Restated Credit Facility

Exhibit 10.1


AMENDED AND RESTATED CREDIT FACILITY AND SECURITY AGREEMENT


THIS AMENDED AND RESTATED CREDIT FACILITY AND SECURITY AGREEMENT is made effective as of the 25th day of July, 2002 by and among BANK ONE, NA, as successor in interest to and assignee of Bank One Cleveland, NA (with its main office located in Chicago, Illinois, and hereinafter referred to as "Lender"), with a place of business located at 611 Woodward Avenue, Detroit, Michigan 48226; 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 (the "Continental Principal Place of Business"); 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 (the "Goodman Principal Business Location") (each of "Continental" and "Goodman" being sometimes referred to herein individually as a "Borrower" and collectively as the "Borrowers").


WITNESSETH:


WHEREAS, pursuant to the terms of that certain Assumption and Modification Agreement by and between Borrowers and Lender dated as of March 7, 1997 ("Assumption"), the Borrowers assumed all of the Obligations of CONTINENTAL CONVEYOR & EQUIPMENT CO. L.P., formerly a limited partnership organized and existing under the laws of the State of Delaware, and GOODMAN CONVEYOR CO. L.P., formerly a limited partnership organized and existing under the laws of the State of Delaware (collectively, the "Original Borrowers") under that certain Credit Facility and Security Agreement by and among the Original Borrowers and Lender (and/or its predecessor Bank One Cleveland, N.A.) dated as of September 14, 1992, as amended by a certain First Amendment to Credit Facility and Security Agreement by and among the Original Borrowers and Lender executed on August 27, 1993; as further amended by a certain Second Amendatory Agreement by and among the Original Borrowers and Lender dated as of October 5, 1994; as further amended by a certain Consolidated Amendment No. 1 to Credit Facility and Security Agreement by and among the Original Borrowers and Lender dated as of July 28, 1995; as further amended by a certain Consolidated Amendment No. 2 to Credit Facility and Security Agreement by and among the Original Borrowers and Lender dated as of December 13, 1996; as further amended by a certain Third Amendatory Agreement to Credit Facility and Security Agreement by and among the Borrowers and Lender dated as of March 28, 1997; as further amended by a certain Fourth Amendatory Agreement by and among the Borrowers and Lender dated as of December, 1998; as further amended by a certain Fifth Amendatory Agreement by and among the Borrowers and Lender dated as of April 29, 1999; and as further amended by a certain Sixth Amendatory Agreement by and among the Borrowers and Lender dated as of March 28, 2000, as modified by a letter amendment dated as of March 25, 2002 (collectively, the "Original Loan Agreement"); and


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WHEREAS, each Borrower desires, from time to time hereafter, to borrow from Lender, and Lender is willing and may, from time to time hereafter, be willing to make loans to each Borrower; and the Borrowers and the Lender have agreed to further amend and restate the Original Loan Agreement, all upon the terms and conditions set forth in this Agreement.


NOW, THEREFORE, in consideration of the terms and conditions contained herein, and of any extension of credit heretofore, now or hereafter made by Lender to either Borrower, the parties hereto hereby agree as follows:


1. GENERAL


1.1 Defined Terms. When used herein, the following terms shall have the following meanings:


Accounts - Shall have the meaning ascribed thereto by the UCC, together with all other debts, obligations and liabilities in whatever form, owing to such Borrower from any Account Debtor or other Person, whether now existing or hereafter arising, now or hereafter received by or belonging or owing to such Borrower, however otherwise the same may have been established or created, all Supporting Obligations therefor, all right, title and interest of such Borrower in the merchandise or services which gave rise thereto, including the rights of reclamation and stoppage in transit, and all rights of an unpaid seller of merchandise or services.


Account Debtor - Shall have the meaning ascribed thereto by the UCC.


Affiliate - Each Borrower, each Subsidiary of Borrowers, or any other Person:


(i) Which, directly or indirectly, through one or more
intermediaries controls, or is controlled by, or is under common
control with, either Borrower;


(ii) Which owns or controls, on an aggregate basis, including
all beneficial ownership and ownership or control as a trustee,
guardian or other fiduciary, at least ten percent (10%) or more of the
issued and outstanding stock of either Borrower; or


(iii) Ten percent (10%) or more of the Voting Stock (or in the
case of a Person which is not a corporation, ten percent (10%) or more
of the equity interest) of which is beneficially owned or held by
either Borrower.


The term "Affiliate" shall also include any Shareholder, Director or Officer of Borrower or any subsidiary of Borrower.


The term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of Voting Stock, by contract or otherwise.


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Agency Account Agreement - The Agency Account Agreement by and among Borrowers, Lender and AmSouth Bank, NA, as the same may be amended, modified and substituted, or any replacement Agency Account Agreement, together with any other or similar agreements with any third party financial institution wherever located, where Deposit Accounts of any kind or nature are held for the benefit of, or owned by, the Borrowers.


Agency Account - Any Deposit Account held or maintained by a third party financial institution pursuant to the terms and provisions of an Agency Account Agreement.


Agreement - This Amended and Restated Credit Facility and Security Agreement, as it may be amended from time to time pursuant to Section 13.1 hereof.


Appraisals - Collectively, the appraisals to be provided from time to time to Lender by an appraiser acceptable to Lender relating to the Collateral consisting of machinery and equipment of Borrowers and the Real Property.


Assumption - as defined in the Recitals of this Agreement.


Bankruptcy Laws - All statutes, rules, regulations and other forms of law, federal, state or otherwise, including, without limitation, the provisions of Title 11 of the United States Code, as in effect from time to time, relating to the bankruptcy, insolvency, liquidation or reorganization of debtors or the modification or alteration of the rights of creditors.


Base Rate - The Lender's Prime Rate for commercial loans, as in effect from time to time, or such other designation announced by Lender in replacement of such Prime Rate for commercial loans, which in either instance may not necessarily be the most favorable or lowest or best rate offered by Lender.


Capital Expenditures - Amounts expended or which either Borrower becomes obligated to expend, without regard to the manner in which such amounts or the instrument pursuant to which they are made are characterized by any Person, (i) for the acquisition, construction or installation of properties that are to be included as fixed assets on either Borrower's books, (ii) for the lease of any property that would be capitalized under GAAP, (iii) for the incurrence of any other capitalized cost, or (iv) for any additions to or replacements of any of the foregoing.


Capitalized Lease Obligations - The amount of a Person's obligations under Capitalized Leases that would be shown as a liability on a balance sheet of such Person prepared in accordance with GAAP.


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Cash Collateral Account - A commercial deposit account designated "cash collateral account" maintained by each Borrower with Lender, without liability by Lender to pay interest thereon, from which Cash Collateral Account Lender shall have the exclusive right to withdraw funds until all Obligations are paid, performed, satisfied, enforced and observed in full.


Collateral - All assets and personal property of the Borrowers (whether the same may constitute Fixed Collateral, Revolving Collateral, or otherwise) including without limitation the following, whether now existing or hereafter arising, in which Borrower now has or may hereafter acquire any interest (including but not limited to any leasehold interest), wherever the same may be located:


(a) all Accounts, Inventory, Goods, Equipment, Fixtures, Chattel
Paper (including Electronic Chattel Paper), Instruments,
Documents, Letter of Credit Rights, Investment Property, and
General Intangibles (including payment intangibles);


(b) all bank or other Deposit Accounts owned by or maintained by or
on behalf of Borrower, and all present and future funds on deposit
therein;


(c) all substitutes and replacements for, accessions, attachments, and
other additions to, and tools, parts, and equipment used in
connection with any of the above;


(d) all certificates of title and certificates of origin or
manufacturer's statements of origin relating to any of the
foregoing;


(e) all returned or repossessed Inventory, Goods, Equipment and/or
Fixtures arising from or relating to any Accounts;


(f) all Supporting Obligations for any of the foregoing;


(g) to the extent not listed above as original collateral, all
proceeds and products of any of the foregoing; and


(h) all recorded data of any type, including ledger sheets, files,
records, documents, and instruments (including, but not limited
to, computer programs, tapes and related electronic media and
data processing software) evidencing an interest in or relating
to the above.


Notwithstanding the foregoing, the term "Collateral" does not include any of the foregoing assets located at, or owned by, the Borrowers' non-US Subsidiaries.


Collateral Location - The Continental Principal Business Location as to Continental, and the Goodman Principal Business Location as to Goodman, and such other locations as may be identified on Exhibit B attached hereto, if any, together with such other locations at which any Collateral consisting of tangible personal property may be located provided Lender has, in writing, approved and designated such location as a Collateral Location hereunder, subject to any conditions which Lender may reasonably designate and provided:


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(i) Such location is a location as to which Borrowers give
Lender prior written notice at least forty-five (45) days prior to
using such location: and


(ii) Such location is located within the United States of
America: and


(iii) If required by law to perfect Lender's security interest
therein, each Borrower has executed and delivered to Lender appropriate
financing statements with respect to the Collateral located at such
location showing Borrowers as debtor and Lender as-secured party: and


(iv) A search of all filings made against Borrowers or such
Collateral in the jurisdiction in which the location is located, made
after the filing of the financing statements referred to in (iii)
above, confirms that the Lender's security interest in the Collateral
at such location constitutes a first priority Lien on such Collateral
(subject to any Permitted Liens); and


(v) Lender has obtained a written acknowledgment and lien
waiver in favor of Lender from each lessor, mortgagee, bailee,
warehouseman or similar Person who may, by operation of law or
otherwise, have any Lien in or upon such Collateral at such location,
in such form and containing such assurances as may be requested by
Lender.


Commitment Fee - As defined in Section 2.8 of this Agreement.


Contingent Obligation - Any agreement, undertaking or arrangement by which a Person assumes, guaranties, endorses, contingently agrees to purchase or provide funds for the payment of, or otherwise becomes or is contingently liable (whether directly or indirectly) upon, any dividend, 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 or take-or-pay contract. The Borrower's Contingent Obligations hereunder shall include, but not be limited to, any and all guaranties by Borrower of any part or all of the bond, trust indenture or other indebtedness of Global. The amount of any Contingent Obligation shall be equal to the amount of the obligation that is so guarantied or supported that is actually outstanding or otherwise due and payable from time to time, if a fixed and determinable amount or if there is no fixed or determinable amount, either (x) if a maximum amount is guaranteed, the maximum amount, or (y) if there is no maximum amount the amount of the obligation that is so guarantied or supported. To the extent not included within the foregoing, a Contingent Obligation shall also include all contingent liabilities required (or which, upon the creation or incurring thereof would be required) to be included in the consolidated financial statements (including footnotes) of such Person in accordance with GAAP, including Statement No. 5 of the Financial Accounting Standards Board.


Contract Rate - A fixed rate of seven and four hundred forty-five thousandths of one percent (7.445%).


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Credit Documents - (i) this Agreement, (ii) the Notes, (iii) the Deeds of Trust and/or Open-End Mortgage Deeds and Security Agreements with respect to the Real Property previously and hereafter filed or recorded, (iv) the Environmental Inspection Easements with respect to the Real Property, (v) the Environmental Indemnity Agreement with respect to the Real Property, (vi) the UCC-1 Financing Statements previously or hereafter filed or recorded, (vii) the Agency Account Agreements of AmSouth Bank, (viii) the Assumption, (ix) the Global Guaranty by Global and all prior acknowledgments and consents by Global, (x) and any and all Credit Documents executed in connection with the Original Loan Agreement and all other agreements, instruments, notes and documents previously or hereafter executed by Borrowers, Guarantor or any other Person and/or delivered to Lender in respect of the transactions contemplated by this Agreement or the Original Loan Agreement, in each instance as amended from time to time.


Debt Instruments - Any contract, agreement, instrument or other document or arrangement under which either Borrower has (i) any indebtedness, obligation or liability (including, without limitation, any contingent liability under any Guaranty) for borrowed money or for the deferred portion of the purchase price of any capital asset or for other capital financing or (ii) the right or obligation to incur any such indebtedness, obligation or liability.


Default Rate - A fluctuating rate of interest equal to two percentage points (2.0%) above (i) the rate of interest set forth in the applicable Note for obligations evidenced by a Note and (ii) above the Contract Rate for Obligations not evidenced by a Note.


Deposit Account - Shall have the meaning ascribed thereto by the UCC.


Depository Bank - As defined in Section 5.2(A) of this Agreement.


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;


(ii) The redemption or acquisition of any Securities of such
Borrower; and


(iii) The payment of any Management Fees.


Eligible Accounts - Accounts of each Borrower to the extent arising out of the completed bona fide sale or lease of goods or rendition of services by such Borrower in the ordinary course of such Borrower's business and substantially in accordance with the terms and conditions of all purchase orders, contracts or other documents relating thereto, subject to Lender's perfected security interest and no other Lien or security interest, and for a liquidated amount maturing as stated in an invoice or other documentary evidence relating thereto which has been furnished, and is in form reasonably satisfactory, to Lender, provided, that, unless Lender otherwise agrees, no such Account shall be an Eligible Account if:


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(i) It arises out of a sale made by such Borrower to an
Affiliate of such Borrower or to a Person controlled by an Affiliate
of such Borrower: or


(ii) It is due or unpaid more than ninety (90) days after the
invoice date thereof; or


(iii) Fifty percent (50%) or more of the aggregate Accounts
(determined on the basis of the aggregate dollar amount thereof)
payable by the Account Debtor thereof are at that time not otherwise
deemed Eligible Accounts hereunder; or


(iv) The Account Debtor claims any right of credit, allowance
or adjustment with respect to such Account by the Account Debtor,
except a discount allowed for prompt payment, or such Account is
otherwise disputed or contingent in any respect; or


(v) The Account Debtor has returned any of the goods from
the sale of which the Account arose; or


(vi) There exist any facts, events or circumstances which in
any way impair the validity, collectability or enforcement of such
Account or would tend to reduce the amount payable thereunder from the
face value of the invoice related thereto; or


(vii) The Account Debtor is also such Borrower's creditor or
supplier or the Account otherwise is or may become subject to any right
of offset by the Account Debtor; or


(viii) The Account Debtor has commenced a voluntary case under
any Bankruptcy Laws, as now constituted or hereafter amended, or made
an assignment for the benefit of creditors, or a decree or order for
relief has been entered by a court having jurisdiction in the premises
in respect of the Account Debtor in an involuntary case under any
Bankruptcy Laws or any other petition or other application for relief
under any Bankruptcy Laws has been filed against the Account Debtor, or
the Account Debtor has failed, suspended business, ceased to be
solvent, or consented to or suffered a receiver, trustee, liquidator or
custodian to be appointed for it or for all or a significant portion of
its assets or affairs; or


(ix) The sale is to an Account Debtor outside the United
States unless the sale is on letter of credit, guaranty, or acceptance
terms, in each case acceptable to Lender in its reasonable judgment; or


(x) The sale to the Account Debtor is on a bill-and-hold
(unless otherwise permitted by Lender on a case-by-case basis),
guaranteed sale, sale-and-return, sale on approval, consignment or any
other repurchase or return basis or is evidenced by chattel paper; or


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(xi) Lender reasonably believes that collection of such
Account is insecure or that such Account may not be paid by reason of
the Account Debtor's financial inability to pay; or


(xii) The Account Debtor is the United States of America or
any department, agency or instrumentality thereof, unless such Borrower
assigns its right to payment of such Account to Lender pursuant to the
Assignment of Claims Act of 1940, as amended; or


(xiii) The goods giving rise to such Account have not been
shipped and delivered to and received by the Account Debtor or the
services giving rise to such Account have not been fully performed by
such Borrower and received by the Account Debtor or the Account
otherwise does not represent a final sale; or


(xiv) The Account, when added to the aggregate balance of all
other Accounts of the Account Debtor, exceeds a credit limit determined
by Lender, in its reasonable discretion, to the extent such Account
exceeds such limit; or


(xv) Lender otherwise reasonably deems such Account to be
ineligible or that such Account or the Account Debtor is unsatisfactory
in any reasonable respect.


Eligible Inventory - Such Inventory, subject to Lender's perfected security interest and no other Lien, consisting of raw materials and finished goods owned by such Borrower and located at a Collateral Location which, in Lender's reasonable opinion, is in good and saleable condition and not obsolete or unmerchantable and which Lender, in its reasonable credit judgment, deems to be Eligible Inventory, based on such credit and collateral considerations as Lender may deem appropriate. Inventory shall not be Eligible Inventory to the extent it consists of work-in-process, spare parts, property used in packaging or shipping of Inventory, or Inventory of a like use or character to the foregoing or otherwise to the extent such Inventory does not conform to all standards imposed by any governmental agency, division or department thereof which has regulatory authority over such goods or the use or sale thereof.


ERISA - The Employee Retirement Income Security Act of 1974, as amended from time to time, and all rules and regulations from time to time promulgated thereunder.


Event of Default - As defined in Section 11.1 of this Agreement.


Financial Statements - The audited annual financial statements of each of Continental and Goodman for their respective fiscal years ending December 31, 2001 and the balance sheet(s) of each of Continental and Goodman as of June 30, 2002 and the related statements of income for the fiscal period (s) then ended, copies of which are attached hereto as Exhibit G-1.


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Fixed Collateral - All fixed assets of each Borrower including, without limitation, all Real Property, machinery, equipment, furniture, furnishings, fixtures, tools, dies, molds, parts, material handling equipment, supplies and motor vehicles (titled and untitled) of every kind and description, now or hereafter owned by either Borrower, or in which either Borrower may have or may hereafter acquire any interest, wheresoever located, including, without limitation, the items of Fixed Collateral described in Exhibit H attached to this Agreement.


GAAP - Generally accepted accounting principles, consistently applied.


Global - Continental Global Group, Inc., a Delaware corporation and sole shareholder of each Borrower.


Global Guaranty - The Guaranty of Global of even date herewith pursuant to which Global has guaranteed all of the Obligations of Borrowers.


Guaranty - All obligations of any Person (the "guarantor") which guarantee, or in effect guarantee, or assure the payment of, or performance with respect to, any indebtedness, liability, or other obligation of any other Person (the "primary obligor") in any manner, whether directly or indirectly, including but not limited to, obligations incurred by such guarantor through an agreement, contingent or otherwise:


(i) To purchase such indebtedness, liability or
obligation or any Collateral or assets constituting security
therefor; or


(ii) To advance or supply funds:


(a) For the purchase or payment of such indebtedness,
liability or obligation, or


(b) To maintain working capital or other balance
sheet condition or otherwise to advance or make available
funds for the purchase or payment of such indebtedness,
liability or obligations; or


(iii) To lease, purchase or pledge any Security or other
property (whether real or personal, tangible or intangible, now owned
or hereafter acquired) or services primarily for the purpose of
assuring the owner of such indebtedness, liability or obligation of the
ability of the primary obligor to make payment of the indebtedness,
liability or obligations; or


(iv) Otherwise to assure the owner of the indebtedness,
liability or obligation of the primary obligor against loss in respect
thereof.


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Indebtedness - Without duplication, any Person's, (i) obligations for borrowed money, (ii) obligations representing the deferred purchase price or acquisition price of property or services (other than accounts payable and/or accrued expenses arising in the ordinary course of such Person's business payable in accordance with customary practices), (iii) obligations, whether or not assumed, secured by Liens on property now or hereafter owned or acquired by such Person, (iv) obligations which are evidence by notes, acceptances, or other instruments to the extent of the amounts actually borrowed, due, payable or drawn, as the case may be, (iv) Rate Hedging Obligations, (v) Capitalized Lease Obligations or any conditional sales contract or other title retention agreement with respect to any assets of any kind used or acquired by Borrower, even though the rights and remedies of the lessor, seller or lender are limited to repossession, (vi) all obligations in respect of Letters of Credit, whether drawn or undrawn, contingent, standby or otherwise, (vii) all liability by way of endorsements (other than for collection or deposit in the ordinary course of business), (viii) all Off-Balance Sheet Liabilities, (ix) Contingent Obligations with respect to any of the foregoing to the extent (and only to the extent) that (1) such Contingent Obligation relates to other Indebtedness that is not consolidated Indebtedness of the Borrower, and (2) the other Indebtedness to which such Contingent Obligation relates is outstanding and th ...