Exhibit 4.7
EMCOR GROUP, INC.
SIXTH AMENDMENT TO CREDIT AGREEMENT
▇▇▇▇▇▇ Trust and Savings Bank
Chicago, Illinois and the other
Lenders from time to time
party to the Credit Agreement
referred to below
Gentlemen:
We refer to the Credit Agreement dated as of June 19, 1996 as amended
and currently in effect between EMCOR Group, Inc., DYN Specialty Contracting,
Inc., Drake & ▇▇▇▇▇ Engineering Ltd., ▇▇▇▇▇▇▇▇ Canada, Ltd. and you (the "Credit
Agreement"), capitalized terms used without definition below to have the
meanings ascribed to them in the Credit Agreement. Upon your acceptance hereof
in the space provided for that purpose below, this letter shall serve to amend
the Credit Agreement as follows:
1. Addition of The Fuji Bank, Limited as a Lender.
Subject to all the terms and conditions hereof, The Fuji Bank, Limited,
New York Branch ("Fuji") shall be and become a Lender under the Credit Agreement
with a Commitment (which shall be an Activated Commitment) in the amount set
forth opposite its signature hereto and with an address for notices as set forth
on the signature pages hereto. Fuji shall have all the rights and obligations of
a Lender under the Credit Agreement, as amended hereby, and under the other Loan
Documents and makes all acknowledgments and undertakings to the Agent and
Issuers as are set forth in Section 10 of the Credit Agreement. However, Fuji
shall only make Revolving Loans to the Company and DYN (collectively, the "U.S.
Borrowers") and shall only participate in those Letters of Credit which have
been applied for by one of the U.S. Borrowers and, accordingly, Fuji shall not
make Revolving Loans to Drake & ▇▇▇▇▇ or to ▇▇▇▇▇▇▇▇ Canada (the "Non-U.S.
Borrowers") or participate in the credit risk incident to Letters of Credit
applied for by the Non-U.S. Borrowers.
Anything contained in the Credit Agreement to the contrary
notwithstanding, Revolving Loans to the Non-U.S. Borrowers shall be made ratably
by the Lenders other than Fuji in accordance with the respective amounts of
their Activated Commitments and the Lenders other than Fuji shall participate in
the credit risk incident to the Letters of Credit issued on the application of
either of the Non-U.S. Borrowers ratably in accordance with the respective
amounts of their Activated Commitments and all payments on account of the
foregoing shall be shared ratably among the Lenders other than Fuji in
accordance with the amounts of their Activated Commitments. Revolving
Loans to the U.S. Borrowers and the credit risk incident to Letters of Credit
applied for by the U.S. Borrowers, shall be allocated so as to make each
Lender's percentage of the Activated Commitments in use as close to such
Lender's percentage of the total Commitments as is possible.
Payments shall be shared as follows: (i) payments of the commitment fee
called for by Section 3.1 of the Credit Agreement shall be shared among the
Lenders in accord with the respective unused amounts of their Activated
Commitments during the period for which the commitment fee was paid, (ii)
principal and interest payments made on Revolving Loans to the Non-U.S.
Borrowers and Letter of Credit Fees payable under the first sentence of Section
3.3 of the Credit Agreement ("Shared L/C Fees") in respect of Letters of Credit
applied for by the Non-U.S. Borrowers shall be shared ratably among the Lenders
other than Fuji in accordance with respective amounts of their Activated
Commitments and (iii) (x) payments of Shared L/C Fees in respect of Letters of
Credit issued on the application of the U.S. Borrowers shall be shared ratably
by the Lenders in accord with their respective shares of the credit risk
incident to such Letters of Credit during the period for which such fees accrued
and (y) payments of principal and interest on Revolving Loans made to the U.S.
Borrowers shall be shared among the Lenders ratably in accord with the
respective principal amounts of such Revolving Loans owing each, provided that
if at the time of receipt of a given payment of principal the percentage of the
Activated Commitment of Fuji in use is less than the percentage of the Activated
Commitments of the other Lenders in use, such payment shall first be distributed
to the other Lenders (ratably) until such time as the percentages of the
Activated Comi-nitments of all Lenders in use is identical. After the occurrence
of an Event of Default, payments and collections in respect of the Obligations
shall be distributed under the second paragraph of Section 3.7 of the Credit
Agreement ratably in accordance with their respective amounts of the particular
type of Obligation to which such collection is being applied (treating all
Revolving Loans as a group and all Letters of Credit as a group); provided that
if for any reason a collection cannot be so applied, then in that event the
Lenders receiving a disproportionate share of the collection in question shall
purchase without recourse a participation in the Obligations held by the other
Lenders to the extent necessary so that after giving effect thereto, such
payment has been shared ratably among the Lenders in accordance with the
foregoing.
2. Tranche C.
After giving effect to the transactions contemplated hereby, Tranche C
shall remain inactive and Section 6.3(c) of the Credit Agreement is hereby
amended by striking the figure "$5,000,000" wherever such figure appears therein
and substituting the figure "$3,375,0001, therefor.
3. Other Amendments.
(a) Section 4.1 (the Collateral). Clause (i) in the second proviso to
the first sentence of Section 4.1 of the Credit Agreement shall be amended by
adding the following at the end thereof:
"; and Liens on those accounts receivable arising under contracts of the
Guarantors for which Seaboard Surety Company and/or its Affiliates have provided
payment and/or performance bonds and on inventory and materials and equipment
purchased for, installed in, or allocated to any such contracts, may be subject
to prior Liens in favor of Seaboard Surety Company and/or its Affiliates to
secure obligations in connection with such payment and performance bonds."
(b) Section 7.11 (Liens). Section 7.11(g) of the Credit Agreement shall
be amended by adding the phrase "or of Seaboard Surety Company and its
Affiliates" immediately after the phrase "and its Affiliates". Section 7. 11 (k)
of the Credit Agreement shall be further amended by adding the following at the
end thereof:
"liens on up to (pound)400,000 of cash collateral securing
reimbursement obligations owing Barclays Bank in connection with letters
of credit which it has issued and rights of Bank of Scotland to offset
credit balances in any account maintained with it by a Subsidiary
incorporated under the laws of United Kingdom against debit balances in
any other account maintained with Bank of Scotland by any such
Subsidiary (it being acknowledged by the Lenders that such rights of
offset shall be superior to any rights they may have in and to such
accounts or the balances as are from time to time standing on deposit
therein)."
4. Conditions Precedent to Effectiveness.
This Sixth Amendment to Credit Agreement shall become effective upon
satisfaction of each of the following conditions precedent:
(a) The Agent shall have received counterparts hereof which, taken
together, bear the signatures of the Borrowers, the Lenders and Fuji;
(b) The Agent shall have received for Fuji a Revolving Credit Note of
each U.S. Borrower properly signed and completed; and
(c) Fuji shall have received such non-refundable fees as may have been
agreed to between it and the Borrowers.
Upon satisfaction of the foregoing conditions precedent to
effectiveness, the Agent shall so notify the Company and the Lenders and there
shall then be such non-ratable
borrowings and repayments of Revolving Loans from the U.S. Borrowers under the
Credit Agreement as shall be necessary so that after giving effect thereto and
to the acquisition by Fuji of a risk participation in Letters of Credit issued
on the application of the U.S. Borrowers, the percentage of the Activated
Commitment of Fuji in use is as close to identical to that of the other Lenders
as is possible. The U.S. Borrowers hereby authorize and direct the Agent to
affect the foregoing non-ratable borrowings and repayments by calling for
borrowings from Fuji on their behalf and applying them to the repayment of
Revolving Loans owing the other Lenders from the U.S. Borrowers.
5. Miscellaneous.
Except as specifically amended hereby, all of the terms, conditions and
provisions of the Credit Agreement shall stand and remain unchanged and in full
force and effect. No reference to this Sixth Amendment to Credit Agreement need
be made in any instrument or document at any time referring to the Credit
Agreement, and any reference to the Credit Agreement in any of such shall be
deemed to be a reference to the Credit Agreement as amended hereby. The Agent is
authorized to enter into an intercreditor agreement with Seaboard Surety Company
and/or its Affiliates on terms which are not in any material respect more
detrimental to the Lenders than the intercreditor agreement currently extant
with Reliance Surety Company and its Affiliates. In no event shall the
outstanding amount of Revolving Loans from any Lender, when taken together with
such Lender's share of the L/C Obligations, exceed its Activated Commitment.
This Sixth Amendment to Credit Agreement shall be construed in accordance with
and governed by the laws of Illinois and may be executed in counterparts and by
separate parties hereto on separate counterparts, each to constitute an original
but all one and the same instrument.
Dated as of this 15th day of December, 1997
EMCOR GROUP, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its Chairman of the Board
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DYN SPECIALTY CONTRACTING INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its Executive Vice President
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DRAKE & ▇▇▇▇▇ ENGINEERING LTD.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its Chairman of the Board
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▇▇▇▇▇▇▇▇ CANADA, LTD.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its Chairman of the Board
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Accepted and agreed as of the date last above written
Commitment (both active and
inactive): $30,000,000 ▇▇▇▇▇▇ TRUST AND SAVINGS BANK
Activated Commitment: $26,625,000
Percentage: 27.5549806%
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its Vice President
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Activated Commitment: 420,000,000 BANK OF SCOTLAND
Percentage: 20.6985769%
By: /s/ ▇▇▇▇▇ ▇▇▇▇ Tat
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Its Vice President
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Activated Commitment: $20,000,000 LASALLE NATIONAL BANK
Percentage: 20.▇▇▇▇▇▇▇%
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its Senior Vice President
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Activated Commitment: $15,000,000 CORESTATES BANK, N.A.
Percentage: 15.5239322272%
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its Vice President
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Activated Commitment: $15,000,000 THE FUJI BANK, LIMITED, NEW YORK
Percentage: 15.52393272% BRANCH
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Its Vice President and Manager
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▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President