EXHIBIT 10(11)
First Amendment
to
Amended and Restated Revolving and Term Loan Credit Agreement
This First Amendment To Amended And Restated Revolving and Term Loan Credit
Agreement (this "Amendment") is executed as of April 5, 2002, effective as of
February 28, 2002 (the "Effective Date"), by and among AZZ incorporated, a Texas
corporation ("Borrower"), Bank of America, N.A., as Administrative Agent and
Collateral Agent for Lenders (in such capacity, Administrative Agent"), and
other Agents and Lenders party thereto.
A. Borrower, Administrative Agent, and Lenders entered into that certain
Amended and Restated Revolving and Term Loan Credit Agreement dated as of
November 1, 2001 (as the same may be further amended, modified, supplemented,
restated or amended and restated from time to time, the "Credit Agreement").
B. Borrower has requested that Lender amend certain terms and provisions of
the Credit Agreement.
C. Borrower, Administrative Agent, and Lenders have agreed, upon the following
terms and conditions, to amend the Credit Agreement subject to and upon the
terms and conditions provided herein.
NOW, THEREFORE, in consideration of the mutual promises herein contained,
and for other valuable consideration, the parties hereto agree as follows:
Section 1. Defined Terms; References. Unless otherwise specifically defined
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herein, each term used herein that is defined in the Credit Agreement shall have
the meaning assigned to such term in the Credit Agreement.
Section 2. Amendments to Credit Agreement. Effective as of the Effective
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Date, but subject to satisfaction of the conditions precedent set forth in
Section 4 hereof, the Credit Agreement is hereby amended as set forth below.
(a) The definition of "Applicable Margin" in Section 1.1 of the Credit
Agreement is amended in full to read as follows:
" `Applicable Margin' means, from February 28, 2002 until and
including November 1, 2002, the Applicable Margin set forth in Level 5, and
thereafter, on any date of determination, the percentage per annum set
forth in the table below for the Type of Borrowing or Commitment Fees (as
the case may be) that corresponds to the Leverage Ratio at such date of
determination, as calculated based on the quarterly Compliance Certificate
of Borrower most recently delivered pursuant to Section 9.3 hereof):
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Applicable Margin (per annum)
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Eurodollar Rate Base Rate Commitment
Level Leverage Ratio Borrowing and Borrowing Fees
Commission Fee
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1 Less than or equal to 1.500% 0.00% 0.250%
1.0:1.0
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2 Greater than 1.0:1.0, 1.750% 0.00% 0.300%
but less than or equal
to 1.5:1.0
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3 Greater than 1.5:1.0, 2.000% 0.250% 0.375%
but less than or equal
to 2.0:1.0
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4 Greater than 2.0:1.0, 2.250% 0.500% 0.500%
but less than or equal
to 2.5:1.0
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5 Greater than 2.50:1.0 2.500% 0.750% 0.500%
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Upon delivery of the Compliance Certificate pursuant to Section 9.3 or
the Permitted Acquisition Compliance Certificate in connection with a
Permitted Acquisition, on and after November 2, 2002 after the end of
each fiscal quarter commencing with the Compliance Certificate
delivered for the fiscal quarter ending August 31, 2002, the
Applicable Margin shall automatically be adjusted to the rate
corresponding to the Leverage Ratio set forth in the table above, such
automatic adjustment to take effect prospectively the third Business
Day after receipt by Administrative Agent of the Compliance
Certificate or the Permitted Acquisition Compliance Certificate, as
the case may be; provided that, if the Fixed Charge Coverage Ratio of
Borrower is greater than 1.25:1 for any two consecutive quarters
following the quarter ending February 28, 2002 (such two quarters
being a "Fixed Charge Coverage Ratio Compliance Period"), the
Applicable Margin for Eurodollar Rate Borrowings and Commission Fees
shall be the corresponding Applicable Margin set forth in the table
above less 0.250%; provided further that, if the Fixed Charge Coverage
Ratio of Borrower is less than 1.25:1 at any time of determination
following any Fixed Charge Coverage Ratio Compliance Period, the
Applicable Margin for Eurodollar Rate Borrowings and Commission Fees
shall be the corresponding Applicable Margin set forth in the table
above. If Borrower fails to deliver such Compliance Certificate or the
Permitted Acquisition Compliance Certificate, as the case may be, with
respect to any fiscal quarter or the Permitted Acquisition, as the
case may be, which sets forth such ratio within the period of time
required by Section 9.3 or by the definition of Permitted Acquisition,
as the case may be, the Applicable Margin shall automatically be
adjusted to that set forth in Level 5. The automatic adjustments
provided for in the preceding sentence shall take effect on the last
day that the Compliance Certificate was required to be delivered and
shall remain in effect until subsequently adjusted in accordance
herewith upon the delivery of such Compliance Certificate or the
Permitted Acquisition Compliance Certificate, as the case may be."
(b) The definition of "Permitted Acquisition" in Section 1.1
of the Credit Agreement is amended in full to read as follows:
" `Permitted Acquisition' means any Acquisition for which the
prior written consent of Required Lenders has been obtained and with
respect to which each of the following requirements shall have been
satisfied:
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(a) as of the closing of any Acquisition, the Acquisition
has been approved and recommended by the board of directors of
the Person to be acquired or from which such business is to be
acquired;
(b) not less than 14 days prior to the closing of any
Acquisition, Borrower shall have delivered to Administrative
Agent a Permitted Acquisition Compliance Certificate
substantially in the form of Exhibit E-2 hereto, demonstrating
pro forma compliance with the terms and conditions of the Loan
Documents, after giving effect to the Acquisition, including (i)
pro forma income statement and balance sheet for the Companies
(after giving effect to the Acquisition), and (ii) cash flow
projections for the Acquisition for the period from the date of
any such Acquisition through the Revolver Termination Date,
demonstrating compliance with the Companies' applicable financial
covenants and debt amortization schedules;
(c) not less than 30 days prior to the closing of any
Acquisition, Borrower shall have delivered to Administrative
Agent a copy of the purchase agreement (including all schedules
and exhibits thereto) relating to such Acquisition (or if no
purchase agreement is available on such date, as soon thereafter
as possible, including all subsequent drafts thereof); and prior
to consummation of any Acquisition, Borrower shall have satisfied
the conditions precedent set forth in Section 7.2;
(d) any authorization required to be issued by any
Governmental Authority in connection with such Acquisition shall
be issued and shall be valid, binding, enforceable and subsisting
without any defaults thereunder or enforceable adverse
limitations thereon and shall not be subject to any proceedings
or claims opposing the issuance, development, or use thereof or
contesting the validity thereof unless the Company proposing to
enter into such Acquisition shall have entered into an agreement
with the seller protecting such Company from such adverse
limitations, proceedings, or claims, which agreement shall be on
terms and conditions satisfactory to Administrative Agent;
(e) as of the closing of any Acquisition, after giving
effect to such Acquisition, the acquiring party must be Solvent
and the Companies, on a consolidated basis, must be Solvent;
(f) as of the closing of any Acquisition, no Default or
Potential Default shall exist or occur as a result of, and after
giving effect to, such Acquisition; and
(g) as of the closing of any Acquisition, (i) if such
Acquisition is structured as a merger, Borrower (or if such
merger is with any Subsidiary of Borrower, then a domestic
company that is or becomes a Subsidiary) must be the surviving
entity after giving effect to such merger; and (ii) if such
Acquisition is structured as a stock/equity acquisition, the
acquiring Company shall own not less than a 75% interest in the
entity being acquired and such acquired entity will be a domestic
company that is or becomes a Domestic Subsidiary."
(c) The definition of "Total Commitment" in Section 1.1 of the
Credit Agreement is amended in full to read as follows:
"Total Commitment" means, on any date of determination, the
sum of (a) the aggregate principal amount outstanding under the Term
Facility plus, as applicable, (b)(i) prior to the
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termination of all commitments to lend under the Revolver Facility,
the aggregate Revolver Commitments or (ii) after the termination of
all commitments to lend under the Revolver Facility, the aggregate
principal amount outstanding under the Revolver Facility.
(d) The last sentence of Section 9.20 of the Credit
Agreement is amended in full to read as follows:
"Notwithstanding the foregoing, (x) Distributions in the form
of cash or Cash Equivalents are permitted only with the prior written
consent of Required Lenders, unless the required minimum Fixed Charge
Coverage Ratio is at least 1.25:1 at the time of any such Distribution
and (y) subject to the preceding clause (x), Restricted Payments and
Distributions are permitted hereunder only to the extent that any such
Restricted Payment or Distribution is made in accordance with
applicable Law and constitutes a valid, non-voidable transaction."
(e) Section 9.29(b) of the Credit Agreement is amended in
full to read as follows:
"(b) Maximum Leverage Ratio. On and after February 28, 2002,
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through and including December 30, 2002, the Leverage Ratio to be
greater than 2.75:1; on and after December 31, 2002 through and
including February 27, 2004, the Leverage Ratio to be greater than
2.50:1; and thereafter, to be greater than 2.25:1.0, each to be
determined with respect to the immediately preceding Rolling Period."
(f) Section 9.29(c) of the Credit Agreement is amended in
full to read as follows:
"(c) Minimum Fixed Charge Coverage Ratio. The Fixed Charge
-----------------------------------
Coverage Ratio to be not less than: (i) from February 28, 2002 through
and including May 31, 2003, 1.05:1; (ii) from June 1, 2003 through and
including February 28, 2004, 1.10:1; (iii) from February 29, 2004
through and including February 27, 2005, 1.15:1; and (iv) from February
28, 2005 and thereafter, 1.25:1, in each case determined with respect
to the immediately preceding Rolling Period; provided that, the Fixed
Charge Coverage Ratio shall be at least 1.25:1 following the first
Rolling Period in which the aggregate EBITDA of Borrower for four
consecutive Rolling Periods is greater than $30,000,000."
(g) Section 9.29 of the Credit Agreement is amended by
adding thereto a new subsection (d) as follows:
"(d) Minimum EBITDA. At all times when the Fixed Charge
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Coverage Ratio calculated pursuant to Section 9.29(c) is less than
1.25:1, beginning with the Rolling Period ended March 31, 2002, EBITDA
calculated on the last day of each month for the three month period
then ended, to be less than $5,200,000."
(h) Section 9.30 of the Credit Agreement is amended in
full to read as follows:
"9.30 Capital Expenditures. Neither the Borrower nor any of
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its Subsidiaries shall make or incur any Capital Expenditure if, after
giving effect thereto, the aggregate amount of all Capital Expenditures
by the Borrower and its Subsidiaries on a consolidated basis would
exceed (a) for the fiscal year ending February 28, 2002, $13,000,000,
(b) for the fiscal year ending February 28, 2003, $6,000,000, and (c)
for each fiscal year thereafter, $7,000,000; provided that, the amount
set forth in the foregoing clause (c) shall be increased to $9,000,000
if the required minimum Fixed Charge Coverage Ratio of Borrower is at
least 1.25:1."
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(i) Schedule 2.1 to the Credit Agreement is deleted and replaced by
Schedule 2.1 attached hereto.
(j) Exhibit E-1 to the Credit Agreement is amended by amending Annex
B thereto as follows:
(i) Section 5(c)(xiii) thereof is amended in full to read as follows:
"(xiii) Fixed Charge Coverage Ratio [5(c)(vi) divided by 5(c)(xii)]:
______ to 1.0."
(ii) Section 5(c)(xiv) thereof is amended in full to read as follows:
"(xiv) Required Minimum Fixed Charge Coverage Ratio: ______ to 1.0."
(iii) A new Section 5(d) is added thereto as follows:
"d. Section 9.29(d) - Minimum EBITDA:
(i) Fixed Charge Coverage Ratio [5(c)(xiii)]: ________ to 1.0
(ii) EBITDA on the last day of the month for three month period
most recently ended: $___________
(iii) Minimum EBITDA Applicable: __________ Yes _________ No
(vii) Compliance: _________ Yes __________ No
Section 3. Conditions to Effectiveness. This Amendment shall become
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effective as of the date first set forth above when and if Administrative Agent
has received the following:
(a) (i) for the respective accounts of the Lenders, an amendment fee
in an amount equal to 12.5 basis points of such Lenders' respective aggregate
Committed Sums, and (ii) the fees set forth in the fee letter dated as of April
___, 2002 between Borrower and Administrative Agent;
(b) this Amendment, duly executed by Borrower, each Guarantor, each
Lender and Administrative Agent;
(c) copies of the resolutions of Borrower's Board of Directors
approving and authorizing the execution, delivery and performance by Borrower of
this Amendment, certified as of the Effective Date by a Responsible Officer;
(d) a certificate of a Responsible Officer, certifying the names and
true signatures of the officers of Borrower authorized to execute and deliver
this Amendment; and
(e) such other assurances, certificates, documents, consents and
opinions as the Administrative Agent may reasonably require.
Section 4. Representations and Warranties of Borrower. Borrower
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represents and warrants to the Lenders and Administrative Agent as set forth
below.
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(a) The execution, delivery and performance by Borrower of
this Amendment and the Credit Agreement, as amended hereby, have been duly
authorized by all necessary corporate action and do not and will not (i) require
any consent or approval not heretofore obtained of any director, stockholder,
security holder or creditor of Borrower, (ii) violate or conflict with any
provision of Borrower's Articles of Incorporation, (iii) result in or require
the creation or imposition of any Lien upon or with respect to any property now
owned or leased or hereafter acquired by Borrower, (iv) violate any Laws
applicable to Borrower or (v) result in a breach of or constitute a default
under, or cause or permit the acceleration of any obligation owed under, any
indenture or loan or credit agreement or any other material agreement to which
Borrower is a party or by which Borrower or any of its Property is bound or
affected.
(b) No authorization, consent, approval, order license or
permit from, or filing, registration or qualification with, any Governmental
Authority is or will be required to authorize or permit under applicable Law the
execution, delivery and performance by Borrower of this Amendment and the Credit
Agreement, as amended hereby.
(c) Each of this Amendment and the Credit Agreement, as
amended hereby, has been duly executed and delivered by Borrower and constitutes
the legal, valid and binding obligation of Borrower, enforceable against
Borrower in accordance with its terms, except as enforcement may be limited by
Debtor Relief Laws or equitable principles relating to the granting of specific
performance and other equitable remedies as a matter of judicial discretion.
(d) The representations and warranties of Borrower contained
in Section 8 of the Credit Agreement are true and correct in all material
respects as though made on and as of the Effective Date (except to the extent
such representations and warranties expressly refer to an earlier date, in which
case they are true and correct as of such earlier date).
(e) No Default or Event of Default exists or would result from
the effectiveness of this Amendment.
(f) Borrower agrees to perform such acts and duly authorize,
execute, acknowledge, deliver, file, and record such additional documents and
certificates as Administrative Agent may reasonably request in order to create,
perfect, preserve, and protect those guaranties, assurances, and Liens.
Section 5. Reference to and Effect on Loan Documents.
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(a) On and after the Effective Date, each reference in the
Credit Agreement to "this Agreement," "hereunder," "hereof," "herein" or any
other expression of like import referring to the Credit Agreement, and each
reference in the other Loan Documents to "the Credit Agreement," "thereunder,"
"thereof," "therein" or any other expression of like import referring to the
Credit Agreement, shall mean and be a reference to the Credit Agreement as
amended by this Agreement.
(b) Except as specifically amended hereby, all provisions of
the Credit Agreement and all Collateral Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(c) Except as otherwise expressly provided herein, the
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of any Bank or the Administrative Agent
under any of the Loan Documents or constitute a waiver of any provision of any
of the Loan Documents.
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(d) Borrower (A) ratifies and confirms all provisions of the
Loan Documents applicable to Borrower, and (B) ratifies and confirms that all
guaranties, assurances, and Liens granted, conveyed, or assigned to
Administrative Agent under the Loan Documents by Borrower are not released,
reduced, or otherwise adversely affected by this Amendment and continue to
guarantee, assure, and secure full payment and performance of the present and
future Obligation.
Section 6. Costs and Expenses. Borrower agrees to pay on demand all
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reasonable costs and expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment and the other instruments
and documents to be delivered hereunder, including the reasonable fees and
out-of-pocket expenses of counsel for the Administrative Agent with respect
thereto and with respect to advising the Administrative Agent as to its rights
and responsibilities hereunder and thereunder.
Section 7. Execution in Counterparts. This Amendment may be executed in
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any number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute one and the same instrument.
This agreement, when countersigned by the parties hereto, shall be a "Loan
Document" as defined and referred to in the Credit Agreement and the other Loan
Documents.
Section 8. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
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CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
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Section 9. ENTIRETY. THIS AMENDMENT, THE CREDIT AGREEMENT, THE NOTES
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AND THE OTHER LOAN DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE
PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE
SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE
PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
AZZ INCORPORATED
By: /s/ DANA PERRY
---------------------------------
Name: Dana Perry
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Title: Vice President
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Signature Page to
AZZ First Amendment
ADMINISTRATIVE AGENT:
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BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ MICHAEL BRASHLER
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Name: Michael Brashler
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Title: Agency Officer
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Signature Page to
AZZ First Amendment
LENDERS:
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BANK OF AMERICA, N.A.
By: /s/ STEVEN A. MACKENZIE
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Name: Steven A. Mackenzie
Title: Vice President
Signature Page to
AZZ First Amendment
COMERICA BANK - TEXAS
By: /s/ COREY R. BAILEY
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Name: Corey R. Bailey
Title: Assistant Vice President
Signature Page to
AZZ First Amendment
GUARANTY BANK
By: /s/ ROBERT S. HAYS
--------------------------------------
Name: Robert S. Hays
Title: Senior Vice President
Signature Page to
AZZ First Amendment
WELLS FARGO BANK TEXAS, NATIONAL
ASSOCIATION
By: /s/ RUSTY ANDERSON
----------------------------------
Name: Rusty Anderson
Title: Vice President
Signature Page to
AZZ First Amendment
To induce Administrative Agent and Lenders to enter into this Amendment, the
undersigned consent and agree (a) to its execution and delivery and terms and
conditions thereof, (b) that this document in no way releases, diminishes,
impairs, reduces, or otherwise adversely affects any Liens, charges, guaranties,
assurances, or other obligations or undertakings of any of the undersigned under
any Loan Documents, and (c) waive notice of acceptance of this Amendment, which
Amendment binds each of the undersigned and their respective successors and
permitted assigns and inures to Administrative Agent, Lenders, and their
respective successors and permitted assigns.
GUARANTORS:
AZTEC INDUSTRIES, INC.
THE CALVERT COMPANY, INC.
GULF COAST GALVANIZING, INC.
ARKGALV, INC.
ARBOR-CROWLEY, INC.
ATKINSON INDUSTRIES, INC.
AZTEC INDUSTRIES, INC. - MOSS POINT
AUTOMATIC PROCESSING INCORPORATED
ARIZONA GALVANIZING, INC.
HOBSON GALVANIZING, INC.
CGIT WESTBORO, INC.
WESTSIDE GALVANIZING SERVICES, INC.
CARTER AND CRAWLEY, INC.
CENTRAL ELECTRIC COMPANY
CENTRAL ELECTRIC MANUFACTURING
COMPANY
ELECTRICAL POWER SYSTEMS, INC.
CLARK CONTROL SYSTEMS, INC.
AZTEC MANUFACTURING PARTNERSHIP,
LTD.
By: AZZ GROUP, LP, its General Partner
By: AZZ GP, LLC, its General Partner
AZTEC MANUFACTURING - WASKOM
Partnership, LTD.
By: AZZ GROUP, LP, its General Partner
By: AZZ GP, LLC, its General Partner
RIG-A-LITE PARTNERSHIP, LTD.
By: AZZ GROUP, LP, its General Partner
By: AZZ GP, LLC, its General Partner
Signature Page to
AZZ First Amendment
INTERNATIONAL GALVANIZERS
PARTNERSHIP, LTD.
By: AZZ GROUP, LP, its General Partner
By: AZZ GP, LLC, its General Partner
DRILLING RIG ELECTRICAL SYSTEMS CO.
PARTNERSHIP, LTD.
By: AZZ GROUP, LP, its General Partner
By: AZZ GP, LLC, its General Partner
AZZ GROUP, LP
By: AZZ GP, LLC, its General Partner
AZZ GP, LLC
AZZ LP, LLC
By /s/ DANA L. PERRY
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Dana L. Perry
Secretary
AZZ HOLDINGS, INC.
By /s/ MIKE McLAIN
-----------------------------------
Mike McLain
President
Signature Page to
AZZ First Amendment
SCHEDULE 2.1
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LENDERS AND COMMITMENTS
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NAME AND ADDRESS COMMITTED COMMITMENT COMMITTED COMMITMENT
OF LENDERS SUMS- PERCENTAGES - SUMS - TERM PERCENTAGES -
REVOLVER REVOLVER FACILITY TERM FACILITY
FACILITY FACILITY
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Bank of America, N.A. $15,882,354.00 35.294120000 $14,117,646.00 35.294115000
901 Main Street, 67th Floor
Dallas, Texas 75202
Attn: Steven A. MacKenzie
(214) 209-3680; (214)
209-3140 (fax)
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Comerica Bank - Texas $10,588,235.00 23.529411111 $9,411,765.00 23.529412500
8828 Stemmons Freeway,
Suite 441
Dallas, Texas 75247
Attn: Donald P. Hellman,
Senior Vice President
(214) 589-4419; (972)
263-9837 (fax)
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Guaranty Bank $7,941,176.00 17.647057778 $7,058,824.00 17.647060000
8333 Douglas Avenue
Dallas, Texas 75225
Attn: Robert S. Hays
(214) 360-2821; (214)
360-8908 (fax)
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Wells Fargo Bank Texas, $10,588,235.00 23.529411111 $9,411,765.00 23.529412500
National Association
505 Main Street, Suite 300
Fort Worth, Texas 76102
Attn: Rusty Anderson
(817) 334-7089; (817)
334-7000 (fax)
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$45,000,000.00 100.000000000% $40,000,000.00 100.000000000%
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Bank Loan Final-Amendment