EXECUTION COPY
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CREDIT AGREEMENT |
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AMONG |
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ASTEC INDUSTRIES, INC. and |
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ASTEC FINANCIAL SERVICES, INC. |
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as Borrowers, |
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THE LENDERS NAMED HEREIN, |
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and |
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BANK ONE, NA |
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as Agent |
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DATED AS OF |
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September 10, 2001 |
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SUNTRUST BANK, |
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as Syndication Agent |
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AMSOUTH BANK, |
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as Co-Agent |
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS
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ARTICLE II THE CREDITS |
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2.1. Revolving Commitment. |
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2.1.1 Tranche A Commitment |
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2.1.2 Tranche B Commitment |
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2.1.3 Limitations on Obligations |
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2.2. Loans. |
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2.2.1 Ratable Loans; Types of Advances |
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2.2.2 Minimum Amount of Each Advance |
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2.2.3 Method of Selecting Types and Interest Periods for New Advances |
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2.2.4 Conversion and Continuation of Outstanding Advances |
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2.2.5 Changes in Interest Rate, etc |
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2.2.6 Interest Payment Dates; Interest and Fee Basis |
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2.2.7 Notification of Advances, Interest Rates, Prepayments and Commitment Reductions |
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2.2.8 Rates Applicable After Default |
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2.3. Swing Line Loans. |
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2.3.1 Making of Swing Line Loans. |
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2.3.2 Conversions of and Participations in Swing Line Loans. |
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2.4. Fees; Reductions and Increases in Aggregate Commitment. |
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2.4.1 Fees. |
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2.4.2 Voluntary Reductions; Prepayments; Increases. |
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2.4.3 Mandatory Reductions in Aggregate Commitment. |
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2.4.4 Mandatory Reduction of Tranche B Loans |
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2.5. Method of Payment |
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2.6. Notes; Telephonic Notices |
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2.7. Lending Installations |
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2.8. Non-Receipt of Funds by the Agent |
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2.9. [Intentionally Omitted]. |
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2.10. Application of Payments |
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2.11. Facility Letters of Credit. |
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2.11.1 Obligation to Issue |
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2.11.2 Conditions for Issuance |
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2.11.3 Procedure for Issuance of Facility Letters of Credit. |
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2.11.4 Reimbursement Obligations. |
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2.11.5 Participation. |
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2.11.6 Compensation for Facility Letters of Credit |
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2.11.7 Letter of Credit Collateral Account |
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2.11.8 Nature of Obligations. |
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2.11.9 Existing Letters of Credit |
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ARTICLE III TAXES; YIELD PROTECTION |
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3.1. Taxes |
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3.2. Yield Protection |
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3.3. Changes in Capital Adequacy Regulations |
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3.4. Availability of Types of Advances |
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3.5. Funding Indemnification |
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3.6. Lender Statements; Survival of Indemnity |
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ARTICLE IV CONDITIONS PRECEDENT |
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4.1. Initial Credit Extension |
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4.2. Each Credit Extension |
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ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE BORROWERS |
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5.1. Corporate Existence and Standing |
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5.2. Authorization and Validity |
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5.3. No Conflict; Government Consent |
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5.4. Financial Statements |
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5.5. Material Adverse Change |
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5.6. Taxes |
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5.7. Litigation and Contingent Obligations |
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5.8. Subsidiaries and Affiliates |
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5.9. ERISA |
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5.10. Accuracy of Information |
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5.11. Regulation U |
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5.12. Material Agreements |
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5.13. Compliance With Laws |
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5.14. Environmental Warranties |
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5.15. Ownership of Properties |
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5.16. Investment Company Act |
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5.17. Public Utility Holding Company Act |
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5.18. Plan Assets; Prohibited Transactions |
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5.19. Intellectual Property |
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5.20. Solvency |
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5.21. Licenses |
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5.22. Pledge Agreement |
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5.23. Insurance |
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ARTICLE VI COVENANTS |
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6.1. Financial Reporting |
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6.2. Use of Proceeds |
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6.3. Notice of Default |
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6.4. Conduct of Business |
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6.5. Taxes |
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6.6. Insurance |
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6.7. Compliance with Laws |
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6.8. Maintenance of Properties |
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6.9. Inspection |
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6.10. Dividends |
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6.11. Indebtedness |
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6.12. Merger |
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6.13. Sale of Assets |
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6.14. Sale of Accounts |
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6.15. Sale and Leaseback |
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6.16. Investments and Acquisitions |
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6.17. Contingent Obligations |
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6.18. Liens |
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6.19. Transactions with Affiliates |
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6.20. Amendments to Certain Agreements |
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6.21. Financial Covenants. |
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6.21.1 Leverage Ratio |
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6.21.2 Consolidated Tangible Net Worth |
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6.21.3 Rentals |
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6.21.4 Fixed Charge Coverage Ratio |
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6.21.5 AFS Leases |
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6.22. Fixed Asset Expenditures |
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6.23. Subordinated Indebtedness |
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6.24. Accounting Method |
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6.25. Environmental Covenant |
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6.26. Litigation and Other Notices |
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6.27. Pledge of Stock of Foreign Subsidiaries |
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6.28. Material Subsidiaries |
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ARTICLE VII DEFAULTS |
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ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES |
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8.1. Acceleration. |
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8.2. Amendments |
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8.3. Preservation of Rights |
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ARTICLE IX GENERAL PROVISIONS |
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9.1. Survival of Representations |
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9.2. Governmental Regulation |
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9.3. Taxes |
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9.4. Headings |
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9.5. Entire Agreement |
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9.6. Several Obligations; Benefits of this Agreement |
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9.7. Expenses; Indemnification |
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9.8. Numbers of Documents |
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9.9. Accounting |
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9.10. Severability of Provisions |
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9.11. Nonliability of Lenders |
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9.12. Confidentiality |
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9.13. Interest Limitation |
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9.14. Loan Documents |
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9.15. Interpretation |
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9.16. Nonreliance |
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9.17. Disclosure |
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ARTICLE X THE AGENT |
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10.1. Appointment; Nature of Relationship |
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10.2. Powers |
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10.3. General Immunity |
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10.4. No Responsibility for Loans, Recitals, etc |
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10.5. Action on Instructions of Lenders |
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10.6. Employment of Agents and Counsel |
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10.7. Reliance on Documents; Counsel |
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10.8. Agent's Reimbursement and Indemnification |
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10.9. Rights as a Lender |
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10.10. Lender Credit Decision |
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10.11. Successor Agent |
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10.12. Notice of Default |
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10.13. Delegation to Affiliates |
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10.14. Execution of Collateral Documents |
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10.15. Collateral Releases |
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ARTICLE XI SETOFF; RATABLE PAYMENTS |
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11.1. Setoff |
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11.2. Ratable Payments |
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ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS |
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12.1. Successors and Assigns |
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12.2. Participations. |
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12.2.1 Permitted Participants; Effect |
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12.2.2 Voting Rights |
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12.2.3 Benefit of Setoff |
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12.3. Assignments. |
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12.3.1 Permitted Assignments |
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12.3.2 Effect; Effective Date |
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12.4. Dissemination of Information |
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12.5. Tax Treatment |
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ARTICLE XIII NOTICES |
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13.1. Giving Notice |
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13.2. Change of Address |
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ARTICLE XIV COUNTERPARTS |
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ARTICLE XV CHOICE OF LAW, CONSENT TO JURISDICTION, WAIVER OF JURY TRIAL |
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15.1. CHOICE OF LAW |
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15.2. CONSENT TO JURISDICTION |
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15.3. WAIVER OF JURY TRIAL |
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ARTICLE XVI ASTEC GUARANTY |
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16.1. Guaranty of Payment and Performance of Obligations of AFS |
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16.2. Additional Amounts |
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16.3. Waivers by Astec: Agent's and Lenders' Freedom to Act |
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16.4. Unenforceability of AFS Obligations Against AFS |
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16.5. Subrogation; Subordination |
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16.6. Termination |
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16.7. Effect of Bankruptcy |
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16.8. Setoff |
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16.9. Further Assurances |
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EXHIBITS
EXHIBIT A Compliance Certificate
EXHIBIT B-1 Tranche A Note
EXHIBIT B-2 Tranche B Note
EXHIBIT B-3 Swing Line Note
EXHIBIT C-1 Form of Opinion of Counsel to Astec
EXHIBIT C-2 Form of Opinion of Special Canadian Counsel
EXHIBIT D Pledge Agreement
EXHIBIT E Assignment Agreement
EXHIBIT F Borrowing Base Certificate
SCHEDULES
Schedule 1 Revolving Commitments/Percentages
Schedule 2.11.9 Existing Letters of Credit
Schedule 5.7 Litigation
Schedule 5.8 Subsidiaries and Affiliates
Schedule 5.14 Environmental Matters
Schedule 5.15 Properties and Liens
Schedule 5.19 Intellectual Property
Schedule 6.11 Indebtedness
CREDIT AGREEMENT
This Credit Agreement (the "Agreement"), dated as of September 10, 2001, is among Astec Industries, Inc., a Tennessee corporation, Astec Financial Services, Inc., a Tennessee corporation, the financial institutions from time to time parties hereto as Lenders and Bank One, NA, a national banking association having its principal office in Chicago, Illinois, as Agent. The parties hereto agree as follows:
As used in this Agreement:
"Acquisition" means any transaction, or any series of related transactions, consummated on or after the date of this Agreement, by which any Credit Party (a) acquires any going business or all or substantially all of the assets of any firm, corporation or division thereof, whether through purchase of assets, merger or otherwise or (b) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the securities of a corporation which have ordinary voting power for the election of directors (other than securities having such power only by reason of the happening of a contingency) or a majority (by percentage or voting power) of the outstanding ownership interests of a partnership or limited liability company.
"Adjusted EBITDA" means for any period EBITDA for such period calculated on a proforma basis assuming that any Acquisition occurring during such period and permitted under this Agreement occurred on and as of the first day of such period.
"Advance" means a borrowing hereunder, (i) made by the Lenders on the same Borrowing Date, or (ii) converted or continued by the Lenders on the same date of conversion or continuation, consisting, in either case of the several Loans of the same Type and, in the case of Eurodollar Loans, for the same Interest Period.
"Affiliate" of any Person means any other Person directly or indirectly controlling, controlled by or under common control with such Person. A Person shall be deemed to control another Person if the controlling Person owns 10% or more of any class of voting securities (or other ownership interests) of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of stock, by contract or otherwise.
"AFS" means Astec Financial Services, Inc., a Tennessee corporation and a Borrower hereunder, its successors and assigns.
"Agent" means Bank One in its capacity as contractual representative of the Lenders pursuant to Article X, and not in its individual capacity as a Lender, and any successor Agent appointed pursuant to Article X.
"Aggregate Commitment" means $125,000,000 as such amount may be increased or reduced from time to time pursuant to the terms hereof.
"Agreement" means this Credit Agreement, as it may be amended or modified and in effect from time to time.
"Aggregate Tranche A Sublimit" means $125,000,000, as such amount may be increased pursuant to Section 2.4.2(b) or reduced from time to time pursuant to the terms hereof.
"Aggregate Tranche B Sublimit" means $50,000,000, as such amount may be reduced from time to time pursuant to the terms hereof.
"Agreement Accounting Principles" means generally accepted accounting principles as in effect from time to time, applied in a manner consistent with that used in preparing the financial statements referred to in Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per annum equal to the higher of (a) the Prime Rate for such day and (b) the sum of Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Margin" means, with respect to the Commitment Fee, Letter of Credit Fee and each Type of Loan described below, the rate of interest per annum shown below for the range of Leverage Ratios specified below:
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Eurodollar Advances |
1.00% |
1.125% |
1.25% |
1.375% |
1.625% |
1.875% |
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Floating Rate Advances |
0.00% |
0.125% |
0.25% |
0.375% |
0.625% |
0.875% |
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Letter of Credit Fee |
1.00% |
1.125% |
1.25% |
1.375% |
1.625% |
1.875% |
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Commitment Fee |
0.25% |
0.25% |
0.25% |
0.375% |
0.375% |
0.50% |
The Leverage Ratio shall be calculated as of the end of each fiscal quarter, and shall be reported to the Agent pursuant to a Compliance Certificate executed by an Authorized Officer of Astec and delivered in accordance with Section 6.1(d) hereof. Not later than five (5) Business Days after receipt by the Agent of each Compliance Certificate delivered by Astec in accordance with Section 6.1(d) for each fiscal quarter or fiscal year, as applicable, Astec, subject to the approval of the Agent, shall determine the Leverage Ratio for the applicable period and shall promptly notify the Agent, who shall in turn promptly notify the Lenders of such determination and of any change in each Applicable Margin resulting therefrom. Each Applicable Margin shall be adjusted (upwards or downwards, as appropriate), if necessary, based on the Leverage Ratio as of the end of the fiscal quarter immediately preceding the date of determination. The adjustment, if any, to the Applicable Margin shall be effective as to all Advances and Commitment Fees commencing on the fifth (5th) Business Day after the delivery of such quarterly or annual financial statements delivered in accordance with Sections 6.1(a) and 6.1(b) and such related Compliance Certificate of an Authorized Officer of Astec delivered in accordance with Section 6.1(d) and shall be effective from and including the fifth (5th) Business Day after the date the Agent receives such Compliance Certificate to but excluding the fifth (5th) Business Day after the date on which the next Compliance Certificate is required to be delivered pursuant to Section 6.1(d); provided, however, that, in the event that Astec shall fail at any time to furnish to the Lenders such financial statements and any such Compliance Certificate required to be delivered pursuant to Sections 6.1(a), 6.1(b) and 6.1(d), the Applicable Margin set forth in Level 6 above shall apply until the fifth (5th) Business Day after such time as all such financial statements and each such Compliance Certificate are so delivered to the Agent and the Lenders. Each determination of the Leverage Ratio by Astec (subject to approval by the Agent) and each determination of the Applicable Margin by the Agent in accordance with this definition shall be conclusive and binding on the parties absent manifest error. Until delivery of the Compliance Certificate for the fiscal quarter ending September 30, 2001, the Applicable Margin shall be that applicable to "Level 5" on the preceding table.
"Arranger" means Banc One Capital Markets, Inc., a Delaware corporation, and its successors, in its capacity as Lead Arranger and Sole Book Runner.
"Article" means an article of this Agreement unless another document is specifically referenced.
"Asset Disposition" means any sale, lease or other disposition of any asset of any Credit Party in a single transaction or in a series of related transactions, other than (a) the sale of inventory in the ordinary course of business, (b) sales, leases or other dispositions by any Credit Party to Astec or any Wholly-Owned Subsidiary of Astec, (c) sales, leases or other dispositions of used, worn-out or surplus equipment in the ordinary course of business, (d) other sales, leases and dispositions of any Property in a single transaction or series of related transactions to the extent that (x) the fair market value of the Property transferred in any such single transaction or series of related transactions does not exceed $1,000,000 and (y) the aggregate fair market value of all such Property transferred after the date hereof does not exceed $5,000,000, (e) Permitted Recourse Lease Sales, (f) sales by AFS of financing or operating leases (including Qualifying Financing Leases and Qualifying Operating Leases) and other chattel paper (including Qualifying Chattel Paper), on a non-recourse basis provided that the Tranche B Revolving Loans at no time exceed the Tranche B Borrowing Base and (g) sales of assets pursuant to a Permitted Securitization.
"Astec" means Astec Industries, Inc., a Tennessee corporation and a Borrower hereunder, its successors and assigns.
"Authorized Officer" means any of the President, Vice President and Corporate Counsel, or Vice President and Corporate Controller of a Borrower acting singly, or other employee of a Borrower designated in writing to the Lenders.
"Bank One" means Bank One, NA, a national banking association having its principal office in Chicago, Illinois, in its individual capacity, and its successors.
"Bond Transactions" means (a) the issuance of the Trencor Letter of Credit and (b) the issuance of Variable Rate Demand Industrial Revenue Bonds Series 1994 in the approximate value of $6,000,000 to finance the expansion of Telsmith, Inc.'s Mequon, Wisconsin facility and the acquisition of equipment to be used in the operating of Telsmith, Inc.'s business.
"Borrowers" means collectively Astec and AFS. Reference to a Borrower hereunder shall mean each of Astec and AFS unless the context specifically refers to one of them. Reference to Borrowers hereunder shall mean both of Astec and AFS jointly and severally.
"Borrowing Base Certificate" means a Borrowing Base Certificate in substantially the form of Exhibit F hereto.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.2.3.
"Business Day" means (a) with respect to any borrowing, payment or rate selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on which banks generally are open in Chicago, Illinois and New York, New York for the conduct of substantially all of their commercial lending activities, interbank wire transfers can be made on the Fedwire system and dealings in United States dollars are carried on in the London interbank market and (b) for all other purposes, a day (other than a Saturday or Sunday) on which banks generally are open in Chicago, Illinois for the conduct of substantially all of their commercial lending activities and interbank wire transfers can be made on the Fedwire system.
"Capitalized Lease" of a Person means any lease of Property by such Person as lessee which would be capitalized on a balance sheet of such Person prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the obligations of such Person under Capitalized Leases which would be shown as a liability on a balance sheet of such Person prepared in accordance with Agreement Accounting Principles.
"CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response Compensation Liability Information System List, as amended from time to time.
"Change in Control" means the acquisition by any Person, or two or more Persons acting in concert, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934) of twenty-five percent (25%) or more of the outstanding shares of voting stock of Astec.
"Closing Date" is defined in Section 4.1.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time.
"Collateral" has the meaning attributed to such term in the Pledge Agreement.
"Collateral Agent" means Bank One, in its capacity as Collateral Agent under the Pledge Agreement, for the ratable benefit of the Agent, the Lenders and the holders of the Senior Notes.
"Collateral Shortfall Amount" is defined in Section 8.1(a).
"Commitment Fee" is defined in Section 2.4.1.
"Compliance Certificate" means a compliance certificate, in substantially the form of Exhibit A hereto, with appropriate insertions, signed by Astec's Chief Financial Officer, showing the calculations necessary to determine compliance with this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, describing the nature and status thereof and any action the Borrowers are taking or propose to take with respect thereto.
"Condemnation" is defined in Section 7.8.
"Conduit Securitization" means a Permitted Securitization effected through the issuance of commercial paper through a commercial paper conduit.
"Consolidated Funded Debt" means for the Credit Parties on a consolidated basis at any time the sum of (w) items (a) through (e) of the definition of Indebtedness, plus (x) Contingent Obligations (other than Contingent Obligations for notes and accounts receivable sold of up to $5,000,000 and Contingent Obligations relating to Conduit Securitizations) plus (y) unreimbursed drawings on Subsidiary Letters of Credit (but excluding other Letters of Credit) plus (z) outstanding principal balances of commercial paper issued pursuant to Conduit Securitizations, whether or not any such amount in clauses (w) through (z) is due or payable at such time.
"Consolidated Net Income" means, for any period, the consolidated net income of the Credit Parties determined on a consolidated basis in accordance with Agreement Accounting Principles, provided that any cumulative effect adjustment resulting from adoption of an accounting principle shall be excluded from such calculation.
"Consolidated Net Revenue" means the consolidated net revenue of the Credit Parties for the most recently completed fiscal year determined on a consolidated basis in accordance with Agreement Accounting Principles.
"Consolidated Tangible Net Worth" means at any date the consolidated stockholders' equity of the Credit Parties determined in accordance with Agreement Accounting Principles, less their consolidated Intangible Assets, all determined as of such date, provided that any cumulative effect adjustment resulting from adoption of an accounting principle shall be excluded from such calculation. For purposes of this definition, "Intangible Assets" means the amount (to the extent reflected in determining such consolidated stockholders' equity) of all unamortized debt discount and expense, unamortized deferred charges, goodwill, patents, trademarks, service marks, trade names, copyrights, organizational or developmental expenses and other intangible items, all determined in accordance with Agreement Accounting Principles.
"Contingent Obligation" of a Person means any agreement, undertaking or arrangement by which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the payment of, or otherwise becomes or is contingently liable upon, the obligation or liability of any other Person, or agrees to maintain the net worth or working capital or other financial condition of any other Person, or otherwise assures any creditor of such other Person against loss, including, without limitation, any comfort letter, operating agreement, guaranty of payment in connection with a Permitted Securitization, take-or-pay contract, application for a Letter of Credit or the obligations of any such Person as general partner of a partnership with respect to the liabilities of the partnership.
"Controlled Group" means all members of a controlled group of corporations or other business entities and all trades or businesses (whether or not incorporated) under common control which, together with any Credit Party, are treated as a single employer under Section 414 of the Code.
"Conversion/Continuation Notice" is defined in Section 2.2.4.
"Credit Extension" means the making of any Advance or the issuance of any Facility Letter of Credit or Swing Line Loan pursuant to this Agreement.
"Credit Extension Date" means the date on which any Credit Extension is made hereunder.
"Credit Parties" means Astec, AFS and each Subsidiary of Astec and AFS.
"Default" means an event described in Article VII.
"Discount" means as of any day and with respect to any commercial paper or term note issued pursuant to a Permitted Securitization, the Interest Component which has accrued up to and including such day. For purposes of this definition, the portion of the Interest Component which has accrued shall be computed by multiplying the total Interest Component for such commercial paper by a fraction, the numerator of which is the number of days elapsed that such commercial paper has been outstanding up to and including such day, and the denominator of which is the number of days such commercial paper or term note is scheduled to be outstanding.
"Domestic Subsidiary" means each Subsidiary of Astec that is organized under the laws of the United States or any state thereof.
"EBITDA" means for any period Consolidated Net Income plus (a) current and deferred income taxes, plus (b) the amount of all amortization of intangibles and depreciation that was deducted in arriving at Consolidated Net Income, plus (c) Interest Expense (including Interest Expense associated with Capitalized Lease Obligations and Interest Expense in connection with Permitted Securitizations even though not directly incurred by a Credit Party), plus (d) unusual non-cash charges, minus (e) equity in net income of Affiliates, and minus (f) interest income (except for interest income of AFS), in each case on a consolidated basis for the Credit Parties.
"Eligible Leased Equipment Amount" means the book value of equipment subject to Qualifying Operating Leases.
"Eligible Equipment Receivable Amount" means the receivable amount reflected on the financial statements of AFS from time to time due from lessees/purchasers under Qualifying Financing Leases or Qualifying Chattel Paper.
"Environmental Laws" means any and all federal, state, local and foreign statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions, permits, concessions, grants, franchises, licenses, agreements and other governmental restrictions relating to (i) the protection of the environment, (ii) the effect of the environment on human health, (iii) emissions, discharges or releases of pollutants, contaminants, hazardous substances or wastes into surface water, ground water or land, or (iv) the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, hazardous substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which, except as otherwise provided in Section 2.2.8, bears interest at the Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for the relevant Interest Period, the applicable British Bankers' Association Interest Settlement Rate for deposits in U.S. dollars appearing on Reuters Screen FRBD as of 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, and having a maturity equal to such Interest Period, provided that, (i) if Reuters Screen FRBD is not available to the Agent for any reason, the applicable Eurodollar Base Rate for the relevant Interest Period shall instead be the applicable British Bankers' Association Interest Settlement Rate for deposits in U.S. dollars as reported by any other generally recognized financial information service as of 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, and having a maturity equal to such Interest Period, and (ii) if no such British Bankers' Association Interest Settlement Rate is available to the Agent, the applicable Eurodollar Base Rate for the relevant Interest Period shall instead be the rate determined by the Agent to be the rate at which Bank One or one of its Affiliate banks offers to place deposits in U.S. dollars 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, in the approximate amount of Bank One's relevant Eurodollar Loan and having a maturity equal to such Interest Period.
"Eurodollar Loan" means a Loan which, except as otherwise provided in Section 2.2.8, bears interest at the Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the relevant Interest Period, the sum of (a) the quotient of (i) the Eurodollar Base Rate applicable to such Interest Period, divided by (ii) one minus the Reserve Requirement (expressed as a decimal) applicable to such Interest Period, plus (b) the Applicable Margin.
"Excluded Taxes" means, in the case of each Lender or applicable Lending Installation and the Agent, taxes imposed on its overall net income, and franchise taxes imposed on it, by (i) the jurisdiction under the laws of which such Lender or the Agent is incorporated or organized or (ii) the jurisdiction in which the Agent's or such Lender's principal executive office or such Lender's applicable Lending Installation is located.
"Facility Letter of Credit" means a Letter of Credit issued by the Issuer pursuant to Section 2.11.
"Facility Letter of Credit Limit" means the lesser of (i) $25,000,000, and (ii) the Aggregate Tranche A Sublimit at any time, as the same may be reduced pursuant to the terms of this Agreement.
"Facility Letter of Credit Obligations" means, as at the time of determination thereof, all liabilities, whether actual or contingent, of Astec with respect to the Facility Letters of Credit, including the sum of (a) Reimbursement Obligations and (b) the aggregate undrawn face amount of the outstanding Facility Letters of Credit.
"Facility Termination Date" means September 10, 2004.
"Federal Funds Effective Rate" means, for any day, an interest rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations at approximately 10 a.m. (Chicago time) on such day on such transactions received by the Agent from three Federal funds brokers of recognized standing selected by the Agent in its sole discretion.
"Floating Rate" means, for any day, a rate per annum equal to the sum of (a) the Alternate Base Rate for such day, plus (b) the Applicable Margin, in each case changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which, except as otherwise provided in Section 2.2.8, bears interest at the Floating Rate.
"Floating Rate Loan" means a Loan which, except as otherwise provided in Section 2.2.8, bears interest at the Floating Rate.
"Foreign Plan" is defined in Section 5.9.
"Foreign Subsidiary" means each Subsidiary of Astec that is not a Domestic Subsidiary.
"Governmental Agency" means any government (foreign or domestic) or any state or other political subdivision thereof or any governmental body, agency, authority, department or commission (including, without limitation, any taxing authority or political subdivision) or any instrumentality or officer thereof (including, without limitation, any court or tribunal) exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any corporation, partnership or other entity directly or indirectly owned or controlled by or subject to the control of any of the foregoing.
"Hazardous Materials" means (a) any chemical, material or substance defined as or included in the definition of "hazardous substances," "hazardous wastes," "hazardous materials," "extremely hazardous waste," "restricted hazardous waste," "toxic pollutants," "contaminants," "pollutants," "toxic substances" or words of similar import under any applicable local, state or federal law or under the regulations adopted or publications promulgated pursuant thereto, including Environmental Laws, (b) any oil, petroleum or petroleum derived substances, any drilling fluids, produced waters or other wastes associated with the exploration, development or production of crude oil, any flammable substances or explosives, any radioactive materials, any hazardous wastes or substances, any toxic wastes or substances or any other materials or pollutants which (i) pose a hazard to any Property of any Credit Party or to Persons on or about such Properties, or (ii) cause such properties to be in violation of any Environmental Laws, (c) asbestos in any form which is or could become friable, radon gas, urea, formaldehyde, foam insulation, or polychlorinated biphenyls, and (d) any other chemical, material or substance, exposure to which is prohibited, limited or regulated by any governmental authority.
"Indebtedness" of a Person means, without duplication, such Person's (a) obligations for borrowed money, (b) obligations representing the deferred purchase price of Property or services (other than accounts payable arising in the ordinary course of such Person's business payable on terms customary in the trade), (c) obligations, whether or not assumed, secured by Liens or payable out of the proceeds or production from Property now or hereafter owned or acquired by such Person, (d) obligations which are evidenced by notes, acceptances, or other instruments, (e) Capitalized Lease Obligations, (f) Contingent Obligations, (g) obligations for which such Person is obligated pursuant to or in connection with a Letter of Credit or Reimbursement Agreement, (h) obligations of such Person under conditional sale or other title retention agreement relating to Property purchased by such Person, (i) Rate Hedging Obligations and (j) obligations arising out of Permitted Securitizations.
"Interest Component" means the portion of the face amount of commercial paper issued on a discount basis representing the discount incurred in respect thereof.
"Interest Expense" means, for any period, the aggregate amount paid as interest or Discount by Astec and its consolidated Subsidiaries during such period as determined in accordance with Agreement Accounting Principles together with, without duplication, the aggregate amount paid as interest or Discount during such period by any conduit or special purpose entity with respect to any commercial paper issued in connection with all outstanding Permitted Securitizations.
"Interest Period" means, with respect to a Eurodollar Advance, a period of one, two, three or six months commencing on a Business Day selected by a Borrower pursuant to this Agreement. Such Interest Period shall end on (but exclude) the day which corresponds numerically to such date one, two, three or six months thereafter; provided, however, that if there is no such numerically corresponding day in such next, second, third or sixth succeeding month, such Interest Period shall end on the last Business Day of such next, second, third or sixth succeeding month. If an Interest Period would otherwise end on a day which is not a Business Day, such Interest Period shall end on the next succeeding Business Day, provided, however, that if said next succeeding Business Day falls in a new calendar month, such Interest Period shall end on the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than commission, travel and similar advances to officers and employees made in the ordinary course of business), extension of credit (other than accounts receivable arising in the ordinary course of business on terms customary in the trade) or contribution of capital by such Person to any other Person; stocks, bonds, mutual funds, partnership interests, notes, debentures or other securities owned by such Person; any deposit account and certificate of deposit owned by such Person; and structured notes, derivative financial instruments and other similar instruments or contracts owned by such Person.
"Issuer" means Bank One, in its capacity as issuer of Facility Letters of Credit under Section 2.11.
"KPI Letter of Credit" means that certain Irrevocable Transferable Letter of Credit, or its successor, issued by Bank One in connection with the issuance of Industrial Development Revenue Bonds in the approximate amount of $9,200,000 to finance certain manufacturing facilities to be used in the operation of Kolberg-Pioneer, Inc.'s business, all pursuant to the Prior Credit Agreement.
"LC Issuance Request" is defined in Section 2.11.3.
"Lease Rentals" means, with respect to any period, the sum of the rentals and other obligations required to be paid during such period by Astec or any Subsidiary as lessee under all leases of real or personal property (other than Capitalized Leases), excluding any amount required to be paid by the lessee on account of maintenance and repairs, insurance, taxes, assessments, water rates and similar charges, provided, that, if at the date of determination, any such rental or other obligations are contingent or not otherwise definitely determinable by the terms of the related lease, the amount of such obligations (i) shall be assumed to be equal to the amount of such obligations for the period of twelve (12) consecutive calendar months immediately preceding the date of determination or (ii) if the related lease was not in effect during such preceding twelve (12) month period, shall be the amount estimated by the Chief Financial Officer of Astec on a reasonable basis and in good faith.
"Lenders" means the lending institutions listed on the signature pages of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent, any office, branch, Subsidiary or Affiliate of such Lender or the Agent listed on the signatures pages hereof or on a Schedule or otherwise selected by such Lender or the Agent pursuant to Section 2.7.
"Letter of Credit" of a Person means a letter of credit or similar instrument which is issued upon the application of such Person or upon which such Person is an account party or for which such Person is in any way liable.
"Letter of Credit Collateral Account" is defined in Section 2.11.7.
"Leverage Ratio" means, as at any date of determination thereof, the ratio of (a) Consolidated Funded Debt of the Credit Parties minus the amount of any cash collateral held by the Collateral Agent to (b) Adjusted EBITDA of the Credit Parties for the four (4) most recently ended fiscal quarters, all calculated on a consolidated basis in accordance with Agreement Accounting Principles.
"Lien" means any lien (statutory or other), mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, the interest of a vendor or lessor under any conditional sale, Capitalized Lease or other title retention agreement).
"Loan" means, with respect to a Lender, such Lender's portion of any Advance.
"Loan Documents" means this Agreement, the Notes, the Pledge Agreement, the Reimbursement Agreements, the documents relating to the Subsidiary Letters of Credit (including the Trencor LC Agreement) and the other documents and agreements contemplated hereby and executed by any Credit Party in favor of the Agent or any Lender or otherwise in connection with any Loan, Facility Letter of Credit or Swing Line Loan, as the same may be amended, restated, supplemented or otherwise modified from time to time.
"Margin Stock" is defined in Section 5.11.
"Material Adverse Effect" means a material adverse effect on (a) the business, Property, condition (financial or otherwise), results of operations, or prospects of the Credit Parties taken as a whole, (b) the ability of any Credit Party to perform its obligations under any Loan Document to which it is a party, or (c) the validity or enforceability of any of the Loan Documents or the rights or remedies of the Agent or the Lenders thereunder.
"Material Subsidiary" means any Subsidiary of Astec with either (a) assets having a book value equal to or in excess of $1,000,000 or (b) annual EBITDA equal to or in excess of $500,000.
"Multiemployer Plan" means a Plan maintained pursuant to a collective bargaining agreement or any other arrangement to which any Credit Party or any member of the Controlled Group is a party to which more than one employer is obligated to make contributions.
"Net Available Proceeds" means, with respect to an Asset Disposition, the sum of cash or readily marketable cash equivalents received (including by way of a cash generating sale or discounting of a note or receivable, but excluding any other consideration received in the form of assumption by the acquiring Person of debt or other obligations relating to the properties or assets so disposed of or received in any other non-cash form) therefrom, whether at the time of such disposition or subsequent thereto, net of all legal, title and recording tax expenses, commissions and other fees and all costs and expenses incurred and all federal, state, local and other taxes required to be accrued as a liability as a consequence of such transactions and of all payments made by any Credit Party on any Indebtedness which is secured by such assets pursuant to a permitted Lien upon or with respect to such assets or which must by the terms of such Lien, or in order to obtain a necessary consent to such Asset Disposition or by applicable law, be repaid out of the proceeds from such Asset Disposition.
"Note Purchase Agreements" means those certain Note Purchase Agreements, dated as of September 10, 2001, by and among the Borrowers and the various purchasers named therein, as such agreements may be amended, restated or refinanced from time to time, pursuant to which Senior Notes are issued in an original aggregate principal amount of $80,000,000.
"Notes" means the Revolving Notes and the Swing Line Notes.
"Notice of Swing Line Loan" is defined in Section 2.3.1(d).
"Obligations" means all unpaid principal of and accrued and unpaid interest on the Notes (including all interest accruing after the commencement of any proceeding against or with respect to any Borrower under the United States Bankruptcy Code, Title 11 of the United States Code, or any other federal or state bankruptcy, insolvency, receivership or similar law, at the rates specified in this Agreement), all accrued and unpaid fees, all Facility Letter of Credit Obligations and all expenses, reimbursements, indemnities and other obligations of any Credit Party to the Lenders or to any Lender, the Agent, the Collateral Agent or any indemnified party hereunder arising under the Loan Documents.
"Other Taxes" is defined in Section 3.1(ii).
"Participants" is defined in Section 12.2.1.
"Payment Date" means the first day of each March, June, September and December.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor thereto.
"Percentage" means, for each Lender the percentage set forth opposite its name on Schedule 1 attached hereto, as such percentage (and such schedule) may be modified from time to time pursuant to the terms hereof, including but not limited to the provisions of Section 12.3.2.
"Permitted Acquisition" means an Acquisition of the capital stock or equity interests in a Person or the assets of a Person engaged in the production of aggregate processing or mining equipment, hot mix asphalt production equipment, thermal heating or storage equipment, mobile road construction equipment, trenching, underground construction, utility or related equipment or pavement analyzing equipment, that has been approved or consented to by the board of directors or equivalent governing body of such Person.
"Permitted Securitization" means any financing program providing for the sale of lease receivables (including rights in respect of true leases and financing leases) and related rights by AFS to a Securitization Subsidiary in transactions purporting to be true sales (and treated as true sales for GAAP purposes), which Securitization Subsidiary shall finance the purchase of such assets by the sale, transfer, conveyance, lien or pledge of such assets to one or more limited purpose financing companies, special purpose entities and/or other financial institutions, in each case pursuant to documentation in form and substance reasonably satisfactory to the Collateral Agent; provided that at the time of the execution of the documentation establishing such Permitted Securitization and immediately after giving effect thereto, no Default or Unmatured Default would exist.
"Permitted Recourse Lease Sales" means recourse sales of leases or accounts or notes receivable relating to leases by AFS.
"Person" means any natural person, corporation, firm, joint venture, partnership, limited liability company, association, enterprise, trust or other entity or organization, or any government or political subdivision or any agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code as to which any Credit Party or any member of the Controlled Group may have any liability.
"Pledge Agreement" means that certain Pledge Agreement, in substantially the form of Exhibit D hereto, executed and delivered by Astec in favor of the Collateral Agent, for the ratable benefit of the Collateral Agent, the Agent, the Lenders and the holders of the Senior Notes, as the same may be amended, restated, supplemented or otherwise modified from time to time, together with any supplemental pledge agreement entered into pursuant to Section 6.28.
"Prime Rate" means a rate per annum equal to the prime rate of interest announced from time to time by Bank One or its parent (which is not necessarily the lowest rate charged to any customer), changing when and as said prime rate changes.
"Prior Credit Agreement" means that Third Amended and Restated Credit Agreement, dated as of April 7, 2000, by and among the Borrowers, the several lenders named therein and the Agent, as amended from time to time.
"Property" of a Person means any and all property, whether real, personal, tangible, intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.
"Purchasers" is defined in Section 12.3.1.
"Qualifying Chattel Paper" means valid and enforceable written installment notes financing the purchase of products manufactured or distributed by the Subsidiaries or other third parties together with any accessories, attachments or equipment relating thereto, secured by written security agreements, which are payable to the order of AFS, payments under which are not more than ninety (90) days past due.
"Qualifying Operating Leases" means valid and enforceable written operating leases of equipment legally and beneficially owned by AFS and leased to third parties not Affiliates of AFS, payments under which are not more than ninety (90) days past due.
"Qualifying Financing Leases" means valid and enforceable written financing leases of equipment between AFS and third parties not Affiliates of AFS, payments under which are not more than ninety (90) days past due. Qualifying Financing Leases shall not include any leases or related obligations sold in a Permitted Recourse Lease Sale or otherwise.
"Rate Hedging Obligations" of a Person means any and all obligations of such Person, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (a) any and all Rate Hedging Transactions and (b) any and all cancellations, buy backs, reversals, terminations or assignments of any Rate Hedging Transactions.
"Rate Hedging Transactions" means any transaction (including an agreement with respect thereto) now existing or hereafter entered into between any Credit Party and any Lender or Affiliate thereof which is a rate swap, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, forward transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of these transactions) or any combination thereof, whether linked to one or more interest rates, foreign currencies, commodity prices, equity prices or other financial measures.
"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.
"Regulation U" means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by banks for the purpose of purchasing or carrying margin stocks applicable to member banks of the Federal Reserve System.
"Reimbursement Agreement" means a reimbursement agreement, substantially in such form as the Issuer may employ in the ordinary course of business, with such modifications thereto as may be agreed upon by the Issuer and Astec; provided, however, that in the event of any conflict between the terms of any Reimbursement Agreement and this Agreement, the terms of this Agreement shall control.
"Reimbursement Obligations" means, at any time, the aggregate of the obligations of Astec to the Lenders and the Issuer in respect of all unreimbursed payments or disbursements made by the Issuer and the Lenders under or in respect of the Facility Letters of Credit (including, without limitation, Astec's obligation to reimburse the Issuer for draws on Facility Letters of Credit pursuant to Section 2.11.4(b)).
"Release" means a "release", as such term is defined in CERCLA.
"Rentals" of a Person means the aggregate fixed amounts payable by such Person under any lease of Property having an original term (including any required renewals or any renewals at the option of the lessor or lessee) of one year or more.
"Reportable Event" means a reportable event as defined in Section 4043 of ERISA and the regulations issued under such section, with respect to a Plan, excluding, however, such events as to which the PBGC has by regulation waived the requirement of Section 4043(a) of ERISA that it be notified within 30 days of the occurrence of such event; provided, however, that a failure to meet the minimum funding standard of Section 412 of the Code and of Section 302 of ERISA shall be a Reportable Event regardless of the issuance of any such waiver of the notice requirement in accordance with either Section 4043(a) of ERISA or Section 412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least 67% of the Aggregate Commitment or, if the Aggregate Commitment has been terminated, Lenders in the aggregate holding at least 67% of the Revolving Loan Obligations.
"Reserve Requirement" means, with respect to an Interest Period, the maximum aggregate reserve requirement (including all basic, supplemental, marginal and other reserves) which is imposed under Regulation D on Eurocurrency liabilities.
"Revolving Advance" means a borrowing under Section 2.1.1 or 2.1.2 consisting of the aggregate amount of the several Revolving Loans (including Tranche A Revolving Loans and Tranche B Revolving Loans) made by the Lenders to a Borrower of the same Type and, in the case of Eurodollar Advances, for the same Interest Period.
"Revolving Commitment" means, for each Lender, the obligation of such Lender to make Loans (including Tranche A Revolving Loans and Tranche B Revolving Loans) and participate in Facility Letters of Credit and Swing Line Loans not exceeding an amount equal to the product of (a) the then existing Aggregate Commitment and (b) the Percentage applicable to such Lender.
"Revolving Loans" is defined in Section 2.1.2.
"Revolving Notes" means the Tranche A Notes and the Tranche B Notes.
"Revolving Loan Obligations" means, at any particular time, the sum of (a) the outstanding principal amount of the Advances under Section 2.1.1 and Section 2.1.2 at any time, plus (b) the outstanding principal amount of the Swing Line Loans at such time, plus (c) the Facility Letter of Credit Obligations at such time.
"Schedule" refers to a specific schedule to this Agreement, unless another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another document is specifically referenced.
"Securitization Subsidiary" means a special purpose, bankruptcy remote, Wholly-Owned Domestic Subsidiary of Astec formed for the sole and exclusive purpose of engaging in activities in connection with the purchase, sale and financing of lease receivables (including rights in respect of true leases and financing leases) and related rights in connection with and pursuant to a Permitted Securitization.
"Senior Note Documents" means the Note Purchase Agreements and the Pledge Agreement.
"Senior Notes" means the 7.56% notes of the Borrowers, due September 10, 2011, issued in an aggregate principal amount of $80,000,000 pursuant to the Note Purchase Agreements.
"Single Employer Plan" means a Plan maintained by any Credit Party or any member of the Controlled Group for employees of any Credit Party or any member of the Controlled Group.
"Subordinated Indebtedness" of a Person means any Indebtedness of such Person the payment of which is subordinated to payment of the Obligations to the written satisfaction of the Lenders.
"Subsidiary" of a Person means (a) any corporation more than 50% of the outstanding securities having ordinary voting power of which shall at the time be owned or controlled, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, or (b) any partnership, limited liability company, association, joint venture or similar business organization more than 50% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled. Unless otherwise expressly provided, all references herein to a "Subsidiary" shall mean a Subsidiary of Astec. At all times during the term of this Agreement all references to Subsidiaries of Astec shall include AFS.
"Subsidiary Letters of Credit" means (a) the Trencor Letter of Credit, (b) the KPI Letter of Credit, and (c) that certain letter of credit issued by M&I Marshall and Ilsley Bank for the account of Telsmith, Inc. in connection with the issuance of Variable Rate Demand Industrial Revenue Bonds Series 1994 in the approximate value of $6,000,000 to finance the construction and acquisition of a facility and equipment to be used in the operation of Telsmith, Inc.'s business.
"Substantial Portion" means, with respect to the Property of any Credit Party, Property which (a) represents more than 10% of the consolidated assets of the Credit Parties as would be shown in the consolidated financial statements of the Credit Parties as at the beginning of the twelve-month period ending immediately prior to the month in which such determination is made, or (b) is responsible for more than ten percent (10%) of the consolidated net sales or of the consolidated net income of the Credit Parties as reflected in the consolidated financial statements referred to in clause (a) above.
"Swing Line Lender" means Bank One in its capacity as Swing Line Lender under Section 2.3.1.
"Swing Line Limit" means the lesser of (a) $10,000,000, and (b) the Aggregate Tranche A Sublimit at any time, as the same may be reduced pursuant to the terms of this Agreement.
"Swing Line Loan" is defined in Section 2.3.1.
"Swing Line Note" means a promissory note, in substantially the form of Exhibit B-3 hereto, duly executed by Astec and payable to the order of the Swing Line Lender in the amount of the Swing Line Limit, including any amendment, restatement, modification, renewal or replacement of such Swing Line Note.
"Taxes" means any and all present or future taxes, duties, levies, imposts, deductions, charges or withholdings, and any and all liabilities with respect to the foregoing, but excluding Excluded Taxes and Other Taxes.
"Tranche A Commitment" means, for each Lender, the obligation of such Lender to make Loans and participate in Facility Letters of Credit and Swing Line Loans not exceeding an amount equal to the product of (a) the then existing Aggregate Tranche A Sublimit and (b) the Percentage applicable to such Lender.
"Tranche A Loan Obligations" means, at any particular time, the sum of (a) the outstanding principal amount of Advances under Section 2.1.1, plus (b) the outstanding principal amount of the Swing Line Loans at such time, plus (c) the Facility Letter of Credit Obligations at such time.
"Tranche A Notes" means a promissory note, in substantially the form of Exhibit B-1 hereto, duly executed by Astec and payable to the order of a Lender in the amount of its Tranche A Commitment, including any amendment, modification, renewal or replacement of such promissory note.
"Tranche A Revolving Loan" is defined in Section 2.1.1.
"Tranche B Borrowing Base" means 85% of the sum of (a) the Eligible Leased Equipment Amount and (b) the Eligible Equipment Receivable Amount.
"Tranche B Commitment" means, for each Lender, the obligation of such Lender to make Loans not exceeding an amount equal to the product of (a) the then existing Aggregate Tranche B Sublimit and (b) the Percentage applicable to such Lender.
"Tranche B Notes" means a promissory note, in substantially the form of Exhibit B-2 hereto, duly executed by AFS and payable to the order of a Lender in the amount of its Tranche B Commitment, including any amendment, modification, renewal or replacement of such promissory note.
"Tranche B Revolving Loan" is defined in Section 2.1.2.
"Transferee" is defined in Section 12.4.
"Trencor LC Agreement" means the Letter of Credit Agreement between Bank One and Trencor Jetco, Inc. (now known as Trencor, Inc.), dated as of April 1, 1994, as amended from time to time, pursuant to which the Trencor Letter of Credit was issued.
"Trencor Letter of Credit" means that certain Irrevocable Transferable Letter of Credit No. 00315672, or its successor, issued by Bank One for the account of Astec in connection with the issuance of Industrial Development Revenue Bonds in the approximate amount of $8,000,000 to finance the construction and acquisition of a facility and equipment to be used in the operation of Trencor, Inc.'s business, all pursuant to the Trencor LC Agreement.
"Type" means, with respect to any Advance, its nature as a Floating Rate Advance or a Eurodollar Advance.
"Unfunded Liabilities" means the amount (if any) by which the present value of all vested and unvested accrued benefits under all Single Employer Plans exceeds the fair market value of all such Plan assets allocable to such benefits, all determined as of the then most recent valuation date for such Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (a) any Subsidiary all of the outstanding voting securities of which shall at the time be owned or controlled, directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of such Person, or (b) any partnership, limited liability company, association, joint venture or similar business organization 100% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled.
The foregoing definitions shall be equally applicable to both the singular and plural forms of the defined terms.
(a) the Borrowing Date, which shall be a Business Day, of such Advance,
(b) the aggregate amount of such Advance,
(c) the Type of Advance selected,
(d) the Borrower and commitment to which such Advance applies, and
(e) in the case of each Eurodollar Advance, the Interest Period applicable thereto.
Not later than noon (Chicago time) on each Borrowing Date, each Lender shall make available its Loan or Loans, in funds immediately available in Chicago to the Agent at its address specified pursuant to Article XIII. The Agent will make the funds so received from the Lenders available to the applicable Borrower at the Agent's aforesaid address.
(a) the requested date, which shall be a Business Day, of such conversion or continuation;
(b) the aggregate amount and Type of the Advance which is to be converted or continued; and
(c) the amount and Type(s) of Advance(s) into which such Advance is to be converted or continued and, in the case of a conversion into or continuation of a Eurodollar Advance, the duration of the Interest Period applicable thereto.
(a) the aggregate maximum amount then available for drawing under Facility Letters of Credit issued by the Issuer, after giving effect to the Facility Letter of Credit requested hereunder, shall not exceed (i) any limit imposed by law or regulation upon the Issuer or (ii) the Facility Letter of Credit Limit;
(b) after giving effect to the requested issuance of any Facility Letter of Credit, (i) the Tranche A Loan Obligations shall not exceed the Aggregate Tranche A Sublimit and (ii) the Revolving Loan Obligations shall not exceed the Aggregate Commitment;
(c) the requested Facility Letter of Credit has an expiration date not later than each of (i) one year after the date of issuance and (ii) the fifth Business Day prior to the Facility Termination Date; provided that any Facility Letter of Credit that expires on the day one year after the date of issuance may provide for the renewal thereof for additional one year periods which shall in no event extend beyond the date referred to in clause (ii) above;
(d) if required by the Issuer, Astec shall have delivered to the Issuer, at such times and in such manner as the Issuer may reasonably prescribe, a Reimbursement Agreement and such other documents and materials as may be required by the Issuer pursuant to the terms of the proposed Facility Letter of Credit and the proposed Facility Letter of Credit shall be satisfactory to the Issuer as to form and content and shall be consistent with the Issuer's ordinary practice with respect to terms of its letters of credit; and
(e) as of the date of issuance, no order, judgment or decree of any court, arbitrator or governmental authority shall purport by its terms to enjoin or restrain the Issuer from issuing the Facility Letter of Credit and no law, rule or regulation applicable to the Issuer and no request or directive (whether or not having the force of law) from any governmental authority with jurisdiction over the Issuer shall prohibit or request that the Issuer refrain from the issuance of Letters of Credit generally or the issuance of that Facility Letter of Credit.
(a) Astec shall give the Issuer three (3) Business Days' prior written notice of any requested issuance of a Facility Letter of Credit under this Agreement. Such notice (the "LC Issuance Request") shall be on such standard form as may be prescribed by the Issuer, shall be irrevocable and shall specify (i) the stated amount of the Facility Letter of Credit requested, (ii) the effective date (which day shall be a Business Day) of issuance of such requested Facility Letter of Credit, (iii) the date on which such requested Facility Letter of Credit is to expire (which date shall be a Business Day and shall in no event be later than the date described in Section 2.11.2(c)), (iv) the purpose for which such Facility Letter of Credit is to be issued, (v) the Person for whose benefit the requested Facility Letter of Credit is to be issued, (vi) the amount of Facility Letter of Credit Obligations and Obligations then outstanding, (vii) the then unused portions of the Aggregate Commitment and the Aggregate Tranche A Sublimit and (viii) the terms on which the Facility Letter of Credit is to be issued. At the time such LC Issuance Request is delivered, Astec shall also provide the Issuer with a copy of the form of the Facility Letter of Credit it is requesting be issued. The Issuer shall promptly forward to the Agent and the Lenders a copy of the LC Issuance Request.
(b) Subject to the terms and conditions of this Section 2.11.3 and provided that the applicable conditions set forth in Sections 4.2 and 2.11.2 hereof have been satisfied, the Issuer shall, on the requested date, issue a Facility Letter of Credit on behalf of Astec in accordance with the Issuer's usual and customary business practices.
(c) The Issuer shall not extend or amend any Facility Letter of Credit unless the requirements of this Section 2.11.3 are met as though a new Facility Letter of Credit was being requested and issued.
(a) Notwithstanding any provisions to the contrary in any Reimbursement Agreement:
(i) Astec shall reimburse the Issuer for drawings under a Facility Letter of Credit issued by it no later than the earlier of (1) the time specified in such Reimbursement Agreement and (2) three (3) Business Days after the payment by the Issuer of such drawing; and
(ii) any Reimbursement Obligation with respect to any Facility Letter of Credit shall bear interest from the date of the relevant drawing under the pertinent Facility Letter of Credit at the higher of the interest rate (1) specified in the applicable Reimbursement Agreement with respect to such amount, and (2) for past due Floating Rate Loans calculated in accordance with Section 2.2.8 above.
(b) Astec agrees to pay to the Agent the amount of all Reimbursement Obligations, interest and other amounts payable to the Agent under or in connection with such Facility Letter of Credit immediately when due, irrespective of any claim, set-off, defense or other right which Astec or any Subsidiary or Affiliate of Astec may have at any time against the Issuer or any other Person, under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which Astec or any Subsidiary or Affiliate of Astec may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), the Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between Astec, or any Subsidiary or Affiliate of Astec and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect (except to the extent any such invalidity or insufficiency is found in a final judgment of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Agent);
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; and
(v) the occurrence of any Default or Unmatured Default.
(a) Immediately upon issuance by the Issuer of any Facility Letter of Credit in accordance with the procedures set forth in Section 2.11.3, each Lender shall be deemed to have irrevocably and unconditionally purchased and received from the Issuer, without recourse or warranty, an undivided interest and participation equal to its Percentage of such Facility Letter of Credit (including, without limitation, all obligations of Astec with respect thereto) and any security therefor or guaranty pertaining thereto.
(b) In the event that the Issuer makes any payment under any Facility Letter of Credit and Astec shall not have repaid such amount to the Issuer pursuant to Section 2.11.4, the Issuer shall promptly notify each Lender of such failure, and each Lender shall promptly and unconditionally pay to the Agent for the account of the Issuer the amount of such Lender's Percentage of the unreimbursed amount of any such payment. If any Lender fails to make available to the Issuer any amounts due to the Issuer pursuant to this Section 2.11.5(b), the Issuer shall be entitled to recover such amount, together with interest thereon at the Federal Funds Effective Rate, for the first three (3) Business Days after such Lender receives such notice and thereafter, at the Floating Rate, payable (i) on demand, (ii) by setoff against any payments made to the Issuer for the account of such Lender or (iii) by payment to the Issuer by the Agent of amounts otherwise payable to such Lender under this Agreement. The failure of any Lender to make available to the Agent its Percentage of the unreimbursed amount of any such payment shall not relieve any other Lender of its obligation hereunder to make available to the Agent its Percentage of the unreimbursed amount of any payment on the date such payment is to be made, but no Lender shall be responsible for the failure of any other Lender to make available to the Agent its Percentage of the unreimbursed amount of any payment on the date such payment is to be made.
(c) Whenever the Issuer or the Agent receives a payment on account of a Reimbursement Obligation, including any interest thereon, it shall promptly pay to each Lender which has funded its participating interest therein, in immediately available funds, an amount equal to such Lender's Percentage thereof.
(d) The obligations of a Lender to make payments to the Agent with respect to a Facility Letter of Credit shall be absolute, unconditional and irrevocable, not subject to any counterclaim, set-off, qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances.
(e) In the event any payment by Astec or any Subsidiary or Affiliate of Astec received by the Issuer or the Agent with respect to a Facility Letter of Credit and distributed by the Issuer or the Agent to the Lenders on account of their participations is thereafter set aside, avoided or recovered from the Issuer or the Agent in connection with any receivership, liquidation, reorganization or bankruptcy proceeding, each Lender which received such distribution shall, upon demand by the Issuer or the Agent, contribute such Lender's Percentage of the amount set aside, avoided or recovered together with interest at the rate required to be paid by the Issuer or the Agent upon the amount required to be repaid by it.
(a) In addition to amounts payable as elsewhere provided in this Section 2.11, Astec hereby agrees to protect, indemnify, pay and save the Issuer, the Agent and the Lenders harmless from and against any and all loss, liability, damage and expense (including attorneys' fees and expenses) which the Issuer, the Agent or the Lenders may incur or be subject to as a consequence, direct or indirect, of (i) the issuance of a Facility Letter of Credit, other than as a result of the Issuer, the Agent or the Lenders' gross negligence or willful misconduct, or (ii) the failure of the Issuer to honor a drawing under such Facility Letter of Credit as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto governmental authority.
(b) As among Astec, the Issuer, the Agent and the Lenders, Astec assumes all risks of the acts and omissions of, or misuse of the Facility Letters of Credit by, the respective beneficiaries of the Facility Letters of Credit. In furtherance and not in limitation of the foregoing, the Issuer, the Agent and the Lenders shall not be responsible for (i) the forms, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of any Facility Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Facility Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) failure of the beneficiary of a Facility Letter of Credit to comply fully with conditions required in order to draw upon such Facility Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages by mail, cable, telegraph, telex or otherwise; (v) errors in interpretation of technical terms; (vi) misapplication by the beneficiary of a Facility Letter of Credit of the proceeds of any drawing under such Facility Letter of Credit; (viii) any consequences arising from causes beyond the control of the Issuer, the Agent or the Lenders, except in each case caused solely by the gross negligence or willful misconduct of the Issuer, the Agent or the Lenders.
(c) In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by the Issuer, the Agent or any Lender under or in connection with the Facility Letters of Credit or any related certificates, if taken or omitted in good faith, shall not put the Issuer, the Agent or such Lender under any resulting liability to Astec or relieve Astec of any of its obligations hereunder to the Issuer, the Agent or any Lender.
(ii) In addition, the Borrowers hereby agree to pay any present or future stamp or documentary taxes and any other excise or property taxes, charges or similar levies which arise from any payment made hereunder or under any Note or from the execution or delivery of, or otherwise with respect to, this Agreement or any Note ("Other Taxes").
(iii) The Borrowers hereby agree to indemnify the Agent and each Lender for the full amount of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed on amounts payable under this Section 3.1) paid by the Agent or such Lender and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto. Payments due under this indemnification shall be made within thirty (30) days of the date the Agent or such Lender makes demand therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of the United States of America or a state thereof (each a "Non-U.S. Lender") agrees that it will, not more than ten (10) Business Days after the date of this Agreement, (i) deliver to each of Astec and the Agent two (2) duly completed copies of United States Internal Revenue Service Form W-8BEN or W-8ECI, certifying in either case that such Lender is entitled to receive payments under this Agreement without deduction or withholding of any United States federal income taxes, and (ii) deliver to each of Astec and the Agent a United States Internal Revenue Form W-8 or W-9, as the case may be, and certify that it is entitled to an exemption from United States backup withholding tax. Each Non-U.S. Lender further undertakes to deliver to each of Astec and the Agent (x) renewals or additional copies of such form (or any successor form) on or before the date that such form expires or becomes obsolete, and (y) after the occurrence of any event requiring a change in the most recent forms so delivered by it, such additional forms or amendments thereto as may be reasonably requested by Astec or the Agent. All forms or amendments described in the preceding sentence shall certify that such Lender is entitled to receive payments under this Agreement without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Lender from duly completing and delivering any such form or amendment with respect to it and such Lender advises Astec and the Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to provide Astec with an appropriate form pursuant to clause (iv) above (unless such failure is due to a change in treaty, law or regulation, or any change in the interpretation or administration thereof by any governmental authority, occurring subsequent to the date on which a form originally was required to be provided), such Non-U.S. Lender shall not be entitled to indemnification under this Section 3.5 with respect to Taxes imposed by the United States; provided that, should a Non-U.S. Lender which is otherwise exempt from or subject to a reduced rate of withholding tax become subject to Taxes because of its failure to deliver a form required under clause (iv) above, the Borrowers shall take such steps as such Non-U.S. Lender shall reasonably request to assist such Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction of withholding tax with respect to payments under this Agreement or any Note pursuant to the law of any relevant jurisdiction or any treaty shall deliver to the Borrowers (with a copy to the Agent), at the time or times prescribed by applicable law, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other governmental authority of the United States or any other country or any political subdivision thereof asserts a claim that the Agent did not properly withhold tax from amounts paid to or for the account of any Lender (because the appropriate form was not delivered or properly completed, because such Lender failed to notify the Agent of a change in circumstances which rendered its exemption from withholding ineffective, or for any other reason), such Lender shall indemnify the Agent fully for all amounts paid, directly or indirectly, by the Agent as tax, withholding therefor, or otherwise, including penalties and interest, and including taxes imposed by any jurisdiction on amounts payable to the Agent under this subsection, together with all costs and expenses related thereto (including attorneys' fees and time charges of attorneys for the Agent, which attorneys may be employees of the Agent). The obligations of the Lenders under this Section 3.1(vii) shall survive the payment of the Obligations and termination of this Agreement.
(i) subjects any Lender or any applicable Lending Installation to any Taxes, or changes the basis of taxation of payments (other than with respect to Excluded Taxes) to any Lender in respect of its Eurodollar Loans or Facility Letters of Credit (or participations therein), or
(ii) imposes or increases or deems applicable any reserve, assessment, insurance charge, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender or any applicable Lending Installation (other than reserves and assessments taken into account in determining the interest rate applicable to Eurodollar Advances), or
(iii) imposes any other condition the result of which is to increase the cost to any Lender or any applicable Lending Installation of making, funding or maintaining its Eurodollar Loans or Facility Letters of Credit (or participations therein) or reduces any amount receivable by any Lender or any applicable Lending Installation in connection with its Eurodollar Loans or in connection with Facility Letters of Credit (or participations therein), or requires any Lender or any applicable Lending Installation to make any payment calculated by reference to the amount of Eurodollar Loans held, Facility Letters of Credit issued or participated in, or interest received, by it, by an amount deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to such Lender or applicable Lending Installation of making or maintaining its Eurodollar Loans or Revolving Commitment or of issuing or participating in Facility Letters of Credit or to reduce the return received by such Lender or applicable Lending Installation in connection with such Eurodollar Loans, Revolving Commitment or Facility Letters of Credit, then, within fifteen (15) days of demand by such Lender, the Borrowers shall pay such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction in amount received.
(a) There exists no Default or Unmatured Default.
(b) The representations and warranties contained in Article V of this Agreement and in Section 3 of the Pledge Agreement are true and correct as of such Credit Extension Date except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall be true and correct on and as of such earlier date.
(c) All legal matters incident to the making of such Credit Extension shall be satisfactory to the Lenders and their counsel.
Each Borrowing Notice or LC Issuance Request or Notice of Swing Line Loan with respect to each such Credit Extension shall constitute a representation and warranty by the Borrowers that the conditions contained in Sections 4.2(a) and (b) have been satisfied. The Agent may require a duly completed Compliance Certificate as a condition to making a Credit Extension.
The Borrowers jointly and severally represent and warrant to the Lenders that:
(a) all facilities and property (including underlying groundwater) owned or leased by any Credit Party has been, and continues to be, owned or leased by such entity in material compliance with all Environmental Laws;
(b) there has been no past, and there are no pending or threatened (1) claims, complaints, notices or requests for information received by any Credit Party with respect to any alleged violation of any Environmental Law, or (ii) complaints, notices or inquiries to any Credit Party regarding potential liability under any Environmental Law which, in either case, have caused or could reasonably be expected to cause liabilities in excess of $1,000,000;
(c) there have been no Releases of Hazardous Materials at, on or under any property now or previously owned or leased by any Credit Party that, singly or in the aggregate, have, or may reasonably be expected to have, a Material Adverse Effect;
(d) each Credit Party has been issued and is in compliance with all permits, certificates, approvals, licenses and other authorizations relating to environmental matters and necessary or desirable for their businesses;
(e) no property now or previously owned or leased by any Credit Party is listed or proposed for listing (with respect to owned property only) on the National Priorities List pursuant to CERCLA, on the CERCLIS or on any similar state list of sites requiring investigation or clean-up;
(f) there are no underground storage tanks, active or abandoned, including petroleum storage tanks, at, on or under any property now or previously owned or leased by any Credit Party that, singly or in the aggregate, have, or may reasonably be expected to have, a Material Adverse Effect;
(g) no Credit Party has directly transported or directly arranged for the transportation of any Hazardous Material to any location which is listed or proposed for listing on the National Priorities List pursuant to CERCLA, on CERCLIS or on any similar state list or which is the subject of federal, state or local enforcement actions or other investigations which may lead to material claims against any Credit Party for any remedial work, damage to natural resources or personal injury, including, but not limited to, claims under CERCLA;
(h) there are no polychlorinated biphenyls or friable asbestos present at any property now or previously owned or leased by any Credit Party that, singly or in the aggregate, have, or may reasonably be expected to have, a Material Adverse Effect; and
(i) in the ordinary course of its business, the officers of Astec consider the effect of Environmental Laws on the business of Astec and its Subsidiaries, in the course of which they identify and evaluate potential risks and liabilities accruing to the Credit Parties due to Environmental Laws. On the basis of this consideration, Astec has concluded that Environmental Laws cannot reasonably be expected to have a Material Adverse Effect.
(b) The Borrowers do not intend to, or to permit any Credit Party to, and the Borrowers do not believe that they or any Credit Party will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing of and amounts of cash to be received by it or any such Credit Party and the timing of the amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such Credit Party.
During the term of this Agreement, unless the Required Lenders shall otherwise consent in writing, the Borrowers hereby jointly and severally make the following agreements for themselves and on behalf of each Credit Party.
(a) Within one hundred five (105) days after the close of each of its fiscal years, an unqualified (except for qualifications relating to changes in accounting principles or practices reflecting changes in generally accepted principles of accounting and required or approved by Astec's independent certified public accountants) audit report certified by independent certified public accountants, acceptable to the Lenders, prepared in accordance with Agreement Accounting Principles as in effect at such time on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself and the Credit Parties including without limitation balance sheets as of the end of such period, related profit and loss and reconciliation of surplus statements, and a statement of cash flows, accompanied by (a) any management letter prepared by said accountants, (b) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof and (c) a letter from said accountants addressed to the Lenders acknowledging that such Lenders are extending credit in primary reliance on such financial statements and authorizing such reliance.
(b) Within forty-five (45) days after the close of each of the first three quarterly periods of each of its fiscal years, for Astec, consolidated and consolidating unaudited balance sheets as at the close of each such period and consolidated and consolidating profit and loss and a statement of cash flows for such quarter and for the period from the beginning of such fiscal year to the end of such quarter, all certified by Astec's Chief Financial Officer.
(c) As soon as available, but in any event within sixty (60) days after the beginning of each fiscal year of Astec, a copy of the plan and forecast (including, without limitation, a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Credit Parties for such fiscal year, certified by Astec's Chief Financial Officer.
(d) Together with the financial statements required under Sections 6.1(a) and (b), a Compliance Certificate.
(e) Within two hundred seventy (270) days after the close of each Plan year, a statement of the Unfunded Liabilities of each Single Employer Plan.
(f) As soon as possible and in any event within five (5) days after any Borrower knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by Astec's Chief Financial Officer, describing said Reportable Event and the action which Astec proposes to take with respect thereto.
(g) Without limitation to Section 6.26, as soon as possible and in any event within ten (10) days after receipt by any Credit Party, a copy of (a) any notice or claim to the effect that any Credit Party is or may be liable to any Person as a result of the Release by any Credit Party, or any other Person of any Hazardous Materials into the environment, and (b) any notice alleging any violation of any Environmental Law by any Credit Party which, in either case, could reasonably be expected to have a Material Adverse Effect.
(h) Promptly upon the furnishing thereof to the shareholders of Astec, copies of all financial statements, reports and proxy statements so furnished.
(i) Promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which Astec files with the Securities and Exchange Commission or with the Federal Trade Commission.
(j) Within 30 days after the end of each calendar month, a Borrowing Base Certificate .
(k) Such other information (including, without limitation, non-financial information) as the Agent or any Lender may from time to time reasonably request.
No such conveyance, transfer or lease of substantially all of the assets of such Borrower or such Credit Party shall have the effect of releasing such Borrower or such Credit Party or any successor corporation that shall theretofore have become such in the manner prescribed in this Section 6.12 from its liability under any Loan Documents to which it is a party.
(a) Short-term obligations of, or fully guaranteed by, the United States of America.
(b) Commercial paper rated A-1 or better by Standard and Poor's Rating Group, a division of McGraw-Hill Corporation or P-1 or better by Moody's Investors Service, Inc.
(c) Demand deposit accounts maintained in the ordinary course of business.
(d) Certificates of deposit issued by and time deposits with commercial banks (whether domestic or foreign) having capital and surplus in excess of $100,000,000.
(e) Existing Investments in Subsidiaries and other Investments in existence on the date hereof and described in Schedule 5.8 hereto.
(f) Additional Investments or capital contributions in AFS, subsequent to the Closing Date not to exceed $20,000,000 in the aggregate.
(g) Investments in (i) Securitization Subsidiaries in an aggregate amount not to exceed $5,000,000, (b) captive insurance companies of the Borrowers in an aggregate amount not to exceed $6,000,000 and (iii) other domestic Wholly-Owned Subsidiaries of Astec, other than AFS.
(h) Such other Investments, subject to the reasonable approval of the Required Lenders.
(i) Permitted Acquisitions by Astec; provided, however, that (i) the aggregate purchase price (including any portion thereof that is deferred) of such Acquisitions, including consideration in the form of cash, cash equivalents and common stock and assumed Indebtedness and Indebtedness paid at the time of the consummation thereof, does not exceed $60,000,000 during any one fiscal year, (ii) the aggregate purchase price (including any portion thereof that is deferred) of such Acquisitions, including consideration in the form of cash and cash equivalents only and assumed Indebtedness and Indebtedness paid at the time of the consummation thereof, does not exceed $25,000,000 during any one fiscal year, (iii) no Unmatured Default or Default has occurred and is continuing or will result therefrom and Astec submits a certificate to the Agent at the time of the consummation of each such Acquisition to such effect and certifying that the Credit Parties are and will be in compliance on a pro forma basis with the financial and other covenants hereunder after giving effect to such Acquisition, (iv) 100% of the outstanding capital stock or other equity interests in each Subsidiary acquired or formed in connection with each such Acquisition shall be and, except as permitted by Section 6.13, shall remain directly owned by Astec, and (v) the Collateral Agent, for the ratable benefit of the Agent, the Lenders and the holders of the Senior Notes, shall have, pursuant to the Pledge Agreement, a perfected first priority security interest in 100% of the capital stock or other equity interests in each Domestic Subsidiary acquired or formed in connection with each such Acquisition and 65% (or such greater percentage in which a security interest may be granted without resulting in adverse tax consequences to Astec under the Code as in effect from time to time) of each Foreign Subsidiary acquired or formed in connection with each such Acquisition, and Astec shall deliver to the Agent a supplement to Schedule A to the Pledge Agreement describing such capital stock or other equity interests, the certificates, if any, representing such capital stock or other equity interests, customary duly executed blank stock powers with respect thereto and such other documentation as the Agent shall request to effect the perfection of such security interest, together with such evidence of requisite corporate action and opinions of counsel as the Agent may reasonably request.
(a) Liens for taxes, assessments or governmental charges or levies on its Property in the ordinary course of business if the same shall not at the time be delinquent or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with Agreement Accounting Principles shall have been set aside on its books.
(b) Liens imposed by law, such as carriers', warehousemen's and mechanics' liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than sixty (60) days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves shall have been set aside on its books.
(c) Liens arising out of pledges or deposits under worker's compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation.
(d) Utility easements, building restrictions and such other encumbrances or charges against real property as are of a nature generally existing with respect to properties of a similar character and which do not in any material way affect the marketability of the same or interfere with the use thereof in the business of any Credit Party.
(e) Liens existing on the date hereof and described in Schedule 5.15 hereto.
(f) Liens securing Indebtedness permitted under Section 6.11(e); provided, however, that such Liens encumber only assets purchased in connection with any such Acquisition and not any other Property of any Credit Party.
(g) Liens arising under the Pledge Agreement.
(h) Liens securing the Obligations.
(i) Liens arising out of (i) Permitted Recourse Lease Sales or (ii) permitted sales by AFS of financing or operating leases (including Qualifying Operating Leases and Qualifying Financing Leases) or other chattel paper (including Qualifying Chattel Paper) on a non-recourse basis; provided, however, that such Liens pertain only to assets purchased in connection with such sales.
(j) Purchase money security interests on any Property acquired or held by the Company or its Subsidiaries, securing Indebtedness incurred or assumed for the purpose of financing all or any part of the cost of acquiring such Property; provided that (i) any such Lien attaches to such Property concurrently with or within 20 days after the acquisition thereof, (ii) such Lien attaches solely to the Property so acquired in such transaction, (iii) the principal amount of the debt secured thereby does not exceed 100% of the cost of such Property, and (iv) the principal amount of the Indebtedness secured by any and all such purchase money security interests shall not at any time exceed $10,000,000.
(k) Liens upon assets of any Securitization Subsidiary relating to any Permitted Securitization.
(l) Liens granted by Kolberg-Pioneer, Inc. in its assets in favor of Astec Holdings, Inc. or another Credit Party securing intercompany loans made to Kolberg-Pioneer, Inc. in connection with the Portec Acquisition.
(m) Liens granted by Breaker Technology, Inc. and Breaker Technology, Ltd., in their respective assets in favor of Astec Holdings, Inc. or another Credit Party securing intercompany loans made to Breaker Technology, Inc. and Breaker Technology, Ltd. in connection with the acquisition of certain assets from Teledyne Industries Canada Limited and Teledyne CM Products, Inc.
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(a) use and operate all of its facilities and properties in compliance with all Environmental Laws, keep all necessary environmental permits, approvals, certificates and licenses in effect and remain in compliance therewith, and handle all Hazardous Materials in compliance with all applicable Environmental Laws;
(b) immediately notify the Lenders and provide copies upon receipt of all written claims, complaints, notices or inquiries relating to the environmental condition of its facilities and properties or compliance with Environmental Laws, and promptly cure and have dismissed with prejudice any such actions and proceedings to the satisfaction of the Lenders; and
(c) provide such information and certifications which any Lender may reasonably request from time to time to insure compliance with this Section 6.26.
(a) the issuance by any court or governmental agency or authority of any injunction, order, decision or other restraint prohibiting, or having the effect of prohibiting, the making of the Advances or other Credit Extensions or the initiation of any litigation or similar proceeding seeking any such injunction, order or other restraint; and
(b) the filing or commencement of any action, suit or proceeding against any Credit Party whether at law or in equity or by or before any court or any federal, state, municipal or other governmental agency or authority and which, if adversely determined against any Credit Party, as the case may be, is likely to (in such Borrower's reasonable judgment) result in liability in excess of $2,000,000 in the aggregate.
The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of any Credit Party to the Lenders or the Agent under or in connection with this Agreement, any other Loan Document, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false or misleading on the date as of which made.
7.2. Nonpayment of (a) principal of any Note or of any Reimbursement Obligation when due (including, without limitation, failure to make any payment required by Section 2.1.3), or (b) interest upon any Note or of any commitment fee or other obligation under any of the Loan Documents within five (5) days after the same becomes due.
7.3. The breach by any Borrower of any of the terms or provisions of any of Sections 6.2, 6.4, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.22.1, 6.22.2, 6.22.3, 6.22.4, 6.23, 6.24 or 6.28.
7.4. The breach by any Borrower (other than a breach which constitutes a Default under Section 7.1, 7.2 or 7.3) of any of the terms or provisions of this Agreement which is not remedied within twenty (20) days after written notice from the Agent or any Lender, provided that if such breach is not capable of being cured within such twenty (20) day period, such cure period shall be extended for a period of sixty (60) additional days so long as such Borrower has diligently begun to cure such breach and diligently pursues such cure thereafter.
7.5. Failure of any Credit Party to pay any Indebtedness, including, without limitation, the Senior Notes and any Contingent Obligation, when due; or the default by any Credit Party in the performance of any term, provision or condition contained in any agreement under which any Indebtedness, including, without limitation, any Contingent Obligation, was created or is governed, after the expiration of all applicable cure periods, or any other event shall occur or condition exist, the effect of which is to cause, or to permit the holder or holders of such Indebtedness to cause, such Indebtedness to become due prior to its stated maturity; or any Indebtedness of any Credit Party shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment) prior to the stated maturity thereof; or any Credit Party shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party shall (a) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect or similar state or foreign laws, (b) make an assignment for the benefit of creditors, (c) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (d) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or similar state or foreign laws, or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (e) take any corporate action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (f) fail to contest in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party, a receiver, trustee, examiner, liquidator or similar official shall be appointed for any Credit Party or any Substantial Portion of their respective Property, or a proceeding described in Section 7.6(d) shall be instituted against any Credit Party and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of sixty (60) consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of (each a "Condemnation"), all or any portion of the Property of any Credit Party which, when taken together with all other Property of the Credit Parties so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion of.
7.9. Any Credit Party shall fail within thirty (30) days to pay, bond or otherwise discharge one or more (a) judgments or orders for the payment of money in excess of $500,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (b) nonmonetary judgments or orders which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not stayed on appeal or otherwise being appropriately contested in good faith.
7.10. The Unfunded Liabilities of all Single Employer Plans shall exceed in the aggregate $5,000,000, any Reportable Event shall occur in connection with any Plan or any Credit Party or any member of the Controlled Group incurs liability under a Foreign Plan which could have a Material Adverse Effect.
7.11. Any Credit Party or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by any Credit Party or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $500,000 or requires payments exceeding $100,000 per annum.
7.12. Any Credit Party or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of such Credit Party and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $1,000,000.
7.13. Any Credit Party shall be the subject of any proceeding pertaining to the release by (i) any Credit Party, (ii) any Person acting on any Credit Party's behalf or (iii) any predecessor in interest to the assets and properties of any Credit Party of Hazardous Material into the environment, or any violation of any Environmental Laws which, in either case, could have a Material Adverse Effect.
7.14. Any Change in Control shall occur.
7.15. The occurrence of any "default" or "event of default", as defined in any Loan Document (other than this Agreement) or the breach of any of the terms or provisions of any Loan Document (other than this Agreement), which default or breach continues beyond any period of grace therein provided.
7.16. Nonpayment by any Credit Party of any Rate Hedging Obligation or the breach by any Credit Party of any term, provision or condition contained in any agreement, device or arrangement giving rise to any Rate Hedging Obligation.
7.17. The Agent shall fail to have a valid and perfected first priority security interest in all of the capital stock or other equity interests of each Subsidiary of Astec (or such lesser amount in the case of Foreign Subsidiaries as is required by this Agreement) and in all other Collateral, except as permitted by the terms of the Pledge Agreement, the Pledge Agreement shall fail to remain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or unenforceability thereof, or Astec shall fail to comply with any of the terms or provisions of the Pledge Agreement.
7.18. An event shall have occurred that could give rise to a Material Adverse Effect.
7.19. The representations and warranties set forth in Section 5.18 shall at any time not be true and correct.
7.20. Any of the Loan Documents shall cease, for any reason, to be in full force and effect, or any party to any Loan Document shall so assert.
(a) If any Default described in Section 7.6 or 7.7 occurs with respect to any Credit Party, (i) the obligations of the Lenders to make Loans hereunder and the obligations of the Issuer to issue Facility Letters of Credit shall automatically terminate and the Obligations shall immediately become due and payable without presentment, demand, protest or notice of any kind, all of which each Borrower hereby expressly waives and without any election or action on the part of the Agent or any Lender and (ii) each Borrower will be and become thereby unconditionally obligated, without the need for demand or the necessity of any act or evidence, to deliver to the Agent, at its address specified pursuant to Article XIII, for deposit into the Letter of Credit Collateral Account, an amount (the "Collateral Shortfall Amount") equal to the excess, if any, of
(A) 100% of the sum of the aggregate maximum amount remaining available to be drawn under the Facility Letters of Credit (assuming compliance with all conditions for drawing thereunder) issued by the Issuer and outstanding as of such time, over
(B) the amount on deposit in the Letter of Credit Collateral Account at such time that is free and clear of all rights and claims of third parties and that has not been applied by the Lenders against the Obligations.
(b) If any Default occurs and is continuing (other than a Default described in Section 7.6 or 7.7), (i) the Required Lenders may terminate or suspend the obligations of the Lenders to make Loans and the obligation of the Issuer to issue Facility Letters of Credit hereunder, or declare the Obligations to be due and payable, or both, whereupon the Obligations shall become immediately due and payable, without presentment, demand, protest or notice of any kind, all of which the Borrowers hereby expressly waive and (ii) the Required Lenders may, upon notice delivered to Astec and in addition to the continuing right to demand payment of all amounts payable under this Agreement, make demand on Astec to deliver (and Astec will, forthwith upon demand by the Required Lenders and without necessity of further act or evidence, be and become thereby unconditionally and jointly and severally obligated to deliver), to the Agent, at its address specified pursuant to Article XIII, for deposit into the Letter of Credit Collateral Account an amount equal to the Collateral Shortfall Amount.
(c) If at any time while any Default is continuing, the Agent determines that the Collateral Shortfall Amount at such time is greater than zero, the Agent may make demand on Astec to deliver (and Astec will, forthwith upon demand by the Agent and without necessity of further act or evidence, be and become thereby unconditionally obligated to deliver), to the Agent as additional funds to be deposited and held in the Letter of Credit Collateral Account an amount equal to such Collateral Shortfall Amount at such time.
(d) The Agent may at any time or from time to time after funds are deposited in the Letter of Credit Collateral Account, apply such funds to the payment of the Obligations and any other amounts as shall from time to time have become due and payable by the Borrowers to the Lenders under the Loan Documents.
(e) At any time while any Default is continuing, neither the Borrowers nor any Person claiming on behalf of or through the Borrowers shall have any right to withdraw any of the funds held in the Letter of Credit Collateral Account. After all of the Obligations have been indefeasibly paid in full, any funds remaining in the Letter of Credit Collateral Account shall be returned by the Agent to Astec or paid to whoever may be legally entitled thereto at such time.
(f) The Agent shall exercise reasonable care in the custody and preservation of any funds held in the Letter of Credit Collateral Account and shall be deemed to have exercised such care if such funds are accorded treatment substantially equivalent to that which the Agent accords its own property, it being understood that the Agent shall not have any responsibility for taking any necessary steps to preserve rights against any Persons with respect to any such funds.
(a) Extend the maturity of any Loan or Note or forgive all or any portion of the principal amount thereof, or reduce the rate or extend the time of payment of interest or fees thereon.
(b) Reduce or extend the Reimbursement Obligations, or reduce the rate or change the time of payment of any fees related to Facility Letters of Credit or Swing Line Loans;
(c) Reduce the percentage specified in the definition of Required Lenders.
(d) Extend the Facility Termination Date, or reduce the amount or extend the payment date for the scheduled or mandatory commitment reductions or prepayments required under Sections 2.1.3 and 2.4, or increase the amount of the Revolving Commitment, the Tranche A Commitment or the Tranche B Commitment of any Lender hereunder, or permit either Borrower to assign its rights under this Agreement.
(e) Amend this Section 8.2.
No amendment of any provision of this Agreement relating to the Agent, the Issuer or the Swing Line Lender shall be effective without the written consent of the Agent, the Issuer or the Swing Line Lender, as the case may be. The Agent may waive payment of the fee required under Section 12.3.2 without obtaining the consent of any other party to this Agreement.
(a) The singular number includes the plural number and vice versa;
(b) Reference to any Person includes such Person's successors and assigns but, if applicable, only if such successors and assigns are permitted by the Loan Documents, and reference to a Person in a particular capacity excludes such Person in any other capacity;
(c) reference to either gender includes the other gender;
(d) reference to any agreement (including this Agreement and the Schedules and Exhibits and the other Loan Documents), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof and the other Loan Documents, and reference to any promissory note includes any promissory note which is an extension or renewal thereof or a substitute or replacement therefor; and
(e) reference to any law, rule, regulation, order, decree, requirement, policy, guideline, directive or interpretation means as amended, modified, codified, replaced or reenacted, in whole or in part, and in effect on the determination date, including rules and regulations promulgated thereunder.
This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart. This Agreement shall be effective when (a) it has been executed by the Borrowers, the Agent and the Lenders and each party has either notified the Agent, by telex or telephone, that it has taken such action and (b) the conditions precedent set forth in Section 4.1 have been satisfied.
In Witness Whereof, the Borrowers, the Lenders and the Agent have executed this Agreement as of the date first above written.
ASTEC INDUSTRIES, INC.
By:
Print Name:
Title:
Address: 4101 Jerome Avenue
Chattanooga, Tennessee 37407
Facsimile: (423) 867-4127
Telephone: (423) 867-4210
Attention: F. McKamy Hall
ASTEC FINANCIAL SERVICES, INC.
By:
Print Name:
Title:
Address: 1725 Shepherd Road
Chattanooga, Tennessee 37421
Facsimile: (423) 899-4456
Telephone: (423) 899-5898
Attention: Albert E. Guth
BANK ONE, NA,
individually and as Agent
By:
Print Name:
Title:
Address: 1 Bank One Plaza
Chicago, Illinois 60670
Facsimile: (312) 732-5296
Telephone: (312) 732-5730
Attention: David T. McNeela
SUNTRUST BANK
By:
Print Name:
Title:
Address: 201 Fourth Avenue North
Nashville, Tennessee 37219
Facsimile: (615) 748-5269
Telephone: (615) 748-5745
Attention: Jim Sloan
AMSOUTH BANK
By:
Print Name:
Title:
Address: 601 Market Center
Chattanooga, Tennessee 37402
Facsimile: (423) 752-1558
Telephone: (423) 752-1535
Attention: Tracy Brown
BRANCH BANK & TRUST CO.
By:
Print Name:
Title:
Address: Corporate Accounts Division
P.O. Box 15008
Winston-Salem, North Carolina
27113
Facsimile: (336) 733-3254
Telephone: (336) 733-3251
Attention: James Stallings
FIRSTAR BANK
By:
Print Name:
Title:
Address: 150 Fourth Avenue North, 2d Floor
Nashville, Tennessee 37219
Facsimile: (615) 251-9247
Telephone: (615) 251-9280
Attention: Russell Rogers
Schedule 1
Revolving Commitments/Percentages
|
|
Revolving Commitment |
Tranche A |
Tranche B |
|
|
Bank One, NA |
$40,000,000 |
$40,000,000 |
$16,000,000 |
32.00% |
|
Suntrust |
$30,000,000 |
$30,000,000 |
$12,000,000 |
24.00% |
|
AmSouth Bank |
$25,000,000 |
$25,000,000 |
$10,000,000 |
20.00% |
|
Branch Bank & Trust Co. |
$15,000,000 |
$15,000,000 |
$6,000,000 |
12.00% |
|
Firstar Bank |
$15,000,000 |
$15,000,000 |
$6,000,000 |
12.00% |
|
Total |
$125,000,000 |
$125,000,000* |
$50,000,000* |
100% |
*The Tranche A Commitment and Tranche B Commitment of any Lender are sublimits of the Revolving Commitment of such Lender and the obligation of any Lender to make Loans under the Tranche A Commitment and the Tranche B Commitment is limited by the Revolving Commitment of such Lender and the limitations, terms and conditions set forth in Section 2.1.