FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.2
THIS FIRST AMENDMENT TO CREDIT
AGREEMENT , dated as of April 10, 2009 (the “ Amendment ”), is by
and among DYCOM INDUSTRIES,
INC. , a Florida corporation (the “ Borrower ”), those
Domestic Subsidiaries of the Borrower identified as a “Guarantor” on the
signature pages hereto (individually a “ Guarantor ” and
collectively the “ Guarantors ”), the
Lenders party hereto and WACHOVIA BANK, NATIONAL
ASSOCIATION , as administrative agent for the Lenders (in such capacity,
the “ Administrative
Agent ”).
W
I T N E S S E T H
WHEREAS , the Borrower,
the Guarantors, such other Domestic Subsidiaries of the Borrower as may from
time to time become party thereto, the lenders from time to time party thereto
(the “ Lenders
”) and the Administrative Agent are parties to that certain Credit Agreement
dated as of September 12, 2008 (as amended, restated, supplemented or
otherwise modified through the date hereof, the “ Credit Agreement ”;
capitalized terms used herein shall have the meanings ascribed thereto in the
Credit Agreement);
WHEREAS , the Borrower
has requested that the Required Lenders (on behalf of the Lenders) agree to
amend certain terms of the Credit Agreement; and
WHEREAS , the Required
Lenders have agreed to such amendments of the Credit Agreement, subject to the
terms and conditions contained herein.
NOW, THEREFORE , in
consideration of the agreements hereinafter set forth, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION
1
AMENDMENTS TO CREDIT
AGREEMENT
1.1 Definition
of Aggregate Revolving Committed Amount . The definition of “Aggregate
Revolving Committed Amount” as set forth in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
“ Aggregate
Revolving Committed Amount ” means the aggregate amount of
Commitments in effect from time to time, being TWO HUNDRED TEN
MILLION DOLLARS ($210,000,000) .
1.2 Schedule 2.1(a)
. Schedule 2.1(a)
is hereby amended and restated in its entirety to read as set forth on Schedule 1
attached hereto.
SECTION
2
CLOSING
CONDITIONS
2.1 Closing
Conditions . This
Amendment shall become effective as of the date hereof (the “ Amendment Effective
Date ”) upon satisfaction of the following conditions (in form and
substance reasonably acceptable to the Administrative Agent):
(a)
Executed
Amendment . The Administrative Agent shall have received (i) a
counterpart hereof, duly executed by each of the Credit Parties, the New Lender
(as defined below) and the Required Lenders (determined before giving effect to
this Amendment) and (ii) to the extent requested, a Revolving Note for the
account of the New Lender.
(b)
Fees and
Expenses . The Administrative Agent shall have received from the Borrower
such fees and expenses that are payable in connection with the consummation of
the transactions contemplated hereby, including, without limitation, the
reasonable fees and expenses of Xxxxx & Xxx Xxxxx PLLC.
(c)
Corporate
Documents . The Administrative Agent shall have received the following,
each in form and substance reasonably satisfactory to the Administrative Agent,
an officer’s certificate (A) certifying that the articles of incorporation
or other organizational documents, as applicable, of each Credit Party that were
delivered on the Closing Date or the date on which any Credit Party was joined
as a Guarantor pursuant to the Joinder Agreement dated as of October 24,
2008 (the “ Joinder
Date ”) remain true and complete as of the Amendment Effective Date (or
certified updates as applicable), (B) certifying that the bylaws, operating
agreements or partnership agreements of each Credit Party that were delivered on
the Closing Date or Joinder Date remain true and correct and in force and effect
as of the Amendment Effective Date (or certified updates as applicable) 1 , (C) certifying that the
resolutions of the board of directors of each Credit Party delivered on the
Closing Date or Joinder Date approving the transactions contemplated herein and
authorizing the execution and delivery hereof have not been amended or rescinded
and are in full force and effect as of the Amendment Effective Date,
(D) certifying that each officer listed in the incumbency certification
contained in each Credit Party’s Secretary’s Certificate, except with respect to
OSP Services, LLC, delivered on the Closing Date or Joinder Date remains a duly
elected and qualified officer of such Credit Party and such officer remains duly
authorized to execute and deliver on behalf of such Credit Party the Amendment
and (E) including an incumbency certification for an officer of OSP Services,
LLC signing this Amendment.
(d)
Officer’s
Certificate . The Administrative Agent shall have received a duly
executed officer’s certificate, in form and substance reasonably satisfactory to
the Administrative Agent, demonstrating that, after giving effect to this
Amendment on a Pro Forma Basis, the Credit Parties will be in compliance with
the financial covenants set forth in Section 6.7 of the Credit
Agreement.
(e)
Legal Opinion .
The Administrative Agent shall have received opinions of legal counsel for the
Credit Parties, addressed to the Administrative Agent and the Lenders, which
opinions shall be in form and substance reasonably acceptable to the
Administrative Agent.
(f)
New Lender
Commitments . The Borrower shall have received Commitments from the New
Lender in the amount specified on Schedule 1
attached hereto.
(g)
Default . After
giving effect to this Amendment, no Default or Event of Default shall
exist.
_________________
|
1
|
The
bylaws of Dycom Industries, Inc. were amended on February 24, 2009,
as described in the 8-K filed on March 3, 2009. The amended bylaws
will be attached to the Officer’s
certificate.
|
2
(h)
Miscellaneous .
All other documents and legal matters in connection with the transactions
contemplated by this Amendment shall be reasonably satisfactory in form and
substance to the Administrative Agent and its counsel.
SECTION
3
REVOLVER
INCREASE
3.1 Revolver
Increase
(a)
New Lender .
The Lender not a party to the Credit Agreement prior to the date hereof (the “
New Lender ”)
and identified on its signature page hereto (i) confirms that it has
received a copy of the Credit Agreement, together with such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Amendment and the Credit Agreement; (ii) agrees
that it will, independently and without reliance upon the Administrative Agent
or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iii) appoints and authorizes
the Administrative Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Credit Agreement as are delegated
to the Administrative Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; and (iv) agrees that it
shall (A) be a party to the Credit Agreement and the other Credit
Documents, (B) be a “Lender” for all purposes of the Credit Agreement and
the other Credit Documents, (C) share ratably in all LOC Obligations, (D)
perform all of the obligations that by the terms of the Credit Agreement are
required to be performed by it as a Lender under the Credit Agreement and
(E) shall have the rights and obligations of a Lender under the Credit
Agreement and the other Credit Documents.
(b)
Lenders .
(i) The Revolving Commitment of each Lender (including the New Lender)
shall be the amount set forth opposite the name of such Lender in Schedule 1
attached hereto and (ii) the respective LOC Obligations of the Lenders
shall be redetermined based upon each Lender’s Commitment
Percentage.
SECTION
4
MISCELLANEOUS
4.1 Amended
Terms . The term “Credit Agreement” as used in each of the Credit
Documents shall hereafter mean the Credit Agreement as amended by this
Amendment. Except as specifically amended hereby or otherwise agreed, the Credit
Agreement is hereby ratified and confirmed and shall remain in full force and
effect according to its terms.
4.2 Representations
and Warranties of Credit Parties . Each Credit Party hereby represents
and warrants as follows:
(a)
It has taken all necessary action to authorize the execution, delivery and
performance of this Amendment.
(b)
This Amendment has been duly executed and delivered by such Person and
constitutes such Person’s legal, valid and binding obligations, enforceable in
accordance with its terms, except as such enforceability may be subject to
(i) bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or similar laws of general applicability relating to or
affecting creditors’ rights and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding at law
or in equity).
3
(c)
No consent, approval, authorization or order of, or filing, registration or
qualification with, any court or Governmental Authority or third party is
required in connection with the execution, delivery or performance by such
Person of this Amendment.
(d)
After giving effect to this Amendment, the representations and warranties made
by any Credit Party herein or in any other Credit Document or which are
contained in any certificate furnished at any time under or in connection
herewith or therewith are (i) with respect to representations and
warranties that contain a materiality qualification, true and correct (after
giving effect to such materiality qualification set forth therein) and (ii) with
respect to representations and warranties that do not contain a materiality
qualification, true and correct in all material respects, in each case on and as
of the date hereof as if made on and as of such date except for any
representation or warranty made as of an earlier date, which representation and
warranty remains true and correct (or true and correct in all material respects,
as applicable) as of such earlier date.
(e)
Both before and after giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing.
(f)
After giving effect to this Amendment, the Credit Parties are in compliance with
Section 4.2 of the Credit Agreement.
4.3 Credit
Document . This
Amendment shall constitute a Credit Document under the terms of the Credit
Agreement and shall be subject to the terms and conditions thereof (including,
without limitation, Sections 11.14 and 11.17 of the Credit
Agreement).
4.4 Entirety
.. This Amendment and the other Credit Documents embody the entire agreement
among the parties hereto and supersede all prior agreements and understandings,
oral or written, if any, relating to the subject matter hereof.
4.5 Counterparts;
Telecopy . This Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. Delivery of an executed
counterpart to this Amendment by telecopy shall be effective as an original and
shall constitute a representation that an original will be
delivered.
4.6 Incremental
Revolving Facility . Each of the parties hereto acknowledges and agrees
that by the Credit Party’s execution and delivery of this Amendment (a) the
Credit Parties are using $15,000,000 of the $100,000,000 Incremental Revolving
Facility basket set forth in Section 2.1(f) of the Credit Agreement and
(b) the Aggregate Revolving Committed Amount may only be increased an
additional two (2) times under the Incremental Revolving Facility set forth
in Section 2.1(f) of the Credit Agreement.
4.7 GOVERNING
LAW . THIS AMENDMENT AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
[Signature
Pages to Follow]
4
DYCOM
INDUSTRIES, INC.
FIRST
AMENDMENT TO CREDIT AGREEMENT
IN WITNESS WHEREOF ,
each of the parties hereto has caused a counterpart of this Amendment to be duly
executed and delivered as of the date first above written.
|
BORROWER :
|
DYCOM
INDUSTRIES, INC.,
a
Florida corporation
|
|||||||
|
By:
|
/s/
H. Xxxxxx XxXxxxxxx
|
|||||||
|
Name:
Title:
|
H.
Xxxxxx XxXxxxxxx
Senior
Vice President and Chief Financial Officer
|
|||||||
|
GUARANTORS
:
|
ANSCO
& ASSOCIATES, LLC,
a
Delaware limited liability company
|
|||||||
|
APEX
DIGITAL, LLC,
a
Delaware limited liability company
|
||||||||
|
BROADBAND
EXPRESS, LLC,
a
Delaware limited liability company
|
||||||||
|
BROADBAND
INSTALLATION SERVICES, LLC,
a
Delaware limited liability company
|
||||||||
|
C-2
UTILITY CONTRACTORS, LLC
a
Delaware limited liability company
|
||||||||
|
CABLE
CONNECTORS, LLC,
a
Delaware limited liability company
|
||||||||
|
CABLECOM,
LLC,
a
Delaware limited liability company
|
||||||||
|
CABLECOM
OF CALIFORNIA, INC.
a
Delaware corporation
|
||||||||
|
CAN-AM
COMMUNICATIONS, INC.,
a
Delaware corporation
|
||||||||
|
CAVO
BROADBAND COMMUNICATIONS, LLC,
a
Delaware limited liability company
|
||||||||
|
COMMUNICATIONS
CONSTRUCTION GROUP, LLC,
a
Delaware limited liability company
|
||||||||
|
By:
|
/s/
H. Xxxxxx XxXxxxxxx
|
|||||||
|
Name:
Title:
|
H.
Xxxxxx XxXxxxxxx
Treasurer
|
|||||||
DYCOM
INDUSTRIES, INC.
FIRST
AMENDMENT TO CREDIT AGREEMENT
|
DYCOM
CAPITAL MANAGEMENT, INC.,
a
Delaware corporation
|
||||||
|
DYCOM
CORPORATE IDENTITY, INC.,
a
Delaware corporation
|
||||||
|
DYCOM
IDENTITY, LLC,
a
Delaware limited liability company
|
||||||
|
DYCOM
INVESTMENTS, INC.,
a
Delaware corporation
|
||||||
|
XXXXX
CABLE CONSTRUCTION, LLC,
a
Delaware limited liability company
|
||||||
|
GLOBE
COMMUNICATIONS, LLC,
a
North Carolina limited liability company
|
||||||
|
INSTALLATION
TECHNICIANS, LLC,
a
Florida limited liability company
|
||||||
|
XXX
X. XXXXX COMPANY, LLC,
a
Delaware limited liability company
|
||||||
|
XXXXXXX’X
CABLE SPLICING COMPANY, LLC,
a
Delaware limited liability company
|
||||||
|
LOCATING,
INC.,
a
Washington corporation
|
||||||
|
XXXXXXX
CONSTRUCTION, LLC,
a
Delaware limited liability company
|
||||||
|
XXXXX
XXXXX SONS COMPANY, LLC,
|
||||||
|
a
Delaware limited liability company
|
||||||
|
XXXXX
XXXXX SONS COMPANY OF CALIFORNIA, INC.
a
Delaware corporation
|
||||||
|
POINT
TO POINT COMMUNICATIONS, INC.,
a
Louisiana corporation
|
||||||
|
PRECISION
VALLEY COMMUNICATIONS OF VERMONT, LLC,
a
Delaware limited liability company
|
||||||
|
By:
|
/s/
H. Xxxxxx XxXxxxxxx
|
|||||
|
Name:
|
H.
Xxxxxx XxXxxxxxx
|
|||||
|
Title:
|
Treasurer
|
|||||
DYCOM
INDUSTRIES, INC.
FIRST
AMENDMENT TO CREDIT AGREEMENT
|
PRINCE
TELECOM, LLC
a
Delaware limited liability company
|
||||||
|
RJE
TELECOM, LLC,
a
Delaware limited liability company
|
||||||
|
RJE
TELECOM OF CALIFORNIA, INC.
a
Delaware corporation
|
||||||
|
STAR
CONSTRUCTION, LLC,
a
Delaware limited liability company
|
||||||
|
XXXXXXX
COMMUNICATIONS, LLC,
a
Delaware limited liability company
|
||||||
|
S.T.S.,
LLC,
a
Tennessee limited liability company
|
||||||
|
TCS
COMMUNICATIONS, LLC,
a
Delaware limited liability company
|
||||||
|
TESINC,
LLC,
a
Delaware limited liability company
|
||||||
|
TESINC
OF CALIFORNIA, INC.
a
Delaware corporation
|
||||||
|
TRIPLE-D
COMMUNICATIONS LLC,
a
Delaware limited liability company
|
||||||
|
U G
T I,
a
California corporation
|
||||||
|
UNDERGROUND
SPECIALTIES, LLC,
a
Delaware limited liability company
|
||||||
|
UTILIQUEST,
LLC,
a
Georgia limited liability company
|
||||||
|
WHITE
MOUNTAIN CABLE CONSTRUCTION, LLC,
a
Delaware limited liability company
|
||||||
|
By:
|
/s/
H. Xxxxxx XxXxxxxxx
|
|||||
|
Name:
|
H.
Xxxxxx XxXxxxxxx
|
|||||
|
Title:
|
Treasurer
|
|||||
DYCOM
INDUSTRIES, INC.
FIRST
AMENDMENT TO CREDIT AGREEMENT
|
MIDTOWN
EXPRESS, LLC,
a
Delaware limited liability company
|
||||
|
By:
|
/s/
Xxxxxx Xxxxxxx
|
|||
|
Name:
|
Xxxxxx
Xxxxxxx
|
|||
|
Title:
|
President
|
|||
|
OSP
SERVICES, LLC,
a
Delaware limited liability company
|
||||
|
By:
|
/s/
Xxxx Xxxxxxxxxx
|
|||
|
Name:
|
Xxxx
Xxxxxxxxxx
|
|||
|
Title:
|
President
|
|||
DYCOM
INDUSTRIES, INC.
FIRST
AMENDMENT TO CREDIT AGREEMENT
|
ADMINISTRATIVE AGENT AND LENDERS
:
|
WACHOVIA
BANK, NATIONAL ASSOCIATION,
individually
in its capacity as a
Lender
and in its capacity as Administrative Agent
|
|||
|
By:
|
/s/
Xxxx X. Xxxxxx
|
|||
|
Name:
|
Xxxx
X. Xxxxxx
|
|||
|
Title:
|
Managing
Director
|
|||
DYCOM
INDUSTRIES, INC.
FIRST
AMENDMENT TO CREDIT AGREEMENT
|
BANK
OF AMERICA, N.A., as a Lender
|
|||||
|
By:
|
/s/
Xxxxx Xxxxxxxx
|
||||
|
Name:
|
Xxxxx
Xxxxxxxx
|
||||
|
Title:
|
Vice
President
|
||||
DYCOM
INDUSTRIES, INC.
FIRST
AMENDMENT TO CREDIT AGREEMENT
|
BRANCH
BANKING AND TRUST COMPANY, as a Lender
|
||||
|
By:
|
/s/
C. Xxxxxxx Xxxxxxxx
|
|||
|
Name:
|
C.
Xxxxxxx Xxxxxxxx
|
|||
|
Title:
|
Senior
Vice President
|
|||
DYCOM
INDUSTRIES, INC.
FIRST
AMENDMENT TO CREDIT AGREEMENT
|
RBS
CITIZENS, N.A., as a Lender
|
|||||
|
By:
|
/s/
Xxxxxxx X. Xxxxxxx
|
||||
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
||||
|
Title:
|
Senior
Vice President
|
||||
DYCOM
INDUSTRIES, INC.
FIRST
AMENDMENT TO CREDIT AGREEMENT
|
COMPASS
BANK, as a Lender
|
|||||
|
By:
|
/s/
Xxxxx Xxxxx
|
||||
|
Name:
|
Xxxxx
Xxxxx
|
||||
|
Title:
|
Vice
President
|
||||
DYCOM
INDUSTRIES, INC.
FIRST
AMENDMENT TO CREDIT AGREEMENT
|
SUNTRUST
BANK, as a Lender
|
|||||
|
By:
|
/s/
Xxxxxx Xxxxxx
|
||||
|
Name:
|
Xxxxxx
Xxxxxx
|
||||
|
Title:
|
Director
|
||||
DYCOM
INDUSTRIES, INC.
FIRST
AMENDMENT TO CREDIT AGREEMENT
|
REGIONS
BANK, as a Lender
|
|||||
|
By:
|
/s/
Xxxxxxx Xxxxx
|
||||
|
Name:
|
Xxxxxxx
Xxxxx
|
||||
|
Title:
|
Senior
Vice President
|
||||
DYCOM
INDUSTRIES, INC.
FIRST
AMENDMENT TO CREDIT AGREEMENT
|
NATIONAL
CITY BANK, as a Lender
|
||||
|
By:
|
/s/
Xxxxxx Xxxxxx Xxxxxx
|
|||
|
Name:
|
Xxxxxx
Xxxxxx Xxxxxx
|
|||
|
Title:
|
Senior
Vice President
x New
Lender
|
|||
Schedule
1
Schedule 2.1(a) to the
Credit Agreement
|
Schedule
2.1(a)
|
||||||||||||
|
Schedule
of Lenders and Commitments
|
||||||||||||
|
Lender
|
Revolving
Committed
Amount
|
Commitment
Percentage
|
LOC
Committed
Amount
|
|||||||||
|
Wachovia
Bank, National Association
|
$ | 40,000,000.00 | 19.047619048 | % | $ | 19,047,619.05 | ||||||
|
Bank
of America, N.A.
|
$ | 40,000,000.00 | 19.047619048 | % | $ | 19,047,619.05 | ||||||
|
Branch
Banking and Trust Company
|
$ | 30,000,000.00 | 14.285714286 | % | $ | 14,285,714.29 | ||||||
|
RBS
Citizens, N.A.
|
$ | 30,000,000.00 | 14.285714286 | % | $ | 14,285,714.29 | ||||||
|
Compass
Bank
|
$ | 20,000,000.00 | 9.523809524 | % | $ | 9,523,809.52 | ||||||
|
SunTrust
Bank
|
$ | 20,000,000.00 | 9.523809524 | % | $ | 9,523,809.52 | ||||||
|
Regions
Bank
|
$ | 15,000,000.00 | 7.142857143 | % | $ | 7,142,857.14 | ||||||
|
National
City Bank
|
$ | 15,000,000.00 | 7.142857143 | % | $ | 7,142,857.14 | ||||||
| $ | 210,000,000.00 | 100.000000000 | % | $ | 100,000,000.00 | |||||||
