SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit
10
SECOND
AMENDMENT TO SECOND
AMENDED AND RESTATED CREDIT
AGREEMENT
THIS
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) is
effective as of the 11th day of
February, 2009 (the “Amendment Effective
Date”).
RECITALS
WHEREAS,
MATRIX SERVICE COMPANY,
a Delaware corporation (the “Borrower”), JPMORGAN CHASE BANK, N.A., as
Administrative Agent (the “Administrative
Agent”) and as a Lender and Issuing Bank, and the financial institutions
therein named as Lenders, are parties to that certain Second Amended and
Restated Credit Agreement dated as November 30, 2006, as it has been amended by
that certain First Amendment to Second Amended and Restated Credit Agreement
dated July 6, 2007 (as so amended, and as it may be amended, supplemented or
restated from time to time hereafter in accordance with its terms, the “Credit
Agreement”);
WHEREAS,
all capitalized terms used but not defined in these Recitals shall have the
meanings assigned to them in the Credit Agreement;
WHEREAS,
the Borrower has requested amendments to certain of the covenants and other
provisions of the Credit Agreement, and the Lenders have agreed to such request
on the terms and conditions and subject to certain other amendments set forth in
this Amendment.
NOW THEREFORE, in consideration of the
mutual agreements, provisions and covenants contained herein, the parties hereto
agree as follows:
1. Incorporation by Reference;
Defined Terms. Capitalized
terms used but not defined in this Amendment (including the Recitals) shall have
the meanings given to them in the Credit Agreement. All terms defined
in the foregoing Recitals are incorporated herein by reference.
The term
“Loan Documents” is hereby amended to include the Credit Agreement, as amended
by this Amendment, all as they may be further amended from time to time with the
consent of the Administrative Agent and, to the extent required by the Credit
Agreement, the Lenders.
The term
“Agreement”, as used in the Credit Agreement, is hereby amended to mean the
Credit Agreement, as amended by this Amendment and as it may be further amended
from time to time with the consent of the Administrative Agent and, to the
extent required by the Credit Agreement, the Lenders.
The term
“Credit Agreement” in all other Loan Documents is hereby amended to mean the
Credit Agreement, as amended by this Amendment and as it may be further amended
from time to time with the consent of the Administrative Agent and, to the
extent required by the Credit Agreement, the Lenders.
2. Amendments. The
Credit Agreement is hereby amended as follows:
(a) The
definition of “Adjusted LIBO Rate” is hereby amended to read as
follows:
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“Adjusted LIBO
Rate” means, (i) with respect to any Eurodollar Borrowing for the
relevant Interest Period, the quotient of (a) the LIBO Rate applicable to
such Interest Period, divided by (b) one minus the Reserve Requirement
(expressed as a decimal) applicable to such Interest Period, and (ii) with
respect to any ABR Borrowing for which the interest rate on any day is
determined with reference to the Adjusted LIBO Rate, the quotient of (a)
the LIBO Rate on such day applicable to a one-month interest period,
divided by (b) one minus the Reserve Requirement (expressed as a decimal)
applicable to a one-month interest
period.
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(b) The
definition of “Alternate Base Rate” is hereby amended to read as
follows:
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“Alternate Base
Rate” means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Federal Funds Effective
Rate in effect on such day plus ½ of 1% and (c) the Adjusted LIBO Rate for
a one month Interest Period on such day (or if such day is not a Business
Day, the immediately preceding Business Day) plus 1%, provided that, for
the avoidance of doubt, for the purposes of calculating the Alternate Base
Rate, the Adjusted LIBO Rate for any day shall be based on the rate
appearing on the Reuters Screen LIBOR01 Page, also referred to as Reuters
BBA Libor Rates Page 3750 (or on any successor or substitute page), at
approximately 11:00 a.m. London time on such day. Any change in
the Alternate Base Rate due to a change in the Prime Rate, the Federal
Funds Effective Rate or the Adjusted LIBO Rate shall be effective from and
including the effective date of such change in the Prime Rate, the Federal
Funds Effective Rate or the Adjusted LIBO Rate,
respectively.
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(c) The
definition of “Consolidated EBIT” is hereby amended to read as
follows:
“Consolidated EBIT”
means, with reference to any period, Consolidated Net Income for such period (i)
plus, to the extent deducted in calculating Consolidated Net Income for such
period, (A) Consolidated Interest Expense, and (B) expense for income taxes paid
or accrued, all calculated for Borrower and its Subsidiaries on a consolidated
basis without duplication, and (ii) minus, to the extent included in calculating
Consolidated Net Income for such period, any Joint Venture Non-Cash Income for
such period. Notwithstanding the foregoing, with respect to any
rolling four quarter period during which a Permitted Acquisition has occurred,
for purposes of determining compliance with the Fixed Charge Coverage Ratio,
Consolidated EBIT shall be calculated pro forma (without duplication) as if the
acquired Entity or business had been owned during the entire four quarter
period, on the basis of (x) the historical financial statements of any Entity or
business so acquired and (y) the assumption that the consolidated financial
statements of the Borrower and its Subsidiaries have been reformulated as if
such Permitted Acquisition, and any Indebtedness incurred or repaid in
connection therewith, had been consummated or incurred or repaid at the
beginning of the relevant four quarter period (and assuming that such
Indebtedness bears interest during any portion of the applicable measurement
period prior to the relevant Acquisition at the weighted average of the interest
rates applicable to such Indebtedness) outstanding during such
period.
(d) The
definition of “Consolidated EBITDA” is hereby amended to read as
follows:
“Consolidated EBITDA”
means, with reference to any period, Consolidated Net Income for such period (i)
plus, to the extent deducted in calculating Consolidated Net Income for such
period, (A) Consolidated Interest Expense, (B) expense for income taxes paid or
accrued, (C) depreciation, amortization and other non-cash charges (including
but not limited to non-cash compensation expense recorded in accordance with FAS
123R), (D) losses on sales of fixed assets, and (E) extraordinary losses
incurred other than in the ordinary course of business, (ii) minus, to the
extent included in Consolidated Net Income, (A) gains on sales of fixed assets,
and (B) extraordinary gains realized other than in the ordinary course of
business, all calculated for Borrower and its Subsidiaries on a consolidated
basis without duplication and (iii) minus, to the extent included in calculating
Consolidated Net Income for such period, any Joint Venture Non-Cash Income for
such period. Notwithstanding the foregoing, with respect to any
rolling four quarter period during which a Permitted Acquisition has occurred,
for purposes of determining compliance with the Senior Leverage Ratio,
Consolidated EBITDA shall be calculated pro forma (without duplication) as if
the acquired Entity or business had been owned during the entire four quarter
period, on the basis of (x) the historical financial statements of any Entity or
business so acquired, and (y) the assumption that the consolidated financial
statements of the Borrower and its Subsidiaries have been reformulated as if
such Permitted Acquisition, and any Indebtedness incurred or repaid in
connection therewith, had been consummated or incurred or repaid at the
beginning of the relevant four quarter period (and assuming that such
Indebtedness bears interest during any portion of the applicable measurement
period prior to the relevant Acquisition at the weighted average of the interest
rates applicable to such Indebtedness) outstanding during such
period.
(e) The
definition of “LIBO Rate” is hereby amended to read as follows:
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“LIBO Rate”
means with respect to any Eurodollar Borrowing for any Interest Period,
the interest rate determined by the Administrative Agent by reference to
Reuters Screen LIBOR01, also referred to as Reuters BBA Libor
Rates Page 3750 (or on any successor or substitute page), at approximately
11:00 a.m. London time, two Business Days prior to the commencement of the
Interest Period for dollar deposits with a maturity equal to such Interest
Period. If no LIBO Rate is available to the Administrative
Agent, the applicable LIBO Rate for the relevant Interest Period shall
instead be the rate determined by the Administrative Agent to be the rate
at which JPMorgan Chase offers to place U.S. dollar deposits having a
maturity equal to such Interest Period with first-class banks in the
London interbank market at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest
Period.
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(f) Subsection
(e) in the definition of “Permitted Investments” is hereby deleted.
(g) The
definition of “Statutory Reserve Rate” in Section 1.01 of the Credit Agreement
is hereby deleted.
(h) The
following definitions are hereby added to Section 1.01 of the Credit
Agreement:
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“Acquisition”
means (i) the purchase or other acquisition (including pursuant to any
merger with any Person that was not a wholly owned Subsidiary prior to
such merger) of any Equity Interests of any other Person (including
without limitation the acquisition of any Equity Interest in any Joint
Venture) or (ii) the purchase or other acquisition (in one transaction or
a series of transactions) of the assets of any other Person or division
thereof constituting a business unit or ongoing
business.
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“Acquisition
Documents” means the agreements, documents, and instruments
executed in connection with an
Acquisition.
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“Joint Venture”
means a Person (other than a natural person or Governmental Authority)
that is (i) formed to be or represents a joint venture between Borrower or
one of its Subsidiaries and other Person(s) (regardless of the type of
entity used), and (ii) formed for the purpose of bidding for, undertaking
or handling specific projects or for the purpose of acquiring Equity
Interests of any other Person.
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“Joint Venture Non-Cash
Income” means the non-cash portion (as to Borrower or the
applicable Subsidiary of Borrower) of any income included in Borrower’s
Consolidated Net Income that is generated by a Joint
Venture.
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“Permitted
Acquisition” means an Acquisition as to which all the requirements
of Section
6.04(g) have either been met or waived in accordance with the
provisions of this Agreement.
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“Regulation D”
means Regulation D of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating
to reserve requirements applicable to member banks of the Federal Reserve
System.
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“Reserve
Requirement” means the maximum aggregate reserve requirement
(including all basic, supplemental, marginal and other reserves) which is
imposed under Regulation D.
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(i) The
chart included in the definition of “Applicable Rate” in the Credit Agreement is
hereby replaced with the following:
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APPLICABLE
RATE – Revolving Loans
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Senior
Leverage
Ratio
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Eurodollar
Spread Applicable Rate (bps)
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ABR
Spread
Applicable
Rate (ABR + bps)
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³ 2.00 to
1.00
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275
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175
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<
2.00 to 1.00, but ³ 1.50 to
1.00
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250
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150
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<
1.50 to 1.00, but ³ 1.00 to
1.00
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225
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125
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<
1.00 to 1.00
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200
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100
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(j) The
chart included in Section 2.12(a) of the Credit Agreement is hereby replaced
with the following:
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Senior
Leverage Ratio
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Unused
Revolving Credit Facility Fee (bps)
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³ 2.00 to
1.00
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50
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<
2.00 to 1.00, but ³ 1.50 to
1.00
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50
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<
1.50 to 1.00, but ³ 1.00 to
1.00
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40
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<
1.00 to 1.00
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35
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(k) Section
6.03(c) of the Credit Agreement is hereby replaced with the
following:
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(c) The
Borrower will not, and will not permit any of its Subsidiaries to, engage
to any material extent in any business other than businesses of the type
conducted by the Borrower and/or any one or more of its Subsidiaries on
the date of this Agreement and businesses substantially related or
incidental thereto (it being understood that the Borrower and its
Subsidiaries may expand their existing construction services, fabrication
services and/or repair and maintenance services businesses into additional
market segments or industries and augment their existing technology and
expertise).
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(l) Section
6.03(d) of the Credit Agreement is hereby replaced with the
following:
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(d) The
Borrower will not change its fiscal year other than a change to a fiscal
year with a fiscal year end of June 30th
or December 31st.
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(m) The
opening paragraph of Section 6.04 of the Credit Agreement is hereby replaced
with the following:
SECTION 6.04. Investments, Loans,
Advances, Guarantees and Acquisitions. The Borrower will not,
and will not permit any of its Subsidiaries to, make or permit any Acquisition,
make or permit to exist any loans or advances to any other Person, Guarantee any
obligations of any other Person, or make or permit to exist any investment or
any other interest in any other Person, except:
(n) Section
6.04(g) of the Credit Agreement is hereby replaced with the
following:
(g) Acquisitions
so long as, as to each proposed Acquisition:
(i) no
Default or Event of Default is in existence at the time of the consummation of
such proposed Acquisition or would exist after giving effect
thereto,
(ii) all
representations and warranties contained in this Agreement and in the other Loan
Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties were made on and as of the
date of such proposed Acquisition (both before and after giving effect thereto)
except to the extent limited to a specific prior date or incorrect as a result
of transactions permitted under the Loan Documents,
(iii) no
other agreement, contract or instrument to which the Borrower or any Subsidiary
is a party restricts such proposed Acquisition,
(iv) the
proposed Acquisition is not a hostile or contested Acquisition and is not
opposed by the board of directors (or equivalent governing body) of the Person
being acquired or the Person transferring the subject business unit or ongoing
business,
(v) in
the case of an Acquisition that entails a merger or consolidation or other
combination with another Person, the Borrower or one of its wholly-owned
Subsidiaries is the surviving entity,
(vi) either
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(A)
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(1)
the applicable Permitted Acquisition Notice (described below) reflects
that Borrower’s Senior Leverage Ratio would be less than 1.0 to 1.0 on a
pro forma basis as of the last day of the fiscal quarter immediately prior
to such proposed Acquisition after giving effect to the consummation of
such proposed Acquisition (with Borrower’s Senior Leverage Ratio adjusted
to take into account the financial impact of such proposed Acquisition as
if such Acquisition had occurred prior to, and the Person or property
acquired pursuant to such Acquisition had been owned by the Borrower or
one or more of its consolidated Subsidiaries throughout, the entire
calculation period prior to the date as of which such calculation is being
made) and
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(2) (50%)
of the Revolving Loan Commitment was unused after the consummation of the
Acquisition; or
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(B)
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(1)
the applicable Permitted Acquisition Notice reflects that Borrower’s
Senior Leverage Ratio would be greater than or equal to 1.0 to 1.0 but
less than 1.75 to 1.0 on a pro forma basis as of the last day of the
fiscal quarter immediately prior to such proposed Acquisition after giving
effect to the consummation of such proposed Acquisition (with Borrower’s
Senior Leverage Ratio adjusted to take into account the financial impact
of such proposed Acquisition as if such Acquisition had occurred prior to,
and the Person or property acquired pursuant to such Acquisition had been
owned by the Borrower or one or more of its consolidated Subsidiaries
throughout, the entire calculation period prior to the date as of which
such calculation is being made),
and
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(2) at
least $25,000,000 of the Revolving Loan Commitment was unused after the
consummation of the Acquisition, and
(3) the
consideration paid or to be paid in connection with such Acquisition, when added
to the consideration paid in connection with all other Acquisitions that
occurred during the one-year period ending on the date of such proposed
Acquisition, does not exceed $25,000,000 (provided that for the purposes of
this subsection (B)(3), if a Person to be acquired in an applicable Acquisition
owns or otherwise has an interest in a Joint Venture, that Joint Venture shall
not count against this $25,000,000 threshold as long as the entire consideration
paid or to be paid for the Person to be acquired in such Acquisition is counted
against such threshold),
(vii) the
Borrower shall have given the Administrative Agent written notice at least five
(5) Business Days prior to consummation of such proposed Acquisition (each of
such notices, a “Permitted Acquisition
Notice”), which notice shall (A) contain the estimated date that such
proposed Acquisition is scheduled to be consummated, (B) attach a true and
correct copy of the most recent draft of the principal Acquisition Document (if
available) or, if the principal Acquisition Document is not available, the
letter of intent, description of material terms or similar agreements executed
by the parties thereto in connection with such proposed Acquisition, (C) contain
the estimated aggregate consideration to be paid in connection such proposed
Acquisition and the estimated amount of related costs and expenses and the
intended method of financing thereof (which may include a Borrowing hereunder),
(D) contain audited (to the extent available) or internally prepared financial
statements, and a back log report, in each case for the most recent
year-end and quarterly periods of the target company (in the case of an
Acquisition of Equity Interests) or for the applicable business unit or ongoing
business, as the case may be, (E) combined income statement and estimated
closing balance sheet prepared by or on behalf of the Borrower, in each case
outlining the performance and condition of each of the Borrower and the target,
and the combination of both, (F) be accompanied by a Compliance Certificate in
substantially the form of Exhibit C, signed by
the Borrower’s chief financial officer, that includes calculations showing the
Borrower’s compliance on a pro forma basis as of the last day of the fiscal
quarter immediately prior to such proposed Acquisition with the covenants
contained in Sections
6.17, 6.18, 6.19, and 6.20 after giving
effect to the consummation of such proposed Acquisition (and for purposes of
calculating Consolidated Eligible Assets, Consolidated EBITDA and any other
financial ratios or determinations that enter into the calculation of any
financial covenant hereunder, such calculation shall be adjusted to take into
account the financial impact of such proposed Acquisition as if such Acquisition
had occurred prior to, and the Person or property acquired pursuant to such
Acquisition had been owned by the Borrower or one or more of its consolidated
Subsidiaries throughout, the entire calculation period prior to the date as of
which such calculation is being made), and (G) include an officer’s certificate
executed by a Financial Officer of Borrower, certifying as to compliance with
the requirements of this Section 6.04(g),
containing the calculations required in this Section 6.04(g) and
not included in the certificate described in subparagraph (F) immediately above;
provided, however, that a Permitted Acquisition Notice shall not be required for
the Acquisition contemplated to be consummated on or about the Amendment
Effective Date,
(viii) promptly
upon request following delivery of the Permitted Acquisition Notice, the
Borrower shall have provided the Administrative Agent and each of the Lenders
with such additional information as the Administrative Agent shall have
reasonably requested,
(ix) if
such Acquisition entails the acquisition of the Equity Interests of a Person,
the Acquisition is structured so that the acquired Person shall become a
Subsidiary of a Credit Party and, within twenty (20) Business Days after
consummation of the Acquisition, the acquired Person executes a Subsidiary
Guaranty and a Security Agreement in form substantially similar to the Existing
Guaranties and the Existing Security Agreements, and
(x) such
Acquisition is of assets to be used in the Borrower’s or Subsidiaries’ business
or is of Equity Interests of a Person engaged in business of a type that is
substantially related or incidental to that of the Borrower and/or one or more
its Subsidiaries, in each case compared to the business of the Borrower and
Subsidiaries as conducted on the date of this Agreement, it being understood
that any such acquired business may involve an expansion of the Borrower's and
its Subsidiaries' construction services, fabrication services and/or repair and
maintenance services businesses into additional market segments or industries
and augment the Borrower's and its Subsidiaries' existing technology and
expertise.
The
consummation of each Acquisition shall be deemed to be a representation and
warranty by the Borrower that all conditions thereto have been satisfied and
that same is permitted in accordance with the terms of this Agreement, which
representation and warranty shall be deemed to be a representation and warranty
for all purposes hereunder.
(o) Section
6.06 of the Credit Agreement is hereby amended by adding a new subparagraph (f)
thereto, so that Section 6.06 shall now read as follows:
SECTION
6.06 Restricted
Payments. The Borrower will not, and will not permit any of
its Subsidiaries to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, except (a) the Borrower may declare and pay
dividends with respect to its Equity Interests payable solely in additional
shares of its common stock, (b) Subsidiaries may declare and pay dividends
ratably with respect to their Equity Interests, (c) the Borrower may make
Restricted Payments pursuant to and in accordance with stock option plans or
other benefit plans for management or employees of the Borrower and its
Subsidiaries, (d) the Borrower may declare and pay dividends on its capital
stock during any fiscal year up to an amount which, when added to all other
dividends paid during such fiscal year, does not exceed fifty percent (50%) of
cumulative net income of the Borrower for such fiscal year to such date, (e)
[reserved] and (f) the Borrower may make Restricted Payments for the purpose of
repurchasing Equity Interests of the Borrower under the share buyback plan
existing as of August 1, 2007 (ignoring any restriction included in such share
buyback plan on the percentage of Borrower’s outstanding shares that may be
purchased), as it may be amended from time to time, or under any other share
buyback plan approved from time to time by the Borrower’s board of directors, in
an aggregate amount not to exceed $25,000,000 in any calendar
year, provided in all cases (a) through (f), inclusive, above that no
Default or Event of Default shall exist before or after giving effect to such
Restricted Payment and in the case of clauses (d) and (f), that Availability
shall not be less than $10,000,000 before and after giving effect to such
Restricted Payment.
(p) Section
6.20 is hereby amended to read as follows:
SECTION
6.20 Consolidated Tangible Net
Worth. The Borrower will not permit its Consolidated Tangible
Net Worth to be less than an amount equal to the sum of (i)
$110,000,000.00, PLUS (ii) all Net Cash Proceeds of any issuance of
Equity Interests (other than upon the exercise of stock options by current or
former employees, officers or directors) that occurs after November 30, 2008,
PLUS (iii) fifty percent (50%) of all positive quarterly Consolidated Net Income
of the Borrower after November 30, 2008.
(q) The
Compliance Certificate attached as Exhibit C to the Credit Agreement is hereby
replaced with Exhibit
C attached to this Amendment.
3. Additional Affirmative
Covenant. Borrower shall provide an updated Perfection
Certificate for Borrower and its Subsidiaries in form acceptable to the
Administrative Agent on or before the date sixty (60) days after the Amendment
Effective Date. This shall be considered an additional affirmative
covenant under Article V of the Credit Agreement.
4. Effect of this
Amendment. This Amendment shall not be deemed to be a waiver
of, amendment to, consent to or modification of any term or provision of the
Credit Agreement or of any term or provision of any of the other Loan Documents,
except as specifically set forth herein, and this Amendment shall not be deemed
to be a waiver of, amendment to, or consent to or modification of any event,
condition, or transaction on the part of the Borrower or any other Person except
as specifically set forth herein.
5. Conditions. This Amendment shall be
effective as of the Amendment Effective Date, provided the following conditions
precedent are satisfied:
(a) Administrative
Agent’s receipt of the following, each of which shall be originals or facsimile
or portable document format (PDF) copies (followed promptly by originals) unless
otherwise specified, each properly executed, each dated the Amendment Effective
Date (or, in the case of certificates of governmental officials, a recent date
before the date of the Amendment) and each in form and substance satisfactory to
Administrative Agent and its legal counsel:
(i) executed
counterparts of this Amendment and all other documents and instruments requested
by Administrative Agent, sufficient in number for distribution to each Lender
and Borrower;
(ii) a
corporate certificate with resolutions in the form required by Administrative
Agent;
(iii) a
fee letter in form acceptable to the Administrative Agent;
(iv) such
other certificates of resolutions or other action, incumbency certificates
and/or other certificates of Authorized Officers of each Credit Party as Lender
may require evidencing the identity, authority and capacity of each Authorized
Officer thereof authorized to act as an Authorized Officer in connection with
this Amendment and the other Loan Documents to which such Credit Party is a
party;
(v) fully
executed originals of the Ratification of Security Agreement and Release and
Ratification of Subsidiary Guaranty, in the forms set forth on Schedules “1-A” and
“1-B”,
respectively, attached hereto, for each party thereto (collectively the
“Ratifications”);
(vi) fully
executed original of a Pledge and Security Agreement and Subsidiary Guaranty by
Matrix Service ULC, an Alberta unlimited liability corporation (“Matrix Service
ULC”), and by S.M. Electric Company, Inc., a New Jersey corporation
(“SM Electric”) in form acceptable to the Administrative Agent, which shall
hereafter be part of and included within the “Loan Documents” under the Credit
Agreement;
(vii) original
certificates representing all issued and outstanding stock and all other Equity
Interests of Matrix Service ULC and SM Electric, along with stock powers
associated therewith in form acceptable to the Administrative Agent;
and
(viii) a
favorable written opinion (addressed to the Administrative Agent and the Lenders
and dated the Amendment Effective Date) of Xxxxxx & Xxxxxxx, LLP, counsel
for the Borrower and the Subsidiaries, substantially in the form of Annex 1 attached to
this Amendment, and the Borrower hereby requests such counsel to deliver such
opinion;
(b) Administrative
Agent’s receipt of such other assurances, certificates, documents, and consents
as Administrative Agent reasonably may require;
(c) the
Borrower shall have paid all fees required by the fee letter; and
(d) unless
waived by Administrative Agent, Borrower shall have paid all fees, expenses and
disbursements of any law firm or other external counsel for Administrative Agent
to the extent invoiced prior to the date hereof, plus such additional amounts of
such fees, expenses and disbursements as shall constitute its reasonable
estimate thereof incurred or to be incurred by it through the closing
proceedings as to this Amendment (provided that such estimate shall not
thereafter preclude a final settling of accounts between Borrower and
Administrative Agent).
6. Acknowledgment and
Ratification; Representations and Warranties. The Borrower
acknowledges and agrees that the Credit Agreement shall remain in full force and
effect as amended hereby. Borrower represents and warrants to the
Lenders that as of the date of execution of this Amendment and as of the
Amendment Effective Date:
(a) the
representations and warranties set forth in the Credit Agreement are true and
correct in all material respects as though made on the date hereof, except to
the extent that any of them speak to a different specific date, in which case
they are true and correct as of such earlier date, and for purposes of this
Amendment the representations and warranties contained in subsection (a) of
Section
3.04 shall
be deemed to refer to the most recent financial statements furnished by the
Borrower pursuant to clauses (a) and (b) of Section
5.01;
(b) no
Default or Event of Default exists;
(c) neither
the Borrower nor any of the Guarantors owns or has any interest in any
“commercial tort claim” (as that term is defined in 12A Okla. Stat. §
1-9-102(a)(13) as of the Amendment Effective Date) that has not been
specifically described in a Security Agreement as part of the collateral
thereunder;
(d) the
execution, delivery and performance by the Borrower of this Amendment has been
duly authorized by all necessary corporate action and do not and will not
contravene the terms of any of the Borrower’s organizational documents, any law
or any indenture, loan or credit agreement, or any other material agreement or
instrument to which the Borrower is a party or by which it is bound or to which
it or its properties are subject;
(e) no
authorizations, approvals or consents of, and no filings or registrations with,
any Governmental Authority or any other Person are necessary for the execution,
delivery or performance by the Borrower of this Amendment or for the validity or
enforceability thereof, other than routine informational filings with the SEC
and/or other Governmental Authorities;
(f) this
Amendment constitutes the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with its terms, and the
Ratifications constitute the legal, valid and binding obligations of the
Guarantors party thereto, enforceable against such Guarantors in accordance with
their terms, in all cases except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally or by equitable principles relating
to enforceability, and by judicial discretion regarding the enforcement of or
any applicable laws affecting remedies (whether considered in a court of law or
a proceeding in equity); and
(g) Schedule 3.13
attached hereto (which shall replace and supersede Schedule 3.13 to the Credit
Agreement) contains an accurate list of and other information regarding the
Borrower and all Subsidiaries of the Borrower as of the date of this Agreement,
setting forth their respective jurisdictions of organization and the percentage
of the respective capital stock or other ownership interests of the Subsidiaries
owned by the Borrower or other Subsidiaries. All of the issued and
outstanding shares of capital stock or other Equity Interests in such
Subsidiaries have been (to the extent such concepts are relevant with respect to
such ownership interests) duly authorized and issued and are fully paid and
non-assessable.
7. Defaults
Unaffected. Except as may be expressly set forth herein,
nothing contained in this Amendment shall prejudice, act as, or be deemed to be
a waiver of any Default or Event of Default or any right or remedy available to
Administrative Agent or any Lender by reason of the occurrence or existence of
any fact, circumstance or event constituting a Default or Event of
Default.
8. Governing Law;
Miscellaneous. This Amendment shall be
governed by the internal laws of the State of Oklahoma. Unless stated otherwise,
(a) the singular number includes the plural and vice versa and words of any
gender include each other gender, in each case, as appropriate, (b) headings and
captions may not be construed in interpreting provisions, (c) this Amendment may
be executed in any number of counterparts with the same effect as if all
signatories had signed the same document, and all of those counterparts must be
construed together to constitute the same document, and (d) this Amendment shall
be effective when it has been executed by the parties hereto and each party has
notified the Administrative Agent by facsimile transmission or telephone that it
has taken such action.
IN WITNESS WHEREOF, the
parties have caused this Amendment to be duly executed and delivered by their
proper and duly authorized officers as of the day and year first above
written.
| MATRIX SERVICE
COMPANY, a Delaware corporation |
|||
|
|
By:
|
/s/ Xxxxxx X. Xxxx | |
| Xxxxxx X. Xxxx, Chief Financial Officer | |||
|
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent, Lender
and
Issuing Bank
|
|||
|
|
By:
|
/s/ Xxxxxxxx Xxxxxxxxx | |
| Xxxxxxxx Xxxxxxxxx, Vice President | |||
| WACHOVIA BANK, NATIONAL ASSOCIATION | |||
|
|
By:
|
/s/ Xxxxxx Xxxxxxxxxx | |
| Xxxxxx Xxxxxxxxxx, Vice President | |||
| AMEGY BANK NATIONAL ASSOCIATION | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxx | |
| Xxxxx X. Xxxxx, Vice President | |||
|
BANK OF AMERICA, N.A.,
successor
by
merger to LaSalle Bank National Association
|
|||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxxx | |
| Xxxxxxx X. Xxxxxxx, Senior Vice President | |||
| BMO CAPITAL MARKETS FINANCING, INC. | |||
|
|
By:
|
/s/ Xxxx Xxxxxxxxx | |
| Xxxx Xxxxxxxxx, Director | |||
