FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
EXHIBIT 10.52
FIRST AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this “Amendment”) is
made and entered into this 8th day of May, 2006, by and between MasTec, Inc., a Florida
corporation (“MasTec”), 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) (the “Lenders”)
and BANK OF AMERICA, N.A., a national bank in its capacity as collateral and administrative agent
for the Lenders (together with its successors in such capacity, “Agent”).
Recitals:
Agent, Lenders and Borrowers are parties to a certain Amended and Restated Loan and Security
Agreement dated May 10, 2005 (as amended and in effect on the date hereof, the “Loan Agreement”),
pursuant to which Lenders have made certain revolving credit loans and letter of credit
accommodations to or for the benefit of Borrowers.
Based on Borrowers’ improved financial position following its 2005 performance, 2006 follow-on
equity offering and repayment of $75,000,000 of long-term debt, all as reported by Borrowers in its
public filings, Borrowers have requested that Agent and Lenders amend the Loan Agreement to, among
other things, provide improved pricing and business terms to Borrower. Agent and Lenders are
willing to do so, on the terms and subject to the conditions set forth in this Amendment.
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. Amendment to Loan Agreement. The Loan Agreement is hereby amended as follows:
a. By deleting the definition of “Rentals” in its entirety from Section 1.1 of the Loan
Agreement, and by deleting the definitions of “Adjusted EBITDA,” “Applicable Margin,” “DirecTV
Concentration Percentage,” “Eligible Unbilled Accounts,” “Fixed Asset Formula Amount,” “Permitted
Acquisition,” “Permitted Contingent Obligations,” “Permitted Purchase Money Debt” and “Verizon
Concentration Percentage” in their entireties from Section 1.1 of the Loan Agreement and by
inserting the following in lieu thereof:
Adjusted EBITDA — for any fiscal period of Borrowers and their
Subsidiaries, an amount equal to the sum for such period of (i) Adjusted Net
Earnings, plus (ii) provision for taxes based on income and for state or
provincial franchise taxes, to the extent deducted in the calculation of Adjusted
Net Earnings for such fiscal period, plus (iii) interest expense, to the
extent deducted in the calculation of Adjusted Net Earnings for such fiscal period,
plus (iv) depreciation and amortization, to the extent deducted in the
calculation of Adjusted Net Earnings for such fiscal period, plus (v)
purchase accounting adjustments that are as required by FASB 141 and 142 for such
fiscal period, plus (vi) non-cash charges (including inventory adjustments,
lost job accruals, stock option expenses and write down of assets) from
discontinued operations and other non-cash charges approved by Agent, to the extent
deducted in the calculation of Adjusted Net Earnings for such period, all
calculated on a Consolidated basis.
Applicable Margin — commencing on the first day of the calendar month
immediately succeeding the third Business Day (each an “Adjustment Date”) after
Agent’s receipt of the applicable financial statements and corresponding Compliance
Certificate for each Fiscal Quarter ending on or after March 31, 2006, the
Applicable Margin shall be increased or (if no Default or Event of Default exists)
decreased, on a quarterly basis according to the performance of Borrowers as
measured by the Leverage Ratio for the immediately preceding Fiscal Quarter of
Borrowers, as follows:
| Applicable | Applicable Base | |||||||||||
| Leverage Ratio | LIBOR Margin | Rate Margin | ||||||||||
>= 4.0 to 1.00 |
2.25 | % | 0.75 | % | ||||||||
>= 3.0 to l.00 but
<4.0 to 1.00 |
2.00 | % | 0.50 | % | ||||||||
>= 2.0 to l.00 but
<3.0 to 1.00 |
1.75 | % | 0.25 | % | ||||||||
>= 1.0 to l.00 but
<2.0 to 1.00 |
1.50 | % | 0.00 | % | ||||||||
<1.0 to 1.00 |
1.25 | % | 0.00 | % | ||||||||
provided that, if during any Fiscal Quarter for which the Leverage Ratio is
measured to determine the Applicable Margin as provided above, the Average
Liquidity Amount is greater than $40,000,000, the Applicable Margin with respect to
Revolver Loans that are Base Rate Loans and the Applicable Margin for Revolver
Loans that are LIBOR Loans shall be decreased by 0.25% from the respective
Applicable Margin that is otherwise applicable to that Type of Revolver Loans as
set forth in the table above (but in no event shall the Applicable Margin for Base
Rate Loans be less than 0.00%).
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Prior to the next Adjustment Date, based the performance of Borrowers as measured
by the Leverage Ratio for the Fiscal Quarter ended December 31, 2005, and after
giving effect to an adjustment based on the Average Liquidity Amount in accordance
with the above provisions, the Applicable Margin shall be a percentage equal to
0.25% with respect to Revolver Loans that are Base Rate Loans and 1.75% with
respect to Revolver Loans that are LIBOR Loans.
Except as otherwise set forth herein, any such increase or reduction in the
Applicable Margin shall be subject to receipt by Agent of the applicable financial
statements and corresponding Compliance Certificate. If the financial statements
and the Compliance Certificate of Borrowers setting forth the Leverage Ratio are
not received by Agent by the date required pursuant to Section 10.1.3 of this
Agreement, the Applicable Margin shall be determined as if the Leverage Ratio
exceeds 4.0 to 1 until such time as such financial statements and Compliance
Certificate are received and any Event of Default resulting from a failure timely
to deliver such financial statements or Compliance Certificate is waived in writing
by Agent and Lenders; provided, however, that Agent and Lenders
shall be entitled to accrue and receive interest at the Default Rate to the extent
authorized by Section 3.1.5 of this Agreement and, on each date that the Default
Rate accrues on any Loan, the Applicable Margin on such date for such Loan shall be
the Applicable Margin that would apply if the Leverage Ratio exceeded 4.0 to 1
(without regard to the actual Leverage Ratio). For the final Fiscal Quarter of any
Fiscal Year of Borrowers, Borrowers may provide the unaudited financial statements
of Borrowers, subject only to year-end adjustments, for the purpose of determining
the Applicable Margin; provided, however, that if, upon delivery of
the annual audited financial statements required to be submitted by Borrowers to
Agent pursuant to Section 10.1.3(i) of this Agreement, Borrowers have not met the
criteria for reduction of the Applicable Margin pursuant to the terms hereinabove
for the final Fiscal Quarter of the Fiscal Year of Borrowers then ended, then (a)
such Applicable Margin reduction shall be terminated and, effective on the first
day of the month following receipt by Agent of such audited financial statements,
the Applicable Margin shall be the Applicable Margin that would have been in effect
if such reduction had been implemented based upon the audited financial statements
of Borrowers for the final Fiscal Quarter of the Fiscal Year of Borrowers then
ended, and (b) Borrowers shall pay to Agent, for the Pro Rata benefit of the
Lenders, on the first day of the month following receipt by Agent of such audited
financial statements, an amount equal to the difference between the amount of
interest that would have been paid using the Applicable Margin determined based
upon such audited financial statements and the amount of interest actually paid
during the period in which the reduction of the Applicable Margin was in effect
based upon the unaudited financial statements for the final Fiscal Quarter of the
Fiscal Year of Borrowers then ended.
DirecTV Concentration Percentage — (a) at any time that (i) DirecTV’s
corporate credit rating or senior debt rating (secured or unsecured) by Xxxxx’x is
Ba2 and by S&P is BB, and (ii) Average Days Sales Outstanding on Accounts for
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which DirecTV is the Account Debtor is 50 or fewer days, 40%; (b) at any time
that DirecTV’s corporate credit rating or senior debt rating (secured or unsecured)
by Xxxxx’x is Ba3 or by S&P is BB-, 25%; (c) at any time that DirecTV’s corporate
credit rating or senior debt rating (secured or unsecured) by Xxxxx’x is B1 or by
S&P is B+, 15%; (d) at any time that Average Days Sales Outstanding on Accounts for
which DirecTV is the Account Debtor is more than 50 days, 15%; and (e) irrespective
of the Average Days Sales Outstanding on Accounts for which DirecTV is the Account
Debtor, or DirecTV’s rating, such lesser percentage as Agent may in its reasonable
credit judgment determine from time to time.
Eligible Unbilled Accounts — an amount which, when an invoice is
issued with respect thereto, will be an Eligible Account, and in respect of which
an invoice is issued within 30 days (or 45 days with respect to an Account Debtor
principally engaged in the power distribution and transmission business or
communications business) after such amount is first included as an eligible
unbilled account on any Borrowing Base Certificate.
Fixed Assets Formula Amount — on any date of determination thereof, an
amount equal to the lesser of (A) $50,000,000, or (B) 80% multiplied by the Net
Orderly Liquidation Value of Eligible Fixed Assets; provided that the amount
calculated under this clause (B) shall be reduced in an amount, as determined by
Agent, equal to the aggregate amount of the fair market value or book value,
whichever is more, of all Equipment that has been disposed of by Obligors (other
than in accordance with Section 8.4.2(ii)) since the date that the Equipment
included in the most recent Net Orderly Liquidation Value Appraisal was appraised.
Permitted Acquisition — an Acquisition by an Obligor or any Subsidiary
of an Obligor in which each of the following conditions is satisfied:
(a) no Default or Event of Default exists before or would exist
immediately after giving effect thereto;
(b) the Acquisition is of (i) Equity Interests of any other Person
organized under the laws of the United States of America or any state
thereof or of Canada or any province thereof sufficient to give such
Obligor or Subsidiary control of such other Person or (ii) all or
substantially all of the assets of a Business Unit located in the United
States or Canada, and such Person or Business Unit is engaged in a business
that is substantially similar, related or incidental to the business
conducted by Obligors;
(c) the Purchase Price of such Acquisition does not exceed
$100,000,000, and the cash portion of such Purchase Price does not exceed
$80,000,000;
(d) the Liquidity Amount after giving effect to such Acquisition would
be not less than $30,000,000;
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(e) MasTec or the applicable Obligor has made available to Agent, not
later than 14 days prior to the proposed date of such Acquisition, the
results of any due diligence investigation of the target performed by or on
behalf of such Obligor or its Subsidiaries, environmental assessment
reports if any real property is to be acquired, copies of the Acquisition
documents, and historical financial statements of the target since
inception but no longer than the 3 previous years;
(f) Agent shall have received evidence satisfactory to it that no
Default of Event of Default has occurred and is continuing or would exist
after giving effect to such transaction and of the Obligors’ continued
compliance with the provisions of this Agreement and the other Loan
Documents, including the provisions of Sections 10.1.14, 10.2.22, and, on a
pro forma basis after giving effect to such Acquisition Borrowers shall
have a Fixed Charge Coverage Ratio of not less than 1.10 to 1.0 for the 12
calendar month period ending on the date of the Acquisition;
(g) to the extent financed with Debt other than Loans, such Debt is
Subordinated Debt payable to the seller,
(h) such Acquisition is not “hostile” or contested;
(i) Agent shall have received evidence reasonably satisfactory to it
demonstrating on a pro forma basis that Adjusted EBITDA (calculated by
MasTec and approved by Agent as described below in this definition) of the
target for the period of 12 consecutive calendar months ended nearest to
the date of determination, is at least equal to the sum of interest expense
and scheduled principal payments on any Debt incurred in connection with
payment of the Purchase Price (including Loans);
(j) if requested by Agent or the Required Lenders, any new Subsidiary
shall have executed and delivered a Subsidiary Guaranty and a Subsidiary
Security Agreement, or, at Agent’s election, a Joinder Agreement, and in
either case shall have delivered or caused to be delivered as to such
Subsidiary the items referred to in Sections 11.1.4, 11.1.5 and 11.1.7 and
an opinion of counsel for such Subsidiary as to such matters in connection
with the transactions contemplated by the Subsidiary Guaranty and
Subsidiary Security Agreement or Joinder Agreement as Agent may reasonably
request; and
(k) financial statements shall have been delivered to Agent and the
Lenders for the most recently completed Fiscal Quarter in compliance with
the provisions of Section 10.1.3.
A determination made for purposes of this definition on a pro forma basis
shall be based upon Borrowers’ actual results of operations and the actual
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results of operations of the target for the same period of 12 months ended
prior to the date of determination, as if such Acquisition had occurred
(and any related Debt had been incurred) on the first day of such 12-month
period, as adjusted with the approval of Agent to reflect verifiable,
adequately documented severance payments and reductions in officer and
employee compensation, insurance expenses, interest expense and rental
expense that will be realized effective upon completion of such
Acquisition.
Notwithstanding any provision of this Agreement to the contrary, in
connection with any merger (or other distribution of the assets) of a
Subsidiary that is not an Obligor with and into (or to) an Obligor, or any
Acquisition by an Obligor, whether by purchase of stock, merger, or
purchase of assets, and whether in a single transaction or series of
related transactions, Agent shall have the right to determine in its
reasonable credit judgment (based on standards and methodologies similar to
those applied to Borrowers’ then existing Accounts and Equipment to the
extent that the Accounts and Equipment so acquired are similar to such then
existing Accounts and Equipment), whether any Accounts or Equipment so
acquired shall be included in the Borrowing Base (subject to the other
applicable provisions of this Agreement). In connection with such
determination, Agent may obtain, at Borrowers’ expense, such appraisals,
commercial finance exams and other assessments of such Accounts and related
Inventory, Equipment and Real Estate as Agent may deem desirable.
Permitted Contingent Obligations — Contingent Obligations (a)
arising from endorsements of Payment Items for collection or deposit in the
Ordinary Course of Business; (b) arising from Hedging Agreements entered
into in the Ordinary Course of Business pursuant to this Agreement or with
Agent’s prior written consent; (c) of any Borrower and its Subsidiaries
existing as of the Closing Date, including extensions and renewals thereof
that do not increase the amount of such Contingent Obligations as of the
date of such extension or renewal; (d) incurred in the Ordinary Course of
Business with respect to surety bonds, appeal bonds, performance bonds and
other similar obligations; (e) arising under indemnity agreements to title
insurers to cause such title insurers to issue to Agent title insurance
policies; (f) with respect to customary indemnification obligations in
favor of purchasers in connection with dispositions of Equipment permitted
under Section 8.4.2 of this Agreement; (g) consisting of reimbursement
obligations from time to time owing by any Borrower to an Issuing Bank with
respect to Letters of Credit (but in no event to include reimbursement
obligations at any time owing by a Borrower to any other Person that may
issue letters of credit for the account of Borrowers); (h) of MasTec
arising from any guaranty, indemnity or other assurance of payment or
performance of any equipment lease for which any other Obligor is the
primary obligor; and (i) other than those Contingent Obligations described
in the foregoing clauses of this definition, not exceeding $1,000,000 in
the aggregate at any time.
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Permitted Purchase Money Debt — Purchase Money Debt of
Borrowers and their Subsidiaries that is secured by no Lien or only by a
Purchase Money Lien, provided that the aggregate amount of Purchase Money
Debt outstanding at any time does not exceed $30,000,000 and the incurrence
of such Purchase Money Debt does not violate any limitation in the Loan
Documents regarding Capital Expenditures. For the purposes of this
definition, the principal amount of any Purchase Money Debt consisting of
capitalized leases shall be computed as a Capitalized Lease Obligation.
Verizon Concentration Percentage — (a) at any time that
Verizon’s corporate credit rating or senior debt rating (secured or
unsecured) by Xxxxx’x is Baa3 or higher and by S&P BBB- or higher, 40%; or
(b) at any time that Verizon’s corporate credit rating or senior debt
rating (secured or unsecured) by Xxxxx’x is lower than Baa3 or by S&P is
lower than BBB-, 15%; or (c) irrespective of Verizon’s rating, such lesser
percentage as Agent may in its reasonable credit judgment determine from
time to time.
b. By deleting Section 10.2.1 of the Loan Agreement in its entirety and by
substituting the following in lieu thereof:
10.2.1. Fundamental Changes. (i) Merge, reorganize,
consolidate or amalgamate with any Person, or liquidate, wind up its
affairs or dissolve itself, in each case whether in a single transaction or
in a series of related transactions, except that (a) any Obligor or any
Subsidiary of an Obligor may merge or amalgamate with an Obligor (provided
that an Obligor is the surviving or continuing entity of such merger or
amalgamation); (b) any Obligor or Subsidiary of an Obligor may liquidate,
wind up or dissolve itself (provided that all of its Property is
distributed to an Obligor upon the effectiveness of such liquidation,
winding up or dissolution and Agent’s Liens in all Property of the
liquidated, wound up or dissolved entity continue in uninterrupted effect
with the same priority as prior to such liquidation, winding up or
dissolution); and (c) the Property or Equity Interests of any Obligor or
any Subsidiary of an Obligor may be purchased or otherwise acquired by any
Obligor (provided that Agent’s Liens in all Property or Equity Interests so
purchased or acquired continue in uninterrupted effect with the same
priority as prior to such purchase or acquisition). Nothing herein shall
authorize any merger, consolidation or amalgamation or purchase of assets
or Equity Interests if, after giving effect thereto, any Property of an
Obligor would be subject to a Lien that is not a Permitted Lien; or
(ii) change an Obligor’s name or conduct business under any new fictitious
name; or change an Obligor’s FEIN, organizational identification number or
state of organization unless, in each such case, Borrowers shall have given
at least 30 days prior notice to Agent and shall have taken such action as
Agent may reasonably request to maintain the perfection and priority of any
Liens
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of Agent that would otherwise be affected thereby.
c. By deleting Section 10.2.3 of the Loan Agreement in its entirety and by substituting the
following in lieu thereof:
10.2.3. Permitted Debt. Create, incur, assume, guarantee or
suffer to exist any Debt, except:
(i) the Obligations;
(ii) Subordinated Notes;
(iii) accounts payable by such Borrower or a Subsidiary to
trade creditors that are not aged more than 90 days from billing
date or more than 30 days from the due date, in each case incurred
in the Ordinary Course of Business and paid within such time period,
unless the same are being Properly Contested or are paid in
accordance with Borrowers’ customary payment practices and are not
in default;
(iv) Debt for rental payments under operating leases incurred
in the Ordinary Course of Business of such Borrower or Subsidiary
and not secured by a Lien (unless such Lien is a Permitted Lien);
(v) Permitted Purchase Money Debt;
(vi) Debt for accrued payroll, Taxes and other operating
expenses (other than for Money Borrowed) incurred in the Ordinary
Course of Business of such Borrower or such Subsidiary, including
Cash Management Obligations, in each case so long as payment thereof
is not past due and payable unless, in the case of Taxes only, such
Taxes are being Properly Contested;
(vii) Debt for Money Borrowed by such Obligor (other than the
Obligations, Permitted Purchase Money Debt and Subordinated Debt
permitted herein), but only to the extent that such Debt is
outstanding on the date of this Agreement, as described on Schedule
10.2.3 and is not to be satisfied on or about the Closing Date from
the proceeds of the initial Loans;
(viii) Permitted Contingent Obligations;
(ix) Debt of any Person that is in existence at the time that
it becomes or is consolidated into or merged with a Subsidiary of
such Borrower in a Permitted Acquisition or that is secured by any
fixed asset acquired by any Borrower or any Subsidiary at the time
of any Permitted Acquisition, provided that such Debt is not
incurred in
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contemplation of such Person becoming a Subsidiary or such
acquisition of such asset by any Borrower or any of its
Subsidiaries, as the case may be;
(x) Debt that is not included in any of the preceding
paragraphs of this Section 10.2.3, is not secured by a Lien (unless
such Lien is a Permitted Lien) and provided that the sum of the
aggregate amount of such Debt plus the aggregate amount of
Permitted Purchase Money Debt plus the aggregate amount of
Debt described in clause (ix) of this Section does not exceed at
any time $30,000,000 as to all Obligors and all of their
Subsidiaries, and provided further that, in no event shall the
aggregate amount of all such Debt exceed the maximum aggregate
amount of Debt that any of the Obligors are permitted to incur
under the Indenture; and
(xi) Refinancing Debt so long as each of the Refinancing
Conditions is met.
None of the provisions of this Section 10.2.3 that authorize any Obligor to
incur any Debt shall be deemed to (A) override, modify or waive any of the
provisions of Section 10.3, which shall constitute an independent and
separate covenant and obligation of each Borrower, or (B) permit any
Obligor to incur any Debt in violation of any provision of the Indenture.
d. By deleting Section 10.2.9 of the Loan Agreement in its entirety and by substituting the
following in lieu thereof:
10.2.9. Capital Expenditures. Make Capital Expenditures (including
expenditures by way of capitalized leases) which in the aggregate,
as to all
Borrowers and their Subsidiaries, exceed $40,000,000 during 2006 Fiscal Year or
during any Fiscal Year thereafter.
e. By deleting Section 10.3 of the Loan Agreement in its entirety and by substituting the
following in lieu thereof:
10.3. Financial Covenant. For so long as there are any Commitments
outstanding and thereafter until Full Payment of the Obligations, Borrowers covenant
that, if Availability falls below $20,000,000 on any date, then Borrowers (a) shall
immediately demonstrate a Fixed Charge Coverage Ratio of at least 1.10 to 1.0,
calculated for the immediately preceding 12 calendar months for which financial
statements and the corresponding Compliance Certificate have been received by Agent
in accordance with Section 10.1.3 prior to such date, and (b) thereafter, until such
time as Availability is greater than or equal to $20,000,000 for 90 consecutive
days, maintain a Fixed Charge Coverage Ratio of at least 1.10 to 1.0, calculated as
of the last day of each month for the immediately preceding 12 calendar months for
which financial statements and the corresponding Compliance Certificate
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have been received by Agent in accordance with Section 10.1.3 prior to each
date of determination thereof. Borrowers shall include in each Compliance
Certificate a calculation of the Fixed Charge Coverage Ratio, whether or not
Borrowers are required under this Section to maintain a minimum Fixed Charge
Coverage Ratio at the date of, or with respect to the period covered by, the
Compliance Certificate.
f. By deleting the Schedules to the Loan Agreement in their entireties and by
substituting in lieu thereof the revised Schedules attached hereto.
3. Ratification and Reaffirmation. Each Borrower hereby ratifies and reaffirms the
Obligations, each of the Loan Documents and all of such Borrower’s covenants, duties, indebtedness
and liabilities under the Loan Documents.
4. Acknowledgments and Stipulations. Each Borrower acknowledges and stipulates that
the Loan Agreement and the other Loan Documents executed by such Borrower are legal, valid and
binding obligations of such Borrower that are enforceable against such Borrower in accordance with
the terms thereof; all of the Obligations are owing and payable without defense, offset or
counterclaim (and to the extent there exists any such defense, offset or counterclaim on the date
hereof, the same is hereby waived by such Borrower); the security interests and Liens granted by
such Borrower in favor of Agent are duly perfected, first priority security interests and Liens,
subject only to Permitted Liens; and, as of the close on business on May 3, 2006,the unpaid
principal amount of the Revolver Loans totaled $0, and the face amount of outstanding Letters of
Credit totaled $63,945,498.74.
5. Representations and Warranties. Each Borrower represents and warrants to Agent and
Lenders, to induce Agent and Lenders to enter into this Amendment, that no Default or Event of
Default exists on the date hereof; the execution, delivery and performance of this Amendment have
been duly authorized by all requisite entity action on the part of such Borrower and this Amendment
has been duly executed and delivered by such Borrower; and all of the representations and
warranties made by Borrowers in the Loan Agreement are true and correct in all material respects on
and as of the date hereof after giving effect to this Amendment and to the revised Schedules to the
Loan Agreement delivered herewith.
6. Reference to Loan Agreement. Upon the effectiveness of this Amendment, each
reference in the Loan Agreement to “this Agreement,” “hereunder,” or words of like import shall
mean and be a reference to the Loan Agreement, as amended by this Amendment.
7. Breach of Amendment. This Amendment shall be part of the Loan Agreement and a
breach of any representation, warranty or covenant herein shall constitute an Event of Default.
8. Conditions Precedent. The amendments contained in Section 2 of this Amendment
shall become effective as of the date hereof, in each case on the date, in each case on the date on
which Agent shall have received, on or before May 8, 2005: the following documents, each of which
shall be satisfactory in form and substance to Agent and in sufficient copies for each Lender:
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a. this Amendment duly executed and delivered by the Borrowers, the Lenders and Agent and the
Consent and Reaffirmation of Guarantors, duly executed and delivered by the Guarantors; and
b. a certificate of the secretary or assistant secretary of each Obligor having attached
thereto the articles or certificate of incorporation and bylaws of such Obligor (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 May 10, 2005), and
certifying all entity action, including shareholders’ or members’ approval, if necessary, has been
taken by such Obligor and/or its shareholders or members to authorize the execution, delivery and
performance of this Amendment and the incumbency of the officers of such Obligor executing this
Amendment and any other documents in connection herewith.
9. Expenses of Agent. Borrowers agree to pay, on demand, all costs and expenses
incurred by Agent in connection with the preparation, negotiation and execution of this Amendment
and any other Loan Documents executed pursuant hereto and any and all amendments, modifications,
and supplements thereto, including, without limitation, the costs and fees of Agent’s legal counsel
and any taxes or expenses associated with or incurred in connection with any instrument or
agreement referred to herein or contemplated hereby.
10. Effectiveness; Governing Law. This Amendment shall be effective upon acceptance
by Agent in Atlanta, Georgia (notice of which acceptance is hereby waived), whereupon the same
shall be governed by and construed in accordance with the internal laws of the State of Georgia.
11. Successors and Assigns. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
12. No Novation, etc.. Except as otherwise expressly provided in this Amendment,
nothing herein shall be deemed to amend or modify any provision of the Loan Agreement or any of the
other Loan Documents, each of which shall remain in full force and effect. This Amendment is not
intended to be, nor shall it be construed to create, a novation or accord and satisfaction, and the
Loan Agreement as herein modified shall continue in full force and effect.
13. Counterparts; Telecopied Signatures. This Amendment may be executed in any number
of counterparts and by different parties to this Amendment on separate counterparts, each of
which, when so executed, shall be deemed an original, but all such counterparts shall constitute
one and the same agreement. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.
14. Further Assurances. Each Borrower agrees to take such further actions as 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.
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15. 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 agreements
among the parties hereto.
16. Waiver of Jury Trial. To the fullest extent permitted by Applicable Law, the
parties hereto each 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 on the date first written above.
| BORROWERS: MASTEC, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| ATTEST: | Name: | Xxxxxxx X. Xxxxxx | ||
| /s/
Xxxxxxx xx
Xxxxxxxx Xxxxxxx xx Xxxxxxxx, Secretary [CORPORATE SEAL] |
Title: | Executive Vice President | ||
MASTEC NORTH AMERICA AC, LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President | |||
| MASTEC TC, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President | |||
| MASTEC FC, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President | |||
[Signatures continue on following page]
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| MASTEC CONTRACTING COMPANY, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President | |||
| MASTEC MINNESOTA SW, LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President | |||
| MASTEC SERVICES COMPANY, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President | |||
| MASTEC ASSET MANAGEMENT COMPANY, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President | |||
| CHURCH & TOWER, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President | |||
| MASTEC OF TEXAS, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President | |||
[Signatures continue on following page]
-00-
XXXXXX XXXXX XXXXXXX, INC.
(and
as successor by merger to each of Xxxx-Cell, Inc., Dresser/Areia
Construction, Inc., Flaire Incorporated, MasTec Telcom &
Electrical Services,
Inc., Protel Ind., Inc., Upper Valley Utilities Corp., MasTec
Integration
Systems, Inc., MasTec Network Services, Inc., Renegade of Idaho,
Inc., MasTec
Real Estate Holdings, Inc., Northland Contracting, Inc., Wilde
Optical Service,
Inc., Church & Tower Environmental, Inc., Wilde Holding Co.,
Inc., and Wilde
Acquisition Co., Inc.)
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President | |||
| S.S.S. CONSTRUCTION, INC. |
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| By: | /s/ Xxxxx Xxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxx | |||
| Title: | Vice President/Secretary | |||
[Signatures continue on following page]
-14-
| LENDERS: BANK OF AMERICA, N.A., as Agent and a Lender |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Xxxxxx X. Xxxxx, Senior Vice President | ||||
| LASALLE BUSINESS CREDIT, LLC, as a Lender |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Vice President | |||
| PNC BANK, NATIONAL ASSOCIATION, as a Lender |
||||
| By: | /s/ Xxxx X. Council | |||
| Name: | Xxxx X. Council | |||
| Title: | Vice President | |||
| GENERAL ELECTRIC CAPITAL CORPORATION, as Syndication Agent and a Lender |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Duly Authorized Signatory | |||
-15-
CONSENT AND REAFFIRMATION
Each of the undersigned guarantors of the Obligations at any time owing to Agent or Lenders
hereby (i) acknowledges receipt of a copy of the foregoing First Amendment to Amended and Restated
Loan and Security Agreement; (ii) consents to Borrowers’ execution and delivery thereof and of the
other documents, instruments or agreements any Borrower agrees to execute and deliver pursuant
thereto; (iii) agrees to be bound thereby; and (iv) affirms that nothing contained therein shall
modify in any respect whatsoever its respective guaranty of the Obligations and reaffirms that such
guaranty is and shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned has executed this Consent and Reaffirmation in Miami, Florida, as of the date of such First Amendment to Amended and Restated Loan and Security
Agreement.
| GUARANTORS: PHASECOM SYSTEMS, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President | |||
| INTEGRAL POWER & TELECOMMUNICATIONS CORPORATION, LTD. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President | |||
| MASTEC NORTH AMERICA AC, LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President | |||
-16-
