<PAGE>
EXHIBIT 10.2
EXECUTION COPY
THIS EXHIBIT HAS BEEN REDACTED AND IS THE
SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH
"*" AND BRACKETS AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
SECOND AMENDMENT AND WAIVER
SECOND
AMENDMENT AND WAIVER, dated as of June 10, 2005 (this
"Amendment"'), to the Amended and Restated
Credit Agreement, dated as of May 12,
2004 (the "Credit Agreement"), among
INFRASOURCE SERVICES, INC., a Delaware
corporation ("Holdings"), INFRASOURCE
INCORPORATED, a Delaware corporation (the
"Borrower"), the several banks and other
financial institutions or entities from
time to time parties thereto (the
"Lenders"), LASALLE BANK NATIONAL ASSOCIATION,
as syndication agent, and BARCLAYS BANK
PLC, as administrative agent (the
"Administrative Agent").
WITNESSETH:
WHEREAS,
the Borrower has requested that the Lenders agree to amend and
waive certain provisions in the Credit
Agreement upon the terms and subject to
the conditions set forth herein; and
WHEREAS,
the Lenders have agreed to such amendments and waivers only
upon
the terms and subject to the conditions set
forth herein;
NOW,
THEREFORE, in consideration of the premises and the mutual
covenants
contained herein and in the Credit
Agreement, the parties hereto hereby agree as
follows:
1. Defined
Terms. Unless otherwise defined herein, all capitalized terms
used herein shall have the meanings given
to them in the Credit Agreement.
2.
Amendment to Section 1.1 (Defined Terms). Section 1.1 of the
Credit
Agreement is hereby amended by inserting
the following defined terms in
appropriate alphabetical order:
"[**********] Project Losses": losses arising out of the
Borrower's
underground project (under a contract with [**********]) outside
of
[**************] described in the letter from the Borrower to
the
Administrative Agent and the Lenders dated June 8, 2005; provided,
that
such
losses do not result in, or could not reasonably be expected to
result in,
an aggregate negative amount of Consolidated Adjusted EBITDA
(as
measured over all relevant periods and excluding any application
of
clause (k)
of the definition of such term which would otherwise result
therefrom)
in excess of $[**********].
"[**********] Project Adjustments": reductions in the
profitability
of the
Borrower's underground project in [**********] described in the
letter
from the Borrower to the Administrative Agent and the Lenders
dated
June 8,
2005; provided, that such loss in profitability does not result
in
an
aggregate negative amount of Consolidated Adjusted EBITDA (as
measured
over all
relevant periods and excluding any application of clause (e) of
the
definition of such term which may otherwise result if such losses
in
profitability were classified as extraordinary, unusual or
non-recurring)
in excess
of $[**********].
3.
Amendment to Section 4.2 (No Change). Section 4.2 of the Credit
Agreement is hereby amended by deleting the
"." at the end thereof and inserting
in lieu thereof the following language: ",
except for the [**********] Project
Losses." The amendment set forth in this
Section 4.2 shall cease to be effective
on and after July 25, 2005 (with respect to
representations and warranties made
on or after such time), at which time such
Section 4.2 shall revert to the
language set forth therein prior to the
effectiveness of this Amendment.
<PAGE>
THIS EXHIBIT HAS BEEN REDACTED AND IS THE
SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH
"*" AND BRACKETS AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
4. Waiver
of Section 4.10 (Taxes). The Required Lenders hereby waive any
noncompliance with Section 4.10 to the
extent such noncompliance results from
the failure to file any state tax returns
in connection with the Acquisition
which are required to be reviewed and
approved by the Seller; provided, that (i)
the taxes payable in accordance with such
state tax returns shall have already
been paid (or provision shall have already
been made for payment of such tax
returns) and (ii) such state tax returns
must be filed on or before June 30,
2005.
5. Waiver
of Section 4.18 (Accuracy of Information. Etc.), Section 5.3
(Condition to Each Extension of Credit) and
Section 6.1 (Financial Statements).
The Required Lenders hereby waive (i) any
misrepresentation as to (or Default or
Event of Default relating to) the
completeness and correctness in all material
respects of the consolidated financial
statements of Holdings for the fiscal
quarter ended March 31, 2005 made (or to be
made prior to any restatement of
such financial statements) in the last
sentence of Section 6.1 or in any
Compliance Certificate or other certificate
relating to such financial
statements or fiscal period to the extent
such misrepresentation results from
the [**********] Project Losses and/or the
[**********] Project Adjustments,
(ii) any misrepresentation under Section
4.18 to the extent resulting from the
impact of the [**********] Project Losses
and/or the [**********] Project
Adjustments on the consolidated financial
statements of Holdings for the fiscal
quarter ended March 31, 2005 and (iii) any
noncompliance with Section 5.3 with
respect to the foregoing; provided, that
the waivers set forth in this paragraph
5 shall cease to be effective on and after
July 25, 2005.
6.
Representations and Warranties. (a) Credit Agreement
Representations
and Warranties. On and as of the date
hereof and after giving effect to this
Amendment, Holdings and the Borrower hereby
confirm, reaffirm and restate the
representations and warranties set forth in
Sections 4 of the Credit Agreement
mutatis mutandis (giving effect and subject
to the waivers contained herein),
except to the extent that such
representations and warranties expressly relate
to a specific earlier date in which case
Holdings and the Borrower hereby
confirm, reaffirm and restate such
representations and warranties as of such
earlier date.
(b) Power; Authorization; Enforceable Obligations. Each Loan
Party
has the requisite corporate or other power
and authority, and the legal right,
to make, deliver and perform the Loan
Documents to which it is a party, as
amended, in the case of the Credit
Agreement, by this Amendment. Each Loan Party
has taken all necessary steps to authorize
the execution, delivery and
performance of Loan Documents to which it
is a party, as amended, in the case of
the Credit Agreement, by this Amendment.
The Credit Agreement, as amended by
this Amendment, continues to constitute a
legal, valid and binding obligation of
each Loan Party thereto, enforceable
against each such Loan Party in accordance
with its terms, except as enforceability
maybe limited by applicable bankruptcy,
insolvency, reorganization, moratorium or
similar laws affecting the enforcement
of creditors' rights generally and by
general equitable principles (whether
enforcement is sought by proceedings in
equity or at law).
(c) No Legal Bar. The execution, delivery and performance of
this
Amendment and any other related documents
will not violate any Requirement of
Law or any material Contractual Obligation
of any Group Member and will not
result in, or require, the creation or
imposition of any Lien on any of their
respective properties or revenue pursuant
to any Requirement of Law or any such
material Contractual Obligation (other than
the Liens created by the Security
Documents).
7.
Conditions to Effectiveness. This Amendment shall become effective
on
the date upon which:
(a) the Administrative Agent shall have received this
Amendment,
executed by the Borrower, Holdings, the
Subsidiary Guarantors and the Required
Lenders; and
2
<PAGE>
THIS EXHIBIT HAS BEEN REDACTED AND IS THE
SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH
"*" AND BRACKETS AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
(b) the Administrative Agent shall have received, for the account
of
each Lender executing this Amendment on or
before 5:00 p.m., New York City time,
June 10, 2005, a consent fee equal to the
product of (i) [*****]% and (ii) the
sum of (x) the Revolving Commitments of
each such Lender and (y) the aggregate
outstanding principal amount of Term Loans
of each such Lender.
8.
Continuing Effect. This Amendment shall not be construed as a
waiver or
consent to any further or future action on
the part of the Loan Parties that
would require a waiver or consent of the
Administrative Agent and/or the
Required Lenders. Except as expressly
amended hereby, the Credit Agreement shall
continue to be and shall remain in full
force and effect in accordance with its
terms.
9.
Expenses. The Borrower agrees to pay and reimburse the
Administrative
Agent for all of its reasonable
out-of-pocket costs and expenses incurred in
connection with the negotiation,
preparation, execution and delivery of this
Amendment, including the reasonable fees
and expenses of counsel.
10.
Counterparts. This Amendment may be executed on any number of
separate
counterparts, and all of said counterparts
taken together shall be deemed to
constitute one and the same instrument.
Delivery of an executed signature page
of this Amendment by facsimile transmission
shall be effective as delivery of a
manually executed counterpart hereof.
11.
GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.
3
<PAGE>
EXECUTION COPY
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.
INFRASOURCE INCORPORATED
By: /s/ Terence R. Montgomery
------------------------------
Name: Terence R.
Montgomery
Title: Sr. Vice President & CFO
INFRASOURCE SERVICES, INC.
By: /s/ Terence R. Montgomery
------------------------------
Name: Terence R.
Montgomery
Title
