EXHIBIT NO. 10.12
FIRST AMENDMENT
FIRST AMENDMENT (this "Amendment"), dated as of November 10,
1999, among PENHALL INTERNATIONAL CORP., an Arizona corporation (the
"Borrower"), the lending institutions party to the Credit Agreement referred to
below (each a "Bank" and, collectively, the "Banks"), BANKERS TRUST COMPANY as
administrative agent (the "Administrative Agent") and CREDIT SUISSE FIRST BOSTON
as syndication agent (the "Syndication Agent"). All capitalized terms used
herein and not otherwise defined shall have the respective meanings provided
such terms in the Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, the Borrower, the Banks, the Issuing Banks and the
Administrative Agent are parties to a Credit Agreement, dated as of August 4,
1998 (as amended, modified or supplemented through the date hereof, the "Credit
Agreement");
WHEREAS, the parties hereto wish to amend certain provisions of
the Credit Agreement as herein provided, subject to and on the terms and
conditions set forth herein;
NOW, THEREFORE, it is agreed:
1. Section 8.02(k)(iv) of the Credit Agreement is hereby amended
by deleting "$25,000,000" and inserting "$50,000,000 in total and $15,000,000
per year".
2. Section 8.02(k)(v) of the Credit Agreement is hereby amended
by inserting the phrase "have provided documentation to the Administrative Agent
showing that the Borrower will" after the phase "the Borrower shall".
3. Section 8.05(a) of the Credit Agreement is hereby amended by
deleting the chart contained therein and inserting the following new chart in
lieu thereof:
Fiscal Year Ending Amount
------------------ -----------
June 30, 1999 $13,500,000
June 30, 2000 $22,500,000
June 30, 2001 $22,500,000
June 30, 2002 $19,000,000
June 30, 2003 $16,000,000
June 30, 2004 $16,500,000
4. Section 8.05(b)of the Credit Agreement is hereby amended by
(i) adding the text "(starting with the fiscal year ending June 30, 2000)"
immediately following the text "In the event that the maximum amount which is
permitted to be expended in respect of Consolidated Capital Expenditures during
any fiscal year of the Borrower" and (ii) deleting the "25%" following "such
increase shall not exceed the amount otherwise permitted by more than" and
inserting "$2,000,000" in lieu thereof.
5. Section 8.05(c) of the Credit Agreement is hereby deleted in
its entirety, and Sections 8.05(d), (e), (f) and (g) are hereby renamed Sections
8.05(c), (d), (e) and (f), respectively.
6. Section 8.05(f) (to be referred to as Section 8.05(e) after
the Amendment Effective Date, as defined below in Section 12 of this Amendment)
is hereby amended by deleting the "(g)" after "provided that any proceeds that
are so used to make Consolidated Capital Expenditures pursuant to this clause"
and inserting "(e)" in lieu thereof.
7. Section 8.12 of the Credit Agreement is hereby amended by
deleting the reference to "Section 8.05(e)" and inserting "Section 8.05(d)" in
lieu thereof.
8. Section 8.14 of the Credit Agreement is hereby amended by
deleting the chart contained therein and inserting the following new chart in
lieu thereof:
Date Amount
---- ------
September 30, 1998 $6,900,000
December 31, 1998 $5,800,000
March 31, 1999 $4,700,000
June 30, 1999 $23,000,000
September 30, 1999 $24,000,000
December 31, 1999 $26,000,000
March 31, 2000 $27,000,000
June 30, 2000 $28,700,000
September 30, 2000 $28,700,000
December 31, 2000 $30,700,000
March 31, 2001 $30,700,000
June 30, 2001 $31,800,000
September 30, 2001 $31,800,000
December 31, 2001 $32,800,000
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March 31, 2002 $32,800,000
June 30, 2002 $34,300,000
September 30, 2002 $34,300,000
December 31, 2002 $35,300,000
March 31, 2003 $35,300,000
June 30, 2003 $36,000,000
September 30, 2003 $36,000,000
December 31, 2003 $37,000,000
March 31, 2004 $37,000,000
June 30, 2004 $38,000,000
9. In order to induce the Banks to enter into this Amendment, the
Borrower hereby represents and warrants that (i) the representations, warranties
and agreements contained in Article 6 of the Credit Agreement are true and
correct in all material respects on and as of the Amendment Effective Date (as
defined in Section 12 of this Amendment and after giving effect thereto) (it
being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be true and correct in
all material respects only as of such specified date) and (ii) there exists no
Default or Event of Default on the Amendment Effective Date, after giving effect
to this Amendment.
10. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
11. This Amendment may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower, the Administrative Agent and
each Bank.
12. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
13. This Amendment shall become effective on the date (the
"Amendment Effective Date") when (i) the Borrower and the Required Banks shall
have signed a counterpart hereof (whether the same or different counterparts)
and shall have delivered (including by way of facsimile transmission) the same
to the Administrative Agent at its address for notice provided for in the Credit
Agreement and (ii) the Borrower pays a fee to each Bank which executes and
delivers a counterpart to this Amendment prior to the Amendment Effective Date
equal to 0.1% of such Bank's total outstanding Term Loan and/or Revolving
Commitment;
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
1801 Penhall Way PENHALL INTERNATIONAL CORP.,
PO Box 4609 as Borrower
Anaheim, CA 92803
Attention: John Sawyer
Tel: (714) 772-6450
Fax: (714) 778-8437 By _________________________________
Title:
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By _____________________________________
Title:
CREDIT SUISSE FIRST BOSTON
Individually and as Syndication Agent
By _____________________________________
Title:
By _____________________________________
Title:
FLEET CAPITAL CORPORATION
By _____________________________________
Title:
UNION BANK OF CALIFORNIA, N.A.
By _____________________________________
Title:
U.S. BANK NATIONAL ASSOCIATION
By _____________________________________
Title: