Exhibit 10.7*
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EXECUTION VERSION
AMENDMENT NO. 2
TO REVOLVING CREDIT AND SECURITY AGREEMENT
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THIS AMENDMENT NO. 2 TO REVOLVING CREDIT AND SECURITY AGREEMENT (this
"Amendment") is made and entered into as of October 25, 2002, between MasTec,
Inc., a Florida corporation("MasTec"), certain of the Subsidiaries of MasTec
identified on the signature pages hereto (together with MasTec, hereinafter
collectively referred to as the "Borrowers"), the financial institutions party
from time to time to the Loan Agreement (as hereinafter defined) as lenders
(the "Lenders") and Fleet Capital Corporation, a Rhode Island corporation, as
administrative agent (the "Administrative Agent") for the Lenders.
Recitals:
The Borrowers, the Lenders and the Administrative Agent are all of the
parties to a Revolving Credit and Security Agreement dated as of January 22,
2002, as amended by an Assumption and Amendment Agreement dated as of
February 7, 2002 (as amended and in effect, the "Loan Agreement"),
pursuant to which Lenders have made certain revolving credit loans and
letter of credit accommodations to the Borrowers.
The Borrowers have requested that the Lenders amend the Loan Agreement
to make available certain additional credit accommodations to the Borrowers
to be used to support the Borrowers' casualty and workers' compensation
insurance programs. To induce the Lenders to do so, the Borrowers have
agreed to execute and deliver and to perform their respective obligations
under this Amendment.
Upon the terms and subject to the conditions hereinafter set forth, the
Lenders have agreed so to amend the Loan Agreement.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good and
valuable consideration, the receipt and sufficiency of which are hereby
severally acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Definitions. All capitalized terms used in this Amendment, unless
otherwise defined herein, shall have the meaning ascribed to such terms in
the Loan Agreement.
2. Amendments to Loan Agreement. Subject to the provisions of Section
3 of this Amendment, the Loan Agreement is hereby amended by:
(a) amending Section 1.1 of the Loan Agreement by adding thereto the
following new definition in appropriate alphabetical order:
"Casualty Insurance Support Letter of Credit" means, collectively,
the Liberty Letter of Credit and one or more standby Letters of Credit
issued by the Issuing Bank on or after the Amendment No. 2 Effective
Date for the account of MasTec and for the benefit of a Person that
provides casualty or workers' compensation insurance to the Borrowers
(or any of them), which Letters of Credit are in an aggregate amount
of Letter of Credit Obligations at any time not greater than $41,000,000
and in respect of which FCC has or will have issued one or more Letter of
Credit Guarantees.
(b) further amending Section 1.1 by amending the following definitions
in their entireties to read as follows:
"Amendment No. 2 Effective Date" means the date on which Amendment
No. 2 to this Agreement dated as of October 25, 2002, between the Borrowers,
the Lenders and the Administrative Agent shall have become effective in
accordance with its terms.
"Insurance Letter of Credit" means each of the following Letters
of Credit: (i) Letter of Credit No. ASL-3009133-120MAT issued by the Issuing
Bank for the account of MasTec and for the benefit of Fidelity and Deposit
Company of Maryland, (ii) Letter of Credit No. 50061581 issued by the
Issuing Bank for the account of MasTec and for the benefit of Xxxxxxxx and
Company, (iii) Letter of Credit No. 50061585 issued by the Issuing Bank for
the account of MasTec and for the benefit of Reliance Insurance Company,
(iv) Letter of Credit No. 50061582 issued by the Issuing Bank for the
account of MasTec and for the benefit of Insurance Company of North America,
(v) Letter of Credit No. 50061586 issued by the Issuing Bank for the account
of MasTec and for the benefit of Director of Industrial Relations, and
(vi) the Liberty Letter of Credit, in each case as amended and in effect
from time to time.
"Letter of Credit Guarantee Facility" means (a) a subfacility of
the Revolving Credit Facility providing for (i) the issuance of Letters of
Credit and Letter of Credit Guarantees as described in Article 3 in an
aggregate amount of Letter of Credit Obligations at any one time outstanding
not to exceed $20,000,000, and (ii) the issuance of the Casualty Insurance
Support Letter of Credit in accordance with the provisions of Article 3,
plus (b) the amount available to be drawn from time to time under the
Canadian Financing Letter of Credit.
"Letter of Credit Reserve" means, at any time, the aggregate Letter
of Credit Obligations at such time, other than Letter of Credit Obligations
that are fully secured by Cash Collateral. For the avoidance of doubt, at
any time that the Casualty Insurance Support Letter of Credit is outstanding,
the amount of the Letter of Credit Reserve attributable to the Casualty
Insurance Support Letter of Credit at such time shall be equal to the lesser
of (i) $41,000,000 and (ii) the greatest amount of Letter of Credit
Obligations that at any time may be outstanding thereunder in accordance
with the terms thereof (giving effect to any "step-ups" in the stated amount
thereof).
"Liberty Letter of Credit" means Letter of Credit No. ASL-
0X0000000-120MAT issued by the Issuing Bank for the account of MasTec and
for the benefit of Liberty Mutual Insurance Company, as amended and in
effect from ti me to time.
(c) amending Section 3.3 by deleting the period at the end thereof,
substituting in lieu thereof a semicolon and adding the following proviso
after such semicolon:
provided, that no Letter of Credit (other than the Casualty Insurance
Support Letter of Credit) shall be issued on or after the Amendment
No. 2 Effective Date for the benefit of any Person that provides
casualty or workers' compensation insurance to the Borrowers (or any
of them) and no increase in the amount available to be drawn under any
Insurance Letter of Credit (other than the Liberty Letter of Credit)
shall be effected.
3. Conditions to Effectiveness. The provisions of Section 2 of this
Amendment shall become effective on the date (the "Amendment No. 2 Effective
Date") on which the Administrative Agent shall have received (i) an amendment
fee in the amount of $156,250 for the Ratable account of the Lenders, which
fee is earned on the date of receipt and is not subject to refund or rebate
of any kind whatsoever, and (ii) the following documents, each of which shall
be satisfactory in form and substance to the Administrative Agent and in
sufficient copies for each Lender:
(a) this Amendment duly executed and delivered by the Borrowers,
the Lenders and the Administrative Agent;
(b) a certificate of the secretary or assistant secretary of each
Borrower having attached thereto the articles or certificate of
incorporation and bylaws of such Borrower (or containing the
certification of such secretary or assistant secretary that no
amendment or modification of such articles or certificate of
incorporation or bylaws has become effective since the last date on
which such documents were last delivered to the Lenders), and
certifying that all corporate or company action, including
shareholders' or members' approval, if necessary, has been taken by
such Borrower and/or its shareholders or members to authorize the
execution, delivery and performance of this Amendment and to the
further effect that the incumbency certificate most recently delivered
to the Lenders remains in effect, unchanged;
(c) the agreement of Liberty Mutual Insurance Company to return to
the Agent for cancellation the original standby Letter of Credit No.
1S1250005 issued by the Issuing Bank for the account of MasTec and for
the benefit of Liberty Mutual Insurance Company in the current stated
amount of $655,000, together with all original amendments thereto,
subject only to receipt by Liberty Mutual Insurance Company of an
original amendment to the Liberty Letter of Credit (as defined in
the Loan Agreement, as amended by the Amendment) in the form of Annex
A hereto; and
(d) such other documents and instruments as any Lender through the
Administrative Agent may reasonably request.
4. Representations and Warranties. To induce the Administrative Agent
and the Lenders to enter into this Amendment, each Borrower hereby makes the
following representations and warranties to the Administrative Agent and the
Lenders, which representations and warranties shall survive the delivery of
this Amendment and the making of additional Loans or other extensions of
financial accommodations under the Loan Agreement as amended hereby:
(a) Authorization of Agreements. Each Borrower has the right and
power, and has taken all necessary action to authorize it, to execute,
deliver and perform this Amendment and each other agreement contemplated
hereby to which it is a party in accordance with their respective terms.
This Amendment and each other such agreement contemplated hereby to
which it is a party has been duly executed and delivered by the duly
authorized officers of such Borrower and each is, or each when executed
and delivered in accordance with this Amendment will be, a legal, valid
and binding obligation of such Borrower, enforceable in accordance with
its terms.
(b) Compliance of Agreements with Laws. The execution, delivery and
performance of this Amendment in accordance with their respective terms
do not and will not, by the passage of time, the giving of notice or
otherwise, (i) require any Governmental Approval that has not been
obtained or violate any Applicable Law relating to such Borrower or any
of its Subsidiaries, (ii) conflict with, result in a breach of or
constitute a default under the articles or certificate of incorporation
or by-laws or other constituent documents or any shareholders' or
members' agreement of such Borrower or any of its Subsidiaries, any
material provisions of any indenture, agreement or other instrument to
which such Borrower, any of its Subsidiaries or any of such Borrower's
or such Subsidiaries' property may be bound or any Governmental Approval
relating to such Borrower or any of its Subsidiaries, or (iii) result
in or require the creation or imposition of any Lien upon or with
respect to any property now owned or hereafter acquired by such Borrower
other than the Security Interest.
(c) Representations and Warranties; Defaults and Events of Default.
Each representation and warranty of such Borrower set forth in the Loan
Agreement and the other Loan Documents is true and correct on and as of
the Amendment No. 2 Effective Date and no Default or Event of Default
has occurred and is continuing on such date.
5. Effect of Amendment. From and after the Amendment No. 2 Effective
Date, all references in the Loan Agreement and in any other Loan Document to
"this Agreement," "the Loan Agreement," "hereunder," "hereof" and words of
like import referring to the Loan Agreement, shall mean and at any time of
determination be references to the Loan Agreement as amended by this
Amendment. Except as expressly amended hereby, the Loan Agreement and all
terms, conditions and provisions thereof remain in full force and effect
and are hereby ratified and confirmed. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided
herein, operate as a waiver of any right, power or remedy of any Lender
under any of the Loan Documents, nor constitute a waiver of any provision
of any of the Loan Documents.
6. Breach of Amendment. Any breach by any Borrower of any
representation, warranty or covenant contained herein shall constitute an
Event of Default.
7. Counterpart Execution. 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 to be an
original and all of which taken together shall constitute but one and the
same agreement. Delivery of an executed signature page of any party hereto
by facsimile transmission shall be as effective as delivery of a manually
delivered counterpart thereof.
8. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Georgia without giving effect to
conflicts of law principles thereof.
9. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns.
10. Further Assurances. The Borrowers agree to take such further
actions as any Lender through the Administrative Agent shall reasonably
request from time to time in connection herewith to evidence or give effect
to the amendments set forth herein or any of the transactions contemplated
hereby.
11. Section Titles. Section titles and references used in this
Amendment shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement among the parties hereto.
12. Waiver of Jury Trial. To the fullest extent permitted by applicable
law, each of the parties hereto hereby waives the right to trial by jury in
any action, suit, counterclaim or proceeding arising out of or related to
this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal and delivered by their respective duly authorized
officers as of the date first written above.
FLEET CAPITAL CORPORATION,
as Administrative Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Sr. V.P.
WACHOVIA BANK, N.A., as a Lender
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Associate
LASALLE BUSINESS CREDIT, INC.,
as a Lender
By: /s/ Xxxxx Denhy
Name: Xxxxx Denhy
Title: Group Seniorr Vice President
JPMORGAN CHASE BANK, as a Lender
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxx X. Council IV
Name: Xxxx X. Council IV
Title: Vice President
BORROWERS:
MASTEC, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
CHURCH & TOWER, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
CHURCH & TOWER ENVIRONMENTAL, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
XXXX-CELL, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
DRESSER/AREIA CONSTRUCTION, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
FLAIRE INCORPORATED
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
GMR TELCOM, L.L.C.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
MASTEC INTEGRATION SYSTEMS, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
MASTEC NETWORK SERVICES, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
MASTEC NORTH AMERICA, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
MASTEC NORTH CAROLINA, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President_
MASTEC TELCOM & ELECTRICAL
SERVICES, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President__
XXXXXX XXXXXXX, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
PHASECOM AMERICA, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
PROTEL IND., INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
RENEGADE OF IDAHO, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
S.S.S. CONSTRUCTION, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
UPPER VALLEY UTILITIES CORP.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
WILDE HOLDING CO., INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
WILDE ACQUISITION CO., INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
NORTHLAND CONTRACTING, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
WILDE OPTICAL SERVICE, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
MASTEC FC, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
MASTEC REAL ESTATE HOLDINGS, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
MASTEC OF TEXAS, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
MASTEC TC, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
