Exhibit 4.4
EMCOR Group, Inc.
Third Amendment to Credit Agreement
Xxxxxx Trust and Savings Bank Chicago, Illinois and the other Lenders from time
to time party to the Credit Agreement referred to below
Gentlemen:
We refer to the Credit Agreement dated as of June 19, 1996 as amended and
currently in effect between EMCOR Group, Inc., DYN Specialty Contracting, Inc.,
Drake & Xxxxx Engineering Ltd. and you (the "Credit Agreement"), capitalized
terms used without definition below to have the meanings ascribed to them in the
Credit Agreement. Upon your acceptance hereof in the space provided for that
purpose below, this letter shall serve to amend the Credit Agreement as follows:
1. Addition of CoreStates Bank, N.A. as a Lender.
Subject to all of the terms and conditions hereof, CoreStates Bank, N.A.
shall be and become a Lender under the Credit Agreement with a Commitment (which
shall be an Activated Commitment) in the amount set forth opposite its signature
hereto and with an address for notices as set forth on the signature pages
hereto. CoreStates Bank, N.A. shall have all of the rights and obligations of a
Lender under the Credit Agreement and the other Loan Documents and makes all of
the acknowledgments and undertakings to the Agent as are set forth in Section 10
of the Credit Agreement. CoreStates Bank, N.A. shall be entitled to receive its
Percentage of all commitment fees accruing under Section 3.1 of the Credit
Agreement from and after the date this Third Amendment to Credit Agreement
becomes effective and of all Letter of Credit fees payable under the first
sentence of Section 3.3 of the Credit Agreement from and after the date this
Third Amendment to Credit Agreement becomes effective. After giving effect to
CoreStates Bank, N.A. becoming a "Lender" under the Credit Agreement and other
Loan Documents (i) $22,500,000 of the Tranche D Activation shall be deemed to
have occurred and (ii) the Activated Commitments and Percentages of the Lenders
and the total Commitment of Xxxxxx Trust and Savings Bank shall be as set forth
on the signature pages hereof.
2. Addition of Xxxxxxxx Canada, Ltd. as a Borrower.
Subject to all of the terms and conditions hereof and of the Credit
Agreement, Xxxxxxxx Canada, Ltd., a Canadian corporation ("Xxxxxxxx Canada"),
shall be and become a Borrower under the Credit Agreement with a Sublimit of
$5,000,000 and subject to such Sublimit Xxxxxxxx Canada shall have all of the
rights and obligations of a "Borrower" under the Credit Agreement all with the
same force and effect as though it were a signatory as a Borrower thereto.
3. Increase in the Sublimit of Drake & Xxxxx.
Subject to all of the terms and conditions hereof, the Sublimit of Drake &
Xxxxx shall be increased to the U.S. Dollar Equivalent of (pound)15,000,000.
4. Borrowings in Alternative Currencies.
The provisions of Section 3 of the December 24, 1996 Second Amendment to
Credit Agreement suspending the provisions of the Credit Agreement permitting
Borrowings in Alternative Currencies shall be of no further force and effect
and, accordingly, from and after the date this Third Amendment to Credit
Agreement becomes effective Borrowings may be made in Alternative Currencies
subject to all of the terms and conditions of the Credit Agreement and to the
following additional provisions hereof but unless and until all Lenders
otherwise agree, the only Alternative Currency shall be pounds sterling. All
Borrowings in an Alternative Currency and all interest thereon shall be payable
in the Alternative Currency in question. The provisions hereinafter set forth
shall supercede any inconsistent provisions contained in the Credit Agreement.
(a) Manner of Borrowing in Alternative Currencies.
The Company shall give notice to the Agent by no later than 10:00
a.m. (Chicago time) at least three Business Days before the date on which
the Company requests the Lenders to advance a Borrowing in an Alternative
Currency (such notices to be irrevocable) and to specify the initial
Interest Period (as hereinafter defined) selected therefore and the Agent
shall promptly notify each Lender of its receipt of each such notice. If
any Lender reasonably determines that the currency requested is
unavailable to it in the amount and for the term requested it shall so
notify the Agent within two hours of its receipt of the aforesaid notice
and the Agent shall promptly notify the Company and each other Lender of
its receipt of such notice and the request of the Company for the
Borrowing in the Alternative Currency in question shall be deemed
withdrawn. No later than 10:00 a.m. (Chicago time) at least three Business
Days before the lapse of each Interest Period selected by the Company for
a Borrowing in an Alternative Currency, the Company shall notify the Agent
of the new Interest Period selected for such Borrowing (such notices, once
given to be irrevocable) and the Agent shall promptly notify the Lenders
thereof. If the Agent has not received a timely notice from the Company of
the selection of a new Interest Period as hereinabove provided or if any
Lender notifies the Agent within two hours of its receipt of notice from
the Agent of the selection by the Company of a new Interest Period for a
Borrowing in an Alternative Currency that it has reasonably determined
that the currency in question is not readily available to it in the amount
and for the term requested, then in any such event the Borrowing in the
Alternative Currency in question shall be due and payable on the last day
of the then applicable Interest Period therefor.
(b) Prepayments of Borrowings in Alternative Currencies.
Borrowings in Alternative Currencies may only be voluntarily prepaid
on the last day of the applicable Interest Period and then only if the
Company has not previously given the Agent a notice of its election of a
new Interest Period therefor. Mandatory pre-payments shall be first
applied to Borrowings in U.S. Dollars until payment in full thereof and
then to the Borrowings in Alternative Currencies in the order in which
their Interest Periods expire, but if any such mandatory prepayment of a
Borrowing in an Alternative Currency would require the Company or the
applicable Borrower to make a payment to the Lenders on account thereof
pursuant to the provisions of Section 2(d) hereof, then in lieu thereof
and provided always that no Default or Event of Default has occurred and
is continuing the Company may request the Agent to hold the amount of the
prepayment in question until the applicable Interest Period expires. Cash
so held by the Agent shall be and constitute collateral security for the
Obligations and may, at the request of the Company and provided that no
Default or Event of Default has occurred and is continuing, be invested in
investments of the type described in clauses (a) through (c) of Section
7.12 of the Credit Agreement (all such investments to be and constitute
collateral security for the Obligations) held by the Agent. The interest
earned thereon, absent a Default or Event of Default, shall be released
from time to time to the applicable Borrower.
(c) Interest on Borrowings in an Alternative Currency.
Each Borrowing in an Alternative Currency shall bear interest for
each Interest Period applicable thereto at the Applicable Index Rate
computed for such Interest Period plus the Applicable Margin. The
Applicable Index Rate shall be the rate determined by adding the rate of
2.5% per annum to Adjusted LIBOR for such Interest Period and for the
currency in question, such interest to be due and payable on the last day
of the Interest Period applicable thereto and at maturity (whether by
acceleration or otherwise) and if the applicable Interest Period is longer
than three months then on each day occurring every three months after the
commencement of such Interest Period:
"Adjusted LIBOR" means, for any Interest Period, a rate per annum
determined in accordance with the following formula:
Adjusted LIBOR = LIBOR
------------------------------------
1 - Eurocurrency Reserve Percentage
"LIBOR" means, for an Interest Period, (a) the LIBOR Index Rate for such
Interest Period, if such rate is available, and (b) if the LIBOR Index Rate
cannot be determined, the average rate of interest per annum (rounded upwards,
if necessary, to the nearest one hundred-thousandth of a percentage point) at
which deposits in the relevant Alternative Currency in immediately available
funds are offered to the Agent at 11:00 a.m. (London, England time) two (2)
Business Days before the beginning of such Interest Period by major banks in the
interbank eurocurrency market for delivery on the first day of and for a period
equal to such Interest Period in an amount equal or comparable to the principal
amount of the Borrowing in an Alternative Currency scheduled to be made by the
Agent.
"LIBOR Index Rate" means, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point) for deposits in the Alternative Currency for a period equal to
such Interest Period, which appears on the Telerate Page 3750 for such currency,
as of 11:00 a.m. (London, England time) on the day two (2) Business Days before
the commencement of such Interest Period.
"Telerate Page "3750" means the display designated as "Page 3750", on the
Telerate Service (or such other page as may replace Page 3750 on that service or
such other service as may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for pounds sterling.
"Eurocurrency Reserve Percentage" means, for any Borrowing in an
Alternative Currency, the daily average for the applicable Interest Period of
the maximum rate, expressed as a decimal, at which reserves (including, without
limitation, any supplemental, marginal and emergency reserves) are imposed
during such Interest Period by the Board of Governors of the Federal Reserve
System (or any successor) on "eurocurrency liabilities", as defined in such
Board's Regulation D (or in respect of any other category of liabilities that
includes deposits by reference to which the interest rate on Loans in an
Alternative Currency is determined or any category of extensions of credit or
other assets that include loans by non-United States offices of any Lender to
United States residents), subject to any amendments of such reserve requirement
by such Board or its successor, taking into account any transitional adjustments
thereto. For purposes of this definition, the Loans in an Alternative Currency
shall be deemed to be "eurocurrency liabilities" as defined in Regulation D
without benefit or credit for any prorations, exemptions or offsets under
Regulation D.
The term "Interest Period" means the period commencing on the date a
Borrowing in an Alternative Currency is advanced or continued through a new
Interest Period and ending 1, 2, 3, or 6 months thereafter; provided, however,
that:
(i) an Interest Period may not extend beyond the Termination Date;
(ii) whenever the last day of any Interest Period would otherwise be
a day that is not a Business Day, the last day of such Interest Period
shall be extended to the next succeeding Business Day, provided that, if
such extension would cause the last day of an Interest Period to occur in
the following calendar month, the last day of such Interest Period shall
be the immediately preceding Business Day; and
(iii) for purposes of determining an Interest Period, a month means
a period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month; provided,
however, that if there is no numerically corresponding day in the month in
which such an Interest Period is to end or if such an Interest Period
begins on the last Business Day of a calendar month, then such Interest
Period shall end on the last Business Day of the calendar month in which
such Interest Period is to end.
If any payment of principal on any Loan in an Alternative Currency is not
made when due (whether by acceleration or otherwise), such Loan shall bear
interest (computed on the basis of 360 days and actual days elapsed) from the
date such payment was due until paid in full, payable on demand, at a rate per
annum equal to the sum of two percent (2%) plus the rate of interest in effect
thereon at the time of such default until the end of the Interest Period
applicable thereto and thereafter at a rate per annum equal to the sum of the
Applicable Margin, plus a rate of four and one half percent (4.5%) plus the rate
of interest per annum as determined by the Agent (rounded upwards, if necessary,
to the nearest whole multiple of one-sixteenth of one percent (1/16%)) at which
overnight or weekend deposits of the appropriate currency (or, if such amount
due remains unpaid more than three Business Days, then for such other period of
time not longer than six months as the Agent may elect in its absolute
discretion) for delivery in immediately available and freely transferable funds
would be offered by the Agent to major banks in the interbank market upon
request of such major banks of the applicable period as determined above and in
an amount comparable to the unpaid principal amount of any such Loan (or, if the
Agent is not placing deposits in such currency in the interbank market, then the
Agent's cost of funds in such currency for such period).
(d) Funding Indemnity. If any Lender shall incur any loss,
cost or expense (including, without limitation, any loss of profit, and
any loss, cost or expense incurred by reason of the liquidation or
re-employment of deposits or other funds acquired by such Lender to fund
or maintain any Loan in an Alternative Currency or the relending or
reinvesting of such deposits or amounts paid or prepaid to such Lender) as
a result of:
(i) any payment or prepayment of a Loan in an Alternative
Currency on a date other than the last day of its Interest Period for any
reason,
(ii) any failure (because of a failure to meet the conditions of
Borrowing or otherwise) by a Borrower to borrow or continue a Loan in an
Alternative Currency, or on the date specified in a notice given pursuant
this Agreement,
(iii) any failure by a Borrower to make any payment of principal
on any Loan in an Alternative Currency when due (whether by acceleration
or otherwise), or
(iv) any acceleration of the maturity of a Loan in an Alternative
Currency as a result of the occurrence of any Event of Default hereunder,
then, upon the demand of such Lender, the applicable Borrower shall pay to
such Lender such amount as will reimburse such Lender for such loss, cost
or expense. If any Lender makes such a claim for compensation, it shall
provide to the Company, with a copy to the Agent, a certificate executed
by an officer of such Lender setting forth the amount of such loss, cost
or expense in reasonable detail (including an explanation of the basis for
and the computation of such loss, cost or expense) and the amounts shown
on such certificate shall be deemed prima facie correct.
(e) Change of Law. Notwithstanding any other provisions of
this Agreement or any Note, if at any time any change in applicable law or
regulation or in the interpretation thereof makes it unlawful for any
Lender to make or continue to maintain Loans in an Alternative Currency or
to perform its obligations as contemplated hereby, such Lender shall
promptly give notice thereof to the Borrower and such Lender's obligations
to make or maintain Loans in an Alternative Currency under this Agreement
shall terminate until it is no longer unlawful for such Bank to make or
maintain such Loans. The applicable Lender shall prepay on demand the
outstanding principal amount of any such affected Loans, together with all
interest accrued thereon and all other amounts then due and payable to
such Lender under this Agreement; provided, however, subject to all of the
terms and conditions of this Agreement, the applicable Borrower may then
elect to borrow the principal amount of the affected Loans from such
Lender by means of Loans in U.S. Dollars from such Lender, which Loans
shall not be made ratably by the Lenders but only from such affected
Lender.
(f) Unavailability. If prior to the commencement of any
Interest Period for any Borrowing of Loans in an Alternative Currency:
(a) the Agent determines that deposits in the applicable
Alternative Currency (in the applicable amounts) are not being
offered to it in the eurocurrency interbank market for such Interest
Period, or that by reason of circumstances affecting the interbank
eurocurrency market adequate and reasonable means do not exist for
ascertaining the applicable LIBOR, or
(b) The Required Lenders notify the Agent that (i) LIBOR
as determined by the Agent will not adequately and fairly reflect
the cost to such Lender of funding their Loans in an Alternative
Currency for such Interest Period or (ii) that the making or funding
of Loans in the relevant currency has become impracticable, in
either case as a result of an event occurring after the date hereof
which in the opinion of such Lender materially affects such Loans,
then and in any such event the Agent shall not less than two days prior to
the commencement of such Interest Period, give notice thereof to the
Company and the Lender, whereupon until the Agent notifies the Company
that the circumstances giving rise to such suspension no longer exist, the
obligations of the Lenders to make Loans in the currency so affected shall
be suspended.
(g) Increased Cost and Reduced Return. If, on or after the
date hereof, the adoption of any applicable law, rule or regulation, or
any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance
by any Lender (or its lending office) with any request or directive
(whether or not having the force of law) of any such authority, central
bank or comparable agency:
(i) shall subject any Lender (or its applicable lending office) to
any tax, duty or other charge with respect to its Loans in an Alternative
Currency, its Notes, its Letter(s) of Credit, or its participation in any
thereof, or its obligation to make Loans, issue a Letter of Credit, or to
participate therein, or shall change the basis of taxation of payments to
any Lender (or its applicable lending office) of the principal of or
interest on its Loans in an Alternative Currency, Letter(s) of Credit, or
participations therein or any other amounts due under this Agreement in
respect of its Loans in an Alternative Currency, Letter(s) of Credit, or
participations therein or its obligation to make Eurocurrency Loans, issue
a Letter of Credit, or acquire participations therein (except for changes
in the rate of tax on the overall net income of such Lender or its lending
office imposed by the jurisdiction in which such Lender's principal
executive office or applicable lending office is located); or
(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding with respect to any such requirement included in an
applicable Eurocurrency Reserve Percentage) against assets of, deposits
with or for the account of, or credit extended by, any Lender (or its
applicable lending office) or shall impose on any Lender (or its lending
office) or on the interbank market any other condition affecting its
Loans, its Notes, its Letter(s) of Credit, or its participation in any
thereof, any of its obligation to make Loans, to issue a Letter of Credit,
or to participate therein;
and the result of any of the foregoing is to increase the cost to such Lender
(or its lending office) of making or maintaining any Loan in the currency
requested or issuing or maintaining a Letter of Credit, or participating
therein, or to reduce the amount of any sum received or receivable by such
Lender (or its applicable lending office) under this Agreement or under its
Notes with respect thereto, by an amount deemed by such Lender, in its
reasonable judgement, to be material, then, within fifteen (15) days after
demand by such Lender (with a copy to the Agent), the Company shall be obligated
to pay to such Lender such additional amount or amounts as will compensate such
Lender for such increased cost or reduction
Each Lender that determines to seek compensation under this clause (g)
shall notify the Company and the Agent of the circumstances that entitle the
Lender to such compensation pursuant to this clause (g) and will designate a
different lending office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the reasonable judgment of
such Lender, be otherwise disadvantageous to such Lender. A certificate of any
Lender claiming compensation under this clause (g) and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. In determining such amount, such Lender may use
any reasonable averaging and attribution methods.
5. Definitions.
(a) The definition of the term "Lenders" appearing in Section 9.1 of
the Credit Agreement shall be amended and as so amended shall be restated
in its entirety to read as follows:
""Lenders" shall mean Xxxxxx Trust and Savings Bank, CoreStates
Bank, N.A., LaSalle National Bank, Bank of Scotland and all other
lenders becoming parties hereto."
(b) The following additional definition shall be added to
Section 9.1 of the Credit Agreement:
""Xxxxxxxx Canada" shall mean Xxxxxxxx Canada, Ltd., a
Canadian corporation."
6. Conditions Precedent to Effectiveness.
This Third Amendment to Credit Agreement shall become effective upon
satisfaction of each of the following conditions precedent:
(a) The Agent shall have received counterparts hereof which, taken
together, bear the signatures of the Borrowers and the Lenders;
(b) the Agent shall have received for CoreStates Bank, N.A. a
Revolving Credit Note of each Borrower properly signed and completed;
(c) CoreStates Bank, N.A. shall have received such non-
refundable fees as may have been agreed to between it and the Borrowers;
(d) the Agent shall have paid to CoreStates Bank, N.A. its
Percentage of all Letter of Credit fees payable under the first sentence
of Section 3.3 of the Credit Agreement for the period from the date this
Third Amendment to Credit Agreement becomes effective through the date
through which such fees have been paid;
(e) The Agent shall have received a Revolving Credit Note of
Xxxxxxxx Canada for each Lender (each such Revolving Credit Note to
constitute a "Revolving Credit Note" and a "Note" for all purposes of the
Loans Documents);
(f) The Agent shall have received Resolutions of the Board of
Directors of Xxxxxxxx Canada authorizing its becoming a Borrower party to
the Credit Agreement, the execution and delivery by it of Revolving Credit
Notes and its becoming liable in respect of loans and letters of credit as
a "Borrower" under the Credit Agreement; and
(g) The Agent shall have received an acknowledgement from each of
the Guarantors that Xxxxxxxx Canada shall be treated as a "Borrower" for
purpose of its Guaranty.
Upon satisfaction of the foregoing conditions precedent to effectiveness
the Agent shall so notify the Company and the Lenders and there shall then be
such nonratable borrowings and repayments of Revolving Loans under the Credit
Agreement as shall be necessary so that after giving effect thereto the
percentages of the Activated Commitments in use (including usage through
participation in Letter of Credit liabilities and the amount of Revolving Loans
owing each Lender) are identical. The Borrowers hereby authorize and direct the
Agent to effect the foregoing nonratable borrowings and repayments by calling
for borrowings from CoreStates Bank, N.A. on their behalf and applying them to
the repayment of Revolving Loans owing the other Lenders.
7. Miscellaneous.
Except as specifically amended hereby all of the terms, conditions and
provisions of the Credit Agreement shall stand and remain unchanged and in full
force and effect. No reference to this Third Amendment to Credit Agreement need
be made in any instrument or document at any time referring to the Credit
Agreement, a reference to the Credit Agreement in any of such to be deemed to be
a reference to the Credit Agreement as amended hereby. This Third Amendment to
Credit Agreement shall be construed in accordance with and governed by the laws
of Illinois and may be executed in counterparts and by separate parties on
separate counterparts, each to constitute an original but all one and the same
instrument.
Dated as of this 28th day of February 1997.
EMCOR GROUP, INC.
By Xxxxx X. XxxXxxxx
-----------------
Its President and Chief
Executive Officer
DYN SPECIALTY CONTRACTING INC.
By Xxxxx X. XxxXxxxx
-----------------
Its Executive Vice President
DRAKE & XXXXX ENGINEERING LTD.
By Xxxxx X. XxxXxxxx
-----------------
Its Director
XXXXXXXX CANADA, LTD.
By Xxxxx X. XxxXxxxx
-----------------
Its Director
Accepted and agreed as of the date last above written.
Commitment (both active and
inactive): $63,250,000 XXXXXX TRUST AND SAVINGS BANK
Activated Commitment: $35,750,000
Percentage: 49.310345%
By /s/ Xxx X. Xxxxxxx
------------------
Its Vice President
Activated Commitment: $15,000,000 CORESTATES BANK, N.A.
Percentage: 20.689655%
By /s/ Xxxxxxx X. Xxxxxx
---------------------
Its Vice President
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Activated Commitment: $11,750,000 BANK OF SCOTLAND
Percentage: 16.206897%
By /s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------
Its Vice President
Activated Commitment: $10,000,000 LASALLE NATIONAL BANK
Percentage: 13.793103%
By /s/ Xxxxxx X. Xxxxxxxx
----------------------
Its First Vice President
