EXHIBIT NO. 10.14
THIRD AMENDMENT
THIRD AMENDMENT (this "Amendment"), dated as of February 15,
2002, 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 4.02(A)(c) is hereby amended by deleting the proviso
appearing at the end of the first sentence appearing therein in its entirety and
inserting the following new proviso in lieu thereof:
"provided that (i) the Net Cash Proceeds from the Permitted
Sale-Leaseback Transactions and (ii) up to an aggregate of
$2,000,000 of Net Cash Proceeds from Asset Sales in any fiscal
year of the Borrower, shall not give rise to a mandatory
repayment (and/or commitment reduction, as the case may be) to
the extent the Borrower elects, as hereinafter provided, to cause
such Net Cash Proceeds to be reinvested in Reinvestment Assets (a
"Reinvestment Election")."
2. Section 8.02(f) of the Credit Agreement is hereby amended by
deleting the text "$2,500,000" therein and inserting the text "2,000,000" in
lieu thereof.
3. Section 8.02 of the Credit Agreement shall be further amended
by inserting the following new sub-clause (l) immediately after sub-clause (k)
appearing at the end thereof:
"(l) each of the Borrower and its Subsidiaries may enter into
sale-leaseback transactions with respect to their equipment
and Real Property placed into service after August 1, 2001
(the "Permitted Sale-Leaseback Transactions"), so long as
(i) no Default or Event of Default then exists or would
result therefrom, (ii) each such sale-leaseback transaction
is in an arm's-length transaction and the Borrower or
Subsidiary, as the case may be, receives at least fair
market value (as determined in good faith by the Borrower
or such Subsidiary, as the case may be), (iii) the total
consideration received by the Borrower or such Subsidiary
is cash and is paid at the time of the closing of such
sale, (iv) the Net Cash Proceeds therefrom are applied
and/or reinvested as (and to the extent) required by
Section 4.02(A)(c), (v) the Net Cash Proceeds shall not
exceed $5,000,000 at any time and (vi) to the extent that
any such sale-leaseback transaction results in a
Capitalized Lease Obligation, such Capitalized Lease
Obligation is permitted under Section 8.04(d)."
4. Section 8.03 of the Credit Agreement is hereby amended by
inserting the following new sub-clause (r) immediately after sub-clause (q)
appearing therein:
"(r) Liens which may be deemed to exist as a result of the
consummation of one or more sale-leaseback transactions
effected in accordance with the law of Section 8.02 (l),
which liens shall relate only to the assets subject to the
respective sale-leaseback transaction."
5. Section 8.04(d) of the Credit Agreement is hereby amended by
inserting immediately after the text "Capital Lease Obligations" appearing
therein the text "(including Capital Lease Obligations resulting from
sale-leaseback transactions permitted under Section 8.02(l))".
6. Section 8.05(a) of the Credit Agreement is hereby amended by
deleting the chart contained therein and inserting the following 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 $15,000,000
June 30, 2003 $16,000,000
June 30, 2004 $16,000,000
7. Section 10 of the Credit Agreement is hereby amended by
inserting the following new defined term in appropriate alphabetical order:
"Permitted Sale-Leaseback Transactions' shall have the meaning
provided in Section 8.02(l)."
8. 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 Third Amendment Effective Date
(as defined in Section 6 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 Third Amendment Effective Date, after giving
effect to this Amendment.
9. 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.
10. 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.
11. 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.
12. This Amendment shall become effective on the date (the "Third
Amendment Effective Date") when 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.
* * *
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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: