EXHIBIT 10.1
ELEVENTH AMENDMENT
TO THIRD AMENDED AND RESTATED SECURED CREDIT AGREEMENT
THIS ELEVENTH AMENDMENT TO THIRD AMENDED AND RESTATED SECURED CREDIT
AGREEMENT (this "Amendment"), dated as of October 9, 2003, is entered into among
QUANTA SERVICES, INC., a Delaware corporation (the "Borrower"), the Lenders
(defined below) who are signatories hereto, and BANK OF AMERICA, N.A., as
administrative agent for the Lenders (in such capacity, the "Agent").
Capitalized terms used but not defined in this Amendment have the meaning given
them in the Credit Agreement (defined below).
BACKGROUND
A. The Borrower is party to that certain Third Amended and Restated
Secured Credit Agreement dated as of June 14, 1999 (as amended through the date
hereof and as may be further amended, restated or supplemented from time to
time, the "Credit Agreement"), among the Borrower, the Agent, and the lenders
from time to time party to the Credit Agreement (each a "Lender" and
collectively, the "Lenders").
B. The Borrower, Majority Lenders and the Agent desire to make certain
amendments to the Credit Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the Borrower,
Majority Lenders and the Agent covenant and agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is hereby
amended as follows:
(a) Amendment to Section 6.10(a). Clause (a) of Section 6.10 is
amended by adding a new sentence at the end thereto to read as follows:
The amount of payments permitted pursuant to the foregoing clauses
(D) and (E) shall be deemed to include the $15,000,000 which the
Borrower is permitted to retain from the net offering proceeds in
accordance with Section 2.10(c).
(b) Amendment to Section 6.14. Section 6.14(i) is amended and
restated in its entirety, as follows:
(i) Indebtedness not to exceed $275,000,000 at any
time under the 2003 Note Purchase Agreement, including without
limitation, the Indebtedness under the 2003 Convertible
Subordinated Notes; provided that, such Indebtedness is
unsecured and upon terms not materially less favorable than
the terms of the Convertible Subordinated Notes and is
otherwise on terms reasonably satisfactory to the Agent,
including without limitation ranking subordination terms at
least as favorable to the Lenders as those contained in the
Convertible Subordinated
Notes, and provided further that all net cash proceeds from
the issuance of such Indebtedness are applied in accordance
with SECTION 2.10(C) of this Agreement, which contemplates
that such net cash proceeds in excess of $15,000,000 (which
$15,000,000 the Borrower is permitted to retain consistent
with Section 2.10(c)) will be allocated to the Lenders and to
the holders of the Senior Notes (based on the proportion of
the Commitment Amount under this Agreement and the proportion
of the outstanding principal amount of the Senior Notes to
the sum of both) and applied as follows: (A) with respect to
the proceeds allocated to the Lenders, paid to the Agent as
a prepayment of the Loans, and if all Loans have been
satisfied, to the Agent as cash collateral for the
outstanding L/C Obligations (which security interest shall
be expressly senior to any security interest in
such cash collateral which secures the Senior Notes),
in each case together with a corresponding, automatic
and permanent reduction of the Commitment Amount by the amount
of net proceeds that would be allocated to the Lenders if the
Loans and L/C Obligations exceeded such amount of net proceeds
(and not any lesser amount which may ultimately be allocated
to the Lenders if the Loans and L/C Obligations are less than
such amount of net proceeds), and if all of the L/C
Obligations have been so cash collateralized, to the holders
of the Senior Notes to be applied in accordance with Section
8.8(e) of the Note Purchase Agreement, and (B) with respect to
the proceeds allocated to the holders of the Senior Notes,
paid to such holders to be applied in accordance with Section
8.8(e) of the Note Purchase Agreement; and
(c) Notwithstanding anything in this Agreement to the contrary,
the Borrower shall be permitted to disregard any Make-Whole Amount (as
defined in the Note Purchase Agreement) paid or required to be paid as
a result of or in connection with the 2003 Note Purchase Agreement or
any offering or issuance of the 2003 Convertible Subordinated Notes for
purposes of any determination of the Borrower's compliance with any
covenant contained in Section 6.20, 6.21, 6.22, 6.23 or 6.24 of this
Agreement.
2. REPRESENTATIONS AND WARRANTIES. Each of the Borrower and the
Guarantors represents and warrants to the Lenders that (a) it possesses all
requisite power and authority to execute, deliver and comply with the terms of
this Amendment, (b) this Amendment has been duly authorized and approved by all
requisite corporate, partnership or limited liability company action, as
applicable, by it, (c) no consent of any Person that has not been obtained is
required for its execution and delivery of this Amendment, (d) its execution and
delivery of this Amendment will not violate its organizational documents, (e)
the representations and warranties in each Credit Document to which it is a
party are true and correct in all material respects on and as of the date of
this Amendment as though made on the date of this Amendment (except to the
extent that such representations and warranties speak to a specific date), (f)
it is in full compliance with all covenants and agreements contained in each
Credit Document to which it is a party, and (g) no Default or Event of Default
exists as of the date of this Amendment.
3. RELEASE.
(a) The Borrower and each Guarantor hereby unconditionally and
irrevocably remises, acquits, and fully and forever releases and
discharges the Agent and the Lenders
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and all respective affiliates and subsidiaries of the Agent and the
Lenders, their respective officers, servants, employees, agents,
attorneys, financial advisors, principals, directors and shareholders,
and their respective heirs, legal representatives, successors and
assigns (collectively, the "Released Lender Parties") from any and all
claims, demands, causes of action, obligations, remedies, suits,
damages and liabilities (collectively, the "Borrower Claims") of any
nature whatsoever, whether now known, suspected or claimed, whether
arising under common law, in equity or under statute, which the
Borrower or any Guarantor ever had or now has against the Released
Lender Parties which may have arisen at any time on or prior to the
date of this Amendment and which were in any manner related to any of
the Credit Documents or the enforcement or attempted enforcement by the
Agent or the Lenders of rights, remedies or recourses related thereto.
(b) The Borrower and each Guarantor covenants and agrees never to
commence, voluntarily aid in any way, prosecute or cause to be
commenced or prosecuted against any of the Released Lender Parties any
action or other proceeding based upon any of the Borrower Claims which
may have arisen at any time on or prior to the date of this Amendment
and were in any manner related to any of the Credit Documents.
(c) The agreements of the Borrower and each Guarantor set forth in
this Section 3 shall survive termination of this Amendment and the
other Credit Documents.
4. CONDITIONS OF EFFECTIVENESS. This Amendment shall be effective,
without any other action by the parties hereto, immediately upon the
satisfaction or waiver of each of the following conditions precedent and only if
all such conditions precedent to effectiveness are satisfied or waived on or
prior to October 31, 2003:
(a) the Agent shall receive counterparts of this Amendment
executed by the Majority Lenders, the Borrower and the Guarantors;
(b) the representations and warranties set forth in Section 2 of
this Amendment shall be true and correct;
(c) all reasonable out-of-pocket fees and expenses of the Agent in
connection with the Credit Documents, including its reasonable
out-of-pocket legal and other professional fees and expenses incurred
by the Agent, including, without limitation, such fees and expenses of
Winstead Sechrest & Minick P.C., shall have been paid;
(d) the Agent shall receive evidence reasonably satisfactory to
the Agent that the Borrower has entered into an amendment to the Note
Purchase Agreement in form and substance reasonably satisfactory to the
Agent;
(e) the Agent shall receive a written certificate signed by an
officer of the Borrower acceptable to the Agent as to (i) the absence
of any action, suit, investigation or proceeding pending or, to the
knowledge of the Borrower, threatened in any court or before any
arbitrator or governmental authority that could reasonably be expected
to materially and adversely affect (A) the financial condition of the
Borrower and its Subsidiaries, taken as a whole, or (B) the ability of
the Borrower and its Subsidiaries to
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perform their respective obligations under the Credit Documents, as
amended by the Amendment, (ii) the absence of a material breach of any
representation or warranty of the Borrower set out in the Credit
Documents, and (iii) the absence of any Default or Event of Default,
after giving effect to this Amendment; and
(f) the Agent shall receive, in form and substance reasonably
satisfactory to the Agent and its counsel, such other documents,
certificates and instruments as the Agent shall reasonably require.
5. CREDIT DOCUMENT: REFERENCE TO CREDIT AGREEMENT. This Amendment is a
Credit Document. Upon the effectiveness of this Amendment, each reference in the
Credit Agreement to "this Agreement," "hereunder," or words of like import shall
mean and be a reference to the Credit Agreement, as affected and amended by this
Amendment.
6. COUNTERPARTS; EXECUTION VIA FACSIMILE. This Amendment may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. This
Amendment may be validly executed and delivered by facsimile or other electronic
transmission.
7. GOVERNING LAW; BINDING EFFECT. This Amendment shall be governed by
and construed in accordance with the internal laws of the State of Texas and
shall be binding upon the Borrower, the Agent, each Lender and their respective
successors and assigns.
8. HEADINGS. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
9. NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER CREDIT
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
BORROWER:
QUANTA SERVICES, INC.
By: /s/ JAMES H. HADDOX
-----------------------------------
Name: James H. Haddox
-----------------------------------
Title: Chief Financial Officer
-----------------------------------
AGENT:
BANK OF AMERICA, N.A., AS AGENT
By: /s/ DAVID A. JOHANSON
-----------------------------------
Name: David A. Johanson
-----------------------------------
Title: Vice President
-----------------------------------
ELEVENTH AMENDMENT TO THIRD AMENDED
AND RESTATED SECURED CREDIT AGREEMENT
SIGNATURE PAGE
Lender signature page to that certain Eleventh Amendment to Third
Amended and Restated Secured Credit Agreement dated to be effective as of
October 9, 2003, by and among Quanta Services, Inc., the Lenders party thereto,
and Bank of America, N.A., as Agent for the Lenders.
BANK OF AMERICA, N.A.
By: /s/ GARY L. MINGLE
Name: Gary L. Mingle
Title: Senior Vice President
Lender signature page to that certain Eleventh Amendment to Third
Amended and Restated Secured Credit Agreement dated to be effective as of
October 9, 2003, by and among Quanta Services, Inc., the Lenders party thereto,
and Bank of America, N.A., as Agent for the Lenders.
BANK OF NOVA SCOTIA
By: /s/ STEPHEN C. LEVI
Name: Stephen C. Levi
Title: Director
Lender signature page to that certain Eleventh Amendment to Third
Amended and Restated Secured Credit Agreement dated to be effective as of
October 9, 2003, by and among Quanta Services, Inc., the Lenders party thereto,
and Bank of America, N.A., as Agent for the Lenders.
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ ATTILA KOC
Name: Attila Koc
Title: Senior Vice President
Lender signature page to that certain Eleventh Amendment to Third
Amended and Restated Secured Credit Agreement dated to be effective as of
October 9, 2003, by and among Quanta Services, Inc., the Lenders party thereto,
and Bank of America, N.A., as Agent for the Lenders.
JP MORGAN CHASE
By: /s/ ROBERT MENDOZA
Name: Robert Mendoza
Title: Vice President
Lender signature page to that certain Eleventh Amendment to Third
Amended and Restated Secured Credit Agreement dated to be effective as of
October 9, 2003, by and among Quanta Services, Inc., the Lenders party thereto,
and Bank of America, N.A., as Agent for the Lenders.
GUARANTY BANK
By: /s/ SCOTT BREWER
Name: Scott Brewer
Title: VP
Lender signature page to that certain Eleventh Amendment to Third
Amended and Restated Secured Credit Agreement dated to be effective as of
October 9, 2003, by and among Quanta Services, Inc., the Lenders party thereto,
and Bank of America, N.A., as Agent for the Lenders.
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ STEVEN L. HIPSMAN
Name: Steven L. Hipsman
Title: Director
Lender signature page to that certain Eleventh Amendment to Third
Amended and Restated Secured Credit Agreement dated to be effective as of
October 9, 2003, by and among Quanta Services, Inc., the Lenders party thereto,
and Bank of America, N.A., as Agent for the Lenders.
COMERICA BANK
By: /s/ WILLIAM S. ROGERS
Name: William S. Rogers
Title: Vice President
Lender signature page to that certain Eleventh Amendment to Third
Amended and Restated Secured Credit Agreement dated to be effective as of
October 9, 2003, by and among Quanta Services, Inc., the Lenders party thereto,
and Bank of America, N.A., as Agent for the Lenders.
SUN TRUST BANK
By: /s/ J. SCOTT DEVINEY
Name: J. Scott Deviney
Title: Director
Lender signature page to that certain Eleventh Amendment to Third
Amended and Restated Secured Credit Agreement dated to be effective as of
October 9, 2003, by and among Quanta Services, Inc., the Lenders party thereto,
and Bank of America, N.A., as Agent for the Lenders.
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ RICHARD J. KRESS
Name: Richard J. Kress
TITLE: FIRST VICE PRESIDENT
GUARANTORS' CONSENT AND AGREEMENT
As an inducement to the Lenders to execute, and in consideration of the Lenders'
execution of this Amendment, each of the undersigned hereby consents to this
Amendment and agrees that the same shall in no way release, diminish, impair,
reduce or otherwise adversely affect the obligations and liabilities of the
undersigned under their respective Guaranties described in the Credit Agreement
executed by the undersigned, or any agreements, documents or instruments
executed by any of the undersigned, all of which obligations and liabilities
are, and shall continue to be, in full force and effect. This consent and
agreement shall be binding upon the undersigned, and their respective successors
and assigns, and shall inure to the benefit of the Lenders, and their respective
successors and assigns.
ADVANCED TECHNOLOGIES AND INSTALLATION CORPORATION
ALLTECK LINE CONTRACTORS (USA), INC.
ARBY CONSTRUCTION, INC.
AUSTIN TRENCHER, INC.
BRADFORD BROTHERS, INC.
CCLC, INC.
COMMUNICATION MANPOWER, INC.
CONTI COMMUNICATIONS, INC.
CROCE ELECTRIC COMPANY, INC.
CROWN FIBER COMMUNICATIONS, INC.
DILLARD SMITH CONSTRUCTION COMPANY
DRIFTWOOD ELECTRICAL CONTRACTORS, INC.
ENVIRONMENTAL PROFESSIONAL ASSOCIATES, LIMITED
FIVE POINTS CONSTRUCTION CO.
GLOBAL ENERCOM MANAGEMENT, INC.
GOLDEN STATE UTILITY CO.
H. L. CHAPMAN PIPELINE CONSTRUCTION, INC.
HAINES CONSTRUCTION COMPANY
INTERMOUNTAIN ELECTRIC, INC.
IRBY CONSTRUCTION COMPANY
LINE EQUIPMENT SALES CO., INC.
MANUEL BROS., INC.
MEARS GROUP, INC.
MEJIA PERSONNEL SERVICES, INC.
METRO UNDERGROUND SERVICES, INC.
MUSTANG LINE CONTRACTORS, INC.
NETWORK ELECTRIC COMPANY
NORTH PACIFIC CONSTRUCTION CO., INC.
NORTH SKY COMMUNICATIONS, INC.
PAR ELECTRICAL CONTRACTORS, INC.
ELEVENTH AMENDMENT TO THIRD AMENDED
AND RESTATED SECURED CREDIT AGREEMENT
SIGNATURE PAGE
PARKSIDE SITE & UTILITY COMPANY CORPORATION
PARKSIDE UTILITY CONSTRUCTION CORP.
P.D.G. ELECTRIC COMPANY
POTELCO, INC.
PROFESSIONAL TELECONCEPTS, INC. (IL)
PROFESSIONAL TELECONCEPTS, INC. (NY)
PWR FINANCIAL COMPANY
QPC, INC.
QSI, INC.
QUANTA HOLDINGS, INC.
QUANTA XXXI ACQUISITION, INC.
QUANTA LI ACQUISITION, INC.
QUANTA LIV ACQUISITION, INC.
QUANTA LVII ACQUISITION, INC.
QUANTA LVIII ACQUISITION, INC.
QUANTA LIX ACQUISITION, INC.
QUANTA LX ACQUISITION, INC.
QUANTA LXI ACQUISITION, INC.
QUANTA LXII ACQUISITION, INC.
QUANTA LXIII ACQUISITION, INC.
QUANTA LXIV ACQUISITION, INC.
QUANTA LXV ACQUISITION, INC.
QUANTA LXVI ACQUISITION, INC.
QUANTA LXVII ACQUISITION, INC.
QUANTA LXVIII ACQUISITION, INC.
QUANTA LXIX ACQUISITION, INC.
QUANTA LXX ACQUISITION, INC.
QUANTA LXXI ACQUISITION, INC.
QUANTA LXXII ACQUISITION, INC.
QUANTA LXXIII ACQUISITION, INC.
QUANTA UTILITY INSTALLATION CO., INC,
R. A. WAFFENSMITH & CO., INC.
SOUTHEAST PIPELINE CONSTRUCTION, INC.
SOUTHWESTERN COMMUNICATIONS, INC.
SOUTHWEST TRENCHING COMPANY, INC.
SPALJ CONSTRUCTION COMPANY
SUMTER UTILITIES, INC.
THE RYAN COMPANY, INC.
TOM ALLEN CONSTRUCTION COMPANY
TRANS TECH ACQUISITION, INC.
TRAWICK CONSTRUCTION COMPANY, INC.
TTGP, INC.
TTLP, INC.
TTM, INC.
TXLP, INC.
UNDERGROUND CONSTRUCTION CO., INC.
ELEVENTH AMENDMENT TO THIRD AMENDED
AND RESTATED SECURED CREDIT AGREEMENT
SIGNATURE PAGE
UTILCO, INC.
VCI TELCOM, INC.
W.C. COMMUNICATIONS, INC.
W.H.O.M. CORPORATION
By: /s/ DANA GORDON
------------------------------------------
Dana Gordon, President or Vice President
of each Guarantor
QDE LLC
QUANTA DELAWARE, INC.
QUANTA ASSET MANAGEMENT LLC
By: /s/ LINDA BUBACZ
------------------------------------------
Linda Bubacz, President
COAST TO COAST, LLC
By: Environmental Professional Associates,
Limited, Its Member
By: /s/ DANA GORDON
------------------------------------------
Dana Gordon, Vice President
NORTHERN LINE LAYERS, LLC
By: PAR Electrical Contractors, Inc., Its Member
By: /s/ DANA GORDON
------------------------------------------
Dana Gordon, Vice President
ELEVENTH AMENDMENT TO THIRD AMENDED
AND RESTATED SECURED CREDIT AGREEMENT
SIGNATURE PAGE
DOT 05, LLC
TJADER, L.L.C.
OKAY CONSTRUCTION COMPANY, LLC
By: Spalj Construction Company, Its Member
By: /s/ DANA GORDON
------------------------------------------
Dana Gordon, Vice President
LAKE NORMAN PIPELINE, LLC
By: Bradford Brothers, Inc., Its Member
By: /s/ DANA GORDON
------------------------------------------
Dana Gordon, Vice President
MEARS/CPG, LLC
MEARS ENGINEERING, LLC
MEARS/HDD, LLC
MEARS SERVICES, LLC
By: Mears Group, Inc., The Sole Member of each
of the foregoing limited liability
companies
By: /s/ DANA GORDON
------------------------------------------
Dana Gordon, Vice President
S.K.S. PIPELINERS, LLC
By: Arby Construction, Inc., Its Member
By: /s/ DANA GORDON
------------------------------------------
Dana Gordon, Vice President
ELEVENTH AMENDMENT TO THIRD AMENDED
AND RESTATED SECURED CREDIT AGREEMENT
SIGNATURE PAGE
TNS-VA, LLC
By: Professional Teleconcepts, Inc. (NY),
Its Member
By: /s/ DANA GORDON
------------------------------------------
Dana Gordon, Vice President
LINECO LEASING, LLC
By: Mustang Line Contractors, Inc.,
Its Sole Member
By: /s/ DANA GORDON
------------------------------------------
Dana Gordon, Vice President
AIRLAN TELECOM SERVICES, L.P.
NORTH HOUSTON POLE LINE, L.P.
LINDSEY ELECTRIC, L.P.
DIGCO UTILITY CONSTRUCTION, L.P.
By: Mejia Personnel Services, Inc., Its
General Partner
By: /s/ DANA GORDON
------------------------------------------
Dana Gordon, Vice President
QUANTA SERVICES MANAGEMENT PARTNERSHIP, L.P.
QUANTA ASSOCIATES, L.P.
By: QSI, Inc., Its General Partner
By: /s/ DANA GORDON
------------------------------------------
Dana Gordon, Vice President
ELEVENTH AMENDMENT TO THIRD AMENDED
AND RESTATED SECURED CREDIT AGREEMENT
SIGNATURE PAGE
TRANS TECH ELECTRIC, L.P.
By: TTGP, Inc., Its General Partner
By: /s/ DANA GORDON
------------------------------------------
Dana Gordon, Vice President
PWR NETWORK, LLC
By: PWR Financial Company, Its Sole Member
By: /s/ DANA GORDON
------------------------------------------
Dana Gordon, Vice President
Q RESOURCES, LLC
By: Quanta Holdings, Inc.
By: /s/ DANA GORDON
------------------------------------------
Dana Gordon, Vice President
QUANTA RECEIVABLES, L.P.
By: PWR Network, LLC, Its General Partner
By: PWR Financial Company, Its Sole Member
By: /s/ DANA GORDON
------------------------------------------
Dana Gordon, Vice President
ELEVENTH AMENDMENT TO THIRD AMENDED
AND RESTATED SECURED CREDIT AGREEMENT
SIGNATURE PAGE
TOTAL QUALITY MANAGEMENT SERVICES, LLC
By: Environmental Professional Associates, Ltd.,
Its Sole Member
By: /s/ DANA GORDON
------------------------------------------
Dana Gordon, Vice President
ELEVENTH AMENDMENT TO THIRD AMENDED
AND RESTATED SECURED CREDIT AGREEMENT
SIGNATURE PAGE