EXHIBIT 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of March 4, 2003
(this "First Amendment"), is by and among DYCOM INDUSTRIES, INC., a Florida
corporation (the "Borrower"), the Guarantors party to the Credit Agreement (as
defined below), the Lenders party to the Credit Agreement (as defined below) and
WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent for the Lenders (in
such capacity, the "Administrative Agent").
WITNESSETH
WHEREAS, the Borrower, the Guarantors, the Administrative Agent and the
Lenders are parties to that certain Credit Agreement dated as of June 3, 2002
(as amended, modified, supplemented or restated from time to time, the "Credit
Agreement"; capitalized terms used herein shall have the meanings ascribed
thereto in the Credit Agreement unless otherwise defined herein);
WHEREAS, the Borrower has informed the Lenders that it intends to
restructure the corporate form of certain of its Subsidiaries (the
"Restructuring");
WHEREAS, the Borrower has requested that the Required Lenders agree to
amend certain provisions of the Credit Agreement; and
WHEREAS, the Required Lenders have agreed to make certain amendments to
the Credit Agreement, subject to the terms and conditions contained herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
AMENDMENTS
1.1 DEFINITIONS.
(a) Section 1.1 to the Credit Agreement is amended by
adding the following new definition in the appropriate alphabetical
location:
"First Amendment Effective Date" mean March 4, 2003.
(b) The definition of "Guarantors" in Section 1.1 of the
Credit Agreement is amended and restated in its entirety to read as
follows:
"Guarantors" means (a) any of the Domestic
Subsidiaries identified as a "Guarantor" on the signature
pages hereto and (b) any Person which executes a Joinder
Agreement in accordance with the terms of the Credit
Agreement, together with their successors and permitted
assigns.
(c) Section 1.1 of the Credit Agreement is amended by
deleting the term "Material Domestic Subsidiary" in its entirety.
1.2 SUBSIDIARIES. Section 5.11 of the Credit Agreement is amended
and restated in its entirety to read as follows:
Section 5.11 Subsidiaries.
Set forth on Schedule 5.11 is a list of all the
Subsidiaries of the Credit Parties as of the First Amendment
Effective Date, the jurisdiction of their incorporation and
the direct or indirect ownership interest of the Borrower
therein.
1.3 ADDITIONAL GUARANTORS. Section 6.9 of the Credit Agreement is
amended and restated in its entirety to read as follows:
Section 6.9 Additional Guarantors
Cause each of the Borrower's Domestic Subsidiaries which is
not a party to this Credit Agreement, whether newly formed, after
acquired or otherwise existing, to promptly become a "Guarantor"
hereunder by way of execution of a Joinder Agreement.
1.4 RESTRICTED PAYMENTS. Section 7.9 of the Credit Agreement is
amended and restated in its entirety to read as follows:
Section 7.9 Restricted Payments.
Each of the Credit Parties will not, nor will it permit any of
its Subsidiaries to, directly or indirectly, declare, order, make or
set apart any sum for or pay any Restricted Payment, except (a) to make
dividends payable solely in the same class of Capital Stock of such
Person, (b) to make dividends or other distributions payable to any
Credit Party (directly or indirectly through Subsidiaries) and (c) so
long as no Default or Event of Default has occurred and is continuing
or would result therefrom and so long as, after giving effect to such
payment on a pro forma basis, the Credit Parties would be in compliance
with the financial covenants set forth in Section 6.7 as of the last
fiscal quarter end, the Borrower may repurchase shares of its Capital
Stock and/or make dividends or other distributions during the term of
this Credit Agreement in an aggregate amount not to exceed $25,000,000.
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1.5 SCHEDULE OF SUBSIDIARIES. Schedule 5.11 to the Credit
Agreement is amended by deleting the content of the schedule in its entirety and
inserting, in substitution thereof, the schedule of Subsidiaries attached hereto
as Annex A.
SECTION 3
CLOSING CONDITIONS
3.1 CLOSING CONDITIONS.
This First Amendment shall become effective at such time as the
following conditions shall have been satisfied (in form and substance reasonably
acceptable to the Administrative Agent):
(a) Executed Documentation. The Administrative Agent
shall have received counterparts of this First Amendment, dated as of
the date hereof, between the Credit Parties, the Required Lenders and
the Administrative Agent, in each case executed by a duly authorized
officer of each party thereto.
(b) Restructuring. The Administrative Agent shall have
received all material documents relating to the Restructuring (the
"Restructuring Documents"). All legal, tax, accounting, business and
other matters relating to the Restructuring or to the Borrower and its
Subsidiaries relating to the Restructuring shall be satisfactory in all
material respects to the Administrative Agent.
(c) Joinder Agreements. Receipt by the Administrative
Agent of a Joinder Agreement from each of Dycom Investments, Inc.,
Dycom Capital Management, Inc. and Dycom Corporate Indentity, Inc.
(individually a "New Subsidiary" and collectively, the "New
Subsidiaries), in each case executed by a duly authorized officer of
the applicable New Subsidiary, and acknowledged by the Credit Parties
and the Administrative Agent.
(d) Legal Opinions. The Administrative Agent shall have
received an opinion or opinions from counsel to the New Subsidiaries
relating to the Joinder Agreements referenced in subsection (c) above,
covering, among other things, the legality, validity and enforceability
of such Joinder Agreements, in form and substance satisfactory to the
Administrative Agent, addressed to the Administrative Agent on behalf
of the Lenders and dated as of the date hereof.
(e) Authority Documents. The Administrative Agent shall
have received the following with respect to each New Subsidiary:
(i) Articles of Incorporation. Copies of the
articles of incorporation or other charter documents, as
applicable, of each New Subsidiary certified to be true and
complete as of a recent date by the appropriate governmental
authority of the state of its incorporation.
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(ii) Resolutions. Copies of resolutions of the
board of directors or comparable managing body of each New
Subsidiary approving and adopting this First Amendment, the
Credit Documents, and the transactions contemplated herein and
therein and authorizing execution and delivery thereof,
certified by an officer of such New Subsidiary to be true and
correct and in force and effect as of the date hereof.
(iii) Bylaws. A copy of the bylaws or comparable
operating agreement of each New Subsidiary certified by an
officer of such New Subsidiary to be true and correct and in
force and effect as of the date hereof.
(iv) Good Standing. Copies of certificates of
good standing, existence or its equivalent with respect to
each New Subsidiary certified as of a recent date by the
appropriate governmental authorities of the state of
incorporation or formation, as applicable, and each other
state in which the failure to so qualify and be in good
standing could reasonably be expected to have a Material
Adverse Effect.
(v) Incumbency. An incumbency certificate of
each New Subsidiary certified by a secretary or assistant
secretary to be true and correct as of the date hereof.
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 First Amendment. Except as herein specifically amended hereby or otherwise
agreed, the Credit Agreement and the other Credit Documents are hereby ratified
and confirmed and shall remain in full force and effect according to their
terms.
4.2 REPRESENTATIONS AND WARRANTIES OF CREDIT PARTIES. Each of the
Credit Parties represents and warrants, as of the date of this First Amendment,
as follows:
(a) It has taken all necessary action to authorize the
execution, delivery and performance of this First Amendment and the
transactions contemplated herein.
(b) This First 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
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affecting creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity).
(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 First Amendment or any
of the Restructuring Documents other than such consents, approvals,
authorizations, orders, filings, registrations, and qualifications
which have been obtained.
(d) The representations and warranties set forth in
Section 5 of the Credit Agreement are true and correct in all material
respects as of the date hereof except for those which expressly relate
to an earlier date.
(e) No event has occurred and is continuing which
constitutes a Default or an Event of Default.
(f) The Credit Party Obligations are not reduced or
modified by this First Amendment and are not subject to any offsets,
defenses or counterclaims.
4.3 AFFIRMATIVE COVENANTS OF THE CREDIT PARTIES. Upon the earlier
of (a) the date the Restructuring is completed and (b) April 30, 2003, the
Borrower shall cause all of its Domestic Subsidiaries that are not Guarantors at
such time to promptly become "Guarantors" under the Credit Agreement by way of
execution and delivery to the Administrative Agent of one or more Joinder
Agreements, and the Borrower and its Subsidiaries shall deliver all such other
documentation as the Administrative Agent may reasonably request in connection
with the foregoing, including, without limitation, organizational and
authorizing documents of such Persons, opinions of counsel to such Persons, and
an updated schedule of the Borrower's Subsidiaries, all in form and substance
satisfactory to the Administrative Agent.
4.4 REAFFIRMATION OF CREDIT PARTY OBLIGATIONS. Each Credit Party
hereby ratifies the Credit Agreement and acknowledges and reaffirms (a) that it
is bound by all terms of the Credit Agreement applicable to it and (b) that it
is responsible for the observance and full performance of its respective Credit
Party Obligations.
4.5 INSTRUMENT PURSUANT TO CREDIT AGREEMENT. This First Amendment
is a Credit Document executed pursuant to the Credit Agreement and shall (unless
otherwise expressly indicated therein) be construed, administered and applied in
accordance with the terms and provisions of the Credit Agreement.
4.6 FURTHER ASSURANCES. The Credit Parties agree to promptly take
such action, upon the request of the Administrative Agent, as is necessary to
carry out the intent of this First Amendment.
4.7 EXPENSES. The Borrower agrees to pay all reasonable costs and
expenses of the Administrative Agent in connection with the preparation,
negotiation, execution and delivery of
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this First Amendment, including, without limitation, the reasonable fees and
expenses of Moore & Van Allen, PLLC.
4.8 GOVERNING LAW. THIS FIRST AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
4.9 COUNTERPARTS/TELECOPY. This First Amendment may be executed by
the parties hereto in several counterparts, each of which shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement. Delivery of executed counterparts of the First Amendment by telecopy
shall be effective as an original and shall constitute a representation that an
original shall be delivered.
4.10 SUCCESSORS AND ASSIGNS. This First Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
4.11 GENERAL. Except as amended hereby, the Credit Agreement and
all other Credit Documents shall continue in full force and effect.
[Signature Pages to Follow]
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FIRST AMENDMENT TO CREDIT AGREEMENT
DYCOM INDUSTRIES, INC.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this First Amendment to be duly executed and delivered as of the date first
above written.
BORROWER: DYCOM INDUSTRIES, INC.,
a Florida corporation
By: /s/ Richard L. Dunn
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Name: RICHARD L. DUNN
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Title: SENIOR VICE PRESIDENT & CFO
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GUARANTORS: COMMUNICATIONS CONSTRUCTION
GROUP, INC.,
a Pennsylvania corporation
ANSCO & ASSOCIATES, INC.,
a Florida corporation
DYCOM CAPITAL MANAGEMENT, INC.,
a Delaware corporation
DYCOM CORPORATE IDENTITY, INC.,
a Delaware corporation
DYCOM INVESTMENTS, INC.,
a Delaware corporation
ERVIN CABLE CONSTRUCTION, INC.,
a Kentucky corporation
CABLE COM INC.,
a Delaware corporation
NIELS FUGAL SONS COMPANY,
a Utah corporation
By: /s/ Richard L. Dunn
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Name: RICHARD L. DUNN
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Title: SECRETARY & TREASURER of each of
the foregoing
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[signature pages follow]
FIRST AMENDMENT TO CREDIT AGREEMENT
DYCOM INDUSTRIES, INC.
LENDERS: WACHOVIA BANK, NATIONAL ASSOCIATION,
individually in its capacity as a
Lender and in its capacity as Administrative Agent
By: /s/ Michael Romanzo
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Name: MICHAEL ROMANZO
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Title: VICE PRESIDENT
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FIRST AMENDMENT TO CREDIT AGREEMENT
DYCOM INDUSTRIES, INC.
BANK OF AMERICA, N.A.
By: /s/ Timothy H. Spanos
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Name: TIMOTHY H. SPANOS
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Title: MANAGING DIRECTOR
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FIRST AMENDMENT TO CREDIT AGREEMENT
DYCOM INDUSTRIES, INC.
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Robert Lozano
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Name: ROBERT LOZANO
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Title: FIRST VICE PRESIDENT AND DEPUTY DIVISION HEAD
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FIRST AMENDMENT TO CREDIT AGREEMENT
DYCOM INDUSTRIES, INC.
HSBC BANK USA
By: /s/ Gregory Roll
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Name: GREGORY ROLL
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Title: FIRST VICE PRESIDENT
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FIRST AMENDMENT TO CREDIT AGREEMENT
DYCOM INDUSTRIES. INC.
HARRIS TRUST AND SAVINGS BANK
By: /s/ Wes W. Frangul
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Name: WES W. FRANGUL
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Title: MANAGING DIRECTOR
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FIRST AMENDMENT TO CREDIT AGREEMENT
DYCOM INDUSTRIES, INC.
SUNTRUST BANK
By: /s/ Edward E. Water
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Name: EDWARD E. WATER
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Title: DIRECTOR
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FIRST AMENDMENT TO CREDIT AGREEMENT
DYCOM INDUSTRIES, INC.
REGIONS BANK
By: /s/ David L. Walker
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Name: DAVID L. WALKER
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Title: VICE PRESIDENT CORPORATE BANKING
FIRST AMENDMENT TO CREDIT AGREEMENT
DYCOM INDUSTRIES, INC.
COMPASS BANK
By: /s/ C. French Yarbrough, Jr.
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Name: C. FRENCH YARBROUGH, JR.
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Title: SENIOR VICE PRESIDENT
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FIRST AMENDMENT TO CREDIT AGREEMENT
DYCOM INDUSTRIES, INC.
COMMERCEBANK N. A.
By: /s/ Terry Lysengen
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Name: TERRY LYSENGEN
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Title: VICE PRESIDENT
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FIRST AMENDMENT TO CREDIT AGREEMENT
DYCOM INDUSTRIES, INC.
ISRAEL DISCOUNT BANK OF NEW YORK
By: /s/ Roberto Morgan
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Name: ROBERTO MORGAN
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Title: SENIOR VICE PRESIDENT
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Annex A to First Amendment
Schedule 5.11
SUBSIDIARIES
Each subsidiary is 100% owned by the Borrower or its subsidiaries.
SUBSIDIARIES
Subsidiary Jurisdiction of Incorporation
See attached Organizational Chart