Attached files
file | filename |
---|---|
8-K - FORM 8-K - PMFG, Inc. | c16619e8vk.htm |
Exhibit 10.1
SIXTH AMENDMENT TO CREDIT AGREEMENT
This Sixth Amendment to Credit Agreement (Sixth Amendment) is made as of this 6th
day of May, 2011, by and among PMFG, Inc. (Holdings), Borrowers (as defined below), which are
listed on attached Schedule 1, the Lenders (as defined below) signatory hereto and Comerica Bank,
as Agent for the Lenders (in such capacity, the Agent).
RECITALS
A. Holdings, Peerless Mfg. Co. (the Company), PMC Acquisition, Inc. (PMC Acquisition),
and, following the execution and delivery by any other Subsidiary (as defined in the Credit
Agreement), and acceptance by the Agent, from time to time, of a Credit Agreement Joinder Agreement
from such Subsidiary, collectively with the Company, PMC Acquisition and each such Subsidiary, the
Borrowers and each individually, a Borrower) are party to that certain Revolving Credit and
Term Loan Agreement dated April 30, 2008, with the financial institutions from time to time
signatory thereto (individually a Lender, and any and all such financial institutions
collectively the Lenders) and Agent (as amended or otherwise modified from time to time, the
Credit Agreement).
B. Borrowers have requested that Agent and the Lenders make certain amendments to the Credit
Agreement as set forth herein and Agent and the Lenders are willing to do so, but only on the terms
and conditions set forth in this Sixth Amendment.
NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, Borrowers,
Agent and the Lenders agree as follows:
1. The following definition in Section 1 of the Credit Agreement is hereby amended and
restated as follows:
Consolidated Fixed Charges shall mean, as of any date of
determination, the sum, without duplication, of (i) all cash
Consolidated Interest Expense paid or payable by any Credit Party in
respect of such period on the Consolidated Funded Debt and in
respect of Hedging Transactions less interest income (including,
without limitation, income earned under Hedging Transactions plus
losses incurred under Hedging Transactions), in each case for the
four consecutive fiscal quarters ending on the applicable date of
determination plus (ii) all installments of principal or other sums
due and payable by any Credit Party with respect to the Consolidated
Funded Debt (including principal payments in respect of the Term
Loan and the principal component of obligations under Capitalized
Leases, but excluding voluntary prepayments of the Term Loan),
during the four consecutive fiscal quarters ending on the applicable
date of determination plus (iii) all Distributions paid in cash by
any Credit Party during the four consecutive fiscal quarters ending
on the applicable date of
determination (other than Distributions paid to the holders of
Holdings Series A convertible preferred stock that were permitted
to be paid pursuant to Section 8.5(d) of this Agreement, provided,
however that, any such Distributions that were paid during calendar
year 2011 before May 6, 2011, shall be deemed to be permitted under
Section 8.5(d) so long as the Credit Parties were in compliance with
clauses (iii) and (iv) of Section 8.5(d)) plus (iv) all Purchases
made in cash by any Credit Party during the four consecutive fiscal
quarters ending on the applicable date of determination.
2. The Lenders hereby waive any Default or Event of Default arising solely from the Borrowers
failure to comply with (a) Sections 7.9(a) and (b) of the Credit Agreement for the fiscal quarter
ended April 2, 2011, (b) Section 8.5 of the Credit Agreement to the extent Holdings made any
Distributions to holders of its Series A convertible preferred stock during calendar year 2011
before the date hereof at a time when such Section 8.5 would have prohibited such Distributions and
(c) Section 7.7(a) of the Credit Agreement solely for failure to give notice of any Defaults or
Events of Defaults described in the foregoing clauses (a) and (b).
3. This Sixth Amendment shall become effective (according to the terms hereof) on the date
(the Sixth Amendment Effective Date) that the following conditions have been fully satisfied by
Borrowers (the Conditions):
(a) | Agent shall have received via facsimile or electronic mail (followed by the
prompt delivery of original signatures) counterpart originals of this Sixth Amendment,
in each case duly executed and delivered by the Agent, Borrowers and the Lenders. |
(b) | Borrowers shall have paid (i) to the Agent for distribution to each Lender a
nonrefundable amendment fee in an amount equal to ten (10) basis points on such
Lenders Percentage of the Revolving Credit Aggregate Commitment and Term Loan and (ii)
to the Agent all fees and other amounts, if any, that are due and owing to the Agent as
of the Sixth Amendment Effective Date in accordance with the Loan Documents. |
4. Borrowers hereby certify to the Agent and the Lenders as of the Sixth Amendment Effective
Date and after giving effect to this Amendment, that (a) execution and delivery of this Sixth
Amendment and the other Loan Documents required to be delivered hereunder, and the performance by
Borrowers of their obligations under the Credit Agreement as amended hereby (herein, as so amended,
the Amended Credit Agreement) are within the Borrowers powers, have been duly authorized, are
not in contravention of law or the terms of its articles of incorporation or bylaws or other
organizational documents of the parties thereto, as applicable, and except as have been previously
obtained do not require the consent or approval, material to the amendments contemplated in this
Sixth Amendment, of any governmental body, agency or authority, and the Amended Credit Agreement
and the other Loan Documents required to be delivered hereunder will constitute the valid and
binding obligations of such undersigned parties enforceable in accordance with its terms, except as
enforcement thereof may be limited
by applicable bankruptcy, reorganization, insolvency, moratorium, ERISA or similar laws
affecting the enforcement of creditors rights generally and by general principles of equity
(whether enforcement is sought in a proceeding in equity or at law), (b) the representations and
warranties set forth in Section 6 of the Amended Credit Agreement are true and correct on and as of
the Sixth Amendment Effective Date (except to the extent such representations specifically relate
to an earlier date), and (c) on and as of the Sixth Amendment Effective Date, after giving effect
to this Sixth Amendment, no Default or Event of Default shall have occurred and be continuing.
2
5. Except as specifically set forth above, this Sixth Amendment shall not be deemed to amend
or alter in any respect the terms and conditions of the Amended Credit Agreement (including without
limitation all conditions and requirements for Advances and any financial covenants), any of the
Notes issued thereunder or any of the other Loan Documents. Except as specifically set forth above,
this Sixth Amendment shall not constitute a waiver or release by the Agent or the Lenders of any
right, remedy, Default or Event of Default under or a consent to any transaction not meeting the
terms and conditions of the Amended Credit Agreement, any of the Notes issued thereunder or any of
the other Loan Documents or affect in any manner whatsoever any rights or remedies of the Lenders
with respect to any non-compliance by Borrowers or any Guarantor with the Amended Credit Agreement
or the other Loan Documents, whether in the nature of a Default or Event of Default, and whether
now in existence or subsequently arising, and shall not apply to any other transaction. Borrowers
hereby confirm that each of the Collateral Documents continues in full force and effect and
secures, among other things, all of its obligations, liabilities and indebtedness owing to the
Agent and the Lenders under the Credit Agreement and the other Loan Documents (where applicable, as
amended herein).
6. Borrowers hereby acknowledge and agree that this Sixth Amendment and the amendments
contained herein do not constitute any course of dealing or other basis for altering any obligation
of Borrowers, any other Credit Party, any Guarantor or any other party or any rights, privilege or
remedy of the Lenders under the Credit Agreement, any other Loan Document, any other agreement or
document, or any contract or instrument.
7. Except as specifically defined to the contrary herein, capitalized terms used in this Sixth
Amendment shall have the meanings set forth in the Credit Agreement.
8. This Sixth Amendment may be executed in counterpart in accordance with Section 13.9 of the
Credit Agreement and shall be considered a Loan Document within the meaning of the Credit
Agreement.
9. This Sixth Amendment shall be construed in accordance with and governed by the laws of the
State of Texas.
3
WITNESS the due execution hereof as of the day and year first above written.
COMERICA BANK, as Agent | ||||||||||
By: | /s/ Kelly Cowherd | |||||||||
Name: | Kelly Cowherd | |||||||||
Title: | Vice President | |||||||||
Signature page to Sixth Amendment
PMFG, INC. | ||||||||||
By: | /s/ Peter Burlage | |||||||||
Name: | Peter Burlage | |||||||||
Title: | President & CEO | |||||||||
PEERLESS MFG. CO. | ||||||||||
By: | /s/ Peter Burlage | |||||||||
Name: | Peter Burlage | |||||||||
Title: | President & CEO | |||||||||
PMC ACQUISITION, INC. | ||||||||||
By: | /s/ Peter Burlage | |||||||||
Name: | Peter Burlage | |||||||||
Title: | President & CEO | |||||||||
NITRAM ENERGY, INC. | ||||||||||
By: | /s/ Peter Burlage | |||||||||
Name: | Peter Burlage | |||||||||
Title: | President & CEO | |||||||||
BOS-HATTEN, INC. | ||||||||||
By: | /s/ Peter Burlage | |||||||||
Name: | Peter Burlage | |||||||||
Title: | President & CEO | |||||||||
BURGESS MANNING, INC. | ||||||||||
By: | /s/ Peter Burlage | |||||||||
Name: | Peter Burlage | |||||||||
Title: | President & CEO | |||||||||
Signature page to Sixth Amendment
BURMAN MANAGEMENT, INC. | ||||||||||
By: | /s/ Peter Burlage | |||||||||
Name: | Peter Burlage | |||||||||
Title: | President & CEO | |||||||||
Signature page to Sixth Amendment
LENDERS: |
||||||||||
COMERICA BANK, as a Lender, Issuing Lender | ||||||||||
and Swing Line Lender | ||||||||||
By: | /s/ Kelly Cowherd | |||||||||
Name: | Kelly Cowherd | |||||||||
Title: | Vice President | |||||||||
Signature page to Sixth Amendment
MB FINANCIAL BANK, N.A. | ||||||||||
By: | /s/ Evelyn Guzman | |||||||||
Name: | Evelyn Guzman | |||||||||
Title: | Assistant Vice President | |||||||||
Signature page to Sixth Amendment
CITIBANK N.A. | ||||||||||
By: | /s/ Deborah Purvin | |||||||||
Name: | Deborah Purvin | |||||||||
Title: | Senior Vice President | |||||||||
Signature page to Sixth Amendment
SCHEDULE 1
Peerless Mfg. Co.
PMC Acquisition, Inc.
Nitram Energy, Inc.
Bos-Hatten, Inc.
Burgess Manning, Inc.
Burman Management, Inc.
PMC Acquisition, Inc.
Nitram Energy, Inc.
Bos-Hatten, Inc.
Burgess Manning, Inc.
Burman Management, Inc.