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EXHIBIT 4.8
SECOND AMENDMENT TO REVOLVING LOAN AGREEMENT
This Second Amendment to Revolving Loan Agreement (this
"Second Amendment") is made and entered into as of the 30th day of June, 1997,
by and among AMERICAN RESIDENTIAL SERVICES, INC., a Delaware corporation
("Borrower"), NATIONSBANK OF TEXAS, N.A., as Agent and Issuing Lender under the
hereinafter defined Loan Agreement, and those Lenders under that Loan Agreement
which have executed and delivered this Second Amendment.
W I T N E S S E T H
WHEREAS, pursuant to that certain Revolving Loan Agreement (as
heretofore amended, the "Loan Agreement") dated March 3, 1997, among Borrower,
NationsBank of Texas, N.A., as Agent and Issuing Lender, and the other entities
designated therein as Lenders, Lenders and Issuing Lender agreed to make loans
and other extensions of credit to Borrower upon the terms and conditions
therein contained; and
WHEREAS, pursuant to that certain First Amendment to Revolving
Loan Agreement dated as of March 24, 1997, the parties hereto modified and
amended certain terms and provisions of the Loan Agreement; and
WHEREAS, the parties hereto desire to further modify and amend
certain terms and provisions of the Loan Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Amendments to Loan Agreement. The Loan Agreement is modified
and amended as follows:
1.1 Subparagraph (d) of the definition of "Acquisition
Criteria" in Article I of the Loan Agreement is deleted in its entirety and the
following is substituted in place thereof:
(d) if the Acquisition Consideration to be paid is
not Approved Consideration, the sum of (i) the amount of the
Acquisition Consideration to be paid, plus (ii) the total amount of
Acquisition Consideration (other than Approved Consideration) paid by
Borrower, directly or indirectly through its Subsidiaries, for other
Acquired Businesses (and their respective Subsidiaries)
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during the shorter of (x) the period commencing on July 1, 1997,
through the Acquisition Date of that Acquired Business, or (y) the
12-month period preceding the Acquisition Date of that Acquired
Business, does not exceed the Maximum Permitted Consideration (for
purposes of clause (ii), Acquisition Consideration shall be adjusted to
reflect amounts actually paid by Borrower under any contingent earn-
out or other contingent obligations).
1.2 The definition of "Consolidated Funded Debt" in Article I of
the Loan Agreement is deleted in its entirety and the following is substituted
in place thereof:
"Consolidated Funded Debt" means, as of any date, all interest-bearing
Debt of Borrower and its Subsidiaries which is evidenced by promissory
notes, loan agreements, bonds or similar instruments, as such amount is
required to be shown on Borrower's consolidated balance sheet as of
that date prepared in accordance with GAAP (including, without
limitation, all Capitalized Lease Obligations and all Approved
Subordinated Debt, other than Approved Convertible Subordinated Notes
and Approved Seller Subordinated Debt).
1.3 The following terms and the definitions assigned to
such terms are added to and made a part of Article I of the Loan Agreement:
"Approved Seller Subordinated Debt" shall mean the convertible
subordinated notes, up to a maximum aggregate face amount of
$25,000,000.00, issued from time to time by Borrower pursuant to the
Shelf Indenture, as supplemented from time to time.
"Maximum Permitted Consideration" shall mean the greater of (a)
$50,000,000.00, or (b) an amount equal to twenty percent (20%) of
Borrower's total assets (determined quarterly as of the end of each
fiscal quarter of Borrower based upon the total assets of Borrower as
reported in Borrower's filed 10Q or Form 10K report for that fiscal
period, provided that adjustments to clause (b) shall be effective upon
the date of the filing of such report).
"Shelf Indenture" shall mean the Indenture dated a date in July 1997,
between Borrower and U.S. Trust Company of
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Texas, N.A., as Trustee, as filed by Borrower with the Securities and
Exchange Commission, pursuant to which Borrower intends to issue from
time to time in series convertible subordinated notes, each being
payable prior to maturity in semi-annual payments of interest only,
having a maturity of a date on or after April 15, 2004, and with a
redemption right on or after April 20, 2000, as amended, modified, or
supplemented from time to time to the extent permitted by this
Agreement.
2. Modification Fee. As independent consideration for entering
into this Second Amendment, contemporaneously with the execution and delivery
of this Second Amendment by the requisite parties hereto, Borrower shall pay to
Agent a modification fee equal to $15,000.00 for the account of those Lenders
which are signatories to this Second Amendment (which shall be divided equally
among such Lenders). Those Lenders which are signatories to this Second
Amendment constitute not less than the Required Lenders for the purpose of
modifying and amending the Loan Agreement in accordance with the terms of this
Second Amendment.
3. Approval of Subordinated Debt. The issuance of Approved Seller
Subordinated Debt is approved, and when issued, will constitute Approved
Subordinated Debt under the Loan Agreement, if and to the extent the series
pursuant to which such debt is issued does not modify the subordination
provisions in the Shelf Indenture and does not change the maturity date to a
date earlier than April 15, 2004.
4. Status of Indebtedness. Borrower acknowledges that the indebtedness
outstanding under the respective Notes on the date hereof is not subject to any
offsets, deductions, credits, charges, or claims of whatsoever kind or
character.
5. Defined Terms. Words and terms used herein which are defined
in the Loan Agreement are used herein as defined therein, except as
specifically modified by the terms of this Second Amendment.
6. Representations and Warranties. The representations and warranties
made by Borrower in Article V of the Loan Agreement are true and
correct in all material respects as of the date of this Second Amendment,
except for those representations and warranties that are limited by the terms
thereof to a specific date.
7. Miscellaneous.
7.1 Preservation of the Loan Agreement. Except as specifically
amended and modified by the terms of this Second Amendment, all of the terms,
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provisions, covenants, warranties, and agreements contained in the Loan
Agreement and in the other Loan Documents shall remain in full force and
effect.
7.2 Counterparts. This Second Amendment may be executed in two or
more counterparts, and it shall not be necessary that any one of the
counterparts be executed by all of the parties hereto. Each fully or partially
executed counterpart shall be deemed an original, but all such counterparts
taken together shall constitute but one and the same instrument.
7.3 NO ORAL AGREEMENTS. THE LOAN AGREEMENT, AS AMENDED BY THIS
SECOND AMENDMENT, AND THE OTHER WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties have executed this Second Amendment
as of the date first above written.
AMERICAN RESIDENTIAL SERVICES,
INC., a Delaware corporation
By:
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Xxxx X. Held,
Senior Vice President
AGENT:
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NATIONSBANK OF TEXAS, N.A., a
national banking association, as
Agent for Lenders
By:
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Xxxxxx Xxxxx
Vice President
ISSUING LENDER:
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NATIONSBANK OF TEXAS, N.A.,
a national banking association
By:
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Xxxxxx Xxxxx
Vice President
LENDERS:
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NATIONSBANK OF TEXAS, N.A.,
a national banking association
By: ________________________
Xxxxxx Xxxxx,
Vice President
NATIONAL CITY BANK OF KENTUCKY
By: __________________________
Xxxxxx X. Xxxxxx, Xx.,
Vice President
BANQUE PARIBAS
By: _________________________
Xxxxx Xxxxxxx,
Vice President
By: __________________________
Name: ________________________
Title: ________________________
THE FUJI BANK LIMITED, Houston Agency
By: __________________________
Xxxx Xxxxxx,
Vice President
GUARANTY FEDERAL BANK, F.S.B.
By: ___________________________
Xxxx Xxxxx,
Vice President
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SUMITOMO BANK, LTD.
By: _____________________________
Xxxx X'Xxxxx,
Vice President
By: _____________________________
Name: ___________________________
Title: __________________________
By their execution hereof, the undersigned
Subsidiaries of Borrower, guarantors of the
Obligations, acknowledge and agree to this
Second Amendment:
AIR CONTROL HEATING AND AIR CONDITIONING, INC.,
a California corporation
A.K. LANDAN, INC., a California corporation
AMERICAN MECHANICAL SERVICES COMPANY, L.L.C., a
Delaware limited liability company
AMERICAN MECHANICAL SERVICES OF ARIZONA, INC.,
a Arizona corporation
AMERICAN MECHANICAL SERVICES OF CALIFORNIA, INC.,
a California corporation
AMERICAN MECHANICAL SERVICES OF COLORADO, INC.,
a Colorado corporation
By:________________________________
XXXX X. HELD
Vice President
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AMERICAN MECHANICAL SERVICES OF INDIANA, INC.,
an Indiana corporation
AMERICAN MECHANICAL SERVICES OF SACRAMENTO, INC.,
a California corporation
AMERICAN MECHANICAL SERVICES OF TEXAS, INC.,
a Delaware corporation
AMS AMERICAN MECHANICAL SERVICES OF MARYLAND, INC.,
a Maryland corporation
AMERICAN RESIDENTIAL SERVICES OF COLORADO, INC.,
a Colorado corporation
AMERICAN RESIDENTIAL SERVICES OF MICHIGAN, INC.,
a Michigan corporation
AMERICAN RESIDENTIAL SERVICES OF NEBRASKA, INC.,
a Nebraska corporation
AMERICAN RESIDENTIAL SERVICES OF NEVADA, INC.,
a Nevada corporation
AMERICAN RESIDENTIAL SERVICES OF OKLAHOMA, INC.,
an Oklahoma corporation
AMERICAN RESIDENTIAL SERVICES OF PENNSYLVANIA, INC.,
a Pennsylvania corporation
By:________________________________
XXXX X. HELD
Vice President
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AMERICAN RESIDENTIAL SERVICES OF VIRGINIA, INC.
a Virginia corporation
ARS ENERGY SERVICES COMPANY, a
Delaware corporation
ARS RESIDENTIAL HOLDING COMPANY, a
Delaware corporation
ARS RESIDENTIAL MANAGEMENT
COMPANY, a Delaware corporation
ARS AMERICAN RESIDENTIAL SERVICES OF TEXAS,
INC., a Delaware corporation
ADCOT, INC. (d/b/a A-ABC Appliances, a
Texas corporation
AMERICAN RESIDENTIAL SERVICES OF SOUTH
CAROLINA, INC., a South Carolina corporation
CAPE FEAR HEATING & AIR CONDITIONING
OF WILMINGTON, INC., a North Carolina
corporation
DOC PLUMBING, INC., a South Carolina
corporation
AMERICAN RESIDENTIAL SERVICES OF FLORIDA,
INC., a Florida corporation
By:________________________________
XXXX X. HELD
Vice President
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GENERAL HEATING & AIR CONDITIONING
COMPANY, INC., a Delaware corporation
GOLDEN TRIANGLE MECHANICAL, INC., a
South Carolina corporation
XXXXX ACQUISITION, INC., an Indiana
corporation
XXXXX BROTHERS, INC.,
a Delaware corporation
XXXXX BROTHERS LLC,
a Delaware limited liability company
XXXXXXX PLUMBING COMPANY, INC., an
Indiana corporation
ILLINOIS HEATING & AIR CONDITIONING,
INC., an Illinois corporation
XXXXXX MECHANICAL SERVICES, INC., a
Virginia corporation
XXXXX HEATING & AIR, INC., a South Carolina
corporation
XXXXX ELECTRIC, INC., a Delaware
corporation
By:________________________________
XXXX X. HELD
Vice President
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XXXXX XXXXXX & SONS PLUMBING, INC., a Florida
corporation
MAIO MARKETING SYSTEMS, INC., a
California corporation
MAIO PLUMBING, HEATING & AIR, INC., a
California corporation
MCCANNICS, INC., a Delaware corporation
AMERICAN RESIDENTIAL SERVICES OF INDIANA,
INC., an Indiana corporation
AMERICAN RESIDENTIAL SERVICES OF NORTH
CAROLINA, INC., a North Carolina corporation
AMERICAN RESIDENTIAL SERVICES OF ILLINOIS,
INC., an Illinois corporation
PRO-FORMANCE, INC., a California corporation
R.F. MASTERS, INC., a South Carolina
corporation
ROOTER EXPRESS SERVICE, INC., a South
Carolina corporation
By:________________________________
XXXX X. HELD
Vice President
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SAGAMORE HEATING & COOLING, INC., an
Indiana corporation
XXXXX AIR CONDITIONING, INC., a Delaware
corporation
SERVICE ENTERPRISE HOLDINGS, LLC, a
Texas limited liability company
SERVICE ENTERPRISES - HOUSTON, INC.
(d/b/a Crown Services), a Delaware
corporation
ARS AMERICAN RESIDENTIAL SERVICES OF
CALIFORNIA, INC., a California corporation
TED'S PLUMBING, INC., a Florida corporation
TRADEMARK ENTERPRISES, INC., a Delaware
corporation
USA HEATING & AIR CONDITIONING, INC., a
Delaware corporation
WEST HOUSTON SERVICES, INC., a Delaware
corporation
By:________________________________
XXXX X. HELD
Vice President
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