EXHIBIT 10
FOURTH AMENDMENT TO CREDIT AGREEMENT
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THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated
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effective as of November 9, 2001, is among ENCOMPASS SERVICES CORPORATION, a
Texas corporation (formerly Group Maintenance America Corp., the "Company"), the
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Subsidiaries of the Company listed on the signature pages hereto as Guarantors
(together with each other Person who subsequently becomes a Guarantor,
collectively, the "Guarantors"), the banks and other financial institutions
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listed on the signature pages hereto under the caption "Banks" (together with
each other person who becomes a Bank, collectively, the "Banks"), THE CHASE
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MANHATTAN BANK, individually as a Bank and as Syndication Agent, FIRST UNION
NATIONAL BANK, individually as a Bank and as Documentation Agent, and BANK OF
AMERICA, N.A., individually as a Bank ("Bank of America") and as Administrative
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Agent for the other Banks (in such capacity, together with any other Person who
becomes the administrative agent, the "Administrative Agent").
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A. The Company, the Banks, the Syndication Agent, the Documentation
Agent and the Administrative Agent have entered into that certain Credit
Agreement dated as of February 22, 2000 (as amended, restated, or modified from
time to time, the "Credit Agreement").
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B. The Company has requested that the Credit Agreement be amended in
certain respects, and the Banks party hereto are willing to comply with such
request subject to the terms and provisions of this Amendment.
NOW, THEREFORE, BE IT RESOLVED, THAT, in consideration of the premises
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1
Definitions
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Section 1.1 Definitions. Capitalized terms used in this Amendment, to
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the extent not otherwise defined herein, shall have the same meanings as in the
Credit Agreement, as amended hereby.
ARTICLE 2
Amendments
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Section 2.1 Addition of Definitions. The following definitions are
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hereby inserted in alphabetical order in Section 1.01 of the Credit Agreement
and to read in their entirety as follows:
"Amount Limitation" means (a) $300,000,000 until the
Performance Release Date (as defined below in the definition) and (b)
the Total Revolving
Loan Commitment after the Performance Release Date. For purposes of
this definition, the "Performance Release Date" means the earliest of
(i) the date when no Default or Event of Default has occurred and is
continuing, that both the ratio of Funded Debt to pro forma EBITDA is
4.25 to 1.00 or less for the remaining term of the Loans as required by
Section 7.11 of this Agreement and the ratio of Senior Debt to pro
forma EBITDA is 2.50 to 1.00 or less for the remaining term of the
Loans as required by Section 7.12 of this Agreement, (ii) the date
(which must occur after the fiscal period for which the Company has
delivered a certificate pursuant to Section 6.01(d) that reflects that
the above mentioned ratios have been met by the Company for such fiscal
period and that no Default or Event of Default has occurred and is
continuing) that the Company notifies the Administrative Agent in
writing that the referenced covenants have been voluntarily reduced by
the Company to the levels specified in clause (i) above for the
remaining term of the Loans or (iii) the date that Banks holding 51% of
Revolving Loan Commitments consent in writing that the Performance
Release Date has occurred.
"Covenant Reduction Date" means the earlier of (i) the date
that both the ratio of Funded Debt to pro forma EBITDA is 3.50 to 1.00
or less for the remaining term of the Loans as required by Section 7.11
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of this Agreement and the ratio of Senior Debt to pro forma EBITDA is
2.50 to 1.00 or less for the remaining term of the Loans as required by
Section 7.12 of this Agreement, and (ii) the date (which must occur
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after the fiscal period for which the Company has delivered a
certificate pursuant to Section 6.01(d) that reflects that the above
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referenced ratios have been met by the Company for such fiscal period
and that no Default or Event of Default has occurred and is continuing)
that the Company notifies the Administrative Agent in writing that the
above-referenced covenants have been voluntarily reduced by the Company
to the levels specified in clause (i) above for the remaining term of
the Loans.
"EBIT" means, for any period, and determined in accordance
with GAAP (to the extent applicable), the sum of:
(a) the consolidated pre-tax income of a Qualified
Company acquired by the Company, plus the aggregate amount
which was deducted for such period in determining such
consolidated pre-tax income for interest expense net of
interest income; and
(b) for each acquisition of a Qualified Company
acquired by the Company during the period for which EBIT is
calculated, the sum of the consolidated pre-tax income of such
Qualified Company, plus the aggregate amount which was
deducted for such period in determining such consolidated
pre-tax income for interest expense net of interest income.
"Fourth Amendment" means the Fourth Amendment to this
Agreement dated as of the Fourth Amendment Date.
FOURTH AMENDMENT TO CREDIT AGREEMENT - Page 2
"Fourth Amendment Date" means November 9, 2001.
"Performance Release Date" shall have the meaning provided in
the definition of Amount Limitation.
"Qualified High Yield Offerings" means one or more issuances
of subordinated, unsecured debt securities by the Company and/or one or
more of its Subsidiaries (which may be guaranteed by the Company and
any of its Subsidiaries on a subordinated basis) that have (i)
subordination terms of which are substantially similar to the BOSC
Senior Subordinated Notes Indenture or are more favorable to senior
creditors (as determined by the Administrative Agent) or that are
otherwise consented-to by the Majority Banks, (ii) covenants that are
no more restrictive or materially more burdensome to the Company and/or
its Subsidiaries than the BOSC Senior Subordinated Notes Indenture (as
determined by the Administrative Agent) or are otherwise consented to
by the Majority Banks, (iii) no provisions that restrict in any manner
the right of the Company or its Subsidiaries to grant or suffer to
exist Liens in their assets or stock in favor of the Agent or any of
the Banks to secure the Obligations and (iv) no payments of principal
or sinking fund amounts due before, and have maturities that are at
least, 180 days after the Tranche C Term Loan Maturity Date.
Section 2.2 Amendment to Definitions in Section 1.01. The following
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definitions appearing in Section 1.01 of the Credit Agreement are hereby amended
and restated to read in their entirety as follows:
"Margin" means:
(a) with respect to Revolving Loans (including
Swingline Advances) and to Alternate Base Rate Advances,
Eurodollar Rate Advances, or Commitment Fees, as applicable,
the percentage determined in accordance with the following
table:
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Pricing Level V IV III II I
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Funded Equal to or Equal to or Equal to or Equal to or Less than
------ greater than greater than greater than greater than 2.75 to 1.00
Debt/Pro 5.00 to 1.00 4.00 to 1.00 3.50 to 1.00 2.75 to 1.00
---- --- and less than and less than and less than
Forma 5.00 to 1.00 4.00 to 1.00 3.50 to 1.00
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EBITDA Ratio
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--------------- -------------- -------------- -------------- -------------- -------------
Alternate Base 2.00% 1.75% 1.00% .75% .50%
Rate Margin
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Eurodollar 3.50% 3.25% 2.50% 2.25% 2.00%
Margin
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Commitment .625% .625% .500% .375% .375%
Fee
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(b) with respect to Tranche A Term Loans and Tranche
B Term Loans and to Alternate Base Rate Advances and
FOURTH AMENDMENT TO CREDIT AGREEMENT - Page 3
Eurodollar Rate Advances, as applicable, the percentage
determined in accordance with the following table:
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Pricing Level IV III II I
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Funded Debt/Pro Equal to or greater Equal to or greater Equal to or greater Less than 3.50 to
----------- --- than 5.00 to 1.00 than 4.00 to 1.00 than 3.50 to 1.00 1.00
Forma EBITDA and less than 5.00 and less than 4.00
------------- to 1.00 to 1.00
Ratio
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Alternate Base 2.25% 2.00% 1.25% 1.00%
Rate Margin
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Eurodollar Margin 3.75% 3.50% 2.75% 2.50%
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(c) with respect to Tranche C Term Loans and to
Alternate Base Rate Advances (for the Tranche C Term Loans
only) 2.25% and with respect to Tranche C Term Loans and to
Eurodollar Advances (for the Tranche C Term Loans only) 3.75%.
If sufficient information does not exist to calculate
the applicable Margin, Eurodollar Rate Advances shall not be
available to the Company and the applicable Margin for
Alternate Base Rate Advances shall be deemed to be 2.00% for
Revolving Loans and 2.25% for Tranche A Term Loans and Tranche
B Term Loans.
The pricing, as set forth above, will be effective
upon receipt of a compliance certificate and audited financial
statements pursuant to Section 6.01 for the fiscal year of the
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Company ended December 31, 2001. Notwithstanding the
foregoing, until such time, the "Margin" shall be Level IV in
the case of Revolving Loans and Level III in the case of
Tranche A Term Loans and Tranche B Term Loans.
"Revolving Loan Commitment" shall mean, with respect to each
Bank, the amount set forth opposite such Bank's name on Schedule
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1.01(a), entitled "Revolving Loan Commitment", attached hereto, as the
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same may be reduced or terminated pursuant to Section 2.18 and/or 9.02.
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"Total Commitment" means the aggregate Commitments of all
Banks totaling a maximum of $750,000,000 for all Banks.
"Total Revolving Loan Commitment" shall mean $350,000,000, the
sum of the Revolving Loan Commitments of each of the Banks, as the same
may be terminated or reduced pursuant to Section 2.18 and/or 9.02.
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Section 2.3 Amendment to Definition of EBITDA in Section 1.01. The
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following is added to the end of the definition of "EBITDA":
FOURTH AMENDMENT TO CREDIT AGREEMENT - Page 4
Notwithstanding the foregoing, to the extent the following
write-offs or reserves have reduced EBITDA, EBITDA (i) will be
increased retroactively in the second quarter of fiscal year 2001, by
$9,800,000 for historical receivables reserves or write-offs
attributable to emerging telecommunications and data company customers,
and (ii) may be increased, at the Company's option, in the third and
fourth quarter of fiscal year 2001 and the first quarter of fiscal year
2002, by up to $21,000,000 related to future receivables write-offs or
reserves from a schedule of $25,700,000 of doubtful or uncollectible
receivables previously disclosed to the Administrative Agent in
writing. To the extent receivables referred to above are written-off or
reserved (and EBITDA is increased to add back such write offs or
reserves as provided above) but later collected, the positive effect on
EBITDA of such amount of cash collected shall be excluded in
calculating EBITDA for the periods in which collected.
Section 2.4 Addition to Section 2.01(a). The following is added to the
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end of Section 2.01(a).
Notwithstanding the foregoing, the Outstanding Revolving
Credit shall never exceed the Amount Limitation. The Company agrees
that it will not permit the Outstanding Revolving Credit to exceed the
Amount Limitation, that it will not request any Advance that would,
after giving effect thereto, exceed the Amount Limitation and that no
Bank shall have any obligation to make any Advance if, after giving
effect thereto, the Outstanding Revolving Credit would exceed the
Amount Limitation.
Section 2.5 Amendment to Section 2.01(e). Section 2.01(e) is amended in
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its entirety to read as follows: "[omitted intentionally]".
Section 2.6 Addition to Section 2.07(b)(i). Section 2.07(b)(i) of the
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Credit Agreement is hereby amended by adding immediately before the word "Total"
found therein the following: "lesser of the Amount Limitation or the".
Section 2.7 Amendment to Section 2.07(b)(ii). Section 2.07(b)(ii) of
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the Credit Agreement is hereby amended and restated in its entirety as follows:
(ii) Prepayment from Asset Dispositions. If the Company or any
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of its Subsidiaries receives Net Proceeds of any Asset Disposition, the
Company shall make a prepayment in accordance with the terms of this
Section in respect of the Obligations equal to the amount of such Net
Proceeds and the Revolving Loan Commitment shall be permanently reduced
by the amount of such prepayment, in each case as provided in
clause (v) below; provided, however, that if no Default or Event of
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Default has occurred and is continuing, the Company shall not be
required to make such prepayment to the extent that the Net Proceeds
from such Asset Dispositions during any fiscal year of the Company do
not exceed $5,000,000 in the aggregate. Notwithstanding the foregoing,
following the Covenant Reduction Date, provided no Default or Event of
Default has occurred and is continuing, the Company shall not be
required to make such prepayment to the extent that the Net Proceeds
(excluding Net Proceeds reinvested pursuant to this clause (ii)) from
such Asset Dispositions during any fiscal year of the
FOURTH AMENDMENT TO CREDIT AGREEMENT - Page 5
Company do not exceed $15,000,000 in the aggregate; provided, further,
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however, that no such prepayment will be required after the Covenant
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Reduction Date if and to the extent that the Net Proceeds of any such
Asset Disposition is fully re-invested or contracted to be reinvested
in productive assets used in the ordinary course of such Person's
business within one hundred eighty (180) days of the receipt of such
Net Proceeds; and provided, further, however, that none of the
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foregoing provisions shall apply to the Net Proceeds of an Approved
Securitization (which requires the approval of the Administrative Agent
and the Majority Banks), all the Net Proceeds of which shall be applied
in accordance with this Section without regard to such prior
provisions.
Section 2.8 Amendment to Section 2.07(b)(iii). Section 2.07(b)(iii) of
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the Credit Agreement is hereby amended and restated in its entirety as follows:
(iii) Prepayments from Debt Offerings. In the event that the
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Company or any Subsidiary of the Company issues any debt Securities for
cash (other than Qualified High Yield Offerings issued prior to
September 1, 2001 and other Indebtedness permitted by Section 7.03,
other than Section 7.03(o)), no later than the third Business Day
following the date of receipt of the proceeds from such issuance, the
Company shall make a prepayment in respect of the Obligations equal to
the amount of the Net Proceeds thereof in prepayment of the Loans as
provided in clause (v) below.
Section 2.9 Amendment to Section 2.07(b)(iv). Section 2.07(b)(iv) of
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the Credit Agreement is hereby amended and restated in its entirety as follows:
(iv) Prepayments from Equity Offerings. In the event that the
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Company or any Subsidiary of the Company issues Capital Stock for cash
(other than pursuant to employee benefit plans sponsored by the
Company) no later than the third Business Day following the date of
receipt of the Net Proceeds from such issuance, the Company shall make
a prepayment in respect of the Loans in an amount equal to fifty (50%)
percent of the amount of such Net Proceeds in prepayment of the Loans
as provided in clause (v) below; provided, however, that such mandatory
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prepayment shall be reduced to zero (0%) percent of such proceeds when
the Company's Funded Debt to pro forma EBITDA ratio (calculated and
determined as provided in Section 7.11) is less than or equal to 2.00
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to 1.00 at the end of the Company's most recently completed fiscal
quarter.
Section 2.10 Amendment to Section 2.07(b)(v). Section 2.07(b)(v) of the
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Credit Agreement is hereby amended and restated in its entirety as follows:
(v) Application of Proceeds of Prepayments. Prepayments made
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pursuant to clause (i) above shall be applied to the Revolving Loans
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without any reduction in the Revolving Loan Commitments. Prepayments
made pursuant to clause (ii) above shall be applied pro rata to all of
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the Loans (and pro rata with respect to each remaining installment
(including the final installment) of the Term Loans), with a permanent
reduction of the Revolving Loan Commitments in the amount of the
prepayment applied to the Revolving Loans. Prepayments made pursuant to
clauses (iii) and (iv) above shall be applied to prepayment of the
FOURTH AMENDMENT TO CREDIT AGREEMENT - Page 6
Loans pro rata (and as to the Term Loans, pro rata with respect to each
remaining installment of principal, including the final installment due
on the Term Loans), with a concurrent reduction in the Revolving Loan
Commitments in the amount of any prepayment of the Revolving Loans.
Notwithstanding the foregoing, once the Total Revolving Loan Commitment
is reduced to $300,000,000, subsequent prepayments made pursuant to
clauses (iii) and (iv) above shall be applied, at the Company's option,
to (a) the Term Loans pro rata with respect to each remaining
installment of principal (including the final installment due on the
Term Loans) or (b) pro rata to all of the Loans (and pro rata with
respect to each remaining installment of principal (including the final
installment) of the Term Loans) with a permanent reduction of the
Revolving Loan Commitments in the amount of the prepayment applied to
the Revolving Loans. Anything herein to the contrary notwithstanding,
so long as any Tranche A Term Loan or Tranche B Term Loan is
outstanding, any holder of a Tranche C Term Loan shall have the right
to refuse to be prepaid its portion of any prepayment pursuant to this
Section 2.07(b). In such event, the prepayment refused by such holder
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of a Tranche C Term Loan shall be allocated as provided in this
clause (v) to holders of Loans other than holders of a Tranche C
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Term Loan.
Section 2.11 Amendment to Section 2.07(b)(vi). Section 2.07(b)(vi) of
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the Credit Agreement is hereby amended by inserting the phrase "issued prior to
September 1, 2001" after the word "Offerings" in the third line of clause (vi).
Section 2.12 Addition to Section 3.01(a). Section 3.01(a) of the Credit
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Agreement is hereby amended by adding to the end of Section 3.01(a) the
following:
Additionally, no Issuing Bank shall have any obligation to
issue a Letter of Credit if the stated amount thereof, when added to
the Outstanding Revolving Credit, would exceed the Amount Limitation.
Section 2.13 Addition of Section 6.12. The Credit Agreement is hereby
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amended by adding thereto a new Section 6.12 that reads as follows:
Section 6.12 Monthly Reporting. Until the Covenant Reduction
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Date, as soon as available, and in any event within thirty-five (35)
days after the end of each month (except for each month that is also
the last month of a fiscal quarter) of the Company, the Company shall
deliver to the Administrative Agent both paper and electronic copies of
(i) the consolidated balance sheet and related statements of income and
cash flow for such month, all of which shall be certified by the chief
financial officer or chief accounting officer or treasurer of the
Company as fairly representing, in all material respects, the financial
position of the Company and its Subsidiaries as of the end of such
period and the results of their operations for the period then ended in
accordance with GAAP, subject to changes resulting from normal year-end
audit adjustments and the absence of footnotes and (ii) a consolidated
receivables aging summary for the Company and its Subsidiaries as of
the end of the preceding month.
Section 2.14 Addition of Section 6.13. The Credit Agreement is amended
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by adding thereto a new Section 6.13 that reads as follows:
FOURTH AMENDMENT TO CREDIT AGREEMENT - Page 7
Section 6.13 Annual Budget. As soon as available, and in any
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event within sixty (60) days after the first day of each fiscal year of
the Company, the Company shall deliver to the Administrative Agent both
paper and electronic copies of the Company's consolidated annual budget
for such fiscal year.
Section 2.15 Addition of Section 6.14. The Credit Agreement is amended
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by adding thereto a new Section 6.14 that reads as follows:
Section 6.14. Certain Additional Information. As soon as
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available, and in any event within fifty (50) days of the end of each
fiscal quarter of the Company, the Company shall deliver to the
Administrative Agent both paper and electronic copies of (i) a
comparison of the information provided in clause (a) of Section 6.01
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hereof with the budgeted figures for the time period and (ii) a
schedule listing by name and dollar amount any receivables that have
been written off as provided in clause (ii) of the last sentence of the
definition of EBITDA found in Section 1.01 hereof, and a similar
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listing of any such receivables that have been collected subsequent to
being written-off.
Section 2.16 Amendment to Section 7.02. Section 7.02 of the Credit
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Agreement is amended by redesignating the existing Section as subpart (a) and
adding the following provision thereto:
(b) Notwithstanding the foregoing, the Company will not, and
will not permit any Subsidiary to, make any Asset Disposition if the
aggregate consideration due the Company or any of its Subsidiaries is
greater than $20,000,000, unless the Administrative Agent shall have
received (i) a fairness opinion, in form and substance and issued by a
Person, reasonably acceptable to the Administrative Agent, authorized
by the Company's board of directors and (ii) a pro forma compliance
certificate demonstrating that no Default or Event of Default will
exist after giving effect to such Asset Disposition.
Section 2.17 Amendment to Section 7.03(k). Section 7.03(k) of the
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Credit Agreement is hereby amended and restated in its entirety as follows:
(k) (1) until the Covenant Reduction Date, other Indebtedness
not to exceed $100,000,000 in the aggregate (measured as of the date of
incurrence), meeting the following criteria: (i) such Indebtedness is
subordinate to the Obligations on terms and conditions satisfactory to
the Administrative Agent, (ii) none of such Indebtedness matures prior
to one hundred eighty (180) days after the maturity and payment in full
of the Tranche C Term Loans and termination of the Total Tranche C Term
Loan Commitment, (iii) no payments or prepayments of principal or
sinking fund amounts shall be made in respect of such indebtedness
prior to one hundred eighty (180) days after payment in full of the
Tranche C Term Loans and termination of the Total Tranche C Term Loan
Commitment, and (iv) seventy-five (75%) percent of the Net Proceeds of
the Indebtedness are used to reduce the Total Tranche A Term Loan
Commitment, the Total Tranche B Term Loan Commitment, and the Total
Tranche C Term Loan Commitment, pro rata (and pro rata to each
remaining installment, including the final installment); and
FOURTH AMENDMENT TO CREDIT AGREEMENT - Page 8
(2) after the Covenant Reduction Date, other
Indebtedness of up to $100,000,000 (inclusive of Indebtedness permitted
in Section 2.17(k)(1) above) in the aggregate (measured as of the date
of issuance) meeting the following criteria: (i) such Indebtedness is
either debt subordinate to the Obligations on terms and conditions
satisfactory to the Administrative Agent or unsecured Indebtedness,
(ii) none of such Indebtedness matures prior to one hundred eighty
(180) days after the maturity and payment in full of the Tranche C Term
Loans and termination of the Total Tranche C Term Loan Commitment,
(iii) no payments or prepayments of principal or sinking fund amounts
shall be made in respect of such indebtedness prior to one hundred
eighty (180) days after payment in full of the Tranche C Term Loans and
termination of the Total Tranche C Term Loan Commitment, and (iv) forty
(40%) percent of the Net Proceeds of the Indebtedness in the case of
subordinate Indebtedness and sixty (60%) percent of the Net Proceeds of
the Indebtedness in the case of unsecured Indebtedness are used to
reduce the Total Tranche A Term Loan Commitment, the Total Tranche B
Term Loan Commitment, and the Total Tranche C Term Loan Commitment, pro
rata (and pro rata to each remaining installment, including the final
installment);
Section 2.18 Amendment to Section 7.03(l). Section 7.03(l) is amended
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and restated to read in its entirety as follows:
"(l) other outstanding Indebtedness permitted under this
Agreement prior to the Fourth Amendment Date."
Section 2.19 Amendment of Section 7.03(n). Section 7.03(n) of the
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Credit Agreement is hereby amended and restated to read in its entirety as
follows:
(n) Indebtedness of a Subsidiary acquired pursuant to a
Permitted Acquisition (or indebtedness assumed by the Company or any
Wholly-Owned Domestic Subsidiary pursuant to a Permitted Acquisition as
a result of a merger or consolidation or the acquisition of an asset
securing such Indebtedness) (the "Permitted Acquired Debt"), not to
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exceed (i) $5,000,000 until the Covenant Reduction Date, or (ii)
$25,000,000 on or after the Covenant Reduction Date, at any one time
outstanding in the aggregate for all such Indebtedness, so long as such
Indebtedness was not incurred in connection with or in anticipation or
contemplation of such Permitted Acquisition;
Section 2.20 Amendment to Sections 7.03(p) and (r). Sections 7.03(p)
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and (r) of the Credit Agreement are amended and restated in their entirety to
read as follows: "[omitted intentionally]".
Section 2.21 Amendment of Section 7.05(e). Section 7.05(e) of the
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Credit Agreement is amended and restated to read in its entirety as follows:
(e) other Investments made after the Fourth Amendment Date,
including Investments in the form of loans, leases or advances to
customers of the Company and its Subsidiaries made to finance the
acquisition of equipment by such customers, not exceeding (i)
$5,000,000 until the Covenant Reduction Date
FOURTH AMENDMENT TO CREDIT AGREEMENT - Page 9
and (ii) $75,000,000 after the Covenant Reduction Date (in each case
measured as of the date of the investment) in the aggregate at any one
time outstanding;
Section 2.22 Amendment to Section 7.05(k). Section 7.05(k) of the
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Credit Agreement is amended and restated in its entirety to read as follows:
"(k) other outstanding Investments permitted under this
Agreement prior to the Fourth Amendment Date."
Section 2.23 Amendment to Section 7.06. Section 7.06 of the Credit
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Agreement is amended and restated to read in its entirety as follows:
Section 7.06 Restricted Payments. The Company will not use
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cash to pay any dividends or redeem, retire, purchase or guaranty the
value of or make any other acquisition, direct or indirect, of any
shares of any class of Capital Stock of the Company or any warrants,
rights or options to acquire any such Capital Stock, now or hereafter
outstanding or make any cash payment to any Affiliate of the Company
(other than a Wholly-Owned Subsidiary) with respect to any management
service operations, advisory or similar expense, except to the extent
that the consideration therefor is approved by the Majority Banks or
otherwise is permitted by Section 7.09 other than clause (v); provided,
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the Company may: (i) complete the Common Stock Repurchase, (ii)
purchase shares of Common Stock and options to purchase Common Stock
out of the proceeds of the $150,000,000 investment in the Company by
BOSS II, LLC not required for the Common Stock Repurchase; (iii) after
the Covenant Reduction Date, repurchase its Common Stock, including
Common Stock to be reissued in connection with acquisitions, provided
that the aggregate amount of all such repurchases from and after
February 22, 2000 (excluding repurchases permitted by clauses (i) and
(ii) above) shall not exceed $30,000,000; plus the aggregate amount of
cash paid to acquire shares of Common Stock after the Effective Date
that are reissued (or shall be reissued within 180 days of the
acquisition thereof) as part of the consideration paid to a seller in
connection with an acquisition permitted hereby; (iv) redeem or
purchase shares of the Company Common Stock or options to purchase the
Company Common Stock, as the case may be, held by former employees of
the Company or any of its Subsidiaries following the termination of
their employment (by death, disability or otherwise), provided that (x)
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the only consideration paid by the Company in respect of such
redemptions and/or purchases shall be cash, forgiveness of liabilities
and/or Shareholder Subordinated Notes, (y) the sum of (A) the aggregate
amount paid by the Company in cash in respect of all such redemptions
and/or purchases plus (B) the aggregate amount of liabilities so
forgiven plus (C) the aggregate amount of all cash principal and
interest payments made on Shareholder Subordinated Notes, in each case
after the Effective Date, shall not exceed $5,000,000 through the
Covenant Reduction Date, increasing to $10,000,000 once the Covenant
Reduction Date shall have occurred and (z) at the time of any cash
payment or forgiveness of liabilities permitted to be made pursuant to
this Section 7.06(iv), including any cash payment under a Shareholder
Subordinated Note, no Default or Event of Default shall then exist or
result therefrom; (v) so long as no Default or Event of Default exists
or would result therefrom, from and after the Covenant
FOURTH AMENDMENT TO CREDIT AGREEMENT - Page 10
Reduction Date, pay regularly accruing cash dividends on Preferred
Stock, with such dividends to be paid in accordance with the terms of
the respective statement of designation therefor, but not otherwise;
and (vi) pay cash in lieu of fractional shares of Common Stock issued
in connection with a conversion of Preferred Stock into Common Stock in
accordance with the relevant provisions of the statement of designation
therefor, so long as the aggregate amount of all cash paid pursuant to
this clause (vi) does not exceed $75,000 in any calendar year.
Section 2.24 Amendment to Section 7.11. Section 7.11 of the Credit
-------------------------
Agreement is hereby amended and restated in its entirety as follows:
Section 7.11. Funded Debt to Pro Forma EBITDA Ratio. The
-------------------------------------
Company will not permit, as of the last day of any fiscal quarter
(beginning with the fiscal quarter ended September 30, 2001), the ratio
of its Funded Debt to pro forma EBITDA calculated for the preceding
four (4) quarters on a rolling four (4) quarter basis, ending on each
date as set forth below, to be greater than:
--------------------------------------- ---------------------------------------
Period Ending Funded Debt Ratio
------------- -----------------
--------------------------------------- ---------------------------------------
September 30, 2001 3.75 to 1.00
--------------------------------------- ---------------------------------------
December 31, 2001 4.75 to 1.00
--------------------------------------- ---------------------------------------
March 31, 2002 5.25 to 1.00
--------------------------------------- ---------------------------------------
June 30, 2002 5.75 to 1.00
--------------------------------------- ---------------------------------------
September 30, 2002 5.25 to 1.00
--------------------------------------- ---------------------------------------
December 31, 2002 5.00 to 1.00
--------------------------------------- ---------------------------------------
March 31, 2003 4.75 to 1.00
--------------------------------------- ---------------------------------------
June 30, 2003 4.25 to 1.00
--------------------------------------- ---------------------------------------
September 30, 2003 4.00 to 1.00
--------------------------------------- ---------------------------------------
December 31, 2003 and thereafter 3.50 to 1.00
--------------------------------------- ---------------------------------------
Section 2.25 Amendment to Section 7.12. Section 7.12 of the Credit
-------------------------
Agreement is hereby amended and restated in its entirety as follows:
Section 7.12 Senior Debt to Pro Forma EBITDA Ratio. The
-------------------------------------
Company will not permit, as of the last day of any fiscal quarter
(beginning with the fiscal quarter ended September 30, 2001), the ratio
of Senior Debt to its pro forma EBITDA calculated for the preceding
four (4) quarters on a rolling four (4) quarter basis, ending on each
date set forth below, to be greater than:
FOURTH AMENDMENT TO CREDIT AGREEMENT - Page 11
--------------------------------------- ----------------------------------------
Period Ending Senior Debt Ratio
------------- -----------------
--------------------------------------- ----------------------------------------
September 30, 2001 2.75 to 1.00
--------------------------------------- ----------------------------------------
December 31, 2001 3.00 to 1.00
--------------------------------------- ----------------------------------------
March 31, 2002 3.25 to 1.00
--------------------------------------- ----------------------------------------
June 30, 2002 3.75 to 1.00
--------------------------------------- ----------------------------------------
September 30, 2002 3.25 to 1.00
--------------------------------------- ----------------------------------------
December 31, 2002 3.25 to 1.00
--------------------------------------- ----------------------------------------
March 31, 2003 3.00 to 1.00
--------------------------------------- ----------------------------------------
June 30, 2003 and thereafter 2.50 to 1.00
--------------------------------------- ----------------------------------------
Section 2.26 Amendment to Section 7.13. Section 7.13 of the Credit
-------------------------
Agreement is hereby amended and restated in its entirety to read as follows:
Section 7.13. Capital Expenditures. During the fourth quarter
--------------------
of fiscal year 2001, and during each fiscal year thereafter during the
term hereof, the Company will not permit non-acquisition related
Capital Expenditures (including Capitalized Lease Obligations but
excluding Janitorial Equipment) to be greater than the following,
calculated in each case as of the last day of the fiscal year: (i)
fourth quarter of fiscal year 2001, $9,000,000, (ii) fiscal year 2002,
$45,000,000, (iii) fiscal year 2003 and each fiscal year thereafter
until the Covenant Reduction Date, $55,000,000, and (iv) each fiscal
year ending after the Covenant Reduction Date, $80,000,000.
Notwithstanding the foregoing, up to $5,000,000 of any unused portion
of Capital Expenditures for fiscal years 2001 and 2002 may be carried
over to fiscal years 2002 and 2003, respectively, and up to $10,000,000
of any unused portion of Capital Expenditures for fiscal years 2003 and
2004 may be carried over to fiscal years 2004 and 2005, respectively.
Section 2.27 Amendment to Section 7.14. Section 7.14 of the Credit
-------------------------
Agreement is hereby amended and restated in its entirety as follows:
Section 7.14 Fixed Charge Coverage Ratio. The Company will not
---------------------------
permit, as of the last day of any fiscal quarter (beginning with the
fiscal quarter ended September 30, 2001), the ratio of (a) pro forma
EBITDA calculated for the preceding four (4) quarters on a rolling four
(4) quarter basis, minus non-acquisition Capital Expenditures
(including Capitalized Lease Obligations but excluding Janitorial
Equipment) actually made during the preceding four fiscal quarters, to
(b) the sum of (without duplication): (i)(A) cash interest expense net
------
of interest income, (B) scheduled amortization of principal of the Term
Loans and any other amortizing loans and scheduled payments in respect
of Capitalized Lease Obligations, and (C) mandatory cash dividends paid
on Preferred Stock, all calculated for the preceding four (4) quarters
on a rolling four (4) quarter basis,
FOURTH AMENDMENT TO CREDIT AGREEMENT - Page 12
plus (ii) 1/7th of the average of Revolving Loan Advances outstanding under
this Agreement during such period to be less than the following as of the end
of the applicable period set forth below:
-----------------------------------------------------------------------
Period Ending Fixed Charge Coverage Ratio
------------- ---------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
September 30, 2001 1.40 to 1.00
-----------------------------------------------------------------------
-----------------------------------------------------------------------
December 31, 2001 1.25 to 1.00
-----------------------------------------------------------------------
-----------------------------------------------------------------------
March 31, 2002 1.20 to 1.00
-----------------------------------------------------------------------
-----------------------------------------------------------------------
June 30, 2002 1.00 to 1.00
-----------------------------------------------------------------------
-----------------------------------------------------------------------
September 30, 2002 1.00 to 1.00
-----------------------------------------------------------------------
-----------------------------------------------------------------------
December 31, 2002 1.05 to 1.00
-----------------------------------------------------------------------
-----------------------------------------------------------------------
March 31, 2003 1.10 to 1.00
-----------------------------------------------------------------------
-----------------------------------------------------------------------
June 30, 2003 1.10 to 1.00
-----------------------------------------------------------------------
-----------------------------------------------------------------------
September 30, 2003 1.25 to 1.00
-----------------------------------------------------------------------
-----------------------------------------------------------------------
December 31, 2003 and thereafter 1.30 to 1.00
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Section 2.28 Amendment to Section 7.15(a). Section 7.15(a) of the Credit
----------------------------
Agreement is amended and restated in its entirety as follows:
(a)Subject to the provisions of this Section 7.15 and the
------------
requirements contained in the definition of Permitted Acquisition, the
Company and any of its Wholly-Owned Domestic Subsidiaries may, from time
to time, effect Permitted Acquisitions, so long as: (in each case except
to the extent the Majority Banks otherwise specifically agree in writing
in the case of a specific Permitted Acquisition): (i) no Default or
Event of Default shall be in existence at the time of the consummation
of the proposed Permitted Acquisition or immediately after giving effect
thereto; (ii) such Permitted Acquisitions, if made before the Covenant
Reduction Date, shall not exceed $5,000,000 (in cash or other property
other than Capital Stock of the Company or a Subsidiary) in the
aggregate in any fiscal year of the Company, or if made on or after the
Covenant Reduction Date, such Permitted Acquisitions shall not exceed
$75,000,000 (in cash or other property other than Capital Stock of the
Company or a Subsidiary) in the aggregate in any fiscal year of the
Company; and (iii) if the consideration paid by the Company consists of
Capital Stock of the Company or a combination of cash or other property
(not to exceed the limitations set forth in clause (ii) above) and
Capital Stock of the Company (A) the entity to be acquired had a
positive EBIT for the preceding fiscal year, as demonstrated by such
entity's audited financial statements or other financial statements
satisfactory to the Administrative Agent that are true and correct in
all material respects based on the Company's knowledge and due
diligence, and for the portion of the current fiscal year ended with the
most recent fiscal quarter, and (B) the Company delivers to the
FOURTH AMENDMENT TO CREDIT AGREEMENT - Page 13
Administrative Agent (1) financial statements, in form and substance
satisfactory to the Administrative Agent, demonstrating compliance with
clause (A) above, and (2) a pro forma compliance certificate prepared
after giving effect to and including the financial information of the
entity to be acquired for the most recent four (4) fiscal quarters,
demonstrating no Default or Event of Default exists.
Section 2.29 Addition of Schedule 1.01(a). Schedule 1.01(a), which is
----------------------------
appended to this Amendment, is added to the Credit Agreement as Schedule 1.01(a)
thereto.
Section 2.30 Deletion of Revolving Loan Commitment. The amount listed
-------------------------------------
below the heading "Revolving Loan Commitment" on each Bank's signature page of
the Credit Agreement is deleted in its entirety, Schedule 1.01(a) now reflecting
the Revolving Loan Commitment of each Bank.
ARTICLE 3
Ratifications, Representations and Warranties
---------------------------------------------
Section 3.1 Ratifications. The terms and provisions set forth in this
-------------
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Credit Agreement and except as expressly modified and superseded by
this Amendment, the terms and provisions of the Credit Agreement and the other
Loan Documents are ratified and confirmed and shall continue in full force and
effect. The Company and the Banks agree that the Credit Agreement as amended
hereby and the other Loan Documents shall continue to be legal, valid, binding
and enforceable in accordance with their respective terms, except, in each case,
as such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws relating to or affecting
the enforcement of creditors' rights generally, and by general principles of
equity regardless of whether such enforceability is sought in a proceeding in
equity or at law.
Section 3.2 Representations and Warranties. The Company hereby
------------------------------
represents and warrants to the Banks that (i) the execution, delivery and
performance of this Amendment and any and all other Loan Documents executed
and/or delivered in connection herewith have been authorized by all requisite
action on the part of the Company and will not violate the certificate or
articles of incorporation, other organizational documents or bylaws of the
Company or any Guarantor; (ii) the representations and warranties contained in
the Credit Agreement, as amended hereby, and any other Loan Document are true
and correct in all material respects on and as of the date hereof as though made
on and as of the date hereof (except to the extent that such representations and
warranties were expressly, in the Credit Agreement, made only in reference to a
specific date); and (iii) after giving effect to this Amendment, no Default or
Event of Default has occurred and is continuing.
ARTICLE 4
Miscellaneous
-------------
Section 4.1 Conditions to Effectiveness. This Amendment shall be
---------------------------
effective upon the execution hereof by the Company, Majority Banks and the
Administrative Agent and upon the occurrence of or delivery to the
Administrative Agent of the following:
FOURTH AMENDMENT TO CREDIT AGREEMENT - Page 14
(a) Payment of Fees. The Company shall have paid the fees set out in
---------------
the October 18, 2001 Fee Letter from the Administrative Agent to the
Company, including payment to the Administrative Agent for the ratable
benefit of the Banks approving the Fourth Amendment by the Fourth Amendment
Date of a fully earned, non-refundable amendment fee equal to 20 basis
points times the Commitments of such Banks, after giving effect to the
reduced Revolving Loan Commitment of each Bank;
(b) Resolutions. Resolutions of the board of directors or other
-----------
appropriate body of the Company and each Subsidiary certified by its
Secretary or an Assistant Secretary or other analogous officer or
representative which authorize the execution, delivery and performance by
such Person of this Amendment and such other Loan Documents to be executed
in connection herewith to which it is or is to be a party;
(c) Incumbency Certificate. A certificate of incumbency certified by
-----------------------
the Secretary or an Assistant Secretary or other analogous officer or
representative of the Company and each Subsidiary certifying as to the name
of each officer or other representative of such Person (i) who is
authorized to sign this Amendment or any Loan Documents to which such
Person is or is to be a party (including any certificates contemplated
herein), together with specimen signatures of each such officer or other
representative, and (ii) who will, until replaced by other officers or
representatives duly authorized for that purpose, act as its representative
for the purposes of signing documents and giving notices and other
communications in connection with the Loan Documents and the transactions
contemplated thereby;
(d) Articles or Certificates of Incorporation, etc. Certified copies
-----------------------------------------------
of any amendments of or other changes to the articles or certificates of
incorporation, certificate of formation, certificate of limited
partnership, partnership agreement or other analogous constitutional
document of the Company since June 8, 2001, certified by the Secretary of
State or other applicable Governmental Authority of the state or other
jurisdiction of incorporation or organization of the Company and dated as
of a current date;
(e) Bylaws. Certified copies of any amendments of or other changes to
------
the bylaws or other analogous constitutional document of the Company since
June 8, 2001, certified by the Secretary or an Assistant Secretary or other
analogous officer or representative of such Person;
(f) Government Certificates. Certificates of appropriate officials as
-----------------------
to the existence and good standing, status or compliance, as applicable, of
the Company in its jurisdiction of incorporation or organization and any
and all jurisdictions where the Company is qualified to do business as a
foreign corporation or other entity, each such certificate to be dated as
of a current date;
(g) Payment of Fees and Expenses. The Company shall have paid all
-----------------------------
reasonable costs, fees, expenses (including, without limitation, legal fees
and expenses and filing fees) and compensation contemplated hereby of or
incurred by the Banc of America Securities, LLC ("BAS") and the
Administrative Agent and their counsel to the extent billed on or before
the date hereof and payable pursuant to this Amendment and the Credit
Agreement;
FOURTH AMENDMENT TO CREDIT AGREEMENT - Page 15
(h) No Prohibitions. A certificate of an officer of the Company to the
---------------
effect that no Governmental Requirement shall prohibit the consummation of
the transactions contemplated by this Amendment or any other Loan Document
to be delivered in connection herewith, and no order, judgment or decree of
any Governmental Authority or arbitrator shall, and no litigation or other
proceeding shall be pending or threatened which would, enjoin, prohibit,
restrain or otherwise adversely affect the consummation of the transactions
contemplated by this Amendment or the other Loan Documents to be delivered
in connection herewith;
(i) Representations and Warranties. The representations and warranties
------------------------------
contained herein and in all other Loan Documents, as amended hereby, shall
be true and correct in all material respects as of the Fourth Amendment
Date as if made on the Fourth Amendment Date;
(j) Default. No Default or Event of Default shall have occurred and be
-------
continuing after giving effect to this Amendment, and no event or condition
shall have occurred that with the giving of notice or lapse of time or both
would be a Default or Event of Default;
(k) Compliance Certificate. The Company shall have submitted a
-----------------------
compliance certificate in form and substance satisfactory to the
Administrative Agent, showing no Default or Event of Default exists after
giving effect to this Amendment;
(l) Investment Certificate. The Company shall have submitted, at least
----------------------
three Business Days before the Fourth Amendment Date, a description, in
form and substance satisfactory to the Administrative Agent, of all
commitments of the Company and its Subsidiaries to make Investments in,
acquire the Indebtedness of, or acquire the Capital Stock of any Person to
the Administrative Agent;
(m) Material Adverse Change. Except as previously disclosed in writing
-----------------------
to the Banks, since December 31, 2000, there shall have been no Material
Adverse Effect in the consolidated financial condition (including the
business, assets, operations or condition, financial or otherwise) of the
Company, its Affiliates, or any Guarantor;
(n) Delivery of Documents. All of the documentation pursuant to this
---------------------
Amendment and the other Loan Documents, shall be delivered and in form and
substance satisfactory to BAS, the Administrative Agent and Majority Banks;
(o) Opinions of Counsel. Opinions addressed to the Administrative
-------------------
Agent and the Banks from βββββββββ & βββββββββ, L.L.P. and the General
Counsel to the Company, as to such matters as the Administrative Agent may
reasonably request; and
(p) Proceedings Satisfactory. All matters and proceedings taken in
-------------------------
connection with this Amendment and the other Loan Documents to be delivered
in connection herewith shall be reasonably satisfactory to the
Administrative Agent and its counsel.
The Company shall deliver, or cause to be delivered, to the Administrative Agent
sufficient counterparts of each agreement, document or instrument to be received
by the Administrative Agent under this Section 4.1 to permit the Administrative
Agent to distribute a copy of the same to each Bank.
FOURTH AMENDMENT TO CREDIT AGREEMENT - Page 16
Section 4.2 Survival of Representations and Warranties. All representations
------------------------------------------
and warranties made in this Amendment or any other Loan Document including any
Loan Document furnished in connection with this Amendment shall survive the
execution and delivery of this Amendment and the other Loan Documents, and no
investigation by the Banks or the Administrative Agent shall affect the
representations and warranties or the right of the Banks or the Administrative
Agent to rely upon them.
Section 4.3 Reference to Credit Agreement. Each of the Loan Documents,
-------------------------------
including the Credit Agreement and any and all other agreements, documents, or
instruments now or hereafter executed and delivered pursuant to the terms hereof
or pursuant to the terms of the Credit Agreement as amended hereby, are hereby
amended so that any reference in such Loan Documents to the Credit Agreement
shall mean a reference to the Credit Agreement as amended hereby.
Section 4.4 Expenses of Agent. As provided in the Credit Agreement, the
-----------------
Company agrees to pay on demand all reasonable costs and expenses incurred by
the Administrative Agent in connection with the preparation, negotiation, and
execution of this Amendment and the other Loan Documents executed pursuant
hereto.
Section 4.5 Severability. Any provision of this Amendment held by a court
------------
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
Section 4.6 Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
---------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE APPLICABLE
LAWS OF THE UNITED STATES OF AMERICA.
Section 4.7 Successors and Assigns. This Amendment is binding upon and
------------------------
shall inure to the benefit of the Company, the Banks and the Administrative
Agent and their respective successors and assigns, except that the Company may
not assign or transfer any of its rights or obligations hereunder without the
prior written consent of the Banks.
Section 4.8 Counterparts. This Amendment may be executed in one or more
------------
counterparts, and on telecopy counterparts each of which when so executed shall
be deemed to be an original, but all of which when taken together shall
constitute one and the same agreement.
Section 4.9 Effect of Waiver. No consent or waiver, express or implied, by
----------------
the Banks to or for any breach of or deviation from any covenant, condition or
duty by the Company or any Guarantor shall be deemed a consent or waiver to or
of any other breach of the same or any other covenant, condition or duty.
Section 4.10 Headings. The headings, captions, and arrangements used in
--------
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
Section 4.11 ENTIRE AGREEMENT. THIS AMENDMENT AND ALL OTHER INSTRUMENTS,
-----------------
DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS
AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND
SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND
FOURTH AMENDMENT TO CREDIT AGREEMENT - Page 17
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THIS AMENDMENT, AND MAY NOT
BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL
AGREEMENTS AMONG THE PARTIES HERETO.
Section 4.12 Reaffirmation of Guaranty. The undersigned Guarantors of the
-------------------------
obligations of the Company to the Banks under the Credit Agreement and the other
Loan Documents each hereby: (i) consents to the execution and delivery of the
foregoing Amendment, (ii) agrees that the Amendment shall not limit or diminish
the obligations of the undersigned under the Credit Agreement as Guarantors,
(iii) reaffirms its obligations under its guaranty, (iv) agrees that the
Guaranty remains in full force and effect and is hereby ratified and confirmed,
and (v) agrees that for all purposes it is a party (as a Guarantor) to the
Credit Agreement as amended hereby.
FOURTH AMENDMENT TO CREDIT AGREEMENT - Page 18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
THE COMPANY:
ENCOMPASS SERVICES CORPORATION
By: ----------------------------------
Name: ββββββ β. ββββββ
Title: Senior Vice President
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
GUARANTORS:
A-1 Mechanical of Lansing, Inc.
AA Advance Air, Inc.
A-ABC Appliance, Inc.
A-ABC Services, Inc.
ββ ββββ, Inc.
Air Conditioning, Plumbing & Heating Service Co., Inc.
Aircon Energy Incorporated
Air Systems, Inc.
Airtron, Inc.
Airtron of Central Florida, Inc.
American Air Company, Inc.
AMS Arkansas, Inc.
Atlantic Industrial Constructors, Inc.
B&R Electrical Services, Inc.
ββββ Electric Corp.
Building One Commercial, Inc.
Building One Service Solutions, Inc.
BUYR, Inc.
ββββββββ βββββ Products & Publications, Inc.
Cardinal Contracting Corporation
Central Carolina Air Conditioning Company
Chapel Electric Co.
βββββββ ββββββββ, Inc.
ChIP Corp.
βββββ ββββββββ Electric Service, Inc.
Colonial Air Conditioning Company
Commercial Air Holding Company
CONCH Republic Corp.
Continental Electrical Construction Co.
Costa and Rihl, Inc.
βββββββ Brothers, Inc.
β.β. ββββ Construction Co., Inc.
Delta Innovations, Ltd., a limited liability company,
by ββββ Companies Incorporated, its sole member
Divco, Inc.
Dynalink Corporation
EET Holdings, Inc.
Electrical Contracting, Inc.
Encompass Capital, Inc.
(formerly Commercial Air, Power & Cable, Inc., successor by
merger to Central Air Conditioning Contractors, Inc. and Tower
Electric Company)
Encompass Capital, L.P., by CONCH Republic Corp., its general partner
Encompass Central Plains, Inc. (formerly The βββββ Companies, Inc.)
Encompass Design Group, Inc.
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
(formerly Engineering Design Group, Inc.)
Encompass Electrical Technologies Central Tennessee, Inc.
Encompass Electrical Technologies Eastern Tennessee, Inc.
Encompass Electrical Technologies - Florida, LLC,
by EET Holdings, Inc., its sole member
Encompass Electrical Technologies Georgia, Inc.
Encompass Electrical Technologies, Inc.
(formerly Oil Capital Electric, Inc.)
Encompass Electrical Technologies Jacksonville, Inc.
Encompass Electrical Technologies - Midwest, Inc.
(formerly Town & Country Electric, Inc., successor by merger to
Cramar Electric, Inc., Pro Wire Security Systems, Inc.,
SKCE, Inc. and SKC Electric, Inc.)
Encompass Electrical Technologies North Carolina, Inc.
Encompass Electrical Technologies North Florida, Inc.
Encompass Electrical Technologies of Nevada, Inc.
Encompass Electrical Technologies of New England, Inc.
Encompass Electrical Technologies of Texas, Inc.
Encompass Electrical Technologies Projects Group, Inc.
Encompass Electrical Technologies - Rocky Mountains, Inc.
Encompass Electrical Technologies South Carolina, Inc.
Encompass Electrical Technologies Southeast, Inc.
Encompass Electrical Technologies Western Tennessee, Inc.
Encompass Facility Services, Inc.
Encompass Global Technologies, Inc.
Encompass Ind./Mech. of Texas, Inc.
Encompass Mechanical Services - Rocky Mountains, Inc.
(formerly ββββββββ Mechanical Company)
Encompass Mechanical Services Southeast, Inc.
(successor by merger to Del-Air Service Company, Inc. and
ββββββ Services, Incorporated)
Encompass Plumbing, Inc.
Encompass Power Services, Inc. (formerly EDG Power Group, Inc.)
Encompass Services Holding Corp.
Encompass Services Indiana L.L.C.
by Airtron, Inc., Cardinal Contracting Corporation, ββββ β. βββββ
Co., Inc., and ββββ Companies Incorporated, its members
ESR PC, L.P., by CONCH Republic Corp., its general partner
βββββ Services, Inc.
ββββββββββββββ.βββ, LLC,
by Building One Service Solutions, Inc., its sole member
ββββββββ Electric Corporation
ββββ βββββ Electrical Contractor, Inc.
Gamewell Mechanical, Inc.
Garfield-Indecon Electrical Services, Inc.
βββββββ Mechanical Contractors, Inc.
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
βββββββ Electric, Inc.
GroupMAC Texas L.P.,
by Encompass Services Holding Corp., its general partner
Gulf States, Inc.
Hallmark Air Conditioning, Inc.
HPS Plumbing Services, Inc.
ββββββββββ Mechanical Corporation
HVAC Services, Inc.
Interstate Building Services, L.L.C.,
by Building One Service Solutions, Inc., its sole member
Isla Morada LLC, by CONCH Republic Corp., its sole member
ββββ Mechanical Services, L.L.C.,
by Encompass Mechanical Services Southeast, Inc., its sole
member
K&N Plumbing, Heating and Air Conditioning, Inc.
βββββ'β, Inc.
Lexington/ββββ Mechanical Company, L.L.C.,
by Encompass Mechanical Services Southeast, Inc., its sole
member
Linford Service Co.
L.T. Mechanical, Inc.
βββββββββ-ββββββ Co., Inc.
βββββββββ-ββββββ Industries, Inc.
βββββββββ-ββββββ of Oregon, Inc.
βββββββββ-ββββββ Service, Inc.
Masters, Inc.
Mechanical Services of Orlando, Inc.
βββββββ Island Air & Heat, Inc.
National Network Services, Inc.
Omni Mechanical Company
Omni Mechanical Services,
by Omni Mechanical Company, its general partner
Pacific Rim Mechanical Contractors, Inc.
ββββ β. βββββ Co., Inc.
Phoenix Electric Company
Ray's Plumbing Contractors, Inc.
(formerly Ray and ββββββ βββββββ, Inc.)
Regency Electric Company South Florida Office, Inc.
Reliable Mechanical, Inc.
Riviera Electric of California, Inc.
ββββββββ Electric Corp.
ββββ Companies Incorporated
βββββββ Bros., Inc.
Sequoyah Corporation
S. L. Page Corporation (successor by merger to Hydro Cooling, Inc.)
ββββββ Mechanical
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
Southeast Mechanical Service, Inc.
βββββββ β. βββββββ, Inc.
Sterling Air Conditioning, Inc.
Sun Plumbing, Inc.
ββββββ-ββββ Electric, Inc.
Team Mechanical, Inc.
The Farfield Company
Tri-City Electrical Contractors, Inc.
Tri-M Corporation
Tri-State Acquisition Corp.
United Acquisition Corp.
United Service Alliance, Inc.
Van's Comfortemp Air Conditioning, Inc.
Vantage Mechanical Contractors, Inc.
Vermont Mechanical, Inc.
ββββ'β Heating & Cooling, Inc.
ββββββ Electrical Construction Co.
Wayzata, Inc.
βββββββ & Sons, Inc.
ββββββ Refrigeration, Air Conditioning & Heating, Inc.
ββββββ Electric Company, Inc.
Yale Incorporated
By: ------------------------------------------------------------------------
Name: ββββ β. βββββ
Title: Vice President
Acting on Behalf of Each of the Above
Encompass Management Co.
By: ------------------------------------------------------------------------
Name: ββββ β. βββββ
Title: Senior Vice President
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
ADMINISTRATIVE AGENT/BANK:
BANK OF AMERICA, N.A.
as Administrative Agent and Individually,
as a Bank
By:
----------------------------------------
Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
SYNDICATION-AGENT/BANK:
THE CHASE MANHATTAN BANK,
as Syndication Agent and
Individually, as a Bank
By:
---------------------------------------
Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
DOCUMENTATION AGENT/BANK:
FIRST UNION NATIONAL BANK
as Documentation Agent and
Individually, as a Bank
By:
--------------------------------------
Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
BANKS:
ABN-AMRO BANK NV
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By:
Name:
Title:
By:
Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
THE GOVERNOR AND COMPANY OF
THE BANK OF IRELAND
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
THE BANK OF NOVA SCOTIA
By:
-----------------
Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
BANK ONE, N.A.
By:
-------------------------------
Name: ββββ β. βββββββββ, ββ
Title: Associate Director
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
BANKBOSTON, N.A.
By:
-------------------------------
Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
BANKERS TRUST COMPANY
By:
-------------------------------
Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
CITICORP USA, INC.
By:
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Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
COMERICA BANK
By:
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Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
MANAGING AGENT/LENDER:
CREDIT LYONNAIS
NEW YORK BRANCH
By:
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Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
GMAC COMMERCIAL CREDIT LLC
By:
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Name:
Title:
By:
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Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
MERCANTILE BANK NATIONAL ASSOCIATION
By:
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Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By:
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Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
NATIONAL CITY BANK OF
KENTUCKY
By:
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Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
BNP PARIBAS
By:
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Name: ββββββ βββββββ
Title: Associate
By:
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Name: ββββββ ββββββ
Title: Vice President
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
SOVEREIGN BANK
By:
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Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
THE SUMITOMO TRUST & BANKING
CO., LTD., NEW YORK BRANCH
By:
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Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
UNION BANK OF CALIFORNIA, N.A.
By:
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Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
TEXTRON FINANCIAL CORPORATION
By:
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Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
βββ ββββββ PRIME RATE INCOME TRUST
BY: βββ ββββββ INVESTMENT
ADVISORY CORP
By:
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Name:
Title:
βββ ββββββ SENIOR INCOME TRUST
BY: βββ ββββββ INVESTMENT
ADVISORY CORP
By:
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Name:
Title:
βββ ββββββ CLO I, LIMITED
BY: βββ ββββββ MANAGEMENT
INC., as Collateral Manager
By:
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Name:
Title:
βββ ββββββ CLO II, LIMITED
BY: βββ ββββββ MANAGEMENT
INC., as Collateral Manager
By:
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Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
BANK LEUMI USA
By:
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βββββ βββ Hong
Vice President
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
βββββ βββ FLOATING RATE
LIMITED LIABILITY COMPANY
By:
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Name:
Title:
LIBERTY-βββββ βββ ADVISOR
FLOATING RATE ADVANTAGE FUND
BY: βββββ βββ & βββββββ
INCORPORATED, as Advisor
By:
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Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
ββββββ βββββββ ββββ ββββββ
PRIME INCOME TRUST
By:
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Name: βββββ βββββββ
Title: Vice President
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
NATIONAL CITY BANK
By:
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Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
ZERMATT CBO
By:
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Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
ββββββ FINANCIAL, INC.
By:
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Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
FIRST DOMINION FUNDING I
By:
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Name:
Title:
FIRST DOMINION FUNDING II
By:
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Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
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By:
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Name:
Title:
SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
Schedule 1.01(a)
Name of Bank Revolving Loan Commitment
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[TO COME FROM ADMINISTRATIVE AGENT]