [ELIGIBLE ASSIGNEE], as a Lender
By:
------------------------------------------------
Name:
Title:
Lending Office for Prime Rate and Eurodollar Loans:
Address for Notices:
AGREED AND CONSENTED TO:
PiROD, INC.
VALMONT COATINGS, INC.
NEWMARK INTERNATIONAL, INC.
By:
------------------------------------------------
Name: Xxxxx X. XxXxxxx
Title: Senior Vice President and Chief Financial Officer
Xxxxx X. XxXxxxx, as Senior Vice President and Chief Financial Officer of each
of the aforementioned corporations, has executed this Amendment No. 4 to Credit
Agreement intending that all entities set forth above his signature shall be
bound by a single signature as if he had executed separately for each of such
entity.
