Exhibit 10.6
WAIVER, FIFTH AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
AND REAFFIRMATION OF
GUARANTIES
THIS WAIVER, FIFTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT AND REAFFIRMATION OF
GUARANTIES, dated as of February 9, 2009 (this “
Fifth Amendment ”), is entered into by and between
Quixote Corporation, a Delaware corporation (the “
Borrower ”), whose address is 35 East Wacker Drive,
Chicago, Illinois 60601, and Quixote Transportation
Safety, Inc., Transafe Corporation, Energy Absorption
Systems, Inc., Energy Absorption Systems (AL) LLC, Surface
Systems, Inc., Nu-Metrics, Inc., and Highway Information
Systems, Inc., as Subsidiary Guarantors, (each being referred
to herein as a “ Guarantor ” and collectively
referred to herein as the “ Guarantors ”), and
Bank of America, N.A., as successor by merger to LaSalle Bank
National Association, a national banking association (the “
Lender ”), whose address is 135 South LaSalle Street,
Chicago, Illinois 60603.
R E C I TAL S:
A.
Borrower and Lender entered into that certain Amended and Restated
Credit Agreement, dated as of April 20, 2005 (the “
Original Credit Agreement ”), as amended by that
certain First Amendment to Amended and Restated Credit Agreement
and Reaffirmation of Guaranties dated as of December 1, 2006,
(the “ First Amendment ”), that certain Second
Amendment to Amended and Restated Credit Agreement and
Reaffirmation of Guaranties dated as of March 15, 2007 (the
“ Second Amendment ”), that certain Third
Amendment to Amended and Restated Credit Agreement and
Reaffirmation of Guaranties dated as of November 7, 2007 (the
“ Third Amendment ”) and that certain Fourth
Amendment to Amended and Restated Credit Agreement and
Reaffirmation of Guaranties dated as of November 7, 2008 (the
“ Fourth Amendment ”, and together with the
Original Credit Agreement, the First Amendment, the Second
Amendment and the Third Amendment, the “ Credit
Agreement ”) pursuant to which Credit Agreement Lender
has made a Revolving Loan to Borrower evidenced by that certain
Amended and Restated Revolving Loan Note, dated as of
November 7, 2007, in the maximum principal amount of
$40,000,000, executed by Borrower and made payable to the order of
Lender (the “ Revolving Note ”).
B.
In connection with the Original Credit Agreement, the Guarantors
executed and delivered to Lender that certain Guaranty dated as of
May 16, 2003 in favor of Lender, as amended by that
Reaffirmation and Amendment of Subsidiary Guaranty dated as of
April 20, 2005 (the “ Guaranty
”).
C.
Borrower has failed to comply with Section 7.4(D) and
7.4(E) of the Credit Agreement for the period ending
December 31, 2008 (the “ Existing Defaults
”). Borrower has requested that Bank waive the Existing
Defaults and Bank has agreed to waive the Existing Defaults on the
terms and conditions set forth herein.
D.
Borrower and the Guarantors have also requested, and Lender has
agreed to, the modification of certain terms contained in the
Credit Agreement as set forth herein, all pursuant to the terms and
conditions hereinafter set forth herein.
NOW THEREFORE, in consideration of
the premises and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, Borrower, the
Guarantors and Lender hereby agree as follows:
A G R E E MEN T S:
1.
RECITALS . The foregoing Recitals are hereby made a
part of this Fifth Amendment.
2.
DEFINITIONS . Capitalized words and phrases used
herein without definition shall have the respective meanings
ascribed thereto in the Credit Agreement.
3.
WAIVER . Subject to the terms hereof, Lender, hereby
waives the Existing Defaults. Lender and Borrower hereby
agree that the foregoing waiver of the Existing Defaults shall in
no way be deemed to be a waiver or forbearance of any other
default, any Unmatured Default or any other Event of Default,
whether now existing or hereafter arising, under the Credit
Agreement (whether occurring before or after giving effect to this
Fifth Amendment) or any other Loan Document.
4.
AMENDMENTS TO THE CREDIT AGREEMENT .
4.1
Section 1.1 of the Credit Agreement .
(a)
The definition of “Revolving Loan Commitment” in
Section 1.1 of the Credit Agreement is hereby deleted in its
entirety and restated as follows:
“Revolving Loan
Commitment” means the obligation of Lender to make Revolving
Loans and to issue Letters of Credit in an aggregate amount not
exceeding Fifteen Million and 00/100 Dollars ($15,000,000) as such
amount may be modified from time to time pursuant to these the
terms of this Agreement.
(b)
The definition of “Revolving Loan Termination Date: is hereby
deleted in its entirety and replaced with the following:
“Revolving Loan Termination
Date” means November 1, 2009.
4.2
Section 2.13 of the Credit Agreement .
Section 2.13(D)(ii) is hereby amended by deleting the
existing pricing grid in its entirety and replacing it with the
following:
|
Level
|
|
Maximum
Total Leverage
Ratio
|
|
Applicable
Eurodollar
Margin/L/C Fee
Percentage
|
|
Applicable ABR
Margin
|
|
Commitment
Fee
Percentage
|
|
|
V
|
|
>5.00
|
|
3.75
|
%
|
3.75
|
%
|
0.75
|
%
|
|
IV
|
|
>4.00 BUT < 5.00
|
|
3.25
|
%
|
3.25
|
%
|
0.75
|
%
|
|
III
|
|
>3.00 BUT < 4.00
|
|
2.75
|
%
|
2.75
|
%
|
0.50
|
%
|
|
II
|
|
>2.00 BUT < 3.00
|
|
2.25
|
%
|
2.25
|
%
|
0.50
|
%
|
|
I
|
|
< 2.00
|
|
1.75
|
%
|
1.75
|
%
|
0.375
|
%
|
4.3
Section 7.3(F) of the Credit Agreement .
Section 7.3(F) of the Credit Agreement is hereby deleted
in its entirety and restated as follows:
(F)
Restricted Payments
. The Borrower shall not
declare or make any Restricted Payments without the prior written
consent of the Lender.
4.4
Revolving Note . All references in the Credit
Agreement to the Revolving Note
2
in the form of
“Exhibit G” to the Credit Agreement shall be
deemed to be references to the Second Amended and Restated
Revolving Note in the form of Exhibit A attached hereto
and made a part hereof (the “ Second Amended Note
”).
5.
REAFFIRMATION OF GUARANTIES . Each of the Guarantors
hereby expressly (a) consents to the execution by Borrower and
Lender of this Fifth Amendment, (b) acknowledges that the
“Guaranteed Debt” (as defined in each of the
Guaranties) includes all of the obligations and liabilities owing
from Borrower to Lender, including, but not limited to, the
obligations and liabilities of Borrower to Lender under and
pursuant to the Credit Agreement, as amended from time to time, and
as evidenced by the Revolving Note, as modified, extended and/or
replaced from time to time, (c) reaffirms, assumes and binds
themselves in all respects to all of the obligations, liabilities,
duties, covenants, terms and conditions that are contained in their
respective Guaranty, (d) agrees that all such obligations and
liabilities under their respective Guaranty shall continue in full
force and effect and shall not be discharged, limited, impaired or
affected in any manner whatsoever, and (e) represents and
warrants that each of the representations and warranties made by
such Guarantor in any of the documents executed in connection with
the Loans remain true and correct as of the date hereof.
6.
REPRESENTATIONS AND WARRANTIES . To induce Lender to
enter into this Fifth Amendment, Borrower and each Guarantor hereby
certifies, represents and warrants to Lender that:
6.1
Organization . Borrower and each Guarantor is a
corporation or a limited liability company duly organized, existing
and in good standing under the laws of its state or organization
with full and adequate corporate or limited liability power, as the
case may be, to carry on and conduct its business as presently
conducted. Borrower and each Guarantor is duly licensed or
qualified in all foreign jurisdictions wherein the nature of its
activities require such qualification or licensing. The
Articles of Incorporation or Organization, as the case may be,
Bylaws (other than an amendment to the By-laws of Borrower dated
July 24, 2008) or Operating Agreement, as the case may be,
Resolutions and Incumbency Certificate of Borrower and each
Guarantor have not been changed or amended since the certified
copies thereof were delivered to Lender in connection with the
Original Credit Agreement and the First Amendment. The state
issued organizational identification number for Borrower and each
Guarantor is listed on Schedule I hereto. The exact
legal name of Borrower and each Guarantor is as set forth in the
preamble of this Fifth Amendment, and neither Borrower nor any
Guarantor currently conducts, nor has it during the last five
(5) years conducted, business under any other name or trade
name. Neither Borrower nor any Guarantor will change its
name,
