EXHIBIT 10.1
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated
effective as of June 26, 2002, is among ENCOMPASS SERVICES CORPORATION, a Texas
corporation (formerly Group Maintenance America Corp., the "Company"), the
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
listed on the signature pages hereto under the caption "Banks" (together with
each other Person who becomes a Bank, collectively, the "Banks"), JPMORGAN CHASE
BANK (formerly the Chase Manhattan Bank), individually as a Bank and as
Syndication Agent (the "Syndication Agent"), WACHOVIA BANK NATIONAL ASSOCIATION
(formerly First Union National Bank), individually as a Bank and as
Documentation Agent (the "Documentation Agent"), and BANK OF AMERICA, N.A.,
individually as a Bank ("Bank of America") and as Administrative Agent for the
other Banks (in such capacity, together with any other Person who becomes the
administrative agent, the "Administrative Agent").
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, supplemented or
modified from time to time, the "Credit Agreement").
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
Section 1.1 Definitions. Capitalized terms used in this Amendment,
to the extent not otherwise defined herein, shall have the same meanings as in
the Credit Agreement, as amended hereby.
ARTICLE 2
Amendments
Section 2.1 Addition of Definitions to Section 1.01. The following
definitions are hereby inserted in alphabetical order to Section 1.01 of the
Credit Agreement to read in their entirety as follows:
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 1
"Additional Reserves" means certain reserves or write-offs
that the Company and its Subsidiaries, on a consolidated basis, would
be required to establish for certain additional outstanding receivables
or claims originated prior to December 31, 2001, so long as such
reserves or write-offs are established after the Fifth Amendment
Effective Date.
"Amended and Restated Security Agreement" means that certain
Amended and Restated Security Agreement covering all of the Collateral
of the Company and each of its Domestic Subsidiaries, executed by the
Company, the Domestic Subsidiaries and the Administrative Agent for the
benefit of itself and the Banks dated as of June 26, 2002.
"Consolidating" means provided by reportable business segment
applied consistently with Securities and Exchange Commission
regulations for public companies.
"Equity Investment" means the Company's sale of $35,000,000 of
Common Stock to the Apollo Group in (a) a common stock rights offering
or (b) another form of investment.
"Equity Investment Surplus" means the Company's sale of Common
Stock, concurrent with, but other than the Equity Investment, in (a) a
common stock rights offering or (b) another form of investment.
"Equity Investment Transaction" means the following:
(a) the Equity Investment shall have occurred;
(b) all gross proceeds from the Equity Investment
of $35,000,000 less the Permitted Expenses shall have been applied to
the Loans as set forth in Section 2.07(b)(v), and shall not be less
than $31,000,000; and
(c) the Company shall have paid substantially all the
fees and expenses related to the Equity Investment and the Equity
Investment Surplus that are required to be paid by the Company.
"Excess Cash Flow" means with respect to any twelve month
period ending March 31 (which shall be calculated commencing March 31,
2003), for the Company and its Subsidiaries on a consolidated basis, an
amount equal to EBITDA minus the sum of (a) consolidated Capital
Expenditures, (b) consolidated interest expense, (c) federal, state and
other income taxes actually paid by the Company and its Subsidiaries on
a consolidated basis, (d) scheduled consolidated Funded Debt payments,
(e) voluntary prepayments of any Indebtedness other than Indebtedness
arising under this Agreement, so long as (i) such prepayments are
otherwise permitted under this Agreement and (ii) such Indebtedness is
permanently reduced by the amount of such prepayment, and (f) plus
decreases in Working Capital or minus increases in Working Capital (in
each case not taking into account changes in Working Capital resulting
from sales or acquisitions of businesses).
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 2
"Excess Permitted Expenses" means any of the Company's costs
and expenses related to the Fifth Amendment, the Equity Investment or
Equity Investment Surplus exceeding the amount of Permitted Expenses.
"Fifth Amendment" means the Fifth Amendment to this Agreement
dated as of the Fifth Amendment Effective Date.
"Fifth Amendment Effective Date" means June 26, 2002.
"Junior Securities" means (a) equity securities, or (b) debt
securities evidencing Indebtedness not to exceed $25,000,000 in the
aggregate outstanding at any one time, or any securities that have a
cash return on investment capital in the form of cash interest payments
or dividends; provided that such Junior Securities:
(i) are subordinate to the Obligations containing
subordination terms 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 if such Junior Securities shall be held by the
Administrative Agent, then as determined by the Majority
Banks) or that are otherwise consented to by the Majority
Banks;
(ii) are unsecured;
(iii) do not increase in the aggregate the Company's cash
interest and cash dividend payments on an annual basis;
(iv) shall not require any payments or prepayments of
principal or sinking fund amounts to be made in respect of
such Indebtedness prior to the one hundred and eightieth
(180th) day after the Tranche C Term Loan Maturity Date;
(v) shall not contain any terms as to which compliance
would cause an Event of Default to occur based upon the
Company's financial projections at the time of the proposed
exchange;
(vi) are issued by the Company;
(vii) contain no covenants or contain covenants that are no
more restrictive or materially more burdensome to the Company
and/or its Subsidiaries than (A) those contained in the
documents related to the Indebtedness being exchanged, and (B)
those contained in this Agreement (as determined by the
Administrative Agent, or if such Junior Securities shall be
held by the Administrative Agent, then as determined by the
Majority Banks) or are otherwise consented to by the Majority
Banks; and
(viii) contain no restrictions or limitations on Liens in
favor of the Administrative Agent or any Bank.
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 3
"Permitted Expenses" means up to $4,000,000 of the Company's
costs and expenses related to the Equity Investment, Equity Investment
Surplus or the Fifth Amendment that may be deducted from the Equity
Investment's gross proceeds of $35,000,000, so that the net amount
applied to the Loans shall not be less than $31,000,000.
"Telecom Receivables Income" shall have the meaning set forth
in the definition of "EBITDA."
"Working Capital" means consolidated current assets minus
consolidated current liabilities (excluding cash, cash equivalents and
any Indebtedness that is classified as "current" in accordance with
GAAP), in each case as determined in accordance with GAAP.
Section 2.2 Amendment to Definitions in Section 1.01. The following
definitions appearing in Section 1.01 of the Credit Agreement are hereby amended
and restated to read in their entirety as follows:
"Asset Disposition" means, with respect to any Person, the
disposition of any asset of such Person (including, without limitation, any sale
and leaseback transactions, which sale and leaseback transactions shall not
exceed $10,000,000 in the aggregate during any fiscal year and the sale of any
Capital Stock of any Subsidiary of such Person) other than (a) sales of
Inventory in the ordinary course of business; (b) dispositions of equipment no
longer used in such Person's business; (c) issuance of such Person's capital
stock; (d) disposition to a Wholly-Owned Subsidiary of the Company that is a
Guarantor or to the Company; (e) sales of items in one transaction or a series
of related transactions which generate aggregate proceeds of $100,000 or less;
(f) insurance recoveries with respect to casualty losses; (g) sales of
Janitorial Equipment provided that (i) Net Proceeds of such sales are reinvested
in Janitorial Equipment within one hundred eighty (180) days of the date of such
disposition; (ii) such sales are in the ordinary course of business and do not
constitute a sale of all or a substantial portion of the Janitorial Equipment of
the Company or any Subsidiary, and (iii) such sales do not exceed $3,000,000 in
the aggregate in any single year or (h) dispositions of other equipment to be
replaced (and such equipment is so replaced) with other equipment within one
hundred eighty (180) days of the disposition thereof.
"Collateral" means (i) all personal property (except 34% of
the capital stock of first-tier Foreign Subsidiaries and 100% of all capital
stock of Foreign Subsidiaries that are not first-tier Foreign Subsidiaries),
including all accounts, chattel paper, documents, equipment, general
intangibles, goods, financial assets, letter of credit rights, commercial tort
claims (to the extent in existence), investment property, instruments,
inventory, pledged securities, intellectual property, deposit accounts
(including all funds, certificates, checks, drafts, wire transfer receipts, and
other earnings, profits, or other proceeds from time to time representing,
evidencing, deposited into, or held in deposit accounts), stock rights, and
motor vehicles, (ii) all of the capital stock of the Company's Domestic
Subsidiaries, (iii) 66% of the capital stock of the Company's first-tier Foreign
Subsidiaries, and (iv) other personal property (except 34% of the capital stock
of first-tier Foreign Subsidiaries and 100% of all capital stock of Foreign
Subsidiaries that are not first-tier Foreign Subsidiaries), wherever located, in
which the Company and its Domestic
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 4
Subsidiaries now has or hereafter acquires any right or interest, and the
proceeds, insurance proceeds and products thereof, together with all books and
records, customer lists, credit files, computer files, programs, printouts and
other computer materials and records related thereto, all as more fully
described in, and subject to any exceptions set forth in the Security Documents.
"EBITDA" means, for any period, and determined in accordance with GAAP
(to the extent applicable), the sum of:
(a) the consolidated pre-tax income of the Company, plus
the aggregate amount which was deducted for such period in determining
such consolidated pre-tax income for: (i) interest expense net of
interest income; (ii) depreciation expense; (iii) amortization
expense; (iv) compensation expense relating to the issuance of stock
and stock options to employees, directors and consultants (to the
extent same do not constitute a use of cash); (v) Permitted Expenses
and Excess Permitted Expenses; (vi) any non-cash goodwill impairment
charges; and
(b) for each acquisition of a Qualified Company acquired
by the Company during the twelve (12) months preceding the date as of
which EBITDA is calculated and with respect to the period beginning
twelve (12) months prior to the calculation of EBITDA through the date
of said acquisition by the Company, the sum of the consolidated
pre-tax income of such Qualified Company, plus: (i) the aggregate
amount which was deducted for such period in determining such
consolidated pre-tax income for (A) interest expense net of interest
income, (B) depreciation expense, and (C) amortization expense, and
(ii) Add-Back Adjustments of such Qualified Company; provided, said
pre-acquisition EBITDA shall be included in EBITDA only to the extent
any such amount is not included in subparagraph (a) above.
Notwithstanding the foregoing, EBITDA will exclude for the
corresponding period for which EBITDA is calculated (1) any
extraordinary losses or gains and (2) any gains or losses from asset
sales (including, but not limited to, the sale of stock of Subsidiaries
or other dispositions of Subsidiaries or operations for the trailing
twelve (12) month period immediately preceding the date of calculation)
other than sales of inventory in the ordinary course of business and
(3) any EBITDA (whether positive or negative) from operations of
businesses that were sold in the twelve (12) month period immediately
preceding the date EBITDA was calculated.
Notwithstanding the foregoing, EBITDA will include for the
corresponding period for which EBITDA is calculated, EBITDA (whether
positive or negative) from discontinued operations, which operations
were discontinued after March 31, 2002 but which have not been sold,
for the trailing twelve (12) month period immediately preceding the
date of calculation.
Furthermore, notwithstanding the foregoing, EBITDA will be
increased in the fourth quarter of fiscal year 2001 by $18,000,000 for
historical receivables write-offs or reserves attributable to emerging
telecommunications and data company customers. To the extent the
receivables written-off or reserved above are later collected (and
EBITDA is increased as a result of reversing such write-offs or
reserves provided above)
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 5
("Telecom Receivables Income"), the positive effect on EBITDA of such
amount of cash collected shall be excluded in calculating EBITDA for
the periods in which such Telecom Receivables Income was recorded.
However, when calculating EBITDA, the Company shall be permitted to
re-apply (and thus not exclude the positive effect from EBITDA) up to
an aggregate amount of $5,000,000 of such Telecom Receivables Income
against any Additional Reserves.
"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 VII VI V IV III II I
-------------------------------------------------------------------------------------------------------------------------
Funded Equal to or Equal to or Equal to or Equal to or Equal to or Equal to Less
Debt/Pro greater than greater than greater than greater than greater than or greater than
Forma 7.00 to 6.00 to 1.00 5.00 to 1.00 4.00 to 1.00 3.50 to 1.00 than 2.75 2.75 to
EBITDA 1.00 and less than and less than and less than and less than to 1.00 1.00
Ratio 7.00 to 1.00 6.00 to 1.00 5.00 to 1.00 4.00 to 1.00 and less
than 3.50
to 1.00
-------------------------------------------------------------------------------------------------------------------------
Alternate 2.50% 2.25% 2.00% 1.75% 1.00% .75% .50%
Base Rate
Margin
-------------------------------------------------------------------------------------------------------------------------
Eurodollar 4.00% 3.75% 3.50% 3.25% 2.50% 2.25% 2.00%
Margin
-------------------------------------------------------------------------------------------------------------------------
Commitment Fee .625% .625% .625% .625% .500% .375% .375%
-------------------------------------------------------------------------------------------------------------------------
(b) with respect to Tranche A Term Loans and Tranche B
Term Loans and to Alternate Base Rate Advances and Eurodollar Rate
Advances, as applicable, the percentage determined in accordance with
the following table:
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 6
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Pricing Level VI V IV III II I
---------------------------------------------------------------------------------------------------------------
Funded Debt/Pro Equal to or Equal to or Equal to or Equal to or Equal to or Less than
Forma EBITDA greater than greater than greater than greater than greater than 3.50 to 1.00
Ratio 7.00 to 1.00 6.00 to 1.00 5.00 to 1.00 4.00 to 1.00 3.50 to
and less than and less than and less than 1.00 and
7.00 to 1.00 6.00 to 1.00 5.00 to 1.00 less than
4.00 to
1.00
---------------------------------------------------------------------------------------------------------------
Alternate Base 2.75% 2.50% 2.25% 2.00% 1.25% 1.00%
Rate Margin
---------------------------------------------------------------------------------------------------------------
Eurodollar 4.25% 4.00% 3.75% 3.50% 2.75% 2.50%
Margin
---------------------------------------------------------------------------------------------------------------
(c) with respect to Tranche C Term Loans and to Alternate
Base Rate Advances for Tranche C Term Loans and Eurodollar Rate
Advances for Tranche C Term Loans, as applicable, the percentage
determined in accordance with the following table:
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Pricing Level III II I
---------------------------------------------------------------------------------------------------------------
Funded Debt/Pro Forma Equal to or greater than Equal to or greater than Less than 6.00 to 1.00
EBITDA Ratio 7.00 to 1.00 6.00 to 1.00 and less
than 7.00 to 1.00
---------------------------------------------------------------------------------------------------------------
Alternate Base Rate 2.75% 2.50% 2.25%
Margin
---------------------------------------------------------------------------------------------------------------
Eurodollar Margin 4.25% 4.00% 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 2.50% for Revolving Loans and 2.75% for Tranche
A Term Loans, Tranche B Term Loans and Tranche C Term Loans.
The pricing, as set forth above, will be at Level VII in the
case of Revolving Loans, Level VI in the case of Tranche A Term Loans
and Tranche B Term Loans, and Level III in the case of Tranche C Term
Loans, from the Fifth Amendment Effective Date until (i) the
application of the net proceeds of the Equity Investment of at least
$31,000,000 to the Loans pursuant to Section 2.07(b)(v), and (ii) the
Company shall have delivered a compliance certificate and unaudited
financial statements pursuant to Section 6.01 for the fiscal period
ending June 30, 2002, after which time, pricing will be set as
described herein.
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 7
"Total Commitment" means the aggregate Commitments of all
Banks totaling, for all Banks, a maximum of $650,000,000 until the
Equity Investment Transaction has been consummated and $700,000,000
thereafter.
"Total Revolving Loan Commitment" shall mean (a) until the
Equity Investment Transaction has been consummated, $250,000,000 and
(b) after the Equity Investment Transaction has been consummated,
$300,000,000, representing 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.
Section 2.3 Deletion of Definitions in Section 1.01. The following
definitions are hereby deleted in their entirety from Section 1.01 of the Credit
Agreement:
"Amount Limitation"
"Covenant Reduction Date"
"Designated"
"Designation Notice"
"Performance Release Date"
"Qualified High Yield Offerings"
Section 2.4 Amendment to Section 1.03. Section 1.03 of the Credit
Agreement is hereby amended by adding the following sentence at the end of
Section 1.03:
Notwithstanding anything to the contrary contained in the
foregoing, to the extent that all or any portion of the calculation of
the financial covenants contained in Sections 7.10, 7.11, 7.12, 7.13
and 7.14 are calculated in accordance with GAAP, such calculation
shall be in accordance with GAAP in effect as of the Fifth Amendment
Effective Date.
Section 2.5 Deletion to Section 2.01(a). Section 2.01(a) of the
Credit Agreement is hereby amended by deleting the last two sentences thereof.
Section 2.6 Amendment to Section 2.01(a)(i). The second subsection
(i) in Section 2.01(a) of the Credit Agreement is hereby amended by replacing
the reference to "$30,000,000" with "$15,000,000".
Section 2.7 Amendment to Section 2.07(b). Section 2.07(b) of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
(b) Mandatory Prepayments.
(i) Revolving Loans. If at any time the Outstanding
Revolving Credit exceeds the Total Revolving Loan Commitment, the
Company shall, within one (1)
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 8
Business Day after the occurrence thereof, prepay any outstanding
Swingline Advances (first) and any outstanding Revolving Loans by the
amount of such excess.
(ii) Prepayments from Asset Dispositions. If the Company or
any of its Subsidiaries receives Net Proceeds of any Asset
Disposition, the Company shall make a prepayment in respect of the
Loans equal to the amount of such Net Proceeds as provided in clause
(v) below; provided, however, that if 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 from such
Asset Dispositions during any fiscal year of the Company do not exceed
$5,000,000 in the aggregate, and provided, further, however, that none
of the 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.
(iii) Prepayments from Debt Offerings. In the event that the
Company or any Subsidiary of the Company issues any debt Securities
for cash (excluding other Indebtedness permitted by Section 7.03 and
the issuance of Junior Securities not issued for cash), 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 Loans equal to one hundred percent (100%) of the amount of the Net
Proceeds thereof in prepayment of the Loans as provided in clause (v)
below.
(iv) Prepayments from Equity Offerings. In the event that
the 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 (3rd) 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
percent (50%) of the amount of such Net Proceeds in prepayment of the
Loans as provided in clause (v) below; provided, however, that such
mandatory prepayment shall not be required 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 to 1.00 at the end of
the Company's most recently completed fiscal quarter. Notwithstanding
anything to the contrary contained herein, the Company shall make a
prepayment in respect of the Loans in an amount equal to (a)
one-hundred percent (100%) of the net proceeds from the Equity
Investment (after deduction of the Permitted Expenses), such net
proceeds not to be less than $31,000,000, and (b) fifty percent (50%)
of the net proceeds resulting from the Equity Investment Surplus
(after deduction of the Excess Permitted Expenses), no later than the
second (2nd) Business Day following the date of receipt thereof, such
net proceeds to be applied as provided in clause (v) below, unless,
with respect to the Equity Investment Surplus, such receipt is subject
to rebate under the terms and conditions of any subscription
agreements, in which case such net proceeds shall be applied as
provided in clause (v) below after such rebate period has expired.
(v) Application of Proceeds of Prepayments. Prepayments
made pursuant to clause (i) above shall be applied to the Revolving
Loans without any reduction in the Revolving Loan Commitments.
Prepayments made pursuant to clause (ii) above shall be
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 9
applied pro rata to all of the Loans (which, with respect to the Term
Loans, shall be applied in the inverse order of maturity), with a
permanent reduction of the Revolving Loan Commitments in the amount of
the prepayment applied to the Revolving Loans. Prepayments made
pursuant to clause (iii) and (iv) above, except for the Equity
Investment and Equity Investment Surplus, shall be applied pro rata to
all of the Loans (which, with respect to the Term Loans, shall be
applied in the inverse order of maturity) with a permanent reduction
of the Revolving Loan Commitments in the amount of the prepayment
applied to the Revolving Loans. Prepayments made pursuant to the
Equity Investment (less the Permitted Expenses) shall be applied to
the Term Loans on a pro rata basis in the inverse order of maturity.
Prepayments made pursuant to the Equity Investment Surplus (which
prepayment is understood to be limited to fifty percent (50%) of (A)
the gross proceeds of the Equity Investment Surplus less (B) the
Excess Permitted Expenses) shall be applied pro rata to all of the
Loans (which, with respect to the Term Loans, shall be applied in the
inverse order of maturity), with a permanent reduction of the
Revolving Loan Commitments in the amount of the prepayment applied to
the Revolving Loans. Prepayments made pursuant to clause (vi) shall be
applied pro rata to all of the Loans (which, with respect to the Term
Loans, shall be applied in the inverse order of maturity), 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 of a Tranche C Term Loan shall be
allocated as provided in this clause (v) to Loans other than Tranche C
Term Loans.
(vi) Prepayments from Excess Cash Flow. Not later than
July 1 of each year, beginning with year 2003, the Company shall
prepay an aggregate principal amount equal to fifty percent (50%) of
Excess Cash Flow less one hundred percent (100%) of any voluntary
prepayments of the Loans that permanently reduce the Loans during the
period for which the corresponding Excess Cash Flow was computed, the
proceeds of which shall be applied to the Loans pursuant to clause (v)
above. All prepayments made under this clause (vi) shall be
accompanied by a certificate demonstrating the calculation of Excess
Cash Flow, which shall be certified by the chief financial officer or
chief accounting officer or treasurer of the Company.
Section 2.8 Deletion to Section 3.01(a). Section 3.01(a) of the
Credit Agreement is hereby amended by deleting the last sentence thereof.
Section 2.9 Amendment to Section 3.01(a)(ii). Section 3.01(a)(ii)
of the Credit Agreement is hereby amended and restated to read in its entirety
as follows:
(ii) the expiry date or, in the case of any Letter of
Credit containing an expiry date that is renewable at the option of
the Issuing Bank, the initial expiry date of such Letter of Credit is
a date that is (A) later than one year from the date of issuance or
(B) later than the Revolving Loan Maturity Date.
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 10
Section 2.10 Replacement of Schedule 5.16. Schedule 5.16 attached
to the Credit Agreement is replaced with the Schedule 5.16 attached hereto.
Section 2.11 Amendment to Section 6.01(a). Section 6.01(a) of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
(a) As soon as available, and in any event within fifty
(50) days of the end of each fiscal quarter, the consolidated and the
Consolidating balance sheet of the Company and its Subsidiaries as of
the end of such period, the related consolidated and Consolidating
statements of income, and the related consolidated statements of
stockholders' equity and cash flows for such period and, in each case,
also for the portion of the fiscal year ended at the end of such
period, setting forth comparative consolidated figures for the related
periods in the prior fiscal year, all of which shall be certified by
the chief financial officer or chief executive officer of the Company
as fairly presenting, 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.
Section 2.12 Amendment to Section 6.01(b). Section 6.01(b) of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
(b) (i) As soon as available, and in any event within
ninety-five (95) days after the close of each fiscal year of the
Company, the audited consolidated and the unaudited Consolidating
balance sheets of the Company and its Subsidiaries as at the end of
such fiscal year, the related consolidated and Consolidating
statements of income, and the related consolidated statements of
stockholders' equity and cash flows for such fiscal year, setting
forth comparative consolidated figures for the preceding fiscal year
and certified by KPMG LLP or other independent certified public
accountants of recognized national standing acceptable to the
Administrative Agent, whose report shall be without limitation as to
the scope of the audit and reasonably satisfactory in substance to the
Banks; and (ii) a copy of Projections for the Company's fiscal year
immediately following the Fiscal Year which is the subject of the
financial statements delivered pursuant to clause (i) preceding.
Section 2.13 Amendment to Section 6.12. Section 6.12 of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
Section 6.12 Monthly Reporting. As soon as available, and in
any event within thirty-five (35) days after the end of each month
(except for the months of March, June and September), 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, and also for the portion of the
fiscal year ended at the end of such month, setting forth comparative
consolidated figures for the related periods in the prior fiscal year
and also setting forth a comparison with the budgeted figures for the
relevant time period, all of which shall be certified by the chief
financial officer or chief accounting officer or treasurer for the
Company as fairly representing, in all material
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 11
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 6.15. Section 6.15 is hereby added
to the Credit Agreement to read in its entirety as follows:
Section 6.15 Registration Statement. The Company shall file a
registration statement on Form S-3 with the Securities and Exchange
Commission under the Securities Act covering the rights offering
relating to the Equity Investment within three (3) Business Days of
the Fifth Amendment Effective Date.
Section 2.15 Addition of Section 6.16. Section 6.16 is hereby added
to the Credit Agreement to read in its entirety as follows:
Section 6.16 Closing of Equity Investment Transaction. The
Company shall use its best efforts to ensure that the Equity
Investment Transaction occurs on or before October 15, 2002. If the
Equity Investment Transaction is consummated after September 30, 2002
but on or before October 15, 2002, the financial covenants contained
in Sections 7.10, 7.11 and 7.12, shall be calculated giving pro forma
effect to the Equity Investment Transaction as if it had been
consummated on September 30, 2002.
Section 2.16 Amendment to Section 7.02. Section 7.02(a) of the
Credit Agreement is amended and restated to read in its entirety as follows:
(a) Except as disclosed on Schedule 7.02, the Company will
not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve their affairs, or agree to be acquired by any
third party in any transaction of merger or consolidation in which the
Company or a Domestic Subsidiary which is a Guarantor is not the sole
surviving entity, or sell or otherwise dispose of all or any
substantial part of their property or assets (including the capital
stock of any Subsidiary) other than: (i) sales of inventory and
surplus or obsolete assets in the ordinary course of business that do
not prejudice the Banks in any material way, (ii) dispositions of the
stock of Subsidiaries to, or mergers with, other Wholly-Owned Domestic
Subsidiaries of the Company that have complied with Section 6.09 and
that are Guarantors, (iii) any sale of assets (including the capital
stock of any Subsidiary) with a value equal to or less than the
greater of $50,000,000 or five percent (5%) of the Company's
Consolidated Net Worth (measured as of the most recently ended fiscal
quarter), provided the proceeds of such sale are applied as required
by Section 2.07(b)(ii), (iv) securitization of Accounts pursuant to a
securitization structure and upon terms and conditions approved by the
Administrative Agent and Majority Banks (an "Approved
Securitization"), provided that the proceeds of such securitization
are applied as required by Section 2.07(b)(ii), and (v) liquidation of
a Wholly-Owned Subsidiary into another Wholly-Owned Subsidiary,
provided that a Guarantor may only be liquidated into another
Guarantor or the Company.
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 12
Section 2.17 Amendment to Section 7.03(f). Section 7.03(f) of the
Credit Agreement is amended and restated to read in its entirety as follows:
(f) Intercompany Indebtedness of (i) any Domestic
Subsidiary of the Company which is a Guarantor to the Company or any
Wholly-Owned Domestic Subsidiary that is a Guarantor or (ii) the
Company to any Wholly-Owned Domestic Subsidiary of the Company;
Section 2.18 Amendment to Section 7.03(g). Section 7.03(g) of the
Credit Agreement is amended and restated to read in its entirety as follows:
(g) guarantees by the Company or any of its Subsidiaries
of Indebtedness of any Subsidiary of the Company that is a Guarantor
permitted to be incurred, created or existing pursuant to this
Agreement, provided that such guarantees are not secured by any Liens;
Section 2.19 Amendment to Section 7.03(k). Section 7.03(k) of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
(k) (i) following the Fifth Amendment Effective Date,
other Indebtedness (which shall not include Indebtedness incurred
pursuant to subsection (ii) of this Section 7.03(k)) meeting the
following criteria: (A) such Indebtedness is subordinate to the
Obligations containing subordination terms 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, (B)
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, (C)
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, (D) such
Indebtedness shall contain 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), (E) such Indebtedness shall not contain any terms as to which
compliance would cause a Default or Event of Default to occur based
upon the Company's financial projections, (F) such Indebtedness shall
contain no restrictions or limitations on Liens in favor of the
Administrative Agent or any Bank, (G) with respect to the first
$100,000,000 of such Indebtedness, in the aggregate (measured as of
the date of incurrence), seventy-five percent (75%) of the Net
Proceeds of such Indebtedness shall be used to reduce the Loans on a
pro rata basis (which, with respect to the Term Loans, shall be
applied in the inverse order of maturity), with a permanent reduction
of the Revolving Loan Commitments in the amount of the prepayment
applied to the Revolving Loans, and (H) with respect to all of such
Indebtedness in excess of $100,000,000, in the aggregate (measured as
of the date of incurrence), one hundred percent (100%) of the Net
Proceeds of such Indebtedness shall be used to reduce the Loans on a
pro rata basis (which, with respect to the Term Loans, shall be
applied in the inverse order of maturity), with a
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 13
permanent reduction of the Revolving Loan Commitments in the amount of
the prepayment applied to the Revolving Loans; and
(ii) Indebtedness arising as a result of the exchange of Junior
Securities for (A) the cancellation and/or redemption, dollar for
dollar, of any or all Indebtedness under this Agreement and/or (B) the
exchange, cancellation and/or redemption, dollar for dollar, of the
Company's other Indebtedness represented by debt securities, to the
extent the Company and the holder of such Indebtedness mutually agree
to be exchanged, cancelled or redeemed;
Section 2.20 Amendment to Section 7.03(l). Section 7.03(l) of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
(l) other outstanding Indebtedness permitted under this
Agreement prior to the Fifth Amendment Effective Date;
Section 2.21 Deletion of Section 7.03(n). Section 7.03(n) of the
Credit Agreement is hereby deleted in its entirety and replaced with "[omitted
intentionally]".
Section 2.22 Amendment to Section 7.03(o). Section 7.03(o) of the
Credit Agreement is hereby amended and restated to read its entirety as follows:
(o) other Indebtedness not exceeding $1,000,000;
Section 2.23 Amendment to Section 7.04(e). Section 7.04(e) of the
Credit Agreement is hereby amended and restated to read its entirety as follows:
(e) other Liens on assets not included in the Collateral
(as defined prior to the Fifth Amendment Effective Date) securing
obligations allowed pursuant to Article VII of this Agreement not
exceeding $3,000,000 in the aggregate at any one time;
Section 2.24 Amendment to Section 7.04(g). Section 7.04(g) of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
(g) Liens arising pursuant to purchase money mortgages or
security interests securing Indebtedness representing the purchase
price (or financing of the purchase price within ninety (90) days
after the respective purchase) of assets acquired after the Effective
Date, provided that (i) any such Liens attach only to the assets so
purchased, upgrades thereon and, if the asset so purchased is an
upgrade, the original asset itself (and such other assets financed by
the same financing source), (ii) the Indebtedness (other than
Indebtedness incurred from the same financing source to purchase other
assets and excluding Indebtedness representing obligations to pay
installation and delivery charges for the property so purchased)
secured by any such Lien does not exceed 100%, nor is less than 80%,
of the lesser of the fair market value or the purchase price of the
equipment being purchased at the time of the incurrence of such
Indebtedness, (iii) the Indebtedness secured thereby is permitted to
be incurred pursuant to Section 7.03(o) and (iv) the Indebtedness
secured thereby does not exceed $1,000,000 in the aggregate; and
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 14
Section 2.25 Amendment to Section 7.04(h). Section 7.04(h) of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
(h) Liens securing Indebtedness permitted by Section
7.03(n) (as in effect immediately prior to the Fifth Amendment
Effective Date) if secured on the date of the applicable Permitted
Acquisition and if the Permitted Acquisition occurred prior to the
Fifth Amendment Effective Date;
Section 2.26 Amendment to Section 7.05(d). Section 7.05(d) of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
(d) Investments in the stock, warrants, stock appreciation
rights, other securities and/or other assets of Qualified Companies
consummated prior to the Fifth Amendment Effective Date;
Section 2.27 Amendment to Section 7.05(e). Section 7.05(e) of the
Credit Agreement is amended and restated to read in its entirety as follows:
(e) other Investments existing as of the Fifth Amendment
Effective Date or made after the Fifth Amendment Effective 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 $5,000,000
in the aggregate at any one time outstanding (to be measured as of the
date of the Investment);
Section 2.28 Amendment to Section 7.05(f). Section 7.05(f) of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
(f) Investments in the form of stock buy backs allowed
under Section 7.06 and consummated prior to the Fifth Amendment
Effective Date; and
Section 2.29 Amendment to Section 7.06. Section 7.06 of the Credit
Agreement is amended and restated to read in its entirety as follows:
Section 7.06 Restricted Payments. The Company will not use
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 Domestic Subsidiary that is a Guarantor)
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; provided, the Company may: (i) prior to the Fifth Amendment
Effective Date, complete the Common Stock Repurchase, (ii) prior to
the Fifth Amendment Effective Date, purchase shares of Common Stock,
(iii) 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) the only consideration paid by the
Company in respect of such
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 15
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 Fifth Amendment Effective Date, and
pursuant to this subsection (iii), shall not exceed $5,000,000 and (z)
at the time of any cash payment or forgiveness of liabilities
permitted to be made pursuant to this Section 7.06(iii), including any
cash payment under a Shareholder Subordinated Note, no Default or
Event of Default shall then exist or result therefrom; (iv) 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
(iv) does not exceed $500,000 in any calendar year; (v) pay cash in
lieu of fractional shares of the Company's Common Stock in connection
with any reverse stock split, so long as the aggregate amount of all
cash paid pursuant to this clause (v) does not exceed $500,000 in any
calendar year; and (vi) redeem options to purchase the Company's
Common Stock, so long as the aggregate amount of all cash paid
pursuant to this clause (vi) does not exceed $500,000 in any calendar
year.
Section 2.30 Amendment to Section 7.09(ii). Subsection (ii) of
Section 7.09 of the Credit Agreement is hereby amended and restated to read in
its entirety as follows:
(ii) intercompany transactions among the Company and its
Domestic Subsidiaries that are Guarantors;
Section 2.31 Deletion of Section 7.09(v). Subsection (v) of Section
7.09 of the Credit Agreement is hereby deleted in its entirety and replaced with
"[omitted intentionally]".
Section 2.32 Amendment to Section 7.11. Section 7.11 of the Credit
Agreement is hereby amended and restated to read 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 June 30, 2002), 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
--------------------------------------------------------------------------------
June 30, 2002 8.70 to 1.00
--------------------------------------------------------------------------------
September 30, 2002 7.60 to 1.00
--------------------------------------------------------------------------------
December 31, 2002 7.60 to 1.00
--------------------------------------------------------------------------------
March 31, 2003 7.60 to 1.00
--------------------------------------------------------------------------------
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 16
--------------------------------------------------------------------------------
Period Ending Funded Debt Ratio
--------------------------------------------------------------------------------
June 30, 2003 7.40 to 1.00
--------------------------------------------------------------------------------
September 30, 2003 7.05 to 1.00
--------------------------------------------------------------------------------
December 31, 2003 6.65 to 1.00
--------------------------------------------------------------------------------
March 31, 2004 6.45 to 1.00
--------------------------------------------------------------------------------
June 30, 2004 6.35 to 1.00
--------------------------------------------------------------------------------
September 30, 2004 6.20 to 1.00
--------------------------------------------------------------------------------
December 31, 2004 6.10 to 1.00
--------------------------------------------------------------------------------
March 31, 2005 6.10 to 1.00
--------------------------------------------------------------------------------
June 30, 2005 6.10 to 1.00
--------------------------------------------------------------------------------
September 30, 2005 6.10 to 1.00
--------------------------------------------------------------------------------
December 31, 2005 and thereafter 5.60 to 1.00
--------------------------------------------------------------------------------
Section 2.33 Amendment to Section 7.12. Section 7.12 of the Credit
Agreement is hereby amended and restated to read 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 June 30, 2002), 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:
--------------------------------------------------------------------------------
Period Ending Senior Debt Ratio
--------------------------------------------------------------------------------
June 30, 2002 5.25 to 1.00
--------------------------------------------------------------------------------
September 30, 2002 4.50 to 1.00
--------------------------------------------------------------------------------
December 31, 2002 4.50 to 1.00
--------------------------------------------------------------------------------
March 31, 2003 4.50 to 1.00
--------------------------------------------------------------------------------
June 30, 2003 4.40 to 1.00
--------------------------------------------------------------------------------
September 30, 2003 4.25 to 1.00
--------------------------------------------------------------------------------
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 17
--------------------------------------------------------------------------------
Period Ending Senior Debt Ratio
--------------------------------------------------------------------------------
December 31, 2003 4.00 to 1.00
--------------------------------------------------------------------------------
March 31, 2004 3.85 to 1.00
--------------------------------------------------------------------------------
June 30, 2004 3.80 to 1.00
--------------------------------------------------------------------------------
September 30, 2004 3.80 to 1.00
--------------------------------------------------------------------------------
December 31, 2004 3.70 to 1.00
--------------------------------------------------------------------------------
March 31, 2005 3.70 to 1.00
--------------------------------------------------------------------------------
June 30, 2005 3.70 to 1.00
--------------------------------------------------------------------------------
September 30, 2005 3.70 to 1.00
--------------------------------------------------------------------------------
December 31, 2005 and thereafter 3.45 to 1.00
--------------------------------------------------------------------------------
Section 2.34 Amendment to Section 7.13. Section 7.13 of the Credit
Agreement is amended and restated to read in its entirety as follows:
Section 7.13 Capital Expenditures. During each fiscal year
during the term hereof following fiscal year 2001, the Company will not
permit nonacquisition 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: (a) for fiscal year 2002, $45,000,000 and (b) for
fiscal year 2003 and each fiscal year thereafter, $55,000,000.
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 2.35 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 June 30, 2002), 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) cash interest expense net of
interest income, (ii) scheduled amortization of principal of the Term
Loans and any other amortizing loans and scheduled payments in respect
of Capitalized Lease Obligations, and (iii) mandatory dividends paid
in cash on Preferred
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 18
Stock, all calculated for the preceding four (4) quarters on a rolling
four (4) quarter basis, to be less than the following as of the end of
the applicable period set forth below:
--------------------------------------------------------------------------------
Period Ending Fixed Charge Coverage Ratio
--------------------------------------------------------------------------------
June 30, 2002 0.80 to 1.00
--------------------------------------------------------------------------------
September 30, 2002 0.95 to 1.00
--------------------------------------------------------------------------------
December 31, 2002 1.00 to 1.00
--------------------------------------------------------------------------------
March 31, 2003 1.00 to 1.00
--------------------------------------------------------------------------------
June 30, 2003 1.00 to 1.00
--------------------------------------------------------------------------------
September 30, 2003 1.00 to 1.00
--------------------------------------------------------------------------------
December 31, 2003 1.00 to 1.00
--------------------------------------------------------------------------------
March 31, 2004 1.00 to 1.00
--------------------------------------------------------------------------------
June 30, 2004 1.00 to 1.00
--------------------------------------------------------------------------------
September 30, 2004 1.00 to 1.00
--------------------------------------------------------------------------------
December 31, 2004 1.00 to 1.00
--------------------------------------------------------------------------------
March 31, 2005 1.00 to 1.00
--------------------------------------------------------------------------------
June 30, 2005 1.00 to 1.00
--------------------------------------------------------------------------------
September 30, 2005 1.00 to 1.00
--------------------------------------------------------------------------------
December 31, 2005 and thereafter 1.10 to 1.00
--------------------------------------------------------------------------------
Section 2.36 Amendment to Section 7.15. Section 7.15 of the Credit
Agreement is amended and restated to read in its entirety as follows:
Section 7.15 Limitations on Acquisitions. Following the Fifth
Amendment Effective Date, the Company will not and will not permit any
Subsidiary to acquire any Person or business.
Section 2.37 Amendment to Section 7.16. Section 7.16 of the Credit
Agreement is amended and restated to read in its entirety as follows:
Section 7.16 Subordinated Debt. The Company will not amend or
obtain or grant a waiver of any provision of (i) the Indentures, or
(ii) any subordinated
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 19
Indebtedness listed on Schedule 7.03(b) or any agreement or
arrangement in respect thereof, except for amendments and waivers that
are not to the material detriment of the Banks. The Company will not
voluntarily prepay any portion of (X) the Indentures, or (Y) any
subordinated Indebtedness listed on Schedule 7.03(b) unless permitted
by Section 7.03(k)(ii) hereof, which permitted prepayments shall only
be in the form of Junior Securities.
Section 2.38 Additions to Section 9.01. Subsections (k) and (l) are
added to Section 9.01 of the Credit Agreement to read in their entirety as
follows:
(k) the Equity Investment Transaction does not occur on or
before the earlier of (i) thirty (30) calendar days after shareholder
approval of the Equity Investment has been obtained and (ii) October
15, 2002; or
(l) shareholder approval of the Apollo Group's purchase of
at least $35,000,000 of the Company's common stock as a part of the
Equity Investment is not obtained when a shareholder vote is held
thereon.
Section 2.39 Amendment to Section 9.01(c). The reference to
"Article VIII" contained in subsection (c) of Section 9.01 is hereby deleted in
its entirety and is replaced with "Article VII."
Section 2.40 Amendment to Section 11.2. The notice addresses
contained in Section 11.2 of the Credit Agreement are amended in their entirety
to read as follows:
(a) If to the Company and the Guarantors:
Encompass Services Corporation
0 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Chief Financial Officer
(b) If to the Administrative Agent:
Bank of America
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxxx, XX
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 20
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, the Guarantors 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 and each
Guarantor each hereby represent and warrant 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 such Guarantor 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, the Guarantors, the Majority
Banks and the Administrative Agent and upon the occurrence of or delivery to the
Administrative Agent of the following:
(a) Payment of Amendment Fees. The Company shall have paid
an amendment fee to the Administrative Agent, for the benefit of each
of the Banks that have consented to and executed this Amendment on or
before June 24, 2002, in an amount equal to 0.25% of the Total
Revolving Loan Commitment and the outstanding principal amount of the
Term Loans. The amount of the amendment fee shall be calculated (i)
after giving pro forma effect to the $31,000,000 reduction to the Term
Loans based upon the net proceeds from the Equity Investment and (ii)
after giving effect to the $50,000,000 reduction to the Total
Revolving Loan Commitment contemplated by this Amendment;
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 21
(b) Amended and Restated Security Agreement. The Company
and the Domestic Subsidiaries shall have executed that certain Amended
and Restated Security Agreement dated the date hereof on terms and
conditions satisfactory to the Administrative Agent;
(c) 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;
(d) 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
Document to which such Person is or is to be a party (including any
certificate 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;
(e) Articles or Certificates of Incorporation, etc.
Certified copies of any amendments of or other changes to articles or
certificates of incorporation, certificate of formation, certificate
of limited partnership, partnership agreement or other analogous
constitutional document of the Company and each Subsidiary since
November 9, 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 each Subsidiary
and dated within twenty-five (25) days prior to the Fifth Amendment
Effective Date;
(f) Bylaws. Certified copies of any amendments of or other
changes to the bylaws or other analogous constitutional document of
the Company and each Subsidiary since November 9, 2001, certified by
the Secretary or an Assistant Secretary or other analogous officer or
representative of such Person;
(g) Government Certificates. Certificates of appropriate
officials as to the existence and good standing, status or compliance,
as applicable, of the Company and each Subsidiary 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 within twenty-five
(25) days prior to the Fifth Amendment Effective Date;
(h) Payment of Fees and Expenses. The Company shall have
paid all reasonable costs, fees, expenses (including, without
limitation, legal fees and expenses, fees of professional advisors and
consultants and filing fees) and compensation contemplated hereby of
or incurred by Banc of America Securities, LLC ("BAS") and the
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 22
Administrative Agent (including their counsel and professional
advisors) to the extent billed on or before the date hereof;
(i) 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;
(j) Representations and Warranties. The Company shall have
certified that 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 Fifth Amendment Effective
Date as if made on the Fifth Amendment Effective Date;
(k) Default. The Company shall have certified that 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 after giving effect to this
Amendment;
(l) Compliance Certificate. The Company shall have
submitted a compliance certificate in form and substance satisfactory
to the Administrative Agent, demonstrating that no Default or Event of
Default exists after giving effect to this Amendment;
(m) Material Adverse Change. The Company shall have
certified that except as previously disclosed in writing to the Banks,
since December 31, 2001, 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 and its Subsidiaries taken as a whole;
(n) Delivery of Documents. All of the documentation
pursuant to this Amendment and the other Loan Documents, shall have
been delivered and in form and substance satisfactory to BAS, the
Administrative Agent, the Syndication Agent and the Majority Banks;
(o) Agreement Regarding Equity Investment. The Apollo
Group shall have executed an agreement in form and substance
satisfactory to the Administrative Agent (i) requiring the Apollo
Group to vote in favor of the Equity Investment when shareholder
approval of the Equity Investment is sought and (ii) requiring the
Apollo Group to purchase at least $35,000,000 in common equity of the
Company;
(p) Opinions of Company's Counsel. Opinions addressed to
the Administrative Agent and the Banks from Xxxxxxxxx & Xxxxxxxxx,
L.L.P. and the General Counsel to the Company, as to such matters as
the Administrative Agent may reasonably request; and
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 23
(q) 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.
Section 4.2 Conditions Subsequent. The following conditions shall
be satisfied following the effective date of this Amendment upon the following
terms:
(a) Field Examination. The Company and its Subsidiaries
shall permit an agent of the Banks to conduct a field examination on
terms and conditions satisfactory to the Administrative Agent, which
field examination shall be completed on or before ninety (90) days
following the effective date of this Amendment.
Section 4.3 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. The Company, Guarantors, Administrative
Agent and Banks acknowledge that the restrictions contained in the Credit
Agreement prohibiting the payment of dividends are contrary to the dividend
requirements of the Company's preferred stock, and agree that such conflict
shall not constitute a violation of the representation and warranty in the last
sentence of Section 5.4 of the Credit Agreement and any failure to pay such
dividends would not constitute a material default or event of default under a
material instrument or agreement under Section 6.1(c)(v) of the Credit
Agreement.
Section 4.4 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 4.5 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 Guarantors, the Banks and the
Administrative Agent and their
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 24
respective successors and assigns, except that neither the Company nor any
Guarantor may 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
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.
Section 4.13 Release. The Company and each of the Guarantors hereby
unconditionally and irrevocably remise, acquit, and fully and forever release
and discharge the Administrative Agent and the Banks and all respective
affiliates and subsidiaries of the Administrative Agent and the Banks, their
respective officers, servants, employees, agents, attorneys, principals,
directors and shareholders, and their respective heirs, legal representatives,
successors and assigns (collectively, the "Released Lender Parties") from any
and all claims, demands, causes of action, obligations, remedies, suits, damages
and liabilities (collectively, the "Borrower Claims") of any nature whatsoever,
whether now known, suspected or claimed, whether arising under common law, in
equity or under statute, which the Company or any Guarantor ever had or now has
against the Released Lender Parties which may have arisen at any time on or
prior to the date of this Amendment and which were in any manner related to any
of
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 25
the Loan Documents or the enforcement or attempted enforcement by the
Administrative Agent or the Banks of rights, remedies or recourses related
thereto. The Company and each of the Guarantors covenants and agrees never to
commence, voluntarily aid in any way, prosecute or cause to be commenced or
prosecuted against any of the Released Lender Parties any action or other
proceeding based upon any of the Borrower Claims which may have arisen at any
time on or prior to the date of this Amendment and were in any manner related to
any of the Loan Documents. The agreements of the Company and the Guarantors set
forth in this Section 4.12 shall survive termination of this Amendment.
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 26
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: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
GUARANTORS:
A-1 Mechanical of Lansing, Inc.
AA Advance Air, Inc.
XX Xxxx, Inc.
A-ABC Appliance, Inc.
A-ABC Services, 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.
B&R Electrical Services, Inc.
Building One Commercial, Inc.
Building One Service Solutions, Inc.
BUYR, Inc.
Xxxxxxxx Xxxxx Products & Publications, Inc.
Cardinal Contracting Corporation
Central Carolina Air Conditioning Company
Chapel Electric Co.
Xxxxxxx Xxxxxxxx, Inc.
ChiP Corp.
Colonial Air Conditioning Company
Commercial Air Holding Company
CONCH Republic Corp.
Xxxxxxx Brothers, Inc.
Delta Innovations, Ltd., a limited liability
company, by Xxxx 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
Xxxxx Companies, Inc.
Encompass Constructors, Inc., formerly Atlantic
Industrial Constructors, Inc. and successor by
merger with Xxxxxxxxxx Mechanical
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
Corporation
Encompass Design Group, Inc., 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
Continental Electrical Construction Co. and
successor by merger with Xxxx Electric Corp.
and Xxxxxxx Electric, Inc.
Encompass Electrical Technologies, Inc., formerly
Oil Capital Electric, Inc.
Encompass Electrical Technologies - Midwest,
Inc., formerly Town & Country Electric, Inc.
successor by merger to SKCE, Inc., SKCE
Electric, Inc., Cramar Electric, Inc. and Pro
Wire Security Systems, 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 South
Carolina, Inc.
Encompass Electrical Technologies Southeast,
Inc., formerly Regency Electric Company, Inc.
and successor by merger with Encompass
Electrical Technologies Jacksonville, Inc.
Encompass Electrical Technologies Western
Tennessee, Inc.
Encompass Facility Services, Inc.
Encompass Global Technologies, Inc.
Encompass Ind./Mech. of Texas, Inc.
Encompass Industrial Services Southwest, Inc.,
formerly Gulf States, Inc.
Encompass Mechanical Services of Elko, Inc.,
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
formerly Xxxxxx Mechanical
Encompass Mechanical Services - Rocky
Mountains, Inc., formerly Xxxxxxxx
Mechanical Company
Encompass Mechanical Services Southeast, Inc.,
successor by merger to X.X. Xxxx
Construction, Inc., Del Air Service Company,
Inc., Xxxxxx Services, Incorporated and
Reliable Mechanical, Inc.
Encompass Power Services, Inc.,
formerly EDG Power Services, Inc.
Encompass Residential Services of Houston, Inc.,
formerly Sterling Air Conditioning, Inc.
Encompass Services Holding Corp.
Encompass Services Indiana L.L.C., by Airtron,
Inc., Cardinal Contracting Corporation, Xxxx X.
Xxxxx Co., Inc., and Xxxx Companies
Incorporated, its members
ESR PC, L.P., by CONCH Republic Corp., its
general partner
EWG Holdings, Inc.
Xxxxx Services, Inc.
XxxxxxxxXxxxxx.xxx, LLC, by Building One Service
Solutions, Inc., its sole member
The Farfield Company
Xxxxxxxx Electric Corporation
Xxxx Xxxxx Electrical Contractor, Inc.
Gamewell Mechanical, Inc.
Garfield-Indecon Electrical Services, Inc.,
successor by merger with Xxxxx Xxxxxxxx
Electric Service, Inc.
Xxxxxxx Mechanical Contractors, Inc.
GroupMAC Texas, L.P., by Encompass Services
Holding Corp., its general partner
Hallmark Air Conditioning, Inc.
HPS Plumbing Services, Inc.
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
Xxxx Mechanical Services, L.L.C., by Encompass
Mechanical Services Southeast, Inc., its sole
member
K&N Plumbing, Heating and Air Conditioning,
Inc.
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
Xxxxx'x, Inc.
Lexington/Xxxx Mechanical Company, L.L.C., by
Encompass Mechanical Services Southeast,
Inc., its sole member
Linford Service Co.
L.T. Mechanical, Inc.
XxxXxxxxx-Xxxxxx Co., Inc.
XxxXxxxxx-Xxxxxx Industries, Inc.
XxxXxxxxx-Xxxxxx of Oregon, Inc.
XxxXxxxxx-Xxxxxx Service, Inc.
Masters, Inc.
Mechanical Services of Orlando, Inc.
Xxxxxxx Island Air & Heat, Inc.
National Network Services, Inc.
National Network Services Northwest, LLC, by
EWG Holdings, Inc., its sole member
Omni Mechanical Company
Omni Mechanical Services, by Omni Mechanical
Company, general partner
Pacific Rim Mechanical Contractors, Inc.
Xxxx X. Xxxxx Co., Inc.
Phoenix Electric Company
Ray's Plumbing Contractors, Inc., formerly Ray
and Xxxxxx Xxxxxxx, Inc.
Regency Electric Company, LLC, by EET
Holdings, Inc., its sole member
Regency Electric Company South Florida Office,
Inc.
Riviera Electric of California, Inc.
Xxxxxxxx Electric Corp.
Xxxx Companies Incorporated
Xxxxxxx Bros., Inc.
Sequoyah Corporation
S.L. Page Corporation, successor by merger with
Hydro Cooling, Inc.
Southeast Mechanical Service, Inc.
Xxxxxxx X. Xxxxxxx, Inc.
Sun Plumbing, Inc.
Xxxxxx-Xxxx Electric, Inc.
Team Mechanical, Inc.
Tri-City Electrical Contractors, Inc.
Tri-M Corporation, successor by merger with
Costa and Rihl, Inc. and Encompass Plumbing,
Inc.
Tri-State Acquisition Corp.
United Acquisition Corp.
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
United Service Alliance, Inc.
Van's Comfortemp Air Conditioning, Inc.
Vantage Mechanical Contractors, Inc.
Vermont Mechanical, Inc.
Xxxx'x Heating & Cooling, Inc.
Xxxxxx Electrical Construction Co.
Wayzata, Inc.
Xxxxxxx & Sons, Inc.
Xxxxxx Refrigeration, Air Conditioning & Heating,
Inc.
Xxxxxx Electric Company, Inc.
Yale Incorporated
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
Vice President
Acting on Behalf of Each of the Above
Encompass Management Co.
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
Senior Vice President
Encompass Electrical Technologies - Rocky
Mountains, Inc.
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Xxxxxx X. Xxxx
Vice President
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
ADMINISTRATIVE AGENT/BANK:
BANK OF AMERICA, N.A.
as Administrative Agent and Individually, as
a Bank
By: /s/ Xxxxxxx X. Xxxxxxxxxxx XX
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx XX
Title: Senior Vice President
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
SYNDICATION-AGENT/BANK:
JPMORGAN CHASE BANK
(formerly known as THE CHASE
MANHATTAN BANK),
as Syndication Agent and
Individually, as a Bank
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President Texas Region
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
DOCUMENTATION AGENT/BANK:
WACHOVIA BANK, NATIONAL
ASSOCIATION
(formerly known as FIRST UNION
NATIONAL BANK),
as Documentation Agent and
Individually, as a Bank
By: /s/ C. Xxxx Xxxxxxx
-------------------------------
Name: C. Xxxx Xxxxxxx
Title: Director
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
BANKS:
ABN-AMRO BANK NV
By: /s/ Xxxx X. Honda
-------------------------------
Name: Xxxx X. Honda
Title: Group Vice President
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Group Vice President
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
APEX (IDM) CDO I, LTD.
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
THE GOVERNOR AND COMPANY OF
THE BANK OF IRELAND
By: /s/ X. Xxxxxx
-------------------------------
Name: X. Xxxxxx
Title: Authorized Signatory
By: /s/ X. Xxxxx
-------------------------------
Name: X. Xxxxx
Title: Authorized Signatory
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
BANK LEUMI USA
By: /s/ Xxxxx Xxx Hong
-------------------------------
Name: Xxxxx Xxx Hong
Title: Vice President
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
THE BANK OF NOVA SCOTIA
By: /s/ X. Xxxx
-------------------------------
Name: X. Xxxx
Title: Senior Manager
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
BANK ONE, N.A.
By: /s/Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: First Vice President
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
BNP PARIBAS
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: Associate
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Director
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
CALLIDUS DEBT PARNERS CDO
FUND I, Ltd.
By: CALLIDUS CAPITAL
MANAGEMENT, LLC
its Collateral Manager
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
CREDIT LYONNAIS
NEW YORK BRANCH
By: /s/ Xxxxxx Xxx
-------------------------------
Name: Xxxxxx Xxx
Title: Senior Vice President
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
DEUTSCHE BANK TRUST COMPANY
AMERICAS (formerly known as
BANKERS TRUST COMPANY)
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
ELC (CAYMAN) LTD. CDO
SERIES 1999-1
By: /s/ Xxxxx Xxxxx
------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
FIRST DOMINION FUNDING I
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
FIRST DOMINION FUNDING II
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
FIRST DOMINION FUNDING III
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxxx
-------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Duly Authorized Signatory
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
GMAC COMMERCIAL CREDIT LLC
By: /s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
By:______________________________
Name:________________________
Title:_______________________
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
XXXXXX FINANCIAL, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Duly Authorized Signatory
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
BANK AUSTRIA
CREDITANSTALT CORPORATE
FINANCE, INC.
By: /s/ Xxxxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Managing Director
Chief Investment Officer
By: /s/ Xxxxx X. Xx
------------------------------------
Name: Xxxxx X. Xx
Title: Associate Director
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
INDOSUEZ CAPITAL FUNDING III,
LIMITED
BY: INDOSUEZ CAPITAL
as Portfolio Advisor
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Principal and Portfolio Manager
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
ML CBO IV (CAYMAN) LTD.
By: /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: Executive Vice President
Highland Capital Management, L.P.
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
NATIONAL CITY BANK
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
XXX CAPITAL FUNDING L.P.
By: /s/ Xxxxx Xxxxx
----------------------------
Name: Xxxxx Xxxxx
Title: Executive Vice President
Highland Capital Management, L.P.
PAMCO CAYMAN LTD.
By: /s/ Xxxxx Xxxxx
----------------------------
Name: Xxxxx Xxxxx
Title: Executive Vice President
Highland Capital Management, L.P.
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
NORSE CBO, LTD.
By: Regiment Capital Management, LLC
as its Investment Advisor
By: Regiment Capital Advisors, LLC
its Manager and pursuant to delegated
authority
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
REGIMENT CAPITAL LTD.
By: Regiment Capital Management, LLC
as its Investment Advisor
By: Regiment Capital Advisors, LLC
its Manager and pursuant to delegated
authority
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
PRESIDENT & FELLOWS OF
HARVARD COLLEGE
By: Regiment Capital Management, LLC
as its Investment Advisor
By: Regiment Capital Advisors, LLC
its Manager and pursuant to delegated
authority
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
SOVEREIGN BANK
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
THE SUMITOMO TRUST & BANKING
CO., LTD., NEW YORK BRANCH
By: /s/ Xxxxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
TEXTRON FINANCIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
US BANK NATIONAL ASSOCIATION
(formerly known as MERCANTILE BANK
NATIONAL ASSOCIATION and formerly
known as FIRSTAR BANK)
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
XXX XXXXXX PRIME RATE INCOME
TRUST
BY: XXX XXXXXX INVESTMENT
ADVISORY CORP
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
XXX XXXXXX SENIOR INCOME
TRUST
BY: XXX XXXXXX INVESTMENT
ADVISORY CORP
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
XXX XXXXXX CLO I, LIMITED
BY: XXX XXXXXX INVESTMENT
ADVORSY CORP, as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
XXX XXXXXX CLO II, LIMITED
BY: XXX XXXXXX INVESTMENT
ADVORSY CORP, as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
ZERMATT CBO LIMITED
(by UBS AG, New York Branch, as its
Collateral Manager)
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
By: /s/ Xxxxxx Xxxx Castin
----------------------------
Name: Xxxxxx Xxxx Castin
Title: Executive Director
SIGNATURE PAGES TO
FIFTH AMENDMENT TO CREDIT AGREEMENT
EXHIBIT 5.16
SUBSIDIARY COMPANIES
----------------------------------------------------------------------------------------------
Name of Subsidiary Jurisdiction
----------------------------------------------------------------------------------------------
A-1 Mechanical of Lansing, Inc. Michigan
----------------------------------------------------------------------------------------------
AA Advance Air, Inc. Florida
----------------------------------------------------------------------------------------------
A-ABC Appliance, Inc. Texas
----------------------------------------------------------------------------------------------
A-ABC Services, Inc. Delaware
----------------------------------------------------------------------------------------------
XX Xxxx, Inc. Delaware
----------------------------------------------------------------------------------------------
Air Conditioning, Plumbing & Heating Service Co., Inc. Colorado
----------------------------------------------------------------------------------------------
Aircon Energy Incorporated California
----------------------------------------------------------------------------------------------
Air Systems, Inc. California
----------------------------------------------------------------------------------------------
Airtron, Inc. Delaware
----------------------------------------------------------------------------------------------
Airtron of Central Florida, Inc. Florida
----------------------------------------------------------------------------------------------
American Air Company, Inc. California
----------------------------------------------------------------------------------------------
AMS Arkansas, Inc. Arkansas
----------------------------------------------------------------------------------------------
B&R Electrical Services, Inc. Maryland
----------------------------------------------------------------------------------------------
Building One Commercial, Inc. Missouri
----------------------------------------------------------------------------------------------
Building One Service Solutions, Inc. Virginia
----------------------------------------------------------------------------------------------
BUYR, Inc. Delaware
----------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxx Products & Publications, Inc. Colorado
----------------------------------------------------------------------------------------------
Cardinal Contracting Corporation Indiana
----------------------------------------------------------------------------------------------
Central Carolina Air Conditioning Company North Carolina
----------------------------------------------------------------------------------------------
Chapel Electric Co. Ohio
----------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxxx, Inc. Delaware
----------------------------------------------------------------------------------------------
ChIP Corp. Delaware
----------------------------------------------------------------------------------------------
Colonial Air Conditioning Company Delaware
----------------------------------------------------------------------------------------------
Commercial Air Holding Company Maryland
----------------------------------------------------------------------------------------------
CONCH Republic Corp. Delaware
----------------------------------------------------------------------------------------------
Xxxxxxx Brothers, Inc. South Carolina
----------------------------------------------------------------------------------------------
Delta Innovations, Ltd. Ohio
----------------------------------------------------------------------------------------------
Divco, Inc. Washington
----------------------------------------------------------------------------------------------
Dynalink Corporation Ohio
----------------------------------------------------------------------------------------------
EET Holdings, Inc. Delaware
----------------------------------------------------------------------------------------------
Electrical Contracting, Inc. California
----------------------------------------------------------------------------------------------
Encompass Capital, Inc. Maryland
----------------------------------------------------------------------------------------------
Encompass Capital, L.P. Texas
----------------------------------------------------------------------------------------------
Encompass Central Plains, Inc. Oklahoma
----------------------------------------------------------------------------------------------
Encompass Constructors, Inc.(fka Atlantic Industrial Constructors, Inc.) Virginia
----------------------------------------------------------------------------------------------
Encompass Design Group, Inc. Oklahoma
----------------------------------------------------------------------------------------------
Encompass Electrical Technologies, Inc.(fka Continental Electrical Delaware
Construction Co.)
----------------------------------------------------------------------------------------------
Encompass Electrical Technologies, Inc.(fka Oil Capital Electric, Inc.) Oklahoma
----------------------------------------------------------------------------------------------
Encompass Electrical Technologies Central Tennessee, Inc. Tennessee
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Name of Subsidiary Jurisdiction
----------------------------------------------------------------------------------------------
Encompass Electrical Technologies Eastern Tennessee, Inc. Tennessee
----------------------------------------------------------------------------------------------
Encompass Electrical Technologies - Florida, LLC Delaware
----------------------------------------------------------------------------------------------
Encompass Electrical Technologies Georgia, Inc. Georgia
----------------------------------------------------------------------------------------------
Encompass Electrical Technologies - Midwest, Inc. Wisconsin
----------------------------------------------------------------------------------------------
Encompass Electrical Technologies North Carolina, Inc. North Carolina
----------------------------------------------------------------------------------------------
Encompass Electrical Technologies North Florida, Inc. Florida
----------------------------------------------------------------------------------------------
Encompass Electrical Technologies of Nevada, Inc. Nevada
----------------------------------------------------------------------------------------------
Encompass Electrical Technologies of New England, Inc. Delaware
----------------------------------------------------------------------------------------------
Encompass Electrical Technologies of Texas, Inc. Texas
----------------------------------------------------------------------------------------------
Encompass Electrical Technologies Projects Group, Inc. Florida
----------------------------------------------------------------------------------------------
Encompass Electrical Technologies - Rocky Mountains, Inc. Colorado
----------------------------------------------------------------------------------------------
Encompass Electrical Technologies South Carolina, Inc. South Carolina
----------------------------------------------------------------------------------------------
Encompass Electrical Technologies Southeast, Inc. Florida
----------------------------------------------------------------------------------------------
Encompass Electrical Technologies Western Tennessee, Inc. Tennessee
----------------------------------------------------------------------------------------------
Encompass Facility Services, Inc. Delaware
----------------------------------------------------------------------------------------------
Encompass Global Technologies, Inc. Delaware
----------------------------------------------------------------------------------------------
Encompass Ind./Mech. of Texas, Inc. Delaware
----------------------------------------------------------------------------------------------
Encompass Industrial Services Southwest, Inc. Texas
----------------------------------------------------------------------------------------------
Encompass Management Co. Delaware
----------------------------------------------------------------------------------------------
Encompass Mechanical Services of Elko, Inc.(fka Xxxxxx Mechanical) Nevada
----------------------------------------------------------------------------------------------
Encompass Mechanical Services - Rocky Mountains, Inc. Colorado
----------------------------------------------------------------------------------------------
Encompass Mechanical Services Southeast, Inc. Mississippi
----------------------------------------------------------------------------------------------
Encompass Power Services, Inc. Oklahoma
----------------------------------------------------------------------------------------------
Encompass Residential Services of Houston, Inc.(fka Sterling Air Delaware
Conditioning)
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Encompass Services Holding Corp. Delaware
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Encompass Services Indiana L.L.C. Indiana
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ESR PC, L.P. Texas
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Xxxxx Services, Inc. Alabama
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EWG Holdings, Inc. Delaware
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XxxxxxxxXxxxxx.xxx, LLC Virginia
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Xxxxxxxx Electric Corporation Delaware
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Xxxx Xxxxx Electrical Contractor, Inc. Texas
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Gamewell Mechanical, Inc. North Carolina
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Garfield-Indecon Electrical Services, Inc. Ohio
----------------------------------------------------------------------------------------------
Xxxxxxx Mechanical Contractors, Inc. Minnesota
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GroupMAC Texas L.P. Texas
----------------------------------------------------------------------------------------------
Hallmark Air Conditioning, Inc. Delaware
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HPS Plumbing Services, Inc. California
----------------------------------------------------------------------------------------------
HVAC Services, Inc. Ohio
----------------------------------------------------------------------------------------------
Interstate Building Services, L.L.C. Virginia
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Isla Morada LLC Delaware
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Xxxx Mechanical Services, L.L.C. Texas
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K&N Plumbing, Heating and Air Conditioning, Inc. Delaware
----------------------------------------------------------------------------------------------
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Name of Subsidiary Jurisdiction
----------------------------------------------------------------------------------------------
Xxxxx'x, Inc. Delaware
----------------------------------------------------------------------------------------------
Lexington/Xxxx Mechanical Company, L.L.C. Kentucky
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Linford Service Co. California
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L.T. Mechanical, Inc. Delaware
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XxxXxxxxx-Xxxxxx Co., Inc. Washington
----------------------------------------------------------------------------------------------
XxxXxxxxx-Xxxxxx Industries, Inc. Washington
----------------------------------------------------------------------------------------------
XxxXxxxxx-Xxxxxx of Oregon, Inc. Delaware
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XxxXxxxxx-Xxxxxx Service, Inc. Washington
----------------------------------------------------------------------------------------------
Masters, Inc. Maryland
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Mechanical Services of Orlando, Inc. Florida
----------------------------------------------------------------------------------------------
Xxxxxxx Island Air & Heat, Inc. Delaware
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National Network Services, Inc. Delaware
----------------------------------------------------------------------------------------------
National Network Services Northwest, LLC Delaware
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Omni Mechanical Company Oklahoma
----------------------------------------------------------------------------------------------
Omni Mechanical Services Oklahoma
----------------------------------------------------------------------------------------------
Pacific Rim Mechanical Contractors, Inc. California
----------------------------------------------------------------------------------------------
Xxxx X. Xxxxx Co., Inc. Indiana
----------------------------------------------------------------------------------------------
Phoenix Electric Company Delaware
----------------------------------------------------------------------------------------------
Ray's Plumbing Contractors, Inc. Florida
----------------------------------------------------------------------------------------------
Regency Electric Company, LLC Florida
----------------------------------------------------------------------------------------------
Regency Electric Company South Florida Office, Inc. Florida
----------------------------------------------------------------------------------------------
Riviera Electric of California, Inc. California
----------------------------------------------------------------------------------------------
Xxxxxxxx Electric Corp. Ohio
----------------------------------------------------------------------------------------------
Xxxx Companies Incorporated Indiana
----------------------------------------------------------------------------------------------
Xxxxxxx Bros., Inc. South Carolina
----------------------------------------------------------------------------------------------
Sequoyah Corporation Washington
----------------------------------------------------------------------------------------------
S. L. Page Corporation Florida
----------------------------------------------------------------------------------------------
Southeast Mechanical Service, Inc. Florida
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Xxxxxxx X. Xxxxxxx, Inc. Delaware
----------------------------------------------------------------------------------------------
Sun Plumbing, Inc. Florida
----------------------------------------------------------------------------------------------
Xxxxxx-Xxxx Electric, Inc. Utah
----------------------------------------------------------------------------------------------
Team Mechanical, Inc. Utah
----------------------------------------------------------------------------------------------
The Farfield Company Delaware
----------------------------------------------------------------------------------------------
Tri-City Electrical Contractors, Inc. Florida
----------------------------------------------------------------------------------------------
Tri-M Corporation Pennsylvania
----------------------------------------------------------------------------------------------
Tri-State Acquisition Corp. Nevada
----------------------------------------------------------------------------------------------
United Acquisition Corp. Iowa
----------------------------------------------------------------------------------------------
United Service Alliance, Inc. Delaware
----------------------------------------------------------------------------------------------
Van's Comfortemp Air Conditioning, Inc. Florida
----------------------------------------------------------------------------------------------
Vantage Mechanical Contractors, Inc. Maryland
----------------------------------------------------------------------------------------------
Vermont Mechanical, Inc. Delaware
----------------------------------------------------------------------------------------------
Xxxx'x Heating & Cooling, Inc. Florida
----------------------------------------------------------------------------------------------
Xxxxxx Electrical Construction Co. North Carolina
----------------------------------------------------------------------------------------------
Wayzata, Inc. Delaware
----------------------------------------------------------------------------------------------
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Name of Subsidiary Jurisdiction
----------------------------------------------------------------------------------------------
Xxxxxxx & Sons, Inc. Florida
----------------------------------------------------------------------------------------------
Xxxxxx Refrigeration, Air Conditioning & Heating, Inc. Ohio
----------------------------------------------------------------------------------------------
Xxxxxx Electric Company, Inc. Arizona
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Yale Incorporated Minnesota
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