SIXTH AMENDMENT OF AND WAIVER
UNDER AMENDED AND RESTATED
REVOLVING CREDIT
AGREEMENT
THIS SIXTH AMENDMENT OF AND WAIVER
UNDER AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this “
Amendment ”) is entered into effective October
14, 2008, between ALAMO GROUP INC., a Delaware corporation (“
Borrower ”), each of the banks or other lending
institutions that is a signatory to this Amendment (collectively,
“ Lenders ”), and BANK OF AMERICA, N.A.,
a national banking association, as Administrative Agent (in such
capacity, together with its successors and permitted assigns,
“ Administrative Agent ”).
R
E C I
T A L S
A.
Reference is hereby made to that certain Amended and Restated
Revolving Credit Agreement dated as of August 25, 2004, by and
among Borrower, Lenders, and Administrative Agent (as renewed,
extended, modified, and amended from time to time, the “
Credit Agreement ”), providing for a revolving
line of credit and a letter of credit facility.
B.
Borrower has informed Administrative Agent and Lenders that (a)
Borrower intends to (i) convert the current Obligated Group
member, Alamo Group (TX), L.P. into a corporation with the
name of Alamo Industrial, Inc., a corporation organized under the
laws of the State of Texas (the “ Conversion
”) and (ii) dissolve Alamo Capital LLC, Alamo Group Holdings,
L.L.C., ALG Holdings, L.L.C., ALG Personnel Management, L.L.C.,
Electronic Parts Counter, Inc., Hershel-Adams Inc., and Vacall
Industries, Inc. (collectively, the “
Dissolutions ”), and (b) Borrower previously
merged Alamo Group (KS) Inc. with and into Henke Manufacturing
Corporation (the “ Merger ”).
C.
Borrower has requested that Administrative Agent and Lenders agree
to release Vacall Industries, Inc., Alamo Group (KS) Inc., Alamo
Group Holdings, L.L.C., Hershel-Adams Inc., and Alamo Capital LLC
from their respective Guaranties (the “ Guarantor
Release ”).
D.
Capitalized terms used herein shall, unless otherwise indicated,
have the respective meanings set forth in the Credit
Agreement.
E.
Borrower, Lenders, and Administrative Agent desire to modify
certain provisions contained in the Credit Agreement, subject to
the terms and conditions set forth herein.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as
follows:
1.
Amendments to the Credit Agreement.
(a)
Section 1 of the
Credit Agreement is hereby amended to delete the definitions of
“ Obligated Group ” and “Operating
Cash Flow” in their entirety and replace such definitions
with the following:
Sixth Amendment
“ Obligated
Group ” means the Company, Alamo Group (IA) Inc., a
Nevada corporation; Alamo Group (SMC) Inc., a Nevada corporation;
Alamo Industrial, Inc., a Texas corporation, successor in interest
by conversion to Alamo Group (TX) L.P.; Alamo Group (USA) Inc., a
Delaware corporation; Alamo Sales Corp., a Delaware corporation;
Alamo Group (IL) Inc., a Delaware corporation, f/k/a M&W Gear
Company; Schulte (USA) Inc., a Florida corporation; Schwarze
Industries, Inc., an Alabama corporation; Tiger Corporation, a
Nevada corporation; Alamo Group Services Inc., a Delaware
corporation; Gradall Industries, Inc., formerly known as Alamo
Group (OH) Inc., a Delaware corporation; NP Real Estate Inc., an
Ohio corporation; Henke Manufacturing Corporation, a Kansas
corporation; Nite-Hawk Sweepers, LLC, a Washington limited
liability company; and any such other Person that the Company
requests be included in the Obligated Group on the prior written
approval of the Required Lenders, which approval shall not be
unreasonably withheld.
“ Operating Cash
Flow ” means, for the Company and its Consolidated
Subsidiaries, for any period, the sum of Net Income,
less income or plus loss from discontinued operations
and extraordinary items, less gains or plus losses from the
sale of assets, plus income tax expense, plus
interest expense, plus depreciation, depletion, amortization
and other non-cash charges, plus Target Operating Cash Flow,
and plus the Rivard Operating Cash Flow with respect to such
period, each as determined in accordance with GAAP and each for the
twelve (12) month period ended as of the date of
determination.
(b)
Section 1 of the
Credit Agreement is hereby amended to add the following new
definition in the correct alphabetical order:
“ Rivard Operating Cash
Flow ” means an amount equal to (a) as of the fiscal
quarter ended June 30, 2008, $4,725,000, (b) as of the fiscal
quarter ended September 30, 2008, $ 3,803,000, (c) as of the fiscal
quarter ended December 31, 2008, $1,896,000, (d) as of the fiscal
quarter ended March 31, 2009, $871,000, and (e) for the fiscal
quarter ended June 30, 2009, and each quarter thereafter, the
actual Operating Cash Flow of Rivard Developpment SAS, a French
Societe Par Actions Simplifee for the four (4) quarter period ended
immediately prior to the date of determination.
2.
Amendment of Credit Agreement and Other Loan
Documents.
(a) All
references in the Loan Documents to the Credit Agreement shall
include references to the Credit Agreement as modified and amended
by this Amendment, and as may, from time to time, be further
modified, amended, restated, extended, renewed, and/or
increased.
(b) All
references in the Loan Documents to any Original Note shall include
references to the Amended and Restated Notes as modified and
amended by this Amendment, and as may, from time to time, be
further modified, amended, restated, extended, renewed, and/or
increased.
(c) Any
and all of the terms and provisions of the Loan Documents are
hereby amended and modified wherever necessary, even though not
specifically addressed herein, so as to conform to the amendments
and modifications set forth herein.
3.
Consents and Waivers.
(a)
Section 9.07 of the Credit Agreement would prohibit
the Conversion, the Dissolution, and the Merger. Subject to the
terms and conditions of this Amendment, Required Lenders hereby
consent to the Conversion, the Dissolutions, and the Merger, and
waive any Potential Default or Event of Default that would arise
solely as a result of the Conversion, the Dissolution, or the
Merger.
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(b)
Section 12.01(a) of the Credit Agreement would
prohibit the Guarantor Release without the consent of all Lenders.
Each of the Lenders hereby consent to the Guarantor Release, and
hereby authorize Administrative Agent to execute, on behalf of
Lenders, such documents as Administrative Agent deems necessary to
effect such Guarantor Release.
4.
Ratifications. Borrower
(a) ratifies and confirms all provisions of the Loan Documents as
amended by this Amendment, (b) ratifies and confirms that all
guaranties, assurances, and Liens granted, conveyed, or assigned to
Administrative Agent for the benefit of Lenders under the Loan
Documents are not released, reduced, or otherwise adversely
affected by this Amendment and continue to guarantee, assure, and
secure full payment and performance of the present and future
Obligation (except (i) to the extent specifically limited by the
terms of such Guaranties, assurances or Liens (if any), or (ii) as
otherwise permitted in this Amendment), and (c) agrees to
perform such acts and duly authorize, execute, acknowledge,
deliver, file, and record such additional documents, and
certificates as Administrative Agent and Lenders may reasonably
request in order to creat
