Exhibit 10.7
SECOND AMENDMENT TO REVOLVING
CREDIT AGREEMENT
THIS SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Second
Amendment") is made and entered into as of the 31st day of July, 1998, by and
among MASTEC, INC., a Delaware corporation (the "Parent"), its Subsidiaries
(other than Excluded Subsidiaries and members of the MasTec International Group)
listed on Schedule 1 to the Credit Agreement defined below (together with the
Parent, collectively the "Borrowers"), BANKBOSTON, N.A., CREDITANSTALT CORPORATE
FINANCE, INC., FIRST UNION NATIONAL BANK OF FLORIDA, SCOTIABANC INC., THE FUJI
BANK AND TRUST COMPANY, COMERICA BANK and LTCB TRUST COMPANY (collectively, the
"Banks") and BANKBOSTON, N.A. as agent (the "Agent") for the Banks.
WHEREAS, the Borrowers, the Banks and the Agent entered into a
Revolving Credit Agreement dated as of June 9, 1997, as amended by a First
Amendment to Revolving Credit Agreement dated as of January 28, 1998 (as the
same may be further amended and in effect from time to time the "Credit
Agreement"), pursuant to which the Banks extended credit to the Borrowers on the
terms set forth therein;
WHEREAS, the Parent has informed the Banks that G.J.S. Construction
Company has merged into Shanco Corporation;
WHEREAS, the Parent has requested that the Banks consent to make
effective the provisions of ss.7.3(e)(ii) of the Credit Agreement, and the Banks
are willing to consent to make effective the provisions of ss.7.3(e)(ii) of the
Credit Agreement on the terms set forth herein;
WHEREAS, the Parent has requested certain revisions to the Credit
Agreement and the parties desire to amend the Credit Agreement on the terms set
forth herein;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree to amend the Credit Agreement as follows:
1. Definitions. Capitalized terms used herein without
definition shall have the meanings assigned to such terms in the
Credit Agreement.
2. Addition of Creditanstalt Corporate Finance, Inc. Pursuant to that
certain Assignment and Acceptance dated as of April 1, 1998, by and between
Creditanstalt AG (f/k/a Creditanstalt-Bankverein) and Creditanstalt Corporate
Finance, Inc. ("CCFI"), as of such date CCFI accepted and assumed the rights and
obligations of a Bank under the Credit Agreement.
3. Amendment to ss.1 of the Credit Agreement. Effective as of July 9,
1998, ss.1 of the Credit Agreement is hereby amended by deleting the definition
of "Commitment Percentage" in its entirety and substituting in place thereof the
following new definition:
"Commitment Percentage. With respect to each Bank, the
percentage set forth beside its name below (subject to adjustment upon
any assignments pursuant to ss.17):
Bank Percentage
BKB 21.6000%
First Union 20.0000%
Comerica 13.6000%
LTCB 13.6000%
Creditanstalt Corporate
Finance, Inc. 10.4000%
Fuji 10.4000%
SBI 10.4000%".
4. Amendment to ss.7.3 of the Credit Agreement. Section 7.3 of the
Credit Agreement is hereby amended by deleting clause (e)(ii) thereof in its
entirety and substituting in place thereof the following new clause (e)(ii):
"(ii) (A) 50% of net cash proceeds received in connection with
the issuance by the Parent of the Senior Subordinated Notes due
February 1, 2008."
5. Amendment to ss.8.1 of the Credit Agreement. Section 8.1 of the
Credit Agreement is hereby amended by deleting clause (b) thereof in its
entirety and substituting in place thereof the following new clause (b):
"(b) the ratio of (i) Funded Debt to (ii) EBITDA for the period of four
(4) consecutive fiscal quarters ending on such date shall not exceed
the ratio set forth opposite such date below:
--------------------------------- ------------------------
Date Ratio
--------------------------------- ------------------------
June 30, 1998 4.50:1
--------------------------------- ------------------------
September 30, 1998 4.50:1
--------------------------------- ------------------------
December 31, 1998 4.00:1
--------------------------------- ------------------------
March 31, 1999 3.50:1
--------------------------------- ------------------------
June 30, 1999 3.25:1
--------------------------------- ------------------------
September 30, 1999 and 3.00:1
thereafter
--------------------------------- ------------------------
6. Amendment to ss.8.3 of the Credit Agreement. Section 8.3 of the
Credit Agreement is hereby amended by deleting ss.8.3 in its entirety and
substituting in place thereof the following new ss.8.3:
"ss.8.3 Interest Coverage Ratio. As of the end of any fiscal
quarter of the Borrowers commencing with the fiscal quarter ending
March 31, 1997, the ratio of (a) EBIT for the period of four (4)
consecutive fiscal quarters ending on such date to (b) Consolidated
Total Interest Expense for such period shall not be less than the ratio
set forth opposite such date below:
--------------------------------- ------------------------
Date Ratio
--------------------------------- ------------------------
June 30, 1998 3.50:1
--------------------------------- ------------------------
September 30, 1998 2.50:1
--------------------------------- ------------------------
December 31, 1998 2.50:1
--------------------------------- ------------------------
March 31, 1999 2.75:1
--------------------------------- ------------------------
June 30, 1999 3.00:1
--------------------------------- ------------------------
September 30, 1999 3.25:1
--------------------------------- ------------------------
December 31, 1999 3.50:1
--------------------------------- ------------------------
Thereafter 4.00:1."
--------------------------------- ------------------------
7. Amendment to ss.8.4 of the Credit Agreement. Section 8.4 of the
Credit Agreement is hereby amended by deleting ss.8.4 in its entirety and
substituting in place thereof the following new ss.8.4:
"ss.8.4 [This section intentionally omitted.]"
8. Amendment Fee. Each Bank which executed and delivered its signature
pages by 5:00 p.m. July 31, 1998 by facsimile (to be followed by originals)
shall receive from the Parent an amendment fee equal to 0.05% of such Bank's
Commitment payable to such Bank for its own account.
9. Effectiveness. This Second Amendment shall be effective as of the date
hereof, subject to the receipt by the Agent of this Second Amendment duly and
properly authorized, executed and delivered by the respective parties hereto.
This Second Amendment shall become effective upon satisfaction of each of the
following conditions:
(a) This Second Amendment shall have been executed and delivered
by the respective parties hereto;
(b) The Borrowers shall have executed and delivered an
affidavit regarding the execution of the Second Amendment outside of
the State of Florida; and
(c) Shanco Corporation shall have delivered to the Agent
copies of its certificate and/or plan of merger filed with its charter
or other incorporation documents, certified by the Secretary of State
of its jurisdictions of incorporation;
provided, however, that as of the Effective Date ss.2 of this Second
Amendment shall be deemed to have been effective as of April 1, 1998 and ss.3 of
this Second Amendment shall be deemed to have been effective as of July 9, 1998.
10. Representations and Warranties. Each of the Borrowers represents
and warrants as follows:
(a) The execution, delivery and performance of each of this Second
Amendment and the transactions contemplated hereby are within the
corporate power and authority of such Borrower and have been or will
be authorized by proper corporate proceedings, and do not (a)
require any consent or approval of the stockholders of such Borrower,
(b) contravene any provision of the charter documents or by-laws of
such Borrower or any law, rule or regulation applicable to such
Borrower, or (c) contravene any provision of, or constitute an event of
default or event which, but for the requirement that time elapse or
notice be given, or both, would constitute an event of default under,
any other material agreement, instrument or undertaking binding on such
Borrower.
(b) This Second Amendment and the Credit Agreement, as amended as of
the date hereof, and all of the terms and provisions hereof and
thereof are the legal, valid and binding obligations of such Borrower
enforceable in accordance with their respective terms except as limited
by bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors' rights generally, and except as
the remedy of specific performance or of injunctive relief is subject
to the discretion of the court before which any proceeding therefor may
be brought.
(c) The execution, delivery and performance of this Second
Amendment and the transactions contemplated hereby do not require any
approval or consent of, or filing or registration with, any
governmental or other agency or authority, or any other party.
(d) The representations and warranties contained in ss.5 of
the Credit Agreement are true and correct in all material respects as
of the date hereof as though made on and as of the date hereof.
(e) No Default or Event of Default under the Credit Agreement
has occurred and is continuing.
11. Ratification, etc. Except as expressly amended hereby, the Credit
Agreement, the other Loan Documents and all documents, instruments and
agreements related thereto are hereby ratified and confirmed in all respects and
shall continue in full force and effect. This Second Amendment and the Credit
Agreement shall hereafter be read and construed together as a single document,
and all references in the Credit Agreement or any related agreement or
instrument to the Credit Agreement shall hereafter refer to the Credit Agreement
as amended by this Second Amendment.
12. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND
SHALL TAKE EFFECT AS A SEALED INSTRUMENT IN ACCORDANCE WITH SUCH LAWS.
13. Counterparts. This Second Amendment may be executed in any number
of counterparts and by different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, each of the undersigned have duly executed this
Second Amendment under seal as of the date first set forth above.
The Borrowers:
MASTEC, INC.
By:___________________________________
Name:
Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
B & D CONTRACTORS OF SHELBY, INC.
BURNUP & ▇▇▇▇ OF TEXAS, INC.
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ CO., INC.
UTILITY PRECAST, INC.
BURNUP & ▇▇▇▇ TELCOM OF FLORIDA, INC.
CHURCH & TOWER ENVIRONMENTAL, INC.
CHURCH & TOWER FIBER TEL, INC.
CHURCH & TOWER, INC.
CHURCH & TOWER OF FLORIDA, INC.
CHURCH & TOWER OF TN, INC.
DESIGNED TRAFFIC INSTALLATION CO.
GDSI, INC.
▇▇▇▇▇▇▇ CABLE CONSTRUCTION, INC.
LATLINK CORPORATION
LATLINK ARGENTINA, INC.
MASTEC COMTEC OF CALIFORNIA, INC.
MASTEC COMTEC OF THE CAROLINAS, INC.
MASTEC TECHNOLOGIES, INC.
MASTEC TELEPORT, INC.
▇.▇. ▇▇▇▇▇ & ASSOCIATES, INC.
▇.▇. ▇▇▇▇▇ AND ASSOCIATES, INC. OF VIRGINIA
SHANCO CORPORATION
UTILITY LINE MAINTENANCE, INC.
AIDCO, INC.
AIDCO SYSTEMS, INC.
E. L. ▇▇▇▇▇▇ & COMPANY, INC.
NORTHLAND CONTRACTING, INC.
WILDE CONSTRUCTION, INC.
WILDE OPTICAL SERVICE, INC.
TELE-COMMUNICATIONS CORPORATION OF ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ACQUISITION CO., INC.
WILDE HOLDING CO., INC.
WEEKS CONSTRUCTION COMPANY
C & S DIRECTIONAL BORING, INC.
▇▇▇▇▇▇▇-▇▇▇▇▇ UTILITIES, INC.
LNU, INC.
S.S.S. CONSTRUCTION, INC.
CONTRACT MANAGEMENT AND ASSISTANCE CORP.
ELECTRONIC EQUIPMENT ANALYZERS, INC.
By:___________________________________
Name:
Title:
The Banks:
CREDITANSTALT CORPORATE FINANCE, INC.
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
FIRST UNION NATIONAL BANK OF FLORIDA
By:___________________________________
Name:
Title:
SCOTIABANC INC.
By:___________________________________
Name:
Title:
THE FUJI BANK AND TRUST COMPANY
By:___________________________________
Name:
Title:
COMERICA BANK
By:___________________________________
Name:
Title:
LTCB TRUST COMPANY
By:___________________________________
Name:
Title:
BANKBOSTON, N.A.,
individually and as Agent
By:___________________________________
Name:
Title:
THIRD AMENDMENT TO REVOLVING
CREDIT AGREEMENT
THIS THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Third
Amendment") is made and entered into as of the 11th day of September, 1998, by
and among MASTEC, INC., a Delaware corporation (the "Parent"), its Subsidiaries
(other than Excluded Subsidiaries and members of the MasTec International Group)
listed on Schedule 1 to the Credit Agreement defined below (together with the
Parent, collectively the "Borrowers"), BANKBOSTON, N.A., CREDITANSTALT CORPORATE
FINANCE, INC., FIRST UNION NATIONAL BANK OF FLORIDA, SCOTIABANC INC., THE FUJI
BANK AND TRUST COMPANY, COMERICA BANK and LTCB TRUST COMPANY (collectively, the
"Banks") and BANKBOSTON, N.A. as agent (the "Agent") for the Banks.
WHEREAS, the Borrowers, the Banks and the Agent entered into a
Revolving Credit Agreement dated as of June 9, 1997, as amended by a First
Amendment to Revolving Credit Agreement dated as of January 28, 1998, and as
further amended by a Second Amendment to Revolving Credit Agreement dated as of
July 31st, 1998 (as the same may be further amended and in effect from time to
time the "Credit Agreement"), pursuant to which the Banks extended credit to the
Borrowers on the terms set forth therein;
WHEREAS, the Parent has requested certain revisions to the Credit
Agreement and the parties desire to amend the Credit Agreement on the terms set
forth herein;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree to amend the Credit Agreement as follows:
1. Definitions. Capitalized terms used herein without definition
shall have the meanings assigned to such terms in the Credit Agreement.
2. Amendment of ss.1 of the Loan Agreement. Section 1 of the Credit
Agreement is hereby amended by
(a) inserting the following definition in its proper alphabetical
place:
"Equity Purchase Contract. Any agreement (including any master
agreement and any agreement, whether or not in writing, relating to any
single transaction) that is an equity derivative or equity index swap
or option or other similar agreement (including any option to enter
into any of the foregoing)."
and (b) deleting the definition of "Obligations" in its entirety and
replacing it with the following new definition, inserted in its proper
alphabetical place:
"Obligations. All indebtedness, obligations and liabilities of
the Borrowers to any of the Banks or the Agent, individually or
collectively, existing on the date of this Agreement or arising
thereafter, direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or unliquidated, secured
or unsecured, arising by contract, operation of law or otherwise,
arising or incurred under this Agreement or any of the other Loan
Documents, or under any Equity Purchase Contract between the Borrowers
and any Bank, or in respect of any of the Loans made or Reimbursement
Obligations incurred or any of the Notes, Letter of Credit
Applications, Letters of Credit or other instruments at any time
evidencing any thereof."
3. Amendment to ss.7.6 of the Credit Agreement. Section 7.6 of the
Credit Agreement is hereby amended by deleting ss.7.6 in its entirety and
substituting in place thereof the following new ss.7.6:
"ss.7.6 Restricted Distributions and Redemptions. None of the
Borrowers may make Distributions except as set forth in this ss.7.6.
Each Borrower may make distributions payable solely in common stock or
preferred stock of such Borrower, subject to the requirement to pledge
all such stock pursuant to ss.5.19 hereof. Borrowers other than the
Parent may declare or pay Distributions to the Parent. In addition, the
Borrowers (other than the Parent) shall not redeem, convert, retire or
otherwise acquire shares of any class of capital stock of such
Borrowers. The Parent may declare or pay dividends and may redeem,
convert, retire, or otherwise acquire shares of its capital stock
(either directly or via an Equity Purchase Contract), provided that the
aggregate amount of all such Distributions by the Parent shall not
exceed (i) 50% of Consolidated Net Income in any one fiscal year, plus
(ii) $10,000,000 (which $10,000,000 shall not be reduced by any losses
in Consolidated Net Income). None of the Borrowers may make any
Distribution under this ss.7.6 if a Default or Event of Default exists
or would be created by the making of such Distribution. The Borrowers
shall not effect or permit any change in or amendment to any document
or instrument pertaining to the terms of the Borrowers' or the
International Signatories' capital stock other than the amendment to
the Parent's certificate of incorporation increasing the authorized
amount of common stock and the par value of the common stock and the
preferred stock."
4. Effectiveness. This Third Amendment shall be effective as of the date
hereof, subject to the receipt by the Agent of this Third Amendment duly and
properly authorized, executed and delivered by the respective parties hereto.
This Third Amendment shall become effective upon satisfaction of each of the
following conditions:
(a) This Third Amendment shall have been executed and delivered by the
respective parties hereto; and
(b) The Borrowers shall have executed and delivered an affidavit regarding
the execution of the Third Amendment outside of the State of Florida.
5. Representations and Warranties. Each of the Borrowers represents and
warrants as follows:
(a) The execution, delivery and performance of each of this
Third Amendment and the transactions contemplated hereby are within the
corporate power and authority of such Borrower and have been or will be
authorized by proper corporate proceedings, and do not (a) require any
consent or approval of the stockholders of such Borrower, (b)
contravene any provision of the charter documents or by-laws of such
Borrower or any law, rule or regulation applicable to such Borrower, or
(c) contravene any provision of, or constitute an event of default or
event which, but for the requirement that time elapse or notice be
given, or both, would constitute an event of default under, any other
material agreement, instrument or undertaking binding on such Borrower.
(b) This Third Amendment and the Credit Agreement, as amended
as of the date hereof, and all of the terms and provisions hereof and
thereof are the legal, valid and binding obligations of such Borrower
enforceable in accordance with their respective terms except as limited
by bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors' rights generally, and except as
the remedy of specific performance or of injunctive relief is subject
to the discretion of the court before which any proceeding therefor may
be brought.
(c) The execution, delivery and performance of this Third
Amendment and the transactions contemplated hereby do not require any
approval or consent of, or filing or registration with, any
governmental or other agency or authority, or any other party.
(d) The representations and warranties contained in ss.5 of
the Credit Agreement are true and correct in all material respects as
of the date hereof as though made on and as of the date hereof.
(e) No Default or Event of Default under the Credit Agreement
has occurred and is continuing.
6. Ratification, etc. Except as expressly amended hereby, the Credit
Agreement, the other Loan Documents and all documents, instruments and
agreements related thereto are hereby ratified and confirmed in all respects and
shall continue in full force and effect. This Third Amendment and the Credit
Agreement shall hereafter be read and construed together as a single document,
and all references in the Credit Agreement or any related agreement or
instrument to the Credit Agreement shall hereafter refer to the Credit Agreement
as amended by this Third Amendment.
7. GOVERNING LAW. THIS THIRD AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND
SHALL TAKE EFFECT AS A SEALED INSTRUMENT IN ACCORDANCE WITH SUCH LAWS.
8. Counterparts. This Third Amendment may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original, but all of which
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, each of the undersigned have duly executed this
Third Amendment under seal as of the date first set forth above.
The Borrowers:
MASTEC, INC.
By:___________________________________
Name:
Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
B & D CONTRACTORS OF SHELBY, INC.
BURNUP & ▇▇▇▇ OF TEXAS, INC.
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ CO., INC.
UTILITY PRECAST, INC.
BURNUP & ▇▇▇▇ TELCOM OF FLORIDA, INC.
CHURCH & TOWER ENVIRONMENTAL, INC.
CHURCH & TOWER FIBER TEL, INC.
CHURCH & TOWER, INC.
CHURCH & TOWER OF FLORIDA, INC.
CHURCH & TOWER OF TN, INC.
DESIGNED TRAFFIC INSTALLATION CO.
GDSI, INC.
▇▇▇▇▇▇▇ CABLE CONSTRUCTION, INC.
LATLINK CORPORATION
LATLINK ARGENTINA, INC.
MASTEC COMTEC OF CALIFORNIA, INC.
MASTEC COMTEC OF THE CAROLINAS, INC.
MASTEC TECHNOLOGIES, INC.
MASTEC TELEPORT, INC.
▇.▇. ▇▇▇▇▇ & ASSOCIATES, INC.
▇.▇. ▇▇▇▇▇ AND ASSOCIATES, INC. OF VIRGINIA
SHANCO CORPORATION
UTILITY LINE MAINTENANCE, INC.
AIDCO, INC.
AIDCO SYSTEMS, INC.
E. L. ▇▇▇▇▇▇ & COMPANY, INC.
NORTHLAND CONTRACTING, INC.
WILDE CONSTRUCTION, INC.
WILDE OPTICAL SERVICE, INC.
TELE-COMMUNICATIONS CORPORATION OF ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ACQUISITION CO., INC.
WILDE HOLDING CO., INC.
WEEKS CONSTRUCTION COMPANY
C & S DIRECTIONAL BORING, INC.
▇▇▇▇▇▇▇-▇▇▇▇▇ UTILITIES, INC.
LNU, INC.
S.S.S. CONSTRUCTION, INC.
CONTRACT MANAGEMENT AND ASSISTANCE CORP.
ELECTRONIC EQUIPMENT ANALYZERS, INC.
By:___________________________________
Name:
Title:
The Banks:
CREDITANSTALT CORPORATE FINANCE, INC.
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
FIRST UNION NATIONAL BANK OF FLORIDA
By:___________________________________
Name:
Title:
SCOTIABANC INC.
By:___________________________________
Name:
Title:
THE FUJI BANK AND TRUST COMPANY
By:___________________________________
Name:
Title:
COMERICA BANK
By:___________________________________
Name:
Title:
LTCB TRUST COMPANY
By:___________________________________
Name:
Title:
BANKBOSTON, N.A.,
individually and as Agent
By:___________________________________
Name:
Title:
FOURTH AMENDMENT TO REVOLVING
CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Fourth
Amendment") is made and entered into as of the 25th day of September, 1998, by
and among MASTEC, INC., a Delaware corporation (the "Parent"), its Subsidiaries
(other than Excluded Subsidiaries and members of the MasTec International Group)
listed on Schedule 1 to the Credit Agreement defined below (together with the
Parent, collectively the "Borrowers"), BANKBOSTON, N.A., CREDITANSTALT CORPORATE
FINANCE, INC., FIRST UNION NATIONAL BANK OF FLORIDA, SCOTIABANC INC., THE FUJI
BANK AND TRUST COMPANY, COMERICA BANK and LTCB TRUST COMPANY (collectively, the
"Banks") and BANKBOSTON, N.A. as agent (the "Agent") for the Banks.
WHEREAS, the Borrowers, the Banks and the Agent entered into a
Revolving Credit Agreement dated as of June 9, 1997, as amended by a First
Amendment to Revolving Credit Agreement dated as of January 28, 1998, as further
amended by a Second Amendment to Revolving Credit Agreement dated as of July 31,
1998, and as further amended by a Third Amendment to Revolving Credit Agreement
dated as of September 11, 1998 (as the same may be further amended and in effect
from time to time the "Credit Agreement"), pursuant to which the Banks extended
credit to the Borrowers on the terms set forth therein;
WHEREAS, the Parent has requested certain revisions to the Credit
Agreement and the parties desire to amend the Credit Agreement on the terms set
forth herein;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree to amend the Credit Agreement as follows:
1. Definitions. Capitalized terms used herein without definition shall
have the meanings assigned to such terms in the Credit Agreement.
2. Amendment of ss.1 of the Loan Agreement. Section 1 of the Credit
Agreement is hereby amended by
(a) inserting the following definition in its proper alphabetical
place:
"Approval Date. The date on which all of the Banks agree to
the pricing change for documentary Letters of Credit."
and (b) deleting the definitions of "Letters of Credit" and "Pricing
Table" in their entirety and replacing them with the following new definitions,
inserted in proper alphabetical order:
"Letters of Credit. Documentary or standby Letters of Credit
issued or to be issued by the Agent under ss.3 hereof for the account of the
Borrowers."
"Pricing Table:
----------------- ------------------- ----------------- ---------------------
Applicable Applicable Applicable
Pricing Ratio LIBOR Margin L/C Margin Commitment Rate
(per annum) (per annum) (per annum)
----------------- ------------------- ----------------- ---------------------
less than 1.00:1 0.75% 0.75% 0.250%
----------------- ------------------- ----------------- ---------------------
greater than or equal to
1.00:1, but less than 1.50:1
1.00% 1.00% 0.250%
----------------- ------------------- ----------------- ---------------------
greater than or equal to
1.50:1, but less than 2.00:1
1.25% 1.25% 0.375%
----------------- ------------------- ----------------- ---------------------
greater than or equal to 2.00:1
1.50% 1.50% 0.375%
----------------- ------------------- ----------------- ---------------------
provided that prior to the Approval Date, the Applicable L/C Margin for
documentary Letters of Credit shall be as set forth in the table above, and that
on and after the Approval Date, the Applicable L/C Margin for documentary
Letters of Credit shall be priced at the Applicable L/C Margin set forth in the
table above multiplied by 0.5."
3. Amendment to ss.3.1 of the Credit Agreement. Section 3.1 of the
Credit Agreement is hereby amended by deleting the figure "$10,000,000" in
clause (a) and substituting in place thereof the figure "$20,000,000".
4. Effectiveness. This Fourth Amendment shall be effective as of the
date hereof, subject to the receipt by the Agent of this Fourth Amendment duly
and properly authorized, executed and delivered by the Majority Banks and the
Borrowers, whereas the pricing change for documentary Letters of Credit shall
only be effective upon the approval of all of the Banks.
5. Representations and Warranties. Each of the Borrowers represents
and warrants as follows:
(a) The execution, delivery and performance of each of this
Fourth Amendment and the transactions contemplated hereby are within
the corporate power and authority of such Borrower and have been or
will be authorized by proper corporate proceedings, and do not (a)
require any consent or approval of the stockholders of such Borrower,
(b) contravene any provision of the charter documents or by-laws of
such Borrower or any law, rule or regulation applicable to such
Borrower, or (c) contravene any provision of, or constitute an event of
default or event which, but for the requirement that time elapse or
notice be given, or both, would constitute an event of default under,
any other material agreement, instrument or undertaking binding on such
Borrower.
(b) This Fourth Amendment and the Credit Agreement, as amended
as of the date hereof, and all of the terms and provisions hereof and
thereof are the legal, valid and binding obligations of such Borrower
enforceable in accordance with their respective terms except as limited
by bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors' rights generally, and except as
the remedy of specific performance or of injunctive relief is subject
to the discretion of the court before which any proceeding therefor may
be brought.
(c) The execution, delivery and performance of this Fourth
Amendment and the transactions contemplated hereby do not require any
approval or consent of, or filing or registration with, any
governmental or other agency or authority, or any other party.
(d) The representations and warranties contained in ss.5 of
the Credit Agreement are true and correct in all material respects as
of the date hereof as though made on and as of the date hereof.
(e) No Default or Event of Default under the Credit Agreement
has occurred and is continuing.
6. Ratification, etc. Except as expressly amended hereby, the Credit
Agreement, the other Loan Documents and all documents, instruments and
agreements related thereto are hereby ratified and confirmed in all respects and
shall continue in full force and effect. This Fourth Amendment and the Credit
Agreement shall hereafter be read and construed together as a single document,
and all references in the Credit Agreement or any related agreement or
instrument to the Credit Agreement shall hereafter refer to the Credit Agreement
as amended by this Fourth Amendment.
7. GOVERNING LAW. THIS FOURTH AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND
SHALL TAKE EFFECT AS A SEALED INSTRUMENT IN ACCORDANCE WITH SUCH LAWS.
8. Counterparts. This Fourth Amendment may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original, but all of which
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, each of the undersigned have duly executed this
Fourth Amendment under seal as of the date first set forth above.
The Borrowers:
MASTEC, INC.
By:___________________________________
Name:
Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
B & D CONTRACTORS OF SHELBY, INC.
BURNUP & ▇▇▇▇ OF TEXAS, INC.
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ CO., INC.
UTILITY PRECAST, INC.
BURNUP & ▇▇▇▇ TELCOM OF FLORIDA, INC.
CHURCH & TOWER ENVIRONMENTAL, INC.
CHURCH & TOWER FIBER TEL, INC.
CHURCH & TOWER, INC.
CHURCH & TOWER OF FLORIDA, INC.
CHURCH & TOWER OF TN, INC.
DESIGNED TRAFFIC INSTALLATION CO.
GDSI, INC.
▇▇▇▇▇▇▇ CABLE CONSTRUCTION, INC.
LATLINK CORPORATION
LATLINK ARGENTINA, INC.
MASTEC COMTEC OF CALIFORNIA, INC.
MASTEC COMTEC OF THE CAROLINAS, INC.
MASTEC TECHNOLOGIES, INC.
MASTEC TELEPORT, INC.
▇.▇. ▇▇▇▇▇ & ASSOCIATES, INC.
▇.▇. ▇▇▇▇▇ AND ASSOCIATES, INC. OF VIRGINIA
SHANCO CORPORATION
UTILITY LINE MAINTENANCE, INC.
AIDCO, INC.
AIDCO SYSTEMS, INC.
E. L. ▇▇▇▇▇▇ & COMPANY, INC.
NORTHLAND CONTRACTING, INC.
WILDE CONSTRUCTION, INC.
WILDE OPTICAL SERVICE, INC.
TELE-COMMUNICATIONS CORPORATION OF ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ACQUISITION CO., INC.
WILDE HOLDING CO., INC.
WEEKS CONSTRUCTION COMPANY
C & S DIRECTIONAL BORING, INC.
▇▇▇▇▇▇▇-▇▇▇▇▇ UTILITIES, INC.
LNU, INC.
S.S.S. CONSTRUCTION, INC.
CONTRACT MANAGEMENT AND ASSISTANCE CORP.
ELECTRONIC EQUIPMENT ANALYZERS, INC.
By:___________________________________
Name:
Title:
The Banks:
CREDITANSTALT CORPORATE FINANCE, INC.
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
FIRST UNION NATIONAL BANK OF FLORIDA
By:___________________________________
Name:
Title:
SCOTIABANC INC.
By:___________________________________
Name:
Title:
THE FUJI BANK AND TRUST COMPANY
By:___________________________________
Name:
Title:
COMERICA BANK
By:___________________________________
Name:
Title:
LTCB TRUST COMPANY
By:___________________________________
Name:
Title:
BANKBOSTON, N.A.,
individually and as Agent
By:___________________________________
Name:
Title:
FIFTH AMENDMENT TO REVOLVING
CREDIT AGREEMENT AND CONSENT
THIS FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT AND CONSENT (this
"Fifth Amendment") is made and entered into as of the 29th day of December,
1998, by and among MASTEC, INC., a Florida corporation (the "Parent"), its
Subsidiaries (other than Excluded Subsidiaries and members of the MasTec
International Group) listed on Schedule 1 to the Credit Agreement defined below
(together with the Parent, collectively the "Borrowers"), BANKBOSTON, N.A.
("BKB"), BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE, INC. (f/k/a Creditanstalt
Corporate Finance, Inc.), FIRST UNION NATIONAL BANK OF FLORIDA ("First Union"),
SCOTIABANC INC. ("SBI"), COMERICA BANK, LTCB TRUST COMPANY and LASALLE NATIONAL
BANK (collectively, the "Banks") and BANKBOSTON, N.A. as agent (the "Agent") for
the Banks.
WHEREAS, the Borrowers, the Banks and the Agent entered into a
Revolving Credit Agreement dated as of June 9, 1997, as amended by a First
Amendment to Revolving Credit Agreement dated as of January 28, 1998, as further
amended by a Second Amendment to Revolving Credit Agreement dated as of July 31,
1998, and as further amended by a Third Amendment to Revolving Credit Agreement
dated as of September 11, 1998, as further amended by a Fourth Amendment to
Revolving Credit Agreement dated as of September 25, 1998 (as the same may be
further amended and in effect from time to time the "Credit Agreement"),
pursuant to which the Banks extended credit to the Borrowers on the terms set
forth therein;
WHEREAS, the Parent has requested certain revisions to the Credit
Agreement, including an increase in the Total Commitment, and the parties desire
to amend the Credit Agreement on the terms set forth herein;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree to amend the Credit Agreement as follows:
1. Definitions. Capitalized terms used herein without definition shall
have the meanings assigned to such terms in the Credit Agreement.
2. Addition of LaSalle National Bank. LaSalle National Bank ("LaSalle")
by its signature below agrees to become a Bank under the Credit Agreement, and
does hereby join and become a party to the Credit Agreement as a Bank, accepting
and assuming the rights and obligations of a Bank under the Credit Agreement.
LaSalle agrees to comply with, and be bound by, all of the terms and conditions
of the Credit Agreement in all respects as an original Bank thereunder, as if
such Bank were an original signatory thereto, including without limitation,
assuming all responsibilities and liabilities arising or incurred under the
Credit Agreement and the Notes on and after the Closing Date. Without limiting
the above, LaSalle hereby expressly consents to the terms and conditions of
ss.23 (Governing Law; Submission to Jurisdiction) of the Credit Agreement. The
parties to this Fifth Amendment agree that this ss.2 shall be deemed to be, and
is hereby made a part of, the Credit Agreement as if set forth therein in full.
3. Amendment of ss.1 of the Loan Agreement. Section 1 of the Credit
Agreement is hereby amended by
(a) inserting the following definitions in their proper alphabetical
places:
Aidco Management. The managers of Aidco, Inc. and Aidco Systems, Inc.
Applicable Base Rate Margin. The Applicable Base Rate Margin
on Base Rate Loans shall be as set forth in the Pricing Table. Any
change in the Applicable Base Rate Margin shall become effective on the
first day of each quarter which begins after receipt by the Banks of
financial statements delivered pursuant to ss.6.4(a) or (b) hereof
which indicate a change in the Pricing Ratio. If at any time the
financial statements required to be delivered pursuant to ss.6.4(a) or
(b) hereof are not delivered within the time periods specified in such
subsections, the Applicable Base Rate Margin shall be 0.5% with respect
to any Base Rate Loan requested on or after the date on which such
financial statements were required to be delivered but before the time
of actual receipt of such financial statements, subject to adjustment
upon actual receipt of such financial statements.
Co-Agent(s). First Union and SBI.
Wilde-Aidco Bonuses. Signing bonuses for certain employees
of Wilde Construction, Inc., Wilde Optical Service, Inc., Wilde
Acquisition Co., Inc., Wilde Holding Co., Inc., Aidco, Inc. and Aidco
Systems, Inc., not to exceed an aggregate amount of $17,500,000.00.
Wilde-Aidco Non-Compete Agreement(s). Non-compete agreement(s)
with certain members of Wilde Management and Aidco Management, with
payments under such non-compete agreement(s) not to exceed an aggregate
amount of $16,000,000.00.
Wilde-Aidco Transaction. The Parent's (a) repurchase in three
installments during the period beginning December 1, 1998 and ending
November 30, 1999 of 440,000 shares of its capital stock from Aidco
Management for $30.00 per share, (b) the Wilde-Aidco Non-Compete
Agreement(s), and (c) the Wilde-Aidco Bonuses.
Wilde Management. The managers of Wilde Construction, Inc.,
Wilde Optical Service, Inc., Wilde Acquisition Co., Inc. and Wilde Holding
Co., Inc."
and (b) deleting the definitions of "Applicable L/C Margin,"
"Applicable LIBOR Margin," "Collateral," "Commitment Percentage," "Loan
Documents," and "Pricing Table" in their entirety and replacing them with the
following new definitions, inserted in proper alphabetical order:
"Applicable L/C Margin. The Applicable L/C Margin on Letters
of Credit shall be as set forth in the Pricing Table. The effective
date of a change in the Applicable L/C Margin shall be the first day
after receipt by the Banks of financial statements delivered pursuant
to ss.6.4(a) or (b) hereof which indicate a change in the Pricing
Ratio. If at any time the financial statements required to be delivered
pursuant to ss.6.4(a) or (b) hereof are not delivered within the time
periods specified in such subsections, the Applicable L/C Margin shall
be 2.25% with respect to any Letter of Credit issued after the date on
which such financial statements were required to be delivered but
before actual receipt of such financial statements, subject to
adjustment upon actual receipt of such financial statements.
Applicable LIBOR Margin. The Applicable LIBOR Margin on LIBOR
Loans shall be as set forth in the Pricing Table. Any change in the
Applicable LIBOR Margin shall become effective on the first day of each
Interest Period which begins three (3) or more days after receipt by
the Banks of financial statements delivered pursuant to ss.6.4(a) or
(b) hereof which indicate a change in the Pricing Ratio. If at any time
the financial statements required to be delivered pursuant to ss.6.4(a)
or (b) hereof are not delivered within the time periods specified in
such subsections, the Applicable LIBOR Margin shall be 2.25% with
respect to any LIBOR Loan requested on or after the date on which such
financial statements were required to be delivered but before the time
of actual receipt of such financial statements, subject to adjustment
upon actual receipt of such financial statements.
Collateral. The shares of all direct or indirect Subsidiaries
of the Parent that are or are intended to be subject to the security
interests created by the U.S. Stock Pledge Agreement.
Commitment Percentage. With respect to each Bank, the
percentage set forth beside its name below (subject to adjustment upon
any assignments pursuant to ss.17):
Bank Percentage
BKB 24.2424%
First Union 22.7273%
SBI 15.4545%
Comerica 10.3030%
LTCB 10.3030%
LaSalle National Bank 9.0909%
Bank Austria Creditanstalt
Corporate Finance, Inc. 7.8788%.
Loan Documents. This Agreement, the Notes, the Letter of Credit
Applications, the Letters of Credit, and the U.S.Stock Pledge Agreement.
Pricing Table:
---------------------- ------------- ------------- ------------ --------------
Applicable Applicable Applicable Applicable
Base Rate Margin LIBOR Margin L/C Margin Commitment Rate
(per annum) (per annum) per annum) (per annum)
Pricing Ratio
---------------------- ------------- ------------- ------------ --------------
less than 2.00:1 0.00% 1.00% 1.00% 0.250%
---------------------- ------------- ------------- ------------ --------------
greater than or equal 0.00% 1.25% 1.25% 0.250%
to 2.00:1, but less than
2.50:1
---------------------- ------------- ------------- ------------ --------------
greater than or equal 0.00% 1.50% 1.50% 0.375%
to 2.50:1, but less than
3.00:1
---------------------- ------------- ------------- ------------ --------------
greater than or equal 0.25% 1.75% 1.75% 0.375%
to 3.00:1, but less than
3.50:1
---------------------- ------------- ------------- ------------ --------------
greater than or equal 0.25% 2.00% 2.00% 0.500%
to 3.50:1, but less than
4.00:1
---------------------- ------------- ------------- ------------ --------------
greater than or equal 0.50% 2.25% 2.25% 0.500%
to 4.00:1
---------------------- ------------- ------------- ------------ --------------
provided that the Applicable L/C Margin for documentary Letters of Credit issued
on or after December 29, 1998 shall be priced at the Applicable L/C Margin set
forth in the table above multiplied by 0.5."
4. Amendment to ss.2.1 of the Credit Agreement. Section 2.1 of the
Credit Agreement is hereby amended by deleting the figure "$125,000,000" therein
and substituting in place thereof the figure "$165,000,000".
5. Amendment to ss.2.4(a) of the Credit Agreement. Section 2.4(a) of
the Credit Agreement is hereby amended by deleting ss.2.4(a) in its entirety and
substituting in place thereof the following new ss.2.4(a):
"(a) The outstanding principal amount of the Revolving Credit
Loans shall bear interest at the rate per annum equal to (i) the Base
Rate plus the Applicable Base Rate Margin, or (ii) at the Borrowers'
option as provided herein, the LIBOR Rate plus the Applicable LIBOR
Margin."
6. Amendment to ss.4.1(b) of the Credit Agreement. Section 4.1(b) of
the Credit Agreement is hereby amended by deleting ss.4.1(b) in its entirety and
substituting in place thereof the following new ss.4.1(b):
"(b) Letter of Credit Fees. The Borrowers shall pay in advance
on the date of issuance of each Letter of Credit an issuance fee to the
Agent for its account equal to one eighth of one percent (1/8%) per
annum on the Maximum Drawing Amount of each Letter of Credit (the
"Issuance Fee"). The Borrowers shall also pay a fee to the Agent (the
"Letter of Credit Fee"), which fee shall be for the accounts of the
Banks in accordance with their respective Commitment Percentages. With
respect to each standby Letter of Credit, such fees shall be calculated
and paid quarterly in advance on the first Business Day of each fiscal
quarter and equal to the Applicable L/C Margin multiplied by the
Maximum Drawing Amount of all outstanding Letters of Credit. With
respect to any documentary Letter of Credit, such fees shall be
calculated based on the Maximum Drawing Amount thereunder during the
period commencing on the date of issuance thereof (or with respect to
documentary Letters of Credit outstanding on December 29, 1998,
commencing December 29, 1998) through the date of negotiation or
cancellation thereof (calculated on the basis of a 360-day year for the
actual number of days elapsed) and shall be payable in arrears within
seven (7) Business Days after the end of each month during which, or
any part of which, such documentary Letter of Credit is outstanding. In
addition to the Issuance Fee and the Letter of Credit Fee, the
Borrowers shall pay to the Agent, for its own account, all related
customary administrative fees in accordance with customary practice.
Notwithstanding any provision contained herein to the contrary, no
fees, commissions or other amounts paid as of or prior to December 29
,1998 in respect of any Letter of Credit existing as of such date shall
be repaid or credited against any amounts otherwise payable pursuant to
this ss.4.1(b)."
7. Amendment to ss.4.9 of the Credit Agreement. Section 4.9 of the
Credit Agreement is hereby amended by deleting ss.4.9 in its entirety and
substituting in place thereof the following new ss.4.9:
"ss.4.9 Interest on Overdue Amounts. Overdue principal and (to
the extent permitted by applicable law) interest on the Loans and all
other overdue amounts payable hereunder or under any of the other Loan
Documents shall bear interest compounded monthly and payable on demand
at a rate per annum equal to the Base Rate plus the Applicable Base
Rate Margin plus two (2) percent until such amount shall be paid in
full (after, as well as before, judgment)."
8. Amendment to ss.5 of the Credit Agreement. Section 5 of the Credit
Agreement is hereby amended by
(a) adding the following ss.5.21 in its proper place:
"5.21. Year 2000 Issue. The Borrowers and their Subsidiaries
have reviewed the areas within their businesses and operations which
could be adversely affected by, and have developed or are developing a
program to address on a timely basis, the "Year 2000 Issue" (i.e. the
risk that computer applications used by any of the Borrowers or their
Subsidiaries may be unable to recognize and perform properly
date-sensitive functions involving certain dates prior to and any date
after December 31, 1999). Based upon such review, the Borrowers
reasonably believe that the "Year 2000 Issue" will not have any
materially adverse effect on the business or financial condition of any
of the Borrowers or its Subsidiaries."
and (b) deleting ss.ss.5.17 and 5.19 in their entirety and substituting
in place thereof the following new ss.ss.5.17 and 5.19:
"ss.5.17 Perfection of Security Interests. Except as set forth
on Schedule 5.17, the Collateral and the Agent's rights with respect to
the Collateral are not subject to any setoff, claims, withholdings or
other defenses. The Borrowers and MasTec International, Inc. are the
owners of the Collateral free from any lien, security interest,
encumbrance and any other claim or demand, other than liens in favor of
the Agent for the benefit of the Banks to secure the Obligations. The
U.S. Stock Pledge Agreement is effective to create in favor of the
Agent, for the benefit of the Banks, a legal, valid and enforceable
first priority security interest in the Collateral. The certificates
for the shares of such Collateral have been delivered to the Agent.
ss.5.19 Subsidiaries. Schedule 1 sets forth a complete and
accurate list of the direct or indirect Subsidiaries of the Parent,
including the name of each Subsidiary and its jurisdiction of
incorporation, together with the number of authorized and outstanding
shares of each Subsidiary. All of the stock of each U.S. Subsidiary
(other than the Excluded Subsidiaries) which is directly or indirectly
owned by the Parent has been pledged to the Agent on behalf of the
Banks pursuant to the U.S. Stock Pledge Agreement. The Parent has good
and marketable title to all of the shares it purports to own of the
stock of each such Subsidiary, free and clear in each case of any lien.
All such shares have been duly issued and are fully paid and
non-assessable. Each Subsidiary of the Parent, other than the Excluded
Subsidiaries and the members of the MasTec International Group, is a
Borrower hereunder."
9. Amendment to ss.7.3(e) of the Credit Agreement. Section 7.3(e) of
the Credit Agreement is hereby amended by deleting ss.7.3(e) in its entirety and
substituting in place thereof the following new ss.7.3(e):
"(e) Investments (as defined in ss.1) by any Borrower in any
affiliate or Subsidiary of a Borrower which is not also a Borrower
(which may include the MasTec International Group or other non-U.S.
entities) or in any other Person (i) funded prior to or on December 29,
1998 and listed on Schedule 7.3(e), plus (ii) $15,000,000, plus (iii)
the net cash proceeds from the sale of any Investments listed on
Schedule 7.3(e) and the net cash proceeds from any sale of the stock of
Sintel; provided that the sum of items (i) through (iii) shall not
exceed $125,000,000."
10. Amendment to ss.7.6 of the Credit Agreement. Section 7.6 of the
Credit Agreement is hereby amended by deleting ss.7.6 in its entirety and
substituting in place thereof the following new ss.7.6:
"ss.7.6 Restricted Distributions and Redemptions. None of the
Borrowers may make Distributions except as set forth in this ss.7.6.
Each Borrower may make distributions payable solely in common stock or
preferred stock of such Borrower, subject to the requirement to pledge
all such stock pursuant to ss.5.19 hereof. Borrowers other than the
Parent may declare or pay Distributions to the Parent. In addition, the
Borrowers (other than the Parent) shall not redeem, convert, retire or
otherwise acquire shares of any class of capital stock of such
Borrowers. The Parent may declare or pay dividends and may redeem,
convert, retire, or otherwise acquire shares of its capital stock
(either directly or via an Equity Purchase Contract), provided that (a)
prior to December 29, 1998, the aggregate amount of all such
Distributions by the Parent shall not exceed 50% of Consolidated Net
Income in any one fiscal year, plus, for the fiscal year ending
December 31, 1998 only, $10,000,000 (which $10,000,000 shall not be
reduced by any losses in Consolidated Net Income), and (b) on or after
December 29, 1998, the aggregate amount of all such Distributions by
the Parent shall consist of the Parent's repurchase in three
installments from December 1, 1998 to November 30, 1999 of 440,000
shares of its capital stock from Aidco Management for $30.00 per share.
Notwithstanding the above, none of the Borrowers may make any
Distribution under this ss.7.6 if a Default or Event of Default exists
or would be created by the making of such Distribution. The Borrowers
shall not effect or permit any change in or amendment to any document
or instrument pertaining to the terms of the Borrowers' or the
International Signatories' capital stock other than the amendment to
the Parent's certificate of incorporation increasing the authorized
amount of common stock and the par value of the common stock and the
preferred stock."
11. Amendment to ss.7.9 of the Credit Agreement. Section 7.9 of the
Credit Agreement is hereby amended by deleting ss.7.9 in its entirety and
substituting in place thereof the following new ss.7.9:
"ss.7.9 [This section intentionally omitted.]"
12. Amendment to ss.8 of the Credit Agreement. Section 8 of the Credit
Agreement is hereby amended by deleting ss.ss.8.1 and 8.3 in their entirety and
substituting in place thereof the following new ss.ss.8.1 and 8.3:
"ss.8.1. Leverage Ratios. As of the end of any fiscal quarter
of the Borrowers commencing with the fiscal quarter ending March 31,
1997, (a) the ratio of (i) Senior Debt to (ii) EBITDA for the period of
four (4) consecutive fiscal quarters ending on such date shall not
exceed 2.50:1, and (b) the ratio of (i) Funded Debt to (ii) EBITDA for
the period of four (4) consecutive fiscal quarters ending on such date
shall not exceed the ratio set forth opposite such date below:
--------------------------------- ------------------------
Date Ratio
--------------------------------- ------------------------
June 30, 1998 4.50:1
--------------------------------- ------------------------
September 30, 1998 4.50:1
--------------------------------- ------------------------
December 31, 1998 4.00:1
--------------------------------- ------------------------
March 31, 1999 3.50:1
--------------------------------- ------------------------
June 30, 1999 3.25:1
--------------------------------- ------------------------
September 30, 1999 and 3.00:1
thereafter
--------------------------------- ------------------------
For purposes of determining compliance with the Funded Debt to
EBITDA ratio, but not for purposes of determining the Pricing Ratio,
EBITDA shall be adjusted to add back pre-tax charges taken in
connection with the Wilde-Aidco Transaction, provided that (a)
PricewaterhouseCoopers determines that the Parent must take such
pre-tax charges in the fiscal quarter ending on December 31, 1998, (b)
such pre-tax charges are taken in the fiscal quarter ending on December
31, 1998, and (c) such pre-tax charges do not exceed an aggregate
amount of $33,500,000 (the "Wilde-Aidco Special Charges").
ss.8.3. Interest Coverage Ratio. As of the end of any fiscal
quarter of the Borrowers commencing with the fiscal quarter ending
March 31, 1997, the ratio of (a) EBIT for the period of four (4)
consecutive fiscal quarters ending on such date to (b) Consolidated
Total Interest Expense for such period shall not be less than the ratio
set forth opposite such date below:
--------------------------------- ------------------------
Date Ratio
--------------------------------- ------------------------
June 30, 1998 3.50:1
--------------------------------- ------------------------
September 30, 1998 2.50:1
--------------------------------- ------------------------
December 31, 1998 2.50:1
--------------------------------- ------------------------
March 31, 1999 2.75:1
--------------------------------- ------------------------
June 30, 1999 3.00:1
--------------------------------- ------------------------
September 30, 1999 3.25:1
--------------------------------- ------------------------
December 31, 1999 3.50:1
--------------------------------- ------------------------
Thereafter 4.00:1
--------------------------------- ------------------------
For purposes of calculating the EBIT to Consolidated Total
Interest Expense ratio, EBIT shall be adjusted to add back the
Wilde-Aidco Special Charges."
13. Amendment toss.11 of the Credit Agreement. Section 11 of the
Credit Agreement is hereby amended by deleting ss.11 in its entirety and
substituting in place thereof the following new ss.11:
"ss.11. COLLATERAL SECURITY. The Obligations shall be secured
by a perfected security interest (having, with respect to each category
of Collateral, the respective rights and priorities set forth herein
and in the Stock Pledge Agreements) in all of the Collateral, whether
now owned or hereafter acquired, pursuant to the terms of the U.S.
Stock Pledge Agreement. The Agent may from time to time, in its
discretion, release Collateral, provided that the aggregate value of
such released Collateral does not exceed five percent (5%) of the
consolidated net worth of the Borrowers determined in accordance with
GAAP."
1. Amendment toss.14 of the Credit Agreement. Section 14 of the Credit
Agreement is hereby amended by adding the following ss.14.9 to the end thereof:
"ss.14.9. Co-Agents. None of the Banks identified in this Agreement as a
"Co-Agent" shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Banks as such.
Without limiting the foregoing, none of the Banks so identified as a "Co-Agent"
shall have or be deemed to have any fiduciary relationship with any Bank. Each
Bank acknowledges that it has not relied, and will not rely, on any of the Banks
so identified in deciding to enter into this Agreement or not taking action
hereunder."
2. Amendment to Schedules of the Credit Agreement. Schedule 7.3(e) is
hereby added to the Credit Agreement in the form attached hereto.
3. Consent to Wilde-Aidco Bonuses and Non-Compete Agreement(s).
Notwithstanding the provisions of ss.5.18 of the Credit Agreement, each of the
Banks hereby consents to the Wilde-Aidco Bonuses and the Wilde-Aidco Non-Compete
Agreements, provided that (a) no Default or Event of Default exists or would be
created by the Wilde-Aidco Bonuses or the Wilde-Aidco Non-Compete Agreements
(other than under ss.5.18), and (b) all other conditions of the Credit Agreement
(other than ss.5.18) be met in connection with the Wilde-Aidco Bonuses and the
Wilde-Aidco Non-Compete Agreements.
4. Consent to Release of Sintel Stock and Termination of Sintel Stock
Pledge Agreement. Notwithstanding the provisions of ss.14.8(h) of the Credit
Agreement, each of the Banks hereby consents to the Agent's release of the
Sintel stock, and the termination of the Sintel Stock Pledge, provided that
Sintel shall be sold in accordance with the Stock Purchase Agreement; Stock
Purchase Option, Stock Pledge and Shareholder Agreement dated December 30, 1998
(the "Sale Agreement"). If for any reason Sintel is not sold pursuant to the
Sale Agreement, the Borrowers agree to re-pledge the stock of Sintel to the
Agent for the benefit of the Banks, and to execute any agreements, further
assurances or other instruments in connection with the re-pledge of the Sintel
stock that the Agent may reasonably request.
5. Effectiveness. This Fifth Amendment shall become effective as of the
date hereof, subject to the satisfaction of each of the following conditions:
(a) receipt by the Agent of this Fifth Amendment duly and
properly authorized, executed and delivered by the respective parties
hereto;
(b) the Borrowers shall have executed and delivered to the
Agent amended and restated Notes for each of BKB, First Union and SBI,
reflecting their revised Commitment Percentages as described in ss.2(b)
of this Fifth Amendment;
(c) the Borrowers shall have delivered to the Agent certified
copies of corporate resolutions of each of the Borrowers satisfactory
to the Agent authorizing this Fifth Amendment, the amended and restated
Notes, and all related documents;
(d) payment of all fees due to each Bank pursuant to the terms
of the separate fee letters dated as of the date hereof; and
(e) the Parent shall have delivered to the Agent copies of (i)
its charter or other incorporation documents, certified by the
Secretary of State of Florida, and (ii) its termination of
incorporation documents, certified by the Secretary of State of
Delaware, evidencing its changed jurisdiction of incorporation.
6. Representations and Warranties. Each of the Borrowers represents and
warrants as follows:
(a) The execution, delivery and performance of each of this
Fifth Amendment and the transactions contemplated hereby are within the
corporate power and authority of such Borrower and have been or will be
authorized by proper corporate proceedings, and do not (a) require any
consent or approval of the stockholders of such Borrower, (b)
contravene any provision of the charter documents or by-laws of such
Borrower or any law, rule or regulation applicable to such Borrower, or
(c) contravene any provision of, or constitute an event of default or
event which, but for the requirement that time elapse or notice be
given, or both, would constitute an event of default under, any other
material agreement, instrument or undertaking binding on such Borrower.
(b) This Fifth Amendment and the Credit Agreement, as amended
as of the date hereof, and all of the terms and provisions hereof and
thereof are the legal, valid and binding obligations of such Borrower
enforceable in accordance with their respective terms except as limited
by bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors' rights generally, and except as
the remedy of specific performance or of injunctive relief is subject
to the discretion of the court before which any proceeding therefor may
be brought.
(c) The execution, delivery and performance of this Fifth
Amendment and the transactions contemplated hereby do not require any
approval or consent of, or filing or registration with, any
governmental or other agency or authority, or any other party.
(d) The representations and warranties contained in ss.5 of
the Credit Agreement are true and correct in all material respects as
of the date hereof as though made on and as of the date hereof.
(e) After giving effect to this Fifth Amendment, no Default or
Event of Default under the Credit Agreement has occurred and is
continuing.
7. Ratification, etc. Except as expressly amended hereby, the Credit
Agreement, the other Loan Documents and all documents, instruments and
agreements related thereto are hereby ratified and confirmed in all respects and
shall continue in full force and effect. This Fifth Amendment and the Credit
Agreement shall hereafter be read and construed together as a single document,
and all references in the Credit Agreement or any related agreement or
instrument to the Credit Agreement shall hereafter refer to the Credit Agreement
as amended by this Fifth Amendment.
8. GOVERNING LAW. THIS FIFTH AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND
SHALL TAKE EFFECT AS A SEALED INSTRUMENT IN ACCORDANCE WITH SUCH LAWS.
9. Counterparts. This Fifth Amendment may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original, but all of which
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, each of the undersigned have duly executed this
Fifth Amendment under seal as of the date first set forth above.
The Borrowers:
MASTEC, INC.
By:___________________________________
Name:
Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
B & D CONTRACTORS OF SHELBY, INC.
BURNUP & ▇▇▇▇ OF TEXAS, INC.
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ CO., INC.
UTILITY PRECAST, INC.
BURNUP & ▇▇▇▇ TELCOM OF FLORIDA, INC.
CHURCH & TOWER ENVIRONMENTAL, INC.
CHURCH & TOWER FIBER TEL, INC.
CHURCH & TOWER, INC.
CHURCH & TOWER OF FLORIDA, INC.
CHURCH & TOWER OF TN, INC.
DESIGNED TRAFFIC INSTALLATION CO.
GDSI, INC.
▇▇▇▇▇▇▇ CABLE CONSTRUCTION, INC.
LATLINK CORPORATION
LATLINK ARGENTINA, INC.
MASTEC COMTEC OF CALIFORNIA, INC.
MASTEC COMTEC OF THE CAROLINAS, INC.
MASTEC TECHNOLOGIES, INC.
MASTEC TELEPORT, INC.
▇.▇. ▇▇▇▇▇ & ASSOCIATES, INC.
▇.▇. ▇▇▇▇▇ AND ASSOCIATES, INC. OF VIRGINIA
SHANCO CORPORATION
UTILITY LINE MAINTENANCE, INC.
AIDCO, INC.
AIDCO SYSTEMS, INC.
E. L. ▇▇▇▇▇▇ & COMPANY, INC.
NORTHLAND CONTRACTING, INC.
WILDE CONSTRUCTION, INC.
WILDE OPTICAL SERVICE, INC.
TELE-COMMUNICATIONS CORPORATION OF ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ACQUISITION CO., INC.
WILDE HOLDING CO., INC.
WEEKS CONSTRUCTION COMPANY
C & S DIRECTIONAL BORING, INC.
▇▇▇▇▇▇▇-▇▇▇▇▇ UTILITIES, INC.
LNU, INC.
S.S.S. CONSTRUCTION, INC.
CONTRACT MANAGEMENT AND ASSISTANCE CORP.
ELECTRONIC EQUIPMENT ANALYZERS, INC.
MASTEC NORTH AMERICA, INC.
▇.▇. ENTERPRISES, INC (d/b/a Cotton & ▇▇▇▇▇▇)
By:___________________________________
Name:
Title:
The Banks:
BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE,
INC. (f/k/a Creditanstalt Corporate Finance, Inc.)
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
FIRST UNION NATIONAL BANK OF FLORIDA
By:___________________________________
Name:
Title:
SCOTIABANC INC.
By:___________________________________
Name:
Title:
LASALLE NATIONAL BANK
By:___________________________________
Name:
Title:
COMERICA BANK
By:___________________________________
Name:
Title:
LTCB TRUST COMPANY
By:___________________________________
Name:
Title:
BANKBOSTON, N.A.,
individually and as Agent
By:___________________________________
Name:
Title: