EXHIBIT 10.32.1
AMENDMENT AND AMENDED AND RESTATED LIMITED WAIVER
THIS AMENDMENT AND AMENDED AND RESTATED LIMITED WAIVER
(this "Amendment"), dated as of March 5, 1999, and effective as to ARTICLE I,
SECTION 2 as of October 31, 1998, and as to ARTICLE II as of January 1, 1999, is
entered into by and among Able Telcom Holding Corp., a Florida corporation
("BORROWER"), NationsBank, N.A., as Administrative Agent (in such capacity, the
"ADMINISTRATIVE AGENT") and as a Lender and CIBC INC. as Documentation Agent (in
such capacity, the "DOCUMENTATION AGENT") and as a Lender, with reference to the
hereinafter described Credit Agreement. Capitalized terms used and not otherwise
defined herein shall have the meanings ascribed to them in such Credit
Agreement.
RECITALS
A. The Borrower, the Administrative Agent and the several
Lenders from time to time parties thereto entered into that certain Credit
Agreement dated June 11, 1998 (as amended, modified, restated, supplemented,
renewed, extended, rearranged or substituted from time to time, the "CREDIT
AGREEMENT").
B. The Credit Agreement, among other things, requires that the
Borrower comply with certain financial covenants (including without limitation
those contained in SECTIONS 8.1(D) of the Credit Agreement.
C. On the October 31, 1998 (the "WAIVER DATE"), the Current
Ratio of the Borrower and its Restricted Subsidiaries was less than 2.5 to 1.00,
as required by Section 8.1(d) of the Credit Agreement.
D. The Borrower, the Administrative Agent, and the
Documentation Agent entered into that certain Limited Waiver dated as of
February 23, 1999 (the "PRIOR LIMITED WAIVER").
E. The Borrower, the Administrative Agent and the
Documentation Agent wish to clarify and amend the Prior Limited Waiver and to
amend the Credit Agreement, as provided herein.
NOW, THEREFORE, in consideration of these premises and in
reliance on the representations and warranties of the Borrower hereinafter set
forth, subject to the terms and conditions hereinafter set forth, the parties
hereto enter into this Amendment as follows:
I. LIMITED WAIVER
SECTION 1.
The Prior Limited Waiver is hereby superseded and replaced in
its entirety with this Amendment.
SECTION 2.
In reliance upon, and subject to, the representations,
warranties and covenants of the Borrower set forth in ARTICLE III and V of this
Amendment, and in reliance upon the Amendment to the Credit Agreement set forth
in ARTICLE IV, the undersigned Lenders (constituting not less than the Majority
Lenders) hereby waive any Event of Default under the Credit Agreement that may
have arisen or which may arise during the period beginning on October 31, 1998
and ending on November 1, 1999, by means of the Borrower's failure to comply
with the requirement under SECTION 8.1(D) of the Credit Agreement that the
Borrower and its Restricted Subsidiaries have a Current Ratio of not less than
2.50 to 1.00.
II. AMENDMENT
SECTION 1.
The Credit Agreement shall be amended by adding the following
language as a new Section 8.1(e):
"(e) QUICK RATIO. Permit the Quick Ratio of the Borrower and
its Restricted Subsidiaries at the end of any fiscal quarter
of the Borrower to be less than 0.45 to 1.00."
SECTION 2.
The Credit Agreement shall be amended by adding the following
definition to SECTION 1.1:
"Quick Ratio" shall mean the ratio of Quick Assets to Current
Liabilities.
"Quick Assets" means unrestricted cash, marketable and freely
tradeable securities and accounts receivable, net of a reserve
for doubtful accounts as shown on the
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most recent balance sheet of the Borrower and its Restricted
Subsidiaries delivered in accordance with Section 7.1."
III. REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the
Administrative Agent, the Documentation Agent and the Lenders that the following
statements are true and correct in all material respects on and as of the date
hereof:
(a) INCORPORATION OF CREDIT AGREEMENT REPRESENTATIONS AND
WARRANTIES. The representations and warranties contained in SECTION 5 of the
Credit Agreement are true and correct on and as of the date hereof.
(b) USE OF PROCEEDS. None of the proceeds of any Revolving
Credit Loan will be advanced or transferred by the Borrower to any entity other
than a Restricted Subsidiary (as defined in the Credit Agreement).
(c) COMPLIANCE CERTIFICATE. The Compliance Certificate as
attached hereto, and all numbers included therein are true and correct for the
date herein stated.
IV. MISCELLANEOUS
(a) RATIFICATION AND CONFIRMATION OF LOAN DOCUMENTS. Except
for the specific waivers provided for herein, the Credit Agreement as amended
hereby and other Loan Documents remain in full force and effect and are hereby
ratified and confirmed by the Borrower, and the execution and delivery of this
Limited Waiver shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of the Administrative Agent or the
Documentation Agent or the Lenders under the Credit Agreement or any other Loan
Document. Without limiting the generality of the foregoing, the waiver set forth
in ARTICLE I above shall be limited precisely as set forth above, and nothing in
this Amendment shall be deemed (i) to constitute a waiver of compliance by the
Borrower or any of other Loan Party with respect to any other provision or
condition of the Credit Agreement or any other Loan Document, (ii) to prejudice
any right or remedy that the Administrative Agent or the Documentation Agent or
the Lenders may now have or may have in the future under or in connection with
the Credit Agreement or any other Loan Document or (iii) to constitute a waiver
of compliance by the Borrower or any of other Loan Party with respect to the
Credit Agreement or any other Loan Documents other than as specifically set
forth herein.
(b) FEES AND EXPENSES. The Borrower agrees to pay on demand
all reasonable costs and expenses of the Administrative Agent in connection with
the preparation, reproduction, execution, and delivery of this Amendment and the
other Loan Documents prepared in connection
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herewith, including, without limitation, the reasonable fees, charges and
disbursements and out-of-pocket expenses of counsel for the Administrative Agent
charged or incurred.
(c) HEADINGS. Article and Section headings in this Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Limited Waiver for any other purpose or be given any substantive
effect.
(d) APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
TEXAS, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
(e) COUNTERPARTS. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
(f) FINAL AGREEMENT. THIS AMENDMENT, TOGETHER WITH THE CREDIT
AGREEMENT AND OTHER LOAN DOCUMENTS, REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this
Limited Waiver to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
ABLE TELCOM HOLDING CORP.
By: /s/ Xxxxx X. Xxx, Xx.
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Name: Xxxxx X. Xxx, Xx.
Title: CEO & President
NATIONSBANK, N.A.,
as Administrative Agent and as a Lender
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
Vice President
CIBC INC.,
as a Lender
By: /s/Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
Executive Director,
CIBC Xxxxxxxxxxx Corp.,
An Agent for CIBC, Inc.
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