Exhibit 10.5
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED
CREDIT FACILITY AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT FACILITY
AND
SECURITY AGREEMENT (the "First Amendment") is made effective as of
March 9,
2006, by and among JP MORGAN CHASE BANK, N.A. (successor by merger
to Bank One,
N.A.), with an office located at 1300 East Ninth Street, FL 13,
Cleveland, Ohio
44114 ("Lender"), and CONTINENTAL CONVEYOR & EQUIPMENT COMPANY,
a Delaware
corporation ("Continental"), with its principal place of business
and executive
offices located at 216 West 4th Avenue, South, P. O. Box 400,
Winfield, Alabama
35594, and GOODMAN CONVEYOR COMPANY, a Delaware corporation
("Goodman"), with
its principal place of business and executive offices located at
U.S. Route 178
South, P. O. Box 866, Belton, South Carolina 29627 (each of
"Continental" and
"Goodman" being sometimes referred to herein individually as a
"Borrower" and
collectively as the "Borrowers").
RECITALS
A. The
Borrower and Lender, entered into a Second Amended And
Restated Credit Facility and Security Agreement, dated as of
October 4, 2004 (the "Credit Agreement"), pursuant to which
Lender agreed to make available to the Borrower a loan of up
to $35,000,000.00. Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to them in
the Credit Agreement.
B. The
Borrower has requested the extension of the maturity date
of, and certain other amendments to, the Credit Agreement.
C. To
secure the repayment of the loan described herein, Borrower
granted to Lender a continuing security interest in the
Collateral pursuant to the Credit Agreement, together with a
lien granted in certain real property pursuant to the various
Mortgages delivered with respect thereto.
D.
Lender is willing to make the extensions and amendments herein
described, upon the terms, covenants and conditions herein set
forth, and in reliance upon the representations and warranties
of Borrower herein contained.
NOW, THEREFORE, in consideration of the foregoing Recitals (which
are
incorporated herein by reference), the terms, covenants and
conditions
hereinafter set forth, and other good and valuable consideration,
the receipt
and sufficiency of which is hereby acknowledged, the parties agree
as follows:
<PAGE>
1. Amendments.
1.1 Section 1.1 of the Credit Agreement is hereby amended by adding
in
alphabetical order the defined term "Allocated Special Reserves" to
read in its
entirety as follows:
"Allocated Special Reserves" means that portion or all of the
Special Reserves that is allocated in writing by the Borrowers
to either or both the Continental Revolving Commitment and/or
the Goodman Revolving Commitment in a manner other than the
amounts derived from the Pro-Rata Special Reserves; provided,
that the amount of the aggregate Allocated Special Reserves
shall be equal to the amount of the Special Reserves in effect
at that time; provided, further, if the Borrowers make a
written election of Allocated Special Reserves, the Borrowers
may thereafter make another such written election prior to the
beginning of each subsequent calendar quarter, and if no such
election is made prior to the end of a calendar quarter, the
Pro-Rata Special Reserves automatically shall be
re-implemented for the next succeeding calendar quarter.
1.2 Section 1.1 of the Credit Agreement is hereby amended by adding
in
alphabetical order the defined term "Continental Revolving
Commitment" to read
in its entirety as follows:
"Continental Revolving Commitment" means $27,000,000.00, minus
the Pro-Rata Special Reserves or Allocated Special Reserves
(as the case may be) applicable to Continental.
1.3 Section 1.1 of the Credit Agreement is hereby amended by
modifying
the defined term "Borrowing Base" to read in its entirety as
follows:
"Borrowing Base"
means, at any time, with respect to each
Borrower, the sum of (a) 85% of such Borrower's Eligible
Accounts at such time, plus (b) 55% of such Borrower's
Eligible Inventory, valued at the lower of cost or market
value, determined on a first-in-first-out basis, minus (c)
Reserves related to such Borrower, minus (d) any Special
Reserves. The maximum amount of Inventory which may be
included as part of Borrowers' Borrowing Base is $12,000,000
for Continental, and $1,500,000 for Goodman (after the advance
rate is applied). The Lender may, in its Permitted Discretion,
reduce the advance rates set forth above, reduce one or more
of the other elements used in computing the Borrowing Base, or
increase the Reserves. Lender shall provide Borrowers twenty
(20) days advance written notice of any change in the advance
rates, Borrowing Base elements or Reserves, and Borrowers
shall comply with any such change or changes by the twentieth
(20th) day after the date of such notice by repaying any
advances that would otherwise exceed the Borrowing Base as
adjusted by such changes; provided, however, that if the net
effect of such changes in the advance rates, elements and/or
Reserves reduces the Borrowing Base by $1,000,000 or more,
then Borrowers shall comply with such change or changes by the
thirtieth (30th) day after the date of such notice by repaying
any advances that would otherwise exceed the Borrowing Base as
adjusted by such changes.
<PAGE>
1.4 Section 1.1 of the Credit Agreement is hereby amended by
modifying
the defined term "Debt Coverage" to read in its entirety as
follows:
"Debt Coverage" means, on a combined consolidated basis, the
ratio of: (1) Borrowers' operating income, plus depreciation,
amortization and other non-cash items reasonably acceptable to
Lender, less Distributions and cash Taxes paid; to (2) the
amount of all principal and interest paid or payable by the
Borrowers to Lender plus all Capital Expenditures not funded
on a term basis at the end of calculation thereof.
1.5 Section 1.1 of the Credit Agreement is hereby amended by
modifying
the defined term "Distribution" to read in its entirety as
follows:
"Distribution" in respect of a Borrower means:
(i) The payment of any dividends or other distributions,
whether in cash, by transfer of property or otherwise, to or
for the benefit of any shareholder or stockholder or Affiliate
of such Borrower (including, any distribution to or for the
benefit of Global intended for the payment of interest and/or
principal payments toward the Bond Obligations);
(ii) The redemption or acquisition of any Securities of such
Borrower; and
(iii) The payment of any Management Fees.
1.6 Section 1.1 of the Credit Agreement is hereby amended by
modifying
the defined term "Facility Termination Date" by deleting the
reference to "July
31, 2006" in the second line thereof and replacing it with a
reference to "March
31, 2008."
1.7 Section 1.1 of the Credit Agreement is hereby amended by adding
in
alphabetical order the defined term "Goodman Revolving Commitment"
to read in
its entirety as follows:
"Goodman Revolving Commitment" means $3,000,000.00, minus the
Pro-Rata Special Reserves or the Allocated Special Reserves
(as the case may be) applicable to Goodman.
<PAGE>
1.8 Section 1.1 of the Credit Agreement is hereby amended by
modifying the
defined term "Obligations," to read in its entirety as follows:
"Obligations" means all debts, liabilities and obligations of
the Loan Parties to Lender under this Agreement and also any
and all other debts, liabilities and obligations of Loan
Parties to Lender of every kind and description, direct or
indirect, absolute or contingent, due or to become due, now
existing or hereafter arising, including without limiting the
generality of the foregoing, any debt, liability or obligation
of any Loan Party to Lender (or any affiliate of Lender) under
any Guaranty, Letter of Credit and/or Reimbursement
Obligation, Banking Services, Rate Management Transaction, or
of any Loan Party to any other Person which Lender may have
obtained by assignment or otherwise and all interest, fees,
charges and expenses which at any time may be payable by any
Loan Party to Lender.
1.9 Section 1.1 of the Credit Agreement is hereby amended by
modifying
the defined term "Permitted Distributions," to read in its entirety
as follows:
"Permitted Distributions" means, provided that no Event of
Default or Unmatured Default then exists, and the making of
such payment or distribution would not cause an Event of
Default to occur:
(a) the payment of one or more dividends or distributions by
Borrowers to or for the benefit of Global, and in support of
Borrowers' obligations under the Guaranty or Guarantees by
Borrowers of the Bond Obligations, in order to assist Global
in making semi-annual interest payments on the Bond
Obligations pursuant to the Indenture, but only if the
Borrowers are then in compliance with all covenants set forth
in Sections 8.1 and 8.2 of the Credit Agreement both before
and after such proposed Distribution.
(b) the payment of one or more dividends or distributions by
Borrowers to or for the benefit of Global, and in support of
Borrowers' obligations under the Guaranty or Guarantees by
Borrowers of the Bond Obligations, in order to assist Global
in making, effective as of April 1, 2007, a payment not to
exceed $10,700,000 with respect to the Bond Obligations
pursuant to the Indenture, but only if:
i) the Borrowers shall have a Debt Coverage ratio of
not less than 1.2 to 1.0 on a pro-forma basis after
giving affect to a proposed redemption payment to be
made upon the Bon
